CO129-348 - Governor Sir Lugard - 1908 [7-10] — Page 60

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107X.

Enclosure

14.

Minute by the Attorney-General.

Hon. Colonial Secretary,

C.O.

29049

58

R

Rec 10 AUG 08

Paragraph 1 of the Chief Justice's letter

means that the Court might be asked to order by Mandamus the

Governor-in-Council to state a case for the opinion of the Full

Court if the appellant has desired it and the Governor-in-

-Council has not acquiesced in his application.

The Clause (85) vests a discretionary power

in the Governor-in-Council (the words are:- the Governor-in-

-Council *may at any time in his discretion direct a case to be

stated") and in my opinion assuming that the discretion has

been fairly exercised no proceedings for Mandemus would lie.

If the duty cast on the Governor-in-Council

be of a judicial character (as in effect it is) a Mandanus

would be granted only where there is a refusal to perform it

in any way; not where it is done in one way rather than another,

erroneously instead of properly. In other words the Court will

only insist that the person who is the Judge shall act as such;

but it will not dictate in any way what his judgment should be.

According to my reading of the Law I

respectfully differ from the conclusions of the Chief Justice and I do not think any occasion could arise for the Court being called upon "to require the Governor-in-Council" to state a

case or in fact, on the assumption I have stated, that the

Court would have any power to do so.

It was not the intention of the Council that

the discretion of the Governor-in-Council should be fettered and in order to meet the apprehension of the Chief Justice and "to avoid" any "question of difficulty and delicacy" I think it may be advisable to insert express words at the end of the

clause as follows:-

"No

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