088-NLR-NLR-V-53-AKILANDANAYAKI-Appellant-and-SITHINAGARATNAM-et-al.-Respondents.pdf
BOSE C.J.—AkRandanayaki v. Sothinagaratnam
385
1982 ' Present: Rose C.J., Nagallngam S.P.J., Gratlaen J.,Pulle J. and Choksy A.J.AKTLA ND AN A YAKI, Appellant, and SOTHINAGARATNAMet al., Respondents
S. G. 307—D. G. Jaffna, 3,033
Thesavalamai—Thediatheddam—JaffnaMatrimonial ^ Rights and Inheritance
Ordinance, No. 1 of 1911 {Cap. 48), ss. 6, 14, 19, SO—Amending OrdinanceNo. 58 of 1947—Retrospective effect—Interpretation Ordinance {Cap. 2),s. 6 (3).
Held, (i) that the provisions of the Jaffna Matrimonial Bights and Inheritance(Amendment) Ordinance, No. 58 of 1947, which came into force on 3rd July,1947, do not operate retrospectively so as to affect the rights of personspreviously acquired under the provisions of the Jaffna Matrimonial Bights andInheritance Ordinance, No. 1 of 1911 (Cap. 48).
(ii) that the earlier rulings to the contrary effect in Sachchithananthan v.Sivaguru *, Kathirithamby v. Subramaniam 2, and Sellappah v. Sinnadurai *were wrongly decided.
pp tiiAT, from a judgment of the District Court, Jaffna. This case wasreferred under section 51 of the Courts Ordinance for the decision of aBench of five Judges.
H. V. Perera, Q.G., with C. Shanmuganayagam, for the plaintiffappellant.
C. Vanniasingham, with A. Nagendra, for the 1st defendant respondent.
S. J. V. Chelvanayakam, Q.C., with A. Vythialingam, for the- 2nddefendant respondent.
H. W. R. Weerasooriya, Acting Solicitor-General, with G. L. L. de Silva,Crown Counsel, as amicus curiae.
Gut. adv. vult.
March 5, 1952. Rose C.J.—
The principal point that arises for determination in this case is' whetherall or any of the provisions of the Jaffna Matrimonial Rights and In-heritance (Amendment) Ordinance, No. 58 of 1947, are retrospective intheir effect. I have had the advantage of reading the judgments of mybrothers Nagalingam and Gratiaen and find myself in agreement withthe reasons and conclusions contained in the judgment of the latter.
1 {1949) SO N. L. R. 293.* (1950) 52 N. £. R. 62.
» (1951) 53 N. L. R. 121.
ISJ. S’. B. 69182 (10/57)
386KOBE O.J.—Akilandanayaki e. Sothinagaratnam
In my. view the matter is concluded by the imperative provisions ofsection 6 (3) of the Interpretation Ordinance (Cap. 2) which read:
“ Whenever any written law repeals either in jvhole or part a former'written, law, such repeal shall not, in the absence of any express provisionto that effect, affect or be deemed to have affected—
any ….. right …. acquired …. under the
repealed written law;
any action, proceeding, or thing pending or incompleted when the
.repealing written law comes into operation, but every suchaction, proceeding, or thing may be carried on and completedas if there had been no such repeal. ”
It will be noted that the words " in the absence of any express pro-vision to that effect ” used in our Ordinance are more restrictive in. theirscope than the words “ unless the contrary intention appears ” used inthe corresponding English statute.
I find myself unable to agree with the view that one can read intosection 14 of the Jaffna Matrimonial Eights and Inheritance Ordinance,No. 1 of 1911 (Cap. 48), an express provision which would have the effectof rendering the repealing law contained in the amending Ordinance of1947 retrospective in its application so as to interfere with rights that hadbecome vested or been acquired prior to that date. Such a view wouldseem to ignore the fact that between 1911 and 1947 there was a law(contained in the repealed sections 19 and. 20) which determined therights of parties till the amending law was passed. In my opinion, onewould have to look to an express provision in the repealing law itself andit is clear that the amending Ordinance of 1947 contains no suchprovision.
Having regard to my view of the amending Ordinance, I am of opinionthat it is unnecessary and indeed irrelevant to ,consider whether the effectof the amending Ordinance is more in accord with the spirit of the cus-tomary law of Thesawalamai than was the decision in the case of AvitchyGhettiar v. Basamma 1.-
It is unnecessary for me to examine the other aspects of this question aBthey have been fully dealt with in the judgment of my brother Gratiaenwith whose views my brothers Pulle and Choksy and I are in agreement.
The decision of this Court upon the appeal referred by me under section51 of the Courts Ordinance is therefore as follows: —
that the provisions of the Jaffna Matrimonial Eights and In-heritance (Amendment) Ordinance, No. 58 of 1947,. which came intoforce on 3rd July. 1947, do not operate retrospectively so as to affectthe rights of persons- previously acquired under the provisions of theJaffna Matrimonial Eights and Inheritance Ordinance, No. 1 of 1911(Cap. 48);
that the earlier rulings to the contrary effect in Sachchi-thananthan v. Sivaguru 2, Kathirithamby v. Subramaniam 3 andSellappah v. Sinnadurai * were wrongly decided;
that this appeal should be allowed with costs and the ease re-mitted for trial as indicated in the judgment of my brother Gratiaen.
(1933) 35 N. L. R. 313.* (1950 52 if. L. B. 62.
(1949) 60 2f. L. B. 293.1 (1951) 53 N. L. B. 121.
