[1955] EACA 323

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (Vice-President), SIR ENOCH JENKINS, Justice of Appeal, and BRIGGS, Justice of Appeal

## IN THE MATTER OF AN APPLICATION FOR DIRECTIONS IN THE NATURE OF HABEAS CORPUS BY KESHAVLAL PUNJA PARBAT SHAH, A ppellant

## Criminal Appeal No. 996 of 1954

(Appeal from the decision of H. M. Supreme Court of Kenya, Paget Bourke and Connell, J. J.)

Habeas corpus—Prerogative writ—Criminal Procedure Code, sections 360, 378, 388 and 389 (1)—Jurisdiction of Supreme Court to entertain applications for prerogative writs on its civil and criminal sides—Appeals—Civil Procedure Ordinance, sections 66 and 75.

The appellant applied to the Supreme Court for "directions in the nature of" habeas corpus" heading his application "In the matter of the Criminal Procedure Code (Cap. 27), Laws of Kenya, section 388". On order *nisi* of the Supreme Court was discharged by it.

The appellant had not been charged, nor was it intended that he would be charged with any criminal offence, and there was, thus, no conviction after trial so as to bring into existence the right of appeal either under section 360 or section 378 Criminal Procedure Code. The matter arose out of the arrest and detention of the appellant under a deportation order.

According to a dictum in Lall Khan v. R. 17 E. A. C. A. 118, so far as Kenya is concerned, the issue of prerogative writs is, by section 388 (1) (now section 389 (1)) of the Criminal Procedure Code, allocated to the exercise of the criminal jurisdiction and not the civil jurisdiction of the Supreme Court.

Makhan Singh v. Principal Immigration Officer 17 E. A. C. A. 40 applied and extended the dictum in Lall Kahn's case, deciding that the application (for mandamus), although headed as a civil case could only be entertained by the Supreme Court in the exercise of its criminal jurisdiction and therefore no appeal $lav.$

Since the decision in Mukhan Singh's case the Supreme Court Registry has refused to receive any application for a prerogative writ on its civil side insisting that such applications must be entered on its criminal side.

It was contended that although the application to the Supreme Court was, in form, a criminal proceeding, it was, in substance, a civil proceeding so that the Eastern Africa Court of Appeal could entertain the appeal as one from an order or decree of the Supreme Court under the Civil Procedure Ordinance, sections 66 or 75.

Held (28-1-55).-(1) Semble-In Kenya, the Supreme Court has jurisdiction to entertain applications for prerogative writs on either its criminal or its civil side, according to<br>the nature of the proceeding. An application entered on the civil side will result in a decree or order, which will, subject to any local limitation on appeals from orders, be appealable to the East African Court of Appeal, under the Civil Procedure Ordinance.

(2) No appeal lies from a judgment refusing a prerogative writ in a criminal cause or matter. The matter out of which the proceedings arose was not a criminal cause or<br>matter, but the relief was sought under Criminal Procedure Code, section 388, viz. in criminal proceedings, so that an appeal did not lie from the judgment of the Supreme Court.

(3) There is no precedent for converting a criminal proceeding into a civil proceeding. (4) Semble-The above quoted dictum in Lall Single v. R. and the decision in Makhan Singh v. Principal Immigration Officer are incorrect.

Appeal dismissed.

Cases referred to: White v. A. G. of East African Protectorate, (1914) 6 E. A. L. R. 3; Cases Interfed to: Write v. A. G. of East African Protectorate, (1914) 6 E. A. L. K. 5;<br>R. v. Yusufu, (1931) 13 K. L. R. 64; Amand v. Home Secretary and another, (1943) A. C.<br>147; Lall Khan v. R., 17 E. A. C. A. 118; Makhan Singh v.

Gledhill for appellant.

Webber for respondent.

[Editorial Note.—The report of a bench of five Judges, approving this decision and refusing to follow the decision in Makhan Singh v. Principal Immigration Officer, appears ante page 216.]

JUDGMENT (read by Worley (Vice-President)).—This is an appeal from an order of two Judges of the Supreme Court of Kenya discharging a rule nisi obtained at the instance of the appellant for "directions in the nature of habeas" corpus". It is material to note that the application to the Supreme Court is headed-

"In the matter of the Criminal Procedure Code (Cap. 27) Laws of Kenya,

section 388

and

In the matter of an application by KESHAVLAL PUNJA PARBAT SHAH, for directions in the nature of habeas corpus."

