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C. J. R. LE MESURIER v. Hon. Mr. C. P. LA YARD,Attorney-General of Ceylon.
D. C., Colombo, C 9,983.
Action against the Attorney-General as representing the Government ofCeylon—Wrongful act of the Government of Ceylon—Differencebetween “ the Crown ” and “ the Government of Ceylon ”—Prero-gative Law—Roman-Dutch Law—Civil Procedure Code, as. 456,458.
An action against the Attorney-General of Ceylon, as representingthe Government of Ceylon, for alleged wrongful act on its part, 'should be treated as an action brought against the Attorney-Generalas representing the Crown, in accordance with section 466 of theCivil Procedure Code.
Bokser, C.J.—The Royal Proclamation issued in 1799, after theDutch settlement in the Island was ceded to the British Crown,established the Roman-Dutch Law as the Common Law of theceded territory, and thenceforth the relations as well as betweenthe Government and the subject as between subject and subjectmust be governed by that law.
The Attorney-General of Ceylon is the lineal successor of theAdvocate Fisoal of olden time, and just as in those days actionsagainst the Government were brought against the Advocate Fiscal,so they may now be brought against the Attorney-General, not onlyfor breach of contract, but also for tort.
I I ’VHE plaintiff in this case set forth in his plaint that “ on the-L- dates material to this action he was and still is a member ofthe Ceylon Civil Service ; ” that “ the defendant is the Attorney-General of Ceylon and represents the Government of Ceylon; ”that being in the third class of the Ceylon Civil Service he wasentitled to draw the salary and allowances amounting toRs. 10,000 per annum; that he applied to the Treasurer of theColony for the payment of his salary and allowances forthe year ending 8th January, 1897, but has not been paidthe Rs. 10,000 or part due to him ; that in terms of section461 of the Civil Procedure Code he had' given notice of thisaction to the defendant; that while holding office at Matara hehad been forcibly and unlawfully prevented on the 8th January,1896, from performing the functions of his offices ; that he was
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1898, not dismissed in accordance with the Colonial rules and regula-Auguat 16. tions, in terms of which he was appointed; that his dismissal,
made in contravention and defiance of those rules and regulations,
constituted a breach of contract and a wrongful and unlawful acton the part of the Government of Ceylon, for which he wasentitled to damages ; that even if the Crown had the prerogativeto dismiss the plaintiff at pleasure, without reference to theColonial rules and regulations aforesaid, the Crown had notexercised that prerogative ; and that plaintiff had suffered damagesin Rs. 100,000. He prayed (1) for judgment for Rs. 10,000, beingthe amount of his salary and allowances from 9th January, 1896,to 9th January, 1897, and Rs. .10,000 per annum till he was restoredto the office; (2) for an order of court restoring him to the func-tions of his office ; or, in the alternative, for Rs. 100,000, beingdamages sustained by breach of contract and wrongful act, &c.
The defendant pleaded (1) that the defendant did not representthe Government of Ceylon, and that he was not liable to be suedas representing such Government; (2) that no cause of actionwas disclosed against the Government of Ceylon or against thedefendant as representing it; (3) that an action could not. bemaintained against the Government of Ceylon, as such Govern-ment was not a body corporate or a body capable of beingsued.
There were also other pleas raised as matters of law and on themerits, which are not pertinent to the present appeal.
On the trial day, after a settlement of the various issues of thecase, the only point argued was whether there was warrant forsuing the Attorney-General as representing the Government ofCeylon.
The Acting District Judge (Mr. Felix Dias) held as follows :—
“In support of the contention that ‘ fhe Crown ’ and the“‘Government of Ceylon’ are practically the same thing, Mr.“ Morgan has cited several cases reported in 4 S. O. C. 77,6 S. C. C.“ 30, 9 Appeal Cases 571, but it seems to me that these cases have“ no bearing whatever on the real point in issue. They have no“ more than affirmed a principle that in this country an action for“ a breach of contract lies against the Crown sued through its“ Queen’s Advocate or Attorney-General, but that no action for tort“ can be maintained. The latter has been left an open question by“ Chief Justice Bonser in the recent Dehigama case.
