[1938] EACA 63

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR JOSEPH SHERIDAN, C. J. (Kenya); SIR CHARLES LAW, C. J. (Zanzibar); and FRANCIS, Ag. C. J. (Uganda).

## NGILISHO GADI MSUE, Appellant (Original Plaintiff)

1. The Council of Chhagga Chiefs, Moshi, as the Native Authority for Moshi District. 2. The Native Authority of Mashame and Kibongoto, Moshi District, by Chief Hery Abdiel Marsi Shangali. 3. The Kilimanjaro Native Co-operative Union, Limited, Moshi; and 4, The Attorney General (Tanganyika), Respondents (Original Defendants).

## Civ. App. No. 1 of 1938.

Appeal from decision of McRoberts, J. (Tanganyika).

Suit against Native Authority—Fiat of Governor—Declaratory action -Native Authority Ordinance, Cap. 47, and Government Suits-Ordinance, Cap. 4 (Laws of Tanganyika)—Tanganyika Order in Council, Art. 17.

The first named respondent purporting to act under section 15 of the Native Authority Ordinance promulgated a rule or order requiring all native coffee planters within the area under its jurisdiction. to sell the coffee produce of their plantations to the third named respondents and not otherwise under sanction of fine and/or imprisonment.

Appellant, a native cultivator of coffee at Mashame in the Moshi District instituted a suit against the first, second and third named respondents for a declaration that the said rule or order was void as being ultra vires.

The fourth named respondent was, on his application, joined as a party on the ground that the second and first respondents were part of the Government. The suit was later dismissed on the ground that the suit being a suit against the Government could not be instituted without the written consent of the Governor which was a condition which could not be waived.

Appellant appealed against the order whereby the Attorney General was joined as a party and the order dismissing the suit.

Held $(21-1-38)$ .—(1) That a declaratory order cannot be obtained under the Government Suits Ordinance (Cap. 4) and that in a suit for a declaratory order the fiat of the Governor is not necessary.

(2) That as a Native Authority appointed under Cap. 49, Laws of Tanganyika, does not possess immunities of a great department of State, a suit against such a body is not a suit against Government.

Appeal allowed. Attorney General's application to be joined as a party withdrawn.

$Bown$ for the appellant.

Respondent No. 3, absent, unrepresented.

Branigan, Ag. Solicitor General (Tanganyika) for 1st, 2nd and 4th respondents.

It is difficult to support the decision appealed from. Is it only through the Government Suits Ordinance that an action can be taken against the Government of Tanganyika Territory? The Ordinance gives the same remedies against the Government as can be obtained in England against the Crown by petition of right. A declaratory order could not be obtained by petition of right in England and therefore cannot be obtained under the Tanganyika Ordinance. I submit it might be obtained against a Native Authority under Tanganyika Order in Council, Article 17. There is no provision in the Indian Civil Procedure Code for obtaining a declaratory order, O. 8 r. 7.

I submit that the Native Authorities are not part of Government within the meaning of the Government Suits Ordinance. If they were part of Government it must follow that they would enjoy the immunities and privileges attached to the Crown. No writ of Mandamus would lie: the doctrine of *Respondent superior* would not apply. Contracts entered into by Native Authorities would be binding on the Crown.

The powers given to Native Authorities are local. Native Authorities are not exempt from criminal liability, Cap. 47, sec. 14. They are law making bodies because they have been so invested under the Ordinance. They do not deal with Crown property. I submit they are merely local authorities. No county councils or local government bodies are part of the Crown. I ask that the appeal be allowed with costs against the Attorney General.

The JUDGMENT of the Court was delivered by Sir Joseph Sheridan, C. J.-It has been submitted to us by the learned Acting Solicitor General of Tanganyika, Mr. Branigan, that the Attorney General is unable to support the judgments in this case. The first judgment to the effect that a fiat is necessary in a case of this kind where a declaratory order is asked for he states he cannot support, for the reason that a declaratory order does not fall within the scope of the Government Suits Ordinance which he says substantially enacts the provisions of the Petition of Rights Act. He submits that a suit in such a case comes within the provisions of Article 17 of the Order in Council and consequently that no fiat is necessary.

Regarding the second judgment his submission is that the Council of Chiefs derives its authority from Cap. 47 of the Laws of Tanganyika, the Native Authority Ordinance, that the Ordinance inter alia definitely renders the Council subject to criminal liability and shortly that the Council does not possess the immunities or the privileges of a great department of State and cannot be regarded as such.

In short the submission of the learned Solicitor General is that he cannot support either judgment for the reasons he has stated and he considers that the appeal must be allowed, the Attorney General withdrawing the application he made to be joined as a defendant, this resulting in the first prayer of the Memorandum of Appeal being granted. The costs of this appeal and the costs in the Court below the Attorney General undertakes to pay. There will be no order as to costs in regard to the third respondents who have not appeared, though they have been served.

It is agreed by Counsel that the result of allowing this appeal will be to place the appellant in the same position he occupied prior to the telegram of the Attorney General asking the District Registrar to stay proceedings.

Finally we allow the appeal in the terms and with the consequences we have set out above.