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Colonial Cases

Haggard v. Freres, 1891

[consular court, jurisdiction - judicial immunity]

Haggard v. Freres

Judicial Committee of the Privy Council
5 December 1891
Source: Source: The Times, 7 December 1891






This was an important appeal from a judgment of the Supreme Court of Mauritius of December 11, 1888.

The Attorney-General; and Mr. Henry Sutton appeared for the appellant.

The case was recently argued before their Lordships, when judgment was reserved.

LORD WATSON, in now delivering the decision of the Board, said the appellant, Mr. John George Haggard was in 1887 British Consul for Madagascar, in which capacity he was the Chief Judge of Her Majesty's Consular Court in the island.  On May 9, 1887, the respondents, Messrs. Pelicier Freres, took out a summons against one Louis Mairs, requiring him to attend the Consular Court personally or by his agent on August 16, and prayed judgment for $35, being the price of ten bags of Indian rice sold and delivered to him by them, with interest and costs.

At the specified time both appeared in Court before the appellant (Mr. Haggard) at Tamatave, the respondents being represented by their attorney, Mr. Elie, and the defendant Mairs by his employer, Mr. Proctor.  In presence of the parties, the appellant stated that he had private information that the debt sued for had been paid and a receipt granted by the respondents.  At that moment Mr. Proctor produced the receipt and handed it to the appellant, who then went on to say that he considered the case a vexatious one, and that he would dismiss it on that ground.  The respondent's attorney admitted that the receipt had been signed by them, but explained that it had been obtained by fraud, whereupon the appellant adjourned the case until Thursday, the 25th of August.

With the view of establishing their assertion that the receipt had not been legitimately obtained by the defendant Mairs, the respondents, between the 15th and the 25th of August, made application to the appellant for a summons citing the defendant, who resided about 100 miles from Tamatave, to appear personally and give evidence, but the application was refused.  The respondents then offered to make affidavit explaining the necessary for examining the defendant, and that the sum necessary to cover his travelling expenses would be tendered, but the appellant persisted in his refusal, on the ground that the case was a vexatious one and that the citation of the defendant would cause unnecessary injury to his employer's business.

The cause came before the Court again upon the 25th of August.  It was nowhere averred, nor did it appear, that on that day the respondents produced any evidence, oral or documentary, and the appellant, adhering to the opinion previously expressed by him, and without further hearing, gave judgment for the defendant with costs. On October 7 the respondents filed a declaration against the appellant in the Supreme Court of Mauritius, praying the Court to condemn him in Rs. 1, 200, with costs of suit.  After the appellant's defence was lodged, a preliminary plea was raised by him that the Supreme Court of Mauritius was not competent to take cognizance of the case because (1) that Court, as to civil suits arising in Madagascar, only possessed an original jurisdiction concurrent with that of the Consular Judge; (2) it had no authority to entertain a suit for acts done by the Consul in his judicial capacity; and (3) it could not, in any form of process, review his decisions in the suit between the respondents and Louis Mairs, inasmuch as the sum sued for was below appealable value.

After hearing argument, the Supreme Court rejected the appellant's plea, in so far as it struck at their jurisdiction to entertain the suit.  With regard to that part of the plea which referred to the immunity of the appellant for acts done by him in his judicial capacity, they came to the conclusion "that the common law of privilege accorded to English judges of courts of record may be held to follow them to a Consular Court of Record, where English law is administered." And they gave leave to both parties, if they so desired, to amend their pleadings in the light of that decision.

Both parties availed themselves of the leave this given.  The respondents struck out of their declaration the averment as to the "flagrant abuse' of the appellant's judicial powers, and substituted an allegation in these terms:

"Whereas by refusing as he did, under the circumstances aforesaid, to allow the plaintiffs to prove their case, and to summon the said Mairs as a witness for that purpose, the said defendant exceeded the jurisdiction vested in him by the Order in Council of February 4, 1869, or, in other words, acted beyond the limits of his authority, and actually abused such authority."

The appellant, in order to meet the respondents' amendment, deleted one of his pleas on the merits, substituting for it the following words:

"That the defendant acted as Consular Judge within his jurisdiction and within the limits of his authority, and did not abuse the authority vested in him, and that he is not liable to action in respect of the judicial acts complained of, which were within the scope of his said jurisdiction.

