de Almeida v. Aloysius Per era.
1941Present: Hearne, Keuneman and Wij eyewardene JJ,
DE ALMEIDA v. ALOYSIUS PERERA.
623—M. C. Panadure, 7,086.
Motor lorry—Charge of possession without a licence—Sale of car to be dis-mantled—Meaning of word "possession”—Motor Car Ordinance,No. 45 of 1938, s. 29 (2).
Where a person is charged, as registered owner, with having possesseda lorry for which a licence was not in force, it is open to him'undersection 29 (2) of the Motor Car Ordinance to prove that he did notpossess the car during the material period.
The word “ possess ” in section 29 (2) means de facto possession, asunderstood in the Common Law.
HE accused was convicted under section 29(1) of the Motor Car
JL Ordinance, No. 45 of 1938, of having possessed in the year 1940 amotor lorry for which a licence was not in force at the said date.
The accused led evidence to prove that he was not in possession ofthe lorry in 1940, and that he had sold it in 1939 to be broken up forscrap iron.
The Magistrate held that in view of section 29 (2) of the Motor CarOrdinance the accused had to show that notice of non-user had been givenby him or that registration had been cancelled.
E. S. Fernando, for accused, appellant.—The appellant was convictedunder section 29 (1) of the Motor Car Ordinance, No. 45 of 1938-. Thepoint at issue is the interpretation of section 29 (2). Appellant admitsthat on the date in question he was the registered owner of the car butcontends that he did not possess it. The car was dismantled in 1939and had ceased to be a vehicle. Section 29 (2) is peculiar to the newMotor Car Ordinance, and there was no provision corresponding to itpreviously. The case of Colombo Municipal Council v. Perera will not,therefore, be in any way applicable.
The offence is created by section 29 (1). The sub-section (2) does notenlarge the scope of section 29 (1). It is possession in the ordinary sensewhich is contemplated. See, for example, section 18. The words insection 29 (2) should be given their ordinary and natural meaning. Thepresumption created by section 29 (2) is a rebuttable presumption.
H. V. Perera, K.C. (with him C. S. Barr Kumarakulasingham andS. P. C. Fernando), for complainant, respondent.—According to the schemeof the Ordinance the registered owner is to be regarded as the person whois in legal possession. The word “ deemed ” in section 29 (2) creates afiction. The possession which is contemplated by the Ordinance afterregistration has taken place is different from physical possession; it ispossession associated with ownership. See sections 12 (1) and 22. Whena person’s name is on the register he cannot be heard to say that he hastransferred it to another except only under section 18 (2). When onegets his name registered one acquires a fictional ownership and also a
1 (1939) ilO -V. L. R. 467 ; 14 C. L. TV. 146.
. N. B 17628 (5/52?
194KEUNEMAN J.—de Almeida v. Aloysius Perera.
fictional possession. “ The contrary ” in section 29 (2) has to be estab-lished in accordance with the law. The notion of “ statutory possession ”expressed in Colombo Municipal Council v. Perera (supra) is applicable,and section 29 (2) does not make any difference as regards the meaningto be attached to “ possession
Cur. adv. vult.
February 13, 1941. Keuneman J.—
This appeal comes before the Divisional Court on a reference by Nihill J.
The accused was convicted under section 29 (1) of the Motor CarOrdinance, No. 45 of 1938, of having possessed in the year 1940 motorlorry No. E 512 for which a licence was not in force at the said date.
The prosecution led evidence to prove that the accused was thdregistered owner of the motor lorry in question, and it is clear that nolicence was issued in respect of the lorry for the year 1940. The prose-cution led no evidence as to the actual possession of the lorry, but reliedon the provisions of section 29 (2).
The accused led evidence to show that he was not in possession of thelorry in 1940. He stated that he gave up the use of the lorry in June, 1939,and sent a notice of non-user to the licensing authority for the last half ofthat year. This was conceded by the prosecution, but no notice ofnon-user was sent in respect of the year 1940.
