Jayantibhai Chhotabhai Patel [1954] EACA 140 (1 January 1954)

Full Case Text

## MISCELLANEOUS CRIMINAL

## Before SIR KENNETH O'CONNOR, C. J., and BOURKE. J.

## Ex parte: JAYANTIBHAI CHHOTABHAI PATEL, Applicant

Mandamus-Immigration (Control) Ordinance section 7 (1) Class D-Meaning of "person intending to carry on a trade, business or profession ... on his own account"-Whether includes a partner-Function of Principal Immigration Officer—Principles by which Court guided in issuing mandamus.

The applicant applied for an entry permit under Class D of section 7 (1) of the Immigration (Control) Ordinance, stating that he had been taken as a partner into a firm in Nairobi. The Principal Immigration Officer refused the permit on the grounds that he was not satisfied that the applicant was "a person intending to carry on a trade, business or profession other than a prescribed profession, on his own account in the Colony", because the applicant was intending to set up in partnership.

The applicant applied for and obtained a rule nisi on the Principal Immigration Officer to show cause why he should not issue to the applicant an entry permit under Class D.

Held (21-2-54).—(1) Mandamus will only go to enforce the performance in a particular way of a statutory duty which is administrative or ministerial and not discretionary. Mandamus will not be granted to enforce the performance of a statutory duty, the performance or non-performance of which is a matter of discretion. Neither will the court by mandamus dictate the decision in a matter in which a discretion to decide is conferred manuamus distate the decision in a matter in which a discretion to decide is conferred by the statute upon an inferior tribunal of a judicial character. In such a case, mandamus may only go to the tribunal to compel it to

(2) The inferior tribunal must exercise its discretion judicially, that is to say, within its jurisdiction, fairly and without bias, upon relevant and not extraneous considerations, and not arbitrarily or capriciously. If those conditions have been fulfilled by the Principal Immigration Officer and he is not satisfied that the intending immigrant belongs to any of the stated classes, the court will not interfere by mandamus. If those conditions have not been fulfilled, the court may issue a mandamus to the Principal Immigration Officer to hear and determine according to law. Only having exercised his discretion, is satisfied that the intending immigrant (other than a prohibited immigrant) belongs to one of the classes set out; and still refuses to perform the subsequent ministerial act of issuing an entry permit, would the court command him by mandamus to issue a permit.

(3) In the instant case, the Principal Immigration Officer was not satisfied that the applicant came within any of the stated classes and, accordingly, the court by mandamus would not command him to issue an entry permit, but the court might command him to hear and determine according to law if it were show or capricious, or made upon irrelevant or extraneous considerations, or under a misapprehension as to the extent of his powers, or if for any other reason it were shown that he had, in effect, declined jurisdiction and had not exercised his discretion.

(4) The question of whether the applicant intended to carry on business "on his own account" was not an extraneous consideration, but one which the Principal Immigra-' was not an extraneous consideration, but one which the Principal Immigration Officer was bound to consider. Even if his decision was erroneous in point of

law, if it were within his jurisdiction to decide, mandamus would not go to correct him. The Supreme Court in mandamus proceedings was not sitting in an appellate jurisdiction: it was the Court's duty to see that the methods which the inferior tribunal had adopted were correct, not to criticize the conclusions at which it had arrived.

(5) In any event, the Court was not persuaded that the Principal Immigration Officer had been wrong in deciding that an intending partner was a person intending to carry on a trade or business "on his own account", or that the discretionary remedy of mandamus in the present case.

Rule nisi discharged.

Nazareth for the applicant.

Webber, Crown Counsel, for the Principal Immigration Officer.

The judgment of the Court was delivered by Sir Kenneth O'Connor, C. J.

JUDGMENT.—On 13th June, 1954, a Rule nisi was made, directing the Principal Immigration Officer to show cause why a writ of mandamus should not issue to him ordering him to give to Jayantibhai Chhotabhai Patel, the applicant, an Entry Permit under Class D of section 7 (1) of the Immigration (Control) $\mathcal{L}$ Ordinance, 1948, and the rules made thereunder.