The respondents had not appeared at the hearing of the appeal, and in these circumstances their Lordships thought it right to hear the appellant's counsel with respect to the privilege attaching to his office as Judge of the Consular Court.  After hearing argument, their Lordships were satisfied that in 1887 the Consular Court of Madagascar was not, in the sense of English law, a Court of Record and that it did not become so before the date of the Africa Order in Council, 1889.  But in 1887 the Court, under an Order in Council of February 4, 1869, exercised jurisdiction of a very important character.  Established by the Queen in virtue of power derived from a treaty with the Sovereign of Madagascar, it was the only British tribunal in the island and was vested with plenary civil jurisdiction over all British subjects within its limits. The Supreme Court of Mauritius had only a concurrent original jurisdiction with authority to review the decisions of the Consular Court upon an appeal duly taken in causes exceeding Rs. 200 in value.

In these circumstances, it did not appear to their Lordships to admit of doubt that the appellant, while sitting and acting as Judge of the Consular Court, was entitled to the same degree of protection which was accorded by the law of England to the Judge of a Court of Record. In "Kemp v. Neville" (10 C.B., N.S., 549), Chief Justice Erle, delivering the unanimous judgment of the Court of Common Pleas, reviewed the authorities bearing on the point, and stated their result as follows:-

The rule that a judicial officer cannot be sued for an adjudication, according to the best of his judgment, upon a matter within his jurisdiction, and also the rule that a matter of fact so adjudicated by him cannot be put in issue in an action against him have been uniformly maintained."

In "Hamilton v. Anderson" (3 Macqueen H. of L. Cases, 378), Lord Cranworth laid down the same doctrine with thins important addition:-

I need hardly say that the merely adding that it was done maliciously amounts to nothing at all.  That would, in the opinion of the aggrieved party, be always true, or, at all events, would be what he would be perfectly able to state."

Their Lordships did not think that the declaration, as originally framed, disclosed any cause of action against the appellant.  The Court below was evidently of the same opinion, and on that account allowed an opportunity of amendment. The only case presented in the declaration was that the acts of which the respondents complained constituted a flagrant abuse of the judicial power vested in the appellant, an allegation which implied that, although flagrantly wrong, they were the acts of a Judge exercising proper judicial functions.

The amendment disclosed an entirely new ground of action - namely, that the acts complained of were done by the appellant in excess of the jurisdiction vested in him by the Order in Council of 1869; or, in other words, that he was acting beyond the limits of his judicial authority.  Now, a Judge might commit an excess of his jurisdiction in many ways; but the kind of excess which the respondents imputed to the appellant was, in their Lordships' opinion, obvious.  He was admittedly sitting in Court as Judge in an action which he was competent to try; both parties to the suit were before him, and the acts complained of related to the cause before him, and were embodied in formal orders of the Court, authenticated by his signature.  In that admitted state of the facts, their Lordships were unable to attribute to the respondents' averments any other meaning than that the appellant, although he was sitting to try the case in presence of the parties, and was competent to try and decide it, had nevertheless no jurisdiction at that stage to dismiss the suit as a vexatious one.  After amendment of the pleadings the case was argued on its merit before the same Judges who had disposed of the appellant's preliminary pleas.

Their Honours delivered their judgment on December 11, 1888, from the tenour of which it plainly appeared that they, as well as the respondents themselves, put the same construction upon the amended declaration which their Lordships had done.  Their Honours said:-

That this decision to reject a plaint without having evidence or argument in support of it was the assumption of a power to decide a case without hearing it, which power the defendant did not possess, was the argument submitted to us by counsel for the plaintiffs, and we have come to the conclusion that the plaintiffs are entitled to a verdict."

They accordingly gave a decree against the appellant for Rs. 200, with costs of suit.  They plainly meant to affirm the legal proposition maintained by the respondents' counsel because they expressly said:-

"it must be understood that we do not find the defendant liable for any act or thing done within the scope and limits of his judicial discretion."

If according to the law it was, as the learned Judges had held, beyond the scope and limits of the judicial exercise of a Judge in the position of the appellant to refuse a plaintiff a proof and to dismiss his action as vexatious, their decree or verdict might be unassailable. 

