ATTORNEY-GENERAL v. ELLAWALA

004-NLR-NLR-V-29-ATTORNEY-GENERAL-v.-ELLAWALA.pdf


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Present: Garvin, Dalton, and Lyall Grant JJ.
ATTORNEY-GENERAL v. ELLAWALA.
In the Matter of an Application under Section 19 ofthe Courts Ordinance, No. 1 of 1889.
Proctor—Information filedby Attorney-General—Affidavitnot ad-missible—Powers ofSupreme Court—Member of Buddhist
TemporalitiesCommittee—Acceptanceofbribe—Misconduct
involving deceit—Courts Ordinance, No. 1 of 1889t s. 19.
Where, upon information filed by the Attorney-General, whichwas supported inter alia by an affidavit—which consisted of averification on oath of the statements recorded by a Superintendentof Police underChapter XII. of the Criminal ProcedureCode^-a
rule was issued by the Supreme Court on a proctor under section19 of the Courts Ordinance,—
Held, the Supreme Court had power to proceed with the investi-gation into the conduct of the proctor although the- affidavit wasnot admissible in ‘evidence.
The power of the Supreme Court to investigate charges againstmembers of thelegalprofessionis unfettered by rigidrules of
procedure relating to the initiation of such procedings or by anystrict definition of or limitation as to the nature of the materialupon which such proceedings may be founded.
Where a proctor, who was a member of the District Committeeappointed undertheBuddhistTemporalities Ordinance,accepted
a bribe for the purpose of procuring unfairly the lease of a templeland to an applicant for the same,—
Held, that hewasguilty ofgross misconduct involving deceit
within the meaning of section 19 of the Courts Ordinance.
O
N the application of the Attorney-General, who filed a petitionsetting out facts rendering Mr. Cyril Ellawala, the respondent,
a proctor practising in Ratnapura, liable to be dealt with undersection 19 of the Courts Ordinance, a rule was issued by theSupreme Court on the respondent to show cause why he should notbe suspended or removed from the office of a proctor. To the petitionwas annexed among other documents an affidavit sworn to byGuy Melville Boustead. The charge which the respondent had tomeet was that—being a proctor duly admitted and enrolled—he wasguilty of a deceit, malpractice, crime, or other offence within themeaning of section 19 of the Courts Ordinance, in that he beinga member of the District Committee of Ratnapura under theBuddhist Temporalities Ordinance did prior to the execution of alease in favour of Guy Melville Boustead wrongfully, unlawfully,
1988.
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1926. fraudulently, and deceitfully agree to accept, and thereafter didAttorney- ^ ftccept, a sum of Ks. 12,500 as a bribe, inducement, and grafci-Oeneral fication for dishonestly securing and obtaining the acceptance ofv. JSUawdla jjoustead's tender and the execution in his favour of the said leaseof 1,000 acres of temple land.
Allan Drieberg, K.C. (with him JB. L. Pereira and Canakeratrui),for the respondent.—The Attorney-General has launched theinquiry without investigation. It is based on an insufficient-affidavit following on certain statements made to a police officer.
The objections to the affidavit are—
Being evidentiary matter it must be a recital of facts in the
first person.
[Garvin J.—Is it your contention that these proceedings cannotbe initiated without an affidavit?]
In the present case the machinery of the Court has been set inmotion by affidavit. The production of the affidavit shows theintention to use it for the purpose of the proceedings (vide section182 of the Civil Procedure Code). You cannot use for a civil mattera statement made for an extraneous purpose (vide section 438,Civil Procedure Code).
[Garvin J.—Are you contending that if the affidavit is faulty therule should be discharged?]
Yes! As Mr. Boustead, whose affidavit is relied upon, is not inthe Island.
It does not set out the address and decription of the person.
It is a matter of express requirement that no person interested
in the subject matter of the affidavit should have theaffidavit sworn to before him.