NAQALINGAM S.P.J.—Akilandanayaki v. Sothinagaratnam
387
Naoaunoam S.P.J.—
This case is also one that relates to rights of persons governed by the*Jaffna Matrimonial Bights and Inheritance Ordinance but is differentfrom the case of Kandavanam v. Nagammah et al.1 and other oases in.which this Court had to. consider the effect of the amending OrdinanceNo. 68 of 1947. The facts here are that the plaintiff-appellant, who wasmarried to the 1st respondent in 1925, obtained a judicial separationfrom him in 1943.'* She instituted this action in 1946, claiming a half-share of the lands described in the schedule to the plaint on the basisthat the said properties formed the thediatheddam of her husband.She also made the 2nd respondent a party to the proceedings as shealleged that the 2nd respondent, the father of her'husband, had purchasedthe lands in his name but in trust for her husband. The defendantsdenied the allegations that the properties were purchased by the 2ndrespondent in trust for the 1st respondent or that the said propertiesconstituted the thediatheddam of the 1st respondent. There • werealso other pleas raised by the defendants which it is unnecessary to noticefor the purpose of the present appeal.
By the time the case came up for trial, the amending Ordinance No. 58of 1947 had been enacted and the effect of the amending provisions hadbeen the subject of a decision by this Court in the case of Satchithanandanv. Sivaguru 3. In that case, in delivering judgment I expressed theopinion that the amending Ordinance was retrospective in its operation.Counsel for the respondent in the lower Court taking his stand on thedecision in the above case successfully contended before the learnedDistrict Judge that the rights of the plaintiff were affected by the newsection 20 introduced by the amending Ordinance and that the plain-tiff could not therefore succeed. The learned District Judge upheldthe contention and has dismissed the plaintiff’s action.
The question that arises for decision is whether the amending Ordinancehas application to the rights of the plaintiff. The new sections 19 and 20introduced by the amending Ordinance can have no application to thepresent case, because the scope of their operation, as I have set out fullyin. my judgment in the case of Kandavanam v. Nagammah et al. (supra),extends only to the estates of persons who may die after the commencementof the principal Ordinance. There is no estate here in regard to which thenew provisions can apply, for. both spouses are- alive. The amendingsections, therefore, in ho way refer to the rights of the plaintiff. They areapplicable to the estates of deceased persons only and not to the rightsof spouses whose marriage tie may have been dissolved by a decreea vinculo matrimonii or who may have been judicially separated a mensaet Ihoro. Nor can it be said that any inference can be drawn from section7 of the amending Ordinance, for the amendments made do not relate,as already stated, to the dissolution of marriage by Court or to judicialseparation. If, however, one attempted to draw an inference from thelanguage of this section, such for instance as that the rights of a spouse—totake the’case pertinent for our purpose—who has been judicially separatedbefore the amending Ordinance came into' operation have been taken
1 S. O. 166, D. O. Jaffna No. 3,737 [S. C. Minutes of March 6, 1952].
* (1949) 50 N. L. R. 293.
888GBATIAEK J.—Akilandanayaki v. Sothinagaratnam
away, one would fall into an error of the magnitude and character referredto by Liord Davey in the case of Guardians of the Poor of West Derby Unionv. The Metropolitan Life Assurance Society and others 1 and advertedto in the course of my judgment in the case of Kandavanam v. Nagammah■at al. (supra).
It will be seen that the amendments say nothing one way or the otherwith regard to the rights of spouses who are judicially separated, and itwill be wholly indefensible to base any deduction upon the absence of aprovision. The inference, if any, in reality is sought to be drawn fromthe circumstance of the subsequent repeal of the provision in the earliersection 20. Such an inference, again, will be one which cannot be sus-tained or supported upon any logical basis; so that from a considerationneither of the new section 20 nor of section 7 of the amending Ordinancecan it be said that the amendments regulate the rights of the plaintiff.Besides, those rights had accrued to and vested in her at the date of theCourt entering a decree for judicial separation in 1943, .and by virtue ofsection 6 (3) (b) of the Interpretation Ordinance those rights cannot besaid to have been taken away by the repeal of the old section in theabsence of an express provision to that effect. There is no such provisionon which one can lean. Furthermore, the plaintiff’s action was pendingwhen the repealing written law came into operation, and by virtue ofsection 6 (3) (c) of the same Ordinance, the action must be carried on andcompleted as if there had been no such repeal.
In this view of the matter, it must follow that the plaintiff’s rightsremain unaffected by the amendments created by Ordinance 58 of 1947and that her rights must be adjudicated upon on the footing of theprovisions of law contained in the old sections 19 and 20.
I would therefore set aside the judgment of the learned District Judgeand allow the appeal with costs both here and in the Court below, andremit the case for adjudication on the other issues.
Gkatiaen J.—
I have been authorised by my brothers Pulle' and Choksy to state that,after full consideration, they share the views expressed by me in thisjudgment.
This appeal was referred by my Lord the Chief Justice under section 51of the Courts Ordinance for the decision of a Bench of five Judges. Themain questions which call for an authoritative ruling of the SupremeCourt may be summarised as follows : —
Whether all or .any of the provisions of the Jaffna MatrimonialBights and Inheritance (Amendment) Ordinance, No. 58 of 1947, haveretrospective effect so as to take away vested rights previously acquiredunder the provisions of the Jaffna Matrimonial Bights and InheritanceOrdinance (Cap. 48) of 1911, some of the provisions of which wereeither amended or repealed 36 years later by the later Ordinance
1 (1S97) L. R. A. G. 647.
