[1954] EACA 153

## ORIGINAL CRIMINAL

Before SIR HECTOR HEARNE, C. J., BOURKE and CORRIE, JJ:

## Ex parte: NARAN MANJI, Applicant

#### ν.

## THE PRINCIPAL IMMIGRATION OFFICER, Respondent

## Miscellaneous Criminal Case No. 22 of 1953

Immigration (Control) Ordinance (Cap. 51)—Immigration (Control) Regulations, 1948, regulation 3 (1) (c)—Rule *nisi* on Principal Immigration Officer to show cause why a writ of mandamus should not issue to him to endorse a certificate of permanent residence on applicant's passport—Jurisdiction—Whether Principal Immigration Officer "satisfied" by applicant in terms of regulation 3 (1) $(c)$ —Rule discharged—Costs.

The applicant entered the Colony in June, 1946, by virtue of a re-entry permit in the name of Naran Manii Mawii. He also obtained a passport from the Commissioner for the Government of India in the name of Naran Manji. The original passport to the applicant was issued at Bombay in the name of Popatlal Velji Jagshi. Under the Immigration (Control) Regulations, 1948, before a person is entitled to have endorsed on his passport a certificate of permanent residence he has to satisfy the Principal Immigration Officer that he falls within regulation 3 (1). The Principal Immigration Officer alleged he had not been so satisfied by the applicant. On 3rd December, 1953, the Deputy Governor made a Deportation Order in respect of the applicant on the ground that the applicant had been permitted in error to enter the Colony under a re-entry permit issued in the name of Naran Manji Mawji. The applicant then applied for an order that a writ of mandamus should issue to the Principal Immigration Officer directing him to endorse on the passport of Naran Manji a certificate of permanent residence in accordance with regulation 3 (1) (c) of the Immigration (Control) Regulations, 1948.

*Held* $(24-1-54)$ .—(1) When a duty has to be performed by the Crown the Court cannot claim even in appearance to have any power to command the Crown.

(2) Parties acting as servants of the Crown and amenable to the Crown are not amenable to the Court in the exercise of its prerogative jurisdiction.

(3) If, in the absence of any other equally appropriate remedy, a statutory obligation is cast upon servants of the Crown to do some ministerial act necessary to enable a<br>claimant to make good his claim to relief, mandamus will issue, provided that the statute imposing the obligation does create a duty towards the applicant.

(4) If, however, a power or discretion only, as distinct from a duty, exists, a writ of mandamus will not be issued.

(5) The Court will not compel any authority to exercise a power which is merely permissive and which does not impose an obligation. Where however a statute has been interpreted and action taken in the light of matters which ought not to have been taken into account, that is to say which the Court considers not to be proper for<br>the guidance of the discretion entrusted to the persons concerned, the latter will be considered not to have exercised their discretion according to law and a mandamus will issue commanding them to exercise their powers under the statute in question.

(6) The applicant applied for an endorsement on his passport of a certificate of permanent residence to which he was entitled only if he satisfied the Principal Immigration Officer under regulation 3 (1) (c) of the Immigration (Control) Regulations, 1948. The<br>Principal Immigration Officer was not so satisfied and the appellant was not entitled to the endorsement.

(7) The Principal Immigration Officer in refusing to endorse the certificate did not take into account matters which he should not properly have taken into account and accordingly the rule was discharged with costs.

Cases considered: The Queen v. The Lords Commissioners of the Treasury, (1872)<br>L. A. 7 Q. B. 387; The Queen v. The Registrar of Joint Stock Companies, (1881); Rex v. Marshland Smeeth and Fen District Commissioners, (1920) 1 K. B. 155; Rex v. St. Pancras (Vestry), (1890) 24 Q. B. D. 371 (C. A.); also referred to: Short and Mellor. Practice of the Crown Office, 2nd Ed., page 202.

#### Bhandari for the applicant.

# Webber, Crown Counsel, for the respondent.

JUDGMENT.—On the application of Naran Manji an Order *nisi* was served on the Principal Immigration Officer requiring him to show cause why a writ of mandamus should not be issued to him directing him to endorse on the passport of the said Naran Manji a certificate of permanent residence in accordance with section 3 (1) (c) of the Immigration Control Regulations, 1948. The first question is whether this Court has jurisdiction to direct the Principal Immigration Officer to make the endorsement.

In the Queen v. The Lords Commissioners of the Treasury, (1872) (L. R. 7 Q. B. 387) Cockburn C. J. said, "I take it, with reference to that jurisdiction, we must start with this unquestionable principle, that when a duty has to be performed (if I may use that expression) by the Crown, this Court cannot claim even in appearance to have any power to command the Crown; the thing is out of the question. Over the Sovereign we can have no power. In like manner where the where the parties are acting as servants of the Crown and are amenable to the Crown, whose servants they are, they are not amenable to us in the exercise of our prerogative jurisdiction": while Blackburn J. said: "The question remains whether there is a statutory obligation cast upon the Lords of the Treasury to do what we are asked to compel them to do by mandamus... because it seems to me clear that we ought to grant a mandamus if there is such a statutory obligation."

In the Queen v. Registrar of Joint Stock Companies, 21 Q. B. D. 131, Willis J. said that a mandamus would lie to the Registrar in a matter in which he has no discretion, but is acting in the performance of a ministerial office: and in the Practice of the Crown Office by Short and Mellor the learned authors say at page 202 of the 2nd edition: "It is somewhat difficult to reconcile all the cases on this point, although it seems that the general principle running through all of them is, that where in the absence of any other equally appropriate remedy, a statutory obligation is cast upon servants of the Crown to do some ministerial act necessary to enable a claimant to make good his claim to relief, mandamus will issue: but it must clearly appear that the statute imposing the obligation does create a duty towards the applicant." If, however, "a power or discretion only, as distinct from a duty exists, a writ of mandamus will not be issued by the Court." (Rex $v$ . Marshland Smeeth and Fen District Commissioners, (1920) 1 K. B. 155 at page 165 cited in *Halsbury*, vol. 9, at page 751.) "The court will not compel any authority to exercise a power which is merely permissive, and which does not impose an obligation. Where, however, a statute has been interpreted and action taken in the light of matters which ought not to have been taken into account, that is to say which the court considers not to be proper for the guidance of the discretion entrusted to the persons concerned, the latter will be considered not to have exercised their discretion according to law, and a mandamus will issue commanding them to exercise their powers under the statute in question." (Halsbury, 2nd edition, vol. 9, at page 767, where Rex v. St. Pancras (Vestry), (1890) 24 Q. B. D. 371 (C. A.) is cited.)

The answer to the first question, a question of law, appears from the authorities we have cited. Following these authorities, the next question is one of fact. The applicant is seeking an endorsement on his passport which will confer on him the status of a permanent resident of the Colony: he is entitled to such a certificate only if he satisfies the Principal Immigration Officer that he is entitled to it under regulation 3 (1) (c) of the Immigration Control Regulations, 1948: the Principal Immigration Officer has not been so satisfied by the applicant: did the Principal Immigration Officer, in refusing to endorse the certificate, take into account matters which he should not properly have taken into account?

We do not think that he did and the rule is therefore discharged with costs.

CORRIE, J.—I concur. I would add that it now appears that the applicant is asking this Court to find as a fact, upon the strength of his own affidavit alone. that although he is now known as Naran Manji Mawji, he was formerly known as Popat Valji Jagshi; and hence, that a passport to which a photograph of Popat Valji Jagshi was attached, was properly issued to him in the name of Naran Manji. Clearly this is not a matter to be determined by this Court upon an affidavit. Moreover, the evidence should have been submitted to the Principal Immigration Officer.