ABEYESEKERE v. HARMANIS APPU et al

104-NLR-NLR-V-14-ABEYESEKERE-v.-HARMANIS-APPU-et-al.pdf


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Present; Wood Renton J. and Grenier J.ABEYESEKERE v. HARMANIS APPU et al
July 12,1911
C R. Balapitiya, 7,168.
Restitutio in integrum—Procedure indicated.
The remedy of restitutio in integrum is one which has taken deeproot in the practice and procedure of our Courts, and it is too lateto hold that the remedy ought no longer to be recognized.
(1) Applications for restitutio in integrum should be made in openCourt by petition supported by affidavit and by all the materialsnecessary for the purpose of making out a primd fade case forrelief, such application being made to a Bench of one Judge, or oftwo Judges, according as the tribunal of first instance is the Courtof Requests or the District Court, and not by petition addressed tothe Judges in Chambers ; (2) the application should be in the firstinstance ex parte; (3) if the Court is of opinion that a primd faciecase for relief has been made out, notice must be given to the otherside ; (4) if after hearing both sides the Supreme Court is satisfiedthat restitution should be granted, the case should be remittedfor further inquiry and adjudication in the court of first instance ;(5) such adjudication, subject to an appeal where a right of appeal$xists, is final.
IJ1HE facts are set out in the judgment of Wood Renton J,
Batuwantudawe, for applicant
A. St. V. Jayewardene, for respondent
Cur. adv. vult.
July 12,1911. Wood Rbnton J.—
This is an application for restitutio in integrum by the plaintiffin C. R. Balapitiya, 7,168. Under a writ issued in that actionat the instance of the present applicant against the defendants, a2-9thS‘part of a land called Maradanawatta, situated at Godagama,was seized in execution. The applicant and five others claimedthe entirety of the land. The claim was duly reported to theCourt, and at the inquiry the applicant was represented by aproctor, who alleges that he consented to the applicants? claim for an8-9ths part of the land being allowed, intending that the remainingl-9th should be left to be fought out in an action under section247. The Court made the following order : “ Parties agree thatthe claimants’ claim to l-9th be upheld, and also the other 7*9ths,
Vot. XIV «
N
28J. N, A 98S4S (11/49)
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j-uly 12,1911 except Carolis’s 1 -9th, which, having been previously sold to one ofthe creditors,-be declared saleable under the seizure.” The appii-Renxon J. cant instituted an action under section 247 with regard to the l-9th.Abeyesehere Part land above named. It is stated in the petition in supportv.Harmania of the application for revision that the proctor “ had no occasionAppu to look into the record in the claim proceedings ” till the answer inthe action under section 247 was filed, “ when he found that bya misapprehension the learned Commissioner had made a wrongentry.” The applicant’s proctor thereupon explained to the Courtwhat he had intended to agree to at the claim inquiry. The learnedCommissioner accepted the explanation, heard the case on itsmerits, and gave judgment in the applicant’s favour. The SupremeCourt in appeal set that judgment aside, holding that the applicant’sclaim should have been dismissed in view of the order in the claiminquiry which still stood on the record, but reserved the right of theapplicant, if he was so advised, to institute proceedings for restitutioin integrum.
The case was argued before my brother Grenier and myself onJune 26 last, and we then dismissed the application with costs,stating, however, that the grounds of our judgment would be givenat a later date. I am clearly of opinion on the merits that the’ casewas not one in which restitutio in integrum could properly have beengranted. It is by no means clear that, whatever the proctor mayhave intended to agree to, any mistake was made by the Commis-sioner in recording what he actually agreed to, or that theCommissioner in accepting his explanation accepted anything morethan his statement as to what his intention had been. Moreover, itwas the duty of the applicant’s proctor to see that an entry had beenmade in the claim proceedings carrying out the real terms of hisagreement on the applicant’s behalf. The excuse that he “ had nooccasion ” to look at the record till the time came for filing answerto the action under section 247 is not one that I am prepared toaccept.
Under all the circumstances, no ground for restitutio in integrumhas, in my opinion, been made out We postponed judgment, how-ever, for the purpose of considering certain important points of lawand procedure in regard to such applications as these. The mattersto which I am about to refer were set down for argument before theFull Bench recently in C. R. Nuwara Eliya, 4,703. When the casewas called for argument, however, there was no appearance insupport of the application for restitutio in integrum, and it wasaccordingly dismissed with costs. The questions submitted to theSupreme Court in C. R. Nuwara Eliya, 4,703, were these :— 1
(1) Is it too late to raise the question as to whether or notrestitutio in integrum can properly be held to form partof the law of the Colony ?