Pursuant to this Rule nisi, Mr. Webber, Crown Counsel, duly appeared on behalf of the Principal Immigration Officer and showed cause.

The history of this matter is briefly as follows: -

On or about 2nd October, 1952, the applicant applied to the Immigration Control Board for a certificate under Class D of section 7 (1) of the Immigration (Control) Ordinance (Cap. 51 of the Laws of Kenya), referred to hereinafter as "the Ordinance". At the same time, the applicant applied to the Principal Immigration Officer for an Entry Permit under Class D, stating that he had been taken as a partner into the firm of Automobile House, Nairobi. The certificate and entry permit were refused on the ground that the admission of the applicant would be prejudicial generally to the inhabitants of the Colony.

From the decision of the Immigration Control Board the applicant appealed to the Immigration Appeals Tribunal. On 22nd April, 1954, that Tribunal dismissed the appeal on the ground that the applicant was a person intending to carry on business in partnership and could not, therefore, come within the words "intending to carry on business on his own account", occurring in Class D of section 7 (1) of the Immigration (Control) Ordinance.

The applicant then applied to the Supreme Court (in Miscellaneous Criminal Case No. 9 of 1953) for a writ of certiorari and mandamus directed to the Immigration Appeals Tribunal. On 16th November, 1953, the Supreme Court made absolute a Rule nisi in the nature of certiorari and mandamus quashing the determination of the applicant's appeal by the Appeals Tribunal and directing them to hear and determine the matter according to law. In brief, the reasons of the Supreme Court were that the person to be satisfied as to whether an intending immigrant under Class D was, or was not, intending to carry on a trade or business on his own account was, pursuant to the Immigration Control Regulations, the Principal Immigration Officer: that this was not a question within the competence of the Immigration Control Board or of the Immigration Appeals Tribunal: and that, accordingly, they had exceeded their jurisdiction in considering this question. The applicant's appeal was remitted to the Tribunal to satisfy themselves only upon the matters within their competence, namely the matters included in paragraphs (i), (ii) and (iii) of Class D.

Pursuant to this order of mandamus, the Immigration Appeals Tribunal reheard the applicant's appeal on its merits and allowed it. The Immigration Control Board accordingly granted to the applicant a certificate under Class D to the effect:

- (i) that the applicant was in possession of the requisite licences to enable him to engage in the business which he intended to carry on in the Colony: - (ii) that he had the requisite capital; and - (iii) that, his engaging in such business would not be to the prejudice of the inhabitants generally of the Colony.

The Principal Immigration Officer, however, refused to grant the applicant an Entry Permit and, in a letter dated 25th January, 1954, wrote to the applicant's advocates, inter alia, as follows: -

"4. I am now writing to inform you that I am not satisfied that your client belongs to Class D of section 7 (1) of the Immigration (Control) Ordinance, 1948, in that he is not 'a person intending to carry on a trade, business or profession other than a prescribed profession, on his own account in the Colony', because he is intending to set up in partnership with a concern known as Messrs. Automobile House, Nairobi".

The grounds for the present application are:—

1. That the prescribed authority, that is the Principal Immigration Officer, was under a statutory legal duty or obligation to issue to the applicant, who was in possession of a certificate issued by the Immigration Control Board, under Class D of section 7 (1) of the Ordinance, a permit to enter the Colony.

2. That the Principal Immigration Officer had no discretion and was not entitled to consider the applicant as other than 'a person intending to carry on trade or business on his own account' merely because the applicant intended to carry on such trade or business in partnership with one or more other persons and did not intend to carry on the trade or business on his own sole account.

3. That if the Principal Immigration Officer had any discretion to refuse a permit under Class D of section 7 (1) of the Ordinance to a person in possession of a certificate under Class D from the Immigration Control Board, he did not exercise that discretion, but merely followed a decision of the Immigration Appeals Tribunal which was erroneous in law, void for lack of jurisdiction and not binding on the Principal Immigration Officer.