■ VRATTAPy J.—ASnUazdanocaki e. Sslhinagarataam389
wliether the judgments of Xagalingam J. (VVindfoam J. con-curring}] in Sachchithanathan s. Sivaguru of Xagaiiiigam J., sittingalone, in Kithirithamby et aZ. v. Subramartiam s; and of Xagalingam J.and Swan J. (Bssnayake J. dissenting}) in SeMappaSa v. Sinnaduraiet al. * were correctly decided.
The conclusion at which I have arrived is that vested rights acquiredprior to 3rd July, 1947, under the earlier enactment (to which I shallhereafter refer as •'* the principal Ordinance **) were, m viesr of theimperative provisions of section 6 (3) (6) of the Interpretation Ordinance,entirely unaffected by the passing of the later Ordinance (to which Ichni; hereafter refer as “ die amending Ordinance It follows that.m mv opinion, the ftree earlier pronouncements tb which I have referred-should be over-ruled.
It will he convenient at the outset to examine the basis of the plain-tiff-appellant's claims against the defendants-respondents in the three-connected actions to which the present appeal relates.
The plaintiff and the 1st defendant are Tamils to whom theTesawalamai applies. They were married on 7ih February, 1925. and inconsequence their respective rights over tediaietam property acquiredby either of them during the subsistence of the marriage were regulatedby the provisions of the principal Ordinance. On 6th September, 1943,a decree for separation a mensa et thorn in respect of their marriage was■entered by the District Court of -Jaffna, an appeal by the 1st defendantagainst this decree having been dismissed by this Court on 21st May. 1945.
The effect of this decree for separation was that (according to thelaw applicable at that time) one half of the tediaietam property to whichthe spouses had been “ equally entitled ” in terms of section 20 (1) of Hieprincipal Ordinance, became immediately released to the plaintiff, byvirtue of section 20 (2), for her separate use. In other words, her sharewas automatiealJv set free from the bond of community and from thepowers of maimrompnt which her husband had previously enjoyed underthe Tesawalamai.
On 20th September, 1946, the plaintiff instituted action Iso. 3,033 inthe District Court of Jaffna claiming from the 1st defendant and fromhis father the 2nd defendant her half share of certain lands- which, shealleged, had been tediaietam property acquired by. the 1st defendantduring, the subsistence of the marriage (but the conveyances for whichhad been procured by him in favour of the 2nd defendant as nominee•}.The plaintiff's cause of action was based on the legal right vested in herby operation of law under section 20 (2) of the principal Ordinance either-on 64b September, 1943, when the decree far judicial separation was enteredor, at tiie very latest, on 21st- May, 1945, when that decree was affirmedin appeal. If these facts be established as tine, the circumstance that-tiie husband had by a device obtained a conveyance of the property inhis father’s name could clearly not affect the validity of the plaintiff’s
claim.
* {1949) SO X. L. B- 293.
* (1950 S3 X. I*. R. 121.
11951) 52 X. If- S. 62:
890
GilATIAEN J.—Akilandanayaki v. Sothinagaratnam
On 18th October, 1946, the plaintiff instituted two further actions(numbered 8090 and 8091 respectively) against the defendants in thesame court claiming similar relief, and on identical grounds, in respectof her half share in certain other allegedly tediatetam properties acquiredby the 1st defendant in his father’s name during the subsistence of themarriage.
These olaims were contested by the defendants, the main defenceof the 2nd defendant on the merits being that each of the propertieshad been purchased by him out of his own money and did not thereforeconstitute tediatetam. property of either the plaintiff or the 1st defendant.
When the ease came up for hearing on 6th June, 1947, the partiesagreed, on grounds of obvious convenience that “ all three actions shouldbe consolidated and tried together; that the issues should be framedtogether, and all the documents produced in one proceeding, and, finally,that one judgment be written and three decrees entered in conformitytherewith ”. The trial of the consolidated action on this agreed basiswas then postponed for a later date.
In the meantime the amending Ordinance came into force. Some ofits provisions have been drafted in language so obscure that the problemof ' their interpretation presents enormous difficulties.- For instance,we have heard irreconcilable but plausible conflicting submissions fromMr. H. V. Perera, Mr. Chelvanayagam and the learned Acting Solicitor-General as to the meaning and effect of that part of the Ordinance whichamends section 6 of the principal Ordinance ; we have also heard argu-ments as to the effect of the repeal of sections 20 (1) and 20 (2) and ofthe introduction of a new provision with regard to the devolutionof tediatetam property—without any express mention, however, beingmade of its incidence during the subsistence of the marriage.
In the view which I have taken, the real controversy in the presentappeal is confined within very narrow limits—namely, whether or notthese obscure amendments, whatever they may mean> have been intro-duced with retrospective effect. As this issue must, for the reasons whichwill follow, be answered in favour of the plaintiff, the solution of theother problems which came up for incidental discussion need not now beattempted because the rights of the parties in this consolidated action mustbe answered solely by reference to the law as it stood before the principalOrdinance was amended in some respects and repealed in others. But Ido desire to make a general observation. If, as Mr. Chelvanayagamsuggests, the intention of the legislature was, even prospectively, to sweep-away entirely the old ideas of community of property subsisting amongpersons married since 17th July, 1911, under the Tesawalamai, such arevolutionary change could quite easily have been introduced in clearerlanguage—as indeed was done when section 7 of the Matrimonial Bightsand Inheritance Ordinance (Cap. 47) was enacted in regard to certainother inhabitants of this Island. Unless these defects in draftsmanshipare speedily remedied, it is safe to prophesy that the difficulty ofascertaining ' the legal incidence and the subsequent devolution oftediatetam property under the provisions of the amending Ordinance will. involve many persons subject to the Tesawalamai – in unprofitablelitigation.