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If that question should be answered in the negative, can
the Roman-Dutch remedy of restitutio in integrum beregarded as part of the law of Ceylon, in view of (a) theabsence from the Courts Ordinance and the Code ofCivil Procedure of any provision enabling the SupremeCourt to grant relief by way of restitutio in integrum :(b) the powers of revision enjoyed by the SupremeCourt; and further, (c) decisions to the effect that anaction to set aside a judgment on the ground of fraud ormistake can be brought in the Court which pronouncedthat judgment ?
If the remedy of restitutio in integrum still survives in
Ceylon, what ought the practice to be in regard to (a)the bringing of applications for such relief before theCourt (/.*. whether ex parte or upon notice), and (6) thenature of the reference by the Supreme Court to thecourt of first instance, that is to say, ought the SupremeCourt to leave the decision, on the matters referred, tothe court of first instance, or to require that any decisionat which that Court may arrive should be subject to itsown sanction ?
Before considering these questions, it may be advisable to dealshortly with the history of the procedure by way of restitutio inintegrum. Under the civil law, where a person suffered a legalprejudice by the operation of law, the praetor having personallyinquired into the matter (<causae cognitio) in the exercise of hisimperium, which enabled him to consider all the actual facts of thecase, might issue a decree re-establishing the original legal posi-tion, that is to say; replacing the person injured in his previouscondition. In Roman law restitutio in integrum was the removalof a disadvantage in law which had legally occurred. It was aprotection against justice (as distinguished from an action againstinjustice), which was rendered necessary on account of the practicalimpossibility of taking legally, in advance, all the circumstancesinto consideration that in reality may occur. (Sohm’s Institutesof Roman Law, s, 56, 111, Burge, 2nd ed., voL 4, chap, 1.) The resti-tution thus granted by the praetor in jure was then followed bythe judicium rescissorium, that is, the trial and decision of the actionwhich had been thus restored. The judicium rescindens itself, Le.,the proceeding which resulted in the restitution, was invariablyconducted and concluded by the praetor himself. In Roman lawrestitutio in integrum was divided into two classes, (i) restitutiominorum (under 25 years of age) and (ii) restitutio majorum (25years and upwards), in cases of absentia, metus, dolus, and error.The remedy was received into the Roman-Dutch law in a widerform. Restitutio was not only granted to minors. It might begranted to any one, either in toto, on the grounds of metus, dolus,
July 12,1911
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Abeyesekerev. HarmaniaAppw
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WoodRenton J.
Abeyesekere
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absentia, and minority, or partially, on the ground that the damagesuffered exceeded the value of what was obtained through thetransaction by half (ob laesionem enormem). Van der Linden givesas additional grounds for partial restitution absence and error, andfurther, all such equitable reasons as rendered it unjust that theact should remain in existence.
The substance of the following sketch of restitutio in integrumunder the Roman-Dutch law is taken from chapter I., Guardianshipof Minors, of vol. IV. of the 2nd edition of Burge
The object of this action was to undo what legally had been done andhad come into existence, and to place the parties (either altogether, orso far aa they had suffered loss) in the same condition as they were in atthe time when the contract was entered into.
The granting of such a relief, and the cancelling of rights which hadonce been acquired and had been created, could not, of course, beclaimed as a matter of right. It was an act of grace, the exercise ofa prerogative by the Sovereign in his Great Council at Mechlin, whilethat Council was in existence.
In 1562, by Octroy of Philip II, the kinds of relief which might begranted were classified into two, viz., relief granted against materialrights which had once been established (material relief), and relief byundoing legal proceedings which had once become res judicata andagainst which no further appeal lay (formal or processual relief). Itwas at the same time provided that such formal relief should be grantedby the Hof (or Court of Appeal) van Holland,
After the eighty years’ war between Spain and the Northern Provincesof the Netherlands had broken out, and the Council of Mechlin hadceased to exercise jurisdiction in those Provinces, the States of Holland,by resolution of May 8, 1573, granted the right to rescind contractsto the same Hof van Holland, and after the creation of a SupremeCourt (Hooge Raad, 1582) to that high tribunal. In 1795, after theabolition of the Supreme Court, it came back to the Hof van Holland,
Though the Supreme Court granted letters of relief, it did notinvestigate cases. These were sent by a commiUimus to the ordinaryjudge of first instance, who investigated them and granted or rejectedthe petition, and his decision then received the sanction of theSupreme Court.
The restitution was not granted unless the loss or damage suffered(a) was considerable; (6) had occurred through negligence, and not byaccident(c) had been fully proved; while (d) no other remedy wasopen to obtain redress, e.g., appeal, review, &c.; and (e) the person whohad suffered loss was not already protected by mere operation of law*
The person entitled to relief was reinstated in all those rights of whichhe had once been deprived on account of his having entered into thecontract. He had to give back what he had acquired by purchase orsale, and the profits which had meanwhile accrued. On the other hand,the person against whom relief was granted received back what hadbeen given back by him in pursuance of the agreement, and all pre-existing rights of which he had divested himself revived in his favour.He had to be paid back all expenses incurred by him previously to hisreturning what he had acquired,
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An order for restitution was construed strictly.Jtdy 12,1911
Pending judgment in a claim for restitution, the position of affairs
between the parties had to remain unaltered._ ^OOD _
…Benton J.