By agreement we heard argument on the preliminary point as to whether in the circumstances an appeal lies from such an order to this Court and now give our decision on this point.

The relevant facts are not in dispute. The appellant was born in India and his presence in the Colony is said to be unlawful. He has been declared a prohibited immigrant and arrested under a Deportation Order made under the Immigration (Control) Ordinance (Chapter 51 of the Laws of Kenya, 1948). He is now lodged in the Nairobi Prison pending his removal to India unless previously released by order of court. It is common ground that he is not charged nor will be charged with any criminal offence arising out of his alleged unlawful presence in the Colony. The intention of the executive is merely to deport him to his native country.

It is not disputed by Mr. Gledhill that if the order sought to be appealed from was made in a criminal cause or matter no appeal therefrom lies to this Court. There has been no conviction after trial so as to bring into existence the right of appeal created either by section 378 or section 360 of the Criminal Procedure Code. See the decisions of this Court in White v. A. G. of the East African Protectorate (1914) 6 E. A. L. R. 3 and R. v. Yusufu (1931) 13 K. L. R. 64.

But, on the other hand, Mr. Gledhill has contended that, although the application to the Supreme Court was in form a criminal proceeding (for reasons which will be made apparent hereinafter), it was in substance a civil proceeding and that accordingly this Court can entertain the appeal as one from an order or decree of the Supreme Court under the provisions of section 66 or section 75 of the Civil Procedure Ordinance. Mr. Webber for the respondent, concedes that the matter is in substance a civil one and that in England an appeal in a similar case would lie to the Court of Appeal. We think this is undoubtedly correct. In Ainand v. Home Secretary and another (1943) A. C. 147 at pp. 155, 156 Viscount Simon, L. C., said: —

"If, however, the application for the writ of habeas corpus is refused, and the question arises whether an appeal lies against such refusal, a distinction must be made. If the judgment of the High Court refusing the writ is in any criminal cause or matter no appeal lies. If it is not, an appeal is competent. ... It is the nature and character of the proceeding in which habeas corpus is sought which provide the test. If the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is criminal. This is the true effect of the 'two conditions' formulated by Viscount Cave in In re Clifford and O'Sullivan (1921) 2 A. C. 570, 580."

And see also Lord Wright's speech at page 162.

Applying this test it is clear that the matter out of which these proceedings have arisen, namely, the arrest and detention of the appellant under a deportation order, is not a criminal cause or matter. How then has it come about that the application to the Supreme Court was made under the provisions of the Criminal Procedure Code? The answer is to be found in two decisions of this Court in 1950; Lall Khan v. Reg. 17 E. A. C. A. 118 and Makhan Singh v. Principal Immigration Officer, 17 E. A. C. A. 40.

In Lall Khan's case, the appellant had been convicted in a magistrate's court and later moved the Supreme Court to issue a writ of certiorari which was refused. He appealed to this Court against that refusal, but his appeal was dismissed with costs on the ground that the court had no jurisdiction to entertain it. As is said in the judgment, at page 119: "As a matter of fact the proceedings in the case, both the application for the writ and the appeal from the order on the application, were expressed to be criminal proceedings and were expressly brought by the appellant on the criminal side ... the right of appeal to this Court depends on the law of Kenya and by that law the whole matter, being on the criminal side of the Supreme Court's jurisdiction, is "in our opinion, clearly governed by the Criminal Procedure Code which does not give any right of appeal in such cases". With that decision we respectfully agree: certiorari to quash a conviction is in substance as well as form a criminal proceeding, R. v. Fletcher (1876) 2 Q. B. D. $43.$

But in its judgment the court further said:-

"Although in England the writ of certiorari was certainly not a remedy on the criminal side and was in fact an original proceeding on the Crown side in the King's Bench Division, the position is not necessarily the same in Kenya and in fact there is no mention of such writs in the Civil Procedure Ordinance.

On the other hand, section 388 (1) of the Criminal Procedure Code provides that 'the Supreme Court may in the exercise of its criminal jurisdiction issue any writ which may be issued by the High Court of Judicature in England.'

In our opinion, this is the section which governs the power to issue a writ of certiorari in Kenya, and even if the remedy would still have been available if this section had not been enacted, the fact is that the section has been enacted and provides that as far as Kenya is concerned the issue of such writs is allocated to the exercise of the criminal jurisdiction and not the civil jurisdiction of the Supreme Court."