Q-RATIAEN J.—Akilandanayaki o. Sothmagaratnom
391
I now pass on to the comparatively simple point of controversy arisingon tiie present appeal.
Shortly after the amending Ordinance passed into law, and beforethe trial of the consolidated action was concluded, the 1st defendantfiled an amended answer pleading that “ by reason of the provisions ofOrdinance No. 58 of 1947 the plaintiff has no cause of action againstthis defendant to claim a half share of the tediatetam consequent on adecree for judicial separation His position was that the amendingOrdinance had, with effect from 3rd July, 1947, retrospectively amendedsection 6 and repealed sections 20 (1) and 20 (2) of the principal Ordi-nance, so that the vested rights which the plaintiff had already acquiredunder section 20 (2) upon the passing of the decree for separation, hadall been swept away—indeed, forfeited in his favour—by an Act of Parlia-ment which came into operation 4 years later. It follows as a cotollaryto this contention that the plaintiff’s rights in the pending actions fellto be determined not by reference to the law applicable at the time oftheir institution but in accordance with new laws enacted after theproceedings had commenced. Stated thus, the proposition, if correct,is so startling as to offend one’s sense of justice and to disturb one’sconfidence in the wisdom of the legislature which is alleged to haveintentionally produced this result.
The learned District Judge, at the conclusion of the consolidated trial,upheld this contention and delivered a single judgment dismissing allthree actions instituted by the plaintiff against the defendants. Indeed,the learned Judge had no alternative but to so decide, for he rightlyregarded himself as bound by the decision in Satchithananthan v.Sivagwru. 1 in which appears the earliest pronouncement to the effectthat the amending Ordinance has retrospective operation.
Before one considers the provisions of the amending Ordinance whicnare claimed to be retrospective, it is necessary to examine section 6 (3)of' the Interpretation Ordinance (Cap. 2) which was enacted in 1901—i.e., on a date long prior to the passing of either the principal or the amend-ing Ordinance with which we are now concerned. The section readsas follows: —
“ (3) Whenever any written law repeals either in whole or parta former written law, such repeal shall not, in the absence of any expressprovision to that effect, affect or be deemed to have affected—
the past operation of or anything duly done or suffered under
the repealed written law ;
any offence committed, any right, liberty, or penalty acquired
or incurred under the repealed written law ;
any action, proceeding or thing pending or in completed when
the repealing law comes into operation, but every such%
action, proceeding or thing may be carried on and completed
as if there had been no such repeal ”.
(1949) 50 N. L. R. 293.
393
QRATIABN J.—Akilandanayaki v. Sothinagaratnttm
The relevant parts of the section which I have underlined have beensubstantially adapted from section 38 of the. Interpretation Act, 1889,of England except that our legislature had designedly introduced (bysubstituting the words “ in the absence of any express provision to thecontrary ” for the words “ unless the contrary intention appears ” ofthe English model) an even stronger -presumption against ex post factolegislation in this country.
Section 6 (3) gives statutory recognition to the rule of Judicial inter-pretation adopted in all civilised countries that the Courts should notlightly assume an intention on the part of Parliament to introducelegislation prejudicially affecting vested rights which have already beenacquired. “ Retrospective laws ”, says Willes J. in Phillips v. Eyre 1
are -prima facie of questionable policy and contrary to the generalprinciple that legislation by which the conduct of mankind is to beregulated ought (when introduced for the first time) to deal with future-acts …. and ought not to change the character of past transactionscarried on upon the faith of the then existing law. Accordingly, theCourts will not ascribe retrospective force to new laws affecting rightsunless by express words (or unless by necessary implication) it appearsthat such was the intention of the legislature ”. He proceeds to statethat “ every law which takes away or impairs rights vested agreeably toexisting laws is retrospective and is generally unfust and may be offensive,and it is a good general rule that a law should have no retrospect ”. Never-theless, as he points out, ‘‘ there may be occasions and circumstancesinvolving the safety of the State, or even the conduct- of individualsubjects, the justice of which prospective laws, made for ordinary occasionsand the usual exigencies of society, may for want of prevision fail to meet ;and in which the execution of the law, as it stood at the time, may involvepractical public- inconvenience and wrong …. Whether thecircumstances of the particular case are such as to call for special andexceptional remedy is a question which must in each case involve mattersof policy and discretion fit for debate and decision in the Parliament whichwould have had jurisdiction to deal with the subject-matter bypreliminary legislation, and as to which a Court of ordinary- municipallaw is not commissioned to inquire or adjudicate ”.
As Erie J. pointed out in The Midland Railway Go. v. Pye 2 “thosewhose duty it is to administer the law very properly guard against givingto an Act of Parliament a retrospective operation, unless the intentionof the legislature that it should be so construed is expressed in unambiguouslanguage; because it manifestly shocks one’s sense of justice that anact legal at the time of doing it should be made unlawful by some newenactment ”. Similarly, and for identical reasons, one should notlightly impute to the legislature a disregard for the sanctity of rightslawfully acquired under the provisions of some earlier Act of Parliament.
What then if, even in England, the words of a statute which is claimedto impair retrospectively a person’s vested rights, should be found to-be equally consistent with the rival theories of retrospective and merelyprospective operation ? The answer is to be found in the observation
J (1870) L. B. 6 Q. B. 1.
* 10 C. B. (N. 8.) 179 (—142 Eng. Beports 419).
