WEERARATNE V. HON. PERCY COLIN-TROME AND THREE OTHERS

014-SLLR-1988-V2-WEERARATNE-V.-HON.-PERCY-COLIN-TROME-AND-THREE-OTHERS.pdf


WEERARATNEV.
HON. PERCY COUN-TflOME AND THREE OTHERS'SUPREME COURTATUKORALE. A. C.J.,
JAMEELJ. ANDFERNANDO. J.
S..C. REFERENCE NO. 1/88C.A. APPLICATION NO. 278/88JULY 18, 19and'20. 1988
Writ of Certiorari — Special Presidential Commission of Inquiry —.SpecialPresidential Commissions of Inquiry Law No. 7 of 1978as amended by Act No. 4of 1978 — Jurisdiction — Ouster clauses — Ejusdem generis rule — Publicbody.–
•His Excellency the President by warrant dated 20.3.86 constituted a SpecialPresidential Commission comprising three judges of the Supreme Court (1st,
. 2nd and '3rd respondents) to inquire into and obtain information in respect of. the period between 23.7.197 7 and 31.12.85 relating to the administration ofany public body and conduct .of any public officer and report whether there hasbeen any misuse or abuse of power, corruption or any fraudulent act in relationto such public body or any irregularity in the administration of such public bodyby or on the part of any such public officer or other person and the extent toI which such person is so responsible and to recommend whether.any person(should'be made subject to civic disability and make recommendations withreference*to any other matters inquired into. •
The Commission served a-notice, on the petitioner (Anura Weeraratne) withparticulars of 24 allegations made against him and having considered hisexplanations in.reply.-informed him in January 1987 that 23 allegations will beinquired into. The inquiry began on.26.3.1987 and was concluded in November-1997 and the petitioner was found guilty of 9 allegations by its Report dated27.11.1987 (Sessional Paper No. V of 1988).
The said 9 allegations fall into 3 categories:
•!(1) As Secretary Ministry of Fisheries during 1:1.1979 to 8.11.84 he
recommended or acquiesced in or caused amendments to be made to- memorandum and articles of Ceylon Development Foundation (Ceynor)
knowing or having reason to believe they would be detrimental to theinterests of the State in'Ceynorand with a view to divesting. State Controlover Ceynor and improper use of. the property of Ceynor.
> * **
directed- Secretaries to Ceynor to submit draft amendments to the Boardto enable-the members-of the Board to hold their places in the Board in
their private capacity knowing or having reasonable cause to believe thatsuch an amendment would be detrimental to the interests of the State inCeynor.' *' ■'
Being Chairman. Fisheries Corporation during 12.10.80 to 29.9.83 the
petitioner
unlawfully authorised or caused the transfer of certain parts of a Sherpa 'van from a Corporation Workshop for installation in a Sherpa van ownedby the Ceyfon Rubber Products Ltd. of which he and the members of thefamily held controlling interests.'
received an illegal gratification of 100.000 Japanese Yen from AkasakaDiesel Ltd. for the installation of a diesel engine in a vessel built for. theCorporation by Uchida Ship Building Co. Ltd..
Being the Chairman of Ceynor during the period 1.1.79 to 26.12^84 byvirtue of the office he held as Secretary! Ministry of fisheries the petitioner
misappropriated a generator belonging to Ceynor.
retained the said generator in the premises of the Ceylon Rubber. Products Ltd., knowing or having reasonable cause to believe that the
said generator was misappropriated.
deceived Ceynor by misrepresentation that the generator.offered for sale. by Agtrinss Limited was property belonging to Agtrinss Limited, and
thereby induced Ceynor to deliver Rs. 375.000 to the purported vendor.
committed breach of trust in respect of funds belonging to Ceynor byconverting to his own use the said sum of Rs. 375.000 out of the fundsintended for the use of Ceynor.
Ceynor was a combine between Sri Lankan and Norwegian interests(private and state) and .became a corporate body by virtue of registrationunder the Companies Ordinance Ss a company limited by guarantee.Among the objects of Ceynor were promotion of the welfare of the Youthin Ceylon'as well as the promotion of fisheries. In 1977 Ceynor acquiredan increase in government support. On 22.8.87 a Letter-of Intent wassigned by 3 Ministers on behalf of the Government of Sri Lanka and aNorwegian Youth Organisation (NGU) and on 12.3.1979 theGovernment of. Sri Lanka and Norway signed an agreement. By thesesteps an aid programme. organisational restructuring of Ceynor and aprogramme of commodity assistance was scheduled. The Governmentprovided material assistance and several facilities to Ceynor. ThoughCeynor Was not a party to the Letter of Intent or agreement it was theduty of petitioner to make the monies provided by the Government
(approximately Rs. 14 million) available to Ceynor. Ceynor receivedthese sums as well as other assistance with full. knowledge of thepurposes set out in the documents. All these funds were held by Ceynorsubject to a fiduciary obligation to apply them for those* purposes. TheCeynor Board considered itself bound by the terms of the documentsincluding die Letter of Intent and Agreement In 1981 there was adrastic change in' the attitude of the petitioner and some members andDirectors to the continuation of Government nominee Directors and adrastic change in the membership and directorate was approved at ameeting of the members .of Ceynor .held on 26.8.81, The Registrar ofCompanies rejected the amendments but from August 1981 toSeptember 1982 Ceynor functioned under the purported amendments:The petitioner ignored protests and requests to comply with the Letter ofIntent and agreement and the government's right to nominate half theBoard The Norwegians also protested.
By the end of 1982 (5. 11.82) after considerable direct and indirect financial-support had been received by Ceynor from the Government its articles wereamended to exclude government nomination of Directors. The PresidentialCommission made no finding on the validity of this action but held against thepetitioner on the question of its propriety which was the subject of the firet set ofcharges. Ceynor's fiduciary obligations – survived even the amendments of5.11.11982. Its activities were intimately connected with Governmental activities *in Ithe field of fisheries and the implementation of the government’s nationalDevelopment Programme. Any profits by these activities of Ceynor were merelyincidental and were'not distributable to its members. Ceynor was a charitablenon-profit making organisation funded extensively by the State and Statesources by way of grant loan, subsidies, duty concessions and movable andimmovable property.
* The Commission found the petitioner guilty of the nine charges summarisedunder the three categories.summarized above and recommended the impositionof civic disability. .
There is evidence, oral and documentary in support of the findings Of factand the jurisdiction of the Supreme Court does not extend to the review of thg^e.findings of fact .
Where there js conflict of evidence, the Court need only ascertain whetherthere was evidence before the tribunal which would juatify-a reasonable tribunalreaching the conclusion it did. The Court will’not interfere with findings of factexcept upon "very strong grounds". There will be no trial of disputed facts danovo.
The effect of section 18A(2) is to enlarge the ouster contained in section9(2) of Law No. 7 of 1978 (as amended by Act No. 4 of 1978) in respect of all
164Sri Lanka Law Repons(1988)2SriL R.
courts other than the Supreme Court but to preserve unaffected the right ofjudicial review by the Supreme Court (on the grounds set out in the first proviso
to the Interpretation Ordinance as amegded by Act No! 18 of 1972) upon a finaldetermination. Review by the Supreme Court is-permissible on the question of
. jurisdiction but only to the orient set out in the first proviso to section 22 of theInterpretation Ordinance as amended by Act No. 18 of 1972. namely where theorder, decision,, determination, direction or finding is ex fade not within thepower conferred on the person or tribunal making it breach of the rules ofjustice end non-compliance with mandatory provisions of law where suchcompliance-is a condition precedent to the meking of such order.
-Ceynor was a public body and the Commission did have jurisdiction toinquire into the charges involving the petitioner's conduct in relation to Ceynor. .
