Sowatilall v Fraser and Another
| Jurisdiction | Caribbean States |
| Judge | Hallinan, C.J.,Greens, M.R.,Mackinnon, L.J.,Lewis, J.,MARNAN, J. |
| Judgment Date | 07 December 1960 |
| Court | Federal Supreme Court (West Indies) |
| Date | 07 December 1960 |
Federal Supreme Court
Hallinan, C.J.;
Lewis, J.;
Marnan, J.
S. D. S. Hardyal and A. D. Fung-Kee-Fung for the appellant.
G. L. B. Persaud, Ag. Solicitor-General, for the first-named respondent
M. C. Young for the second-named respondent.
Administrative law - Statutory tribunal-Statutory provision that decision to be final-Whether decision reviewable for excess of jurisdiction-Co-operative Societies Ordinance, Cap. 326, ss. 49 & 50.
The appellant in this case is a member of the Co-operative Society which is the second respondent. The appellant was allocated certain lots of land, Nos. 12, 13 and 14, by the society and he alleged in his statement of claim that this allotment was subject to a survey and that it was agreed there should be adjustment and shifting of boundaries if the survey showed this to be required. After the survey, the society ordered him to quit lot 14. He has spent money on developing it, and he had to accept in exchange and without compensation, lot 11. A dispute arose because he refuses to quit lot 14.
The society is established under the Co-operative Societies Ordinance, Cap. 326, and the dispute between the appellant and the society was referred to the Commissioner the first respondent. Under s. 49 (2) of the Ordinance, the Commissioner had power, either to refer the dispute to arbitration, or to decide it himself. He adopted the latter course and, after hearing evidence, he decided that the appellant must do as the society required, namely, quit lot 14 and accept lot I1 in exchange.
The appellant then brought this action for a declaration to set aside the decision of the Commissioner and for injunction to safeguard his occupation of lot 14. He states in his pleadings that the Commissioner failed to give him an opportunity to hear all the appellant's witnesses and to present his whole case; and further, that the re-allocation of lots was contrary to the rules of the society. At the hearing of this action, counsel for the Commissioner submitted in litnine that:
“(1) The proceedings before the Commissioner were proceedings before an independent tribunal, and not an arbitration tribunal, and therefore in the express words of s. 49 (4) of the Co-operative Societies Ordinance, Cap. 326, the jurisdiction of the Supreme Court is excluded.
(2) Assuming that the tribunal is an arbitration tribunal or one in the nature of an arbitration tribunal, then the action is out of time by virtue of r. 12 of O. 31 of the Rules of the Supreme Court, 1955.
(3) That whatever the nature of the proceedings before the Commissioner, the present application is misconceived and should be made by motion.”
The learned trial judge rightly, in my view, found that the Commissioner when deciding the dispute was not sitting as an arbitrator but constituted a statutory tribunal; so the assumption in counsel's second submission did not arise.
Subsection (4) of s. 49 provides that the Commissioner's decision “shall be final and shall not be called in question in any civil court.” I understand counsel's first and last submission to mean that sub-s (4) excluded the Supreme Court's jurisdiction, but even if it did not do so, the proper remedy was a motion for certiorari and not an action claiming a declaration. The learned judge came to the conclusion that s. 49 (4) excluded the jurisdiction of the Supreme Court to review the decision of the Commissioner unless under s. 59 (1) the Commissioner referred a question of law for the opinion of the Supreme Court.
From the ruling that the Supreme Court had no jurisdiction to hear this action, the appellant now appeals.
The law relating to the control of inferior tribunals is difficult and, in some matters, obscure. In England the judges, notably Lord DENNING, have endeavoured to develop the common law so as to provide a remedy for persons treated unjustly by the innumerable domestic and statutory tribunals that have sprung up in the twentieth century, whose decisions can gravely affect proprietory and personal rights. Some of these developments of the common law are still not clearly established for it is sometimes difficult to say how far an association should be left to manage its own affairs without the court's intervention, whether decisive administrative action should be delayed by legal review, and whether recourse to the courts on grounds of public policy should not be excluded unless the legislature denies every remedy in express terms.
