-SHUMS v. PEOPLE ‘S BANK AND OTHERS

022-SLLR-SLLR-1985-V1-SHUMS-v.-PEOPLE-‘S-BANK-AND-OTHERS.pdf


SHUMS
v.PEOPLE'S BANK AND OTHERS
COURT OF APPEAL.
H. A. G. DE SILVA. J. AND T. 0. G. OE ALWIS, J.
C. A. APPLICATION 1968/79.
SEPTEMBER 28 AND NOVEMBER 26.1984.
Writ of Certiorari-Determination to acquire and vesting order under Finance Act No. 11of 1963 (s 71 )-Preliminary objections of delay and invalidity of suit against official (nota juristic person) by official designation and not by name.
To an application for a writ of certiorari to quash the determination and vesting ordermade under the Finance Act No. 11 of 1963 (for the purposes of redemption of landsold on a mortgage decree) two preliminary objections were taken :
This application was made on 15th November 1979 whereas the determinationhad been made on 18.1.1977.
The Minister of Finance who is not a juristic person had been made a party byofficial designation and not by name.
The determination made on 18.1.1977 was communicated to the petitioner onlyon 2.8.1979. The vesting order was made on 11.7.1979. There has been undue delayby the 1st respondent in communicating Ns determination and in making the vestingorder. In all the circumstances the objection of delay by the petitioner cannot succeed.
In an application such as this in which writs of certiorari have been prayed for, theMinister of Finance could be cited as a respondent nomine officii. In an application forcertiorari (unlike mandamus) it is the decision or order of a functionary or tribunal that issought to be quashed. The functionary or tribunal is not ordered to do anything orrefrain from doing anything.
Cases referred to:
President of Malalgodapitiya Co-operative Society et al v. Arbitrator ofCo-operative Societies. GaHe et al(1949) NLR 167.
Dissanayakev. Femando(1968) 71 NLR 366.
Gunasekera v. Weerakoon (1970) 73 NLR262.
Ratnayake v. Jayasinghe (1976) 78 NLR 36.
The Land Commissioner v. Ladamuttu PHtai (1960) 62 NLR 169.
Leo v. Land Commissioner (1965) 67 NLR 178.
David v. Abdul Cader (1963) 65 NLR 253.
A. C. M. Hanffa v. Chairman, Urban Council, Nawalapitrya (1963) 66 NLR 48.,.19) Rex v. Electricity Commissioners [1924] 1KB 171.
(10) Rex v. Income Tax Commissioner 21 QBD 313.
(.11) White and Collins v. Minister of Health [1939] 3AH £R 548.
Errington v. Minister of Health [1953] IK8 249.
Franklin v. Minister of Town end Country Planning [1948] AC 87.
Singho Mahatmaya v. The Land Commission (1964) 66 NLR 94.
P. M. Walter Leo v. The Land Commissioner (1959) 57 NLR 178.
APPLICATION for Writs of Certiorari.
Nimal Senanayake, P. C. with Miss S. M. Senaratne for petitioner.
Dr. J. A. L Cooraywith M. 8. Peramunafor 1st respondent.
S. Pryasena, Sjare Counsellor 2nd respondent.
Cur. adv. vult.
March8, 1985.
H. A. G. DE SILVA, J.
This is an application for orders in the nature of writs of certiorari toquash (1) the determination made by the 1st respondent to acquirepremises No. 353, Galle Road, Katukurunda, Kalutara South under theprovisions of section 71 (4) of the Finance Act No. 11 of 1963, and
the Vesting Order No. 42 made by the 2nd respondent in respectof the said premises and published in Government GazetteExtraordinary No. 44/11 of 11th November 1979.
