[IN THE PRIVY COUNCIL]

1963 Present : Viscount Radcliffe, Lord Evershed, Lord Morris of Borth-y-
Gest, Lord Devlin, and Sir Kenneth Gresson

A. K. DAVID, Appellant, and M. A. M. M. ABDUL CADER, Respondent

PRIVY COUNCIL APPEAL No. 43 OF 1962

S. C. 234 of 1960-D. C. Puttalam, 6327

Urban Council-Chairman-Malicious refusal by him to issue statutory licence to proprietor of a cinema-Liability to be sued in his personal capacity-Delict- Malicious misuse of statutory power by a public authority-Actionability- Public Performances Ordinance (Cap. 134)-Urban Councils Ordinance (Cap. 255).

Under the Urban Councils Ordinance the Chairman is himself the local authority in connection with the granting of licences for cinema performances. The granting or withholding of such licences is his personal responsibility, and his acts are not those of the Council which is a corporation, nor is he a corporation for the purpose of these duties. It follows that, if the law does recognise a right of action against him in any circumstances arising out of a breach of those duties, whether or not a breach accompanied by bad faith or malice, the only way in which he can be sued is as an individual person, and there is no relevant distinction in his status as a party between his official capacity and his personal capacity.

An applicant for a statutory licence is entitled to damages if there has been a malicious misuse of the statutory power to grant the licence.

Accordingly, an action claiming damages for a delict is available against the Chairman of an Urban Council in his personal capacity if he maliciously refuses, as a public authority, to exercise his statutory power to issue to the proprietor of a cinema a licence under the Rules made under the Public Performances Ordinance. In such a case it cannot be contended that the only remedy of the proprietor of the cinema is to apply for a mandamus to have his application for a licence properly heard and determined.

APPEAL from a judgment of the Supreme Court dated 24th March, 1961.

The plaintiff, who was the proprietor of a cinema, had applied to the defendant, who was the Chairman of the Urban Council of Puttalam, for a licence for his cinema under the Rules made under the Public Performances Ordinance. He instituted the present action against the defendant, as an individual person, to recover damages on the ground that the defendant had wrongfully and maliciously refused and neglected to issue the required licence.

The action was dismissed by the District Court on the preliminary issue that the defendant could not be sued " in his private capacity for something he has done in his capacity as the Chief Executive officer of the Urban Council". On appeal to the Supreme Court the action was

dismissed on a different preliminary issue, namely, that no right of the plaintiff could be said to have been infringed and that his proper and only remedy was to apply for the issue of the prerogative writ of mandamus to ensure that his application was duly heard and determined. The plaintiff then preferred the present appeal to the Privy Council.

E. F. N. Gratiaen, Q. C., with Dick Taverne, for the plaintiff-appellant.

No appearance for the defendant-respondent.

Cur. adv. vult.

July 2, 1963. [Delivered by VISCOUNT RADCLIFF]-

This is an appeal from a judgment of the Supreme Court of Ceylon dated 24th March, 1961, which rejected an appeal of the appellant against a judgment of the District Court of Puttalam dated 17th March, 1960. By that judgment the District Court had dismissed an action instituted by him against the respondent claiming damages for an alleged delict.

The decision in favour of the respondent was given on the basis of two issues which, by agreement of counsel at the trial, were determined as preliminary issues before the full hearing of the case. The learned Judge in the District Court answered both issues against the app