[1947] EACA 9

## COURT OF APPEAL FOR EASTERN AFRICA

Before NIHILL, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika), and STUART, J. (Tanganyika)

## MAKHAN SINGH s/o SUDH SINGH, Appellant (Original Plaintiff)

## PRINCIPAL IMMIGRATION OFFICER, NAIROBI, Respondent (Original $Defendant)$

Civil Appeal No. 24 of 1947

(Appeal from decision of H. M. Supreme Court of Kenya)

Certiorari—Does not apply to purely executive or ministerial act—The Immigration Ordinance (Cap. 62, Laws of Kenya)—Decision of Principal Immigration Officer under s. 5 (f) $id$ —Order of Immigration Officer under s. 8 $id$ — Cannot be questioned by certiorari.

On 9th October, 1945, the Immigration Officer informed the appellant's father that there would be no objection under the Defence (Admission of Male Persons) Regulations, 1944, to the entry of the appellant into Kenya. On 13th May, 1947, however, the Principal Immigration Officer had deemed the appellant to be an undesirable immigrant under s. 5 $(f)$ of the Immigration Ordinance and this decision was duly confirmed by the Governor in Council. Through an oversight the appellant was allowed to enter Kenya on 21st August, 1947. When the oversight was discovered an order signed on behalf of the Principal Immigration Officer and purported to be issued under s. 8 of the Ordinance was served upon the appellant which informed him of the confirmed decision of the Principal Immigration Officer and ordered him to leave the Colony within 30 days.

The appellant applied by way of certiorari to the Supreme Court to quash the order calling upon the appellant to leave the Colony.

The Supreme Court refused the application on the ground that the order in question was a purely executive or ministerial act which could not be questioned by way of certiorari, but granted leave to the appellant to appeal.

"S. 5. (f) Any person who, in consequence of information received from $\frac{1}{2}$ any trusted source or from any Government, whether British or foreign, through official or diplomatic channels, is deemed by the Principal Immigration Officer to be an undesirable immigrant:

Provided that every decision of the Principal Immigration Officer under this paragraph shall be subject to the confirmation or otherwise of the Governor in Council, whose decision shall be final.

S. 8. Any prohibited immigrant making his way into, or being found within the Colony may be ordered by the immigration officer to leave the Colony, and if such prohibited immigrant shall fail to leave the Colony within such time as may be considered reasonable by the Immigration Officer. he shall be guilty of an offence against this Ordinance. Any person convicted under this section may, in addition to liability to removal or otherwise, be imprisoned with or without hard labour for any term not exceeding six months, provided that such imprisonment shall cease if and when arrangements are made for the deportation of an offender from the Colony.'

Held (14-11-47).—That both the decision of the Principal Immigration Officer under S. 5 (f) and the order of the Immigration Officer under S. 8 are purely executive and ministerial acts which cannot be questioned by a writ of certiorari.

Appeal dismissed.

The following cases referred to: Rex v. Electricity Commissioners Ex parte London<br>Electricity Joint Committee Co. (1920), Ltd., and others (1924) 1 K. B. 171–205; Rex v.<br>L. C. C. Ex parte The Entertainments Protection Associa v. Woodhouse (1906) 2 K. B. 535.

## Khanna (Chanan Singh with him) for the appellant.

Sir James Henry, Crown Counsel (Tanganyika), for the Crown.

NIHILL, C. J.—This is an appeal with leave against an order made by Mr. Justice de Lestang in the Supreme Court of Kenya in which he refused an application for an order nisi by way of certiorari calling upon the Principal Immigration Officer, Nairobi, to show cause why an order made by him requiring the appellant to leave the Colony within 30 days from 27th August, 1947, should not be quashed. The learned Judge refused the application on the ground that the act of the Principal Immigration Officer in ordering a prohibited immigrant to leave the Colony under section 8 of the Immigration Ordinance (Cap. 62 of the Laws of Kenya as amended by section 7 of Ordinance 20 of 1930) was a purely executive or ministerial act which could not be questioned by a writ of certiorari.

From the affidavits accompanying the motion in the Court below and the application for leave to appeal the following facts appear. No affidavit has been filed by the respondent.