Before this Court Mr. Nazareth submitted: -

(1) That the Principal Immigration Officer had no discretion to refuse the applicant's application for an entry permit once the applicant had obtained a certificate from the Immigration Control Board that he satisfied the requirements of Class D; and

(2) If the Principal Immigration Officer had any discretion, then he had exercised it erroneously and after taking into consideration an extraneous matter namely the fact that the appellant intended to carry on business not solely on his own account but in a partnership called, 'Automobile House, Nairobi'."

Mr. Nazareth argued that the position of a partner in law is that he is a principal as well as an agent for his copartners. He carries on business both for himself and for his copartners. As, therefore, he carries on business for himself he comes within the words of Class D-"A person intending to carry on a trade or business . . . on his own account in the Colony".

Mr. Nazareth argued that if the legislature had intended to exclude partnership, that should have been expressed; the antithesis of "carrying on business on his own account" is "carrying on business on another's account", e.g. as agent, trustee or manager. It was not legitimate, Mr. Nazareth argued, to construe the words "on his own account" as if they were "on his own sole account": if the Principal Immigration Officer was right, the case of an intending immigrant who wished to carry on business in partnership was a casus omissus and such a man could not come into the Colony.

Mr. Webber, for the Principal Immigration Officer, submitted that the Court would only interfere with the discretion of the Principal Immigration Officer, if he had taken into account some extraneous matter and had allowed himself to be influenced by it; that the sole question was whether or not carrying on business in partnership was an extraneous matter which the Principal Immigration Officer had considered. Mr. Webber submitted that it was not for the Court to decide whether or not carrying on business in partnership was carrying on business "on his own account"; but, in any event, Mr. Webber submitted that it was not, and he pointed out that an intending partner could come into Colony under Class H, if his income was sufficient. He submitted that Classes B to E were intended to ensure that persons should be admitted who intended to set up their own businesses and not merely to come in and join an existing business, perhaps as a minor, or even a sleeping partner.

Mr. Nazareth, in reply, repeated his previous arguments and, in reply to the argument as to a minor share in a partnership, pointed out that the requirement of the possession of the prescribed capital sum was necessary whether the immigrant came in as a partner or not.

We are of opinion that Mr. Nazareth's first point fails and that the Principal Immigration Officer was not under a statutory legal duty to issue an Entry Permit once the applicant had a certificate from the Immigration Control Board. Under regulation 12 of the Immigration (Control) Regulations (Vol. V. of the Laws of Kenya at page 804 as amended by G. N. 975 of 1950), the prescribed authority for the purpose of being satisfied under section $7(1)$ of the Ordinance that a person belongs to Class D is the Principal Immigration Officer. We are of opinion that the requirement of the Ordinance that the Principal Immigration Officer must be "satisfied" imports a discretion. The Principal Immigration Officer is, for this purpose, an inferior tribunal of a quasi-judicial character.

It is well settled that mandamus will only go to enforce the performance in a particular way of a statutory duty which is administrative or ministerial and not discretionary. Mandamus will not be granted to enforce the performance of a statutory duty, the performance or non-performance of which is a matter of discretion. Neither will the court by mandamus dictate the decision in a matter in which a discretion to decide is conferred by the statute upon an inferior tribunal of a judicial character. In such a case, mandamus may only go to the tribunal to compel it to hear and determine according to law. Halsbury 2nd Ed., vol. 9 page 751 and 764, paras. 1279 and 1296; R. v. Marshland Smeeth and Fen District Commissioners, (1920) 1 K. B. 155, 165; R. v. Army Council ex. p. Ravenscroft, (1917) 2 K. B. 504. See also Kenya Misc. Crim. Case No. 9 of 1954 re Ambalal Shankerbhai Patel.

