SUDAN GOVERNMENT v. PlO MADIBO

Case No.:

AC-REV-60-1962

Court:

Court of Appeal

Issue No.:

1963

Principles

· CIVIL PROCEDURE — Jurisdiction — Officials Discipiline Ordinance 1927 — Complaint arising out of dismissal — No Jurisdiction in District Court.

· CIVIL PROCEDURE — Jurisdiction — Employers and Employed Persons Ordinance 1949.,. 10 (2) — District Court may hear complaints arising out of dismissal.

· CIVIL PROCEDURE — Prerogative writs — District Court has no Jurisdiction — High Court jurisdiction thereof

· CIVIL PROCEDURE — Certiorari — Writ lies to administrative bodies where no appeal provided and writ not expressly denied by law.

Plaintiff a driver for the Ministry of Works, was dismissed by a Board of Discipiline convened under Officials Discipline Ordinance 1927. s. 13. No appeal to the Central Board was made under Officials Discipline Ordinance 1927. s. 21. Instead plaintiff filed suit in the District Court, which ordered reinstatement. The High Court dismissed the application for revision as untimely.
Held: The District Court had no jurisdiction to hear a complaint for reinstatement of a person dismissed under Officials Discipline Ordinance 1927. us. 16 and 7(1) (g)
Obiter Dicta: (i) The District Court has jurisdiction to hear complaints arising out of dismissals under Employers and Employed Persons Ordinance 1949. S. 10(2)
(ii) The District Court has no jurisdiction to exercise the prerogative Writs.
(iii) The writ of certiorari lies in the High Court to an administrative body where the law provides no right of appeal, unless the right to petition for a writ is expressly taken away by statute.

Judgment

(COURT OF APPEAL)

SUDAN GOVERNMENT v. PlO MADIBO

AC-REV-60-1962

Advocate: Hussein Mohamed Hussein . . . .for Attorney-General, applicant

El Fatih Awouda, P.J., HC-REV-17-1961 February 3, 1962:— This is an application for revision by the Attorney General against the decree of District Judge, Wau, dated September 14, 1961, in his CS-137-1960, in which he ordered reinstatement of respondent as car driver in the Ministry of Works.

On February 13, 1960 respondent was dismissed from the service of the said Ministry by a summary procedure in accordance with Officials Discipline Ordinance, s. 11 for refusal of performance of his duties. On May 14. 1960 Respondent petitioned District Judge, Wau, who allowed action on October 12, 1960 on the ground of wrongful dismissal.

The learned counsel for applicants offered four grounds in support of the application, which may be summarised as follows:

• Court: M. A. Abu Rannat, C. J and Babilcer Awadalla J.

(1) that the District Judge has no jurisdiction to entertain the claim’

(2) that he was wrong in treating the claim as an original suit

(3) that as there is no provision of appeal to the Court in an Ordinance, Courts of justice cannot interfere in the judicial functions of administrative tribunals;

(4) that as the officer who conducted the summary procedure did not act in excess of his legal authority, the Court of justice should not have stepped in.

As regards the first and second points I agree that the District Judge acted ultra vires his jurisdiction. The summary board of discipline was convened in accordance with a enactment for the purpose. By h the claim — which had already been disposed of by a competent authority as an original suit, the District Judge has created an unwarranted conflict of jurisdiction. The matter would have been different had respondent been dismissed without a summary procedure under the Employers and Employed Persons Ordinance, s. 10(2).

I do not think that the learned District Judge in dealing with this subject intended to apply any of the prerogative writs, if he did so intend, then he adopted the wrong procedure in hearing the merits of the claim as an original suit, and he was further wrong in assuming jurisdiction in a matter that did not lie to a court of inferior jurisdiction. The exercise of the prerogative writs is the domain of the High Court.

As regards (3), this; I shall consider for the sake of argument.

The learned counsel for applicants by this contention is denying the competent courts of justice the powers vested in them to see that administrative tribunals of inferior jurisdiction are kept within bounds by exercising the prerogative writs, which are quite different from an intervention by way of appeal. Fletcher Moulton, L.J.. in expounding the nature, object and scope of a writ of certiorari, said:

“The writ of certiorari is a very ancient remedy and is the ordinary process by which the high Court brings up for examination the acts of, bodies of inferior jurisdiction. In certain cases the writ of certiorari is given by statute, ‘but in a large number of cases it rests on the common law. It is frequently spoken of as being applicable only to ‘judicial acts’, but the cases by which this limitation is supposed to be established show that the phrase ‘judicial act’ must be taken in a very wide sense, including many acts that would not ordinarily be termed ‘judicial’ .. . From very early times the common law courts considered that they had jurisdiction to examine ‘into rates by certiorari. The procedure of certiorari applies in many cases in which the body whose acts are criticised would not ordinarily he called a court, nor would its acts be ordinarily termed ‘judicial acts’ . . . ln short, there must be the exercise of some right or duty to decide in ordet to provide a scope for a writ of certiorari at common law. 16 English and Empire Digest 398 (1924)