The evidence for the accused, however, showed that the accused soldthis lorry together with two other lorries about September, 1939, andcertainly before 1940. The lorries were removed to Colombo by thepurchaser and broken up for scrap iron. The accused, the purchaserMurugesu, and another witness Suppiah gave evidence, and no attemptwas. made by the prosecution to rebut this.
Application for a cancellation of the registration was not made by theaccused till about June, 1940, and the registration was cancelled in Julyof that year.
The Magistrate held that in virtue of section 29 (2) the “ contrary ”could only be proved according to tlie provisions of the Ordinance,namely, that notice of non-user had been given, or that the registrationhad been cancelled.
Section 29 enacts as follows:—^
“ (1) No person shall possess or use a motor car for which a licence isnot in.force.
“ (2) The person who for the time being is, or is deemed under Part HI.to be, the registered owner of a motor car shall, for the purposes ofsub-section (1), be deemed, unless the contrary is proved, to possessthat car. ”
The Magistrate was not correct in thinking that the word- “ contrary ”in sub-section (2) (supra) has been interpreted by the Supreme Court.The present case appears to be the first v/here this word comes up forinterpretation, and no case previously decided by the Supreme Court hasbeen cited to us. The Magistrate, no doubt, had in mind the dictum ofSoertsz J. in Colombo Municipal Council v. Perera (supra) to which I shallpresently refer. But it has to be remembered that this dictum did notrelate to section 29 (2) of the present Ordinan ce, but to the provisions of
KEUNEMAN J.—de Almeida v. Aloysius Per era.
the earlier Motor Car Ordinance, No. 20 of 1927, and its amendingOrdinances which were embodied as Cap. 156 in the Legislative Enact-ments. There was no section corresponding to section 29 (2) in thatOrdinance.
Further, the dictum of Soertsz J. in that case was an obiter, and did notform the basis of the decision. What was decided was that there mustbe proof by the prosecution that the car was on a highway at the materialtime, and this appears to be the point with which the other two Judgesconcurred. The accused was acquitted because there was no proof onthis point.
The dictum in question is as follows: —
“ If however there was evidence to show that at any time during1938 the car was on a highway, then, in my opinion, it would not haveavailed the accused to prove that, although he appeared as the regis-tered owner, he was not the true owner because he sold the car inOctober, 1937. I cannot agree with the view taken by Keuneman J.in Hodson v. Cassim that it is open to a registered owner to rebut1 the presumption of possession ’ ‘ in any way he wishes It is not,I submit, correct to speak of a * presumption of possession ’ arisingfrom registered ownership. It is much more than a presumption thatarises. A statutory possession comes into being and overrides de factopossession and possession as it is understood in Common Law. Thispossession imputed to the registered owner by the Ordinance can, inthe view I take, be displaced only in the manner provided by theOrdinance. ”
I do not think it is necessary to consider whether this dictum of Soertsz J.was correct with reference to the Ordinance with which he dealt. Thereasoning on this point is to be found in the judgment of Drieberg J. inGovemihent Agent, Central Province v. Beeman In this case we have tointerpret section 29 (2) which is a new section.
In substance, Mr. H. V. Perera for the respondent argued that once aperson was a registered owner of a car or lorry he shall be deemed topossess the car or lorry. He argued that sub-section (2) of section 29created much more than a presumption. There was a fictional posses-sion created by the Ordinance, which could only be displaced by themanner provided in the Ordinance. This argument ran on very muchthe same lines as the dictum of Soertsz J. (supra) which speaks of a“ statutory possession ”. Mr. Perera emphasized the fact that under-section 22 any person who for the time being is the registered owner shallfor the purposes of any proceedings under the Ordinance be deemed to bethe owner. He also referred to section 12 (1) which provides that noperson shall possess or use a motor car unless that car is registered, andthe person for the time being entitled to possession of the car is registeredas owner thereof.«>
But I think Mr. Perera failed to bear in mind the distinction between“ownership” and “possession”. It is true that it is the person who is“ entitled to possess ” the car who can be registered as owner; but a titleto possession is to be distinguished from possession. Further, it may be*
1 to .v. L. R. 83.