The appellant is a British subject born in India on 27th December, 1913. He came with his father to Kenya when he was seven years old and remained in Kenya until December, 1939. He then returned to India "for a temporary visit". In India on account of political activities he was detained under the Defence of India Rules from 8th May, 1940, to 22nd July, 1942. From that date he was interned in a village in India until 18th January, 1945. He seems to have continued his political activities during this time as he states that from February, 1943, to July, 1947, he was sub-editor of the official organ of the Punjab Committee of the Communist Party of India. The appellant's father, except for short periods of holiday, continued to reside in Kenya. He is the proprietor of a printing press and owns a house in Park Road, Nairobi. The appellant states that this house is the permanent residence of his family to which he wishes to return, and he claims that he has acquired a Kenya domicile.

The appellant left India in July, 1947, and arrived at Mombasa on 21st August, 1947. In October, 1945, his father had been informed by the Immigration Officer under a letter dated 9th October, 1945, that there would be no objection under the Defence (Admission of Male Persons) Regulations, 1944, to the re-entry into Kenya of his son. The appellant, through an oversight was allowed to land by the immigration authorities at Mombasa and to enter the Colony. This was an oversight, because on 13th May, 1947, the Principal Immigration Officer had deemed the appellant to be an undestrable immigrant under the provisions of section 5 $(f)$ of the Immigration Restriction Ordinance (Cap. 62 as amended by section 2 of Ordinance 23 of 1928). This decision of the Principal Immigration Officer was duly confirmed by the Governor in Council, pursuant to the requirements of the section on 23rd May, 1947. Against that<br>confirmation there is no appeal. The effect of that decision was to make the appellant a prohibited immigrant under the Ordinance. When the oversight was discovered an order dated 27th August, 1947, and signed "W. S. Redge, for Principal Immigration Officer", was served upon the appellant which informed him of the confirmed decision of the Principal Immigration Officer and ordered him to leave the Colony within 30 days.

It seems to me that the learned Judge was clearly right in regarding this order per se as a purely executive or ministerial act, for under section 8 of the Ordinance (as amended by section 7 of Ordinance XX of 1930) power is given to an immigration officer to make such an order when a prohibited immigrant makes his way into or is found within the Colony. The order of 27th August, . 1947, therefore involved no judicial or quasi-judicial decision because the appellant had been a prohibited immigrant since 23rd May, 1947. By definition the term "Immigration Officer" includes the principal as well as any assistant immi-

gration officer. As the motion before the learned Judge by its terms attacked only the order and not the decision of the Principal Immigration Officer from which that order followed that might seem to be an end of the matter, but in my opinion it would be unfair to the appellant for this Court to leave out of consideration the decision which was the foundation of the order, and learned Counsel for the respondent stated to us that he did not wish to draw a distinction between the decision and the order. The appellant has prayed that the order be stayed because he believes it to be founded on an unlawful decision. If that decision had not been translated into an order he would have had no need to come to Court. if I am right in this the question which next arises is-was the decision of the Principal Immigration Officer at least a quasi-judicial act because that officer had to determine whether on the information before him the appellant was an undesirable immigrant?

After considering the authorities I have come to the conclusion that it was not. I do not think that the decision of the Principal Immigration Officer was sufficiently near a judicial proceeding to be the subject of certiorari. In $\mathbf{R} \times \mathbf{v}$ . Electricity Commissioners ex parte London Electricity Joint Committee Co. (1920), Ltd., and Others (1924), 1 K. B. 171–205, Atkin, L. J., said: "It is to be noted that both writs"—that is to say, the writ of prohibition and the writ of certiorari-"deal with questions of excessive jurisdiction, and doubtless in their original dealt almost exclusively with the jurisdiction of what is described in ordinary parlance as Courts of Justice. Whenever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject. to the controlling jurisdiction of the King's Bench Division exercised in these writs." This dictum has been quoted with approval by learned Counsel for the appellant, but does it support his case? Does section 5 of the Ordinance place any duty on the Principal Immigration Officer to act judicially in coming to his opinion that a person about whom he has information from a trusted source is an undesirable immigrant? I do not think so. The section contains no provision that the Principal Immigration Officer should inform the person concerned that a decision is about to be taken nor does it invite the person to show cause why a decision declaring him to be an undesirable immigrant should not be made. The section does not even give any indication of the considerations to be applied by the officer in coming to his decision. This is far removed from the test employed by Scrutton, L. J., in Rex v. L. C. C. ex parts The Entertainments<br>Protection Association, Lid. (1931), 2 K. B., at p. 233: "It is not necessary that it should be a Court in the sense in which this Court is a Court, it is enough if it is exercising, after hearing evidence, judicial function in the sense that it has to decide on evidence between a proposal and an opposition." In the present case, as must be so in many cases, there could be no opposition at the time the decision was made, because the person affected was not within the Colony and indeed his whereabouts may have been unknown.