If restitution was sought against a judgment which had become res
judicata, such judgment ought not to be executed, unless adequate Abeyesekeresecurity were given for restoration by the person who had obtained the v' s^rnianiejudgment against the person who claimed restitution.Appu
Even then no execution could take place (a) in case irreparabledamage would be done by such execution; (6) if the person who claimedrelief was able at once to show the manifest illegality of the transactionon which the right to execution was based; or (c) if the claim for reliefhad been instituted before the execution of the judgment which hadpreceded it had commenced.
In Ceylon, as far back as the time of Sir Charles Marshall, resti-tutio in integrum was recognized as a mode of relief against fraud,and also as a means of setting aside the process of parate executionby which in certain specified cases, for example, the recovery byFiscals of the purchase money of sales in execution, or due toauctioneers, the previous stages of an ordinary suit at law weredispensed with, and the creditor was at once entitled to seize inexecution the person or property of his debtor in satisfaction ofhis debt1 There was considerable controversy at that time as towhether the power of granting restitution was vested in the SupremeCourt alone or in the District Court I may refer now to a few ofthe local decisions in regard to restitutio in integrum. In D. C.
Matale, 1,174- it is indicated that restitutio in integrum is aremedy to be sought through “ the Sovereign in Council,” which, Isuppose, means the Privy Council in England. In Obeysekere v.
Gunasekera? it was held in appeal by Clarence J. that the DistrictCourt had jursidiction to set aside a judgment obtained by fraud,but that the application ought to be made in a separate suit. Inex parte Gordon* Phear CJ. and Stewart and Dias JJ. held thaterror, res noviter veniens, or fraud can 'be raised in revision. InPerera v. Ekanayake? Withers J. and Browne J. held that a judg-ment obtained by fraud or passed under mistake might be set asideeither by a regular action or possibly by way of summary procedureas regulated by the Civil Procedure Code, and that this cannotbe done by mere motion supported by affidavits with notice tothe decree-holder. In Stork v. Orchard* Mr. Justice Lawrie, thenActing Chief Justice, held that the remedy of restitutio in integrumwas available in all cases where a contract can be shown to haveproceeded on total 'misconception.' In Gunaraine v. Dingiri Banda? .
Sir John Bonser C.J.; with whom Withers. J. concurred, held thatthe proper remedy, where the consent of a party to a case instituted
11Marshall's Judgments, pp.173 and3 {1884) 6 S* <7. C* 102.
197.4 {1879) 2 S. C. C. 108.
2 {1836) Morgan, Beling, Conderlaag,5 {1897) 3 N. L. R* 21*and Prina, 82*6 2 S* C. R* 2.7 (1898 As 1899) 4 N. L. R. 249.( 358 )
July n, mi
WoodRenton J.
Abeyeaekerev. HarmaniaAppu
in the District Court was obtained by fraud and so judgmentobtained, was to apply to the Supreme Court for an order on theCourt below to review the impugned judgment and to confirm orrescind it. At the close of his judgment, Sir John Bonser said :
“ Any such application will, of course, be an ex parte one.” Indescribing the Roman-Dutch procedure, he made use of the follow-ing language : “ If the applicant satisfied that Court ’’ (/>., thehighest Court of Appeal in Holland) “ that he had a prima jade case,the case was remitted to the Judge who pronounced the decree, andif he found that the decree had been fraudulently obtained, hewould restore the parties to their original position.” There aresome Roman-Dutch authorities which show that the decision of theJudge of the court of first instance required the sanction of theSupreme Court. In Sinnatamby v. Nallatamby,1 Wendt J., Middle-ton J., and Grenier J. held that, where a consent decree had beenentered by mistake, relief may not be sought in a separate action,but must be obtained in the same case by application, on due mate-rials, to the Supreme Court for an order on the Judge of the lowerCourt to investigate the matter. In Silindu v. Akura,- Wendt J.and Middleton J. held that on proper materials laid before theSupreme Court by a party who desires to be relieved of a decreewhich had been improperly obtained against him, it will upon anex parte application by such party direct the Court which passedthe decree to hear all necessary parties and determine whether thepetitioner is entitled to be relieved from the said decree and berestored to his rights as existing prior to the decree. In that caseWendt J. stated the form of the ex parte order which ought to bemade in such cases. "In some recent cases, none of which have yetbeen reported, we have declined to act ex parte in applications ofthis kind. In the case of Dodwell Carlill & Co., v. Raw ter,z towhich Mr. Tambyah as amicus curiae has kindly called my attentionin the course of this judgment, it was held that, when any otherremedy is open to a party, the extraordinary one of restitutio inintegrum cannot be granted. My attention has also been called byMr. Tambyah to the case of Buyzer v. Eckert,l decided by my brotherMiddleton and myself, where we held that where fraud is averredagainst a judgment, such judgment may be set aside by restitutioin integrum, or by a suit in the Court which passed the originaldecree. I may myself have acted on the law as laid down by SirJohn Bonser C.J. and Withers J. in Gunaratne v. Dingiri Banda andby the Full Court in Sinnatamby. v. 'Nallatamby', afidin other caseswhich have not been reported: It might well have been found todlate ever* for the Full Court, and it is certainly too late for a Benchof two Judges, in the state of the law as I have outlined it above,to hold that the remedy of restitutio in integrum ought no longer
' (1903) 7 N. L. S. 139.» (1899) 1 Tam. is.
