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THE SHAMEEN LAND TRANSFER DISPUTE.
SUPREME COURT JUDGMENT FOR BANK OF EAST ASIA.
11TH, 1924
petition of right? The legal estate in Mandamus is a command issuing from this lot is at present it. Vasanis, thoa Superior Court directed to a person registered, holder of the Crown Lease, requiring him to do some particular for it is common ground that the title thing therain specified which appertains of the Bank is incomplete without the to his office, is in the rature of a registration of the transfer in the books tuty, and is consonant to right and at the Consulate General. He works to justice. Its purpose is to supply defects aracsier that legal estate from himself to of justice (10, Halsbury D. 77). En par- the bark; and I fail to see how that tienlar it hes
public
to enforce statu-
IMPORTANT RULING ON NATIONALITY QUESTION. Cown. For petition of right is a pra- Ufficials in their capacity as
À CONSUL-GENERAL'S STATUTORY DUTY.
FACTS OF THE CASE.
26.
"
THE STATUTORY DUTY,
can come within the ambit of a petition tory rights and duties: to require public of right, even though the effect may be effcials to carry out their duties (Ibid. to, constitute the Bank a lessee of the p. 70), Ik will issue to Government publio cess by which recovery is made from the officers exercising executive duties which Crown of property of any kind, includ-affect the rights of private persons (Ibid. ing money, to which the suppliant is legally" or equitably entitled, except in P. 83). Where Governmeca oficials have been constituted agents for carrying out cases where this process is ousted by some particular duties in relation to subjects statutory method of recovery (Robertson whether by royal charter, statute or com We reproduce below the full text of August, 1023, the duly authorised repre- p. 331). See further 10 Halsbury, p. 20mon law, so that they are under a legal sentatives of the parties to this convey. It was stated clearly by the Court of the judgment delivered is H.M. Supreme ance attended at the Consulate-General Queen's Bench in Feather R. obligation towards, auch subjects, a writ 83). Mandamus of auch duties. (Ibid. Court at Shanghai on the Bth inst. by His to register the transfer from Vasanis to L J. Q. B. 208) agreeing expressly with of, mandamus will lie for the enforcement Honour Judge. Sir Skimmer Turner in the the Bauk. Registration was refused: the Court of Common Pleas The only has issued to Special Commissiorers for hance this action. The ground for re- cases in which the petition of right is Income Tax (1920, 1 K.B.), to a Regis action brought by the Bank of East Asia, fusal, which was done on instructions open to the subject are where the land or of Building Societien (60. 1.1718), Ltd., and F. F. Vasania against Sir from the Secretary of State for Foreign goods or money of a subject have found and to a Registrar of Title Deeds (21. James Jamieson, K.C.M.G., H.. Con- Affairs (who is the official head of the heir way into the possession of the Q.B.D. 358), I was held by Will J. sul General at Canton, and Mr. Frank Consular Service), is set out admittedly Crown. It is in such cases only to be available against a Registrar of Learrectly in the letter from the plaintiffs that instances of petitions of right bav-Joint Stock Companies (21. QB.D. 131) Arnold Wallis. Vice-Consul of Canton, solicitors to the Consul General dated ing been entertained are to be found in and in a proper case would have been The claim was ;***
"August 13th, 1923. It was that registra our books" See also the judgment of available agaiss u Registrar of Friendly For a declaration that the plaintif tion was to be refused to limited com.the Privy Council in Esquimoult, etc. Societies (LR. 7. QB. 741); and it Bank are entitled by virtue of divers panirs incorporated under the Hongkong B, v. Wilson (1920, A. C. on p. 964) appears to me that it must be available Ordinances unless they fulfilled certain know of no later enlargement of the against a Consular Other is respect of mesne assignments and in particular conditions, and that the Consul Gereral ambit of a petition of right. The Crown his statutory duties. It is true that the by virtue of an indenture dated August
th, 1991, to the western half of lat 3 had decided this Bank did not fall Lea in this case can in ro sense bo decision to issue the mandamus to the in the British Concession at Shameen them. The matter is carefully set out in said to have found its way into the Special Commission for Income Tax was the letters on pp. 21, 2 and 3 of Exh. possession of the Crown: it would doubt reversed in the Court of Appeal (1020, 1, for the residue of the term of 63 years. It is that the nationality of Chinese less have beco otherwise had the Crawa K. B. 468), and that decision was, afirm granted by an indenture dated Nov. Sth, 1805, and made between Mr. Win China was a matter of dispute between re-entered under any power of re-entryed in the House of Lords (1991, 2, A., C. the reserved in the lease that has not been. But the principle was the same, and Cowan, on behalf of the Commissioners His Majesty's Government and of Her Majesty's works and public Chinese Government that the bare done, and it therefore seems to me that the Lord Chancellor expressly said that buildings, and E. Z. Simmons and holders in the Bank, though British the defence that petition of right is the mandamus would issue it. a proper case
these commissioners (p. 7), AT Robert L Chambers, of Shamcen, Chinese, might prove to have to revert to proper remedy in this case fails.
