David v. Abdul Coder
[In the Pbivy Council]
Present: Viscount Radclifle, Lord Evershed, Lord ISorris of Borth-y–——Gest, Lord Devlin, and Sir Kenneth Gresson
K. DAVID, Appellant, and M. A. M. M. ABDUL CADER, RespondentPnrvY Council Appeal No. 43 oe 19628. 0. 234 of I960—.D. C. Pvitalam, 6327
Urban Council—Chairman—Malicious refusal by him to issue statutory licence toproprietor of a cinema—Liability to be sued in his personal capacity—Delict—Malicious misuse of statutory power by a public authority—Actionability—Public Performances Ordinance (Cap.y 134)—Urban Councils Ordinance(Cap. 255).
Under the Urban Councils Ordinance the Chairman is himself the localauthority in connection with the granting of licences for cinema performances.The granting or withholding of suob licences is his personal responsibility, andbis acts are not those of the Council which is a corporation, nor is he a corporationfor the purpose of these duties. It follows that, if the law does recognise aright of action against him in any circumstances arising out of a breach of thoseduties, whether or not a breach accompanied by bad faith or malice, the onlyway in which be can be sued is as an individual person, and there is no relevantdistinction in his status as a party between his official capacity and bis personalcapacity.
An applicant for a statutory licence is entitled to damages if there has beena malicious misuse of the statutory power to grant the licence.
Accordingly, an action claiming damages for a delict is available against theChairman of an Urban Council in his personal capacity if be maliciously refuses,as a public authority, to exercise his statutory power to issue to the proprietorof a cinema a licence under the Rules made under the Public PerformancesOrdinance. In such a case it cannot be contended that the only remedy of theproprietor of the cinema is to apply for a mandamus to have his applicationfor a licence properly beard and determined.
PEAL from a judgment of the Supreme Court dated 24th March,
The plaintiff, who was the proprietor of a cinema, had applied to thedefendant, who was the Chairman of the Urban Council of Puttalam,for a licence for his cinema under the Rules made under the PublicPerformances Ordinance. He instituted the present action against thedefendant, as aD individual person, to recover damages on the groundthat the defendant had wrongfully and maliciously refused and neglectedto issue the required licence.
The action was dismissed by the District Court on the preliminaryissue that the defendant could not be sued " in his private capacity forsomething he has done in his capacity as the Chief Executive officer ofthe Urban Council ”, On appeal to the Supreme Court the action was
VTSCOUNT RADCLIFFE—David *. Abdul Coder
dismissed on a different preliminary issue, namely, that no right of theplaintiff could be said to have been infringed and that his proper and onlyremedy was to apply for the issue of the prerogative writ of mandamusto ensure that his application was duly heard and determined. Theplaintiff then preferred the present appeal to the Privy Council.
E. F. N. Oratiaen, Q.C.y with Dick Taveme, for the plaintiff-appellant.
No appearance for the defendant-respondent.
Cur. adv. indt.
July 2, 1963. [Delivered by Viscount Radoltffe]—
This is an appeal from a judgment of the Supreme Court of Ceylon dated24th March, 1961, which rejected an appeal of the appellant against ajudgment of the District Court of Puttalam dated 17th March, 1960. Bythat judgment the District Court had dismissed an action instituted byhim against the respondent claiming damages for an alleged delict.
The decision in favour of the respondent was given on the basis of twoissues which, by agreement of counsel at the trial, were determined aspreliminary issues before the full hearing of the case. The learned Judgein the District Court answered both issues against the appellant, and theSupreme Court upheld his decision, though on quite a different point. Therespondent has not been represented before the Board. For the reasonswhich will appear later they have come to the opinion that the action isnot one which can properly be disposed of on preliminary points of law inadvance of evidence, and they will advise Her Majesty accordingly. Sincetherefore the action must go back to the District Court for trial, it isdesirable that only the minimum necessary to deal with the matter shouldbe said at this stage.
The issues between the appellant and the respondent are set out in then-respective pleadings. By his plaint the appellant sets out (paragraph. 2)that he was at all material times the proprietor of a cinema at Puttalam ;that (paragraph 3) the respondent was at all material times the Chairmanof the Urban Council of Puttalam and as such the local authority res-ponsible for the issue of licences under the Rules made under the PublicPerformances Ordinance (Cap. 134), that (paragraph 4) the appellant dulyapplied to the respondent for a licenoe for his cinema under the Rules ;that (paragraph 5) the cinema was in all respects a fit and proper buildingsuitable for public performances, and the appellant had paid the necessaryfee for the licence and had fulfilled all necessary and/or reasonable con-ditions entitling him to the issue of a licence ; that (paragraph 6) therespondent had nevertheless wrongfully and maliciously refused andneglected to issue the required licence. The appellant concluded byclaiming Rs. 35,000 as damages and a further sum for continuing damage
VISCOUNT RAJDCLIFFE—David, v. Abdul Coder
The respondent’s answer contained the specific plea in limine that theplaint disclosed no cause of action against him. Subject and withoutprejudice to that plea, he admitted that he was at all material times theChairman of the Puttalam Urban Council and that the Chairman, ex~~vjficio, as the executive officer of the Council was the local authority towhom application had to be made for the issue of the licence. Apart fromthis admission, the answer in effect denied the rest of the averments of theplaint and stated (paragraph 7) that a licence was issued to the appellantbut that he refused to accept it by reason of conditions that were lawfullyand properly inserted therein.
