By Evarist Baimu Nyaga Mawalla - Home

Ouster clauses which take effect only after a prescribed time are in some waysmore akin to statute of limitation that to clauses like that in the foreign compensationAct 1950 which attempt to prevent litigation altogether. The public authorities protectionAct 1898, which until its repeal in 1954 set a time limit of six months, later extended to ayear, on actions against persons acting in execution or intended execution of any Act ofParliament, was not looked upon as “ousting the jurisdiction of the courts” though thatwas precisely what it did on the expiry of the prescribed time. Nor does any one doubt thevalidity of the present six month’s time limit on applications for certiorari” the House ofLords appear to assume that the verbal similarity between the Anisminic and East Elloetype of ouster clause mean that they must be construed similarly. But where access to thecourts is restricted only in terms of time, the court might reasonable treat the provisionmerely as a stature of limitation. On this basis the conflicting decisions of the House ofLords could to some extent be reconciled. Tub it would still be necessary to restrict theexcessive use of unduly short time limits, which are a bad feature of present-daylegislation. It is true that some foreign countries work with very short period: proceedingsin the administrative courts have to be begun within two months in France and onemonth in West Germany. But the Public Authorities protection Act was repealed becausethe period of a year was too short by British standards.Jurisdictional errorThe essence of the Anisminic decision was that the ouster clause would notprevent the determination of the Foreign Compensation commission being set aside bythe courts if it was outside the commission’s jurisdiction; but that it could not bequestioned on the ground of mere error within the jurisdiction; on this the House of Lordswere unanimous. But only by a majority of three to two days they decide that thecommission had in fact exceeded its jurisdiction.Stretching the concept of jurisdictional error has been the principal technique by whichthe courts have extended their control over statutory authorities and tribunals, as forexample by holding that action which is wrongly motivated or unreasonable orinconsistent with natural justice is ultra vires and void. The new case is a notable instance69