Chinese nationality in China and there. It was then suggested that the remedy Canton, and to have their title register fore would not be subject to British juris sought would not be against the defend.
I have next to turn to the question. ed in the books kept for the purpose diction nor capable of getting British ants, inasmuch as they are Consular at H.M. Consulate-General, Canton.
For a mandamus commanding the Protection; and that therefore a company oficers and servants of the Crown. As whether the duty of registering a trans defendants or one of them to effect such with shareholders of that class could not far as the claim to a declaration is eng-fer is a statutory duty or not. Now the in view of a covenant in the lease be the ceraed, it seems to me that the case of King's Regulation says:-"All transfers registration.
holders of lease in Shameen. It is ae- Goute. Cimitian (1921, A C. 105) and of land within the British Concession. at His. Britannia- Counsel in the case were Mr. Eldon cessary to add that in view of previous China Navigation Co. e Maclay (1918, 1 shall be made
and all Potter, K. and Mr. A. C. Halborow interviews and correspondence it was ex-K. B. 33) are exactly it point. In each a Majesty's Consulate-General, for the plaintiffs, and Mr. H. P. Wilkin-pected that this refusal would be made; declaration was asked, in each it was mortgages shall be registered in the same on and Mr. V. Priestwood for the de- but it has never been suggested that granted, and in each the defendant was place. It ja not denied that the Consul- fence.
Vasania had any knowledge of this Now the official whose action rendered the pro-General under that has to keep some The Judge delivered his decision as the Bank of East Asia, Ltd., is a Limitedceedings necessary. In the first ense a book in which exaazfers may be manda follows
Company formed in Hongkong, a British Consular official who had refused to reland in which mortgages may be register- This is an action "of an important and Coloar, under the Company Laws of the gister a man as a British subject; in theed: a statutory obligation, upor him. It unusual character. I only know of one Colony, which very closely approximate second the Shipping Controller who had seems to me impossible to argue that it similar to it, and I have been connected to the Compary Laws of England. It exceeded his statutory powers in ʼn does not follow from that that it is al
Ir the second his duty, imposed by the Statue (the with Courts in extra-territorial countries was incorporated on November 14th,quisition he had made. for over years: I refer, of course, to 1918; Its Memorandum and Articles of case it was expressly argued that the Regulation) to make a transfer and/or Goat Cimitina (199 LA C.). It is Association are in evidence: its head action would not lie against the official register a mortgage in proper cases I SOLE AGENTS. brought by the parties to a deed of con-office and its registered offices are in concerned, but should be brought against hold, therefore, that there is a statutory veyance of a Crown Lease at Shameen Hongkong: it has a branch in Canton the Attorney-General, as representing the duty upon the Consul General to make against the two defendants in their and a branch in Shanghai. It is regis Crown: but that argument was rejected transfers and to register mortgage in oficial capacity as Consul-General and tered as British Company in Shanghai. The head-note to the report of the 3 proper cases, and that this casei pr Vice-Contil at Canton in relation, to one It is not suggested that it is other than a TLR 81 rurs: An action will be perly brought against the presect defen- ed their duties: it asks for a declaration flourishing and well-conducted affair. Itlagainst an officer of State, whether, held dants (see China Navigation Co as to rights and for a mandamus order is admitted that at the time of this con- by the head of the Department or not, Maclay). Is this a proper caso Agaia irg the defendants to perform a certain veyance of the Crown Lease the majority for a declaration that an act done by various points are raised to show it is duty alleged to be statutory. Many points of the Directors were British subjects, him- is not authorized by Statute. As not. It is proposed transfer to a limit- are involved and have been fully argued and that the majority of the capital was far as the claim for a mandamus is cured company controlled by and composed before me and I am much indebted to in the hands of British subjects: though ceraed, this point was taken in the case of persons of the Chinese race, formed Connsel on both sides for the assistance these British subjects were inca of Chinese, of Gout Cimitian above referred to. under the law of a British Colony and given to the Court. The facts are short race they have for convenience been re- That was a case against two Consular having its registered offices and its con- and are not in dispute.
