In the matter of Patel and In the matter of an application for the issue of directions in the nature of habeas corpus, Section 387 of the Criminal Procedure Code (Miscellaneous Criminal Application No. 17 of 1948) [1948] EACA 91 (1 January 1948)

## **MISCELLANEOUS CRIMINAL**

## Before Sir Barclay Nihill, C. J., and THACKER, J.

## IN THE MATTER OF GORDHANBHAI PURSHOTTAM PATEL AND

## IN THE MATTER OF AN APPLICATION FOR THE ISSUE OF DIRECTIONS IN THE NATURE OF HABEAS CORPUS, SECTION 387 OF THE CRIMINAL PROCEDURE CODE Miscellaneous Criminal Application No. 17 of 1948

Writ of Habeas Corpus—Application to make absolute order nisi—Criminal Procedure Code, section 387—Application under order of deportation—Failure to comply with notice under section 7, Immigration Restriction (Amendment) Ordinance, 1930—Whether Applicant had acquired a Kenya domicile of choice—Question of fact—Burden of proof—Tests to apply.

The applicant, a British Indian by birth, first arrived in Kenya on the 16th August, 1941, and remained there in employment until July, 1946, when he was commissioned to take some motor vehicles to Tanganyika. There he became involved in trouble resulting in criminal charges against him of manslaughter and robbery with violence. On conviction he was sentenced to two years' imprisonment. On the 6th May, 1948, under section 5 (d) of the Immigration Restrictions Ordinance (Cap. 62) the applicant was deemed, by order of the Governor, to be an undesirable immigrant. On his release from prison in July, 1948, he was brought under police escort to Mombasa where he was wrongfully detained in custody. Having been released under a writ of habeas corpus a notice was served upon him to leave the Colony within 20 days under section 7 of the Immigration Restrictions (Amendment) Ordinance, 1930. This the applicant failed to do and on the 23rd September, 1948, the Member for Law and Order, acting under section 9 of the Immigration (Control) Ordinance, 1948, ordered him to be arrested and kept in custody pending his deportation from the Colony. Following his arrest and detention, on application to the Supreme Court an order nisi for a writ of habeas corpus was made, and at the hearing when it was sought to have made absolute the order nisi it was conceded by Counsel for the applicant that if the applicant had not acquired a Kenya domicile of choice the legality of the order of deportation and detention prior to it could not be attacked.

The facts are set out fully in the Order below.

Held $(17-11-48)$ .—(1) That to prove a change of domicile is a question of fact and every case must be decided on its own facts.

Taylor v. Taylor 11 E. A. C. A. 46 referred to and cited.

(2) That the onus was upon the applicant to prove that he had changed his domicile and had acquired a domicile of choice in Kenya Colony.

(3) That to ascertain that a domicile of choice has been acquired the tests which a Court must apply are: there must be the *animus manendi* accompanied by acts which illustrate and enforce the change of mind, the animus manendi accompanied by acts showing that it was more than a mere intention, and in order to change the domicile of origin there must be a residence sine animo revertendi.

(4) That on the facts of the present application it could not be held that the applicant had acquired a Kenya domicile of choice.

Dictum of Lord Hanworth, M. R., in Attorney General v. Yule Mercantile Bank of India 145 L. T. 14 cited; Dictum of Lord Hanworth, M. R., in Boldrini v. Boldrini v. Boldrini 145 L. T. 14 cited; Dictum of Lord Hanworth, M. R., in Boldrini v. Boldrini 145 L. T. 121 cited; Stanley v. Bernes 3 Hagg. E 25 referred to; Winans v. Attorney General (1904) A. C. 287 referred to.

Application dismissed.

Nene for the Applicant.

Todd, Crown Counsel, for the Crown.

