(COURT OF APPEAL)*

YASSIN ALI MAHMOUD v. KHARTOUM MUNICIPAL COUNCIL AND OTHERS

AC-REV-77-1964

Principles

·  Administrative Law-Licensing-Trader’s License and Taxation of Business profits Ordinace s.5 (3) (Amendment No.2) Act 1961 s.6 (B)-Grant and revocation of licences are discretionary-Mandamus ot available

Mandamus-Circumstances in which issued-Not to be issued to enforce or control a discretionary duty unless bad faith is proved
Mandamus will not be issued to control or enforce the discretionary duty of the Municipal Council to issue a licence under Trade’s Licence and Taxation of Business Profits Ordinance s, 5 (3) (Amendment No. 2) Act 1961 s. 6 (B) unless bad faith is proved.

Judgment

Adovcates: Abdalla El Hassan and Abdel Whaab Abu

Shakiema………………………………for applicant

: M. A. Abu Rannat C.J June 10. 1964:- The facts are short and simple .

applicant Yassin Ali Mahmoud has been the tenant of a shop. The landlord of the shop in question is El Faki Mohmoud. It is admitted that the trader’s licence is in the name the latter who asked applicant to vacate the shop and, when applicant refused to vacate the shop, the landlord refused to allow him to trade under his name. Applicant then applied to the Municipal Council to issue him with a trader’s license as he is a
 

tenat of the shop, but the Municipal Counncil refused to issue him with the license. He appealed to the Judge of the High Court against the refusal of the Municipal Council to issue him with a licence.

It is clear from the wording of the Trader’s licence and Taxation of Business profits Ordinance (Amendment No ( 2) Act 1961, s, 6(B), That there is no right of appeal under this statute to the High Court.

Applicant then contended that despite the fact that the right of appeal was removed by the 1961 Act , yet the High Court has the inherent power to issue a writ of mandamus comelling the Muncipal Council to issue the licence. The learned Judge of the High Court refused to issue such a writ and stated in his judgment:

“ The Trader’s licence and Taxation of Business profits  ordinance s, 5 (3) giving the right of appeal to this Court in similar circumstances has been repealed. It was substituted by the Trader’s licence and Taxation of Business profits (Amendment No.2) Act 1961, s, 6 (B), which reads:

“ An exercise in good faith of its discretion by the licensing authority in refusal to grant or renew a licence in application of the preceding provisions shall be final and conclusive and not subject to review.

Adocate Abdalla El Hassan says that he neither pleaded bad faith nor has he evidence in proof of the same. Having submitted this he strips his claim of any chance of success, for the words of the amended section are clear. This Court cannot question the exercise in good faith of the discretion of (the Muncipal Council) in refusing to grant the petitioner a trader’s licence.

On application for revision Advocate Abdalla El Hassan made the following contentions:

1-     the applicant is Sudanese;

2-     in possession of a shop for which a licence shoul be isssued.

3-     The lanlord refused to renew the trader’s licence.

4-     The fact that the council refused to issue the licence to applicant would enable the landlord to assign the licence to somebody else which is forbidden by the statute.

As I see it this application must fail. It is stated in 11 Halsbury, laws of England (3rd ed. (1956), p. 90, on the subject of the order of mandamus as follows:

“ In order, however, for an order of mandamus to issue for the enforcement of statutory right it must appear that the statute in question imposes a duty, the performance or non-performance of which is not a matter of discretion, and if a pwer or discretion
 

only as distinct from a duty, exists an order of mandamus will notbe granted by the Court.”

It is clear from the wording of the statute that the licensing authority has a discretion for the  issue of the licence and so far as no evidence of bad faith was pleaded or proved no order of mandamus could be issued by the High Court.

The application is therefore summarily dismissed.

* Court : M. A. Abu Rannat C.J