A molts Hamy v. Attorney-General.
Present: Moseley S.P.J.
ARNOLIS HAMY v. ATTORNEY-GENERAL.
155—C.R. Colombo, 62,089
PoststPffice Savings Bank—Action by depositor against Attorney-General—^Question of jurisdiction by Rule 22—Validity of rule—Right of actionagainst the trustees—Ordinance No. 13 of 1892, ss. 82 and 83 ; rule 22,A depositor of the Post Office Savings Bank alleged that she depositedto the credit of her account a sum of Rs. 342, when she had been creditedwith a sum of Rs. 42 only.
She brought this action against the Attorney-General as representingthe Crown to recover the sum of Rs. 300.
The Attorney-General denied that he was the proper party to be suedand objected to the jurisdiction of the Court in view of rule 22 of the1rules relating to the Post Office Savings Bank made under section 83 ofOrdinance No. 13 of 1892, which provided that a matter of disputebetween the Postmaster-General and a depositer should be referred tothe Attorney-General, whose award or determination shall be final119 Gt. App. R. 13.
Amolis Hamy v. Attorney-General.
The relevant portion of section 83 of the Ordinance is as follows :—
“The Governor may …. make rules and regulations touchingthe limit of deposits, the rate of interest to be allowed thereon,the sale or disposal of securities or investments, the deposits ofminors and trustees and the mode of payment thereof, and for allmatters relating to the general management of such SavingsBanks.”
' Held, that Rule 22 was ultra wires so far it affected the settlement of adispute of the nature involved in this action.
Held, further, that the plaintiff’s cause of action was against the trusteesof the Post Office Savings Bank.
PPEAL from a judgment of the Commissioner of Requests, Colombo.The facts are stated in the head-note.
E. B. Wikremanayake, for plaintiff, appellant.—The Post Office SavingsBank is a Government institution conducted and managed by officers ofthe .Government. The Postmaster-General who is a Government servantis empowered to appoint and discontinue Savings Banks—see section 51of Post Office Ordinance, Cap. 146. It is the Governor who makes rulesfor the management of the Bank—see section 50. Section 52 only providesa mode of investment of Savings Bank moneys. It should be noted thatall the trustees are Government servants. Finally, the right to sue theGovernment is implied in section 55.
If, therefore, the depositor has the right to sue the Government, theAttorney-General is the proper party to be sued—see section 456 of theCivil Procedure- Code.
Rule 22 of the rules of the Savings Bank has no application to thepresent case. It is not contended that the rule is ultra vires, but that it 'is not applicable to a case where there is a dispute between the depositorand the Bank as to the amount deposited. This rule 22 has-been framedunder section 83 of Ordinance No. 13 of 1892. The power to.make rules istherefore limited to the purposes mentioned in section 83. The commonlaw rights of depositors cannot be affected by the rules so made. If therule stands, the Attorney-General is made judge in his own case.
The word “ any ” in rule 22 must be given a limited meaning. Itmeans any dispute in regard to matters in respect of which rules mayvalidly be framed under section 83.
T.S. Fernando, C.C., for defendant, respondent.—The B6st OfficeSavings Bank may happen to be conducted by Government-Servants,but that does not make it a Government institution. The appointingand discontinuing of Post Office Savings Banks are merely statutoryduties, of the Postmaster-General. The fact that the Governor makesrules for the Bank does not necessarily make it a Government institution;the Governor is empowered by statutes to make rules for various bodieshaving little to do with the Government.
Section 52 of Cap. 146 permits the deposits of Savings Banks to beinvested, inter alia, in securities of the Ceylon Government. Such aprovision would have been unnecessary if the deposits became Governmentmoney. In section 55 the existence of the Savings Bank as an entitydifferent from Government is recognized; the wording of the section
Amolis Hamy v. Attorney-General.
being “ against the said bank, and its officers, or against the Govern-ment ” Such a provision is not consistent with the notion that theSavings Bank is a Government institution or that it is part and parcel ofthe Government.
The deposits are clearly not credited to revenue, and are kept separatefrom the funds of the Government. If the money is not received by thePostmaster-General or his subordinates on behalf of the Government,then the Attorney-General is not the proper Party to be sued.
Rule 26 of the Post Office Savings Bank rules constitutes certain officersthe trustees of all Post Office Savings Banks. The deposits are vested inthem. The fact that these trustees happen to be Government servantsis irrelevant.
[Moseley SJP.J.—Against whom do you say the depositor can bringthe action for recovery ?]
