By Evarist Baimu Nyaga Mawalla - Home

But not all Commonwealth countries have adopted the narrow approach. I have alreadycited the case of Chite (supra) from Kenya. In Australia in the35 (1986) L.R.C (Const.) 1.36 (1986) L.R.C (Const.) 319.37 Decree No. 2 of 1984Case of O’Rourke vs. Miller38 the decision of an administrative body was attacked onprocedural impropriety for failure to give fair opportunity to a servant who had beendismissed to state his defence. In the Supreme Court of New South Wales (in Australia)in the case of Osmund vs. Public Service Board of New South Wales39 the ouster clausecontained in section 65A (b) of the Public Service Act, 1979 provided:“Without affecting the government, no proceedings whether for an order in thenature of prohibition, certiorari or mandamus or for a declaration or injunction offor any other relief, shall lie in respect of –© the appointment or failure to appointa person to a position in the Public service, the entitlement or non-entitlement of aperson to be so appointed or the validity or validity of any such appointment.The applicant field an action for a declaration that there was breach of rules of naturaljustice in that he was entitled to be given reasons for the refusal to be given a particularappointment. He prayed for an order that he be given the reasons.Kirby,J. adopting a strict construction held that a prayer for reason for refusal ofappointment was not an action in respect of an appointment or failure to appointment wasnot an action in respect of an appointment or failure to appoint and so the ouster clausehad no effect. I have already cited some English cases adopting the broad approach, butone final case will not be too much. It is the case of R.vs.Secretary of State ex-partePhansopkar10 in which the ouster clause in section 26 of the British Nationality Act of1948 was worded as follows.The exercise by the Secretary of State of his discretion in relation to applicationsof citizenship is not to be subject to appal or review in any court.An applicant sought an order of Mandamus against the decision of the Secretary of stateeffusing to consider his application on the ground that the applicant should have made theapplication to the British Embassy in India before she left India. The Court of appeal heldthat the ouster clause had no effect when the Secretary of State refused to consider the.38. (1986) L.R.C (Const.) 65439. (1985) L.R.C (Const.) 104140. (1976) Q.B 606126