Buck v Attorney General

JurisdictionEngland & Wales
JudgeLORD JUSTICE HARMAN,LORD JUSTICE DIPLOCK,LORD JUSTICE RUSSELL
Judgment Date12 February 1965
Judgment citation (vLex)[1965] EWCA Civ J0212-3
Docket Number1961. B. No. 3615
CourtCourt of Appeal
Date12 February 1965
Between:
Prince Gustavus Buck
Jonathan Christian Lucan
Samuel Balougun-Palmer
Eldred Williams
Jonathan Benjoko Thomas and
Jonathan Michael Rose
Plaintiffs
and
Her Majesty's Attorney-General
Defendant

[1965] EWCA Civ J0212-3

Before:

Lord Justice Harman

Lord Justice Diplock and

Lord Justice Russell

1961. B. No. 3615

In The Supreme Court of Judicature

Court of Appeal

Revised

Mr. EDWARD L. GARDNER, Q. C., and RALPH WILLNER (instructed by Messrs Cree, Godfrey & Wood) appeared on behalf of the Appellants (Plaintiffs).

THE ATTORNEY-GENERAL (Sir FREDERICK ELWYN JONES, Q. C) and Mr. JOHN P. WARNER (instructed by The Treasury Solicitor) appeared on behalf of the Respondent (Defendant).

ADDITIONAL APPEARANCE:

The First and Sixth appellants (Dr. P. G. Buck and Mr. J. M. Rose) appeared in person on their own behalf and on behalf of the Fourth and Fifth Appellants (Mr. E. Williams and Mr. J. B. Thomas).

LORD JUSTICE HARMAN
1

This is an appeal against an order made by Mr. Justice Wilberforce (as he then was) on the 5th April of last year dismissing this action in which the plaintiffs sought against the Attorney-General, representing the Crown in this country, a declaratory judgment declaring void an Order in Council made on the 14th April 1961, which propounded, or sought so to do, a constitution for the new State of Sierra Leone. This State came into existence on the 27th April 1961 under an Act of the British Parliament passed on the 28th March of that year called the Sierra Leone Independent Act 1961 (9 and 10 Elizabeth II, chapter 16). The effect of that Act was to combine in the new State, one of the independent Dominions of the Crown, both the Crown Colony known as the Sierra Leone Colony and the Sierra Leone Protectorate.

2

The plaintiffs are, and have been at all material times, British subjects and domiciled in the former Crown Colony. They are, and they claim to represent, the descendants of manumitted slaves attracted from various sources to Freetown, now the capital, at the end of the eighteenth or the early years of the nineteenth century. These people form a community distinct from the indigenous inhabitants of the neighboring Protectorate, and have described themselves as the Free Community of Settlers. They feel aggrieved by this amalgamation, which according to them, having regard to the great numerical superiority of the inhabitants of the Protectorate, who represent, roughly speaking, the indigenous inhabitants, subjects them to the latter, who until the passing of the Act of 1961 were British protected persons and not British subjects, and deprives them of the position which they had always cherished of free subjects of the Queen.

3

The plaintiffs recognized that they could not question the Act of Parliament. What they did attack was the Order in Council which was entitled The Sierra Leone (Constitution) Order in Council S. H. 1961 NQ.741. Their claim was that either the Order did not on its true construction apply to the Colony at all, or that if it did purport so to do it was ultra vires theCrown acting as Her Majesty did under the powers of the British Settlements Act, 1887.

4

In the court below the learned judge expressed grave doubts about both the jurisdiction to grant, and the propriety of granting, a declaration such as is claimed in this case. For the purposes, however, of his judgment, he set those considerations aside and decided the case on the construction of the Act of 1887 adversely to the plaintiffs, holding that there was power vested in Her Majesty under the Act to make the Order in Council in question, its object and effect being to supply with a constitution the Colony and the Protectorate when amalgamated by the Act of Parliament.

5

This was enough to dispose of the relief asked by the writ. Other claims, however, were added by amendment to the prayer of the statement of claim which depended on an alleged trust of lands in the Colony said to be vested in the Crown in favour of the members of the so-called Free Community of Settlers and their descendants. The judge found conclusive answers to these latter contentions and rejected them, and nothing has been heard of them in this court. Finally, there was a fourth item added to the prayer which alleged that the free settlers are now entitled to set up in the Colony such constitution as they think fit. This contention was not urged by Mr. Gardner, who appeared for all the plaintiffs except the first and the last. These latter at the last moment expressed their wish to sever from their co-plaintiffs apparently for the purpose of putting forward contentions with which Mr. Gardner declined to be associated, particularly the last motioned, and by way of indulgence, and without objection by the Attorney-General, we thought it right to allow this irregular course, and we heard the first plaintiff on his own behalf and on that of the last plaintiff, who addressed us with considerable eloquence and without much attention to the point at issue. I reject his submissions so far as I have been able to understand them.

6

The background and facts of the case have been admirably stated by the learned judge, and I adopt them and do not propose to elaborate on his recital. With the substance of his judgment also I agree, and should be content to add nothing on my own account. In this court, however, it was pressed upon us by the Attorney-General that we ought not to flinch from a decision on the point of jurisdiction, and I am persuaded that it is one with which we ought to deal.

7

This then is an action seeking a declaration that the constitution of Sierra Leone (that is to say, the combined areas of the Crown Colony and the Protectorate) propounded by the statutory instrument is, in so far as the plaintiffs and their followers are concerned, void and of no legal validity. This relief is sought in the absence of any representative of the State whoso constitution is attacked. In the course of an interlocutory matter in this case I suggested to the appellants that they might give notice in Sierra Leone of this appeal to the authorities there in case they should wish to intervene in the proceedings. This notice, I understand, was given, but not unexpectedly there has been no Intervention. If there had been, that might have been a submission by the Government of Sierra Leone to the jurisdiction of this court, but there has been no such submission. The only respondent, then, is the Attorney-General representing the Queen in Great Britain.

8

The plaintiffs' argument is, I understand, twofold. First, that they attempted, before the promulgation of independence, to raise the question of the validity of the Order in Council by an action in the Queen's Bench Division of this court at a time when the Colony was a Crown Colony, and the question, therefore, justifiable in these courts, and that it was only the exigencies of time which prevented that action from coming to trial before the appointed day when Independence became an established fact. That action was then stayed, and this fresh action started, and the plaintiffs say that they ought not to be treated differently because they have been overtaken by time inthis way. To this I answer that the Act of Parliament which set up the independent State has made all the difference (deplore it as the plaintiffs may) and they can only be treated on the facts as they are, and were when the writ was issued, namely, as litigants seeking to impeach in these courts the independence of an independent State.

9

The second argument was that this was an instrument in the nature of a statutory instrument laid before the British Parliament and therefore must be cognisable in the British courts, and that section 3 of the Order and the Second Schedule propounding the constitution of Sierra Leone (that is to say, both the Colony and the Protectorate immediately before independence became an established fact under the Act of Parliament) must be a matter into which these courts can inquire.

10

In my judgment neither of these arguments ought to prevail. These courts cannot, in my view, make a declaration...

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