During the hearing of this appeal questions have been raised regarding the scope and applicability of the Kenya Immigration Restriction Ordinance which involve matters of far-reaching public importance. Does the Ordinance apply at all to persons possessing a Kenya domicile of origin or choice or both? If it applies to every re-entry of a person so domiciled can an African native born in Kenya who leaves the Colony for a time be prevented under certain circumstances from re-entering the country of his birth? I do not propose to attempt the answer to these questions which are certainly not free from difficulty because it is not necessary to do so now on the view I hold that a writ of certiorari cannot lie in respect of the present application. Furthermore, the determination of these questions may well arise should the appellant at his peril neglect to obey the order served on him, for if the Crown then proceed to prosecute him for an offence under section 8 of the Ordinance it will have to prove, *inter alia*, in order to establish the offence that he is a person subject to the provisions of the Ordinance.

I would therefore dismiss this appeal with costs.

SIR G. GRAHAM PAUL, C. J.—The plaintiff-appellant applied to the Supreme Court of Kenya at Nairobi by ex parte motion "for an order nisi by way of certiorari directed to the above-named defendant to show cause why the order made by him on the 27th day of August, 1947, requiring the plaintiff to leave the Colony within 30 days ... should not be quashed".

The learned Judge who dealt with the application dismissed it on the ground that the act of the defendant-respondent in making the order under section 8 of the Immigration Ordinance (Cap. 62 of the Laws of Kenya) was a purely executive or ministerial act which cannot be questioned by a writ of certiorari.

It seems to me manifest that the order in question was a "purely executive or ministerial act" and that the order itself cannot possibly be brought within the category of things which may be attacked by writ of certiorari. As I understand counsel for the appellant, however, he did not seem to argue that the order could be attacked in this way. His argument seemed to me to be that the decision upon which the order proceeded, that is to say the decision of the Principal Immigration Officer and the confirmation by the Governor in Council under section 5 $(f)$ of the Ordinance, were subject to attack by writ of certiorari and that the service of the executive order upon him was the first intimation to him of such decision under section 5 $(f)$ . The application to the Court below in my view was misconceived. Quite clearly that application was confined only to the order under section 8 and did not attack the decision under section 5 (f).

Section 5 (f) (as amended by section 2 of Ordinance 23 of 1928), omitting the irrelevant parts, is in the following terms: -

"The immigration into the Colony by land or sea of any person being or appearing to be of any of the classes defined by the following subsections (hereinafter called 'prohibited immigrant') is prohibited, that is to say:-

$(f)$ Any person who, in consequence of information received from any trusted source or from any Government, whether British or foreign, through official and diplomatic channels, is deemed by the Principal Immigration Officer to be an undesirable immigrant:

Provided that every decision of the Principal Immigration Officer under this paragraph shall be subject to the confirmation or otherwise of the Governor in Council, whose decision shall be final."

Section 8 (amended by Ordinance 20 of 1930) is as follows: $-$

"Any prohibited immigrant making his way into, or being found within, the Colony may be ordered by the Immigration Officer to leave the Colony, and if such prohibited immigrant shall fail to leave the Colony within such time as may be considered reasonable by the Immigration Officer, he shall be guilty of an offence against this Ordinance. Any person convicted under this section may, in addition to liability to removal or otherwise, be imprisoned, with or without hard labour, for any term not exceeding six months, provided that such imprisonment shall cease if and when arrangements are made for the deportation of an offender from the Colony.

