R v The Attorney- General of Northern Rhodesia and The Minister for Labour and Mines for Northern Rhodesia, Ex Parte Kenneth Allen ((1963 - 1964) Z and NRLR 26) [1964] ZMHCNR 19 (3 February 1964)

R v THE ATTORNEY-GENERAL OF NORTHERN RHODESIA AND THE MINISTER FOR LABOUR AND MINES FOR NORTHERN RHODESIA, EX PARTE KENNETH ALLEN (1963 - 1964) Z and NRLR 26 1963 - 1964 Z and NRLR p26 [Before the Honourable Mr. Jus�ce BLAGDEN and the Honourable Mr. Jus�ce CHARLES on the 27th January and 3rd February, 1964.] Flynote Applica�on for order of cer�orari - jurisdic�on of the court - tribunal or board improperly cons�tuted and ac�ng without statutory or other authority. Headnote Allen was a Senior Superintendent of Prisons, in the Prisons Service of the Federa�on of Rhodesia and Nyasaland. Certain irregulari�es alleged against him were reported to the Director of Prisons. No criminal charges were laid against Allen but charges were laid under the Federal Prisons Act and served upon him. These charges were considered by a board of inquiry or tribunal, consis�ng of a senior superintendent and two superintendents of the Prisons' Service. The board recorded findings of guilt against Allen on four counts, and these findings, apart from one varia�on, were confirmed by the Director of Prisons. Allen appealed to the Federal Ministry of Law who upheld the findings of the board. Allen then applied to the High Court of Northern Rhodesia for an order of certiorari. Held: (a) The tribunal had no jurisdic�on to enter upon the inquiry. (b) The findings of the tribunal, as a result, were a nullity. (c) The court had jurisdic�on to grant the order prayed for. Applica�on for order of certiorari granted. [ Cases cited: (1) R (Dept. of Agriculture) v Londonderry City Justices, R (Meehan) v Hardy [1917] 2 IR 283. (2) Pyx Granite Co., Ltd. v Ministry of Housing and Local Government [1960] AC 260; [1959] 3 All ER 1. (3) Francis v Yiewsley and West Drayton Urban District Council [1957] 2 QB 136; [1957] 1 All ER 825. (4) The King v Electricity Commissioners: Ex parte London Electricity Joint Committee Company (1920) Ltd. and others [1924] 1 KB 171. (5) Re Clifford and O'Sullivan [1921] 2 AC 570. (6) Smith v The Queen [1878], 3 App. Cas. 614 (PC). (7) Ridge v Baldwin [1963] 2 All ER 66 (HL). (8) R v Governor of Wormwood Scrubs Prison and Another: Ex parte Boydell [1948] 1 All ER 438. (9) In re Mansergh (1861) 1 B & S 400. 1963 - 1964 Z and NRLR p27 BLAGDEN JA (10) Rex v Secretary of State for War: Ex parte Price [1949] 1 KB 1. (11) R v St Edmundsbury and Ipswich Diocese (Chancellor) and Another: Ex parte White and Another [1947] 2 All ER 170. (12) Ex parte Fry [1954] 1 W. L. R 730. (13) Ex parte Allen (1963/Northern Rhodesia HP/452) (unreported). D A O'Connor, Crown Counsel for the Crown D E Houstoun - Barnes for the applicant [Editorial Note] The sec�ons of the Prisons Act (Federal No. 9, 1955) considered in this case are similar to sec�ons found in Part VII of the Prisons Act, 1965 (Zambia Acts No. 56, 1965).] Judgment Blagden JA: On Monday, 27th January, 1964, we granted the applica�on in this case for an order of certiorari and announced that we would give our reasons in wri�ng for this decision. These now follow: The history of the mater, so far as this applica�on is concerned, starts in March of 1963. At the �me, the applicant was an officer in the Prisons Service of the Federa�on of Rhodesia and Nyasaland. His rank was that of Senior Superintendent of Prisons, and he was the officer in charge of Bwana Mkubwa in Northern Rhodesia. Certain alleged irregulari�es regarding the administra�on of this prison came to the no�ce of the Federal Director of Prisons. They were referred to the Northern Rhodesia Police for inves�ga�on but no criminal charges were brought in respect of them. On the 5th April, 1963, charges signed by a Mr. Keohane of the Federal Prisons Service were served on the applicant who was then interdicted from duty under the provisions of sec�on 52 of the Federal Prisons Act, No. 9 of 1955. For convenience, I shall con�nue to refer to this statute as " the Act ". On the 21st June, 1963, amended and addi�onal charges, comprising some seven so - called counts in all, were served on the applicant, and a list of witnesses who were to tes�fy in support of them supplied to him. Subsequently, there were further amendments to the charges which need not be considered here. On the 11th, 12th and 13th July, 1963, an inquiry was held at Bwana Mkubwa Prison to inves�gate these alleged offences. It was conducted by a body of three persons variously described as a " board of inquiry " and as a " tribunal ". It consisted of a senior superintendent of prisons who was senior in service to the applicant, and two superintendents who were, of course, junior in rank to the applicant. The applicant, who was represented by counsel, was called upon to plead to the charges, and a�er his counsel had made certain submissions, witnesses were called by Mr. Cook, the Federal Government solicitor, and the proceedings were conducted in the usual manner of a trial. On the 30th July, 1963, by leter of that date addressed to the applicant, the chairman of the board announced its findings; these included findings of guilt in respect of four of the counts. The proceedings then went before the Federal Director of Prisons for confirma�on - see sec�ons 46 (3) and 47 (2) of the Act. Subject to one varia�on, they were duly confirmed by him. 1963 - 1964 Z and NRLR p28 BLAGDEN JA The applicant then appealed to the Minister of Law under the provisions of sec�on 48 (2) of the Act asking that the convic�ons and sentence be set aside. By his grounds of appeal, the applicant impugned the validity of the proceedings and raised various other points to show that the convic�ons could not stand. The Minister took the view that upon a proper interpreta�on of the provisions of sec�on 48 (2), his powers of dealing with the appeal were limited to considera�on of the punishment awarded or recommended. He did, however, specifically deal with all the points raised by the applicant in his appeal. His decision was to " disallow the appeal " and " to accept the findings of the board ". On the 17th December, 1963, the applicant ini�ated an ex parte applica�on by mo�on for leave to apply for an order for cer�orari, in accordance with the procedure laid down by the Rules of the Supreme Court, Order 59, rule 3 (2). The applica�on came before Charles, J, on the 17th December, 1963, and on the 18th Charles, J, delivered a judgment in which he held that he