Palmer v Stooke, 1950-56 ALR S.L. 284

PALMER v. STOOKE and ATTORNEY-GENERAL SuPREME CouRT (Smith, C.J.): January 12th, 1953 (Civil Case No. 497 /52) [I] British Commonwealth-colonies-royal prerogative-all legislation for ceded or conquered colony by royal prerogative-prerogative power to legislate for settled colony limited to setting up repre sentative institution unless British Settlements Acts relied on Colony of Sierra Leone settled colony: While the Crown has full power under the royal prerogative to legislate for a ceded or conquered colony unless it specifically gives up those rights, in the case of a settled colony the Crown's prerogative right is limited to the setting up of a constitution of representative institutions in the settlement, and having done so its power to legislate is finished unless it relies expressly or impliedly on the powers given to it by Parliament in the British Settlements Acts; and therefore, the Colony of Sierra Leone being a settled colony, the Crown can legislate for it by express or implied reliance on the British Settle ments Acts (page 292, line 17-page 293, line 35).

[2] British Commonwealth-legislative competence of King in Council -colonies-all legislation for ceded or conquered colony by royal prerogative-prerogative power to legislate for settled colony limited to setting up representative institution unless British Settle ments Acts relied on-Colony of Sierra Leone settled colony: See [1] above.

[3] British Commonwealth-legislative competence of King in Council -ultra vires and repugnancy-creation of Legislative Council for Colony of Sierra Leone not ultra vires Sierra Leone (Legislative Council) Order in Council, 1951: In the preamble and enacting clause of the Sierra Leone (Legislative Council) Order in Council, 1951, the general words "and of all other powers enabling Him in that behalf" are not to be construed as being eiusdem generis with the preceding more specific words "the powers vested in Him by the Foreign Jurisdiction Act, 1890" so as to restrict the authority of His Majesty in Council to the Foreign Jurisdiction Act, 1890; and therefore the creation of a Legislative Council for the Colony of Sierra Leone by the Order in Council is empowered by the British Settlements Acts and is not ultra vires the legislative competence of His Majesty in Council (page 290, line 40, page 291, line 6; page 293, line 39-page 294, line 5). [ 4] Civil Procedure-discontinuance and dismissal-dismissal in pro ceedings under O.XXI of Supreme Court Rules, 1947-frivolous and vexatious action may be affected in part or as whole-court may consider pleadings only: Where a defendant seeks to have the action against him dismissed on the ground that it is frivolous and

PALMER v. STOOKE, 1950-56 ALR S.L. 284 s.c. vexatious, he can apply under O.XXI of the Supreme Court Rules, 1947, in which case only the pleadings can be looked at in coming to a decision, or he can apply under the court's inherent jurisdiction to strike out, stay or dismiss any actions or claims which are held to be frivolous and vexatious, in which case the court may consider not only the pleadings but also any other allegations or 5 admissions before it; but in either situation the court may make its order referable to the action as a whole, if the plaintiff is shown to have a completely hopeless case, or, if it thinks that some of his claims have some hope of success or if there are some facts still to be determined in regard to some of the claims, merely to those parts of the action which are hopeless (page 288, line 28- 10 page 289, line 20).

[5] Civil Procedure-discontinuance and dismissal-Supreme Court has inherent jurisdiction to strike out, stay or dismiss action which must fail-frivolous and vexatious action may be affected in part or as whole-court may consider pleadings and any other allegations or admissions: See [ 4] above.

[6] Constitutional Law-Governor-administrative authority-ultra vires and repugnancy-not ultra vires for Governor to carry out pro vision for payment of salary to Leader of Opposition: The Legisla tive Council is the proper body to decide what funds should be raised for the public service and how they should be spent; and it is competent therefore to make provision for the payment of salaries or honoraria to its members or offices created and recognised by constitutional convention, including the Leader of the Opposition, which the Governor can include, after appropriation, in his general warrant to the Accountant-General (page 296, lines 4-11).

[7] Constitutional Law-Legislative Council-creation-creation for Colony of Sierra Leone not ultra vires Sierra Leone (Legislative Council) Order in Council, 1951: See [3] above.

[8] Constitutional Law-Legislative Council-political parties-forma tion of political party cannot be prevented by courts or Governor unless illegal body: No court can or should interfere in matters relating to the grouping of individual members of the Legislative Council into political parties, unless a party is declared an illegal body; and, subject to the same qualification, the Governor, whatever control he has over official members of the Council, cannot prevent other members forming themselves into political parties if they so wish (page 294, lines 8-31).

[9] Constitutional Law-Legislative Council-salaries of members Council proper body to provide for payment of salaries to members including Leader of Opposition: See [6] above.

[10] Constitutional Law-party system-Legislative Council-formation of political party in Legislative Council cannot be prevented by courts or Governor unless illegal body: See [8] above.

[11] Constitutional Law-royal prerogative-colonies-all legislation for ceded or conquered colony by royal prerogative-prerogative power to legislate for settled colony limited to setting up representative institution unless British Settlements Acts relied on-Colony of Sierra Leone settled colony: See [1] above.