On a true construction of its powers, the Commission did have the right to' inquire into the conduct of the petitioner in relation to Ceynor. Whatever error
there-might have been in the process of reasoning the Commission .did notreach a wrong conclusion.
Cases raflemd to .
Dilworth v. Commissioner of Stamps (1899) AC 99. 105'
Jennings v. Stephens (1936)1 All ER 40$ 412
Griffiths v. Smith (1941) -1 All ER 66. 89
Trade 'Exchange (Ceylon) Ltd. V. Asian Hotels Corporation Ltd.. (1981) 1 Sri
:LR67
5; Rv. Criminal Injuries Compensation Board. Ex p. Lain (1.967) 2AH ER 770.6. Owners pf S. S. Magnhild v. McIntyre Brothers(1921) 2 KB 97
Thames & Mersey Marine Insurance Co. v. Hamilton Frazer 8 Co. (1887) 12'AC 484
.. Bradford Corporation v. Myers (1916) 1 AC 116•
Anisminic Ltd. v. Fpreign Compensation Commission (1969) 2 AC. 147:
:(1969) 1 AUER 208
.10. R v. Glamorganshire Inhabitants; (1700j 1 Ld. Raym. 580.
Pearlman v. Governors of Harrow School (1979) 1 08 56
-Re Racal Communications Ltd. (1981) AC 574. (1980) 3 WLR.181
S.E. Asia Fife Bricks v. Non. Metallic Products etc Union (1981) AC 363 1■1* O'Reilly v.Mackman (1983) 2 AC 237
15. R. v. Greater Manchester Coroner exp. Ta!(1984) 3AUER 240
APPLICATION for writ of certiorari (transferred from the Court, of Appeal) toquash findings of Special Presidential Commission.
R. K. W. GoonesSkera with R. £ Thambiratnam and R. Rudranathan for the‘ petitioner.'
Sunil de Silva.- Additional Solicitor-General with Anura Meddegoda StateCounsel as amicus curiae.
Cur. adv. vult.
August 24,'.1988FERNANDO, J.
' This application for an prder in the nature,of a writ of certiorarito quash the findings and the recommendation of the SpecialPresidential Commission of Inquiry, consisting of the 1st, 2ndand 3rd Respondents, was made to the Court-of Appeal, andstood transferred to this Court in terms of section 18A{1) of theSpecial Presidential Commissions of Inquiry Law, No. 7 of 1978,as amended by Act No. 4 of .1.978.
His Excellency the President by Warrant dated 20.3.86established that Commission, consisting of three Judges of thisCourt —
to inquire into and obtain information, in respect of the periodcommencing on 23.7.77 and ending on 31.12.85. relatingto —
the administration of any public body as defined in LavNo. 7 of 1978, and
the conduct of any public officer as defined in Law No. 7of 1978, as amended by Act No. 4 of 1978, in relation tosuch public body, and
to report on whether there has been —
(a) any misuse or abuse of power, corruption or anyfraudulent act in relation to such public body, or
-(b) any irregularity in the administration of such public body. .
by or on the part of any such public officer, or other personand the extent to which such person is so resppnsible, and tomake recommendation es to whether any person should, interms of section 9 of Law No. 7 of 1978, in accordance, withthe report referred to therein be made subject to civicdisability, and to make such other recommendations withreference to any other, matters that have been inquired into' under the terms of the Warrant.
Having previously served a notice on the Petitioner, withparticulars of 24 allegations made against him, and havingconsidered his explanations, the Commission informed him inJanuary 1987 of its decision to inquire into 23 of thoseallegations. That inquiry. commenced on 26.3.87, and wasconcluded in November 1987. .
The Petitioner held three different offices during variousperiods covered by the Warrant. The nine allegations of whichthe. Commission found him guilty in-its Report dated 27.11.87(Sessional Paper No. V of 1988) fall into three categories, whichmay be summarised as follows —
Being the Secretary, Ministry of Fisheries, during the period1.1.79 to 8:11.84 the Petitioner did —
recommend and/or acquiesce in, or cause amendmentsto. the Memorandum and Articles of Association of CeynorDevelopment Foundation ("Ceynor")— .
knowing or having reason to believe that' the said- amendments would be detriments I. to the interests of theState in Ceynor;
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with a view to divesting State control over Ceynor and.thereby facilitate improper use of the property of Ceynor;
direct the Secretaries to Ceynor to submit to the Board ofDirectors a draft amendment to the Memorandum andArticles without provision for the representation of exofficio members and Government nominees, and therebyenable-the members of the Board to hold their places onthe Board in their private capacity, notwithstanding that heknew or had reasonable caus$ to believe that such anamendment would be detrimental to the interests of theState in Ceynor.
Being the Chairman, Fisheries Corporation, during the period12.10,80 to 29.9 83 the Petitioner did —
SC Weeraratne v. Hon. Percy Colin-Thome end Three Others (Fernando. J.) J57
1 . 1 ‘ , ’
. unlawfully authorise or cause the transfer of certain parts
of a Sherpa van from a Corporation. workshop forinstallation in a Sherpa vati owned by Ceylon RubberProducts Ltd, of which he and the members of his familyheld controlling interests:
receive an illegal gratification of 100:000 Japanese. Yenfrom'Akasaka Diesel Ltd. for the installation of a dieselengine in a vessel built for the Corporation by UchidaShipbuilding Co. Ltd.
Being the Chairman of Ceynor during the period 1.1.79 to
26.1.2.84, by virtue of the office he held as Secretary.
Ministry of Fisheries, the Petitioner did —
misappropriate a generator belonging to Ceynor;
retain the said generator in the premises of CeyionRubberProducts Ltd. knowing or having reasonable cause tobelieve that the said generator was misappropriated:
deceive Ceynor by misrepresentation that the generatoroffered for sale by Agtrinss Limited was property belongingto Agtrinss Limited, and thereby induced Ceynor to deliverRs. 375.000 to the purported vendor;
commit breach.of trust in respect of funds belongingto Ceynor. by converting to his own use the said sum
■ of Rs. 375.000 out of the funds intended for the use ofCeynor. .'
The Petitioner was appointed Secretary,' Ministry of Fisheries,oh 1.1.79, and functioned in that office until 3.1.85. On 8.1.79,he became a Director of the Ceynor Development FoundationLtd. ("Ceynor”), a company limited by guarantee, andimmediately commenced to . function as its Chairman,presumably by virtue of appointment under its Articles; that officehe held until the end of 1984.
. Ceynor has a fascinating history of collaboration betweenNorwegian Nongovernment Organisations and, later, the
, Government of Norway (through its Aid Agency N.O.R.A.D). ohthe one hand, and the Sri Lanka Government and the Sri LankaFreedom From Hunger Campaign, on the other. In 1967 adevelopment project was started at Karainagar. consisting of aboat-yard, workshop, ice-plant, and cold storage and freezingplant This project was funded by a Norwegian YouthOrganisation named Norges Godtemplar Ungdoforbund("N.G.U."), and its local sponsor was the Ceylon NationalFreedom From Hunger Campaign Committee ("F.F.H.C". aCommittee appointed by the Minister of Land, Irrigation andPower; see section 20 of the Sri Lanka National Freedom FromHunger Campaign Law, No.. 15 of 1973). Ceynor's true statusprior to 1971 is not clear. Put in that year it became a corporatebody.' by virtue of registration'under the Companies Ordinance(Cap. 145) as a company limited by guarantee.
