Eleko v Government of Nigeria

1928. April 30; May 1. Montgomery K.C. and Horace Douglas for the appellant. The law in Nigeria with regard to the issue of writs of habeas corpus is the same as the law in England. The facts upon which the application was based have never been judicially inquired into. But even if the merits were fully considered upon the first application the appellant was entitled to apply to another judge, and to have his independent decision. In Cox v. Hakes^F1 in the House of Lords Lord Halsbury said that if upon the return to a writ of habeas corpus release was refused “a person detained might — see Ex parte Partington^F2 — make a fresh application to every judge or every Court in turn, and each Court or judge was bound to consider the question independently and not to be influenced by the previous decisions refusing discharge.” It is conceded that Lord Bramwell^F3 appears to have considered that the right was merely to go from one Court to another Court, but no member of the House expressly dissented from the view expressed by Lord Halsbury. In Ex parte Partington^F4 the application was to the Court of Exchequer after an application to the Lord Chief Baron, thus involving a second application in the same Court. In In re Cobbett^F5 Baron Parke expressly said that there was a right to go from Court to Court and from judge to judge. In Secretary of State for Home Affairs v. O'Brien^F6 Lord Shaw referred with approval to the passage in Lord Halsbury's judgment containing the language already cited. The report of Barnardo v. Ford^F7 in the House of Lords shows that in that case a Divisional Court made an order nisi for the issue of the writ, although it had been refused by a judge. Textbooks of authority recognize that an applicant can go from one judge to another judge: e.g., Short & Mellor's Crown Office Practice, 2nd ed., § 217, p. 320. [Reference was made also to Ex parte Napierre^F8; Ex parte Le Gros^F9; and Viner's Abridgement, Habeas Corpus C. (6.).]

Hon. Stafford Cripps K.C. and S. E. Pocock for the respondents. The history of the writ as stated in Blackstone's Commentaries, bk. 3, ch. 8, shows that under the practice then existing an applicant had to apply to the Court by motion, and could apply to each of the four Courts successively; it does not indicate that there could be successive applications to different judges of the same Court. In Ex parte Partington^F10 the application to the Lord Chief Baron was in chambers, and Baron Parke said that the applicant had a right to the judgment of the Court, and that he had that right although there had been a previous application to the Court of Queen's Bench. In Ex parte Cox^F11 Lord Esher said: “It is not correct to say that under the old system there could be an application to all the judges in succession. There could be an application to all the Courts in succession.” Although the actual decision of the Court of Appeal in that case as to the right of appeal was reversed by the House of Lords in Cox v. Hakes^F12 none of the learned Lords expressly dissented from the above categorical statement by Lord Esher; Lord Bramwell clearly agreed with it. The language used by Lord Halsbury is not inconsistent with Lord Esher's statement. When he spoke of “each Court or judge,” he meant each Court or each judge representing the Court; the words do not necessarily indicate that in Lord Halsbury's view there could be successive applications to different judges of the same Court. He based his statement on Ex parte Partington^F13, and the true view of Baron Parke's judgment in that case is that an applicant can go to each Court, but to each Court once only. It is conceded that if the present contention is right the Judicature Act, 1873, by combining the Courts into one High Court of Justice, limited the previously existing rights of the subject; that probably was an unforeseen result, and in any case the rights of the...