Phirox Beheramjee Mistry v District Commissioner Nairobi and Others (No Case Number) [1938] EACA 211 (1 January 1938)

## ORIGINAL CIVIL

BEFORE SIR JOSEPH SHERIDAN, C. J. AND LUCIE-SMITH, J.

## PHIROZ BEHERAMJEE MISTRY. Plaintiff $\nu$ .

THE DISTRICT COMMISSIONER, NAIROBI, MESSRS. A. C. TANNAHILL, G. A. TYSON, DICKENS AND DR. DE SOUZA, as constituting the Licensing Court, 1937, of the District of Nairobi, by virtue of the provisions of section 11 of the Liquor Ordinance, 1934, Defendants

Mandamus—Liquor Ordinance 1934, sections 29 and 33—Res Judicata -Previous decision of Supreme Court between the same parties -Pendency of appeal.

Plaintiff in 1934 purchased a general retail liquor licence and then entered into a lease from one A. of certain premises whereon he carried on business under the said licence. After the expiration of the lease on $21-8-37$ and being unable to get an extension of the lease the plaintiff built premises next to those comprised in the lease and applied for and obtained on $2-9-37$ a temporary transfer of the licence under section 33 of the Liquor Ordinance, 1934, and then started to do business in the new premises. On 6-9-37 plaintiff applied to the defendants for confirmation of the temporary transfer and for renewal of the said licence under sections 34 and 35 of the Ordinance. Both applications were refused and plaintiff then obtained in the Supreme Court an order calling on the defendants to show cause why they should not be called upon to hear and determine the said applications according to law or why they should not give plaintiff an opportunity to apply for relief under section 29 of the Ordinance. On the defendants showing cause the Court made absolute the rule in respect of the application for confirmation but discharged the rule in respect of the application for renewal and for relief under section 29 on the ground that these matters were in the unfettered discretion of the Licensing Court irrespective of the result of the application for confirmation. Both parties appealed from this ruling.

In pursuance of the rule, the application for confirmation was reheard and granted. Plaintiff then applied for the second time for renewal which was again refused as also was their application for relief under section 29. Plaintiff then obtained the rule nisi in this case calling on the defendants to show cause why they should not hear and determine according to law the said applications for renewal and/or relief under section 29. The defendants showed cause and the case was heard while the appeals from the original rule were pending.

*Held* (31-12-37).—That the points raised in this case had already been decided<br>by the Supreme Court which decision, as between the same parties, was binding on the other Judges of the Supreme Court so long as it remained unreversed.

Wallace, Acting Solicitor General, for the defendants referred to Regina v. Manchester and Leeds Railway Co. (112 E. R. 895); R. v. Pickles (12 L. J. Q. B. 40); Ex parte Thompson (14 L. J. Q. B. 176); Regina v. Mayor and Justices of Bodmin (1892 2 Q. B. 21); Rex v. Kensington Income Tax Commissioners (1917 1 K. B. 519) and Rex v. Eve (111 E. R. 1361).

Harrison for the plaintiff replied.

SIR JOSEPH SHERIDAN, C. J.—The argument before us in this matter has resolved itself into a question of whether a decision of the Supreme Court (Webb and Hayden J. J.) on a point of law is incorrect and should be reversed. In the circumstances, that an appeal has been lodged against that decision which will be heard at the Court of Appeal for Eastern Africa at the forthcoming January Sessions, we confine ourselves to a consideration as to whether this Court is the proper tribunal for determining the correctness or otherwise of the decision arrived at. The case is not one of a plaintiff inviting one Judge of the Supreme Court to overrule the decision of another Judge of the same Court on a point of law. If it were so the dictum of Bray J. in *Forster v. Baker* (1910 2 K. B. 636) which was followed by du Parcq J. in Green v. Berliner (1936 2 K. B. 477) might possibly apply, though a difficulty facing the plaintiff would be as to whether the present case was not an attempt by him to reagitate a question already decided between the same parties in the same case and before the same Court, in other words res judicata. In the former case Bray J. says: "I have always understood that one Judge is not bound by the decision of another Judge on a point of law at nisi prius and, therefore, I think I am bound to consider the case and to decide it according to my own opinion, at the same time giving great weight to the decision of Darling J.". The case before us was heard and decided after argument on the very questions of interpretation of the sections of an Ordinance sought to be raised before us by a two-Judge bench of this Court and in our opinion it would not be proper for this Court to regard itself as not bound by the decision while it remains unreversed. In Barker v. Stead (136) E. R. 379), Wilde C. J. said: "The Court of Exchequer having solemnly decided the point, I think it does not become a Court of co-ordinate jurisdiction to entertain a discussion as to the propriety of such decision. That should be left to a Court of Error. The contrary course would tend to much uncertainty and inconvenience to the public". In these words are contained the principle by which we should be guided and we make an order discharging the Rule, and in doing so we would add that the present case is a stronger case than that of *Barker v. Stead (supra)* in that the application is made to the same Court that had already decided the question. The question of costs is left over for argument on a date to be agreed by Counsel.

LUCIE-SMITH J.-I have read the judgment of the learned Chief Justice with which I agree and would only add that it appears to me that it would be a most dangerous practice for the Court to hear a second similar application when the parties are the same and when the Court (composed of other Judges) has already adjudicated and the decision is pending appeal. The rule should be discharged.