ORDER.—This is an application to us to make obsolute an order nisi for a writ of habeas corpus directed to the Superintendent of Nairobi Prison where the applicant was confined pursuant to an order of deportation made against him by the Member for Law and Order acting under powers delegated to him by the Governor. It is conceded by Mr. Nene, the applicant's counsel that if the applicant is not a person who has acquired a Kenya domicile of choice, the legality of the order of deportation and confinement in prison prior to deportation cannot be attacked. We are aware that the applicant has already applied to a Judge of this Court for the issue of a writ and has been refused (see Miscellaneous Criminal Application No. 15 of 1948) but this in no way relieves us of the duty of considering the application on its merits since in habeas corpus procedure an applicant has the right to apply if he likes successively to any Judge of the Supreme Court holding co-ordinate jurisdiction. It is pertinent, however, for us to refer to the earlier proceedings since on that occasion the Crown contended that even if it was held that the applicant possessed a Kenya domicil of choice the order of deportation was still lawful because it was derived from an earlier order made by the Governor on 6th May, 1948, which being made under the provisions of the Immigration Restriction Ordinance (Cap. 62 of the Laws of Kenya) was applicable, under the circumstances set out, to any person entering Kenya whether domiciled in the Colony or not.

The learned Judge in his order made it clear that he was not prepared to hold that the Immigration Restriction Ordinance (now repealed by the Immigration (Control) Ordinance, 1948 (Ord. 7 of 1948)) did apply to a permanent resident of Kenya that is to say to a person possessing a Kenya domicile whether of origin or by choice, and the reasons he gave for this view were those set out by the same learned Judge in another case which was also an application for a writ of habeas corpus (Misc. Criminal Application No. 16 of 1948). During the hearing of the present application Mr. Todd, for the Crown, informed us that he did not now seek to question the correctness of the decision in the two above cases and here in our opinion he was right since, having read the judgments of the learned Judge, we are unhesitatingly of the opinion as was then arrived at. Accordingly the issue now before us rests on domicile and domicile alone. Has the applicant discharged the onus which undoubtedly rests upon him of establishing with perfect clearness that on 5th May, 1948, he had acquired by choice a Kenya domicil? Before considering in detail the affidavits filed by the applicant we will set out some facts in the applicant's career about which there is no dispute. He is a British Indian by birth and arrived in Kenya for the first time on 16th August, 1941. According to his immigration particulars supplied by the applicant himself he was then nineteen years of age. During the hearing of this application Mr. Todd took the point that in 1941 he was a minor and could not therefore acquire a domicile of choice independent of the domicile held by his father but he was forced to abandon this line of argument on his attention being called to the provisions of section 4 of the Age of Majority Ordinance, 1933 (Ord. XVII of 1933).

By the statute of law of this Colony a non-native person who is not a European or an American of European descent ceases to be a minor on attaining the age of eighteen years. Nothing therefore turns on the applicant's age when he first entered the Colony. The applicant remained in Kenya until 18th July, 1946, and during this time earned his living as a motor mechanic. He was unmarried and lived with his cousin one M. Patel who has lived in Kenya for many years. In July, 1946, he was commissioned to take some motor vehicles to Dar es Salaam and this was the beginning of the applicant's misfortunes. Apparently whilst on the journey he was involved in a motor accident which subsequently resulted in a charge being brought against him of manslaughter coupled with another charge of robbery with violence. He was committed for trial on these charges and released on bail. He returned to Kenya pending his trial but subsequently surrendered himself at Arusha. He was convicted and sentenced to two years' imprisonment by the High Court of Tanganyika. It was this sentence of imprisonment which provided the reason for the Governor's Order of 6th May, 1948. (See section 5 $(d)$ of the Immigration Restriction Ordinance, Cap. 62.) On 23rd July, 1948, he was released from imprisonment and brought to Mombasa under police escort. At Mombasa he was wrongfully detained in custody and successfully applied to this Court for release under a writ of habeas corpus. He was released on 30th July, 1948, and on the same day he was served with a notice to leave the Colony under section 7 of the Immigration Réstriction (Amendment) Ordinance, 1930 (Ordinance XX of 1930), and it is presumably the applicant's failure to comply with this order requiring him to leave the Colony which led to the order for his arrest and deportation made by the Member for Law and Order on 23rd September, 1948.

From the affidavits filed by the applicant it is clear that the basis of his contention that he has acquired a Kenya domicile rests on his declared intention to settle permanently in Kenya coupled with the fact of his residence here between 1941 to 1946. The applicant says in effect that after he had served his term of imprisonment in Tanganyika he sought to return home in which desire he was certainly given every assistance by the Tanganyika Police. He says further, as evidence of his intention, that he persuaded his father and brother to come to Kenya also with a view to permanent settlement and this statement is supported by an affidavit sworn by the father. We feel constrained, however, to point out nowhere in the father's affidavit is there a clear indication that the father has abandoned his domicile of origin.

