[1937] EACA 206

## ORIGINAL CIVIL

#### Before WEBB, J.

## THE ATTORNEY GENERAL FOR THE COLONY AND PROTECTORATE OF KENYA. Plaintiff

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# ALIBHAI MULLA JEEVANJEE AND OTHERS, Defendants C. C. No. 176/1935

### **Practice—Parties—Mortgage suit—Mortgage to His Majesty the King** -Right of Attorney General to sue.

Held (27-1-36).—That, apart from some statutory provision authorising some other officer or department of Government to do so, the Attorney General is the<br>proper person to sue on behalf of His Majesty.

Bruce, Solicitor General, for the plaintiff.

Trivedi for the defendant, Tayabali Mulla Jeevanjee. The other defendants did not appear.

JUDGMENT.—By a mortgage, dated 31-5-1921, the defendant Alibhai Mulla Jeevanjee mortgaged to His Majesty King George V. a plot of land in Mombasa to secure the repayment of Fl. 40,000 with interest. The plot in question was held by the mortgagor in fee simple under a conveyance to him from Ali bin Salim dated 10-10-1900. In 1929, after an inquiry held under the Land Titles Ordinance (Cap. 143), a Certificate of Ownership, dated 30-3-1929 in respect of the plot, plot 326 of Section IV, was issued to "Alibhai Mulla Jeevanjee, Gulamhussein Mulla Jeevanjee, Ebrahimji Mulla Jeevanjee, and Tayabali Mulla Jeevanjee, trading as A. M. Jeevanjee and Co.", and the certificate was declared to be "subject to a mortgage in favour of the Crown dated 31-5-1921". From the record of the proceedings in the Court of the Recorder of Titles it appears that Mr. Christie appeared for A. M. Jeevanjee and Co.

Up to 1931 the interest on the mortgage was paid, and the principal was from time to time reduced, by crediting to A. M. Jeevanjee and Co. the rent payable by the Government of Kenya in respect of premises in Nairobi belonging to A. M. Jeevanjee and Co., and occupied by the Government. In 1931 the Government vacated these premises and since then no payments in respect of principal or interest have been made, but at the request of A. M. Jeevanjee a moratorium was granted for three years as from 1-10-1932. This action is brought by the Attorney General against Alibhai Mulla Jeevanjee as the original mortgagor, against the firm of A. M. Jeevanjee and Co., as the registered owners of the land, and against Messrs. Gill and Johnson as the receivers appointed in other proceedings over the properties of A. M. Jeevanjee and Co.

The defendants other than Tayabali Mulla Jeevanjee have not appeared, but this defendant has filed a defence by which he disputes the right of the Attorney General for the Colony and Protectorate of Kenya to sue on behalf of His Majesty, and he further alleges that the plot though bought in the name of Alibhai Mulla Jeevanjee, he

being the eldest of the family, was at all times the property of the firm and that the mortgage was made without the knowledge or authority of the other members thereof.

In support of his first proposition Mr. Trivedi relies on section 2 of the Petitions of Right Ordinance (Cap. 17) which provides that "Claims by the Government of the Colony shall be brought by the Attorney General or by any officer authorized by law to prosecute such claims on behalf of the Government," and he says that this is not a claim by the Government of the Colony but by His Majesty. In my opinion the section does not confer upon the Attorney General any right or power which he did not possess apart from it, but merely recognises that other officers may be authorized by special laws to take proceedings on behalf of the Government and declares that in any case proceedings may be taken either by the Attorney General or by the officer authorized to sue in such a case. In this connexion, I would refer to section 4 (2) of the Administration of Justice Act. 1933, which provides "... proceedings by the Crown may be instituted in a County Court, and accordingly the power of the Attorney General, and any power conferred by any enactment upon a Government Department, or upon an officer of the Crown as such, to institute proceedings by the Crown shall include power to institute such proceedings in a County Court." In my opinion this section distinguishes between, on the one hand, the general power of the Attorney General and, on the other hand, special powers "conferred by any enactment" upon other officers to institute proceedings by the Crown, and I am of opinion that section 2 of Cap. 17 should be construed in the same way. A perusal of Chap. 1 of Robertson's Civil Proceedings by and against the Crown shows that where any other officer of the Crown or Government Department may sue or be sued it is always in virtue of some special statutory authority, but I am not aware of any statute which purports to confer such power on the Attorney General.