We think, with respect, that it is incorrect to say that in England certiorart was not a remedy on the criminal side: it lay to remove indictments from inferior courts of criminal jurisdiction into the High Court for trial, or to quash proceed-

ings of inferior criminal courts: see Halsbury's Laws of England, 2nd Edition, volume IX, paragraphs 1426–1432, and R, v Fletcher (supra). But the more material part of the passage cited is the dictum that so far as Kenya is concerned the issue of prerogative writs is, by the enactment of section 388 (1) (now section 389 (1)) of the Criminal Procedure Code allocated to the exercise of the criminal jurisdiction and not the civil jurisdiction of the Supreme Court.

This dictum was applied and extended by the same court in Makhan Singh's case. But before considering that case we think it pertinent to observe that the headnote to the report is misleading. Mr. Chanan Singh, as the judgment itself shows, withdrew and did not argue the appeal for the appellant, who, as the original record shows, argued in person that his appeal was a civil matter and should be heard on its merits. The original record also shows that the Attorney-General Mr. O'Connor (as he then was) took the same view and cited authority to the effect that the application having been made in a civil cause or matter the appeal was competent. The court, however, following its dictum in *Lall Khan's case*, decided that the application (which was for a writ of mandamus to require the respondent to endorse on the appellant's passport a certificate of permanent residence) although headed "Civil Case No. 327 of 1949" could only be entertained by the Supreme Court in the exercise of its criminal jurisdiction and therefore no appeal lay.

We are informed that since that decision the Registry of the Supreme Court has refused to receive any application for a prerogative writ on the civil side and has insisted on their being entered on the criminal side. Hence the form of the application and the relief asked for in the instant case.

Mr. Gledhill has invited us to disregard the form of the application and, having regard to its substance, to treat it as an appeal in a civil cause or matter. We think that were it merely a question of form and of the heading of the application it might be possible for us to do so: but our difficulty is that the relief asked for is one which is created by section 388 of the Criminal Procedure Code and we do not know of any precedent for converting a criminal proceeding into a civil one. With some reluctance therefore we feel constrained to hold that this appeal is incompetent and must be dismissed.

It is a most unfortunate result for the appellant. No blame attaches to his legal advisers or to the Registrar of the Supreme Court who have very properly felt themselves bound by the decisions in the two cases of Lall Khan and Makhan Singh. We think it only right, however, considering that the effect of those decisions is to deprive the subject of a right of appeal which he would otherwise enjoy, to express our doubts as to the correctness of the dictum in Lall Khan's case and the decision in Makhan Singh's case.

The writs of habeas corpus ad subjiciendum and of certiorari concern the liberty of the subject and in such matters the rule of stare decisis does not hold, although the matter may be in a sense a civil one. The true distinction is not whether the proceedings are criminal or civil, but whether the liberty of the subject is involved. In R. v. Taylor (1950) 2 A. E. R. 170 at page 173, Lord Goddard L. C. J., delivering the judgment of the Court of Criminal Appeal in England, $said: -$

"In civil matters it is essential in order to preserve the rule of stare decisis that that should be so, but this Court has to deal with the liberty of the subject and if, on reconsideration, in the opinion of a full court the law has been either misapplied or misunderstood and a man has been sentenced for an offence, it will be the duty of the court to consider whether he has been properly convicted. The practice observed in civil cases ought not to be applied in such a case, and in the present case the full court of seven Judges is unanimously of opinion that $R$ . v. Treanor (or McAvoy) (1939) 1 All E. R. 330, was wrongly decided."

The reasoning which this Court applied in Lall Khan and Makhan Singh was that since section 389 of the Criminal Procedure Code specifically empowered the Supreme Court in the exercise of its criminal jurisdiction to issue such prerogative writs as might be issued by the High Court in England, and since there is no provision in the Civil Procedure Ordinance for the issue of any such writs, the proper conclusion was that in Kenya all prerogative writs must be issued in the Supreme Court only in the exercise of its criminal jurisdiction. With the greatest respect, we think that the reasoning is fallacious.