GBATIAEN-J.—Akilandcnayaki v. Sothinagaratnam
398
of Bacon L. J. in Quilter v. Maplesan 1 that “ the rule againstretrospective legislation applies as a guide where the intention of thelegislature is obscure In Ceylon the rule is even stricter.
These elementary principles, now invested with _ statutory force, are■" deeply found on good sense and justice ” and “ must always he adheredto unless in cases where-there is something on the face of the enactment■putting it beyond doubt that the legislature meant it to operate retros-pectively Moon v. Durden s. My only excuse for emphasisingthem on this occasion is that, if I may say so with great respect, theearlier decisions of this Court referred to at the commencement of myjudgment have paid insufficient'regard to their importance.
As I have pointed out, section 6 (3) of the Interpretation Ordinancehas laid down a less flexible test than that adopted in the correspondingEnglish enactment. This is implicit in the phrase “ in the absence ofany express provision to that effect ” as contrasted with the words “ unlessthe contrary intention appears ” employed in section 38 of the EnglishAct. One cannot but assume that this different formula was deliberatelychosen by our Legislature, for it is significant that in sections 4, 9 and 10of the same Ordinance the phrase “ unless a contrary intention appearshave been taken over without alteration from the words of the corres-ponding sections of the English Act. Again, section 3 declares that“ no enactment shall in any manner affect the right of the Crown unless itis therein expressly stated or unless it appears by necessary implicationthat the Crown is bound thereby ”, indicating very clearly to my mindthat an “ express provision ” must in the context be construed as excludingeven a “ necessary implication ” or what Evershed M.R. describes as a
necessary intendment ” in Hutchinson v. Jauncey s. This latterauthority illustrates the distinction between an " express provisioncontemplated by section 6 (3) of our Interpretation Ordinance and theless exacting test which satisfies section 38 of the English Act.
The term “ express stipulation ” in section 7 of the ApportionmentAct, 1870, has been held to exchide a stipulation that was ” merely leftto be collected by inference ”. In re Meredith; Stone v. Meredith *. This■ does not necessarily mean, of course, that for the purposes of section 6
(b) of our Interpretation Ordinance, there need be- a specific anddirect reference to the particular vested right which is under consideration.In Paker Jarvis and Salt v. Locker s, for instance, it was decided that abequest in a will ‘‘ without any deduction whatsoever ” could fairly beregarded as including an “ express provision ” exempting the propertyfrom direct liability to estate duty. That case was concerned with theinterpretation of section 14 of the Finance Act, 1914, of England.
Section 6 (3) of the' Interpretation Ordinance in a sense controls theoperation of all repealing enactments. It protects vested rights acquiredunder a repealed Act from the impact of subsequent legislation unlessthere be unequivocal language within the four comers of .the repealing Act1 {1882) 9 Q. B. D. 672.* (1950) 1 K. B. 574.
• (1848) 2 Ex. 22 (—154 E. R. 389).» (1898) 67 L. J. Oh. 409.
* (1889) 2 Gh. 643.
894
GRATIAEN J.—Akilandanayaki o. Solhinagaratnam
pointing to a deliberate decision on the part o£ Parliament to impair thoserights. The section therefore demands a clear and unambiguous expression(either directly or at least “ in so many words ”) of a legislative intentionto affect vested rights prejudicially. For there is a strong and compellingpresumption that fio Parliament would- think fit, except after duediscussion and debate, to forfeit or impair vested rights by ex post factolegislation. The process of judicial ipquiry in cases of this kind affordsno scope for speculation or conjecture. “ The intention of Parliament isnot to be judged of by what is in its mind but by its expression of thatmind in the Statute itself ” (per Lord Thankerton in Wicks v. Director'of Public Prosecutions l).
Had the particular question submitted for our decision in this casebeen res integra, I must confess that I should have thought that onlyone answer would have been possible, for I have signally failed to discovera single provision in the amending Ordinance which gives clear expression,either directly or “ in so many words ”, to a legislative intention to producea result so violent and unjust as the forfeiture of rights lawfully acquiredunder the provisions of either section 19 or section 20 of the principalOrdinance over a period of 36 years since .1911—affecting thereby Ithevalidity of innumerable bona fide transactions entered into on the faithof the existing law. Indeed, even if the test laid down in section 38 ofthe English Act had applied, I would say that there are no words in theamending Ordinance sufficient to justify the inference (far less the" necessary implication ”) of an intention that the provisions of theprincipal Ordinance should be repealed retrospectively. But as learnedJudges of this Court have on three separate occasions since 1949 takenthe view that the amending Ordinance must be construed as havingretrospective operation in all respects, it is necessary to examine thegrounds on which each of those decisions have been based.
In Sachchithananthan v. Sivaguru 2 my brother Nagalingam acknow-ledged the force of the argument that “ though some implied provision■may be inferred from the terms of section 7 of the amending Ordinance, noexpress provision is to be found therein whereby it could be said that anyrights that had accrued were intended to be affected”. I should have thoughtthat this concludes the argument which was based on section 7, butthe judgment proceeds, by purporting to apply the ruling in Barber v.Pigden s, to declare that the provisions of section 6 of the InterpretationOrdinance must give way to what is assumed to have been the “ dominantintention ” of the legislature which passed the amending Ordinance in1947. With great respect, the only “ dominant intention ” relevantto the present problem would be an intention, if clearly expressed, toaffect rights already acquired under the Ordinance of 1911. If there wasany such intention, “ dominant ” or otherwise, it has certainly not beenexpressed- in the amending Ordinance, and the uncompromising testimposed by section 6 (3) of the Interpretation Ordinance forbids a judicialsearch for unexpressed intentions outside the four comers of the amendingOrdinance itself.
