7 2 C. L. H 330.
226POYSER J.—Samynathan v. Whitehom.
M. T. de S, Amarasekere (with him T. S. Fernando), for applicant.—There is a difference between rubber coupons and tea coupons in that thelatter are by statute (section 26 (4) of Ordinance No. 11 of 1933), expresselymade saleable without the production of tea. Therefore it is not neces-sarily the person in possession who can make use of the tea coupons.
The Ordinance contemplates the giving of coupons only to the proprietor.The definition of “proprietor" in the Ordinance is extended only toinclude those in possession through the owner. In this case the registeredproprietor who claims to(be in possession has not a vestige of rightful title.However difficult it may be, there should be an adjudication on thequestion of title. Otherwise there is no discretion exercised by theController. Here our documentary title was not even looked at. Suchrefusal to investigate raises a matter of law, and a writ of mandamusshould issue ordering the Controller to make such investigation. See^R. v. Justices of Kesteven1. We have a right to expect the Controller toinvestigate.
The dictum of Avory J. in R. v. Registrar of Companies (supra) has beenfollowed in In re S. E. Fernando (supra), which is later in date thanR. v. Port of London Authority (supra).
The grounds of refusal to register our name have not been stated bythe Controller, in spite of several requests. Therefore it is impossiblefor us to shape our appeal. In such a case a mandamus ought to begranted (R. v. Thomas *).
That we have also appealed should be no bar to a mandamus—see R. v.Howard.*
Mandamus is a more complete remedy than appeal. A mandamus liesto compel officers to take the facts of a case into consideration, and toexercise a discretion in the matter—see R. v. Stepney Corporation. *Counsel also cited R. v. Dodson.*
De Silva, K.C., in reply.
February 15, 1934. Poyser J.—
This is an application for a writ of mandamus on the Tea ExportController directing him to inquire into the title of the applicant to thetea estate known as Panewanne estate and thereafter to register theapplicant’s name as the lawful owner and proprietor of the said estate.
In July, 1933, the applicant, through his proctor, informed the TeaController that he would forward his application for tea coupons in respectof Panewanne estate and also asked that he might be informed if anyother person applied for coupons in respect of this .estate in order that hemight show caiuse against any such application. On September 11, theTea Controller informed the applicant’s proctor that, as Mr. P. K. Rat-**ranhamy was in possession of this estate, he had decided to issue couponsto him. He also informed the applicant of his right of appeal undersection 12 (4) of Ordinance No. 11 of 1933.
» (1844) 3 Q. B. 810.a n: L. J. K. B. 754.
2 (1692) 1 Q. B. 426.* (1902) 1 K. B. 317.
*7 E. SB. 319.
POYSEB J.—Samynathan v. Whitehom.
On September 22 the. applicant forwarded to the Tea Controllerthe estate returns required, by section 9 (1) of the Ordinance, and onSeptember 28 the applicant’s agents were informed that the issue of teacoupons had been suspended and were asked to produce the applicant’s -documents of title.
On November 14 the Tea Controller had an interview with the applicantand informed him that he would not inquire into or receive any evidenceof title, but was only concerned with possession and was referring theapplication to Mr. Luddington, the Government Agent at Ratnapura.
On November 20 the applicant appeared before Mr. Luddington andthe latter also informed the applicant that he. would not go into thequestion of title, but. would confine himself only as to possession on orabout the material date.
On December 2 the Tea Controller informed the applicant by letterthat he had decided under section 12 (2) of the Ordinance that theapplicant was not entitled to be registered as the proprietor of the estatein question, and also informed the applicant of his right of appeal to theBoard of Appeal if he was dissatisfied with the decision.
On December 5 the applicant asked the Tea Controller if he ^jyouldinform him whether his decision was based on possession alone indepen-dent of title and whether this would be the same principle the Board ofAppeal would act upon.
The Tea Controller replied on December 7 that discussion of the matterwould have to await the argument of the appeal and that he would notoffer any surmise of what view the Board of Appeal might take.