In this application which was filed on 13th November 1979, thepetitioner averred that the said premises had been purchased by h,erfather at a Court's sale, held in execution of a Mortgage Decreeentered in D. C. Kalutara case No. 30585 and obtained a Fiscal'sConveyance in 1957 ; the petitioner became the owner of the saidpremises under a Deed of Gift No. 105 of 21 st May 1968 ; the 3rd,4th and 5th respondents had made an application under section71 (1) of the said Finance Act to the 1 st respondent for redemption ofthe said premises ; inquiry into that application was held on 12thNovember 1975, 27th February 1976 and thereafter adjourned for7th July' 1976 ; on 7th July 1976 neither the petitioner nor hercounsel were present and she had sent' by registered post a medicalcertificate on 6th July 1976 (vide 'B') ; in the petitioner's absence the
inquiry had been held ex parte, a fact which the petitioner wasunaware of, nor had she been informed that her application for apostponement had been refused.•
The petitioner goes on to aver that she received from the Manager,Land Redemption Department of the 1 st respondent with reference tothe letter sent by the petitioner on 2nd July 1976, letter dated 14thOctober 1976 ('C') that if the petitioner objects to the redemption ofthe said property under the provisions of the Finance Act, thepetitioner should submit her reasons in writing to reach the saidManager on or before 15th November 1976 ; her attention wasinvited to the earlier letter ('C') by ('D') of 8th November 1976 ; on12th November 1976, the petitioner had submitted her objections tothe proposed redemption in letter {'E') and no further.communicationhad been received by her till she received a notice dated 18.1.79 ('I')of acquisition under section 71(4) of the said Act that the 1strespondent had determined that the said premises shall be acquired interms of the provisions of Part VIII of the said Act; thereafter thepetitioner received a notice (*J*) dated 2nd August 1979 from theManager of the 1 st respondent's Land Redemption Department, thatin terms of section 71 (4) of the said Act, the 2nd respondent hadvested the said premises in the 1 st respondent from 3rd July 1979 asset out in Gazette ('K') of 11th July 1979 ; on 2nd October 1979, thepetitioner received a notice from the authorized officer of the 1strespondent that the premises will be taken over by the 1 st respondenton 22nd November 1979 ('L‘). ■
The 1st respondent in his statement of objections avers that themedical certificate sent oh 6th July'1976 was received by the 1strespondent at, 1.30 p.m. on 7th July 1976 after the termination of theinquiry and hence for that reason the application for a postponementof the inquiry was refused ; the objections of the petitioner to theproposed acquisition of the said property were duly considered by the1 st respondent before the determination was made to acquire the saidproperty ; the determination marked (T) was made on 18th January1977, by the 1 st respondent after duly considering the memorandumof the Manager of its Land Redemption Department.
The 1 st respondent further averred that the petitioner came intooccupation of the premises after she was noticed by the 1strespondent to appear at the inquiry to be held on 12.11.75 withregard to the proposed acquisition.
* •
The 3rd. 4th and 5th respondents have filed their statement of
objections, but a consideration of their statement is not necessary for, the matters that come for decision at this stage.
Learned Counsel for the respondents have taken up certainpreliminary objections, the first of which is that this court will notexercise its discretion to grant the relief prayed for as there has been adelay in seeking such relief.
Learned Counsel for the respondents advert to the fact thataccording to the 1st respondent's statement of objections thedetermination under action 71 (3) of the Finance Act No. 11 of 1963has been made on the 18th January 1977 while this application hasbeen filed in this court only on 15th November 1979. i.e. after thelapse of a period of 2 years and 10 months. It is a well-known principlethat a writ of Certiorari which is a discretionary remedy will not begranted where there has been undue delay in applying for the writ. InPresident of Malalgodapitiya Co-operative Society et at v. Arbitrator ofCo-operative Societies, Galle eta! {1) a period of nine months was heldto constitute undue delay which prevented the petitioners fromobtaining relief by way. of a writ of certiorari. In Dissanayake v.Fernando (2). it was held that 'where there has been a delay in seekingrelief by*way of certiorari, it is essential that the reasons for the delayshould be set out in the papers filed in the Supreme Court'. In thisinstance the delay was a period of one year and 3 months.Gunesekerb v. Weerakoon (3) held that a delay of 7 months inapplying for a writ of certiorari and mandamus was undue delay whichdisentitled the petitioner to the reliefs sought while in Ratnayake v.Jayasinghe (4). it was held that 'the delay of one year and 3 monthswhich had not been satisfactorily explained by the petitioner barred theremedy. The court has a discretion which it would exercise to refusethe application on the ground that there had been undue delay inbringing the proceedings*.
The facts of. the instant case show that an inquiry into theapplication to the 1 st respondent for redemption was held on12.11.75. 27.2.76 and 7.7.76. Thereafter on 14.10.76 and 8thNovember 1976 the objections to the redemption were called for tobe submitted cn or about 15th November 1976. It appears that thedetermination was made by the 1st respondent on 18th January1977 but was communicated to the petitioner only on 18th January
1979. The vesting order which was gazetted on 11th July 1979 wascommunicated to the petitioner on 2nd August 1979, and on 2ndOctober 1979 the petitioner was informed that possession of the.premises would be taken over by the 1st respondent on 22ndNovember, 1979.