Now whatever may be the difficulties which attend the ascertainment of a domicil of choice and they are usually many the tests which a Court must apply are well settled by a long series of cases. There must be animus manendi accompanied by acts which illustrate and enforce the change of mind. As was said by Lord Hanworth, M. R. in Attorney General v. Yule and Mercantile Bank of India (145 L. T. 14) "Domicil is an idea of law not of the citizens' choice only. It must be decided *animo et facto*. The *animus manendi* must be considered, the intention of the resident must be observed and deduced". Again the same learned Judge in the case of Boldrini v. Boldrini (146 L. T. 121) which was decided in 1932, the year following the Yule case, declared himself as follows:—

"There must be an animus manendi accompanied by acts showing that it was more than a mere intention. That has been held over and over again."

In discussing how far the fact of residence by itself can be considered conclusive the Master of the Rolls went on as follows, quoting from the principle stated by Sir John Nicholl in the early case of Stanley v. Bernes (3 Hagg. Ecc. 373): "As a criterion therefore to ascertain domicil, another principle is laid down by the authorities quoted as well as by practice—it depends upon the intention, upon the *quo animo*, that is the true basis and foundation of domicil; it must be a residence sine animo revertendi, in order to change the domicilum *originis*: a temporary residence for the purposes of health, or travel, or business has not the effect, it must be a fixed and permanent residence, abandoning finally and for ever the domicil of origin, yet liable still to a subsequent change of intention".

Both the above quoted cases in which the authorities are exhaustively reviewed emphasize how heavy is the burden cast upon those who seek to show that a domicil of origin has been superseded by a domicil of choice.

To return to the applicant for this writ, we have his sworn declaration that he intends to make Kenya his permanent home and that this was his intention when he came here. In testing the genuineness of this declaration we are surely entitled to take into account that the applicant has a strong motive for making it. It is a declaration made ex post facto the order of 23rd September, 1948, and the maker has no doubt been advised that in it lies the only hope of avoiding the stigma of deportation. What are the acts of the applicant from which an inference as to the genuineness of his expressed intention can be clearly made? When he filled up his immigration form on first arrival in 1941 he wrote opposite the cage "Probable duration of stay in territory to which proceeding" the word "Indefinite". Mr. Todd has urged that the use of this word is quite inconsistent with an intention of permanent settlement but we do not think this point should be put too high against the applicant. It seems to us the kind of word a young man might well use who was coming to a new country to try his luck and with the hope that if fortune smiled upon him he might find therein $\dot{a}$ permanent and abiding habitation. Unfortunately for the applicant fortune has not smiled on him. He has found neither wife, a residence of his own, nor secure or certain employment. Instead he has suffered the ignominy of imprisonment for a criminal offence. It is true that his father and brother have joined him in Kenya and are trading at Kitale but there is no evidence that the applicant has been invited to associate with them in the business. Furthermore we think the Crown are entitled to point out as Mr. Todd has done that in the immigration particulars filled in by the father and brother on their arrival each gave "about" five years" as the probable duration of their stay in Kenya. They also both stated that they were married but they were unaccompanied by their wives. We are informed that the applicant's mother is now dead but there still remains the brother's wife concerning which the affidavits are silent. Mr. Todd has pointed out that when the applicant left for Tanganyika in 1946 he did not ask the Immigration Officer for a certificate of domicil which he might have done under the provisions of rule 8 of the Restriction of Immigration Rules (Vol. I, Subsidiary Legislation, page 324). Again we do not think too much should be made of this as it is probable that the applicant was quite unaware of the rule. Nevertheless had he done so and obtained the certificate it would have greatly fortified his present ex post facto declaration of intention to which we have already referred. Search where one will we find it impossible to discover any act, fact, or circumstance which points clearly to abandonment by the applicant of his Indian domicil. A declaration without accompanying acts has been described as "the lowest species of evidence" (Bryce v. Bryce, 1933 L. R. Probate Division 83) and we have already given our reasons why we are not prepared to accept the applicant's statement of intention simply on its face value.