» (1947) A. a. 367.* (1949) SO N. L. R. 293.
s (1937) 1 K. B. 664.
G-BATTAEN J.—Akilandanayaki v. Sothtnagaratnam
395
Barber v. Pigden (supra) is indeed a very special case. It decidesthat an Act disclosing “ an intention to make a clean sweep of the oldlegal fiction of (the English) common law that a woman on marryingbecame merged in the personality of her husband " could legitimatelybe construed, by reference to its language, as having retrospective opera-tion—because, in the opinion of Scott L, J., “a statute abolishing oldlegal fictions is so nearly akin to a procedural statute that the presumptionagainst a restrospective interpretation had little, if any, applicationHow very different is the present case! Section 20 of the principalOrdinance gives statutory recognition to the long-established customarylaws of an important section of the – inhabitants in this Island, and thosecustomary laws cannot in the slightest degree be equated to “ legalfictionsThe Courts must surely insist upon very clear language in
an amending enactment which is claimed to have swept away retro-spectively the incidence of community of property attaching to tediatetambelonging to personsgovernedby the Tesawalamai.It isno doubt
true that in Barber v. Pigden (supra) Greer L.J. was influenced, amongother considerations, by the existence of a provision in the Law Reform(Married Women and Tort Feasors) Act, 1935, whioh is similar in certainrespects to section 7 of the amending Ordinance, but this was by no meansthe only circumstance which influenced his decision. Be that as it may,I regret that I am unable to subscribe to the theory that the maximexpressio unius, exclusio alterius has any bearing on questions concernedwith the application of section 6 (3) of our Interpretation Ordinance. Thetrue answer to theargumentbased on section 7is tobe found
in the following passage in Maxwell’s Interpretation of Statutes (9th edition)at page 318:—
“ Provisions sometimes found in statutes enacting imperfectlyor for particular cases only that which was already and more widelythe law have occasionally furnished ground for the contention that theintention to alter the general law was to be inferred from the partialor limited enactment, resting in the maxim expresiio unius eet exclusioalterius. But thatmaxim isin applicable in suchcases.The only
inference which aCourt canjlraw from such superfluousprovisions
(which generally find a place in Acts to meet unfounded objections andidle doubts), is that the Legislature is either ignorant or unmindfulof the real state of the Law, or that it acted under the influence ofexcessive caution ”._ I
I am content to say, with regard to the argument based on section 7of the amending Ordinance, that any idle speculation as to why preciselyits provisions were enacted .would be profitless. For the sectionadmittedly contains no words expressing an intention retrospectivelyto sweep away any rights' of the kind which the plaintiff now seeks tovindicate. It only purports, presumably out of an abundance of caution,and in any event quite unnecessarily, to save the rights of parties in alimited group of decided cases dealing with only one particular categoryof tediatetam property which was caught up (perhaps unintentionallybut nevertheless unambiguously) by the words of definition in section 19of the principal Ordinance. Section 7 makes no express reference to
396GHATIAEN J.—AkHandanayaki o. Sothinagaratnam
any other species of vested rights or to any other class of litigation rconcluded or pending, and the impact of the amending Ordinance on these-latter rights continues therefore to be controlled by section 6 (3) of theInterpretation Ordinance. As it happens, the tediatetam rights claimedby the plaintiff in the present action fall within the defintion of section19 both in its amended and its unamended form.
I now pass on to the judgment of Nagalingam J., sitting alone, in Kathi-rithamby et al. v. Subramaniam 1 where he again decided that the Ordinanceof 1947 has retrospective operation. It was common ground in that casethat the plaintiffs had, under the provisions of sections 19 and 20 of theprincipal Ordinance, already acquired vested rights in their deceasedsister’s share in certain tediatetam. property, but the defendant (i.e., thesurviving spouse) contended that those rights had subsequently beenforfeited in his favour upon the passing of the amending Ordinance of1947. Nagalingam J. upheld this contention. He decided that, inaddition to the grounds set out in his earlier judgment, the Ordinancewas retrospective (a) because, by reason of section 5 of the InterpretationOrdinance, the amending Ordinance of 1947 must necessarily be “ readas one with the principal Ordinance ”, and (6) because the amendingOrdinance was of a declaratory nature, having the effect of laying down
what was always the law ’ ’.
Mr. Chelvanayagam did not seek to support the first of these grounds,,and, if I may say so without disrespect, it is untenable. No one candoubt that, once the amending Ordinance did come into effect, its provisionshad to be read as part and parcel of the principal Ordinance. But itdoes not logically follow that both enactments should by some statutoryfiction (whose origin cannot justifiably be traced to section 5 of theInterpretation Ordinance) be regarded as having come into force contem-poraneously in 1911.
With regard to the second ground of the decision in Kathirithamby’scase, it is certainly corrept to say that a repealing Act which unambi-guously manifests an intention to remove doubts as to the true meaningof an earlier statute, is generally held to operate retrospectively to thatparticular extent—for in such an event the repealing Act would not beseeking to introduce new law but merely to declare what the law (thoughpreviously misunderstood) had always been before the date of the repeal.“ The usual reason for passing a declaratory Act is to set aside whatParliament deems to have been a judicial error whether in the statementof the common law or in the interpretation of statutes”. Craies onStatute Law, (4th edition) at page 61. Indeed, the requirements ofsection 6 (3) of the Interpretation Ordinance would for that very reasonbe satisfied. Vide also Attorney-General v. Theobald a.
