Re Ryan, Thomas D'Arcy

JurisdictionBahamas
CourtCourt of Appeal
JudgeBLAIR-KERR, P.,Duffus, J.A.,Luckhoo, J.A.
Judgment Date19 November 1980
Neutral CitationBS 1980 CA 31
Docket NumberCivil Appeal Nos. 1 and 5 of 1980
Date19 November 1980

Court of Appeal

Blair-Kerr, P.; Duffus, J.A.; Luckhoo, J.A.

Civil Appeal Nos. 1 and 5 of 1980

Re: Ryan, Thomas D'Arcy

Constitutional Law - Citizenship

BLAIR-KERR, P.
1

I had prepared a draft judgment but subsequently I had the privilege of perusing in draft the judgment of my Brother Sir Joseph Luckhoo. The history of this matter and the questions raised in these appeals have been so fully dealt with by my Brother that what I now have to say may be stated quite shortly.

2

At one stage, it was submitted that those concerned with the enactment of the Supreme Court (Amendment) Act 1975 d the Supreme Court (Special Jurisdiction) Rules 1976 may possibly have had in mind, inter alia, sections 60, 61 and 63 of the Supreme Court of Judicature Act 1925 and Orders 53 and 54 of the English Rules of the Supreme Court; but the English and Bahamian provisions differ markedly.

3

Sections 60, 61 and 63 of the Supreme Court Judicature Act 1925, so far as relevant, read as follows:-

  • “60. Every proceeding in the High Court, and all business arising thereout shall, so far as practicable and convenient and subject to the provisions of this Act relating to Divisional Courts, be heard and disposed of before a single judge ………..

  • 61. A Judge of the High Court may, subject to Rules of Court, exercise in Court or in Chambers all or any part of the jurisdiction vested in the High Court ……………..

  • 63. Divisional Courts may be held for the transaction of any business in the High Court which may be ordered by Rules of Court to be heard by a Divisional Court.

    • (2) ……………………

    • (3) ……………………

    • (4) ……………………

    • (5) The Judge who is according to the order of precedence under this Act the senior of the Judges constituting a Divisional Court shall be the President of the Court.

    • (6) A Divisional Court shall be constituted of two Judges and no more:

      Provided that -

      • (a)………………

      • (b) If the President of the Division to which the Divisional Court belongs …… is of the opinion that the Divisional Court should be constituted of a greater number of Judges than two, the Court maym be constituted of such numbers of Judges as the President …..….……. thinks expedient;”

4

0. 53 r. 3(1) of the English Rules of the Supreme Court, which provides for the mode of applying for an. Order of mandamus prohibition and certiorari, reads in part:-

“3(1) When leave has been granted to apply for an order of mandamus, prohibition, or certiorari, the application for such order must be made by originating motion to a Divisional Court of the Queen's Bench Division ………….. “

5

The English rule is clear. An application for an order of mandamus, prohibition, or certiorari must be made to a Divisional Court, that is to say to a court which consists of not less than two judges. That was never so in the Bahamas. The Rules Committee were empowered to enact that applications for orders of mandamus etc. shall be heard and determined by a court consisting of not less than two justices; but the Committee did not choose to do so. Rules 2 and 3 of the Supreme Court (Special Jurisdiction) Rules were clear. They said in effect that two or more justices may sit together for the hearing and determination of applications, inter alia, of mandamus, certiorari and prohibition etc. “whenever the Chief Justice shall so direct.” The Rules did not abrogate the general jurisdiction of a single justice to hear and determine such applications.

6

However, as my Brother has said, all this is of academic interest today because the Supreme Court (Special Jurisdiction) Rules were, together with all other existing Rules of the Supreme Court, revoked by Order 82 r.3 of the Rules of the Supreme Court 1978.

7

In the instant case, the application for an order of mandamus was made under Order 53 rule 3(1) which reads:-

“When leave has been granted to apply for an order of mandamus, prohibition, or certiorari, the application for such order must be made by originating motion to a judge in chambers…… “

8

I agree that the learned judge in the court below had jurisdiction, authority and power to hear and determine the application for mandamus.

9

I also agree that the Minister was, in the circumstances of this case, answerable to an order of mandamus.