That occurred in these circumstances. On 21.10.70 the N.G.U.informed the then Minister of Fisheries that it was intended tohave a Board of five Directors, of which one would be a nominee-of the Minister In charge of the: F.F.H.C., and further stated that"since the activity of .this enterprise is primarily in support of theobjectives of your Ministry, T would welcome a nominee fromyour Ministry". The Ministry responded by nominating‘ Mr.. Vincent Panditha. its Senior Assistant Secretary, and he wasone of the original subscribers to, the Memorandum, beingdescribed therein as "Ministry of Fisheries. Public Servant".According to Regulation 7 of the Articles, of the five Directors,three were to be nominated by N.G.U..''and one each by theMinister of Fisheries and F.F.H.C.
The F.F.H.C. Committee appointed by the. Minister wassucceeded in 1973 by a body corporate established by. LawNo. 15 of 1973. under the name Sri Lanka National FreedomFrom Hunger Campaign Board ("F.F.H.C."); having the followingobjects—
to secure the aid of foreign and local non-governmentalagencies, for social and economic, development inaccordance with the Government developmentprogramme:
to assist bodies in carrying out schemes of public utility,social welfare and economic development;
to aid. promote and co-ordinate specific agricultural andindustrial development projects;
to stimulate non-governmental agencies in theimplementation of. projects for increasing agricultural andindustrial production; and
to collaborate with the International Freedom From HungerCampaign and other similar bodies abroad.
The Board consisted of eleven members* all nominated byMinisters,, some of whom had to be public officers within theMinistries concerned. The Minister of Agriculture had the right to. give general or. special directions; an initial government grantwas provided for; the provisions of part II of the Finance Act,No. 38. of 1971 — (dealing with "Financial Control of PublicCorporations") — were made applicable. F.F.H.C. was in .1973clearly a "public corporation" within the meaning of section 22of the Finance Act, No. 38 of 1971, being— ,
"a corporation, board or other body which was or is
. established by or under any written law, other than theCompanies. Ordinance, with capital wholly or partlyprovided by the Government by way of grant, loan or otherform."
Thus the birth of Ceynor as a corporate body was not a purely( private affair, but a matter of some concern to the State; which,as will be seen, took an increasing interest in its subsequentgrowth, development and nourishment.
I now turn to the principal Objects of Ceynor. as expressed inits Memorandum ofAssociation —
"(a) to carry on. collaborate with, and promote in Ceylon, theideals and objects of the International Freedom FromHunger Campaign-
lb) .to promote education and the welfare of . the Youth in. Ceylon;
to engage in and to promote fisheries and the productionof food for the people of Ceylon and other countries;
to promote, encourage, assist, in the acquisition anddiffusion of knowledge of fisheries, agriculture, marketing,and irrigation water resources, the production,conservation and storage of feed;"
(There follow a number of other objects related to fisheries,,fishing vessels and equipment processing of fish, and alliedmatters^)
The income and property of Ceynor were required to be appliedsolely to. the advancement and promotion of the objects of thecompany, and no portion thereof was payable to the members,whether byway of dividend, bonus or otherwise by way of profit.Upon a winding up. the. residue was not .distributable to themembers, but were required to be transferred to another bodyhaving similar pbjects, to be selected by N.G.U. and N.O.R.A.D.As the Petitioner himself stated to the Commission, and as heldby the Commission, Ceynor was meant to be "a charitable non-.profit making organisation".
The members of Ceynor made no. investment of capital, in theform of shares; their liability in respect of the company extendedto a maximum of Rs. 10 each; the membership of Ceynor beinglimited to 20 persons, to-any one. dealing with Ceynor the value.of those guarantees vyould not exceed Rs. 200.
From 1973 up to 5.11.82 (when the Articles were amended toexclude such right of nomination), the Government was (directlyor. indirectly) entitled to, and did, nominate two of the fiveDirectors; further] N.G.U. nominated two public officers asdirectors. The relationship between Ceynor arid the Governmentas expressed in N.G U.'s letter dated 21.10.70 was confirmed.bythe Petitioner as well as other Directors of Ceynor: that theGovernment nominee Directors were expected to watch* theinterests of the Govefnment/Ministry; that the Board wasinformed of the policies of the Ministry and had to implementthose policies; in the Petitioner's owp words, in a letter written
after the Articles were amended. "Ceynor is involved in a largemeasure in activities connected with the Ministry of Fisheries
" Considerable significance must necessarily be attached.
to the presence of the Minister of Fisheries at several Boardmeetings of Ceynor.
In 1977 Ceynor required a greater degree of Governmentsupport in order to carry out its activities successfully. A Letter ofIntent was signed on 22.8.77 by three Ministers on behalf of theGovernment, and by N.G.U.; this outlined the aid-programme for1978-1983,. the area of operation, and the proposedorganisational structure of Ceynor; the declared intent of theparties was "to assist the Sri Lanka .Government in its NationalDevelopment Programme"; it was also stated that "Ceynor wijltake charge of the implementation in cooperation .with theGovernment". Reciprocal obligations were contemplated: on thepart of the Government, to provide the local costs of land,buildings, working capital, and exemption from duty and FEEC's.There were to be six Directors, three to be appointed by theGovernment, and three by N.G.U.; they were to be assisted bylocal management committees, consisting of the GeneralManager, representatives from the workers, and the DistrictMinisters to be appointed by the Government. Detailed budgetswere to be worked out..
By the-end of 1980, .N.G.U. had contributed a total ofRs. 34.62 million, and was expecting a Government contributionof Rs. 20.75 million, of which only Rs. 900.000 had beenreleased. Cabinet authority was obtained for a grant of Rs. 10.5million. Ultimately, between December 1980 and July 1981, atotal of Rs. 13.5 million was received by Ceynof: of this. Rs. 7million was out of savings from the Ministry of Fisheries vote. Atthis stage, a nominee of the Ministry of Finance was appointedas one of the Government nominee Directors. .
In the meantime, the Governments of .Sri Lanka and Norwayentered into-an Agreement on. 12.3.79 regarding Norwegian aidfor 1981-1985; part of the aid for 1981 consisted of"commodity assistance" in a sum of 21 million kroners; it wasagreed that out of this sum, 13 million kroners should be
162' Sri Lanka Law Reports[1988} 2SriL.fi.
allocated directly to Ceynor. it is not clear from the Reportwhether the entirety of this' sum was made available to Ceynor.tut it is certain that Ceynor received 6 million kronefs (Rs 18million)..
Government intervention also resulted in other financialbenefits to Ceynor. Ceynor was. in 1980-81. indebted to thePeople's Bank in a sum of over Rs. 40 million on account ofworking capital, as well as interest thereon; at a meeting chairedby the Minister of Finance, and attended by. the Minister ofFisheries, agreement was reached whereby part of the principalsum was to be repaid, the balance to be re-scheduled, and theinterest (about Rs. 9 million) to be written off if fre loan waseventually repaid..' •
i
Thus while the members liability in respect of Ceynoramounted to RS. 200. N. G. U.'s contribution was Rs. 34.62million and the Government, directly or indirectly, contributed,about Rs. 32 million, and also assisted in saving Rs. 9 million(interest written off). The Government also provided othermaterial assistance: State land had been used for the Karainagarproject and this was regularised by means of a formal lease,although it is not clear whether any lease rent was paid; severalvans, and two insulated trucks for the transport of fish underrefrigeration, gifted by the Japanese Government, were allocatedto Ceynor . in September 1979 and December 1980.respectively; certain assets of the Fisheries Corporation — a fishstall, a boat-yard and a fish meal plant — were handed over toCeynor in 1978, 1979 and .1980. to enable them to be run moreefficiently, cdnsideration in some form being provided for.
. The Commission refers in its Report to the evidence ofTreasury officials that funds were made available to Ceynor forspecific purposes, that they could not have been used for otherpurposes, and that the Petitioner, as Secretary of the Ministry,was the Chief’ Accounting Officer, and had to conform to
Government financial procedures..
