By Evarist Baimu Nyaga Mawalla - Home

The key word here is “inseparable” The objection to ouster clause is that they arerepugnant to a coherent legal system. The courts rightly regard it as their task to keep thesystem coherent. But it can hardly be denied that they do this by looking g at what theintention of Parliament caught to be rather that at what it is.Moreover, the English courts have taken the uncompromising stand of holding ousterclause to be inoperative in every kind of case where the error can be said to go tojurisdiction, artificial as some of these are. In Australia, on the other hand, an attempt hasbeen made to resolve Farwell L.J’s “contradiction in term” so as to allow the intention ofthe legislature to operate within reasonable limits. Many of the Australia cases areconcerned with the problem of keeping the courts of law out of the sphere of labour law,and very drastic ouster clause are freely used. The High Court of Australia looks on theproblem as one of reconciling the obvious intention of these clause with the equallyobvious intention that the powers of the Arbitration Court (for example) shall be legallylimited. Its solution is to decline to intervene “where the tribunal has made a bona fideattempt to exercise its authority in a matter relating to the subject with which thelegislation deals and capable reasonably of being referred to the power possessed by thetribunal.” Thus the court refused relief where an appeal board went beyond the questionsunder appeal, which it had no power to do, thus the court refused relief where an appealboard went beyond the questions under appeal, which it had no power to do, and where atribunal was said to have exceeded its jurisdiction by misconstruing “lock-out” Butprohibition was granted, despite express ouster of this and other remedies, where a boardsat without the statutory quorum which was required for it to function validly. Clearlythe Australian compromise poses very difficult questions of where to draw the lien.Equally clearly, it would have failed to provide a remedy in the Anismic case. But at leastit shows that some sort of balance can be stuck between legislative intention andconstitution logic.A balance has also been stuck by the English courts themselves in a number ofcomparable situations. Once example is the familiar problem of deciding whether astatutory condition is mandatory or remedy directory. I held merely directory, it may bedisregarded with impunity. In the latter case the court finds no difficulty in holding that63