059-NLR-NLR-V-61-TENNEKOON-Petitioner-and-THE-PRINCIPAL-COLLECTOR-OF-CUSTOMS-et-al-Respondent.pdf
232
Tennekoon v. The Principal Collector of Customs
1959Present:Weerasooriya, J.
TENNEKOON, Petitioner, and THE PRJNCIPAE COLLECTOR OP
CUSTOMS et al., Respondents
jS. C. 373—Application for a Mandate in the nature of a Writ ofCertiorari on A. O. Weerasinghe, Principal Collector of Customs,
Colombo, and another
Certiorari—Inquiry held by an administrative body—Duty to act judicially—Customs
Ordinance (Cap. 185), as. 8 (1), 127—Exchange Control Act, No. 24 of 1958,
s. 21 (1) (c).
An administrative body is under a duty to act judicially when in arrivingat a decision it bas to consider the matter solely on the facts and the evidencebefore it and apart from any extraneous considerations such as policy and■expediency.
The obligation to aet judicially means that certain rules of “ natural justice”have to be complied ■with. It implies a duty to give “ a fair opportunity tothose who are parties in the controversy for correcting or contradicting anyrelevant statement prejudicial to their view ” and to give to each of the parties“ the opportunity of adequately presenting the case made
The petitioner, who was employed in the Customs, was called upon by thePrincipal Collector of Customs to pay a penalty of Rs. 10,000 under section127 of the Customs Ordinance for importing gold in contravention of section21 (c) of the Exchange Control Act. The penalty was imposed on the basis ofcertain findings arrived at by the 2nd respondent, the Deputy-Collectorof Customs. It was conceded that no opportunity was given to the petitioner tomeet the case made against him at the inquiry held by the 2nd respondent.
Held, that certiorari should be granted for the reason that section 127, readwith section 8 (1), of the Customs Ordinance imposed on the respondents a dutyto act judicially.
^APPLICATION for & mandate in the nature of a writ of certiorari.
N.E. Weerasooria, Q.C., with F. A. de Silva, for the petitioner.
A. C. Alles, Acting Solicitor-General, with P. Naguleswaram, CrownCounsel, for the respondents.
Cur. adv. vult.
1 (1947) 48 N. L. H. 369.
'WEBRASQOBRTA, J.—Tennekoon v. The Principal Collector of Customs 233
February 23, 1959. Wxqeebasoobiya, J.—
This is an application for a mandate in the nature of a writ of certiorarito quash an order made by the first respondent, who is the PrincipalCollector of Customs, calling upon the petitioner to pay a penalty ofPs. 10,000 under the provisions of section 127 of the Customs Ordinance(Cap. 185). This penalty was imposed on the basis of the followingfindings arrived at by the second respondent, the Deputy-Collector ofCustoms, Colombo:—
that the petitioner “ had been concerned in the unshipping of two
bars of gold being goods the import of which is restricted andwhich were imported contrary to the restrictions imposed bylaw ” ;
that he “ had knowingly harboured, kept or concealed the two bars
of gold being goods the importation which is restricted by lawand which were imported contrary to such restrictions ”.
Under section 21 (1) (c) of the Exchange Control Act, N o. 24 of 1953,no person shall, except with the permission of the Central Bank of Ceylon,import any gold into Ceylon.
On the 22nd May, 1954, the petitioner, then an acting Sub-Inspectorof Police, was detailed for duty as a ship’s visiting officer in the port ofColombo. In the performance of that duty it would have been lawfulfor him to go on board any of the ships that were in the port. One ofthese ships was the S. S. " Vietnam ”.