If an action lies, then it is against the trustees constituted by rule 26.Looked at in the proper way, it is submitted that the Legislature did notcontemplate actions in Court of Law to recover deposits. Rule 22 wasintended to apply to all cases of disputes. In England, the provisionregarding disputes is similar, save that the Registrar of Friendly Societiesis substituted for the Attorney-General. See Bailey v. Bailey. * Ourrule 22 has been taken almost verbatim from section 48 of the EnglishTrustee Savings Bank Act. * This shows that the rule-making authorityhere did not introduce a novel procedure. The depositors in thePost Office Savings Bank are mostly people of the poorer classes, andas was stated in Bailey v. Bailey (supra) * the intention was to preventsuch people spending money on expensive law suits.
Although rule 22 was originally framed under section 83 of OrdinanceNo. 13 of 1892, by section 93 of Cap. 146, the old rules are deemed tocontinue in force as if made under Cap. 146, i.e., under section 50 ofCap. 146. Under section 50 the power given to the Governor to makerules under sub-section (3) is without prejudice to the general power undersub-section (2) which empowers rules to be made for. the management andregulation of the Bank. There is no reason to limit this power to theinternal management of the Bank. If the power is so limited, then weare left in the position that rules can be framed, for instance, regulatingwithdrawal of moneys by minors and trustees, whereas there is no powerto frame rules for withdrawal by depositors of full capacity, who constituteby far the majority of depositors.
The word “ any ” in rule 22 should be given an interpretation withoutqualification or limitation, see Abdul Hamidu v. Perera *, and Byrde v.AppuhamiS
The Attorney-General cannot be said to be a judge in his own cause ifthe money is not. the money of the Government. Even if he was, there isnothing repugnant in the Legislature excluding the Courts from havingjurisdiction,over certain matters and making the decision of an arbitratorfinal on such matters—see 1906, 2 K. B. 119; 1908, A. C. 101 ; 38 N. L. R.384; and section 4il of the Co-operative Societies Ordinance (Cap. 107):
3 26 N. L. R. at p. 436.
• 5 N. L. R. 343.
> (1926) Ch. D. f>. 768.•26 <b 27 Viet. C'. 87.
MOSELEY S.P.J.—Amolis Hamy v. Attorney-General.
E. B. Wikremanayake, in reply.—Money of depositors is not credited torevenue because it is not. money belonging to the Crown. It is held intrust for the depositor. The fact that the Crown for its own protectionvests the money in trustees for the purpose of investment cannot affectthe nature of the contract with the Crown. Even tbe trustees are Govern-ment officials and not liable in their personal capacity. An action againstthem would have to be an action against the Crown Rule 22 is limitedin its application. The words “ management of the Bank ” cannotinclude a matter like this. The management of the Bank is its internalmanagement. The cases cited on the meaning of the word “ any ” haveno application. “ Any ” may mean “ any at all ” but within the scopeof the rule itself. Section 83 of the Ordinance expressly lays down theobjects in respect of which rules could be made. The dispute inthe present case is not one that comes within the scope of section 83.
Cur. adv. vuIt.
November 9, 1940. Moseley S.P.J.—
The appellant is a depositor in the Post Office Savings Bank. Shealleges that on a certain date she deposited for the credit of her accountthe sum of Rs. 342. She has been credited with the sum of Rs. 42 only.She brought an action against the Attorney-General, the respondent tothis appeal as representing the Crown, to recover the sum of Rs. 300 beingthe difference between the amount alleged by her to have been depositedand the amount credited to her account. The respondent, by his answer,denied that he is the proper party to be sued, and objected to the juris-diction of the Court in view of rule 22 of the rules relating to the PostOffice Savings Bank (Subsidiary Legislation, Vol II., page 335).
On each point the Commissioner of Requests found iri' favour of therespondent, whereupon the appellant brought this appeal. Since, if theCommissioner’s finding on the second point is correct, further considera-tion will be unnecessary, it is only logical to deal with it first.
Rule 22 is as follows : •—
“ If any dispute shall arise between the Postmaster-General and anyindividual depositor, or any executor, administrator, next of kin orcreditor, or assignee of a depositor who may become bankrupt orinsolvent, or any person claiming to be such executor, administrator,next of kin, creditor, or assignee, or to be entitled to any moneydeposited in the Post Office Savings Bank, then and in every such casethe matter in dispute shall be referred in writing to the Attorney-General, and whatever award, order, or determination shall be madeby the Attorney-General shall be binding and conclusive on all parties,and shall be final to all intents and purposes without any appeal.”