Mr. Nene has instanced the fact that the applicant took the trouble to become a registered voter for the Legislative Council as an act from which intention to settle permanently in Kenya can be inferred. We have given the point due weight but since the franchise for Indians in Kenya does not depend on domicil we cannot see that it advances the applicant's claim. The same consideration applies to the fact that he has paid his personal tax. It has also been urged upon us that certain decisions of the East African Court of Appeal indicate that the tests applied in Kenya are less stringent than those obtaining in England and since these are decisions which must bind this Court we have given this aspect of the case our most anxious and careful consideration. Three cases have been much in our mind: King v. King (VII E. A. C. A. L. R. 1), Taylor v. Taylor (XI E. A. C. A. 46) and the recent and as yet unreported case of Zimbler v. Zimbler (15 E. A. C. A. 10). In King v. King the Court of Appeal reversed the trial Judge in a divorce petition who had held against the petitioner on the question of domicil. Unfortunately the facts as to the nature of the petitioner's residence in Kenya were not set out in any detail in the judgment of the learned President but the basis of the decision seems to have been the petitioner's uncontradicted evidence of intention coupled with "actual residence to settle in Kenya". Furthermore the learned President took the point that the petitioner had nothing whatever to gain in those proceedings by falsely stating he could have instituted his case under the Indian and Colonial Divorce Jurisdiction Act. As we have already

indicated the present applicant has everything to gain. Neither can we see evidence of "actual residence to settle in Kenya" from the fact that the applicant throughout his stay in Kenya resided with his cousin. In Taylor v. Taylor the appellate court upheld the trial Judge who had found that a Civil Servant long resident in Tanganyika and who had expressed an intention to settle there had failed to satisfy him that he had abandoned his domicile of origin. Unless a distinction was made by the Court because the petitioner was a servant of the Crown (which is not apparent from the judgment) this case at first sight would seem to be somewhat consistent with the decision of King v. King. Nevertheless it is clear from the learned President's judgment that the learned Chief Justice of Tanganyika who had tried the issue in the Court below had been able to distinguish it. The case is also valuable in that it laid down that "each case has to be decided on its own facts and the question involved in this case (we are quoting from the judgment of the learned President) is one of fact and what is decided on the facts of one case cannot govern the decision in another case".

In Zimbler v. Zimbler the Court again upset the trial Judge who had found strongly that the petitioner in a divorce suit had failed to establish a Kenya domicil of choice. In this case there was residence coupled with intention but none of the authorities either English or African were reviewed in the judgment. It would seem that the basis of the decision was the view taken by the Court that the learned Judge had seriously misdirected himself in too readily assuming that a gentleman in Mr. Zimbler's position, who was a professional pianist, could not have formed an intention to settle permanently in Kenya before he had even arrived here. Be that as it may we can see nothing in the learned Vice-President's judgment to indicate that the Court of Appeal for Eastern Africa has in fact set up a lower standard of proof in domicil cases than is laid down in the English decisions. As was said in Taylor v. Taylor the facts of one case cannot govern a decision on the facts in another case, but even on facts we have no hesitation in saying that the present applicant is in a weaker position than the petitioner in King $v$ . King and Zimbler $v$ . Zimbler. Mr. Zimbler came out to join a wife who had long residence in Kenya and he did at least rent a residence of his own, and he at one time had a business of his own; in the King case the Court was apparently satisfied that the nature of the residence showed an intention to settle. In Devonshire v. Devonshire, Civil Appeal 17 of 1947, although on the facts the Court of Appeal reversed the trial Judge on an issue of domicil the judgments show that the Court did not seek to minimize the heavy nature of the burden resting on one who seeks to prove a change of domicil.

It must by now be abundantly clear that we are far from satisfied on the evidence that the applicant has acquired a Kenya domicil of choice. We are in fact in exactly the same position as our brother de Lestang, J., who found on evidence not materially different to that now before us that this applicant had not conclusively established a change of domicil. The well-known and oft cited case of Winans v. Attorney General (1904 Appeal Cases 287) is authority for the statement that nothing less than that will do. It follows therefore that the application must be dismissed and the order nisi discharged.

G. P. K. $764/49 - 500 - 4/51$