ferred to 13 "Hongkong British Sub officers in Egypt claiming a declaration trol within that Colony expressly under jects." The Company is known in China that the plaintiff was a British subject, the jurisdiction of His Majesty's Courts urder our legislation as a "Hongkong and a mandamus to enforce his registra in China and actually registered sa The island of Shameen in the Consular Chiha Company," and such are expressly tion as such; the declaration was made British Company in His Majesty's Con- District of Canton is a British Conces included in the terms British Com but no decision as to a mandamus was sulate-Gereral in Shanghai under the Decessary. In the Order in Council, 1913. Now the original sion: it is held by the British Govern- ponies": see Order in Council, 1915, giver: it was 'not
absence of any consent by the Crown to lease of 1898 was freen the Crown to Sim- mert on a lease in perpetuity from the Art. 2
abide by my decision on the matter mons and Chambers, their executors, al- Chinese Government made in 1861. It is for the accommodation of the British
declaration, it becomes necessary for me ministrators and assigns, with this limi- Community"; see also the Treaties of The plaintifs claim that this transfer to decide this point. It seems to have tation on the right of assignment; wilk. 1842 nad 1843. It is managed by a Muni- must be made under the Regulations, pro- been hinted that because Consular Officers not assign unto any native of cipal Council, composed of qualified per.vided the transferee, les, the Back, does have many and varied duties a writ of, China or allow any native of China to sons elected by the ratepayers at meetings 'not come within the classes prohibited mandamus could not lie against them iu erect or occupy any house or building presided over by the Consul-Gererat (see either in the Crown Lease or in the à proper case in respect of those duties; upon the said land nor to any subject or Shameen Land Regulations, 1909. King's King's Regulations. To this claim many but I can ace no foundation for any, such citizen af Foreign State unless such Regulations No. 2 of 1908, which super- defences are raised and the first one re suggestion. I know, and I have beer for subject or citizer shall undertake in
"*" to obey " 'Regulations. seded earlier ones of 1871 revised in 1899, lates to the whole nation, and if well many years in extraterritorial countries, writing. under which be it noted transfers of land founded will dispose of it. It is that that Corsuls perforat many and various (This latter part is an addition to the had to be made in the Consulate General the wrong procedure has been adopted: duties; some statutory and some not restrictive covenant as it was in the 1861 at Carton within one month under a that to such netion as this will lies at These duties and functions are to be Crown Lange).
CONSULAR JURISDICTION. penalty not exceeding $100) The land all, for the real remedy, if any, is by found. described in such works as Hals in the Concession has been leased by the petition of right, inasmuch as the real bury, vol. 6 and Hall's Foreign jurisdi
Thus in It is clear that whatever may be the British Government, now represented by claim in the action is to make the Bank Lion of the British Crown.
Commissioners of His Majesty's the holder of a Crown Lense and that no Chian Consuls are judicial officers and status of this Limited Company, it is Works and Public Buildings, to lensees case has been cited where the title to land this Court has considerable powers over not the subject or, citizen of a Foreign for, terms of years; these are known as has been dealt with by such an aetion them as auch apart from the question of State. Under the least therefore the only Crown Leases, and are undoubtedly vain as the present. On the latter part of formal appeals (see Order in Council, limitatior. that concerns us in the ans able. In Exhibit A... plan of the Cou- this contention I would like to mention 1904, Art 25). Then the Consul-General against assignment to a native of cession has been placed before me, show, the case of The Queen. The Registrar in Shanghai is a Registrar of Shipping, China." Under the King's Regulations ing the various-lats and the nationality of Deeds for Middlesex (21 QB.D. 885) and as such has not only taken proceed there is the restriction about transfers of the holders. It is to be noted that where mandamus was issued to the Regis ings in this Court, but has had orders to a subject or citizen of a Foreign Power others besides British, subjects are the tear to register a certain document which made on him by this Court not to make and a further limitation, added in 1908, holders of these Crown Leases, including undoubtedly affected the title to land; entries in bic Register he also has gave the Consul-General discretion to ret even the Chinese Martime Customs and and more recently still, that of A. G. for Land Register, and has constantly sub-fuse a transfer to the subject or citizen the Sali Gabelle, two Chinese Govern British Columbia r. A. G. for Carada mitted without protest to ordern not to of any Power that, had no Oficial Re- presentative in Canton; that canrot ment organizations. The lot in dispute (1906. A. C. 552), where the claim was for make entries in his Land Register.
apply to this case. I see no reason to in this case in marked on the plan at a declaration and an injunction in order...
change my View expressed at the hearing Lot No. 57 B. As I have said, these to determine the title to certain lands in Crown leases are valuable and provisions Canada.
