Terrell A-G:

On 11 June 1935 the appellants Messrs. Alkaff & Co. obtained a rule nisi for certiorari directed to His Excellency Sir Thomas Shenton Whitelegge Thomas, KCMG, OBE, the Hon'ble Sir Andrew Caldecott, Knight, CMG, CBE, as officer administering the Government and The Hon'ble Mr. WS Ebden, the Commissioner of Lands, calling upon them to show cause why certain orders approving of back lanes should not be removed into the High Court and be quashed.

The proceedings against the Commissioner of Lands has been dropped, and the rule is only sought in respect of certain orders made by the Governor in Council, or the officer administering the Government in the absence of the Governor. Such latter orders are for the purpose of this appeal orders of the Governor in Council.

The acting Chief Justice, Mr. Whitley J, refused to make the rule absolute, and it is against this decision that the relators appeal to the Court of Appeal.

An objection was taken in the Court below, and again in the hearing of the appeal that the proceedings were wrongly constituted, in that relief is sought against the Governor and not against the Governor in Council. On this aspect of the case I have had the advantage of reading the judgment of the learned Chief Justice of the FMS with which I respectfully agree. I would only add in support of the conclusion to which he has come that in s. 144(1) of the Municipal Ordinance the subsection reads: "The Governor in Council may after receiving such report as he may think fit." A similar expression is used in two sections of the kindred Improvement Trust Ordinance. Section 55, which deals with a general improvement plan, provides that the Governor in Council may approve such plan or may reject it or may approve it with such conditions or modifications as he may think fit. So also under s. 80 the Governor in Council may approve an Improvement Scheme or may reject it, or may approve it "with such conditions and modifications as he thinks fit.

The form of words used in all these cases, where certain statutory duties are placed upon the Governor in Council, only serves to emphasise the fact that although the Governor receives the advice of his Executive Council, the act is the act of the Governor himself, and that relief in such cases must be sought against the Governor.

The grounds upon which the rule nisi for certiorari was obtained may be summarised as follows:

(1) that the officer appointed under s. 144(1) (now s. 148(1) ) of the Municipal Ordinance ought to have been an impartial officer and that as Mr. WS Ebden was a Member of the Improvement Trust, he was not an impartial officer and

(2) that Mr. Ebden did not conduct the inquiries in an impartial or judicial manner.

Under (2) particulars are given of the various matters complained of.

The appellants also argued (3) that Mr. Ebden had shown actual bias in that as a Member of the Improvement Trust he had already approved the back lane schemes and was therefore prejudiced in favour of such schemes.

I do not think that this third ground of objection is open to the appellants. I cannot find that it is raised in the order for a rule nisi; no application for amendment was made, and the appellants must be confined to their original case. If I am wrong in this I consider that the objection must fail for the reasons given by the learned acting Chief Justice.

I also consider that the second objection fails. The learned acting Chief Justice summarised his conclusions on this point as follows: "He (Mr. Ebden) was in fact completely unbiased. He conducted his inquiry in each case methodically and exhaustively and with the most fairness and impartiality." With this conclusion and with the reasons given by the learned acting Chief Justice I respectfully agree.

The first objection referred to above gives rise to greater difficulties. The objection may be referred to as one of legal as opposed to actual bias. The general principle is quite clear- "nothing