* 33 N. L. R. 343. .
KEUNEMAN J.—de Almeida v. Albysius Perera.
that once a person is registered as owner, he cannot seek to prove that heis not the owner for the purposes of the Ordinance, unless his name hasbeen removed from the register. But I think these considerations haveno bearing on the question of the offence with which the accused is chargednamely, possessing a motor car ior which a licence was not in force,except to this extent that, if he is the registered owner, he shall be deemed,unless the contrary is proved, to possess the car.
I do not propose to discuss the question whether section 29 (2) onlycreates a presumption or whether it creates a statutory possession, for inany event this is only created “ unless the contrary is proved Thecontrary of what? I think this can only mean the contrary of the factthat the registered owner possesses the car. In what sense is the word“ possess ” used in the Ordinance ? Mr. H. V. Perera argues that it is aspecial “possession” created by the Ordinance, which can only bedisplaced in the manner provided for in the Ordinance. But I do notthink this can be sustained. In section 29 (1) the word “possess” can beinterpreted in the Common Law sense. For example, if we can contem-plate the case of a person possessing a car in respect of which there is noregistered owner, then the prosecution will have to prove that there hasbeen possession as understood by the Common Law. If there is aregistered owner, can he be deemed to have a different kind of possession?
Again, if we look at section 18, we see that there may be a “ change ofpossession ” under various circumstances. Take section 18 (2) whichdeals with a “ change of possession of a motor car upon a voluntarytransfer by the registered owner ”. In this case, (a) the registered owner' shall within fourteen days after such change of possession forward to theCommissioner a statement in Form 5 in the Second Schedule togetherwith the licence and deliver to the new owner the certificate of registration,and (b) the motor car shall not be used for7more than fourteen days aftersuch change of possession unless the new owner is registered as owner andthe licence delivered to him by the Commissioner.
I think in this case what is contemplated is a de facto change of posses-i sion. After that change has taken place, certain things are required tobe done. In the proviso to this sub-section, a change of possessionconsequent on a hiring of the car is contemplated. If the hiring does notexceed three months, or if the registered owner continues to employ andpay the driver of the car, the sub-section referred to above does not apply.This again, I think, must refer to a de facto change of possession.
Section 18 (3) refers also to a “ change of possession otherwise than onthe death of the registered owner or on a voluntary transfer made byhim ”. Here again, certain acts have to be done by the registered ownerwithin a specified time after the change of possession. In neither sub-section are the further acts required to be done regarded as the terminationof possession. In fact, the change of possession took place before that,and it was because there had been a change of possession that the actshad to be done.
I do not think notice of non-user under section 30 (1) mentioned by theMagistrate has any bearing on the point now discussed. It is clear that,in section 29 (4), this notice may be given while the possession continuesin the registered owner. Notice of non-user cannot be regarded as a
Dankoluwa Estates Co., Ltd., v. The Tea Controller.
termination of “ possession ” either de facto or statutory. Again, cancel-lation of registration under section 24 will, I think, only have the effectof putting an end to the “ ownership ” under, the Ordinance. Section 24appears to be the natural corollary of section 22. No other section hasbeen cited to us, or discovered by us, which can indicate that possessionunder the Ordinance must be terminated in a particular manner.
After considering all these sections, I am of opinion that the word" possess ” in section 29 (2) indicates de facto possession as understood inthe Common Law, and that it is open to the registered owner to provethat he did not possess the car in that sense during the material period.In this case, I am of opinion that the evidence for the accused, if accepted,establishes the fact that the accused did not have possession of the lorryin question for the whole of the year 1940. The accused’s own evidencehas been amply corroborated, and no attempt was made to rebut thatevidence. I think in the circumstances we must accept the evidence ascorrect.
I set aside the conviction and acquit the accused.
Hearne J.—I agree.
WiJEYEwARDENE J.—I agree.
DE ALMEIDA v. ALONYSIUS PERERA