10

In Merricks v. Heathcoat-Amory and the Minister of Agriculture(1), Upjohn J. (as he then was) said (pages 575, 576):-

“It is possible that there may be special Acts where named persons have special duties to perform which would not be duties normally fulfilled by them in their official capacity; but in the normal case where the relevant or appropriate Minister is directed to carry out some function or policy of some Act, he is either acting in his capacity as a Minister of the Crown representing the Crown, or is acting in his personal capacity, usually the former. I find it very difficult to conceive of a middle classification.”

11

In my view, there is unquestionably a “middle classification”. S.A. De Smith in his textbook Judicial Review of Administrative Action (3rd Edition), states the position thus (pp. 494/5):

“It is beyond question that a mandamus cannot be directed to the Crown or to any servant of the Crown simply acting in his capacity of servant. This common-law rule is unaffected by anything in the Crown Proceedings Act …….. Where, however, a duty has been directly imposed by statute for the benefit of the subject upon a Crown servant as persona designata, and the duty is to be wholly discharged by him in his own official capacity, as distinct from his capacity as an adviser to or instrument of the Crown, the courts have shown readiness to grant applications for mandamus by persons who have a direct and substantial interest in securing the performance of the duty.”

12

Hood Phillips in his text-book Constitutional and Administrative Law (5th Ed.) says much the same thing (p.543):-

“Mandamus is not available against the Crown itself, nor against a servant of the Crown to enforce a duty owed exclusively to the Crown …… because a third party cannot require an agent to perform a duty which he owes solely to his principal. But mandamus may be issued against Ministers or other Crown servants to enforce a statutory duty owed to the applicant as well as to the Crown.”

(1) [1955] 1 Ch. 567
13

By section 7 of the Bahamas Nationality Act, the Legislature prescribed the exceptions and qualifications to which the prima facie right of a person possessing Bahamian status to be registered as a citizen, is subject, and the Legislature designated the Minister of Labour and Home Affairs as the person to whom an application for registration should be made. Clearly, Parliament has imposed a duty on the Minister to determine whether or not an applicant for registration as a citizen should or should not be so registered, having regard to the exceptions and qualifications prescribed and all other statutory requirements. The Minister owes a duty to the applicant; and an order of mandamus may therefore properly issue to compel the Minister to perform his statutory duty.

14

The learned judge in the court below held that the Minister had impliedly refused to reconsider, according to law, Mr. Ryan's application. He gave his reasons for so holding in these words:-

“In all the circumstances before me and having particular regard to the content of the Press statement, coupled with what is clearly a singularly inordinate delay in determining the applicant's application according to law, I am satisfied that there has been an implied refusal on the part of the Minister.”

15

As recorded by their Lordships of the Privy Council at page 8 of the judgment, one of the main propositions of law advanced on behalf of the Minister before the Supreme Court, this Court and to the very end of the hearing before the Privy Council was that the Minister had a wide discretion to refuse Mr. Ryan's application for registration if, for any reason at all, he thought this to be undesirable from the point of view of public policy.

16

Therefore I do not think it can be argued that the delay should be computed from 1974. The delay, if any, dates from the date on which the Privy Council's decision was communicated to the Minister.

17

Having declared that the Minister's decision of 28 th May 1975 was null and void, and that the final words of the proviso to section 7 of the Bahamas Nationality Act 1973 were inconsistent with the Constitution and therefore void, their Lordships of the Privy Council declared that:

“(Mr. Ryan) is entitled to have his application for registration as a citizen of the Bahamas dated 27 th June 1974 reconsidered by the Minister according to law, ………”

18

In England declaratory orders are normally followed unless, of course, the intention is to obtain from Parliament a speedy alteration of the law. Shortly after the Privy Council's decision was communicated to the Minister of Labour and Home Affairs (The Hon. Darrell E. Rolle), he issued his Press Statement on 13 th August 1979. That Statement is set out in full in the judgment of my Brother, Sir Joseph Luckhoo. It may be summarised thus:-

Government's view is that the Constitution and the Bahamas Nationality Act confer upon the Minister responsible for nationality the power to determine citizenship in his discretion for reasons of national security and public policy. The decisions of the Court of Appeal and the Judicial Committee of the Privy Council that the final words of the proviso to section 7 of the Bahamas Nationality Act are ultra vires the Constitution are unacceptable to Government. It would be impossible for Parliament to prescribe every ground of national security and public polio on which an application for citizenship may be refused, and no Government ought to agree to be bound by such a decision. At no stage during the debate; prior to Independence did Government say that it would confer automatic...

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