When the action was opened in the District Court the appellant’s counselproposed the following issues :—
Is and was the plaintiff at all material times the proprietor ofthe cinema (the Gardiner Theatre, Puttalam) ?
Did the plaintiff by two letters referred to in his plaint dulyapply for a public performance licence for his cinema ?
Did the defendant wrongfully and maliciously refuse and neglectto issue the licence ?
If issues 1, 2 and 3 are answered in the affirmative, whatdamages is the plaintiff entitled to ?
The respondent’s counsel then proposed to add two further issues :—
Does the plaint disclose a cause of action against the defendant?
If not, can the plaintiff maintain this action ?
He further moved that these two issues should be argued first as theyaffected the entire action. The appellant’s advocate made no objection tothis and the District Judge proceeded to hear arguments on them aloneand to give judgment on them as preliminary issues.
The effect of his judgment, which was delivered on the 17th March, 1960,was to reject the respondent’s argument that the local authority had anabsolute discretion to grant or withhold licences and its decision could notbe challenged in a Court of law, but to uphold an argument that, as therespondent was acting as Chairman of the Urban Council in the matter ofthe licence, he could not be sued “ in his private capacity for something hehas done in his capacity as the Chief Executive Officer of the UrbanCouncil, Puttalam
The respondent was named in the plaint as “ M. A.M.M. Abdul Cader,
‘ Haniffa Villa ’, Puttalam ”, Haniffa Villa being presumably his privateresidence. The Judge held that as the plaint did not disclose a cause ofaction against him in his private capacity, he must answer No to bothissues 5 and 6, and dismiss the action -with costs.
The judgment of the Supreme Court (De Silva and Tambiah JJ.) pro-ceeded on different lines. It did not express any view as to the validityof the point that had succeeded with the trial Judge, but accepted the pro-position that a plaintiff could not maintain any right of action for damagesin respect of a refusal or failure to grant a licence of the kind involved inthis case, even though the licensing authority had acted maliciously in
VISCOUNT BADCL-IFFE—David v. Abdul Coder
withholding the licence. In the opinion of the Court no right of theplaintiff could be said to have been infringed in such circumstances and hisproper and only remedy was to apply far the issue of the prerogative writof mandamus to ensure that his application was duly heard and determined.The Court's decision was expressly based upon the English authority,Davis v. Mayor, etc, of the Borough of Bromley l, a case the facts of whichwere very similar to those pleaded in the present proceedings.
Before their Lordships the appellant challenged both judgments deli-vered in Ceylon as unsupportable in law. It is convenient to say at oncethat in their opinion the point upon which the District Judge dismissedthe action is misconceived. Under the Urban Councils Ordinance (C.255)the Chairman is himself, as the pleadings have recognised, the local autho-rity in connection with the granting of licences for cinema performances.The granting or withholding of such licences is his personal responsibility,and his acts are not those of the Council, which is a corporation, nor is he acorporation for the purpose of these duties. It follows that, if the lawdoes recognise aright of action against him in any circumstances arising outof a breach of those duties, whether or not a breach accompanied by badfaith or malice, the only way in which he can be sued is as an individualperson, and there is no relevant distinction in his status as a party betweenhis official capacity and his personal capacity. In their Lordships’opinion the appellant’s action cannot be treated as defective on such aground.
The argument accepted by the Supreme Court raises a different issue.The judgment adopts the view that for au action in delict to succeed andafford a right to damages there must have been an infringement of anantecedent legal right of the person injured. The appellant, it appeared tothe Court, had no such right, since under the governing statute he was notentitled to exhibit cinematographs in his building without the licenceof the local authority, and it had been left to the discretion of the Chairmanof the local Council to decide whether to grant or to withhold the necessarylicence.
If they were to regard this as a proposition equally valid for the Englishlaw of tort as for the Roman-Dutch law of delict (and the Supreme Courtjudgment relies exclusively on the authority of decisions in the EnglishCourts) their Lordships would have great difficulty in upholding it in sogeneral a form. It does not appear to them that a right to damages isexcluded by the mere circumstance that the appellant could not lawfullyoperate his cinema without a licence. Plainly the law forbade his doing so.But the question to be determined is not what rights he had without alicence but rather what rights were created between these two parties bythe relationship under which one wished to operate a cinema and hadapplied for a licence to do so and the other had the statutory responsibilityfor deciding how to deal with that application. Whatever the limits of therange of the latter’B discretion in carrying out that responsibility, aseparate question whioh would need careful consideration if the action
* 11608] 1 EUB. 170,
VISCOUNT RAJDCLIFFE—David v. Abdul Coder
came to be tried, the appellant has at any rate pleaded that he had doneeverything required to qualify him for the grant of a licence and that hewas entitled to have one issued. Given that relationship and theassumption of that state of facts, it seems to their Lordships impossibleTkTsay that the respondent did not owe some duty to the appellant withregard to the execution of his statutory power ; and if, as pleaded, he hadbeen malicious in refusing or neglecting to grant the licence, it is equallyimpossible to say without investigation of the facts that there cannot havebeen a breach of duty giving rise to a claim for damages.