had not got jurisdic�on to grant leave in the form for which it was asked. He did not, however, dismiss the applica�on, but allowed it to be withdrawn. The problems which gave rise to the jurisdic�onal issue were these: although the board had sat in Northern Rhodesia, its proceedings had been transmited to Salisbury in Southern Rhodesia. The custodian of the proceedings was either the Federal Minister of Law or the Federal Director of Prisons - both of whom were sta�oned in Salisbury. Thus proceedings and custodian were outside the territorial jurisdic�on of Northern Rhodesia. There were other problems: at midnight on the 31st December/1st January, the Federa�on of Rhodesia and Nyasaland would cease to exist and there would be then no longer a Federal Minister of Law or a Federal Director of Prisons. Very fairly, and I think very properly, the federal authori�es undertook to pass the record of the proceedings to the Atorney-General of Northern Rhodesia. This was done before the 1st January, 1964, and applica�on made again to Charles, J, for leave to apply for an order of certiorari, directed now against the Atorney-General of Northern Rhodesia and the Minister of Labour and Mines, Northern Rhodesia. Leave was granted on the 28th December, 1963, and the 27th January, 1964, was fixed as the date for hearing the substan�ve applica�on. The applicant's statement se�ng out, inter alia, the relief sought and the grounds therefor, filed in accordance with the Rules of the Supreme Court, Order 59, rule 3 (2) made applica�on - "to remove into the honourable court for the purpose of being quashed, the record and recommenda�ons of the tribunal dated the 30th day of July, 1963, and the confirma�on of the sentence of the Director of Prisons dated the 31st day of July, 1963, and the findings of the Minister of Jus�ce to the Government of the Federa�on of Rhodesia and Nyasaland, the Honourable Julian Greenfield, one of Her Majesty's Counsel, dated the 30th day of August, 1963, whereby the tribunal recommended the dismissal of Kenneth Allen and the Director of Prisons confirmed such recommenda�on and the Minister of Jus�ce upheld such recommenda�on." 1963 - 1964 Z and NRLR p29 BLAGDEN JA The grounds relied on were four in number. One of these was so fundamental to the applica�on that we called upon counsel to argue it first as though it were a mater arising in limine. In the result, we decided that the applica�on succeeded on this one ground and accordingly the others submited do not fall for considera�on. The ground in ques�on is expressed in the following terms: "That the tribunal acted without jurisdic�on in that there is no statutory authority for a tribunal to inves�gate into breaches of discipline by a senior prison officer." Provisions rela�ng to the discipline of prison officers are contained in Part VI of the Act. The applicant, being a senior superintendent of prisons, was a " senior officer " within the defini�on of that term in sec�on 2 of the Act and the First Schedule. By sec�on 43 (1) it was enacted that - "For the purpose of discipline, senior prison officers shall be subject to such provisions rela�ng to discipline as may be laid down by the Governor -General." By Federal Government No�ce No. 146 of 1960, the Governor -General made provisions for the disciplining of senior prison officers. Senior prison officers of the applicant's rank were made - ". . . subject to the provisions rela�ng to discipline contained in the Prisons Act, 1955, and the regula�ons made thereunder as if he were a junior or subordinate prison officer." (See sec�on 3 of Federal Government No�ce No. 146 of 1960.) Sec�on 46 of the Act regulates the mode of taking disciplinary proceedings against junior prison officers and sec�on 47 makes corresponding provisions in respect of subordinate prison officers. The provision of these two procedures in the alterna�ve seems peculiar and I can find no reason for it. But it is clear that provision in such form having been made, it was essen�al, if embarrassment and even injus�ce were to be avoided, that the applicant should be early apprised of which procedure was going to be taken against him. But it would appear that this was never done. Having regard to the applicant's seniority, one would have expected the procedure to be adopted in his case to be that followed in the case of junior prison officers under sec�on 46 rather than that in the case of the even more junior subordinate prison officers under sec�on 47. By sec�on 46 (1 ) - " The director, or a senior officer authorised by the director, may enquire into any alleged offence against discipline by a junior prison officer . . ." The sec�on goes on to make provision for other maters, including punishments which may be imposed. The director did not himself inquire into the allega�ons against the applicant. The alterna�ve was " a senior officer authorised " by him. There was no affidavit or other evidence to indicate that a senior officer had been so authorised. In arguing the case for the respondents, Mr. O'Connor submited that it must be presumed that the appropriate authorisa�on had been made here - " omnia praesamuntur rite et solenniter esse acta ". I think this presump�on does arise. But it is not irrebutable. 1963 - 1964 Z and NRLR p30 BLAGDEN JA Here it is clearly challenged by the very ground put forward in support of this applica�on which we are considering. Ini�ally at any rate, the applicant has the onus of establishing at least a prima facie case to be granted the relief he is seeking. Thus the applicant here has to show a prima facie case of want of authority and consequently of jurisdic�on in the tribunal jus�fying, in consequence, the order he seeks. This puts him in the posi�on of having to establish a nega�ve proposi�on. He can do no more in such circumstances than endeavour to show that there is no record of any such authority in any such form, or place, as one might expect. This, in my view, he has done. The proceedings themselves contain no indica�on of any such authorisa�on ever having been made; nor does it appear in any of the correspondence addressed to the applicant or to his solicitor, exhibited to his solicitor's affidavit. Now the existence of any such authority is a mater which must be peculiarly within the knowledge of the respondents to this applica�on. In these circumstances, the applicant having discharged the onus on him so far as he can, the onus of adducing evidence shi�s to the respondents to show that such authority existed. Mr. O'Connor readily conceded that there