But the proposition which they had affirmed, and which lay at the very foundation of their judgment, appeared to be founded upon a misapprehension of the law.  Their Lordships held it to be settled that a Court of competent jurisdiction had inherent power to prevent abuse of its process by staying or dismissing, without proof, actions which it held to be vexatious.  In "Metropolitan Bank v. Pooley" (10 Appeal Cases, 214), the Lord Chancellor (the Earl of Selbourne), speaking with reference to the dismissal of an action on that ground, said that "the power seemed to be inherent in the jurisdiction of every court of justice to protect itself from the abuse of its own procedure."  The same principle was again laid down by the House of Lords in "Lawrance v. Norreys" (15 Ap. Ca., 210).  In that case the Appeal Court had refused to allow proof, and dismissed the action; and Lord Herschell observed:-

It cannot be doubted that the Court has an inherent jurisdiction to dismiss an action which is an abuse of the process of the Court.  It is a jurisdiction which ought to be very sparingly exercised, and only in very exceptional cases."

In the remarks made by Lord Herschell as to the caution with which the power of summary dismissal on such grounds ought to be exercised their Lordships unhesitatingly concurred.  It was, in their opinion, matter of regret that the appellant should have acted so hastily, instead of permitting the respondents to adduce proof of their assertion that their receipt had been fraudulently obtained by the defendant Mairs.  But the insufficiency or even the utter inadequacy of his reasons for dismissing the suit could not affect his jurisdiction to dismiss it.  He was competent to entertain the question whether the suit ought to be dismissed as vexatious, and equally competent to decide that question one way or another.

It was due to the appellant to state that the residents, in their pleadings, made no imputation of dishonesty; although their Lordships did not mean to suggest that such an imputation, if it had been made and proved, would have deprived him of the immunity which the law accorded to a Judge in his position. The remedy, when such a case occurred, did not lie in an action of damages against the offending Judge, but by making a representation to the authorities, whose duty it was to see that justice was administered with due care and attention.

For those reasons their Lordships would humbly advise her Majesty to reverse the judgment appealed from and to dismiss the suit with costs. The respondents must pay to the appellant his costs of this appeal.

Source: The Times, 8 December 1891

Some day we shall have - the time for it has not yet arrived - an instructive comparison between the spread of English laws among uncivilized communities and the diffusion of the laws of Rome among the Barbarians in the first centuries of the Christian era.  The historian will have much to say of the Consular Courts, one of the chief agencies in extending English laws, and of such controversies as that decided in "HAGGARD v. PELICIER FRERES," which we reported yesterday, and which originated in the British Consular Court in Madagascar.  At the onset and on the face of it a mere dispute about ten bags of rice, it is an illustration and reminder of the fact that many even of the technical rules of English law are now applied in communities utterly unlike that in which they were framed.

Mr. HAGGARD was, in 1887, Chief Judge of our Consular Court in Madagascar, in which PELICIER FRERES took proceedings against one LOUIS MAIRS for the price of certain rice sold to him.  At the first hearing, Mr. HAGGARD did what on the part of a Judge was a very strange thing to do - he publicly stated that he had private information that the debt had been paid and a receipt for it given.  Thereupon the attorney for MAIRS produced the receipt, and the Consular JUDGE, describing the case as a vexatious one, said that he would dismiss it. The plaintiff's attorney however alleged that the receipt had been obtained by fraud, and the JUDGE granted an adjournment.  When the matter came up again, the plaintiff's attorney applied for a summons citing MAIRS, the defendant, who resided 100 miles from Tamatave, the seat of the Consular Court, to appear and be examined.  The Consular JUDGE refused, and, notwithstanding other applications to the same effect, he persisted in the refusal, on the ground that the case was "vexatious," and that the business of Mr. MAIR'S employer would suffer by his absence.  In the end, Mr. HAGGARD gave judgment for Mr. MAIRS, with costs.

Indignant at what they conceived to be a grave denial of justice, PELICIER FRERES brought an action in the Supreme Court of Mauritius against the Consular JUDGE.  He pleaded, among other defenses, as might be expected, his privilege as a Judge.  The Supreme Court, if they had any jurisdiction over him, which he denied, could not entertain a suit against him for acts done in his judicial capacity; and this objection the Court, following well-known English decisions, upheld, but at the same time allowed both parties to amend their pleadings.  They availed themselves of this liberty; and the plaintiffs then set up the case that Mr. HAGGARD had "exceeded the jurisdiction vested in him by the Order in Council of February 4, 1869, or, in other words, acted beyond the limits of his authority, and actually abused such authority," in refusing to summon MAIRS as a witness and to allow PELICIER FRERES to prove their case as to the receipt.