It was contended on behalf of the Tea Controller that (1) in decidingthe question whether a person was entitled to be registered as the pro-prietor of an estate he was justified in concentrating on the question ofpossession, (2) even if the view he took was erroneous he was actingquasi-j udicially and therefore the writ of mandamus will not lie, (3) thatthe Ordinance provides a definite remedy for any person dissatisfied withthe decision of the Tea Controller and for that reason alone the writ willnot lie.
In determining whether or not the writ of mandamus lies, the Courtmust be guided by English decisions. See the judgment of Wood Renton
C.J. in An application for a Writ of Mandamus on the Chairman of theMunicipal Council'.
In that judgment the following passage occurs at page 102:—
“ If the Legislature has invested the Chairman of the Municipal Councilwith jurisdiction of this character, that jurisdiction cannot bereviewed by the Supreme Court by mandamus, unless therehas been an actual or a practical refusal to exercise it. Thelong series of authorities, ranging from Reg. v. Harwich (Mayorofy to Rex v. Board of Education*, place that proposition beyondthe reach of controversy. In no case that I am aware of has itbeen held that an erroneous view of the law adopted by a
■ 18 N. L. R. 97.
(1910) 2 K. B. 165.
(1853) 1 B. 1 B. 617.
228POYSER J.—Samynathan v. WHitehom.
judicial tribunal having jurisdiction to deal with the matter towhich that law relates is a good ground for a mandamus, unlessthe view so taken has led to a practical refusal to exercisejurisdiction at all.”
In regard to the nature of the duties enforceable by Mandamus thefollowing principles are stated in Short on Mandamus and Prohibition atpage 256 : —
“ In compelling the performance of a public duty by an inferior officeor tribunal the Court will consider carefully whether the duty isof a judicial or of a merely ministerial character.
“ If the duty be of a judicial character a mandamus will be grantedonly where there is a refusal to perform it in any way: notwhere it is done in one way rather than another, erroneouslyinstead of properly. In other words, the Court will only insistthat the person who is the judge shall act as such; but it willnot dictate in any way what his judgment should be.
“ If however the public act to be performed is of a purely ministerialkind, the Court will by mandamus compel the specific act to bedone in the manner which to it seems lawful
At page 263 this passage occurs : —
“ The decision however erroneous of the proper office or tribunal on amatter within his or its jurisdiction cannot be called in questionby mandamus.”
The above principles would appear to some extent to be modified bythe judgment of Avory J. in The King v. The Registrar of Companies
The material part of that judgment is as follows : —
“In order to displace the decision of the registrarand justify this Court in interfering by mandamus it would benecessary for the applicants to show one or more of three things :either .that the registrar had not in fact exercised any discretionin the particular case, or that he had exercised it upon somewrong principle of law, or that he had been influenced byextraneous considerations which he ought not to have takeninto account. I think that one of these three things at leastmiist be made out to justify this Court in interfering bymandamus ….”
This judgment however does not appear to have been followed in alater case, viz., The King v. Port of London Authority, Ex Parte Kynoch,Limited. *
In that case Scrutton L.J. at page 186, in the course of his judgment,stated:—
“ As the grounds on which a mandamus will be granted are difficult tostate accurately, I prefer to adopt the words of Wills J. inRepina v. Cotham.* ■ I take the governing principle to be that ifthe justices have applied themselves to the consideration of a'section of an Act of Parliament, and have, no matter how* {1912) 3 K. B. 23.2 (1919) l K. B. 176.
a (1898) 1 $. B. 802, 806.
POYSER J.—Samynathan v. Whitehom.229
erroneously, determined the question which arises upon it beforethem, their decision cannot be reviewed by process of mandamus.That is so whether there is an appeal from their decision or not.If there is an appeal, mandamus will not lie.’ ”
In view of this case the dictum of Avory J. (supra) to the effect that theexercise of jurisdiction upon some wrong principle of law would justifythe issue of a writ of mandamus would not appear to be a correct state-ment of the law now, and the principles enunciated by Shortt (supra)appear still to be the correct principles to guide this Court.
The case most in point in regard to the present application is Applica-tion of S. E. Fernando for a Mandamus on the Rubber Controller,l Thatwas an application for a mandamus on the Rubber Controller directinghim to restore the names of two lands to the register of rubber estates andto issue to the applicant monthly certificates of production.