was no such authority. It follows that the tribunal was not ac�ng under sec�on 46 of the Act. This leaves sec�on 47. By subsec�on (1) - " The director, a senior officer or officer in charge may enquire into any alleged offence against discipline by a subordinate officer . . ." The provisions which follow are analogous to those in sec�on 46. It is to be observed that in contrast to sec�on 46, sec�on 47 requires no authorisa�on of the inves�ga�ng officer. The authority to conduct the inquiry is vested by statute in "The director, a senior officer or officer in charge". Under this sec�on it would be intra vires a senior officer of the rank of superintendent to inquire into an alleged offence against discipline by an officer of the rank of senior superintendent - a situa�on which appears to me manifestly unjust. But that is not what happened to the applicant here. The director did not inquire into the offence allegedly commited by him; neither did "a senior officer or officer in charge". The inquiry was conducted by a three - man tribunal and it was conceded by Mr. O'Connor that there existed no order or other instrument for its appointment. Mr. O'Connor argued that none was necessary. The appointment was contained in the statute. It is perfectly true that the statute does contain an appointment. But it is not the appointment of a tribunal of more than one man. It is the appointment of " the director, a senior officer or officer in charge ". These words in their natural meaning import the appointment of one person. Words deno�ng the singular are used. See by way of contrast sec�on 10B of the Act and the clear words there used to indicate the appointment of a commitee of inquiry " of two or more persons ". Mr. O'Connor agreed that words in the singular were used in sec�on 47 (1). But he argued, words in the singular include the plural, and consequently it was competent for any number of senior officers to make inquiry here. 1963 - 1964 Z and NRLR p31 BLAGDEN JA Sec�on 11 (c) of the Federal Interpreta�on Act, No. 3 of 1954, provided that - " In every law: (c) words in the singular include the plural and words in the plural include the singular." But this provision must be read subject to sec�on 2 (1) which provided, inter alia, that - ". . . the provisions of this Act shall apply in the interpreta�on and opera�on of every law as defined in this Act except in so far as any such provisions - (a) are inconsistent with the inten�on or object of such law; (b) would give to any word, expression or clause of any such law an interpreta�on inconsistent with the context; . . ." A penal sec�on must be strictly construed. Sec�on 47 (1) refers to " The director " - there is only one - and, in the alterna�ve, to " a senior officer or officer in charge ". The use of the ar�cle " a " here is in my view so posi�vely indica�ve of the singular as to nega�ve the inclusion of the plural. The tribunal here accordingly had no authority to inquire into the alleged offences of the applicant under sec�on 47 of the Act, and as it had no such authority under sec�on 46 either, it follows that it had no jurisdic�on to enter upon this inquiry at all. The order of certiorari prayed for, therefore, should issue provided we have the jurisdic�on to grant it in the par�cular circumstances. These require some examina�on. I have had the advantage of reading the judgment of my brother Charles in which he deals in extensowith these maters. I find myself in agreement with his reasoning and conclusions and would add only a few observa�ons of my own on three aspects of the jurisdic�onal issue. In the first place, I ask myself, does the High Court of Northern Rhodesia have jurisdic�on to entertain an applica�on for cer�orari in respect of proceedings which, although they took place within the territory, were ini�ated by federal authori�es under a Federal Act in respect of a Federal Service? I think the short answer to this ques�on lies in the nature of the order of certiorari itself. The order seeks to bring in and quash the record of the proceedings. For its implementa�on it must be directed to some individual or body. Normally this will be the tribunal which conducted the proceedings, but where such tribunal has ceased to exist as such, or where it no longer has custody of the record, then the order must be directed to that authority in whom for the �me being the de jure and de facto custody of the record is vested. In the present case, at the material �mes, proceedings, record and custodian were all within the geographical jurisdic�on of the territory. The posi�on might well have been different if the federal authori�es had declined to part with the record. They were not, so far as I can see compellable to do so. But, as I have already 1963 - 1964 Z and NRLR p32 BLAGDEN JA related, they very rightly did not take this course and facilitated the applicant's case by passing the record to the Atorney-General of Northern Rhodesia. Then another ques�on which falls to be considered is whether certiorari will lie in respect of a tribunal which has acted not merely in excess of its jurisdic�on but, as here, without any jurisdic�on at all. It is well setled that it will not go to a tribunal which takes it upon itself to exercise a jurisdic�on without any colour of legal authority. The acts of usurpers are to be regarded as nugatory. But the posi�on may be different if the usurpers claim to be ac�ng in pursuance of legal authority - see de Smith's Judicial Review of Administrative Action(1959 Edi�on), paragraph 275, note 29. In 11 Halsbury (3rd edi�on), paragraph 266 on page 141, the point is put this way: "Where the proceedings in the inferior tribunal are not merely voidable but absolutely void, as where an unauthorised person has purported to act in a judicial capacity . . . certiorari will not be granted." But in ibid., paragraph 268 at page 142, the very first ground for certiorari to quash is given as " where the inferior tribunal has acted without jurisdic�on . . ." Another case (see ibid., paragraph 269 at page 142) is where a court is improperly cons�tuted with the result that it has no jurisdic�on. In such circumstances, certiorari will issue to quash its decision. See for example the Irish case of R (Dept. of Agriculture) v Londonderry City Justices, R (Meehan) v Hardy [1917] 2 I. R 283. The posi�on here is analogous to that of a wrongly cons�tuted court. Any one of the officers cons�tu�ng the tribunal which tried the applicant could by himself have inquired into the applicant's alleged offences under sec�on 