By Evarist Baimu Nyaga Mawalla - Home

an expressly enacted condition is legally meaningless. Another example is offered by theLicensing Act 1964, which after laying down detailed rules under which licensingjustices are disqualified by this section shall be invalid by reason only of thatdisqualification.” This is pro tango an ouster clause, but he courts have been able to adopta compromise solution under which the statutory protection is confined to technicaldisqualifications and does not apply where there is a serious infringement of the principleof natural justice. In these cases a middle way can be followed without serious danger,since the in-built contradiction in the statute applies only to some specific condition withlimited effect. Where, on the other hand, a sweeping ouster clause bars aces to the courtson all questions, the dangers of uncontrollable power are far more obvious. The instinctof English courts is then to refuse all compromise on any kind of jurisdictional question.Nor is this an English idiosyncrasy. It is one of the “universal” of the judicial function.It is remarkable that this bold and (it is submitted) wise judicial policy has neverpreviously been discussed at any length in a reported case, although it has three hundredyears of history behind it. Perhaps a discreet silence was thought best. At any rate, thecases merely repeat tersely that questions of jurisdiction are not effected by ousterclauses. An early decision of 1970 is in fact one of the most explanatory. A stature of1571 provides that commissioners of sewers should not be compellable to make anyreturn of their actions or be fined or molested in body, lands or goods for acting as such.On the advice of counsels the Whtechapel commissioners, accused of rating lands inWrapping outside their jurisdiction, paid no attention to writs of certiorari form theKing’s Bench. They soon found themselves molested but in body and in goods, for theywere imprisoned and fined for there contempt. Kelynge C.J. said:“this court cannot be ousted to its jurisdiction without special words; her is thelast appeal, the King himself sits here, and that in person if he pleases, and hispredecessors have so done; and the Kind ought to have an account of what is done belowin inferior jurisdictions. This for the avoiding of oppressions, and other mischief. Todeny and oppose this, and to set up uncontrollable jurisdictions below, tends manifestlyto commonwealth; and we ought, and we shall take caser that there be no such thing inought, and we shall take care that there be no such thing in our days”64