“ Assuming for the moment in favour of the plaintiff that these“ cases give him an unquestionable remedy for his grievances“ex contractu and even ex delicto against the Crown, is he now
■ “ suing the Crown ?The terms ‘ Crown ’ ttnd ‘ Government
“ ‘ of Ceylon ’ do not connote the same thingIf any of the
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" gentlemen who are administering Executive Government here“ have done the plaintiff any injury, it seems to me that he ought“ to sue them, but I fail to see how Mr. C. P. Layard, Attomey-“ General of Ceylon, can be made answerable for their acts. Our“ law (section 456 of the Code) only makes the Attorney-General“ the proper party to be sued in actions ‘ against the Crown,’ but, as“ I said before, that is not the same thing as the Government of
“ of CeylonThis action is in consequence wrongly framed,
“ and must be dismissed with costs.”
The plaintiff appealed.
The case came on for argument on 29th July, 1898.
Appellant appeared in person.
Wendt, for defendant, respondent.
16th August, 1898. Bonser, C.J.—
The only question to be decided on this appeal is whether theActing District Judge of Colombo was justified in dismissing theplaintiff’s action on a technical point. The plaintiff was a CivilServant of the Crown, in the employment of the Government ofCeylon, or, to use the words of a local Ordinance, “ an officer of“ the Civil Service of the Ceylon Government ” (see section 47 ofOrdinance No. 7 of 1887). He complains that he has beenwrongfully dismissed, and claims damages for the wrongfuldismissal. He has made the Attorney-General of this Island thedefendant to his action, and it appears on the face of the plaintthat the defendant is sued not in his personal capacity, but “ as“ representing the Government of Ceylon.” The Acting District* Judge, without going into the merits, has dismissed the action onthe single ground that the Attorney-General does not representthe Government of Ceylon. Now, it seems to me something like aquibble to say that the Attorney-General represents the “ Crown,”but does not represent “ the Government of Ceylon.” Her Majesty,acting by her servants and officers, governs this Island. For mostpurposes the two expressions are convertible, and our localstatute book shows numerous instances of their being so treated.
I hold that this action is an action against the Crown, and wasrightly brought against the defendant in accordance with section456 of the Civil Procedure Code. It will be observed thatsection 458 of that Code provides that, when an action is broughtagainst the Crown, the Court, “ in fixing the day for the Attomey-“ General to answer the plaint, shall allow a reasonable time for the“ necessary communication with the Government,” which showsthat the Government is regarded as the real defendant. But there
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1888.is another ground on which the action may be supported. After the
August 1G Dutch settlements in this Island were ceded to the British CrownBonseb C J. rcing of England signified his pleasure by a Royal Proclamationissued in 1799 that the administration of justice was henceforthand during “ His Majesty’s pleasure to be exercised by all Courts“ of Judicature according to the laws and institutions that subsisted“ under the ancient Government of the United Provinces.” ThatProclamation therefore established the Roman-Dutch Law asthe Common Law of the ceded territory, and by that law therelations as well between the Government and the subjects asbetween subject and subject must, in my opinion, be governed ;and such seems to have been the view taken by the Privy Councilin the case of Siman Appu v. The Queen's Advocate (L. R. 9,Appeal Case 585). Now, as I pointed out in Sanford v. Waring(11 N. L. R. 351), the Roman-Dutch Law allowed persons whohad a claim against the Government to sue it as of right (nonpetita venia) through its officer, the Advocate Fiscal; and I mayobserve in passing that it does not appear that any distinction wasmade between actions of tort and other actions. The rule ofEnglish Law that the Crown cannot be sued in tort depends onthe maxim, which appears to be peculiar to that law, rex nonpotest peccare, “ the king can do no wrong.” I am not awareof any authority for the proposition that the Government of theUnited Provinces ever claimed the attribute of impeccability.For some time after the cession the office of Advocate Fiscalcontinued under the English Government. Subsequently, in1834. the title of the officer was changed to King’s Advocate andmore lately to that of Attorney-General, but the change wasmerely in name. The present Attorney-General is the linealsuccessor of the old Advocate Fiscal, and just as in old daysactions against the Government were brought against theAdvocate Fiscal as representing the local “>Fisc ” or Treasury, so'they may now be brought against the Attorney-General. Forthese reasons I am of opinion that the Acting District Judge waswrong in dismissing this action, and it must go back to be tried.The appeal is allowed with costs. I express no opinion as towhether or not the plaintiff has a good came of action. All thatI decide is that the Attorney-General was properly made adefendant to this action.