This rule is one of those made under the provisions of section 83 ofOrdinance No. 13 of 1892 and remains in force by virtue of the provisionsof section 93 of Cap. 146. The relevant portion of section 83 of OrdinanceNo. 13 of 1892 is as follows: —
“ The Governor may, with the advice and consent of the ExecutiveCouncil, from time to time make rules and regulations touching thelimit of deposits, the rate of interest to be allowed thoreon, the sale or
MOSELEY S.P.J.—Amolis Hamy v. Attorney-General.
disposal of securities or investments, the deposits of minors and trustees,and the mode of payment thereof, and for all matters relating togeneral management of such savings banks ….
Power to make rules under the existing Ordinance, i.e., Cap. 146, isgiven by section 50. There is no material difference between this sectionand the corresponding part of section 83 of Ordinance No. 13 of 1892.
Counsel for the appellant contends that neither of these sectionsprovides for the making of rules relating to the rights of depositors, andthat, the words “any dispute”, where they occur at the beginning ofrule 22, can only apply to matters in respect of which rules may properlybe made under section 83.
Counsel for the respondent relied upon the power conferred by section83 to make rules for the “ general management ” of the bank. It may,I think, be conceded, that the object of the rule is to provide an inexpen-sive method of settling disputes which concern a class of persons who areof small or moderate means. The rule follows closely the wording ofsection 48 of the English Trustees Savings Bank Act (26 and 27Vic. Cap. 87) and Counsel for the respondent relied upon the case ofBailey v. Bailey', as authority that disputes of such a nature must bereferred to the arbitrator appointed for the purpose. I have said thatthe wording of rule 22 and section 48 of the English Act are similar. Ifrule 22 were a provision of the Ordinance itself I should have no hesitationin applying the decision in Bailey v. Bailey (supra) to the present case.But since it is not a provision of the Ordinance it is necessary beforeapplying that decision, to be satisfied that a dispute of this nature is amatter concerning which section 83 empowers the rule-making authorityto legislate, that is to say, is a dispute between the bank authorities anda depositor a matter embraced by the expression “ general management ofthe bank ”. It seems to me that in its context the word “ management ”is synonymous with “ administration ” or “ control ”. I do not proposeto say that, in certain circumstances, it may not be applied to the relationsexisting, or to exist, between the Postmaster-General and depositors. Itis, however, my opinion that the legislature has not conferred upon therule making authority, nor did it intend to do so, the right to deprive,by a stroke of the pen, a depositor of his common law right to look to theCourts for redress of grievances. It was pointed out by Counsel for therespondent that a similar provision exists in section 45 of the Co-operativeSocieties Ordinance (Cap. 107) and he argued therefrom that ouster ofthe jurisdiction of the Courts is, in certain cases, contemplated by thelegislature. In that instance, however, the Legislature made this provisionby its own enactment, which seems to me to be an argument in favour ofthe appellant. In my view rule 22 in so far as it affects the settlement ofa dispute of this nature is ultra vires.
In view of my opinion on this point it now becomes necessary to decidewho is the proper person to be sued in the circumstances.
It is true that the Savings Bank has been established by legislativeact, that the Governor makes rules for its management, that the 1
1 (1926) Ch. Div. 758.
SOERTSZ J.—Beddewela v. Albert.
Postmaster-General opens and closes branch offices at will and that thereis a reference in section 55 of Cap. 146 to demands against the “ bank andits officers or against the Government
Counsel for the appellant contended that the Savings Bank is a Govern-ment institution and that the proper person to be sued, by virtue of theprovisions of section 456 of the Civil Procedure Code is the Attorney-General. On the other hand it is dear that sums deposited in the bankare not credited to revenue and section 52 provides for the investment ofsuch sums. Rule 27 of the above-mentioned rules appoints trustees ofall Post Office Savings Banks, one of whose duties is to invest surplusfluids on approved securities, to retain them or deposit in a selectedbank, and to realize such funds as may be required for the purposes of thebank. , It may be true that ultimately it may be necessary for a depositorto look to the Government for repayments of his deposits, as indicatedby the concluding words of section 55 which I have quoted above. Bethat as it may, in my opinion, the appellant’s cause of action is againstthe trustees appointed by rule 22.
On this point the appeal fails and it must therefore be dismissed. Imake no order as to costs.
ARNOLIS HAMY v. ATTORNEY-GENERAL