(1904) 7 N. L. J?. 296.4 (1910) 13 X. L. 11. 371 ; 2 Cur. L. It 200.
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to be recognized. It seems desirable, however, to regulate the July 12,1911existing practice in some particulars. It may perhaps be doubted woodwhether Sir John Bonser C.J., when he stated in Gunaratne v. Renton J.Dingiri Banda that applications for restitutio in integrum should be Abeyesekeremade ex parte, meant anything more than that they should be »• Harmanismade ex parte in the first instance. That is clearly right. But there APPUis no Roman-Dutch authority that I can find, and it is obviouslyinequitable, that they should be ex parte throughout. No manought to be deprived of a judgment in his favour, and exposed tothe hazard of further legal proceedings, behind his back.
Restitutio in integrum in South Africa seems to come under theordinary jurisdiction of the Court, and to be granted where a case forit is made out in an action for restitution (Maasdorp, vol. 3, p. 57),which may be brought where relief is claimed against a judgmentbefore the tribunal that pronounced that judgment (Peale v. NationalBank of South Africa, Ltd.1).
It appears to me (1) that applications for restitutio in integrumshould be made in open Court by petition supported by affidavitand by all the materials necessary for the purpose of making out aprimd facie case for relief, such application being made to a Benchof one Judge, or of two Judges, according as the tribunal of firstinstance is the Court of Requests or the District Court, and not bypetition addressed to the Judges in Chambers ; (2) that this appli-cation should be in the first instance ex parte ; (3) that, if the Courtis of opinion that a primd facie case for relief has been made out,notice must be given to the other side ; (4) that if, after hearingboth sides, the Supreme Court is satisfied that restitution should begranted, the case should be remind for further inquiry and adjudi-cation in the court of first instance ; and that (5) such adjudication,subject to an appeal where a right of appeal exists, should be final
Grenier J.—
I am of the same opinion as regards the recognition of the remedyof restitutio in integrum as a part of the law of the land for a veryconsiderable period. The remedy is one which has taken deeproot in the practice and procedure of our Courts, and it is far from.desirable to ignore it or to declare it obsolete at the present time.Much uncertainty, however, has hitherto prevailed as to the pro-cedure to be followed when an application of this nature is made.In a recent case I adopted the form of the ex pqrte application madein :Silindu v.Akurafbxit I had-grave doubts as to the correctnessof the procedure.' It seemed to me wrong to. make an ex parteorder and send the case down for investigation by the lower Courtwithout any notice to the other side. It occurred-to me that innumerous instances it would not be necessary for the lower Court tohold any investigation at all if this Court was satisfied after hearing’1 (1903) 26 S. A. L. J. 230.'* (1904) 7 N. L. B. 296.
July 12,1911
Gkenieb J.
Abeyeaekeret>. HarmaniaAppu
both sides, provided a primb facie case in support of the applicationhad first been made out, that the remedy by way of restitutionshould not be granted. I cannot find a better illustration of thisthan the present case. Had we followed the procedure laid downin Silindu v. Akura, we would have put both parties to much expenseand trouble. We had no difficulty after we had heard counselin support of and against the application to declare that it wasgroundless. The form of procedure prescribed by my brother hasmy entire concurrence.
Application refused.
The Supreme Court of Ceylon is indebted to the Registrar of the SupremeCourt of British Guiana for the following -communication regarding thepractice prevailing in that Colony re applications for restitutio in integrum;—•
Restitutio in integrum is still part of the law of British Guiana.
It depends on the common law and not on statute.
The remedy is sought by action, and not by application ex parte- orotherwise.
The court of trial is left to adjudicate on the claim, and anyadjudication at which it may arrive does not require the sanction of theSupreme Court.
Cases in which restitutio in integrum is sought very seldom arise, but I amnot aware that the practice would differ in any way from that followed inordinary actions.