By Evarist Baimu Nyaga Mawalla - Home

Assuming that “commonwealth” was in 1970 a disparaging term signifying dictatorshipor lawlessness, one can see exactly the same sense as in Farwell L.J.’s remarks 240 yearslater and as in the House of Lord’s opinions today.Parliament took the hints about “clauses soon became common. But the courts firmlydisregarded them in issuing certiorari to quash for excess of jurisdiction. What may bethe earliest report of such a case is no more than a note of Lord Kenyon: The statute of 8& 4 W. & M.. s. says, no certiorari shall issue to remove any order made on that Act. Butthe order in this case is out of the jurisdiction of the justices and, therefore, may beremoved by a certiorari.” This rule was firmly established in a long line of laterdecisions. A modern example concerned the Country Courts Act 1959, which ordainedthat, except as provided by the Act, “no judgment or order of any judge of countrycourts….shall be removed by appeal motion, certiorari or otherwise into any other courtwhatever….” But the divisional Court quashed a country court judge’s order oncertiorari, Lord Parker C.J. saying that he was quite satisfied that certiorari would lie,even outside the Act, where the country court judge had acted without jurisdiction.Two factors have helped to supply justification for these decision. One is that a limitedmeaning can still be given to ouster clause by allowing them to bar applications forcertiorari to quash for error on the face of the record. Mere error within the jurisdiction,as for example where an industrial injuries tribunal misconstrues the obscure “pairedorgans” regulations, is a form of judicial control which can be taken away without anyinfringement of principle as is obvious from the fact that it fell into abeyance for acentury before 1951. and that in 1944 the Court of Appeal decided that it did not exist.But now that it exists again, it offers one from of relief that an ouster clause can oust.The House of Lords has now affirmed this clearly, though they were unable to decideunanimously whether the error in the anisminic case was within jurisdiction or not.The other justification is the acquiescence of Parliament. Although ouster clauses were inconstant use, Parliament never attempted to prevent the courts form depriving them of65