[12] Constitutional Law-separation of powers-judicial power-courts cannot prevent formation of political party in Legislative Council unless illegal body: See [8] above.

[13] Constitutional Law-separation of powers-judicial power-function of judiciary limited to interpreting law-judiciary cannot comment on what legislation should be considered by legislature: While, when a piece of legislation has been passed, it can be brought before the courts for them to pronounce on its meaning, effect and validity, it would be an attempt to interfere with the Legislative Council in the way it should conduct its business for the courts to comment on what legislation should be put up for consideration by the legislature (page 294, line 39-page 295, line 8).

[14] Courts-Supreme Court-jurisdiction-inherent jurisdiction-court has inherent jurisdiction to strike out, stay or dismiss action which must fail-frivolous and vexatious action may be affected in part or as whole-court may consider pleadings and any other allegations or admissions: See [ 4] above.

[15] Revenue-appropriation of funds for public service-authority for payment-Legislative Council proper body to allocate funds for payment of salaries to its members-Leader of Opposition may be included in Governor's general warrant to Accountant-General: See [ 6] above.

[16] Statutes-proof and citation-legislation prima facie proved by pro duction of copy printed by Government Printer-court may base decision on original where official copy contains discrepancy: Not withstanding the fact that, under s.l9(1) of the Interpretation Ordinance (cap. 1), any legislation may be prima facie proved in any legal proceedings by the production of a copy purporting to be printed by the Government Printer, the court may, out of extra caution, base its decision on the original where there is a dis crepancy between the wording of the original and that of the official copy (page 290, lines 23-28).

[17] Statutes-ultra vires and repugnancy-creation of Legislative Coun cil for Colony of Sierra Leone not ultra vir·es Sierra Leone {Legislative Council) Order in Council, 1951: See [3] above. The plaintiff brought an action against the defendants for a declaration of the invalidity of the Constitution, an injunction restraining the first defendant from giving effect to it in the Colony

PALMER v. STOOKE. 1950-56 ALR S.L. 284 s.c. of Sierra Leone, and, in the alternative, injunctions to prevent the first defendant allowing the formation of Government and Opposition Parties in the Legislative Council, appointing ministers with port folios and authorising payment of a salary to the Leader of the Opposition. 5 The British Settlements Act, 1887, as amended by the British Settlements Act, 1945, authorised the King in Council to legislate for settled colonies, one of which was the Colony of Sierra Leone, being an entity apart from the Protectorate of Sierra Leone. The Sierra Leone (Legislative Council) Order in Council, 1951 was passed 10 by the King in Council to provide for a Legislative Council in Sierra Leone constituted in accordance with the provisions of that Order. In the preamble and enacting clause of the Order, it was stated under the heading of "Foreign Jurisdiction" that it was made by the King "by virtue and in exercise of the powers vested in Him by 15 the Foreign Jurisdiction Act, 1890, and of all other powers enabling Him in that behalf." The Order did not mention the appointment of ministers with portfolios. In the course of time the Legislative Council split itself into various political groups, notably representing Government and Opposition parties, and a Leader of the Opposition 20 was appointed to whom the first defendant proposed to pay a salary. The plaintiff instituted proceedings against the first defendant in his official capacity, but the suit was struck out for irregularity. These proceedings are reported in 1950-56 ALR S.L.

258. He then instituted the present proceedings and the defendants moved 25 the court to dismiss the action as being frivolous and vexatious. The plaintiff contended that the words "all other powers" in the preamble to the Order in Council should be construed eiusdem generis so as to mean other powers of the King in Council in respect of foreign jurisdiction other than those given him by the Foreign 30 Jurisdiction Act, and therefore the Order did not apply to Sierra Leone. He further contended that, even if the Order was not ultra vires, the first defendant, in his capacity as President of the Legislative Council, acted ultra vires in allowing members of the council to form themselves into Government and Opposition parties, in 35 introducing legislation authorising the appointment of ministers with portfolios, and in authorising payment of a salary to the Leader of the Opposition. The defendants maintained that the words "all other powers" in the preamble to the Order meant all other powers whatever they 40 may be and from whatever source they are derived, and that there-

fore the Order could apply to the Colony of Sierra Leone under the British Settlements Acts. Case referred to: 5

(1) R. v. Thompson (1944), 10 W.A.C.A. 201, applied.

Legislation construed: Interpretation Ordinance (Laws of Sierra Leone, 1946, cap. 1), s.19(1): "Any . . . Order in Council . . . may be prima facie proved in any legal proceedings by producing a copy thereof- ( c) purporting to be printed at the Government Printing Office or by the Government Printer or deemed to be so printed." Sierra Leone (Legislative Council) Order in Council, 1951 (No. 611), Preamble: The relevant terms of the Preamble are set out at page 290, lines