The Supreme Court’s opinion was based on the decision of the EnglishCourt of Appeal in Davis v. Bromley supra, a decision which they presum-ably regarded as satisfactorily illustrative of the principles of the Roman-Dutch law of delict. The facts indeed of the Davis case were closelysimilar to those pleaded here. There too a licence or statutory approvalhad been sought from and refused by a local authority, and the applicantissued a writ alleging that the authority hadnot acted bonafidein rejectinghis plans but from motives of spite and claiming a declaration that he wasentitled to carry out his proposed works and damages for the refusal.The judgment of the Court, which is shortly expressed, is to the effectthat no action would lie in these circumstances ; that the possible indirectmotives attributed to the defendants could not render the exercise of theirstatutory discretion the more susceptible to judicial review than it wouldbe otherwise ; and that the plaintiff’s only remedy, if the defendants badreally made no true or bona fide exercise of their authority, was to applyfor a mandamus to have his application properly heard and determined.
Davis’s case was decided in the year 1907. Since then the EnglishCourts have had to give much consideration to the general question of therights of the individual dependent upon the exercise of statutory powersby a public authority, and the decision of that case would now have to beseen in. the context of a very great number of later decisions that have dealtwith the question at more length and with more elaboration. In theirLordships’ opinion it would not be correct to-day to treat it as establishingany wide general principle in this field : certainly it would not be correctto treat it as sufficient to found the proposition, as asserted here, that anapplicant for a statutory licence can in no circumstances have a right todamages if there has been a malicious misuse of the statutory power togrant the licence. Much must turn in such cases on what may prove tobe the facts of the alleged misuse and in what the malice is found to consist.The presence of spite or ill-will may be insufficient in itself to render action-able a decision which has been based on unexceptionable grounds of consi-deration and has not been vitiated by the badness of the motive. But a“ malicious ” misuse of authority, such as is pleaded by the appellant inhis plaint, may cover a set of circumstances which go beyond the mere pre-sence of ill-will, and in their Lordships’ view it is only after the facts ofmalice relied npon by a plaintiff have been properly ascertained that it ispossible to say in a case of this sort whether or not there has been anyactionable breach of duty.
VISCOUNT RANCLEFlf®—David v. Abdul Coder
These reasons have forced their Lordships to conclude that this action isnot appropriately disposed of by argument upon the two preliminaryissues by which it has so far been judged. The position, as they eee it, isthis. It has been dismissed in the District Court upon a ground which isnot maintainable in law. It has been dismissed in the Supreme Court inreliance upon a general principle derived from certain English authoritieswhich their Lordships regard as too widely stated to afford a satisfactoryconclusion of the pleadings as they stand. The issue remains what it hasbeen from the beginning, a question of liability dependent directly uponthe Roman-Dutch law of delict and only indirectly and by way of analogyand illustration upon the English law of torts. Such consultation as theirLordships have thought it wise to make of the institutional writers onRoman-Dutch Law, Voet, Lee and Wille, has not led them to think that theconceptions of that law would regard as necessarily inadmissible a right ofcompensation to a plaintiff for a malicious invasion of his statutory*' rights ” to have his claim to a licence subjected to bona fide deter-mination by a public authority. In view of the order that they propose toadvise and the fact that this aspect of the parties’ rights and liabilitiesunder the Roman-Dutch law has not been accorded any express treatmentin the judgments of the Courts in Ceylon, their Lordships think that itwould be inappropriate for them to say anything more about the merits inlaw of this appeal than that they could not dismiss it with any confidencethat the appellant’s case, as pleaded, has as yet received the fullconsideration that is required for a final determination of the case.
In their opinion, for the reasons stated above, this action is not one thatcan justly be disposed of on preliminary issues argued in advance of thehearing of evidence. Useful as the argument of preliminary issues can bewhen their determination can safely be foreseen as conclusive of the wholeaction in which they rise, experience shows that very great care is neededin the selection of the proper occasion for allowing such procedure. Other-wise the hoped-for shortening of proceedings and saving of costs may provein the end to have only the contrary effect to that which is intended. This,unfortunately, is one of suob cases.
Their Lordships will humbly advise Her Majesty that the appeal beallowed and the Order of the District Court dated 17th March, 1960, andthe Order of the Supreme Court dated 24th March, 1961, be reversed. Inlieu thereof they advise that the action should be remitted to the DistrictCourt with a direction that it should proceed to trial and that the sixissues raised by the parties should be answered by the Judge at the con-clusion of the hearing. Since the appellant agreed to the procedure oftreating issues 5 and 6 as preliminary pointa and made no objection to iton the appeal to the Supreme Court he should pay the respondent’s costsof the hearings in both those Courts in any event.
Their Lordships make nc order as to the costs of the appeal to the Board.
A. K. DAVID, Appellant, and M. A. M. M. ABDUL CADER, Respondent