To assent to the proposition that the Attorney-General ofC,eylon is the proper defendant in actions against the Crown inthis Colony does not touch the question what actions lie
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against the Crown, nor does an assent to the proposition that theAttorney-General of Ceylon is the proper defendant in aotionsagainst the Ceylon Government touoh the question what actionmay be maintained against that Government. It does notfollow that because the proper defendant has been named thatthe plaintiff has set forth a good cause of action and is entitled todecree. He>*e, if the plaintiff is really suing the Crown, I thinkthat the Attorney-General ought to have been sued as representingthe Crown in the old-fashioned way. I understand that theplaintiff now pretends that his action is against the Crown,contending that “ Crown ” and “ Government of Ceylon ” areidentical terms, but in my opinion that is not what he alleged inthe plaint. He there drew a distinction between the “ Crown ”and the “ Government of Ceylon.” My brother Withebs says itis a distinction without a difference. If there be no difference, theAttorney-General ought to have been sued in the old way; but itseems to me that there is a difference between the “ Crown ” andthe “ Government of Ceylon.” The one is greater than the other.There may be actions which will not lie against the Crown, whichare sustainable against the Government. I am content to holdthat in such actions the Attorney-General is the right defendant.
I would give the plaintiff the alternative. If he is suing theCrown, let him do so plainly, and let him be tied down to that;if he is suing the Government of Ceylon as something lesser anddifferent from the Crown, let him do so plainly, and let him betied to that. The caption, in my opinion, should be amended bydeleting the words “ C. P. Layard ” and “ Colombo ” and byadding the words “ the Honourable ” before the Attorney-General.If the plaintiff desire to retain the prayer for a decree against theAttorney-General as representing the Government of Ceylon, Iwill understand that he asks for a remedy for a wrong done to himby the local Government, which the local Government can grant.If he retains the prayer, he may not ask for a remedy for a wrongdone by the Imperial Government.
In my opinion the appellant is entitled to succeed. Theplaintiff has brought an action, as I understand it, against theCeylon Government to recover a sum of money alleged to be dueto him by the Ceylon Government under a contract of service,which has not been duly determined, and to recover damages fora breach of contract in refusing to continue him in service. Hesued the Attorney-General of Ceylon as representing in our local
Courts the Government of Ceylon. Dias, the Acting District21-
August 16.Lawbui, J.
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August 16.Withebs, J.
Judge, has dismissed this action on the ground that the Attorney-General does not represent the Government of Ceylon. He saysthat the Attorney-General represents the Crown, and that this isnot an action against the Crown. But surely the Attorney-General represents the Government of Ceylon, and what is theGovernment of Ceylon but the Crown of Ceylon ? The Crown is,of course, a larger term than the Government of Ceylon, which itincludes. But the Crown in Ceylon means Government ofCeylon. Many local Ordinances were cited to us which seemedto use the words “ Crown ” and “ Government of Ceylon ” as almostconvertible terms. If- there is a distinction, it is one without adifference.
Mr. Wendt, for the Attorney-General, said he would not havedemurred to the Attorney-General being made the defendant, ifthe plaintiff had put in his plaint the word “ Crown ” where he hasthe words ‘ ‘ Ceylon Government. ” I repeat that I cannot appreciatethis distinction.
C.J.R. LE MESURIER v. Hon. C.P. LAYARD , Attoney – General of Ceylon