O.I.E. During, R.W. Beoku-Betts and Wellesley-Cole for the plaintiff. The Attorney-General appeared in person with M.C. Marke. SMITH, C.J.: This has been a most interesting case and I am obliged for the very careful and helpful arguments which have been addressed to me by counsel on both sides. They in their turn, I have no doubt, 25 are indebted to the patient industry in research of the juniors who appear with them. Thanks to this assistance I have had little difficulty in coming to a decision. This is a motion by the defendants asking that the action be dismissed on the ground that it is frivolous and vexatious. There 30 are rules of court dealing with applications of this type. In our Supreme Court Rules they are embodied in O.XX:I. These rules, in the main, are taken from O.:XXV of the English Rules of the Supreme Court; but, as is shown in the Annual Practice 1952, at 423, in addition to the powers conferred by these Orders, there is 35 an inherent jurisdiction in the court to strike out, stay, or dismiss actions or claims which are held to be frivolous and vexatious. It is said that if the application is made under one of these specific rules of the Order, only the pleadings in the case can be looked at in coming to a decision; but if the application is made under the 40 inherent jurisdiction of the court, other matters may be considered and all the facts can be gone into. Therefore in making my decision

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PALMER v. STOOKE, 1950-56 ALR S.L. 284 s.c in this case, in which I am moved to exercise my inherent jurisdic tion, I can examine not only the pleadings but other facts alleged before me in the two affidavits which have been filed on the motion and any admission made by counsel on either side in the course of their arguments. 5 In order to succeed in an application of this kind the mover must satisfy the court that the plaintiff has a completely hopeless case. If he fails to show that, then he loses the motion in whole or in part, because it is also laid down that on a motion of this kind the court has wide powers : if it thinks that the whole action is mis- 10 conceived, it may dismiss the whole action; alternatively it may, if it thinks that some of the claims have some hope of success or if there are some facts further to be determined in regard to some of the claims, strike out or dismiss or stay the hopeless part of the case, but it must allow those parts about which the plaintiff may 15 still have some hopes to proceed. Therefore, in considering what I should decide on this motion, I have to take each one of the claims which have been made and consider each one as to whether it is a hopeless claim or not, and it is only if I find that they are all hopeless that I can dismiss the whole action. 20 In his statement of claim, after setting out certain general facts which are not substantially in dispute at all, the plaintiff goes on to make four allegations and to ask for four remedies in respect of them. I will take them one by one. The essence of the first claim is set out in para. 6 of the state- 25 ment of claim-that the Sierra Leone (Legislative Council) Order in Council, 1951, having been made under the Foreign Jurisdiction Act, 1890, could not apply to the territory known as the Colony of Sierra Leone and is as such ultra vires. I may say that counsel who have argued the case were in agreement thus far that this particular 30 claim is the real crux of the case; and a very important question is raised by it. The instrument itself, the application of which is called in question, is attached to the defendants' affidavit as Exhibit A4. I do not propose to read the whole of it but there are certain parts of it which appear to govern the question I have to decide. 35 It quite clearly purports to legislate not only for the Protectorate but for the Colony as well. It defines "Colony" in s.1 of Part

1. It defines "Sierra Leone" as meaning the two territories put together -Protectorate and Colony-and it says there shall be a Legislative Council in and for Sierra Leone-that is, the whole territory. And 40 it goes on to provide for the membership of this Council. They

3 S.L.-10 TH:E: AFRICAN LAW R:gPORTS are grouped under five headings in the Order: first, the Governor who shall be president; secondly, a vice-president; thirdly, 7 ex officio members; fourthly, 21 elected members; and fifthly, 2 nomi nated members. Further on, in ss.6 and 7, provision is made as 5 to who these ex officio and elected members shall be. The elected members are drawn from two main sources : 7 members are to be elected by a ballot of the registered voters from the districts of the Colony, and the remaining 14 are to be elected from the Pro tectorate by a different system of election, but nevertheless they are 10 called elected members. It is clear, therefore, I have said enough to show that so far as the contents of the instrument are concerned it purports to legislate for, and that it contains provisions which are intended to apply to, both the Colony and Protectorate. Now, there are two other features about this document which 15 call for attention. Firstly, there is a curious thing about the heading: in the official copy made by the Government Printer in Sierra Leone and similarly in the official copy made by the Government Printer in London, two words which appear in the original have been left out-these are the words "Foreign Jurisdiction" which appear to 20 be omitted from below the words "Statutory Instrument" in the heading. Why there should be that discrepancy between the basic original and these official copies I do not know, but it is clear that there is that discrepancy. I know that the Interpretation Ordinance (cap. 1), s.19 says that the court should follow, take as authentic, 25 official copies of documents published by the Government Printer here. But, out of extra caution, when I find there is this discrepancy, I propose to base my decision as if it were worded as in the original with two recitals, the first one of which recites the Sierra Leone (Legislative Council) Order in Council of 1924 and the second says 30 it is expedient to make other provisions for the constitution and powers of the Legislative Council for Sierra Leone, that is, the whole territory. The instrument goes on to enact: "Now, therefore, His Majesty by virtue and in exercise of the powers vested in Him under the Foreign Jurisdiction Act, 1890, and of all other powers 35 enabling Him in that behalf, is pleased, by and with the advice of His Privy Council, to order, and it is hereby ordered, as follows .... " So in the enacting clause reference is made to the Foreign Jurisdiction Act and to all other powers as the authority for making this instrument. 40 Mr. During, for the plaintiff, urges that these words "all other powers" should be construed by the rule of eiusdem generis and