Each Conrul for his district keeps a that the object aimed at by Section 2 of are made for the transfer of them and have been suggested anywhere that the Register at British subjects, and as the King's Begulations was to preserve for the registration of mortgages of them procedure was Torg because the subject taken in the case of Gout . Cimitiai, jurisdiction over the transferers of land These transfers are to be made and mor matter of the claim was land. As to the it would seem that some power must exist I cannot see any other reason for the tages, ars to be registered in a Register petition of right, I would make this to compel registration of a British sub second and third paragraphs of that See tion. Now there is full jurisdiction in kept for the purpose at the Consulate observation. I know not if petition of ject in a proper case. Ja Shanghai again His Majesty's Courts in Chian oxER General (King's Regulations, Section right can be filed here: if not, the pre- the Consul General is a Registrar of and it is not disputed that there is there sent plaintiffs would be relegated for Joint Stock Companier with express Hongkong China Companies and ang fore a statutory duty to keep such a their remedy te London, ard it might powers of taking proceedings: surely such other Company incorporated in the Register imposed upon the official in even be that such a petition could rot powers as exist in the Courts in England United Kingdom or any British posses charge: Le, the Consul General. The be heard here: it is not certain that the over the Registrars of Joint-Stock Com- sion, even after protection has been with leases are short, and the one in question fist of the Crown could be made in the panies must exist here: and in the case drawn (Order in Council, 1913, Art. 4) is dated November 8th, 1898, and made form that the petition be tried in H.B.M. of Regina. Registrar of Joint Stock and this has been constantly exercised between William Corsa, representing the Supreme Court for China; nor am I at Companies, 21, QB:D, 137, Wills J. by the Courts I are therefore nothing Commissioners of Works and Public all clear that the Lord Chancellor could pressly held, that mardamus would lie in the Regulations which authorizes the Buildings, and Erekins Z. Simmons and direct it to be beard here under the such an offcial in a proper case. The Consul General to refuse to make a Robert E. Chambers, who were American Polition of Hight Act, 1880, when the law is that where a duty is imposed by transfer of land to a Limited Com
when borstituted as the citizens The land was leased to the origin and constitution of this Court is statute upon a public official then the pay, even lessees, their executors, administrators taken into consideration. The matter is appropriate remedy to enforce that duly plaintiff Bark is constituted. It is and assigns. A discussed in Robertson's Civil Proceed is by a writ of mandamus addressed to, however, argued that such a Com The subsequent history of this lot, sings by and against the Crown, P. 380 that official; and that it is no defence to pany Comes within meaning of the taken from the admitted entries in the Further it is possible that the Courts in any that what he did was by order of his words a native of Chica" in the coven Register before me, is as follows: England would not take jurisdiction in oficial superiors. And I can see no ant in the lease. It is said that these Chambers transferred his share in Lot soch a case. Whatever may be the in reason why, in that state of the law, it words raust have some meaning zot mere 57 B to Simmons in July, 1011: Cham cidence of load tenure in a British Con- should not apply to the several statutory ly confined to a natural person and, I bera as executor of Simmons transferred cession in China, it is clear that the land duties of Consular Officers as well as agree, they mast, for instance, include in June, 1914, to Kavaran and Yasanía remains land in a foreign country, and to other public officials. To hold others an artificial person. I am asked to go in July, 1917, Kavarana transferred to there is much authority for the propos-wise would mean that the Executive, as behind the certificate of Incorporation Vasania In no case does the consent of tion that such cannot be the subject of a represented in China by a Consular of this Company and look at its compost the Crown as lessor appear in the Repetition of right Bes Be Holmes 31 officer, could over-ride a Statute in refus. tion: for then I shall find that the share gister In 1923 Yiannin (the second Ch. 58 (land in Canada Renjering to do something which that Statute holders and directors are all persons of plainti), now the registered owner of v. Marquis of Salisbury 1800.2 Ch. 278 commanded him to do, and that the sub Chinese race, and it is known that th this Crown Lease, sold the unexpired (land in India) It may however, beject had no remedy in this: Court. Idro claimed by the Jaw of Chira * term for valuable consideration to the that this lard in the British Corression cannot agree with that view (In passing being Chinese citizers when in Chica Bank of East Asia, Ltd. (the first plain: Shameen is vested in the Crown, for I should say that in British Coude in that under these circumstances no juris tiff, bersinafter called the Bank), under Imperial purposes, aid that such a peti- Chinn, Orders I Council mndoinder diction can be had over them (the direc a conveyance, dated August 4th, 1023. tion could be then heard it is obvious foreign Jurisdiction Acts and King's tors and shareholders), and therefore thin This conveyance repeated the restrictive that such procedure would constitute a Regulations made under those Orders in Limited Company with all its Chirese covenant on the right of alienation con- great hardship upon any suppliant Bat Council have the force of Statutory Associations must come within the words
native of China tained the Crown lease of 1888. In what is the position here and what is a Law).
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