47 of the Act, or if he had been duly authorised by the director so to do, under sec�on 46. But the combina�on of the three of them amounted to an improper cons�tu�on with a consequent want of jurisdic�on, and on the authority of the Irish case, certiorari would lie. Finally there is for considera�on whether the proceedings taken against the applicant by the tribunal here could be regarded as administra�ve or purely disciplinary, with the implica�on that the tribunal was not under any duty to act judicially. Let me say at once that from the proceedings themselves, it is abundantly clear that the members of the tribunal were purpor�ng to act under statutory provisions of a judicial nature. That circumstance, in my view, really disposes of this ques�on, for, as it is expressed by the learned author of de Smith's Judicial Review of Administrative Action (1959 Edi�on) at page 289: "An authority is likely to be held to act in a judicial capacity if it is designated as a tribunal or if its general characteris�cs or ' trappings' closely resemble those of courts even when it is exercising func�ons of a wide discre�onary nature ". In the result, we were sa�sfied that we had the jurisdic�on to grant the relief sought and that on merit that relief should be granted. We accordingly made an order of certiorari to bring in and quash the record of the proceedings of the tribunal dated 30th July, 1963, together with the confirming order of the Federal Director of Prisons dated 31st July, 1963, and the further confirma�on and findings of the Federal Minister of Law dated 30th August, 1963. 1963 - 1964 Z and NRLR p33 CHARLES J In regard to costs, the order which we make is that the costs of these proceedings from 28th December, 1963 - that is the date of the renewed applica�on for leave to apply for the issue of the order - be taxed in default of agreement, and be paid to the applicant. Judgment Charles J: In my judgment, the so - called tribunal or board of inquiry which purported to try the applicant was a patent nullity. As a result, its findings and recommenda�on of dismissal of the applicant's appeals were also nulli�es. In other words, the legal posi�on is that there has not been an inquiry, there have not been findings, either favourable or adverse to the applicant, and there has not been a dismissal of the applicant. The Prisons Act, 1955, provided a disciplinary code for the officers of the Federal Prison Service and for dealing with alleged offenders against that code. As a result, an officer against whom an offence under the code was alleged could only be dealt with in respect of the allega�on in a manner prescribed by that Act. In the case of the applicant the prescribed manner of inves�ga�on was, by virtue of sec�on 43 (1) and Federal Government No�ce No. 146 of 1960, by means of an inquiry under either sec�on 46 or sec�on 47. The relevant por�ons of sec�ons 46 and 47 have been quoted by my brother Blagden and I shall not repeat them. The effect of sec�on 46 (1) was, in my opinion, to set up a disciplinary tribunal of inquiry consis�ng of one man, the director, or a senior officer authorised by the director. The effect of sec�on 47 (1) was, in my opinion, also to set up a disciplinary tribunal of inquiry consis�ng of one man, but which could be cons�tuted either by the director, or a senior officer, or an officer in charge. No doubt, as a mater of internal administra�on within the Prisons Department, the director could refer disciplinary charges against an officer to one of the other of those tribunals, according to whichever was appropriate to the rank of the officer charged. If the director did not desire to act personally, and he was proceeding under sec�on 46, he could authorise a senior officer to cons�tute the tribunal instead of himself. If he were proceeding under sec�on 47, he could direct one of the other officers men�oned in subsec�on (1) of that sec�on to act as the tribunal. But, for the reasons given by my brother Blagden, both sec�ons limited the tribunals created by them to tribunals consis�ng of one man. Consequently, the director could not create a tribunal of three men by authorisa�on under sec�on 46, or by an administra�ve direc�on requiring the jurisdic�on conferred by sec�on 47 to be exercised. As the Act did not confer upon the director, by any other sec�on, the power to create such a tribunal, he had no authority to create the tribunal which purported to func�on in this case and his purported crea�on of it was a nullity. It does not follow, as a mater of course, from the foregoing conclusions that this court could or should have granted the order. The ques�ons of jurisdic�on and the propriety of exercising the court's discre�on by making the order also had to be considered. The first ques�on to be considered with reference to the jurisdic�on of this court is whether its jurisdic�on extends to gran�ng an order of 1963 - 1964 Z and NRLR p34 CHARLES J certiorari in respect of authori�es of the late Federa�on who obviously purported to act under the Prisons Act, 1955, a law of the late Federal Parliament. It is to be noted that legally this High Court is a new court which came into existence with the coming into opera�on of the Northern Rhodesia (Cons�tu�on) Order in Council, 1963, on the 3rd January, 1964. The fact does not affect the posi�on however. The High Court Ordinance (Cap. 3) of the Laws of Northern Rhodesia applies to this Court by reason of sec�on 9 of the Northern Rhodesia (Cons�tu�on) Order in Council, 1963. Further, the Federa�on of Rhodesia and Nyasaland (Dissolu�on) Order in Council, 1963, does not have retrospec�ve effect so as to annul or abrogate any right, power, privilege, immunity, duty, obliga�on or liability acquired or incurred under federal law and such remain as having been acquired or incurred under that law as part of the law of the territory. It must not be overlooked that federal law is as much a part of the corpus legis of each cons�tuent en�ty of a Federa�on as is the cons�tu�on of such an en�ty and the laws enacted under or recognised by that cons�tu�on. Accordingly, this court's jurisdic�on to grant an order of certiorari in respect of federal authori�es is iden�cal with that of its predecessor and it will be unnecessary further to refer to the two courts as being dis�nct. The iden�ty of jurisdic�on also exists in this case by reason that the leave to bring this applica�on was granted by this court's predecessor on the 28th December, 1963, so that the applica�on was a proceeding pending before that court immediately