METHODIST TRUST ASSOCIATION OF CEYLON

METHODIST TRUST ASSOCIATION OF CEYLON

Vs.

DIVISIONAL DIRECTOR OF EDUCATION OF GALLE AND OTHERS

COURT OF APPEAL
SAMAYAWARDHENA, J.
CA/WRIT/192/2015

Writ of mandamus-Mandamus can be issued against natural, juristic or non-juristic persons-Assisted Schools and Training Colleges (Supplementary Provisions) Act, No. 8 of 1961, section 10(1)(a)-Vesting Order-Divesting Order-Rule 5 of the Court of Appeal (Appellate Procedure) Rules 1990-Articles 140 and 141 of the Constitution

The petitioner filed this application seeking a writ of mandamus directing the respondents to make a divesting order in respect of the Maitipe Methodist Mixed School, Galle, vested in the Crown in 1963, in terms of the Assisted Schools and Training Colleges (Supplementary Provisions) Act, No. 8 of 1961.

Under section 10(1)(a) of the Act, if a property so vested ceases to be used or is not needed for the purpose of a school, the Minister shall make an order of divesture. The respondents did not dispute that the said school had ceased to function as a school since 2003.

The repeated requests made by the petitioner to the respondents to divest the property were turned down without acceptable reasons. When this application was filed, the respondents took up a new position that the property was needed for a new project, yet to be implemented, under the theme "The closest school is the best school." However, no meaningful steps had been taken to that effect and the school was still found to be abandoned and neglected.

In the caption of the application, the respondents had only been cited by designation and not by name. At the argument, relying on Haniffa v. The Chairman, Urban Council, Nawalapitiya 66 NLR 48, it was strenuously submitted on behalf of the respondents that the petitioner's application shall be dismissed in limine as mandamus can only be issued against natural persons.

Held:

1. The rights of the parties shall be determined at the time of the institution of the action. As the property ceased to be used and was also not needed for the purpose of the school at the time of the institution of the action, mandamus shall be issued compelling the Minister to make the divesting order.

2. Disposing of cases on technical grounds is easy and speedy. But that is not what the aggrieved party expects from the court. The aggrieved party wants the case to be disposed of on the merits rather than on technical grounds. These are courts of law and not academies of law.

3. When the petitioner has sought mandamus against all the respondents, including the Minister who can be compelled to make the divesting order, the application need not be dismissed on the ground that the petitioner has failed to particularly identify the Minister by name.

4. Haniffa 's case, which held "A Mandamus can only issue against a natural person, who holds a public office" need not be mechanically followed. When Haniffa's case was decided in 1963, the Court of Appeal (Appellate Procedure) Rules of 1990 were not in existence. After the said Rules came into force, the Rules shall take precedence and there is no room to rely on Haniffa's case to summarily dismiss applications for mandamus on the purported ground that the respondent against whom mandamus is sought has not been cited by name.

5. Rule 5 stipulates how a public officer shall be cited in a writ application. According to Rule 5(1), Rule 5 applies to all writ applications without any distinction between mandamus and other prerogative writs. Nowhere in Article 140 of the Constitution or in Rule 5 of the Court of Appeal (Appellate Procedure) Rules of 1990 does it state that mandamus can only be issued against a natural person.

6. Rule 5(2) says that in the caption of the petition the public officer can be cited by official designation only and not by name and, if necessary, his name can be disclosed in the body of the

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