The Queen V. Ondo Divisional Council (1960)

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HUBBARD, F.J

This is an appeal against a judgment of the High Court of the Western Region, sitting at Akure, discharging an order nisi for a writ of certiorari to issue to the Ondo Divisional Council. The applicant, by letter of appointment dated 29th March, 1958, had been appointed a Forest Guard by the Ondo Divisional Council, to whom I shall hereafter refer as the Council. The third paragraph of this letter reads as follows:-

“For the first three years of your appointment, you will be on a probation. The Council reserves the right to terminate your appointment at any time within this period without giving any reasons.”

It is common ground that vacancies had occurred because eight Forest Guards had been dismissed. On 18th August, 1958, the Establishment and General Purposes Committee of the Council to whom the Council had delegated its powers in that behalf, informed the applicant that his services under the Council would be dispensed with as from 20th August, 1958, and that he would be paid a month’s salary in lieu of notice. The letter, addressed to the applicant and seven other Guards contained the sentence:-

“This decision was taken as a result of the reinstatement of the Forest Guards whose places you are now occupying in the Council’s Establishment.” The eight dismissed Forest Guards had been reinstated following upon a resolution of the Council, dated 25th July, 1958, adopting a recommendation from the Forestry, Agricultural and Veterinary Committee of the Council to that effect.

It is this resolution of the Council which the applicant sought to have removed into the High Court and quashed, on the grounds (1) that it was ultra vires, since the approval of the Minister of Local Government to the reinstatement had not been obtained, as required by regulation 16(7) of Part E of the Western Region (Local Government) Staff Regulations, and (2) that one of the dismissed Forest Guards, Councillor S.A. Akinmomi, took part in the vote on the resolution.

The learned Judge dealt very carefully and in detail with the issues before him and considered a number of authorities on the law of certiorari. He came to the conclusion that the first ground of complaint was without substance, since the Council’s resolution was merely a necessary step in formulating the common desire of the Council, before taking the next step and applying for the Minister’s approval. Regulation 16(7) does not forbid such a resolution, it merely forbids action being taken on it without the approval of the Minister. As regards the second ground, he came to the conclusion that, since Mr. Akinmomi took no part in the deliberations either of the Forestry, Agricultural and Veterinary Committee or of the Council, and merely voted on the resolution in the Council as one of a majority of 59, the fact that he voted was immaterial. He accordingly discharged the order.

I am of the opinion that the learned Judge rightly discharged the order, but, with respect, I think he did so for the wrong reasons. In my view, the application for the writ was misconceived. The learned Judge found both that the Council was under a duty to act judicially in reengaging the dismissed Guards and that the applicant was an aggrieved party. Both of these findings are, in my view, erroneous.

In the first place, it should be noted that the applicant did not allege that the Council failed to act judicially: he alleged that it acted illegally, in contravention of a regulation, which is quite another matter, and one which cannot on the mere ground of its illegality, be challenged by certiorari. Secondly, the resolution of the Council was, in my view, clearly an administrative, not a judicial act.

The Council, in reengaging the Guards, was not determining questions affecting the rights of subjects, there was no “lis” before it. The expression “rights” of subjects, refers to rights as to which there is dispute which must be decided in a judicial manner, but never to the mere creation of contractual rights. All the Council was doing was exercising its power to engage employees, and this cannot, in my view, be regarded as a judicial function in which the conflicting interests of parties have to be considered and a decision made upon their rights.

As regards the proposition that the appellant was an aggrieved party, this appears to me without foundation. The applicant accepted an appointment which, by its terms, could be terminated at any time. It was terminated and he was given a month’s salary in lieu of notice. He clearly had no legal grievance whatsoever. Indeed, Mr. Agbaje, for the applicant, admitted that he could not contend that the applicant was wrongfully dismissed. His argument, however, was that if the other Guards had not been re engaged, the applicant might have kept his post. This, however, does not make the applicant an aggrieved party in the legal sense. The case of ex parte Stott (1916) 1 K.B.D. 7, although not on all fours, is analogous, and illustrates the legal position. In that case the proprietor of a cinema held a licence to which was attached the condition that he was not to exhibit any film to which the licensing authority objected. A firm which had acquired the sole right of exhibition of a certain film in the district, entered into an agreement with the licensee for its exhibition. The licensing authority having given notice that they objected to the film, the firm applied for a writ of certiorari to bring up the notice to be quashed on the ground that the condition attached to the licence was unreasonable and void. It was held that, whether the condition was unreasonable or not, the applicants were not persons who were aggrieved by the notice and were not entitled to apply for certiorari.

For the reasons which I have given I would dismiss this appeal with twenty-five guineas costs to the respondent.

Appeal dismissed.

Other Citation: (1960) LCN/0871(SC)