(COURT OF APPEAL)

MOHAMMED ALI ADLAN …………….Applicant

and

SUDAN GOVERNMENT and

AWAD EL SID ABDALLA and Others …..Respondents

(AC-REV-166-1956)

Revision

Principles

·  Mandamus - whether mandamus may be issued - issued only to enforce performance of duty.

In 1949 the Sudan Government leased a plot of land to the appellant for one year with a possibility of renewal. The lease was renewed annually up to 1954, but during that year the appellant was informed that it would not be possible to renew it after the end of 1955 The appellant claimed an Order of Mandamus to compel the Government to renew the lease.
Held: The Court had power to enforce the performance of a legal duty against a Government department by Order of Mandamus, but that in the present case the appellant had no legal right against the Government, and there fore it was not a proper case for Mandamus. Application dismissed.

Judgment

In 1945 the Sudan Government were registered as owners of a plot of land “free from any rights”. The land was leased to the appellant for one year as from the 1st January 1949 with a provision for renewal. The lease was renewed annually each time for one year only, until 1954 when the Government informed the appellant that the lease would not be renewed after 1955. The appellant brought an action against the Government in the Province Court of Northern Province claiming that the Government had no right to cancel the lease unless it required the land for its own purposes, which was admitted not to be the case, as the Government had in fact agreed to lease the land to the second defendant.

The Province Judge dismissed the action. The appellant applied to the Chief Justice for Revision.

Advocates Ahmed Suleiman & A M Abdel Wahab …………………………………………….for Appellant;

The Attorney-General            ………...for Sudan Government

The Chief Justice summarily dismissed the application for reasons set out in the following Note.

M.A. Abu Rannat C..J. (The Note first recited the facts, and discussed. the meaning of the lease. The Chief Justice concluded that the lease was for one year only, and not a lease from year to year. he then continued).      

The Sudan Transitional Constitution provides in Art. 7 All persons and association of persons official or otherwise, are subject to the law as administered by the Courts of Justice, saving only the established privileges of Parliament. This Article clearly applies equally to private persons as to Government officials. Thus provided there be a legal duty,— the Courts have power to order the performance of such duty. The Courts will do this either by means of an order of mandamus or by means of an action of mandamus. These are both remedies by which the Courts can control the acts of the Administration. But as GreenM.R. stated in A.P. Pictures Houses v. Wednesbury Corp. [1948] 1. K.B. 223 What then, is the power of the ‘Courts ? They can only interfere with an act of executive authority if it be shown that the authority has contravened the law. It is for those who assert that the local authority has contravened the law to establish that proposition”.

The action for mandamus is in fact a decree ordering the performance “of the duty which the Court thinks ought to be done” [SeeManisyJ. in R. vs. Lambrose Valley Rly. Co. [1888] 22 Q.B.D. 463 (469)] i.e. it is a remedy in the nature of specific performance of a duty in which the plaintiff is himself personally interested. Thus there must be a public duty in which the plaintiff is interested personally and as to which he has

right of action. Such right of action need not exist in those cases where an order of mandamus is requested from the Court. The order for mandamus will issue whenever there is a legal right, as ‘a supplementary means of justice in every case when there is no other specific legal remedy for a legal right : and the Court will provide as effectually as it can that others exercise their duty wherever the subject matter is properly within its control” (per Lord Ellenborough C.J. R. vs. Archbishop of Canterbury (1812) 15 East 117 cited in Wade & Phillips ‘Constitutional Law’ page 317). Thus in both cases the remedy of

mandamus is a power in the Court and its exercise is in the discretion of the Court. Normally therefore such order or action  will not lie where there  is  some other remedy, unless such other remedy is insufficient to do justice. But mandamus will not lie for a private obligation It is a means inter alia  for controlling executive acts. There must  therefore be a public duty the legal right  to enforce which must be in the Applicant. It only applies to legal rights and not equitable ones. For in equity the remedies of ‘injunction’ and ‘specific performance’ will be available. Mandamus is thus a purely common law remedy which developed out of the Common Law Courts as a control over the activities of the Executive.

Applying the law as stated to the facts of the case we must see whether the Appellant has any legal right to the exercise of a public duty. The Government acquired the land in question by virtue of the Land Settlement and Registration Ordinances, (see now Section 13 (ii)). There are no burdens indicated on the Register. The Government is thus the registered owner of the said land free from any rights other than those, if any, indicated in Section 27. Thus in all normal cases, i.e. where the land would be held by a private person, no question could arise and the landlord or owner would have the right to renew a lease or refuse to do so and to instal any tenant he may choose. Is the Government in a different position? The Appellant contended before the learned Province Judge that had the Government intended to take the land “for its own purposes” he would have had no cause of action, but the Government had no right to take possession in order to give “it (the land) to other tenants” like himself. I have looked through the Land Settlement & Registration Ordinance and I can nowhere find a limitation of this kind. Nor can I trace any other law which could be the basis of this claim. What the Appellant is in fact claiming  is a lease in perpetuity, subject to the Government’s right to terminate the lease if it requires the land for a purpose of its own. The provisions of the lease are clearly contrary to this contention and were this the case, then surely the Land Settlement and Registration Ordinance would have made some provisions for the registration of such an interest.

Thus, there not being any legal or equitable right in the Appellant, there is here no cause of action, and in the circumstances mandamus will not issue here. In my opinion, the learned Province Judge came to the correct conclusion when he dismissed the suit as disclosing no cause of action.

App1wa for revision is summarily dismissed.