By Article 4(2) of the Kenya Colony Order in Council, 1921, the jurisdiction of the Supreme Court is primarily based, apart from local legislation, on the applied Indian legislation, but includes also, where these are silent, the civil and criminal jurisdiction of the High Court in England. Applications for habeas corpus and the prerogative writs are made on the Crown side of the Queen's Bench Division and may be either civil or criminal in nature: see, for instances of habeas corpus of a non-criminal nature, the speech of Lord Wright in Amand's case supra, at page 160; and see also R. v. Collins (1876) 2 Q. B. D. 30 (quo warranto); R. v. Fletcher (supra) (certiorari); R. v. Governor of Brixton Prison (1910) 2 K. B. 1056, per Fletcher Moulton, L. J. at page 1065. If the proceeding is civil in character an appeal will lie to the Court of Appeal: if it is criminal then no appeal will lie: see Halsbury 2nd Edition, Volume IX, paragraphs 1360 and 1361. This was the position in England even before the Judicature Act, 1873, section 47: see R. v. Steel (1876) 2 Q. B. D. 37. Accordingly in Kenya under the Order in Council the Supreme Court has jurisdiction to entertain such applications on either its civil or its criminal side according to the nature of the proceeding. If it is entered on the civil side, the application will result in a decree or order which will, subject to any local limitation on appeals from orders, be appealable to this Court under the Civil Procedure Ordinance. These writs constitute a very important aspect of the jurisdiction of the Supreme Court and we should expect that if the legislature intended to abolish the right to issue them on the civil side, with the consequent abolition of the right of appeal, it would only be done by express words or necessary intendment. There are certainly no such express words in either the Civil Procedure Ordinance or the Criminal Procedure Code: nor are we persuaded that there is any such necessary intendment.

The Criminal Procedure Code is intended to be exhaustive (section $3(1)$ ) and $(2)$ save as to the limited extent prescribed in section 3 (3). As regards habeas corpus in criminal matters, the Privy Council appears to have decided that section 491 of the Indian Code (which corresponds to section 388 of the Kenya Code) has taken away the power to issue the common law writ: see Mitra on the Indian Criminal Procedure Code 12th Edition (1954), Volume II, page 1926; but the reports cited are not available here.

But the writ of habeas corpus has several forms and different uses and it may well be that the writ may still issue even on the criminal side if it is in a form or for a use which is not within the scope of section 388. See per Rankin, C. J., in Girindra Nath Banerjee v. Birendra Nath Pal, (1927) I. L. R. 54 Cal. 727 at page 751.

It may be therefore that section 388 of the Criminal Procedure Code does impose some limitations on the authority of the Supreme Court to issue the common law writ of habeas corpus in criminal matters. But that does not apply to section 389. What then was the intention underlying this section? If as we think, the Code was intended to be exhaustive of criminal procedure, it would obviously be advisable as a matter of caution, if not of necessity, to enact this section; if the whole of the common law criminal jurisdiction conferred on the court is

superseded by the Code, it was necessary specially to include therein the power to issue prerogative writs on the criminal side. We venture to think that this is a far more reasonable and legitimate inference than that drawn by the Court in *Makhan* Singh's case.

On the other hand, the absence of any special provision for prerogative writs in the Civil Procedure Ordinance does not justify an inference that the legislature intended to repeal the power to issue them on the civil side. The Civil Procedure Ordinance does not purport to be exhaustive, save on the matters specifically dealt with by it. Section 3 of the Ordinance provides that "In the absence of any specific provision to the contrary nothing in this Ordinance shall be deemed to limit or otherwise affect any special jurisdiction or power conferred, or any special procedure prescribed, by or under any other law for the time being in force". We think the following summary of decisions on the Indian Civil Code is applicable to the Kenya Ordinance and Rules: see Chitaley's Code of Civil Procedure, 5th Edition (1951), Volume I, page 9:-

"The absence of any provision on any particular matter does not mean that the court has no power to act in regard to the matter. It is a rule of construction of a statute like the Civil Procedure Code, that the court ought not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for, but should proceed on the opposite principle that every procedure is to be understood as permissible till it is shown to be prohibited by law.

The Code is thus not exhaustive of all forms of procedure necessary to be used in the administration of justice. For instance, where a court had a power before the Code was passed and the same is not taken away by the 'Code, the power remains."

We can conceive of no reason why the legislature should wish to abolish the issue on the civil side of prerogative writs; and it would be most illogical to do so for in many, if not most, cases these writs are issued in matters which have not the remotest connection with the criminal law. We have not overlooked that in England the writs of certiorari, mandamus, prohibition and quo warranto have been replaced by orders of similar effect; but this depends on a recent English statute not applicable to Kenya, and in Kenya the writs would still issue.

It is unfortunate that the conflict of judicial opinion revealed in this judgment cannot be resolved in the instant case. Possibly if the appellant is sufficiently public-spirited or sufficiently anxious to avoid deportation, he will apply again to the Supreme Court, but this time for the common law writ on the civil side. If on such application the matter should reach this Court by way of appeal, it would be possible to resolve the conflict by convening a full court of five Judges.