before the commencement of the Northern Rhodesia (Cons�tu�on) Order in Council, 1963, and can be con�nued before this court by reason of sec�on 12 of that Order in Council. As to the jurisdic�on of a territorial High Court to grant an order of certiorari in respect of federal authori�es, I said in Ex parte Allen (1963/HP/452): "Whether this court as a court of one of the component territories of the Federa�on has jurisdic�on to grant an order of certiorari against a federal instrumentality depends upon whether the federal cons�tu�on or any laws recognised or authorised by that cons�tu�on vest it with jurisdic�on in that respect. The basic law of the Federa�on, as a single poli�cal en�ty which has been created and superimposed upon the cons�tuent territories by or under the authority of the parliament of the United Kingdom, is the common law of England, in the absence of provision to the contrary in the cons�tu�on itself. That arises because the parliament of the United Kingdom presumably legislates on the basis that its enactments will be interpreted and applied with reference to the common law of England. (See " The Common Law as the Basis of the Cons�tu�on " - Australian Law Journal, by Sir Owen Dixon, CJ). Consequently, unless the federal legislature has otherwise provided in the exercise of the powers reposed in it by the cons�tu�on, the liability of federal authori�es and instrumentali�es to control by means of the preroga�ve writs or orders is governed by the common law as part of the law of the Federa�on as dis�nct from being part of the law of the cons�tuent territories. As a further consequence, 1963 - 1964 Z and NRLR p35 CHARLES J that law can only be applied or administered by federal courts unless, and then only to the extent that the federal cons�tu�on has vested in non-federal courts jurisdic�on to administer federal law or has authorised the federal legislature to vest such jurisdic�on in non-federal courts, and such authority has been exercised." The ves�ng of federal jurisdic�on in the territorial courts was governed by six ar�cles of the cons�tu�on, of which two only are relevant here. The first was Ar�cle 45 which was the general provision. By it, and subject to the other five ar�cles and any restric�ve law of the federal legislature, jurisdic�on to administer federal law in civil and criminal proceedings was vested in and rendered exercisable by the courts of any territory as if federal law were a law of the legislature of the territory. The effect of that ar�cle, standing alone, was to confer upon the High Court of a territory jurisdic�on to administer the common law in respect of the gran�ng of the preroga�ve writs or orders as part of the federal law. Ar�cle 53 (c) however, manifestly restricted that jurisdic�on by providing as follows: "The Federal Supreme Court shall, to the exclusion of any other court, have original jurisdic�on - (c) in any mater in which a writ or order of mandamus or prohibi�on or an injunc�on or interdict is sought against an officer or authority of the Federa�on as such." That ar�cle clearly excludes from the jurisdic�on of a territorial High Court jurisdic�on to administer the common law as part of federal law in respect of the gran�ng of mandatory or prohibitory writs or orders in rela�on to the acts of omissions of federal officers or authori�es. The ques�on presented by this case was: Is the ar�cle to be construed as impliedly excluding from the federal jurisdic�on of a territorial High Court jurisdic�on to administer the common law as part of the federal law in respect of the gran�ng of writs or orders of certiorari in rela�on to the acts or omissions of federal officers or authori�es? In my judgment, Ar�cle 53 (c) should not be so construed. The ar�cle sets out in detail the writs and orders which only the Federal Supreme Court could grant against or in respect of federal officers or authori�es. That specifica�on did not include writs or orders of certiorari. Further, the specified writs and orders were all of a class, namely as already indicated, mandatory and prohibitory writs and orders. Writs and orders of certiorari do not fall into that class, although they are in the class known as preroga�ve writs or orders, as are writs of mandamus and prohibi�on, and it may be added, writs of habeas corpus which are also not men�oned in the ar�cle. Moreover, the ar�cle does not contain the words " or any other writ or order of a like kind " or words of similar import which might have linked the class of writs or orders specified with the writs or orders classified as " preroga�ve ". Having regard to those maters, it must be assumed, in my opinion, that the omission of any reference to certiorari in the ar�cle was due to the Queen - in - Council, who enacted the federal cons�tu�on, having intended that a territorial High Court should have jurisdic�on by reason of Ar�cle 45 to grant 1963 - 1964 Z and NRLR p36 CHARLES J writs or orders of certiorari under federal law. An assump�on to the contrary would not be supported by the evidence as to the legisla�ve intent contained in the cons�tu�on itself or by any extraneous maters which may be invoked in aid of statutory interpreta�on, but would be based only on specula�on as to what was in the legisla�ve mind. A contrary assump�on would be contrary, moreover, to the well - established principle of construc�on that the supervisory jurisdic�on which a High Court exercises on behalf of the Sovereign over subordinate authori�es by means of the preroga�ve writs and orders is only to be taken away or curtailed by express words or by implica�on from necessity to give effect to a patently clear objec�ve. The authori�es for that proposi�on are many, but it is sufficient to quote the remarks of Viscount Simonds, L. C. in Pyx Granite Co., Ltd. v Ministry of Housing and Local Government [1960] AC 260, at page 286: " It is a principle not by any means to be whitled down that the subject's recourse to Her Majesty's courts for the determina�on of his rights is not to be excluded except by clear words. That is, as McNair, J, called it in Francis v Yiewsley and West Drayton Urban District Council [1957] 2 Q. B. 136, at page 148, a ' fundamental rule ' from which I would not for my part sanc�on any departure ". While to construe Ar�cle 53 (c) as impliedly including orders for certiorari within its terms would not have had the legal effect of depriving a subject in Northern Rhodesia or Nyasaland of the remedy provided by that order against a federal authority, it could have had that effect