That at common law, and apart from such statutory provision authorizing some other officer or department to do so, the Attorney General is the proper person to represent the Crown cannot, I think, be doubted. Robertson says at p. 1, "The King participates in legal proceedings either in his own name or by his proper officers appearing on his behalf, namely his Attorney General or Solicitor General, his Procurator General or the Treasury Solicitor", and it may be noted that the right of the last named to sue or be sued is derived from the Treasury Solicitor's Act, 1876. Again in Halsbury (2nd Ed.) VI, 665, it is stated; "The King cannot appear in his own Courts to support his interests in person, but is represented by his attorney, who bears the title of His Majesty's Attorney General."

In R. v Austen (174 E. R. 48), which was a proceeding for the release from prison of an insolvent Crown debtor, the Court directed that notice should be given to the Crown, and the note to the case runs: "The Court being asked whether the notice should be served on the Treasury, or other department of the revenue, intimated that all such notices must in every case be served on the Attorney General, as the only legal representative of the Crown recognized in this Court, and that they could not judicially notice the Treasury, or any of the revenue boards." This case does not, perhaps, directly

touch the question whether an action, in which some right is claimed on behalf of the Crown, is properly brought by the Attorney General, but there are numerous cases in the books which show that the law is as stated in the passages quoted above from Robertson and Halsbury, although in England the form of action differs, being by information when the Crown is plaintiff.

A. G. to the Prince of Wales v. St. Aubyn (145 E. R. 1215) was a case brought by way of English information against the defendant for intrusion into lands pertaining to the Duchy of Cornwall and one of the points raised was whether it was competent for the A. G. to the Prince of Wales to file the information: the question with which I am concerned did not therefore arise but the following passage regarding the nature of the duties of the office of Attorney General occurs in the argument of counsel and its correctness does not appear to have been disputed: (p. 1216) "With respect to the civil duties of the Attorney General: the Revenues of the country being entrusted to the collection of the executive authority, the Crown necessarily appoints the officers, who are to collect them, and the officers also, who are to apply the same; it follows, therefore, that the Crown is the party to complain, if any part of the revenue be withheld... in all these instances there is every day cause of complaint, and the officer of the Crown for such purposes is the Attorney General: who proceeds either by information in the nature of debt: or, if it respects lands, by information of intrusion .... It is clear indeed, that the Attorney General is the officer to represent the Sovereign in the Sovereign Courts..."

Other examples of actions by the Attorney General on behalf of the Crown are A. G. v. Corporation of London (14 L. J. Ch. 305), a claim for a declaration of the title of the Crown to portion of the bed of the River Thames: A. G. v. Sutcliffe (1907 2 K. B. 997), a claim for the cost of repatriating an alien: and A. G. v. Great Southern and Western Railway (14 Ir. C. L. R.) a claim for overcharges in the conveyance of military baggage. But it is unnecessary to multiply decisions in support of what I hold to be well established; the first objection raised by the defence therefore fails.

The second plea raised by the defence seems to me to have even less substance in it. At the time of the mortgage the premises were held under a conveyance to Alibhai Mulla Jeevanjee; in the absence of some information calculated to put him upon inquiry the mortgagee was therefore entitled to treat him as owner. The only thing that has been suggested as tending to give rise to any doubt that the mortgagor was sole owner is a letter, dated 1-8-1919, from the defendant Tayabali to the Attorney General. But all that this letter contains is the information that Alibhai Mulla Jeevanjee is not the sole proprietor of the firm and there is nothing in it that is inconsistent with the possibility of his possessing property of his own. In the absence of evidence, and there has been none, that at the time of the mortgage it was known to Government that the premises were in fact partnership property, the provision in the Partnership Agreement; which was sent with the letter of 1-8-1919, forbidding any one partner to sell or mortgage any of the partnership property carries the matter no further. Apart from all this the Certificate of Ownership of 30-3-1929 is in my opinion conclusive against this defendant:

he admits that he was in Kenya at the time of the inquiry before the Recorder of Titles and at that inquiry the firm of A. M. Jeevanjee and Co. was represented. Section 7 of Cap. 143 makes the judgments of the Recorder of Titles final unless an appeal is taken, and section 21 makes the Certificate of Ownership conclusive evidence of the matters therein stated. It would require the strongest evidence of fraud or concealment to justify a Court, after this lapse of time. during practically the whole of which the defendant Tayabali has been in Kenya, in going behind the decision of the Recorder of Titles.

There will therefore be the usual primary decree, the Registrar to take an account of the sum in due for principal and interest up to 27-3-1936 (the interest to be calculated at simple interest) the plaintiff to have the costs of the action: in default of payment the premises to be sold.

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