According to an affidavit filed by the petitioner in these proceedings hehad boarded the S. S. " Vietnam ” at about 4.30 p.m. on the 22nd May,1956, when he came across two unwrapped gold bars which had apparentlybeen dropped by an unidentified member of the crew who “ ran upa flight of stairs and disappeared on the petitioner’s approach Thepetitioner picked up the gold bars and after an unsuccessful search forthe person who dropped them he decided to report the matter to hissuperior officer Mr. Hamid, Inspector of Police, and for that purpose hedisembarked from the S. S. “ Vietnam ” and entered the Port HealthOfficer’s launch in which he proceeded towards the passenger jetty.It would appear, however, that Inspector Hamid was not at the passengerjetty then but was in a Police launch which was plying somewhere in theharbour area. After the petitioner got to the passenger jetty and notfinding Inspector Hamid there he entered another launch, the “ Pearl ”,which lay alongside the jetty and requested the coxswain of it to takehim to the Police launch. Just then two Customs Officers entered thelaunch. One of them was an Assistant Charges Officer of the Customs,Mr. Ponniah.
The versions given by the petitioner and Mir. Ponniah as to what,happened at this stage are substantially at variance. According to thepetitioner, as the Customs Officers arrived he of his own accord showedthem the gold bam and accompanied by them he went to the BaggageHall where he handed over the bars to the Charges Officer, his statement
234 WISER ASOORXYA, J.-—Tennekoon v. The Principal Collector of Customs
was recorded by the second respondent, he was told that there would bean inquiry into the matter and he then went away. Mr. Ponniah states,on the other hand, that on certain information he had received he keptwatch on the movements of the petitioner from the time the latter wenton board the S. S. “ Vietnam ** and till the petitioner entered the launch“ Pearl Having followed the petitioner into the launch “ Pearl ”Mr. Ponniah informed the petitioner that he had received informationthat the petitioner was carrying some gold bars which he requested thepetitioner to hand to him, whereupon the petitioner pleaded with him tokeep silent about the matter. He then saw the petitioner attemptingto insert his hand into his trousers pocket and, in order to prevent thepetitioner from throwing any contraband article into the sea, he held onto the pocket and with the assistance of the Chief Preventive Officer,Mr. Speldewinde, (who also had in the meantime come on board the•launch) two bars of gold were taken out from the petitioner’s hip andtrousers pockets respectively.
According to the affidavit of the second respondent, before arriving-at the findings which I have set out earlier he held an inquiry into thecircumstances in which the gold bars came to be found on the petitioner’sperson at which he recorded on oath the statements of the petitioner,the Assistant Charges Officer Mr. Ponniah and the Chief PreventiveOfficer Mr. Speldewinde. The petitioner has stated in his affidavitthat the inquiry was held “ behind his back”, and this statement has not•been contradicted in any of the affidavits filed by the respondents. Thelearned Acting Solicitor-General in fact conceded that no opportunitywas given to the petitioner at the inquiry of meeting the case against him.The argument advanced hy him was that no obligation arose to give thepetitioner such an opportunity since the respondents were exercisingpurely administrative or executive functions in taking action in thismatter under section 127 of the Customs Ordinance and, therefore, no•duty to act judicially was imposed on them. But, as pointed out inM. v. Manchester Legal Aid Committee, Ex parte Brand db Co., Ltd.1 an-administrative hody may he under a duty to act judicially, though thequestion whether in a given case such a duty arises or not would depend•on a variety of circumstances “ which it would be impossible, aud,indeed, inadvisable, to define exhaustively ”. That case is also authority■for the view that as a general rule a duty to act judicially would arisewhere an administrative hody in arriving at its decision has to consider■the matter solely on the facts and the evidence before it and apart from.aDy extraneous considerations such as policy and expediency.
Even a purely domestic tribunal as, for instance, the committee of a■club, which under the rules has power to expel a member on the ground ofmisconduct, would appear to he under a duty to act judicially whenexercising such power. See in this connection the dictum of Jessel, M. R.,in Fisher v. Keane a that a committee functioning on such an occasionmust act according to the ordinary principles of justice and shouldnot convict a man of a grave offence which shall warrant his expulsion
1 (1952) 1 A. 3. 3. 480.
2 {2879) 11 Oh. D. 353 at 382.
WBERASOORIYA, J.—Tennekoon v. The Principal Collector of Customs 335
from the club -without fair, adequate and sufficient notice and an oppor-tunity of meeting the accusation brought against him. Another case isLabouchere v. The Earl of Whamcliffe 1 where the Court stated thatalthough it had nothing to do with the question whether the decision ofthe committee to expel a member was right or wrong it was neverthelessconcerned whether the accused had been given fair notice and due inquiry-had been made.