The definition of proprietor in the Rubber Control Ordinance, No. 24of 1922, and Ordinance No. 11 of 1933 is practically identical.
In that application Jayewardene A.J. stated:—
“ The applicant admits that S. C. Fernando is in possession of the lands,but he says that the latter took forcible possession of them,and that he is prosecuting him before the Police Court ofKalutara. However that may be, the Controller has actedrightly in issuing the certificates to the man in possession.He alone can make any use of them. The question who has thebetter right to the possession of the land is in dispute betweenS. E. Fernando and S. C. Fernando, and that dispute should besettled by a regular action.”
I entirely agree with the above judgment and, the facts in this casebeing very similar, I think the Tea Controller was correct in registeringthe person in possession of Panewanne estate as the proprietor. Theobject of the Tea Control Ordinance_ is to control the export of tea.The person in possession of the estate has the physical possession ofthe tea and he alone can make any use of the coupons issued in respectof such tea.
It was contended on behalf of the applicant that he had not been givena proper hearing and that the Tea Controller had made no proper investi-gations. In support of that contention the case of The King v. TheMayor, Aldermen, and Councillors of Stepney* was cited. That case wasreferred to by Bankes L.J. at page 186 in Rex v. Port of London Authority,Ex Parte Kynoch, Limited (supra), in the following words:—“ A case sodissimilar from this that the decision is of no practical help. There anappeal lay to the Treasury from a Public Authority who instead ofdeciding the case on their own view conceived themselves bound by somerule of the Treasury with which they might or might not have agreed.In these circumstances the Court might well think an appeal to theTreasury from its own decision was not so convenient or beneficial as anappeal from the decision of another tribunal especially where the question
was of the amount due to a particular officer
* 26 N. L. n. 211.
»(1962) i x. a. air
POYSEE J.—Samynathan v. Whitehom.
I do not think this authority supports the applicant's contentionfor in this case it cannot be said that the Tea Controller made noinvestigations or that he did not decide the case on his own view. Thefacts, as previously set out, show that he not only investigated the casebut came to a decision without being influenced by an extraneous. consideration.
It was further contended on behalf of the applicant that the TeaController should have given reasons for his decision, that the grounds forthe decision are not known and therefore it is impossible for the caseto be presented to the Board of Appeal. In support of this contentionthe case of The Queen v. Thomas and Others', was cited.
I do not however agree that the Tea Controller gave no reason for hisdecision or that the grounds for such decision are not known. Theapplicant was informed on September 11 and November 14 and 20, 1933,that the Tea Controller would not go into questions of title but was only,as regards the issue of the coupons, concerned with possession. It is truethat on December 2 and 7 the Tea Controller did not state the groundsfor his decision, but in view of the previous correspondence and interviewsthere can be no doubt that the applicant was aware of the reasons for theTea Controller's decision. Further, as regards the contention that it isimpossible for the case to be presented to the Appeal Board, an appeal infact has been lodged and is listed for hearing. (Vide paragraphs 4-5 ofthe Tea Controller’s affidavit.)
Having considered the authorities previously referred to, I think therespondent must succeed on the first two points.
I consider the Tea Controller was correct in registering as the proprietorof a tea estate the person in possession. It is difficult to see what othercourse he could adopt for, assuming him to be competent to decide thequestion of title to an estate, which might very possibly be an extremelydifficult question, such a decision in the present case, if it was in theapplicant’s favour, would be ineffective and would only have the effectof issuing tea coupons to a person who could at present make no useof them.
However, even if the Tea Controller’s decision was erroneous, I donot consider, having regard to the judgment of Scrutton L.J. (supra)and the other authorities cited, that this Court could interfere with hisdecision.
• As I consider the respondent is entitled to succeed on the first twopoints taken on his behalf, it is unnecessary to consider in detail the thirdpoint raised, viz., that as the Ordinance provides a definite remedy foranyone dissatisfied with the decision of the Tea Controller, the writwill not lie. I would only express my opinion, having regard to theauthorities, that the respondent succeeds on this point also.
The application is dismissed with costs.
Application refused.
a (1892) Law Rep. 1 Q. B. 42(i.