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* . . , . ■ . .*
. It. was the evidence of the Director of Finance, GeneralTreasury, that if was the duty of the Petitioner to make the monies
provided by Government available to the organisation concernedon the basis of an agreement. Clearly, the Petitioner was subjectto this responsibility at least in respect of the . sum ofapproximately Rs: 14 million made available by the Treasury andfrom Ministry savings. Although Ceynor was not as such, a partyto the 1977 Letter of Intent or the 197.9 Agreement, there is nodoubt that the Petitioner, and indeed the.entire Board of Ceynor,received this sum, as well as the other assistance, with fullknowledge of the purposes set. out in those documents,'andsubject to the terms thereof. The protests made by theNorwegians in August and September 1982. which I refer tolater, make this very clear. All these funds were therefore held byCeynor subject to a fiduciary obligation to apply them for thosepurposes. It is clear that the Board considered itself bound by theterms'of those documents: thus on 8.1.79, at a Board meetingattended by the Minister, the Board agreed to work on the re-constitution of the Board in the manner desired by the Minister,providing for equal representation — four each — of Governmentand N.G.U. nominees: on 30.1.79, the Board agreed on nineDirectors, of which four would be Government nominees, andfurther, decided that the Memorandum and Articles ofAssociation would not be changed without the approval of inter,alia. N.G.U., N.O.RAD. and the Ministry.
From 1981. however, there appears to have been a drasticchange in the attitude of the Petitioner, and,some members andDirectors, to.the continuation of Government nominee Directors.On 26.8.81. at a meeting of the members of Ceynor — althoughthe resolutions adopted thereat are, strangely, in the form ofBoard resolutions: a drastic chanpe in ’the membership anddirectorate was approved: the membership to consist of two localand two foreign non-government organisations and' theGovernment, and the Board to consist of ten Directors^ eachmember, nominating two Directors. These amendments wererejected by the Registrar of Companies, probably on account ofnon-compliance with statutory requirements as . to form andprocedure. From August 1981 to September 1982, Ceynorfunctioned under the purported amendment, which the Registrardjd not accept.
On 9.8.82 there was a Board meeting at which the resultingposition was considered; one of the Government nominees didnot receive notice. Of this meeting; the other, the Ministry ofFinance nominee, strongly protested in writing to the Petitionerregarding the inaccuracy of the minutes of that meeting, whichrecorded that the Board "felt that it was advisable to delete theappointment of Government officials as Directors". (In view of therejection of the amendment to the Articles, there were only fivelawfully appointed Directors; since one lawfully appointedDirector was absent, there could only have been four Directorsactually present at that meeting; however, five persons haveparticipated at that meeting as Directors.)
The Finance Ministry nominee not having received any replyfrom the Petitioner, the Deputy Secretary to the Treasury wrote tothe Petitioner, reminding him of the terms of the Letter of Intentand. specifically, the Government's right to nominate half theBoard, and requested an assurance of compliance with thiscondition in the proposed amendments. Again, the Petitioner didnot reply.
The Norwegians, none of whom had been present on 9.8.82.also protested, stressing that "to delete the appointment ofGovernment officials, would be contrary to the Letter of Intent".There is thus no doubt that all concerned accepted the Letter ofIntent as binding, even on Ceynor.
There was another abortive attempt to amend the Articles at anExtraordinary General Meeting held on 14.9.82. at which noNorwegians were present. A resolution to amend the Articles wasunanimously passed provided prior approval was obtained fromN.O.R.A.D. and N.G.U.: this was not forthcoming, the Norwegiansagain stressing the terms of the Letter of Intent.
However, within, a few weeks there was a change in the viewsofthe Norwegians — a change which the Commission found tobe "inexplicable". Within four days another Extraordinary GeneralMeeting was held, on 5.11.82, at which only 8 members were,present (three by proxy); three of the members personally presentwere employees of Ceynor, who had been admitted as members
by the Board on 9.8.82, at a time when .the Board was. not dutyconstituted in terms of the original Articles; the Finance Ministiynominee in. his protest had also expressed the view that theseadmissions to membership should be annulled. Due notice ofthis meeting had obviously not been given, because, "allmembers present agreed to hold this meeting with shorter noticethan .specified in the Companies Act"; -v. although it. is theconsent of members not present which is mote important underthe Companies Act. At that meeting, a special resolution toamend the Articles was.unanimously passed, the effect of whichwas to remove the'fight of the Government to nominateDirectors.'Five minutes later — it is not clear what notice wasgiven to members — an Annual General Meeting was held, andthe Petitioner was elected a Director; he thus heid officethereafter —.. both as Director and-Chairman — by right-ofelection by the members, and notiby virtue of-nomination, by theGovernment. The Report records, however, that even after theseamendments the Petitioner considered that "he continued towork1 at Ceynor on the basis that-he was- the nominee of theMinister and carried put his policy; in the matter of appointmentsand dismissal before and after the amendment; the Ministergave, directions and he fpllowed.them". –
The Petitioner's position that these amendments were effectedwith the knowledge, and indeed upon the suggestion, of theMinister, .'as well as his claim .that Finance Ministry approval wasorally obtained, has. been carefully /.considered by theCommission, and unequivocally rejected.
Thus by the end of 1982. after considerable direct and indirectfinancial support had . been received by Ceynor from theGovernment, its Articles were amended to exclude Governmentnomination of Directors. The Commission has not come to .anyfinding jn; regard to the validity of that amendment, and Itherefore proceed on the assumption that the amendment wasvalid and operative. However, the propriety of that amendment isthe subject of the fi rst set of charges.
i f .
The jfindings of fact reached by the Commission may beanalysed as follows;
(a) Ceynorwas from 1977 (and probably earlier) engaged
principally in the exercise, performance and discharge ofpowers, duties and functions intimately connected withGovernmental activities in the field of fisheries and theimplementation of the Government's'- NationalDevelopment Programme;
. (b) While profits may have accrued to Ceynor from itsactivities, this was merely incidental to its objectives;
•'(c) Ceynor was intended to be a charitable non-profit makingorganisation, and under no circumstances were any ofthe profits or assets of Ceynor distributable to itsmembers.
Ceynor was funded extensively by the State, and Statesources, by way of grant loan, subsidies, duty concessions,arid movable and immovable property.
(a) Up to 5.11.82. the Government had.the right to. and did,. nominate two Directors, out of a total of five; in fact, a
majority of Directors were public officers. The function ofsuch Directors was to watch the interests of theGpvernment and implement Government policy; and thiswas also the Petitioner's perception of his duty;
(b) Ceynor was subject to a fiduciary obligation to use theresources provided or obtained for Ceynor by theGovernment, for the purposes stipulated by or under the1977 Letter of Intent and the 1979 Agreement; thisobligation survived the amendments of 5. j 1.82.
The Commission found the Petitioner guilty of the nine chargessummarized earlier, and recommended the imposition of civicdisability under section 9(1) of Law No. 7 of 1978. there isevidence, oral and documentary, in support of the findings offact, and it is clear that the jurisdiction of this Court in theseproceedings, in any event does hot extend to the review of thesefindings of fact The relevant principles and decisions applicableto such review have been referred to by Wade: AdministrativeLaw 5th ed. p. 261; in a case of conflict of evidence, the courtneed only ascertain that there was evidence before the tribunalwhich would justify a reasonable tribunal reaching the 'sajfneconclusion; the court will not interfere with findings of factexcept'upon "very string grounds"; there is to be no trial ofdisputed facts de novo, so that the court will not interfere when aquestion of jurisdiction arises, turning on a question of factabout which there is a conflict of evidence.