in prac�ce as the result of such a subject having to go to Salisbury for his remedy. It follows that, in my Judgment, this court has jurisdic�on to make an order of certiorari against or in respect of a federal authority in accordance with its ordinary jurisdic�on governing the gran�ng of such orders. The next ques�on is whether an order of certiorari was available to the applicant in this case in respect of the findings and recommenda�on of the tribunal, the confirma�on of that recommenda�on, and the dismissal of the appeal, or any of them in accordance with its ordinary jurisdic�on governing the gran�ng of orders of certiorari. The availability of the remedy of an order of certiorari or prohibi�on has been concisely and accurately stated by Atkin, LJ, in an o� - quoted passage from his judgment in The King v Electricity Commissioners, Ex parte London Electricity Joint Committee Co. (1920) Ltd. [1924] 1 KB 171 CA at page 205. The passage is as follows: "Wherever any body or persons having legal authority to determine ques�ons affec�ng the rights of subjects and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdic�on of the King's Bench Division exercised in these writs." (that is, of prohibi�on and certiorari). The tribunal and the two federal authori�es concerned in this case clearly sa�sfied one of the requirements men�oned in that passage: they were determining ques�ons affec�ng the rights of a subject. It is to be noted that the phrase " the rights of a subject " were not used by Atkin, LJ, in any narrow jurispruden�al sense, and they have not been so applied: the phrase being used and applied as covering not only rights in the strict sense but liber�es, privileges, immuni�es and licences. 1963 - 1964 Z and NRLR p37 CHARLES J Whether the tribunal and other authori�es sa�sfied the requirement of ac�ng under legal authority or whether that requirement was not too narrowly stated, is a more difficult mater. Obviously none of them was really ac�ng under legal authority, but, also obviously, all of them were purpor�ng so to act. In Professor de Smith's comprehensive study Judicial Review of Administrative Action the following passage appears: "Although prohibi�on in the past issued to courts deriving their authority from non-statutory sources, it now seems to be clearly established that neither prohibi�on nor certiorari will issue to a body exercising a jurisdic�on that is other than statutory. Thus it will not issue to a private arbitral body which derives its jurisdic�on from contract, or to a voluntary associa�on which derives its jurisdic�on from the consent of its members. A for�ori, they will not issue to a body of persons who take it upon themselves to exercise a jurisdic�on without any colour of legal authority; the acts of usurpers are to be regarded as nugatory." Amongst the authori�es cited in support of that statement is Re Clifford and O'Sullivan [1921] 2 AC 570, where the House of Lords held that prohibi�on did not lie in respect of a military tribunal administering mar�al law during a rebellion. That statement and the dicta of Atkin, LJ, in my opinion, both require to be qualified so as to exclude from the scope of the statement and include within the scope of the dicta tribunals which have been established or cons�tuted or have func�oned in purported exercise of statutory powers. To my mind there is a very real dis�nc�on between such a tribunal and an ad hoc tribunal which has been created by the agreement of its members or of other persons or by a military commander to give effect to his will, and which does not purport to be ac�ng under or in accordance with statutory powers. Unless such a dis�nc�on is recognised, the efficacy of the remedies of prohibi�on and certiorari will be greatly curtailed and the door will be open wide to bureaucrats who, while ac�ng in good faith, construe their statutory powers so unintelligently as to lead them to deal with the rights of individuals by means of tribunals bere� of legal authority. Of course, some individuals thereby affected may have another remedy, such as by way of declaratory judgment, but others, like the present applicant, may not. I am unable, in the absence of authority which is binding upon me, to accept that the good sense of the common law has failed to recognise such a dis�nc�on. The recogni�on of that dis�nc�on appears to have the support of an Indian writer. (See de Smith, supra page 275, note 29, ci�ng Murkose, Judicial Control of Administra�ve Ac�on in India, pages 199 - 201.) It also appears to be the basis of the Irish decision to which my brother Blagden referred on the point: a decision apparently rela�ng to a court which was lawfully established but unlawfully cons�tuted. In a case such as this, the borderline between the establishing and cons�tu�ng of a tribunal is not easy to perceive. In my judgment, therefore, certiorari may issue in respect of a tribunal or other body which, although it has acted without legal authority, has purported to act under or in exercise of legal powers. Accordingly, 1963 - 1964 Z and NRLR p38 CHARLES J the illegality of the proceedings before the tribunal and the two federal authori�es which purportedly terminated in the applicant's dismissal was not an impediment to gran�ng the order sought. Analogous to the point last discussed is whether the condi�on of having a duty to act judicially was sa�sfied by the tribunal and the federal authori�es concerned. Logically, of course, an illegal body cannot be under a duty to act in any way; its only duty is to refrain from ac�ng. On the other hand, once it is accepted that certiorari lies to a body which purported to have acted under legal authority, the ques�on whether or not the condi�on of being under a duty to act judicially has been sa�sfied must depend upon whether or not the duty was a feature of the authority, whose powers and func�ons were purportedly exercised. On that basis, that condi�on as to jurisdic�on to grant certiorari was sa�sfied in respect of the tribunal and the two federal authori�es concerned in this case for the following reasons. A tribunal cannot act judicially without observing the rules of natural jus�ce. Hence, if a tribunal or other authority is bound to act judicially, it is under a duty to hear a person who is likely to be affected by its decision, and the discharge of that duty is a condi�on precedent to making an adverse finding against him. Consequently, an adverse finding in disregard of the later duty is null and void, and not merely voidable. Conversely, the imposi�on of