By Evarist Baimu Nyaga Mawalla - Home

prudently concealed the constitutional aspect in a haze of technicality about jurisdictionand nullity.The argument laying most readily to hand is that an enactment determinationunquestionable (referred to for short as an ouster clause) does not apply to an order ordetermination outside jurisdiction, since that is not an “order” or “determination” withinthe meaning of the Act. Lord Reid said, for example, that an ouster clause undoubtedlyprotects every determination which is not a nullity, but that it is not necessary or evenreasonable to construe the word “determination” as including everything which purportsto be determination but which is in fact no determination at all. Similarly, Lord Peacesaid that the more reasonable and logical construction was that by “determination”Parliament meant a real determination, not a purported determination. This amounts tosaying that “determination” means “valid determination” Once evident difficulty in thisreasoning is that a valid determination needs no protection anyway, at least if it has noerror on its face. Another is that until the court has pronounced, no one can know whethera disputed determination is valid or not; and this is the very question which parliamentevidently intends to prevent being litigated. But the wisdom of the judicial casuistry liesin its avoidance of these issues, so that the courts can appeal to obey rather to dfy thesovereign legislature. Lord Wilberforce said bravely that in holding a “decision”protected by an ouster clause to be a nullity the courts are carrying out the intension ofparliament and that it would be misdescription to speak in terms of a struggle between thecourts and the executive. He then posed the central question: what would be the purposein the statute allowed those limits to be passed with impunity?This is the question which Farwell L.J answered to clearly in a passage which has nowbeen quoted with approval by Lords Morris, Pearce and Wilberforce:“Subjection in this respect to the High Court is a necessary and inseparableincident to all tribunals of limited jurisdiction; for the existence of the limit necessitatesan authority to determine and enforce it: it is a contradiction in terms to create a tribunalwith limited jurisdiction and unlimited power to determine such limit at its own will andpleasure such as tribunal would be autocratic, not limited…….”62