The learned Additional $olicitor:Generaj submitted, by way of apreliminary objection, that the ouster clauses in the SpeciialPresidential Commissions of Inquiry Law, as amended/ precludedthis.Court from reviewing the findings arid recommendations ofthe Commission. Learned Counsel for the Petitioner contendedthat the ouster clauses had no application as the Commissionhad acted without jurisdiction, or had committed errors of lawgoing to jurisdiction, and relied on several decisions regardingthe interpretation of oyster clauses. (2); the essence of hiscontention was. that practically all the charges of which thePetitioner had been found guilty concerned his conduct inrelation to Ceynor,, and that the Commission had erred in law.such error going to its jurisdiction, in holding that Ceynor was a"public body"*as defined in section 22 of the Law No 7 of 1978.The question whether the ground .of'challenge was outside thescope of the ouster clause necessitated a consideration of thatquestion of jurisdiction, and accordingly we heard arguments onall tha questions involved.
THE OUSTER CLAUSE
Sections 9(2) and 18A of Law. No. 7 of 1978. as amended byAct'No. 4 of 1978, need to be examined. Section 18A(1) doesriot affect the power of-judicial review, but merely identifies theCourt having jurisdiction to review although Article 140 confersthe writ jurisdiction on the Court of Appeal, in the exercise of thepower conferred by. the proviso thereto (introduced by the FirstAmendment), section 18A was enacted effecting an automatic"transfer to this Court of all applications for judicial review .inrespect of Commissions of Inquiry established under Law No. 7of 1978/
Section 18A{2) has to be read together with section 9(2),which provides that any, report, finding, order, determination,,ruling or recommendation made by a Commission under Law No. 7of 1978 shall be “final and ,conclusive and shail not be called inquestion in any court or tribunal, by way of writ or otherwise";,these expressions have to be interpreted by reference to the rulesprescribed in section 22 of the Interpretation Ordinance, as- amended by Act No. 18 of 1972, and it is only if those rules arefound inapplicable or uncertain that recourse may be had to their"plain" meaning — if indeed there be one — or judicial decisions,local or foreign. "Final and conclusive" had consistently beeninterpreted as excluding appeal, and as leaving unaffectedjudicial review on the ground of ultra viresand error on the faceo>f the record; section 22. by its silence, must be regarded asimpliedly 'affirming and adopting "that judicial interpretation.However, the scope and effect of "shall not be called in question"clauses had been the subject of considerable controversy, andsection 22 manifests an intention to resolve such controversy, bydefining the ambit of such clauses: The first proviso makes itclear that such clauses, whether or not accompanied by thewords "whether by way of writ or. otherwise", do not excludejudicial review under Article 140 — –
where the order, decision.' determination, direction orfinding is ex facie not within the power conferred on theperson or tribunal making it;
where such person or tribunal is bound to conform.to therules of natural, justice, but fails to do so: and
where such person or tribunal is obliged to.comply withi a
.mandatory provision, of law as a condition precedent tothe making of such order (etc), but fails to do so.:•,
. Thus the "ouster" effected by section 9(2) does not exclude thepower of judicial review of this Court on those grounds. Section.18A(2) enlarges the scope of section 9(2) in two respects. Firstly;paragraph (a) precludes any court-r and this would include theSupreme Court "from staying, suspending or prohibiting the
holding ofany proceeding before or by any Commission
or.the making of any order, finding, report, determination, rulingor recommendation by any such commission", f.e. from makinginterim orders. Secondly, paragraph (b) precludes any court from"setting aside or varying any order, finding, report determination,ruling; or recommendation of any such Commission", butpreserves (by the first proviso to that paragraph), in no uncertainterms,1 the jurisdiction of this Court to make a final order in thelawful; exercise of its jurisdiction. Thus the effect of section18A(2) is to enlarge the ouster contained in section 9(2) in .respect of all courts, other than the Supreme Court: to precludethe making of interim orders even by the Supreme Court but topreserve unaffected the right of judicial review by the SupremeCourt, (on the grounds set out in the first proviso to section 22 ofthe Interpretation Ordinance) upon a final determination.
I therefore hold that the Petitioner was entitled to seek a reviewof the findings and recommendation of. the Commission on thequestion of jurisdiction,'but only to the extent set out.in the firstproviso to section 22; learned Counsel for the Petitioner did notseek to adduce wider grounds of challenge.
JURISDICTION.
The | question of jurisdiction arises on . account, of certain,limitations in the Warrant. Section 2(T) (d) permits a Commissionto be established to inquire into any matter in respect of which -an inquiry, will be in the public interest; but this.Warrant did not.extend1 beyond subjects specified in section 2(1) (a) and (c).Furthei;, while section 2(1) (c) permits-an inquiry-regarding "theconduct of any public officer", this Warrant was confined to &uchconduct "in relation to a public body". The Petitioner's contentionis that the Commission had jurisdiction only to inquire into theadministration of. a "public , body"..or the conduct of a publicofficer.in relation to a/public body"; that Ceynor is not a "publicbody"; and that the administration of Ceynor, or the Petitioner’sconduct in relation thereto, could not have been inquired into assection!2(1) (d) has not been invoked.
Most of the charges are in relation to Ceynor, and hence muchof the argument before us was directed to the question whetherCeynonwas a public body.
What is'a "public, body"?
. A "public body" is defined in section 22 of Law No. 7 of 1978as "including"
"(i) any Ministry and any department of Government;
any public corporation. Commission, Board or. otherinstitution;
any public or local authority:
any business undertaking, firm, ’ company or otherinstitution which was at any time during the periodspecified in the terms of reference of the Commissionvested in the Government, or owned wholfy or mainly by
' or pn behalf of the Government;
any society registered or deerined to be registered under' the Co-operative Societies Law, No. 5 of 1972, or the
Janawasama Law, No. 25 of 1976; and
any other body or institution of a like nature."
A legislative intent to give an extensive meaning to "publicbody" is evident, not merely from the variety of bodies andinstitutions enumerated, but also from use of the word"includes", which is appropriate —
"to enlarge the meaning' of words or phrases occurring in.the body of the statute; and when it is so used these wordsor phrases must be construed as comprehending, not onlysuch things as they signify according to their natural importbut also those things which the interpretation clause
“declares that they shall include." — DHworth v.Commissioner of Stamps (1)
The phrase "or other institution" in clauses (ii) and (iv) is alsoindicative of a legislative intent to expand the scope of those twoclauses, at least to other institutions ejusdem generis with thosespecified.
The interpretation of the word "body" presents only a fewdifficulties of interpretation: its ordinary meaning would be anaggregate of persons, and in tfce context of this definitidn, itwould include all associations of persons, corporate orunincorporatedas well as a corporation sole and a corporationwhich had no members, natural or legal: it must in fact beconsiderably wider, for the definition includes a Ministry and aGovernment department, (neither of which is a legal entity nor.strictly -speaking, a body of persons), as well as a "businessundertaking". Fortunately, for present purposes, it is unnecessaryfurther to probe the meaning of "body", for quite clearly Ceynoris a body: the question is. Is Ceynor a public body?
There are many familiar uses of the word "public": in perhapsthe narrowest sense: "public" is almost synonymous with"executive" (e.g.a "public" officer as defined in the Constitution);in a much wider sense, "public" may embrace anything, whichconcerns the People as a whole. What has been said of theexpression "the public" is equally-applicable: it is a term ofuncertain import which must be limited by the context in whichit is used (2). Since if is an inclusive definition that we are dealingwith, it is the ordinary, popular and natural sense that has to beascertained, but of course, in the particular context. Would theordinary usage of the word "Public", in the expression "publicbody" include the Legislature, and allied institutions. such as theSecretary-General of Parliament (Article 65) and his staff or"department"? Would it include the Judiciary, and institutionssuch as the Judicial Service Commission (Article 112), theRegistrars'.of the Superior Courts (Articles *114, 135 and 147)and the Registries? I have no doubt that it would, in the contextof the statute under consideration.