It seems to be implicitly assumed in this part of Mr. Chelvanayagam’scontention, as it was in the judgment in Kathirithamby’s case, that aDivisional Bench of this Court, in deciding Avitchi Chettiar v. Rasama s
1 (1950) 52 N. L. H. 62.* (1890) 24 Q. B. D. 557.
» (1933) 35 N. L. JS. 313.
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bad in regard to one particular category of “ acquired property ” wronglyinterpreted the .definition of tediateiam contained in section 19 of theprincipal Ordinance; and that the purpose of the amending Ordinancewas, by substituting a new definition more in keeping with the earliercustomary law of Tesawalamai, to correct this so-called “ error of inter-pretation ” with retrospective effect. It would be strange indeed, ifit were true, that any legislature should have paid such scant regardto the sanctity of bona fide transactions (not expressly protected by section7 of the amending Ordinance) which had been entered into over a periodof 14 years upon the faith of the ruling of a Divisional Bench assembledfor the special purpose of settling authoritatively the meaning of section19 of the principal Ordinance—a ruling which -has consistently since1933 been acted upon by Judges, litigants and professional advisers.But the truth is that there is no reason for imputing to the Legislature anydesire to be so unjust.
I am satisfied that Avitchi Chettiar’s case did in fact correctly interpretthe language of section 19 of the principal Ordinance—as Nagalingam J.himself seems to have conceded in his earlier judgment (50 N. L. R.at page 296). Indeed, it was in unqualified recognition of the correctnessof this decision that Parliament decided in 1947 to substitute a newdefinition which would restore for the future the more traditional concep-tion of tediatetam which had been unmistakably, even though carelessly,altered by legislative intervention in 1911. In that view of the matter. .the Ordinance of 1947 " does not contain any words to correct the earlierOrdinance; it does purport to amend it ”. In the absence, therefore,of any “ express provisions to the contrary ”, section 6 (3) of the Inter-pretation Ordinance operates to prevent the amending Ordinance fromreceiving a construction which would prejudicially affect rights previouslyacquired—vide Harding v. Commissioner of Stamps for Queensland 1and Young v. Adams 2 which distinguished Attorney-General v. Theobald{supra). As the learned Solicitor-General points out, Midland RailwayCo. v. Rye 3 deals with an amending Act which contained words far moreindicative of a merely “ declaratory ” intention than those containedin the amending Ordinance with which we are now concerned. Thosewords were nevertheless held to be prospective only in operation. Iventure to suggest that the English authorities which were cited to usduring the argument are of greater assistance as guides to the generalprinciples which they enunciate rather than as precedents for decidingthat certain particular words appearing in a particular contextdo or do not indicate an intention to give a statute retrospectiveoperation.
Mr. Chelvanayagam’s submissions in support of the judgment underappeal were based chiefly on the argument that the amendment of section19 of the principal Ordinance was a declaratory amendment intendedto correct what was assumed to be a judicial error on the part of thelearned Judges who decided Avitchi Chettiar’s 'case. I have alreadyexpressed my opinion rejecting this proposition, but, without discourtesy
1 {1898) A. O. 769.* (1898) A. C. 460.
» 10 C. B. (N. S.) 179 (—142 E. B. 419).
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GRATIAEN J.—Akilandanayaki v. Sothinagaratnam
to Mr.. Chelvanayagam, I feel constrained to point out' that the con-clusion which he invited us to draw as a corollary to this untenablehypothesis are even less acceptable. For he has argued in effect that ifthe amendment to section 19 be retrospective, the amendment to section20 is so inextricably bound up with it as inevitably to be also retros-pective.
Section 19 of the principal Ordinance was interpreted in AvitchiChettiar’s case as having added to the earlier categories of tediatetam anew species of property—namely, that which had been acquired duringmarriage by a Tesawalamai spouse by the conversion of his or her“ separate property ”. But that decision was concerned only to definethe categories of tediatetam. property. An entirely separate subject,relating to the incidence and the devolution of every category of tediatetamproperty, was regulated by section 20 of the principal Ordinance—andit has not been suggested, as far as I am aware, that the provisions ofsection 20 have been wrongly construed or considered by Parliamentto have been misinterpreted in earlier rulings of this Court. Whateverview might therefore have been taken by Parliament as to the advisabilityof retrospective amending section 19, there was no intelligible corres-ponding need for ex poet facto legislation introducing in 1947 a completelynew principle disturbing the sanctity of past transactions based uponthe earlier incidence of even the admitted categories of tediatetam. pro-perty unaffected by the ruling in Avitchi Ghettiar’s case—particularlyas it has always been recognised that section 20 was in no way inconsis-tent with the customary law as it existed before 1911.
A statute should never be construed to have a greater retrospectiveoperation than its language renders strictly necessary. Gloucester Unionv. Woolwich Union J. Even, therefore, if the amendment to section 19could properly have been regarded as declaratory and retrospective,it would not have followed that the amendment to section 20 must havebeen intended to have the same result. There are no words in theamending Ordinance which expressly (or even by inference) disclosean intention on the part of Parliament to give retrospective effect to therepeal of section 20 of the principal Ordinance. I refuse to believe thatParliament, actuated by a desire to introduce an allegedly declaratoryamendment in one particular respect, should think fit at the same timeto initiate an ante dated statutory revolution ” producing hardshipsin other respects.