This application is for writs of certiorari to quash both thedetermination of the 1 st respondent as well as the vesting order madeon 11th July 1979 by the 2nd respondent.
Section 71 (3) of the Finance Act No. 11! of .1973 empowers the1 st respondent to make a determination whether premises should beacquired or not for the purposes of the Act and sub-section 4 requiresthe 1st respondent, once it has so determined to notify suchdetermination to the owner of such premises. Though thedetermination in the instant case has been done as far back as 18thJanuary 1977, it has been communicated to the petitioner only twoyears later. There has been an undue delay on the part of the 1strespondent to comply with the provisions of the Act. In thesecircumstances a delay of 10 1/2 months in the petitioner applying fora writ to quash the said determination cannot be said to beunreasonable. Further even after such communication of thedetermination, it has taken a further six months for the 2ndrespondent to make the vesting order and the petitioner has come intocourt in about four months of the date of vesting. I do not think thisdelay could be said to prevent the petitioner from obtaining her reliefespecially as the vesting order too was communicated to her on 2ndAugust 1979 and it was on 2nd October 1979 that she was informedof the taking over of possession on 22nd November 1979. In thesecircumstances I hold that this preliminary objection fails and I overruleit.
The second objection taken to the hearing of this application bylearned Counsel for the 2nd respondent is that the 2nd respondenthas been cited in this application by his official designation and not byname. It was his contention that since the Minister of Finance has notbeen cited by name, a necessary party was not before court and thisbeing a fatal omission, the application should be dismissed in limine.He submitted that writs operated in personam.
The Minister of Finance was, according to learned State Counsel,not a juristic person. He was not a corporation sole and hence couldnot be cited nomine officii. In support of this proposition he relied on* the case of The Land Commissioner v. Ladamuttu Pillai. (5) where itwas inter alia held that the Land Commissioner was not a Corporationsole and that if the authority of a Land Commissioner to make adetermination under section 3 of the Land Redemption Ordinance No.61 of 1942. is challenged the appropriate procedure is by way of anapplication for certiorari.
This was an action instituted in the District Court against theAttorney General arid the Land Commissioner claiming an injunctionrestraining the defendants jointly, or in the alternative from takingsteps under the Land Redemption Ordinance to acquire the plaintiff'sland.
Lord Morris, who delivered the judgment of the Privy Council, atpage 182 states :
‘their Lordships consider that if the authority of a Land
Commissioner to make a determination under section 3 of the LandDevelopment Ordinance is challenged the appropriate procedure isby way of an application for certiorari (see Leo v. LandCommissioner (supra)). The Land Commissioner as the judicialtribunal the validity of whose action is being tested may thenconveniently be brought before the higher court so that if necessaryhis decision or order may be brought up and quashed. If in someparticular case it can be shown that a determination has not been. within the competence of a Land Commissioner and if an applicationis made which results in an order to bring up and quash hisdetermination then the difficulties which the present proceedingsbring into relief are avoided. It was Mr. Amarasinghe who was theLand Commissioner in July, 1949,‘when these proceedings beganand whose proxy was filed and on whose behalf an Answer waspresented. If a declaration were now to be made-who would bebound ? If an injunction were to be granted-who would beenjoined ? It was sought to be said that the Land Commissioner is aCorporation Sole. Their Lordships do not find support for this view inthe provisions of the Land Development Ordinance of 1935
The Land Commissioner is not expressly created a
Corporation Sole by any legislative enactment nor is it laid down thathe may sue or be sued in a corporate name. Furthermore no
legislative enactment seems to reveal any intention to
incorporate If there had been a desire to incorporate the
Land Commissioner there could have been express words of
incorporation All these considerations including the^
absence of any evidentintent to incorporate, lead Their Lordships toreject the submission that the Land Commissioner can be regardedas a Corporation Sole'.
