Abhani v Principal Immigration Officer (Civil Appeal No. 68 of 1953) [1954] EACA 111 (1 January 1954)

APPELLATE CIVIL

Before BOURKE, J.

MUKTABEN w/o VANDRAVAN MULJI ABHANI, Appéllant

THE PRINCIPAL IMMIGRATION OFFICER, Respondent.

Civil Appeal No. 68 of 1953

Immigration (Control) Ordinance (Cap. 51), section 6-Prohibition of entry into Colony without entry permit or pass-Immigration (Control) (Exemption) Regulations—Regulation 3 (1) $(e)$ —Application by wife for exemption for husband—Regulation 3 (5)—Whether wife "person aggrieved" and entitled to appeal.

The appellant applied to the Principal Immigration Officer, under regulation 3 (1) (e) of the Immigration (Control) (Exemption) Regulations, that her husband be exempted from the provisions of section 6 of the Immigration (Control) Ordinance (Cap. 51), which prohibits entry into the Colony without an entry permit or pass. The Immigration Officer, apparently regarding the appellant as applying on behalf of her husband, entertained the application but refused it, not being satisfied that the husband was qualified to obtain the exemption. On appeal, it was argued for the Principal Immigration Officer that the appellant was not a person "aggrieved" within the meaning of regulation 3 (5). The appellant maintained that she had a legal right to her husband's *consortium* which she was denied because he was not exempted from the provisions of section 6 of the Ordinance and so fell within the definition of a person aggrieved and entitled to appeal.

*Held* (19-2-54).—(1) A person "aggrieved" under regulation 3 (5) is a person who is disappointed of a benefit which he might have received if some other order had been made or a person who has suffered a legal grievance or a person against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something.

(2) In that sense it was the husband only who was "aggrieved" by the decision to refuse him exemption from requirements under section 6 of the Ordinance.

(3) The loss of the husband's *consortium* was of no avail to found an appeal for the wife, as she was not a person "aggrieved" within the meaning of regulation $3(5)$ .

The appeal was dismissed.

Cases referred to: Rex v. Avenue Provision Stores, (1944) 11 E. A. C. A. 66; Ex parte-<br>Sidebottom, (1880) 14 Ch. D. 465; Best v. Samuel Fox & Co. Ltd., (1952) 2 A. E. R. 394 (H. L.).

Nazareth for appellant.

Gledhill for respondent.

JUDGMENT.—This is an appeal brought by the wife of Vandravan Mulii Abhani as a "person who is aggrieved" by a decision of the Principal Immigration Officer within the meaning of regulation 5, conferring a right of appeal of the Immigration (Control) (Exemption) Regulations (Vol. 5, Laws of Kenya, p. 838).

The appellant applied to the Principal Immigration Officer under regulation 3 (1) (e) of the same Regulations that her husband should be exempted from the provisions of section 6 of the Immigration (Control) Ordinance (Cap. 51), which prohibits entry into the Colony without an entry permit or pass. Regulation 3 (1) $(e)$ reads—

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"3. (1) the following persons shall be exempt from the provisions of section 6 of the Ordinance—

(e) Subject to the provisions of sub-regulation 4 of this regulation, any person, being a British subject or British protected person, who satisfies the Principal Immigration Officer (i) that he is the husband of a permanent resident of the Colony; and (ii) that he was married to such permanent resident before entering the Colony and, if he has previously entered any of the other East African territories, before entering such territory."

The Principal Immigration Officer, apparently regarding the appellant as applying on behalf of her husband, entertained the application and refused it, since he was not satisfied that the man was qualified to obtain exemption. By the memorandum of appeal the appellant is described as "being the person aggrieved by (the) decision of the respondent" and it is prayed, for reasons set forth, that the said decision be set aside and the respondent ordered to issue an exemption certificate for the appellant's husband.

The point has been taken for the respondent that the appeal is bad and misconceived because the appellant is not a person who is aggrieved by the decision of the respondent and so has no right of appeal. The argument for the appellant has been based on the ground that she has a legal right to her husband's con*sortium* and, because he has not been exempted from the provisions of section 6 of the Ordinance, she is denied *consortium* and therefore is a person aggrieved within regultaion (5) and entitled to appeal. I am not convinced by this submission. For the general principles governing resolution of the problem as to who may properly be regarded as a "person aggrieved" or the equivalent "a person who is aggrieved", I do not think I need refer further than to Rex v. Avenue Provision Stores, (1944) 11 E. A. C. A. 66, where a number of authorities are reviewed. In my opinion, the "person who is aggrieved" under regulation (5) is the "man who is disappointed of a benefit which he might have received if some other order had been made"; he "must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something", Ex parte Sidebottom, (1880) 14 Ch. D. 458, 465. In that sense it is the husband only who is aggrieved by the

decision to refuse him exemption from requirement under section 6 of the Ordinance. The loss of her husband's *consortium* is, in my view, of as little avail to the appellant to found an appeal by her under regulation (5) as it was to found an action in Best v. Samuel Fox and Co. Ltd., (1952) 2 A. E. R. 394, although, of course, that was an entirely different matter. I hold that the appellant is not a person who is aggrieved within the meaning of regulation 5 and that no appeal by her lies. The appeal is bad and must be dismissed with costs.