There remains for consideration SMlappah v. Sinnadurai 1 where mybrothers Nagalingam and Swan ■ (Basnayake J. dissenting) once againtook the view that the amending Ordinance of 1947 had retrospectiveoperation. Swan J". declared that it was “ impossible to come to anyother rational conclusion ”, but as he appears to have implicitly identifiedhimself with the reasoning of Nagalingam J., I pass on to examineNagalingam J’s judgment which introduces certain fresh argumentsin- support of his earlier rulings. He pointed out, for instance, thatsection 6 of the principal Ordinance, in its amended form, necessarify
» (1917) 2 K. B. 374.* (1951) 63 N. L. B. 121.
G.RATIAEN J.—Akilandanayaki v. Sothinagaratnam
399
applied to all women subject to the Tesawalanrai who were marriedafter the commencement of the earlier Ordinance of 1911. This is so self-evident that Mr. H. V. Perera who appeared for the appellant inSellappah’s case somewhat apologetically assured us that he had notintended to be understood on that occasion to make any submission tothe contrary. Be that as it may, I fail with very great respect toappreciate why such a proposition, which is obviously correct, shouldbe regarded as sufficient to satisfy the strict requirements of section 6(3) of the Interpretation Ordinance. Mr. Chelvanayagam made nosubmissions to us on this point.
A further ground of the majority decision in Sellappah v. Sinnadurai{supra) was that the amending Ordinance does not purport to“ repeal ” but only to “ amend ” section 6 of the principal Ordinance.Mr. Chelvanayagam did not attempt to justify this unconvincingargument, which in any event has no application to the express “ repealof sections 19 and 20. Mr. Chelvanayagam submitted instead that thesubstitution of the word “ all ” in the amending section for the word
any ” in sections 6 and 7 of the principal Ordinance lent some slender ’’support to the retrospective theory. Really, I do not think it proper todecide questions affecting the presumption against Parliament's intentionto destroy vested rights—based as it is on broad and fundamentalprinciples of justice and good sense—by encouraging such pedanticetymological distinctions.
I prefer, with all deference, to adopt the reasoning of the dissentingJudge, Basnayake J., whose judgment is free of error because it does notlose sight of the unequivocal requirements of section 6 (3) of the Inter-pretation Ordinance. There is no “ express provision ” in any sectionof the amending Ordinance which affects or purports to affect rightsacquired under the earlier Ordinance, and this is really the end of theargument upon this appeal. I therefore take the view that Sachchitha-nathan v. Sivaguru {supra), Kathirithamby v. Subramaniam {supra) andSellappah v. Sinnadurai {supra) must for this simple but most compellingreason be over-ruled.
I have so far confined my judgment to the protection which section6 (3) {b) of the Interpretation Ordinance affords to rights •' acquiredunder the repealed written law ”. In the present actions, however, theplaintiff is equally entitled to rely on section 6 (3) (a) which unequivocallydeclares that, “ in the absence of any express provision to that effect ”,no repeal shall affect “ any action or proceeding pending or incompletedwhen the repealing written law comes into operation ". In the result,actions Nos. 3,033, 3,090 and 3,091 of the District Court of Jaffna, whichwere all pending at the time when the amending Ordinance came intooperation, were required by law to be " carried on and completed as ifthere had been no such repeal “ It is a general rule ”, said JesselM. R-,in re Joseph Suche and Co., Ltd., 1 that “ when'the legislature alters therights of parties by taking away or conferring any right of action itsenactments, unless in express terms they apply to pending actions, do not 1
1 (1875) 1 Gh. D. 48.
31-N.L. R. Vol.-Lui
400
3BATIAEN J.—Akilandanayaki v. Sothinagaratnam
affect them This principle is now enshrined in section 6 (3) (c) of curInterpretation Ordinance, and even though Evershed M. R. consideredin Hutchinson v. Jauncey (supra) that, for the purposes of section 38(2) (c) of the Interpretation Act of England, a necessary “ implication ”or “ intendment ” would suffice as a substitute for an “ express ” provision,the formula suggested by Jessel M. R. perfectly fits the stricter testimposed by the local Ordinance.
The combined effect of sections 6 (3) (f>) and 6 (3) (c) of the Interpreta-tion Ordinance is that if a party had already instituted proceedings tovindicate a vested right, the subsequent repeal of the enactment underwhich that right was acquired cannot be regarded as operating retros-pectively unless there are express words satisfying both sub-sections.
I have now dealt with the arguments addressed to me at the Bar,and, for the reasons which I have set out, I take the view that the aver-ments in the- plaints in actions Nos. 3,033, 3,090 and 3,091, if they besatisfactorily established by evidence, do disclose in each case a cause ofaction against the defendants. The judgment under appeal must inmy opinion be set aside, and it follows that the order contained thereindirecting decrees in favour of the defendants to be entered -in all threeactions on the basis of this erroneous judgment must also be quashed.I would order that the record should be returned to the lower Court witha direction that there should be a retrial of each action on the merits.The rights of the parties must in each case be determined in accordancewith the law as is stood before the Jaffna Matrimonial Rights and Inheri-tance (Amendment) Ordinance, No. 58 of 1947, came into operation.The parties are of course free, should they so desire, to adhere to theirearlier arrangement that these actions should on grounds of conveniencebe consolidated.
The defendants should be ordered to pay to the plaintiff the costsof this appeal and the costs of the abortive proceedings in the Courtbelow.
PuiiLE J-—I agree.
Choksy A.J.—
The judgment prepared by my brother Gratiaen expresses my ownviews so adequately that it is not necessary for me to prepare a separatejudgment. I entirely agree with the order he has made and for thereasons which he has given.
Judgment set aside.