The pleadings being thus altered, the Supreme Court heard the case on the merits, and, in the end, gave judgment against Mr. HAGGARD for 200 rupees, with costs, on the ground chiefly that his decision "to reject a plaintiff without hearing evidence or argument was the assumption of a power to decide a case without hearing it, which power the defendant did not possess."  This, the Judicial Committee now say, was wrong; the Supreme Court mistook and unwarrantably contracted the privileges of a Judge.

It has long been settled, after many attempts to make out the contrary, that a Judge is protected from an action even if he commits in Court the gravest mistake.  The rule is not so under all systems of jurisprudence; the matter was perhaps once doubtful in English law; and when the point was conclusively settled, it was often cited by BENTHAM and other opponents of Judge=-made law as a signal proof of the danger of allowing any one class to legislate.  The rule is now firmly established by a group of decisions familiar to every English lawyer; and it may be remarked that Judges would have an unreasonably bad lot if it were otherwise.  Many unsuccessful suitors only refrain from questioning the integrity of the Judge who decides against them because they are so certain of his incapacity.  Such malcontents would, under a contrary law, invariably bring an action against him in circumstances in which they now appeal.  The Supreme Court of the Mauritius did not give full effect to this immunity; they ignored it bin substance not the less because in one part of their judgment they said in terms that it was present to them.  Mr. HAGGARD did what probably he is now sorry for - though his conduct is by no means so reprehensible as the hot and hasty forms of justice, to judge from some appeals to the Judicial Committee, occasionally dealt out in colonial Courts.  But he did what was complained of in open court, and in the presence of both parties in the matter over which he had jurisdiction; the inadequacy of his reasons for dismissing the suit did not affect that jurisdiction; and the Privy Council seems to have had little hesitation in setting aside a judgment which, if sound, would have taken away a Judge's privilege just when it was most needed - that is, when he had made a really serious mistake.

Only a short time ago, in the action "POLLARD v. HARRIGAN" - an action against the stipendiary magistrate of Port of Spain for assault, battery, and false imprisonment - the Judicial Committee of the Privy Council saw fit to set aside a judgment of the Supreme Court of Trinidad and Tobago.  That Court had affirmed a decision as to which the Judicial Committee came to the conclusion that judicial discretion had been "improperly exercised so as to constitute a substantial denial of justice," that certain rules as to notice of trial, &c., had been "entirely disregarded," and that some of the proceedings were "very irregular."  We do not suggest that the decision in "POLLARD v. HARRIGAN" and the hasty action of Mr. HAGGARD are fair samples of the mode in which justice is administered in colonial Courts; the truth is that the instances in which a substantial miscarriage of justice is made out before the Privy Council are rare.

But in tropical climates, when sea breezes cease to blow, the best of tempers may give way in a stifling court-house.  Society in some very large colonies is really very small, and Mr. Justice So-and-So may have heard at the whist-table or in the billiard room unwittingly a good deal about the merits of the case, and still more about the character of the parties, before he tried it; and we can well understand the value attached by our colonial fellow-subjects to a review of the decisions of local Courts in the cool atmosphere of the Privy Council.

LORD WATSON remarked that the remedy, if any, of PELICIER FRERES did not lie in an action against the Judge, but in a representation to higher authorities.  Without in any way taking it for granted that Mr. HAGGARD could not explain his conduct satisfactorily - indeed with no particular reference to his case - it is worth while referring to the importance of observing in the Consular Courts a high standard.  Their existence is in most cases a little hard to justify.  They are submitted to under treaties for the most part obtained under pressure; and we hear much of projects for their reform even when their abolition is not demanded.  The excuse for them is that Europeans cannot be expected to submit to the harsh, arbitrary method in which Orientals decide legal questions.  These Courts, as we now know them, first grew up in countries in which Western Christian nations came into contact with the Ottoman Government.  They have been extended to other lands in which there is a similar conflict of laws and manners, and in which a higher degree of justice is made to supersede a lower.  But all excuse for the existence of the anomalous and foreign tribunals is gone when they cease to be guided by European rules; act harshly and hastily, and administer only a very weak dilution of English law.  The comparison one day to be made between the spread of Roman and English law will redound much more to our advantage if our Consular Judges seek to administer that jus gentium which is little more than fair play and good sense.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School