[1954] EACA 147

## MISCELLANEOUS CRIMINAL

Before Sir Kenneth O'Connor, C. J., Bourke, J., and de Lestang, J.

### Ex parte: AMBALAL SHANKERBHAI PATEL, Applicant

# THE PLATEAU LICENSING COURT, Respondent

## Miscellaneous Criminal Case No. 9 of 1954

Certiorari—Mandamus—Liquor Ordinance (Cap. 266), section 50—Forfeiture of licence—section 23 (4) "hearing" means oral hearing—Necessity for giving licensee opportunity to make written representations—Natural justice.

The applicant, Ambalal Shankerbhai Patel, was the holder, in respect of his business premises, of a non-spirituous liquor licence for 1954. On 27th January, 1954, he was convicted by a magistrate of allowing beer, purchased on his premises, to be consumed thereon. On 10th May, 1954, the Plateau Liquor Licensing Court, on the application of the police, cancelled the applicant's licence. No notice of the meeting of the Licensing Court on 10th May, had been given to the application and he was not present. The further facts appear from the judgment.

The applicant commenced these proceedings asking for "a Writ of Certiorari and Mandamus" to the Chairman and Members of the Plateau Licensing Court to restore and reissue his licence, and an Order nisi was made in this form.

Held $(21-9-54)$ .—(1) A party to a dispute before a tribunal of the nature of a Liquor Licensing Court is not entitled to an oral hearing: such a tribunal can act according always give a fair opportunity to those who are parties to the controversy to correct or contradict any relevant statement prejudicial to their views. An accused person must not contradict any relevant statement prejudicial to their views. An accused person must not<br>be condemned, or a person deprived of his property, without being first given a fair<br>chance of explanation. For a tribunal so to act

(2) "Hearing" in section 23 (4) of the Liquor Ordinance means oral hearing. This sub-section does not authorize a Liquor Licensing Court to take away a licence without<br>giving the holder of it a fair (or any) opportunity to correct or contradict any relevant statement prejudicial to his view by making written representations for the considera-<br>tion of the Licensing Court. *The King v. Tribunal of Appeal under the Housing Act*,<br>(1920) 3 K. B. 384, followed and applied.

(3) The Order nisi which spoke of "a writ of certiorari and mandamus" to command the Licensing Court to restore the licence was not in proper form. The writ of certiorari<br>and the writ of mandamus are separate remedies with differing functions. Also mandamus is never granted to command a judicial or quasi-judicial tribunal to act in a particular manner, unless what they have to do is purely ministerial.

(4) Certiorari to issue addressed to the Chairman and Members of the Licensing Court removing their Order depriving the applicant of his licence into the Supreme Court to be quashed.

$\frac{1}{\sqrt{2}}$

(5) Mandamus to issue addressed to the Chairman and Members of the Plateau Licensing Court directing them to hold, within a reasonable time, a further sitting of the Court, adjourned from 10th May, and to proceed to hear and determine according to law and pursuant to the Liquor Ordinance, the matter of the cancellation of the applicant's licence.

Costs awarded to the applicant.

## Couldrey and Walker for the applicant.

## O'Beirne for the respondent.

The judgment of the Court was delivered by Sir Kenneth O'Connor, C. J.

JUDGMENT.—This is an application on the part of Ambalal Shankerbhai Patel to make absolute an Order *nisi* for "a writ of certiorari and mandamus" to the Chairman and Members of the Plateau Liquor Licensing Court to restore and reissue to Ambalal Shankerbhai Patel the non-spirituous liquor licence cancelled by that court on 10th May, 1954. We shall comment later upon the form of the Order nisi.

The facts are not in dispute and are that the applicant, Ambalal Shankerbhai Patel, was the holder, in respect of his business premises, of a non-spirituous liquor licence for the Uasin Gishu District of Kenya for the year 1954. On 27th January, 1954, he was convicted by the Resident Magistrate, Eldoret, of allowing beer purchased on his premises to be consumed thereon, but no order was made by the Resident Magistrate disqualifying the applicant from holding a licence. On 10th May, 1954, a sitting of the Plateau Liquor Licensing Court was held, of which no notice was given to the applicant and at which he was not present. At that meeting an application was made by the Inspector in charge of the Crime Branch that the applicant's licence be cancelled. That application was supported by a letter from the Superintendent of Police, Upper Rift Valley, asking for the cancellation of the applicant's licence on the grounds of his conviction already mentioned and stating that, in addition to that conviction, there were two more convictions recorded against him under the Penal Code. Under section 50 (2) of the Ordinance, the holder of any retail liquor licence is liable (in addition to any other penalty provided by the Ordinance) to forfeit such licence if he is convicted of an offence under the Liquor Ordinance and a previous conviction within the preceding 12 months of the same or any other offence under that Ordinance is proved, or if three previous convictions within the preceding five years are proved. This section given a clear indication of the view of the legislature as to the number and nature of previous convictions which should cause a retail liquor licence to be liable to be forfeited in addition to the imposition of a penalty under the Ordinance. It will be observed that the previous convictions said to have been recorded against the applicant were two and not three, that they were said to be under the Penal Code not under the Liquor Ordinance, that the dates and descriptions of them were not given, and that they were not proved. However, the Plateau Liquor Licensing Court, apparently on the strength of the Superintendent's letter, cancelled the applicant's licence without giving any notice to him or giving him an opportunity to make any representations or to controvert the statements contained in the Superintendent's letter, or, if he desired to do so, to point out that, even if correct, those statements would not amount to grounds for forfeiture of a licence under section 50 $(2)$ of the Ordinance.