The inferior tribunal must exercise its discretion judicially, that is to say, within its jurisdiction, fairly and without bias, upon relevant and not extraneous considerations, and not arbitrarily or capriciously. If those conditions have been fulfilled by the Principal Immigration Officer and he is not satisfied that the intending immigrant belongs to any of the stated classes, the court will not interfere by mandamus. If those conditions have not been fulfilled, the court may issue a mandamus to the Principal Immigration Officer to hear and determine according to law. Only if the Principal Immigration Officer, having exercised his discretion, is satisfied that the intending immigrant (other than a prohibited immigrant) belongs to one of the classes set out; and still refuses to perform the subsequent ministerial act of issuing an entry permit, would the court command him by mandamus to issue a permit.

In the instant case, the Principal Immigration Officer was not satisfied that the applicant came within any of the stated classes and, accordingly, the court by mandamus will not command him to issue an Entry Permit, but the court may command him to hear and determine according to law if it is shown that his decision was biassed or capricious, or made upon irrelevant or extraneous considerations, or under a misapprehension as to the extent of his powers, or if for any other reason it is shown that he has, in effect, declined jurisdiction and has not exercised his discretion.

Mr. Nazareth argued that the Principal Immigration Officer had taken into account extraneous considerations, namely:

- (a) a decision of the Immigration Appeals Tribunal on a matter not within their competence to consider or decide; and - (b) the fact that the applicant was not intending to carry on business solely $(a, b)$ on his own account but in partnership in an existing firm.

As to $(a)$ , it was alleged in paragraph 13 of the applicant's affidavit dated 21st May, 1954, that "to the best of my knowledge, information and belief" the Principal Immigration Officer had, before the decision of the Immigration Appeals Tribunal, granted entry permits to persons who had applied for these as partners or intending partners. It was sought to show that this had been the previous practice, and that the Principal Immigration Officer had changed it in obedience to the decision of the Immigration Appeals Tribunal. This Court has recently had occasion to point out, in 27, $134:$ K. L. R. re Bhagubhai Bhanabhai, following the Court of Appeal (E. A.) in A. N. Phakey v. World Wide Agencies Ltd., (1948) E. A. C. A. 2, that affidavits made on information and belief without stating the source of the information are worthless and ought not to be received as evidence. We propose, therefore, to disregard the allegation as to the supposed change in practice. But even if there had been any change in the practice of the Principal Immigration Officer since the decision of the Immigration Appeals Tribunal (which we do not decide), this might well be due to the fact that that decision drew the Principal Immigration Officer's attention to a point which he had not previously considered, and that, having considered it, he thought it correct. There is no evidence that he allowed the decision of the Immigration Appeals Tribunal to interfere with his discretion in the instant case, and there is no reason to suppose that the Principal Immigration Officer thought that a decision of the Immigration Appeals Tribunal which the Supreme Court had held to be outside their jurisdiction, was in any way binding upon him, or that he declined to exercise a discretion because of it.

The real point in the case is the point mentioned in paragraph $(b)$ above, whether the fact that the appellant intended to carry on business in partnership and not solely on his own account was an extraneous consideration which the Principal Immigration Officer ought not to have considered. We think that he was bound to consider it. It arose upon the construction of the provision of the Ordinance which gave him his jurisdiction. He was bound to determine, to the best of his ability, whether or not a partner was a person "intending to carry