From a comparison of these two sections it will be seen that different authorities are concerned. Under section 5 $(f)$ it is the Principal Immigration Officer who makes the decision that a person is deemed to be an "undesirable immigrant". Once that decision is made by the Principal Immigration Officer and confirmed by the Governor in Council the person concerned becomes a<br>"prohibited immigrant" under the Ordinance and if he is found within the Colony he may be ordered by the "Immigration Officer" to leave the Colony. "Immigration Officer" by section 2 of the Ordinance is defined as "the principal of any assistant immigration officer, or any other officer appointed by the Governor for the purposes of this Ordinance". It would seem that the word "of" occurring after "principal" in this definition must be a misprint for "or" as "of" does not seem to make sense. However that may be, it does not affect my point which is that the "deeming" under section 5 $(f)$ is a decision of the Principal Immigration Officer confirmed by the Governor in Council and once it is made and confirmed and so long as it stands "any officer appointed by the Governor for the purposes of this Ordinance" may under section 8 order the person concerned to leave the Colony. It is not under the Ordinance one officer or one tribunal making the decision under section 5 (f) and making the order to leave under section 8. For that reason, in my view, the decision under section 5 (f) and the order under section 8 are two quite separate and distinct things and an application to attack only the *Order* under section 8 does not entitle the applicant to attack the decision under section 5 $(f)$ . If it is the decision of the Chief Immigration Officer under section 5 $(f)$ that is the object of attack, it must be specifically attacked.

Opposition to an attack on the order made under section 8 involves quite different considerations from those involved in opposing an attack on the decision under section 5 (f) and it is therefore by no means merely academic exactitude to insist that an applicant for a writ of certiorari should make it quite clear and definite in his application which of these two quite different and distinct things he is attacking The decision under section 5 $(f)$ is "subject to the confirmation or otherwise of the Governor in Council whose decision shall be final". The decision in this case was confirmed by the Governor in Council. The provision as to this confirmation and the fact of this confirmation accentuate my view that an application for a writ of certiorari attacking merely the order under section 8 cannot possibly succeed where as here the real objection is not to the making of the order under section 8 but to the entirely separate matter of the decision and confirmation under section 5 $(f)$ .

For these reasons, varying somewhat from those given by the Court below, I would uphold the order of the Court below dismissing the application and on that view of the matter it is logically probably unnecessary to go further and deal with the question whether the Principal Immigration Officer functioning under section 5 (f) of the Ordinance is a tribunal to which a writ of certiorari may be properly addressed. That question, however, has been so fully argued before this Court that I think it right to deal with it.

I find it impossible to hold that in his functioning under section 5 $(f)$ the Principal Immigration Officer is engaged in a judicial or quasi-judicial act. He is in no sense deciding "between a proposal and an opposition" (see the opinion of Scrutton, L. J., in Rex v. London County Council (1931), 2 K. B. at p. 233). All the Principal Immigration Officer has to say under section 5 $(f)$ is: "From information received I consider $X$ an 'undesirable immigrant'." That decision is the decision of an executive officer on information received by him. He does not disclose the information to $X$ or give $X$ any opportunity to be heard. He does not even need to inquire into the truth or falsity of the information received. He is simply an executive officer making up his own mind on a question without reference to anyone. In not even the widest sense of the phrase can that be called a "judicial or quasi-judicial act", and on the authorities, in my opinion, a Principal Immigration Officer in his functions under section 5 $(f)$ is not a trbiunal to which a writ of certiorari may properly issue,

The true test as to whether an act of a tribunal or officer is one in respect of which a writ of certiorari may issue is authoritatively and clearly expressed by Lord Justice Fletcher Moulton in the case of Rex v. Woodhouse (1906), 2 K. B., at p. 535, as follows: $-$

"Other instances could be given but these suffice to show that the procedure of certiorari applies in many cases in which the body whose acts are criticized would not ordinarily be called a Court, nor would its acts be ordinarily termed 'judicial acts'. The true view would seem to be that the<br>term 'judicial act' is used in contrast with purely ministerial acts. To the latter the process of certiorari does not apply."