In NaJekuda Ali v. Jayaratne (Controller of Textiles) 2 the Privy Council,in considering the question against whom a writ of certiorari may begranted, stated that “ the only relevant criterion by English law is not thegeneral status of the person or persons by whom the impugned decisionis made but the nature of the process by which he or they are empoweredto arrive at their decision. When it is a judicial process or a processanalogous to the judicial, certiorari can be granted
In view of these cases I do not think that the test sought to be appliedby the Acting Solicitor-General as conclusive of the question whetheror not the respondents were under a duty to act judicially is one whichcan be accepted. That question must, therefore, be considered inthe light of certain other circumstances which I shall now proceed to■discuss.
It is to be noted that section 127 of the Customs Ordinance does notrequire that the liability of a person to a penalty or forfeiture should beestablished to the satisfaction of the Principal Collector or other officerof the Customs. On the contrary, the language of the section indicatesthat the matter has to be considered objectively. Section 8 (1) of theCustoms Ordinance requires that persons who are questioned on mattersrelative to the customs or the conduct of officers or persons employedtherein shall be examined on oath and any person who gives false evidenceon being so questioned is deemed to be guilty of giving false evidence in ajudicial proceeding and liable to be dealt with accordingly. The ActingSolicitor-General readily granted that section 8 (1) applied to any inquiryinvolving the questioning of witnesses which may have to be held for the-purposes of section 127. It was, no doubt, in compliance with section 8 (1)that the second respondent, in holding an inquiry into the circumstancesin which the gold bars came to be found on the petitioner’s person, re-corded on oath the statements of the petitioner and certain of the CustomsOfficers as stated in the second respondent’s affidavit to which I have-already referred. The liability of the petitioner to a penalty or forfeitureunder section 127 of the Customs Ordinance had, therefore, to be objec-tively assessed on an evaluation of the evidence' on oath of the persons-examined at the inquiry. The matter had to be decided by the secondrespondent solely on the facts of the particular case, solely on the evi-dence before him, and apart from any extraneous considerations. Inother words, he had to act judicially—JR. v. Manchester Legal AidCommittee, Ex parte Brand db Co., Ltd. (supra). *
* '1379) IS Ch. D. 346 at 352.
811950) 51 2?. L. B. 457 at 461.
236
The Chairman, Village Committee oj Oandnhe South v. Hi-ppola
The obligation on the second respondent to act judicially meant that-in holding that inquiry he had to conform to certain rules of “ naturaljustice ”. These rules have been laid down from time to time in a nurober-of decisions of the House of Lords in England. He had, for instance,to give “ a fair opportunity to those who are parties in the controversyfor correcting or contradicting any relevant statement prejudicial to-their view” {Per Lord Lorebum in Board of Education v. Rice x); and to-give to each of the parties “ the opportunity of adequately presenting the-ease made ” (Per Viscount Haldane in Local Government Board v. Arlidge 2).It would seem that these rules were disregarded by the second respondent.Although the petitioner’s statement was recorded at the inquiry it does-not appear that in regard to any allegation made by the Customs Officers,which was prejudicial to him he was given any opportunity of contradict-ing or correcting it. The contents of the statement made by thepetitioner on that occasion are not in evidence in these proceedings, but-it may be assumed that they were of an exculpatory nature. As I havealready stated, it was conceded by the learned Acting Solicitor-Generalthat no opportunitywas given to the petitioner at the inquiry of meeting:the case against him.
I hold, therefore, that the findings arrived at by the second respondent-against the petitioner are of no legal effect. As for the order calling uponthe petitioner to pay the penalty of Rs, 10,000, although the letter datedthe 26th May, 1956, communicating that order to the petitioner purport-ed to be written on behalf of the first respondent, it is clear from the-second respondent’s affidavit that the order was in fact made by the-second respondent. That order is quashed. The. second respondent-will pay to the petitioner his costs of this application which I fix afcRs. 525.
Application allowed.