on a trade or business on his own account" within Class D of section 7 of the Ordinance. Even if his decision was erroneous in point of law, mandamus would not go to correct him for an erroneous decision on a point of law within his jurisdiction to decide Hals. vol. 9 page 765; R. v. Cotham, (1898) 1 Q. B. 802; R. v. Cheshire Justices ex parte Heaver, (1912) 108 L. T. 374; R. v. Monmouthshire Justices ex parte Nevill, (1913) 109 L. T. 788 (C. A.); Ex parte Tebitt Bros., (1917) 116 L. T. 85, 86 (C. A.). Mr. Nazareth argued that it would; but several of the cases he cited were cases on certiorari which is governed by different considerations. The true principle in mandamus cases is that laid down by Lord Reading, L. C. J., in R. v. London County Council, (1915) 2 K. B. 466, at page 475: "It must be borne in mind that this Court, in determining whether or not mandamus should issue, is not exercising appellate jurisdiction. We are not entitled to decide according to the view we should have taken in the first instance had the matter come before us; we should only order mandamus to issue if we came to the conclusion that the council . . . had allowed their minds to be influenced by extraneous considerations". Or, as stated by Sanky, J. (as he then was), in R. v. Brighton Corporation, 114 L. T. at page 804: "It is the duty of this Court to see that the methods which they (the inferior tribunal) have adopted and acted upon are correct, and not to criticise the conclusions at which they have arrived". Or, as stated by Wills, J., in Reg. v. Cotham (supra) approved and followed by Kennedy, L. J., in R. v. Monmouthshire Justices (supra): "I take the governing principle to be that if the justices have applied themselves to the consideration of a section of an Act of Parliament, and have, no matter how erroneously, determined the question which arises on it before them, their decision cannot be reviewed by process of mandamus".

In Commissioners of Income Tax v. Pemsel, (1891) A. C. 531, cited by Mr. Nazareth, there was no question of the Commissioners having to be "satisfied" or exercising a discretion; if the facts and law justified the allowances, the allowances had to be given. It was therefore, necessary for the court to come to a conclusion whether the allowances were justified or not. That case has no application to the present case.

In any event, we are by no means persuaded that the decision of the Principal Immigration Officer was erroneous. It is, as Mr. Nazareth submitted, correct that a partner in a business venture is a principal carrying on business for himself as well as for his partners: he is both a principal and an agent. But what fell to be considered by the Principal Immigration Officer was what was the meaning to be ascribed to the words, "a person intending to carry on a trade or business . . . on his own account in the Colony", in the context of the Immigration (Control) Ordinance.

According to the Oxford Dictionary, the first and primary meaning of "own" used after a possessive is to emphasize the possessive meaning e.g. "his own words", "at his own cost", "with my own eyes", "with my own hands". The meaning is "my" or "his" and not another's. Mr. Nazareth has argued that the antithesis of to carry on business on one's own account is to carry on business on another's account, i.e. as agent or trustee. But we think that this is not only part of the antithesis. The opposite of "on his own account" is "not on his own account" and this is commonly used in the sense of on account of others also. To test this by a simple example:

A, a businessman, carries on three businesses: (i) individually, trading as "A"; (ii) in partnership with B, trading as "A, B, & Co."; and (iii) as agent of the C Company Ltd., under the name "C Company Limited, Agent A". A maintains an account for each of these businesses in a bank. He

pays cash into the bank, with the instruction: "These moneys are part of the proceeds of the business which I am carrying on on my own account. Please credit it accordingly".

To which of the three accounts would the bank credit the money? Undoubtedly, to the account of A's individual business. Why? Because that is the ordinary meaning of the words "on my own account" used in his instruction.

Is it, then, to be supposed that the legislature in enacting section 7 of the Ordinance and in speaking of a person intending to carry on a trade or business on his own account, intended to depart from the ordinary meaning of those words a meaning which would exclude not only the agent or trustee, but the partner? We think that the Principal Immigration Officer may well have been right in not imputing such an intention to the legislature.

However that may be, we are not sitting in appeal from him, and we cannot possibly say that to attempt to arrive at the intention of the legislature in this regard was an extraneous matter which the Principal Immigration Officer should not have taken into consideration. Moreover, except where the public duty to be formed is only ministerial the issue of mandamus is a matter for the discretion of the Court (R. v. Sarum (Bishop of), (1916) 1 K. B. 466, 470). The applicant has totally failed to convince us that we should issue a mandamus to the Principal Immigration Officer in this case.

Accordingly, the Order *nisi* must be discharged, with costs.