the later duty on a tribunal or authority stamps it as a tribunal or authority which is under a duty to act judicially. Moreover, it is a rebutable presump�on of law that when a statute requires an authority to inquire into maters affec�ng the rights of individuals, the legisla�ve intent is that the authority shall be under the duty of hearing the individuals concerned. The presump�on, of course, may be rebuted, either expressly or by necessary implica�on from the nature and purpose of the authority's func�ons. All that I think, emerges from the important cases of Smith v The Queen [1878] 3 App. Cas. 614 (P. C.) and Ridge v Baldwin[1963] 2 All ER 66 (H. L.) The former case had been forgoten over the years but it was remembered in the later case. (See The Twilight of Natural Justice by H. W. R Wade, [1951] 67 L. Q. R 103). By sec�ons 46 and 47 of the Prisons Act, 1955, the disciplinary authori�es created thereunder were required to be sa�sfied before making an adverse decision against an officer before them. Accordingly, the presump�on of being under a duty to hear the officer implicated applied, and that presump�on, so far from being rebuted by the nature and purpose of the func�ons of the authori�es created, was confirmed as the nature and purpose of those authori�es related solely to alleged breaches of discipline by individuals. In the case of the confirming and appellate authori�es ac�ng under sec�on 48, the duty to hear the officer implicated was expressly imposed, the sec�on providing that that officer was to be given an opportunity of making representa�ons in wri�ng before the making of a decision to confirm an award of punishment against him or to dismiss his appeal. Another aspect of this case which has presented difficulty is what may be called the territorial basis of the court's jurisdic�on to grant certiorari. That basis is clear in the case of habeas corpus, mandamus and prohibi�on. Before habeas corpus can issue there must be a person who has 1963 - 1964 Z and NRLR p39 CHARLES J control of the body to be produced and who is subject to the authority of the court. Before mandamus can issue there must be a person or authority who is subject to the authority of the court and against whom the mandate can be issued. Before prohibi�on can be issued there must be a person or authority who is func�oning within the jurisdic�on of the court and who can be prohibited from con�nuing the func�on. Clearly, in the case of certiorari to bring a record into court to be quashed or for any other purpose, there must be a record which is in the custody of a person who is subject to the jurisdic�on of the court and to whom the order to bring in can issue. Is that sufficient? It is clear that the tribunal or authority whose record is sought to be brought into court need not be in existence as such at the �me of applying for or obtaining certiorari. Orders have been granted in respect of many tribunals of a temporary or transitory nature against the authori�es having the custody of their records. Thus in R v The Governor of Wormwood Scrubs Prison, Ex parte Boydell [1948] 1 All ER 438 (D. C.) A peremptory order of certiorari was granted against the Secretary of State for War in respect of the proceedings of a military court mar�al. What is not so clear is whether the tribunal must have func�oned in respect of the challenged proceedings within the territorial limits of the superior court, in other words, whether the record of proceeding must have been brought into existence within those territorial limits. In re Mansergh (1861) 1 B. & S. 400, the court of the Queen's Bench doubted whether it had jurisdic�on to grant a writ of certiorari in respect of a court mar�al held in India, although the record was in England. On the other hand, in Rex v The Secretary of State for War, Ex parte Price [1949] 1 KB 1 (D. C.) at pages 5 and 6, Lord Goddard, CJ, doubted the validity of the doubts expressed in In re Mansergh on this point, sugges�ng that it may well be that the court would have jurisdic�on to grant an order of certiorari in respect of a Bri�sh court mar�al func�oning under the Army Act and held in a place outside of England and where there was no civil court which could grant the order. In the earlier case of R v The Governor of Wormwood Scrubs Prison supra, that sugges�on had already been given effect, as the order of certiorari which was granted was in respect of the proceedings of a court mar�al held in Germany. On principle, it seems to me that the territorial basis for the issue of certiorari is that the record of proceedings sought to be produced must be in the effec�ve custody or control of a person who is subject to the jurisdic�on of the superior court and that that record must be the record of the proceedings of a tribunal or body which either func�oned or could have performed lawful func�ons in respect of the proceedings within the territorial jurisdic�on of the superior court. The doubts expressed by Blackburn, J, in In re Mansergh, that if the presence of the record in England alone was sufficient as a territorial basis it would mean that an English court could acquire jurisdic�on to quash the proceedings of a French court, do not seem to detract from the conclusion which I have stated. In the first place a French court could not lawfully func�on in England. In the second place its proceedings would be according to French law, and certiorari cannot issue in respect of a tribunal proceeding 1963 - 1964 Z and NRLR p40 CHARLES J otherwise than under or in accordance with the common law or statute law. (R v St. Edmundsbury and Ipswich Diocese (Chancellor) and Another, ex parte White and Another [1947] 2 All ER 170 (CA) par�cularly at page 181 per Evershed, LJ) Here the tribunal actually conducted its proceedings in the territory, the confirming and appellate authori�es could lawfully have exercised their func�ons as such under the Prisons Act, 1955, or respec�vely have refused confirma�on and annulled the proceedings of the tribunal, within the territory, it being merely a mater of administra�ve convenience that they usually func�oned in the federal capital and the record of proceedings was in the custody of one or other of the respondents who were both subject to the jurisdic�on of this court. Consequently, in my judgment the territorial requirement to give this court jurisdic�on to grant the order sought was sa�sfied. There is one other jurisdic�onal aspect to men�on. In the course of his argument, learned counsel for the applicant found occasion to refer to the