A notice of the ruling of the Licensing Court was posted on the notice board outside the district commissioner's office between 10th and 17th May, .1954; but the applicant was not notified of the cancellation of his licence until 16th July, 1954, when the district commissioner wrote to him informing him of the cancellation and requesting him to send in the licence. Meanwhile, having seen

the notice outside the district commissioner's office, the applicant had already launched thèse proceedings alleging that there had been a denial of natural justice in hearing other persons in support of the cancellation of his licence without giving him an opportunity of being heard.

The general principles which should guide quasi-judicial or administrative bodies to whom the decision of questions in dispute between parties has been entrusted are very well settled. Lord Loreburn, L. C., in Board of Education v. Rice, (1911) A. C. 179, 182, discussing the obligations of a tribunal of this character, said: "They have no power to administer an oath and need not examine witnesses. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view". In 1915 in Local Government Board v. Arlidge, (1915) A. C. 120, this statement of the law was reaffirmed by the House of Lords and it was held that a party to a dispute before a tribunal of this nature is not entitled to an oral hearing, but that the tribunal can act according to its own procedure and obtain its information in any way it thinks best; but that it must always give a fair opportunity to those who are parties to the controversy to correct or contradict any relevant statement prejudicial to their views. (*Per Viscount Haldane*, L. C., at pages 133, 134.)

In Rex v. Architects' Registration Tribunal, (1945) 2 A. E. R. 131, it was held that not to give a party a real and effectual opportunity of meeting any relevant allegations made against him was contrary to natural justice. In Stafford v. Minister of Health, (1946) K. B. 621, the Board of Education v. Rice case and the *Arlidge case* were followed and Charles, J., said, at page 138: "the appellant has, however, the inalienable right of every citizen to have his case considered before the adjudicating authority comes to a decision". In General Medical Education v. Spackman, $(1943)$ $A. E. R.$ 337. Council $of$ $\mathcal{L}$ Viscount Simon, L. C., said, at page 340: "unless Parliament otherwise enacts, the duty of considering the defence of a party accused, before pronouncing the accused to be rightly adjudged guilty, rests upon any tribunal, whether strictly judicial or not, which is given the duty of investigating his behaviour and taking disciplinary action against him. The form in which this duty is discharged e.g. whether by hearing evidence *viva voce* or otherwise—is for the rules of the tribunal to decide. What matters is that the accused should not be condemned without being first given a fair chance of explanation". And again the dictum of Lord Loreburn in *Board of Education v. Rice* was approved.

But it is argued by Mr. O'Beirne for the Licensing Court that the Kenya legislature has otherwise enacted, and that the procedure followed by the Plateau Licensing Court was in accordance with section 23 (4) of the Liquor Ordinance, which, Mr. O'Beirne argues, allows a licence to be cancelled without giving the applicant a hearing of any kind. That sub-section reads: $-$

(4) A licensing court, when so sitting, may, at any time, without hearing the holder of the licence and without assigning any reason therefor, cancel a licence issued under the provisions of this Ordinance with effect from such date as the court may determine".

Mr. Couldrey, on the other hand, argues that the words "without hearing the holder of the licence" mean "without giving the holder of a licence an oral hearing"; but that they do not mean that his licence can be taken away without notice, upon the representations of the police, or of a hostile third party, and without giving the holder of the licence a fair (or any) opportunity to correct or contradict any relevant statement prejudicial to his view by making written representations for the consideration of the Licensing Court.

Before the Liquor Licensing Court makes it determination, it should give an opportunity to the applicant of making written representations and correcting or controverting the allegations contained in the letter dated 1st May from the Superintendent of Police, Upper Rift Valley Province, and any other allega-<br>tions prejudicial to the applicant's view. In making its decision, the Liquor Licensing Court should have regard to the provisions of the Liquor Ordinance, including section 50.

The applicant must have his costs.