Lord Justice Scrutton in Rex v. London County Council (1931), 2 K. B., at p. 233, further elucidates this matter as follows: -

"It is not necessary that it should be a Court in the sense in which this Court is a Court; it is enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition."

It appears to my mind clear that the Principal Immigration Officer functioning under section 5 (f) of the Ordinance is not doing a "judicial act" or "exercising judicial functions" within the dicta of the learned Judges whose opinions I have quoted; in my opinion he is doing a "purely ministerial act".

This Court has nothing whatever to do with the policy of section 5 ( $f$ ). It is for the Legislature and not for the Courts to decide whether it is right that an executive officer, purely as such, without disclosing his reasons to the person concerned or giving that person an opportunity of being heard, can determine the status of that person as a "prohibited immigrant".

In the arguments before us I do not think that the nature of the so-called "order" (with which alone the motion in the Court below and this appeal are concerned) was fully realized. It is not by itself an effective order of deportation. It is not a warrant to the police to arrest and deport the appellant. It is more accurately described as a "notice to quit". It is in essence simply an infimation that if the appellant does not voluntarily leave the Colony within 30 days he may be brought before a competent Court and charged with an offence. Before that Court the prosecution would have to prove $(a)$ that the appellant was a "prohibited immigrant" under the Ordinance; $(b)$ that he had been found in the Colony: (c) that he had received an order under section 8; and (d) that he had failed to leave the Colony within the reasonable time fixed by the immigration. officer. Upon all these issues, of course, the appellant would be heard by the Court. If he could satisfy the Court that the Ordinance did not apply to him at all, or that he was not a "prohibited immigrant" then, of course, there could be no conviction and no sentence of imprisonment or deportation order. It does appear to me that all the points urged before us by appellant's Counsel could properly be urged for the defence if and when a prosecution of the appellant were to be instituted, but in my opinion they do not justify the Court in interfering by writ of certiorari with the purely ministerial functions of an executive officer. I wish to make it quite clear in this matter that the Courts are not being ousted altogether. The law is there and the appellant cannot be deported from the Colony unless a competent Court decides that it is lawful that he should be deported. In these circumstances there appears to me to be no *need* for the appellant to seek the aid of a writ of certiorari, and I have already expressed the opinion that there is no *right* in the appellant to make that application either in regard to the decision and confirmation under section 5 $(f)$ or in regard to the order under section $8$ .

For these reasons I would dismiss the appeal with costs.

STUART, J.-I concur and state why.

I agree verbatim with the Judge's order now appealed from.

The principle underlying writs of certiorari can be summed up: persons or bodies to whom judicial or quasi-judicial acts have been delegated can be controlled by the High Court (in England the King's Bench) by means of such writs. The writ protects the prerogative and jurisdiction of the High Court: it is used where the lower authority acts beyond its jurisdiction or where its judgment is improperly obtained. When, however, a new offence is created and a peculiar jurisdiction has been set up the High Court should proceed with great circumspection before issuing such a writ.

Here, under the Laws of Kenya, certain powers have been delegated to the immigration authorities creating new offences and a peculiar jurisdiction answerable only to the control of the Governor in Council. Here the jurisdiction has not ex facie been exceeded. There is no sign of any irregularity, except that by accident the appellant was allowed to re-enter Kenya.

It is suggested, and was apparently admitted by Counsel for the Crown, that the Kenya Immigration Law is so drawn that a person domiciled by birth or choice in Kenya who makes the error of leaving Kenya, without losing his domicile, can be stopped at the port of entry if his way of life is disagreeable to the authorities.

Then he would seem to become a stateless person, as it were a bird without a perch: only on the twig of domicile could he settle as of right and that right would be denied him.

However good the reasons for such an act, however bad the results, I do not profess to state. It is not my function. I merely note the facts.

It might cause great hardship particularly to aboriginals of Kenya. Each case would no doubt be treated on its merits.

I do not see any hardship in this case, and if I did it would be difficult. to know how to help.

I agree that the appeal must be dismissed.