The learned trial judge, in his refusal to assume, jurisdiction, has relied on the case of the Racecourse Betting Control Board v. Secretary for Air, [1944] 1 All E.R. 60. This was a motion to set aside the decision of a statutory tribunal for error on the face of the record. Admittedly, had this been a motion to set aside the award of an arbitrator the High Court has inherent jurisdiction to review arbitrations for error of law on the face of the record; but the Court of Appeal held that the High Court had no power to do so in the case of a statutory tribunal. The trial judge appears to have thought that in the Racecourse case the court
Held its jurisdiction to be excluded because the statute establishing the tribunal declared that its decisions should be final and because a power was given to the tribunal to state a case. The judgments of Lord
Greens, M.R., arid Mackinnon, L.J., certainly stress this aspect of the case. But the only practical effect of a finality clause appears to be that of taking away a right of appeal where one already exists. The importance of the case when it was decided in 1944 would seem to be this: that implicit in the judgments of Lord GREENE, M.R., and MACKINNON, L.J., and, especially, of GODDARD, L.J. (as he then was), was the view that if there was no right of appeal from a statutory tribunal, the High Court had no power to set aside the decision of that tribunal for error on the face of the record. This view of the High Court's powers was abandoned in 1952 when the Court of Appeal decided in R. v. Northumberland Compensation Appeal Tribunal, Ex p. Shaw, [1951] 1 All E.R. 268, that certiorari would lie for error of law on the face of the record.
In the present case, the learned judge seems to have failed to appreciate that the Racecourse case did not decide that even in that case the High Court has no power to quash or invalidate if the tribunal exceeds its jurisdiction. Lord GREEN, M.R., and GODDARD, L.J., were careful to make it clear that, although the statute declared the decision of the tribunal to be final, certiorari would lie if the tribunal acted in excess of its jurisdiction. Certiorari can be granted on three other grounds besides excess of jurisdiction, namely, breach of the rules of natural justice, error of law on the face of the record, and fraud or collusion. Even though a statute may declare the decisions of a statutory tribunal to be final, it would appear that, after 1952 (when R. v. Northumberland Compensation Appeal Tribunal was decided) that the tribunal's decision could be impugned by certiorari proceedings on any of these four grounds.
In the present case, the statute provides not merely that the decision of the Commissioner shall be final, but that it shall not be called in question in any civil court. Do these private words exclude the jurisdiction of the Supreme Court?
In Andrews v. Mitchell, [1905] A.C. 78, damages were awarded and an injunction granted in an action against the trustees of a friendly society for wrongful expulsion of a member by the committee; it was held that the decision of the committee was void despite a statutory provision that made its decisions binding and conclusive and not removable by any court of law or restrainable by injunction. The case went to the House of Lords; Lord HALSBURY, L.C., said ( [1905] A.C. at p. 80):
“One cannot say that this charge was a charge which was ever made against this man; it arose in the course of the investigation, and they then and there proceeded to deal with it in his absence, and to pronounce a verdict upon it, not having heard him except in the summary way alleged by themselves.”
And (ibid., at p. 82) Lord HALSBURY concluded.:
“My Lords, the result to my mind is that the arbitration committee had no jurisdiction to entertain this question.”
It is interesting to contrast Catt v. Wood, [1910] A.C. 404, another case arising out of a dispute in a friendly society where the House of Lords refused to interfere with the decision because the irregularity did not go to jurisdiction but was an error of law.
Some further indication of the restrictive effect of the words “shall not be called in question in any court” may be gathered from a provision in the Tribunal and Inquiries Act, 1958, an object of which was to prevent in principle (but subject to important exceptions) the statutory ouster of the remedy of certiorari. Section 11 (1) of the Act provides:
“11. (1) As respects England and Wales. … any provision in an Act passed before the commencement of this Act that any order or determination shall not be called into question in any court, or any provision in such an Act which by similar words excludes any of the powers of the High Court, shall not have effect so as to prevent the removal of the proceedings into the High Court by order of certiorari or to prejudice the powers of the High Court to make orders of mandamus…”
It must be inferred from this subsection that the words “shall not be called in question in any court” were thought to affect at least some of the grounds on which certiorari would lie. In DE SMITH'S recent treatise on JUDICIAL REVIEW OF ADMINISTRATIVE ACTION (1959), the author discusses the insertion of express privative words which may take away certiorari, and the following passage occurs at p....
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