Analysis of the phrases in which the word "public" is used inthe body of the definition itself is also relevant. The definition of a."public Corporation" in the Finance Act, No, 38.of 1971, hasalready been referred to; although this excludes a corporationestablished byor under the Companies Ordinance, it appears tome that such a corporation is not intrinsically incapable of beinga public corporation. On the contrary, the purpose of thatFinance Act was to Provide for "financial control of public
corporations", in regard to matters such as budgets, viability, thetreatment of surpluses, investments, accounts, audit, by theAuditor-General, borrowing powers, and dissolution; in regard tocompanies registered under the Companies > Ordinance, thestatute, the governing documents and precedents fairlyadequately deal'with such matters; the mischief which that Actwas intended to remedy was in relation to what may be calledstatutory State corporations. That definition sets out what thatexpression "means" for the purposes of that statute, and thus the•exclusion of companies registered under the CompaniesOrdinance appears to be a restriction on what would otherwisehave been the ordinary meaning of “corporation". Again, -thepurpose of that Act was to provide controls in respect of fundsprovided by Government: accordingly, the definition was furtherrestricted to corporations established with such funds. It is thisdefinition which has been adopted with little ..change in theConstitution in 1972 and again in 1978. .
Thus the phrase "public corporation or other
institution", in paragraph (ii). there being no exclusion of those"established …. under ….. the. Companies Ordinance", iswide enough to include such companies.
Paragraph (iii) refers, to a "public authority*'. This expression isdiscussed in Halsbury Laws Of England 3rd Ed. Vol. 30 p. 682:
"A public authority is . a body, not necessarily a countycouncil, municipal corporation or other local authority,which has public or statutory duties to perform, and whichperforms those duties and carries out its transactions forthe benefit of the publfcapd not for private profit. Such anauthority is not precluded from making a profit for thepublic benefit, but commercial undertakings making profitsfor their corporators are not public authorities, even ifconducting undertakings of public utility. A natural orindividual person might, when acting in execution of apublic duty, be. a public authority for the purpose of theprovisions, now repealed, which formerly enacted a speciallimitation period for actions against public authorities."
Thus it is implicit in paragraph Jiii) that the feature which makesan authority, "public" is the exercise of public functions, for the
. benefit of the public; and not for private profit; profit it mayundoubtedly make for the public benefit but.not for its members:Qrkfiths v. Smith {3),
Learned Counsel for the Petitioner cited Trade Exchange(Ceylon) Lid. v. Asian Hotels Corporation Ltd. (4) which meritsconsideration here. A public limited liability company, 95% of theshares in which.were held by a public (Government) corporation,carrying on. commercial activities, was held not to be a publicauthority, vested with statutory powers and duties, and thereforenot amenable to Certiorari; one exception to that rule was noted,namely. R. v. Criminal Injuries Compensation Board, exp. Lain (5).Such a company may weli be a public body within the meaningof paragraph (iv): clearly, “public" has a much wider meaning inthe definition under consideration, whereas for the purpose ofthe prerogative writs, only statutory bodies, performingGovernment functions as an agent, department or organ of theExecutive Government, would be public, bodes. The basis onwhich the exception (8) was justified has some relevance to therole of Ceynor: "the Board was a servant of the Crown chargedthe Crown by executive instructions with the duty Ofdistributing the bounty.of the Crown"; Ceynor was an instrumentof: the State, subject to a fiduciary duty (under the 1977 Letter ofIntent and the 1:979 Agreement) of utilising public funds forspecified public purposes.
This is consistent with'the ordinary meaning of "public"concerning the people, done by or for the people; of engaged inthe affairs or service of the people.
Ministries and: Government departments are "public" even in.the narrowest sense: undoubtedly they satisfy the test ofexercising public functions, for the benefit of the public,otherwise than for private profit.
. The bodies enumerated in paragraph (iv) do not appear tosatisfy that test directly; being "business" , or commercial, diemotive of profit is present, perhaps predominantly. However, onlysuch bodies as are either vested in! or wholly or mainly owned by, or on behalf of. the* Government are included. Thus, despite the
commercial nature of such bodies, their profits are primarilyintended for the public benefit; of course, a minoritf of privateowners would also benefit. Jh%se would therefore be borderlinecases, which might arguably have fallen outside the ordinarymeaning of a public corporation, or a public authority, thusnecessitating an extended statutory meaning. Further, thefunctions Of bodies with commercial objects would notnecessarily be public functions; here too it may reasonably bepresumed that vesting in Government, or substantial Governmentownership, would not have occurred unless their functionsapproximated to a public service.
Learned Counsel for the Petitioner strenuously contended that"company" in paragraph (iv) referred to a company registeredunder the Companies Ordinance for Act), that the entire class ofsuch companies as was legislatively intended to be broughtwithin the definition had been included in that paragraph, andtherefore that^other companies (e g. those not wholly or mainlyowned by or on behalf of Government) could not fall into theresidual category in paragraph (vi).
This contention I am unable to accept. An institution which forsome', reason does not come within paragraph (ii) cannevertheless fall within paragraph (vi). if it is "of a like nature". Asociety which is not registered under the Cooperative SocietiesOrdinance, can nevertheless fall into the residual category.
. ei*,
Much* attention was. devoted to the question whether a.company could be "owned", since an incorporated company waslegally an entity distinct.from its members, who did not in strictlegal theory "own" the company or any part of its assets;,ownership in the case of members who had .invested no sharecapital, and to whom no portion of the profits or assets couldever — not even upon dissolution — be distributed, appeared aneven more thorny probfem. Various tests were suggested; thatthe concept of ownership of a company (see sectipn 169 of theCompanies Act) is related to the ultimate interest in the successor failure of the venture; that it is related to the right to receivethe assets upon dissolution; that .ownership .is to be equated tomembership.
A company is a.body of persons combined fgra common,especially commercial, object. There are numerous ‘companies"carrying on various businesses, which are'not registered underthe Compariies Ordinance (or Act), and. which are not corporatebodies. SUch companies are capable of being owned in the samemanner as business undertakings and firms.;<
'; ‘ * '*. * ' * ' . ' *
Having tegard to the context, and the extensive meaning which“public body" ordinarily has/l am of the view that, despite theproblems of interpretation^ posed toy the "ownership" of acompany^ "company" must be given a wide meaning: asincluding bodies which are corporate as well as unincorporate.
i■. .■•••
Turning to paragraph (v), a society registered under the Co-operative Societies. Law No. 5 of 1972, has the object ofpromoting the interests of its members in accordance with co-operative principles; there is ho Government representation in itsmanagement;' members hold the shares in the society, andprofits are distributable to the members, after transfers to reserveand. a statutory contribution to the Co-operative' Fund; there issome degree Of supervision, particularly in the area of accountsand audit, by the Registrar of Co-operative Societies, who hasalso powers of investigation; arbitration and dissolution. Theextent of Government Control, finance and influence is far lessthan in <the base of a public corporation. It'is. however, notdifficultfo understand why,these bodies were brought within thedefinition of a "public body", for the services rendered by thesesocieties have long been regarded as'public services: so muchso thatthe Essential Public Service Act No. 61 of 1979 —merelyenacting into law what; was stated in many Essential ServiceOrders over the years — enables "the services provided by allCo-operative Societies and Unions" to be declared to beessential., public services. It is this quality that co-operativesocieties share with the preceding bodies and institutions.
