Case No.:

(HC-CS-469- 1959

Court:

The High Court

Issue No.:

1960

Principles

·  Control of inferior jurisdictions—Mandamus-—Circumstances in which issued—N0L issued to enforce discretionary duty Administrative Iaw—Licences under Pharmacy and Poisons Ordinance—Grant ana revocation discretionary—Mandamus not available

Mandamus is a remedy to compel the performance of statutory acts of a ministerial (i.e.. purely executive) character. It will not be issued to enforce or control a discretionary duty.
Ex p. La Mert (1863) 33 L.J.Q.B. 69 approved and followed.
Mandamus will not lie to compel the issue, or to annul the revocation, of licences under the Pharmacy and Poisons Ordinance. Sections 15, 16, 18, 32 and 33 of that Ordinance considered.

Judgment

HIGH COURT

Appeal summarily dismissed

SHORBAGI ADAM HANAFI v. CENTRAL BOARD OF PUBLIC HEALTH

(HC-CS-469- 1959

Petition for mandamus

Advocates: Abdel Rahman Yousif…… for petitioner

                         Attorney-General ………..for respondent

The petition was for an order of mandamus to compel the annulment of the revocation of a licence under the Pharmacy and Poisons Ordinance.

September 7. 1960. Tewlik Cotran Acting J.: -The petitioner, Shorbagi Adam Hanafi, was on December 26, 1957, granted a licence (Exh. P. 1) “to establish a drug store in Plot No. 15-3 G. Wadi Haifa suk for the wholesale dealing in poisons in Parts 2 and 3 of the Poisons List.” This licence is in the form of a letter signed on behalf of the Director of Medical Services. There is nothing in the text beyond what I have quoted above in parenthesis. It does not state under the authority of what section of the Pharmacy and Poisons Ordinance it is issued. It would appear that this licence as far as the sale of the poisons in Part 2 of the Poisons List is concerned was issued on the strength of section 32 (1) (a) and 32 (2) of the Ordinance, and as far as the sale of poisons under Part 3 of the Poisons List by the operation of section 33 (a) which seems to give to a holder of a licence to deal in Part 2 of the Poisons List automatic authority to deal with those poisons in Part 3. On or about June 7, 1959 the licensing authority revoked and withdrew the licence from the petitioner as from August 8, 1959.

Advocate Rahman Yousif, on behalf of the petitioner, is now petitioning this court to issue an order of mandamus “to direct the respondent to withdraw the revocation of the petitioner’s ‘licence.” In his pleadings Advocate Yousif refers to section 18 of the Ordinance. Section i8 of the Ordinance provides: “The licensing authority may refuse to issue a licence or may revoke the licence of any person who in the opinion of the authority is for sufficient reason relating either to himself personally or to his prelnises, not fit to be licensed. In the event of such refusal or revocation an appeal shall lie to the Board whose decision shall be final.” It should be reInem that this section applied only to the sale of poisons in Part 3 of the Poisons List.

Advocate Yousif assumed that his client’s licence was issued on the strength of sections 15 and 16 and was revoked by invoking section 18. But I am doubtful if this is really the case at all. It may be that the Petitioner’s licence; in so far as poisons in Part 3 of the list are concerned. is issued by authority of sections 15 and 16, but no licence to sell poisons in Part 2 could be issued under sections 15or 16 of the Pharmacy and Poisons Ordinance. The Attorney General, on behalf of the respondent, submits that under section 18 mandamus does not lie. In my opinion this submission should be upheld even assuming that at least one part of the petitioner’s licence was revoked by the operation of this section.

Halsbury’s Laws of England, Vol. 11, p. 84 states:

“Mandamus is an order of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which apper tains to his or their office and is in the nature of a public duty.

Where a statute, which imposes a duty, leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.”