Thus it is evident that the arms ofthe writ of certiorari are long enough to reach the judicial acts of a bodies of inferior jurisdiction exercising an authority given to them by law, even if no right of appeal to the High Court is provided for in the Ordinance. The general rule of law is that a writ of cerliorarriies unless expressly taken away, and an appeal does not lie unless expressly given by statute. Certiorari is quite different from appeal. The purpose of the former is to see that bodies of inferior jurisdiction do not exceed or abuse the power given to them by law.

Counsel for applicants in support of his argument cited what he mis takenly believed to be the ratio decidendi in The Building Authority v. Evange/os Evangel/ides, AC (1958) S.L.J.R. 16. Had he followed that elaborate judgment further on, he would have discovered that he held a wrong opinion. The citation on which he thought to rest his argument was nothing more than a contention put forward by appli cants’ counsel in that case, and which was rejected by the Court. Babiker Awadalla, J., said:

“I regret I am unable to find in the judgment of this Court anything which supports the contention of the learned Counsel. I think if this case is at all relevant it only supports the view that an administrative authority that exceeds 1/ze poi can be checked l courts.”

The Honourable Judge was referring to Batoul Mo/iuimeci A/i Sudan (;overnmc’nf, AC-App-37 1952. He went on to sa on the other case that was cited, Heirs of Mutwak,/ Mohamed Osnian V Sudan Govcrnn,ent AC APP-22- 1953:

‘The ground of rejection of the application to my mind whs not that lie court had no power to inter’. cue, hut that there was no evidence hat the commi did not conform to the req nirement of the ordinance by which it was created

I am noi goine to discuss tie List croiiud ofapp!ie,itiori as it vvzll serve :0 purpose.

Ihe learned District Jnd should have directed resp to app the Central Board of Discipline. l3 dllowin him 10 ue in the Dktrict curt he not only acted u/Ira yin’,’. Ins urisdi he also urid ulv sought : restrain the respective appellate authority from esereising powers i1erred on’it by’ law.

The decree wa’. passed on September 14. 19c1. The .ippiication t isbn is dated November 7, 1961. i.e., well after tie pci od prescribed by ‘il Justice Ordnance, Order XII, Rule 1. Had the application been

j in time, I would have certainly allowed it

Application is summarily dismksed,

Bahjker Awac/af/a J., September II. 1962:— Thi’. is an appheatlon ‘nust the summary dismissal by’ His Honour he Pro’. ince Juiue, South-

Circuit, of an application to him against the judgment and decree of earned District Judge, Wau in CS-

The facts Of the case are sufficiently given in the note by His Honour the Province Judge and there is no need to restate them here in detail.

The gist of the matter, however, is that respondent, Pio Madibo, was in the employment of applicants, the Sudan Governmetlt, as a driver with the Ministry of Works. On February 13, 1960 he was dismissed for misconduct by a Board constituted under the Officials Discipline Ordinance. Instead of appealing to the Civil Service Commission against the decision, he instituted proceedings in the District Civil Court of Wau for reinstatement and the learned District Judge ordered his reinstatement. The decree of the learned District Judge was passed on September 14, 1961, and on November 7, 1961 applicants tendered their applicat for revision to His Honour the Province Judge. His Honour the provinde Judge, in my view, quite rightly stated in his note that the learned District Judge had no jurisdiction in the matter. Nonetheless, he dismissed the application for revision on the ground that it was too much out of time. Hence this application.

it is contended on behalf of applicants that though the decree was passed on September 14, 1960, no copy of it was sent to the Attorney- General’s office by the Ministry of Works before the end of October, and that alternatively it would be wrong to allow an erroneous decision to stand simply because the application questioning its propriety was out of time.

In my view this application should be allowed. I can see no better example of where to use the inherent powers of the Court than the present case. It Would be quite wrong and contrary to the practice of this court to allow formalities to prevail over substance. Here we have a flagrantly wrong dec given by a Court which has no jurisdiction to deal with the matter in any way. Is it right to maintain a passive attitude because of a time limit which, in any case, the Court has an inherent power to disregard? Surely not. The decree of the learned District Judge is therefore hereby - set aside.

M.A.Abu Rannat, c.i., September 11, 1962:— I concur.