judgment of Lord Goddard, CJ, in Ex parte Fry [1954] 1 W. L. R 730. In that case leave was sought to apply for an order of certiorari in respect of an award of punishment imposed on a fireman by a disciplinary tribunal. The divisional court dismissed the applica�on on the ground that disciplinary tribunals were not required to act judicially and that, consequently, there was no jurisdic�on to grant certiorari in respect of their awards. In the course of his judgment, Lord Goddard, CJ, referred par�cularly to military tribunals as, on that account, not being subject to certiorari, on appeal, the court of appeal dismissed the appeal on the ground that the applicant's conduct had deprived him of having the court's discre�on to grant an order of certiorari exercised in his favour. There are other dicta, which taken out of their context, are cited as showing that there is no jurisdic�on to grant certiorari in respect of the proceedings of a disciplinary tribunal of a disciplined service. (See for example, Halsbury, 3rd Edi�on, Vol. 11, pages 55, 135.) The basis for that proposi�on is usually stated as being that such tribunals apply the law peculiar to their service, which is neither the common law nor statutory law. (See for example, In re Mansergh, supra.) Lord Goddard is a great authority on the law pertaining to preroga�ve orders and anyone who ventures to differ from him on a point of such law must do so with considerable diffidence. Nevertheless, I am unable to see how anyone who is in any way familiar with military law can say that the tribunals func�oning under that law, be they cons�tuted by commanding officers for summary trials or be they courts mar�al are not required to act judicially. The requirements prescribed for them by the Army Act and the Rules of Procedure made thereunder approximate to the requirements of civil courts, and certainly require their proceedings to be conducted with a degree of judicial formality which is far greater than that which has been required from many administra�ve tribunals, in order to render them liable to the preroga�ve orders. As to the disciplinary tribunals of other disciplined services, it is sufficient to say that they cannot be dismissed as being non-judicial bodies merely because they are disciplinary tribunals. Whether or not they are 1963 - 1964 Z and NRLR p41 CHARLES J judicial authori�es depends in each case upon whether or not the par�cular tribunal is required, either expressly or impliedly, to act judicially by the statute or statutory regula�on under which it derives its authority. If a tribunal is so required to act its proceedings are liable to examina�on and quashing by certiorari. I will add in conclusion that if Ex parte Fry was an authority against a superior court having jurisdic�on to grant certiorari in respect of a statutory disciplinary tribunal for ac�ng without or in excess of jurisdic�on on the ground that such a tribunal is not a judicial body, it appears to have become buried under the monumental decision of the House of Lords in Ridge v Baldwin (sup. cit.). With regard to the sugges�on that certiorari does not lie against disciplinary tribunals because they administer a law different to common or statute law, I make the following comments. There are several authori�es of the courts both in England and in other commonwealth countries, in which prohibi�on or certiorari has been issued in respect of the disciplinary tribunals of the armed services for lack of jurisdic�on. It is true that in most of them the certiorari to quash has issued on the ground that the applicant had ceased to be a member of the service concerned and so was not subject to the jurisdic�on of that service's tribunal. But the fact that such tribunals administer law which is perhaps peculiar to their respec�ve services is not a reason for the superior court not being able to exercise its supervisory jurisdic�on by reason of the preroga�ve orders in order to keep them within their jurisdic�on, though it may be that it is a ground for those orders not being available to correct errors or law on the face of the record. The primary purpose for which the preroga�ve orders of prohibi�on and certiorari issue is, as stated earlier, to keep the tribunal established by statute within the bounds of its statutory jurisdic�on. Disciplinary tribunals are mostly the crea�ons of statute, and, therefore can derive no immunity to act without jurisdic�on from the fact that they are disciplinary tribunals. The sugges�on under discussion appears to me to be a result of a confusion between the jurisdic�on to grant prohibi�on or cer�orari in respect of disciplinary tribunals and the propriety of exercising that jurisdic�on as a mater of discre�on. The superior courts are naturally and rightly reluctant to exercise their discre�on against disciplinary tribunals, and will only do so in excep�onal circumstances, because the maintenance of discipline in a disciplined force or service is a very delicate mater and the " barrackroom lawyer ", who can disrupt both discipline and morale, is not to be encouraged. Having regard to the foregoing I was, and am, of the opinion that this court had jurisdic�on in this case to grant the order sought. I was, and am, of the opinion that this case was one for the court to exercise its discre�on in respect of that jurisdic�on in the applicant's favour. As I have said the discre�on will, and should, be exercised that way only in excep�onal circumstances when a disciplined service is involved. Here such circumstances appear to me obviously to have existed. The applicant was purportedly tried and condemned by a tribunal devoid of jurisdic�on. He then exhausted his departmental remedies by making representa�ons, firstly to the confirming authority and, then, to the appellate authority, in accordance with the Prisons Act. The 1963 - 1964 Z and NRLR p42 CHARLES J net result of those efforts was that a nullity became concealed under a facade of legality, with dire consequence to the applicant. Those consequences were likely to con�nue unless that facade was demolished, and that could only be done by this court. I offer no apology for the length of this judgment. Some of the ques�ons concerned, perhaps, will not have any importance beyond this case, as they arose under a federal cons�tu�on which is now dead. Others, however, relate to points of law which may have an increasing importance because of future cons�tu�onal and bureaucra�c changes and development. I concur in the order for costs which my learned brother has proposed.