A Janawasama established under .the Janawasama Law.No. 25 of 1976, is similar in many resjjects to a cooperative society{except thatthe Janawasama is based on the collective principle,and not the co-operative), with the Janawasama, Commission(undoubtedly a public corporation); taking .the place of .the
Registrar, and haying more extensive powers in relation to aJanawasama than the Registrar; the Janawasama Commissionhas power to stipulate conditions governing the work of aJanawasama (section 2(b) (iii)*and could enable a.Janawasamato obtain $tate land (section 10). While the extent of Governmentsupport and interest in the case of a Janawasama is'greater thanin the case of a co-operative society, there is no expresslegislative provision recognising its functions as a public service:however, it may well be that agriculture, animal husbandry, andagro-based industry, with an emphasis on maximum productivity,maximum utilization of agriculturalland, and profit-sharing (seesection 9) were considered to be of prime-public interest.
Apsflcrtow of the ejunlwn janeiti into ,
Learned Counsel who appearadfor the Petitioner before theCommission, submitted that paragraph (vi) must be construedejusdem generis with the other institutions specified in thedefinition; he further submitted that the. common feature of thoseInstitutions is Governmental control through the Minister, andthat this dominant feature is totally lacking in the case of Ceynor.That the rule applied does not appear to have been disputed; theCommission referred to. Owners of. S.S. Magnhild v. McIntyreBrothers [6) and Thames & Mersey Marine Insurance Co, v.Hamilton Frazer & Co. (7) and set out the rule in.these terms:
(1} unless a genus can be found in the specified things, thereis no room for its application;.
in order to place the specified things which precede the
general words under some common category, thespecified things must possess some common anddominant feature;:
once a common.category, is found,,,the question iS
whether the particular thing , in question is within thegenus that comprises the specific things, and notwhether the particular thing is like one or other of thespecified things.,
It is in. regard to the application of- these principles to thedefinition of "public body" that there is disagreement.
, Having examined'some'of the institutions which fell into eachof the first five paragraphs of the definition; the Commissionconcluded that the common and dominant features whichthoseinstitutions possess are "Government control. Governmentfinancial assistance and performance of public service". Havingreferred to the facts, the Commission held that "the Governmentwas able, through two of its nominees, one'of whom was alwaysChairman, and through'two of the N.G.U. nominees, who werepublic servants, to exercise control over Ceynor"; that Ceynor"received Government financial assistance and did perform apublic service".
* •
Learned Counsel for the Petitionercontends that while Ceynordid. receive Government financial assistance, a much largeramount was received from non-Government sources; that theservices performed by Ceynor — e.g-. building and selling boatsto fishermen — were also performed by bodies which wereclearly not public bodies, operating purely with a view of profit;that it was not Government control which wasrejevant. but rather"the’ right to exercise control", and adds that not pnly did theGovernment not have the right to exercise control, but in.fact theGovernment did not control Ceynor. .
White J agree. Broadly, vyithjhe views of the Commission jnregard to the common features of the institutions specified, itappears to me. with all respect, that the degree of emphasisplaced, by the Commission, on Government control arid financialassistance; as> if they were two distinct factors, was excessive.From the preceding examination of paragraphs (i) to (v). l am Ofthe view that the common characteristic — if such can be found— of the specified institutions are —
• i
principally, the rendering of a public service (in its widestsense, including the exercise, performance or dischargeof any power, duty or function of a public character) forthe. public benefit, and. not with the objebt of making
profits for its members; and
' » ,
some degree of Governmental: interest; influence or, concern, in its affairs (manifested by financial or other
material assistance, participation in managementlhrough
officers or nominees, the giving of directions or the. exercise of supervision, or otherwise).
* '
It is only paragraph (iv) that gives rise to some difficulty. Ifthe ejusdem generis rule applies, either the relevant factors areas stated above, and paragraph (iv) has to be restrictivelyinterpreted, to include only those "business" entities which areengaged in a business of intimate concern to the public, orparagraph (iv) has to be given its plain, and wide, meaning, inwhich event the common factor would be only the second ofthe factors mentioned above, public service: being irrelevant.The first alternative appears to me to be correct: as thedefinition is'of a "public body", the bodies mentioned inparagraph (iv) must also, be "public", and accordinglyparagraph (iv) must be confined to those bodies yhich havethat characteristic.’ In Bradford Corporation v. Myers (8) an Actentitled the "Public Authorities Protection Act" imposed alimitation on actions "against any person": it was held thatthough the word "person" was used, not every person wasprotected: it was a "Public Authorities Protection Act", andtherefore the body to be protected must be a public body:likewjse, in a statute providing for inquiry into public bodies,the reference to business or commercial bodies must (in theabsence of other compelling reasons) refer to those which arealso public in character. I need hardly addhere "public" is notused in the very differentieens’e in which a "public" corinpany isdistinguished from a "private" company,
* ’ ■
I am of the view that Ceynor is a public body as defined forseveral reasons..
Firstly, Ceynor is a "public corporation ,. .. or otherinstitution" within the meaning of paragraph (ii). since thatexpression (i) does hot exclude corporate bodies establishedunder the Companies Ordinance, and (ii) does not require thatthe establishment of the corporation should have been withfunds or capital provided by the Government, (uhlike'.thedefinition in Article 170 of the Constitution).
Secondly, "company or other, institution"-in paragraph (iv). inthe context of the statute' and the amplitude of the definitionclause, includes unincorporated companies as well as. thoseregistered under the Companies Ordinance for Act); providedthey satisfy the test of being "public". The concept of"ownership", in the' strict sense, is inappropriate to ,a limitedliability company, and especially to a company limited byguarantee; in regard to the latter, "ownership" cannot even beequated to the holding of shares. In these circumstances, and •bearing in mind that our Company law does contemplate somekind of "ownership" of a company (as indicated by section 169..as well as fn concepts such as one company being a "wholly-owned subsidiary" of another), I incline to the view that"ownership" is used in a wide sense so as to include, forinstance, beneficial ownership; Ceynor : being admittedly , acharitable.organisation..funded largely by Government sources(as wall as other foreign donors,-from motives of charity) Ceynorand its undertaking was beneficially owned by the .Government,,at least as. being "the person financially interested in the successor failure of the company".
Finally, even if pn a strict interpretation of paragraphs (ii) and(iv) there may appear to be a doubt as to whether Ceynor.fallswithin those provisions. Ceynor is a body or institution which isejusdem generis with the specified institutions, clearly having thetwo characteristics necessary; and which continued to have themeven after the amendment;to its Articles (which only reduced,and did not eliminate altogether, the element of Governmentinfluence).
Ministry of Fisheries which previously had the right to nominate;a Ministry is a public body: and the .Petitioner's conduct wasthus in relation to a publicbody. Further he was then a Directorand Chairrrian of Ceynor, by virtue of nomination, and the findingof the Commission is that such-nomination was by virtue of. hishaving held office as Secretary to the Ministry, i.e. as'a publicofficer; and hence his conduct wds as a public officer. TheCommission thus had jurisdiction in respect of those charges;whether or not Ceynor was a' public body. The position is thesame in regard to the other charge which'concerned ad act donein the Petitioner's capacity as Chairman of the FisheriesCorporation, in relation to a matter affecting that Corporation. ’
• I must observe that the entire argument, before theCommission and in this Court, proceeded on-the basis that theejusdem generis rule applied; it seems to me that it'was certainlyarguable that this rule was inapplicable, and that general wordsshould have received their full and natural meaning, withoutsuch limitations as the application of this rule would compel. butin the absence of argument I express no opinion1 on thatquestion.
