By Evarist Baimu Nyaga Mawalla - Home

With regard to this passage of the High Court judgment, we wish to make onlytwo brief comments. Our first observation is with reference to the trial judge’sattempt to distinguish the President’s functions under subsection (1) and (2) ofs.10 on the basis of whether his functions were judicial, quasi-judicial orexecutive. We think in determing whether the position of the President in thecontext o s. 10 of the Land Ordinance is judicial, quasi –judicial or purelyexecutive, it is necessary to appreciate that the test in the matter is whether thereis a”lis”, i.e ., a contest, as it were, between two sides, as between whom thepresident has to come to a determination after consideration of all the factsplaced before him. In the present case we can see nothing in the wording of s.10which imposes on the President any duty to act judicially or quasi-judicially. As inour opinion the functions of the President under s. 10 of the Land Ordinancecannot, even remotely, properly be categorized as being judicial or quasi-judicialproceedings, we think the learned trial judge erred in thinking that the functions ofthe President under subsection (1) of s. 10 were in the nature of a quasi-judicialproceeding. In any case it seems to us irrelevant in a case such as the present,to draw the traditional distinction between judicial and or executive functions ofpublic officials.A number of eminent judges have held that such a distinction is not longer validand should be abandoned. See Re. H. K. (1967) 2 Q.B 617: Padfield v Ministerof Agriculture. Fisheries and Food. (1968) 2 Ch. 149: R.v garming Board. Exparte. Benaim. (1970) 2 Q.B. 417639