Attorney General v Long (C.C. 11/1933.) [1933] EACA 13 (1 January 1933)

## ORIGINAL CIVIL.

## Before GAMBLE, Ag. J.

## THE ATTORNEY GENERAL (Plaintiff)

## CAPT. E. CASWELL LONG (Defendant). C. C. $11/1933$ .

Suits by the Crown-Counterclaim by defendant.

Held (23-3-33).—That in suits by the Crown, a counterclaim by the subject cannot be entertained.

The proper procedure is to proceed by petition of right and obtain the Governor's fiat: Chapter 17, Laws of Kenya.

Lewey, Crown Counsel, for Attorney General.

Mathews for Defendant.

RULING.—The plaintiff, the Attorney General, on behalf of Government claims Sh. 1,700 for vaccine supplied by Government to defendant. The defendant counterclaims in damages in the sum of Sh. 1,700, or such lesser sum as he may be adjudged liable to pay the plaintiff.

The learned Crown Counsel applies that so much of the written statement as refers to the counterclaim be struck out on the ground that the proper procedure of obtaining the Governor's fiat under Cap. 17, Laws of Kenya, has not been observed.

Mr. Slade, for the defendant, cites as his chief authority the case of Hettihewage Siman Appu and Others v. Queen's Advocate, 9 A. C. at p. 571. At first sight, this would appear to be in his favour, but a careful perusal of the judgment shows that one of the main reasons for the decision in that case was that the petition of right did not exist in the Colony of Ceylon: the result of this would be that the Crown would be able to sue the subject on one portion of a contract whilst itself violating with impunity another portion of the same contract. Accordingly therefore, in Ceylon, the practice had grown of allowing the subject to sue the Crown.

In this country there is domestic legislation, namely, Cap. 17, Laws of Kenva, which allows the subject redress against the Crown if the procedure laid down in Cap. 17 is followed.

The second case cited by Mr. Slade, Rex v. Sherwood, 146 E. R. p. 258, does not help. The question of set off against the Crown was not a basis of the decision; it was discussed obiter. and no definite opinion was given, Graham, B., merely remarking that the question of the right of set off was at best a grave and important question whenever it shall fairly arise.

Section 3 of Cap. 17, Laws of Kenya, speaks of all "claims" against the Government, which is a wider term than "suits". Mr. Slade quotes section 8 as an authority for his contention, but as I read section 8 l construe it to mean that when the Governor's fiat has been obtained and issue is joined, all the provisions of the Civil Procedure Code shall extend and apply to suits and proceedings by or against the Government, e.g. it would be open to the Crown to plead counterclaim or set off.

In Stuart Robinson, Suits by and against the Grown, at page -565 appears this statement: "No counterclaim can be set up at common law against the Crown; the subject must proceed by petition of right." An authority is quoted, Secretary of State v. Easdale, but as this is an Irish report it is not available for reference, but the short note in Mew's Digest, Vol. 16, at p. 831 reads: "The defendant in an action for breach of contract cannot set up a counterclaim where the plaintiff is His Majesty's Principal Secretary of State for War." An authority somewhat in point is The Attorney General v. Guy Motors Ltd., 2 K. B. 1928 at p. 78, where in the judgment of Rowlatt, J., occurs the following: "I think it right to point out that at the back of the apparently hard rule that there can be no set off against the Crown there lies this fact that the subject cannot make good a claim against the Crown except in a particular way... and he cannot get round that by refusing to pay a debt to the Crown. and then asserting his claim by setting it off." This decision was of course subsequent to 3-9-10, but the learned Judge was setting up no new proposition of law, but merely reiterating the pre-existing rule.

Were I to hold otherwise, the provisions of Cap. 17 might be rendered entirely abortive, e.g. a subject might have a large claim against the Crown and in order to obviate the necessity of proceeding by way of petition of right might refuse to pay poll tax; the Crown would then have to sue for recovery of the tax. and the subject would put in his claim by way of counterclaim. This is, in effect, what the defendants endeavoured to do in the case of Attorney General v. Guy Motors quoted above.

In view of the provisions of section 3 of Cap. 17, Laws of Kenya, and the remedies open to a subject as against the Crown in England on 3-9-10, I am of opinion that the contention of the Attorney General is correct.

The order will be that the counterclaim is excluded.

Lewey.—I ask for costs; Cap. 17. $Lewey$ .—I

Mathews. -I cannot oppose. Ask that they be included in the general application.

ORDER.-Taxed costs of this application to the Crown.