Ferris on Extra-OrdinarY Legal Remedies says as follows (at pages 356 to 358):

“The principles applicable are the same, are well settled, are characteristic of mandamus proceedings in generaland may thus be summed up:

(1) Mandamus will lie to compel performance of an act, which the law specifically enjoins; (2) such act must be ministerial or executive;

( the writ will not lie to compel performance of judicial or dis cretionary acts; (4) where it is discretionary to do or not to do the act sought to be compelled, mandamus will not lie; ( where the act is especially enjoined by law, but the manner of performance is dis cretionary, or involves judicial action, mandamus will lie to compel the performance of the act, but not to compel perform in any particular manner; (6) mandamus will not lie in any case where petitioner has any other adequate legal remedy.... While mandamus will not lie to compel the doing of a particular discretionary act by a public officer, either when the discretion is exercised in the construc tion of the law, or in the determination of the existence or effect of the facts, a public officer may, ordinarily, be compelled to take some action, so far as to exercise his judgment and discretion in determining whether he ought to do or refrain from performing the act. Man damus may not, however, lawfully issue to review, reverse or correct an erroneous decision in such cases, even though there is no other method of review or correction provided by law.

The question usually depends on whether the duty sought to be enforced is ministerial or discretionary, it being conceded that in the former case the court has the right to act. It should be remembered, however, that when mandamus is brought against a state corporate entity such as a Board of Drainage District Commissioners, the duty must appear expressly or by fair implication from statutory powers and not by the common law.”

Ferris states further:

“It is well to remember that mandamus will not be issued except in a very strong case . . . and the judiciary is loath to interfere with the exercise of official duties unless some specific act or thing which he law requires to be done has been omitted. The writ is only issued when the ministerial duty sought to be enforced is simple and definite, arising under conditions admitted or proved, and imposed by law, the test being not the power of the court to issue it, but the propriety of its issuance in the light of a wise discretion. It is a legal duty coupled with a pecuniary loss to plaintiff, which cannot be compensated by damages, that is usually necessary to make out a prima facie case founded, on substantial right. . . . The office of mandamus is to stimulate, not restrain, official functions, and after an officer has proceeded to discharge his duties, he is.no longer subject to it.

The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action.

A mandamus may lie to compel a public officer to exercise his discretion one way or another. If such discretion is exercised reason ably and honestly no mandamus will lie though it could be issued to correct an abuse of discretion or an arbitrary and capricious act provided the petition does disclose such facts.” Ibid. 224 et seq.

Applying these principles to the case before me I find that the neces sary ingredient to issue mandamus is missing. Here no public right has been infringed. A public servant has used his discretion and revoked a licence he had previously issued. The petitioner’s remedy is to appeal to the Central Board of Public Health. In Ex parte La Mert (1863) 33 L.J.Q.B., p. 69 it was held that mandamus will not lie to the Medical Disciplinary Committee to restore to the medical register a name which has been removed for reasons in regard to which the committee are by statute sole judges.

The petitioner’s licence, however, in my opinion, does not fall under section s at all. The licence to deal wholesale in poisons in Part 2 of the

Poisons List is issued by the Central Board of Public Health under section 32 (2) of the Ordinance.

The petitioner’s licence is a licence for the wholesale dealing in drugs of Part 2 of the Poisons List. There is no provision in the Pharmacy and Poisons Ordinance giVifl9 the Board powers to revoke a licence issued to sell wholesale drugs in Part 2 of the Poisokzs Lists. It could be argued that once the Board issues a licence to a trader to deal wholesale in poisons in Part 2 it has no power to withdraw it. Mandamus does not lie because it is an order to compel a public servant or a body to do a certain thing which a law or statute enjoins to be done. It therefore appears to me that the petitioner may have a remedy, but this remedy is not mandamus. Perhaps he could try to petition the High Court for a declaration that he is entitled to deal wholesale in the drugs in Part 2 of the Poisons List, and that the purported revocation of his license was ultra vires the Pharmacy and Poisons Ordinance.

The Advocate-General’s objection is therefore upheld and the petition is dismissed with costs.

                                                          (Mandamus refused)