A careful consideration of the principles set out in that case wouldshow that Their Lordships while holding that the Land Commissionerwas not a corporation sole and could not be joined as a party to that
action nomine officii have given their reasons therefor when they said-
«
"If a declaration were now to be made-who would be bound ? If aninjunction were to be granted-wfio would be enjoined ?" It, appears .that by the time that the action came to trial, the holder oi the office ofLand Commissioner was not the same person as the holder at therelevant dates. Therefore one could see the procedural difficulties thatcould arise if the relief prayed for were granted again <. a 'LandCommissioner". If the injunction was disobeyed or violated ho wouldhave been charged for contempt of Court ? It is significant that TheirLordships stated 'If in some particular case it can be shown that adetermination has not been within the competence of a LandCommissioner and if an application is made which results in an orderto bring up and quash his.determination then the difficulties which thepresent proceedings bring into relief are avoided". 'The application tobring up and quash’ would be in a Certiorari proceeding in which eventimpliedly the 'Land Commissioner" nomine officii could be made aparty.
In David v. Abdul Cader (7) it was held that 'Under the UrbanCouncil Ordinance, the Chairman is himself the local authority inconnection with granting of licences for cinema performances. Thegranting or withholding of such licences is his personal responsibility,and his acts are not those of the CounciJ which is a Corporation, nor ishe a Corporation for the purpose of the duties. It follows that, if thelaw does recognise a right of action against him in any circumstancesarising out of a breach of these duties, whether or not a breachaccompanied by bad faith or malice, the only way, in which he can besued is as an individual person, and there is no relevant distinction inhis status as a party between his official capacity and his personalcapacityAccordingly, an action claiming damages for delict
is available against the Chairman, Urban Council in his personalcapacity if he maliciously refuses, as a public authority, to exercise his
statutory power" This case does not in my view support the
contention of the learned State Counsel as this was a case for> damages for a delict and the Privy Council held that there was norelevant distinction in his status as a party, between his officialcapacity and his personal capacity and that though he acted as theChairman of-the Urban Council in refusing to grant a licence in badfaith or maliciously, he still could be sued in his own name.
The other cases relied on by learned State Counsel were all caseswhere writs of Mandamus had been applied for. In A. C.M. Harnffa v.Chairman. Urban Council. Nawalapitiya (8). it was held that 'AMandamus can only issue against a natural person who holds a publicoffice. Accordingly in an application for a writ of Mandamus againstthe Chairman, Urban Council, the petitioner must name the individualperson against whom the writ can issue". The judgment in that casegives a reason why a Mandamus can only issue against a naturalperson, who holds a public office when it says that "If such a personfails to perform a duty after he has been ordered by Court, he can bepunished for contempt of Court". On the other hand in the case of awrit of Certiorari, what this court does is to bring up a decision ordetermination of a statutory Tribunal or a functionary and quash it.Once such a decision or determination is quashed, it ceases to existand a fresh decision or determination would have to be made if thematter is again proceeded with. The tribunal or functionary is notoenjoined to do anything dr desist from doing anything, the question ofnon-compliance with such Orders resulting in contempt of court doesnot arise. Therefore it would be seen that the remedy by way of writ ofCertiorari could not be equated to one of Mandamus as far as theeffect on the parties is concerned.
Learned Counsel for the petitioner has cited a number of Englishcases such as Rex v. Electricity Commissioners. (9); Rex v. IncomeTax Commissioner. (10); White and Collins v. Minister of Health.
; Errington v. Minister of Health (12); Franklin v. Minister ofTown and Country Planning (13); which were all cases of applicationsfor Writs of Certiorari and the Statutory functionaries were citednomine officii.
In Singho Mahatmaya v. The Land Commissioner, (14), it was heldthat 'In an action instituted against the Land Commissioner for thepurpose of obtaining from the court a declaration that a certain landwas not liable to be acquired in terms of the Land RedemptionOrdinance-(i) that the Land Commissioner cannot be regarded as £Corporation sole and, therefore, cannot be sued nomine officii and (ii)that the appropriate remedy of the plaintiff was by way of anapplication for Certiorari'. In P. M. Walter Leo v. The LandCommissioner (15), it was held inter alia that 'A writ of Certiorari isavailable against the Land Commissioner if purporting to act under theLand Redemption Ordinance, he orders the compulsory acquisition ofproperty that is not 'agricultural land' within the meaning of sections3( 1} and 8 of that Ordinance'.
I am therefore of the view that in an application such as this in whichwrits of Certiorari have been prayed for, the Minister of Finance,whose vesting order is sought to be quashed could be cited as arespondent nomine officii. I hold therefore that this preliminaryobjection also fails with the result that the hearing of the applicationshould be proceeded with.
T. D. G. DE ALWIS, J. -1 agree.
Preliminary objectionsoverruled and case sent back for hearing: