By Evarist Baimu Nyaga Mawalla - Home

jurisdiction if they are disputed before it, but this necessity in no way precludes thesupervisory function of the court if the tribunal decides wrongly to exceed its jurisdiction.The real weakness in the majority’s position, it may be felt, is that it leaves thecommission with virtually no margin of legal error, it comes perilous close to saying thatthere is juristic if the decision is right but none if it is wrong. Almost anymisconstruction of a stature or order can be represented as “imposing an unwarrantedcondition or addressing themselves the wrong question; that they had no jurisdiction toexclude what was qualifying serve within the meaning of the regulations, and that theyrejected a consideration which they were told to have in mind, thus direction themselvesinto an unauthorized inquiry. Since they was no ouster clause the court was able to quashfor mere error on the face, while emphasizing that there was no excess of jurisdiction.Had there been an ouster clause, the court might have manipulated the distinction verydifferently for the sake of preventing a serious injustice.The jurisdictional barrier, therefore, is likely to prove frail when circumstances put itunder pressure. It may well be asked whether there is any merit in maintain it in itspresent artificial poison, or indeed at all. The courts are no more willing to see injusticedone by misapplication of the law than by technical excess of power. If their control overthe latter is to be statute-proof, then why not their control over the former? Thedistinction which is now wearing so thin may be distorted not only by decisions on ousterclauses but also by anomalies in the law of remedies. The ruling doctrine at present isthat mere error on the face of the record, as opposed to error going to jurisdiction. Isremediable by certiorari but not by declaratory judgment. In cases where the short timelimit for certiorari has expired, the court may be tempted to find jurisdictional error sothat a remedy may still be granted.The house of Lords had made it perfectly clear that nullity is the consequence of all kindsof jurisdictional error, e.g. breach of natural justice, bad faith, failure to deal with therights question, and taking wrong matters into account. Although this merely confirmslong-established law, it should help to resolve the tangle caused by paradoxicalsuggestions that action in excess of jurisdiction may be voidable as opposed to void. As71