ERROR GOING TO JURISDICTION
It remains to consider the Petitioner's further submission(retying on the decisions in the Anteminic (9) and other cases,that the Commission in deciding the question of jurisdiction"asked the wrong question" and "applied the wrong test", andthus erred in law; such error was an error going to jurisdiction,although, despite such error in its process of reasoning, theCommission reached thercorrect conclusion:
*'* e
In the Anteminic case (9) the Respondent Commission wasbound by law to treat a claim as established1 if the applicantsatisfied it of oertaih matters;, the applicant established .thosematters; however, the Commission, misconstruing the relevantprovisions, held that amadditional condition hadto be satisfied,that the applicant had not satisfied that 'condition/ andaccordingly rejected the claim. Thus the Corhmission erred, tothe applicant's prejudice^ by imposing an additional condition; ih
the. present case.-the Commission has erred, if at all. to the .'Petitioner's advantage by imposing an additional condition whichhad to be satisfied by the adverse party before a finding of guiltcould -be reached against the Petitioner. Apart from thatsignificant difference; it is of. vital importance that the House ofLords did not consider a mere error in the process of reasoningsufficient ito deprive the tribunal of jurisdiction; it was only anerror which resulted in a wrong, conclusion as to jurisdictionwhich had'that effect. As Lord Reid observed —
J "
"Blit if. on a true construction of the order, (an applicant)does not have to prove (the additional condition); then the'commission' made an enquiry about a matter which -theorder did not empower them to make, and they based theirdecision on a matter which they had no right to take intoaccount
,But if they reach a wrong conclusion as to'the width of their‘powers, the court must be" able, to correct that — notbecause the tribunal has made, an error of law. but becauseas,a result qf making an error of lawjhey have.dealt with^nd based tfieir decision on a matter with which, on a trueconstruction of their powers, they had no right to deal.:..So the question is whether on a true construction of theprder (the applicant) did or did,.not have to' prove (the
additional condition)
* * ■ L
The question I'have to consider je not whether they made awrong deciston but whether they enquired into and decidedti matter which they had no right to consider/'
In like manner, the question for our consideration is notwhether the Commission made a wrong .decision, but whether •theyjinquired into'and decided a .matter ^ the conduct of thePetitioner in relation to Ceynor — which they had no right toconsider;, on a true, construction of its powers, the Commissiondid have the right to inquire into that matter; whatever errorthere might have been in its process of reasoning, theCommission did not reach a wrong conclusion.
As Lord Wilberforce pointed out in the same case, "a tribunalmay quite properly validly enter on its task, and in the. course ofcarrying it out may make a decision which is invalid — not merely,erroneous. This may be described as asking the wrong questionor applying the wrong test — expressions not wholly satisfactorysince they, do nothin themselves, distinguish between doing.'something which is not in. the tribunal's area; and doingsomething wrong within that area — a crucial distinction whichthe cburt has to make." Thus; it is clear that "asking the wrongquestion" renders a decision invalid only where something isdone which is not in the tribunal's area: '’whether (the tribunal)took into; consideration matters outside! the smblt of its.jurisdiction and beyond .the matters which it was entitled toconsider"
'., yf-
The ambit of Certiorari was explained in 1700 (10) .in theseterms:
"…. this,, Court will examine, the proceedings of alljurisdictions erected by Act of Parliament. And if they, underpretence of such Act, proceed to' encroach jurisdiction tothemselves greater than the Act warrants,.this Court willsend a certiorari to them… "
The process'of reasoning whereby a tribunal came to aconclusion as to its jurisdiction is not decisive. If it held that it didhave jurisdiction, and this Court on a.true construction of’theenabling Act finds that it did not this Court will (apart fromouster clauses) send a Certiorari to it. If tljis' Court finds,however, that on a true construction of the Act the tribunal didhave jurisdiction whatever error might haw been cdmmitted inthe course of its reasoning, the tribunal cannot be held to-have'"encroached jurisdiction to themselves greater<than the Actwarrants": we cannot send a Certiorari to it. Section 22 of theInterpretation Ordinance confirms this view: Certiorari Will issueto the Commission only if its order, decision or report is not‘ within its power.•. ._, .
: . •. *r. . • ’■■'’
The other decisions (2) cited by learned Counsel for thePetitioner do not deal directly with this question. They relate.
primarily, to the construction and effect of ouster clauses in verydifferent situations. In PeerimafTe case (11.) the Court of. Appeal(Geoffrey lane, L J.j dissenting) issued Certiorari to quash theorder of a County Court, despite an ouster clause. However, thisdecision was expressly disapproved in the case Racsl (12) anappeal from a decision of the High Court, declared'to be notappealable — by the House of Lords, which considered thereasoning in the dissent of Geoffrey Lane, L. J„ to be conclusive.Lord Diplock began by asking himself the question "Whatprinciple of.statutory interpretation can lead one to suppose thatParliament when it said 'hot appealable: really meant 'appealableon. some grounds but not on others'?" and concluded "that thewords-of the statute 'shall not be appealable' mean what they say".That was the only issue in that case, despite dict& in that caseexplaining what Anfeminic really decided. Geoffrey Lane. L J/sdissent was also approved by the Privy Council in 5. £. Asia FireBricks v. Non-Metaflic Products (etc) Union{Z). In O'Reilly v.Mackman (14)four prisoners instituted actions against membersof the board of visitors claiming declarations that the board's. findings were void; the defendants applied to strike out theproceedings, and this was refused. The Court of Appeal reversedthat decision, and the House of Lords agreed with the Court ofAppeal; all the remedies for the infringement of rights protectedby public law could — particularly in view of various recentprocedural changes — be obtained in an "application for judicialreview" (provided for by the English Supreme Court Act of1981), arid therefore as a general rule it would be an abuse ofthe process of the court for a plaintiff to seek redress by an. ordinary action. In R. v. Greater Manchester Coroner, ex. I. Tap.(15) a Divisional Court of the Queen’s Bench Division had to. consider the right of judicial review in respect of a coroner'sinquest proceedings; the Coroners Act, 1887. gave the HighCourt wide powers, but exercisable only on application by orunder the authority of the Attorney-General, and no suchauthority had been given; but that Act provided that nothingtherein shall prejudice or affect the jurisdiction of the High Court. in relation to or over a coroner. It was held, on the merits, thatthere was.no substance ip the complaint. However, referencewas made to the Anisminlc case because a previous Divisional{Court, relying on a dictum of Lord Diplock in the Racal case
—that "In Anismintc, this House was concerned only withdecisions of administrative tribunals" — had. held that there wasno power of review in the case of a coroner's inquest for an errorof law going to jurisdiction. The (second) Divisional Courtreferred to Lord Diplock's views in the fater case of O'Reilly v.
Mackman {14) which made it "plain thatLord Diplock did
not intend to say that the Anisminic principle did not extend toinferior courts as well as tribunals".
The Anisminic case was rightly hailed as a legal landmark.However, despite many dicta about "asking the wrong question",in none of the cases cited was a decision of a court or tribunalquashed on the groundthat it had asked the* wrong question inarriving at such decision. There appear to be many views as to1 what Anisminic in fact decided, and what it ought to be regardedas having decided: see Wade (1) at pages .264-266, and 603-606. and I cannot but concur with his conclusion that "all thatcan be said with certainty at the present stage is that there is amedley of contradictory opinions in the appellate courts, and theconflict between the rival interpretations… . is unresolved.”
The Petitioner's final contention thus fails. The Petitioner'sapplication has therefore to be dismissed, but (as theRespondents did not appear and were not represented) withoutcosts.
atukorale. A. c j. – 1 agree.
JAMEEL. J.: I agree.Application dismissed