1 Br. 170. See the dictum of Bonser C.J., ; also Mohideen v.Cassim.1 In re Bagley 2 shows the English practice. According tothe judgment of Bonser C-.J. the English practice is applicable.
It is submitted that the affidavit cannot be looked at for the pur-pose of the proceedings.
If the Attorney-General supports the rule issued with an inadmis-sible affidavit, the rule should be discharged.
By Chapter XII. of the Criminal Procedure Code, section 122
(3), statements made under it cannot be used lor other
purposes.
> 1 Br 280.
2 (1911) 1 K. B. 317.
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The affidavit is the production by the Attorney-General of astatement by Mr. Boustead in the course of proceedings made in the Attorney-course of an inquiry. It is utilizing the statement made to thepolice to which an affidavit is attached. If the statement isproduced simpliciter it is barred.
[The Court called upon the Solicitor-General to answer thepreliminary objection. ]'
Obeyesekere, Acting S.-G.—The Supreme Court is not bound by therestrictions imposed by the Civil Procedure Code. See section 5 ofthe Code; in an inquiry such as this conducted under the CourtsOrdinance.
The affidavit contains virtually the sworn testimony of Mr.
Boustead. It may touch the evidentiary value of the affidavit.
It is not a statement made under Chapter XII.
Tour Lordship’s Court can exercise jurisdiction upon a letterindependently of section 120.
[Dalton J.—But a rule of evidence which is involved in theobjection binds this Court.]
The statement is incorporated in an affidavit.
[Garvin J. intimated to counsel that the Court was of opinionthat the proceedings were initiated upon sufficient material, butthat the affidavit was inadmissible as evidence.]
The evidence was then recorded.
Dnebergt K.C. (continuing).—Although the Supreme Court hasgeneral disciplinary powers, yet it must restrict itself to the specificcharge under consideration. If the charge is entirely a differentone, Your Lordships will direct the machinery of Court against therespondent in a different investigation, because otherwise the defencewould be greatly embarrassed.
Disciplinary powers were exercised when the rule was issuedto show cause. That stage has now passed, and the Court is sittingto investigate on a definite charge. The disciplinary powers mustbe confined to section 19 of the Courts Ordinance, and should notgo further than that section. The section states how it can beexercised and when.
There is nothing wrong in proctors receiving commissions. (Seethe Law Times of March 13, 1926, where an advertisement appearsthat share brokers will share commissions with solicitors.)
Section 19 contemplates deceit, malpractice, crime, or otheroffence, and goes no further.
In Ceylon, unlike as in England, an agent receiving money, &c.,is not guilty of a crime or other offence unless he is a public servant.
“ Malpractice ” would suggest anything wrong done by a person
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1M6. in the exercise of his duties as an advocate or a proctor. It mayAttorney- extend to wrong acts done outside the profession only in cases whereGeneral there i6 evidence to show that he was employed solely because hep. EUawata an advocate or a proctor. Archbold’s Q. B. Practice, vol. I.*p. 177.
The Court will take notice where the conduct in question is onein his capacity as solicitor, and also outside it, if it is proved thathe* was employed owing to the fact that he was a solicitor.
In re Chandler.1 is a similar case. Trustee and solicitor. Thesolicitor was appointed a trustee merely because he was a solicitor.
Here there is no evidence to suggest that Ellawala was createda member of the committee because he was a solicitor.
The disciplinary powers of the Supreme Court must be confinedto the four corners of the section. This is evident by comparingthe present section with the corresponding section of the oldOrdinance. Under the old section the Supreme Court can exercisedisciplinary powers upon “ reasonable grounds, ” unlike as undersection 19 of the Courts Ordinance.
Obeyesekere, Acting S.-G. (with him Fonseka, Acting C.C.).—Theword " any ” in the section is important. Any deceit, malpractice,&c., shows that the Courts must follow the English practice. Itmeans deceit or malpractice, Ac., either within the profession orout of it.
Counsel commented on section 90 of the Trust Ordinance.
Audrey on Solicitors, 2nd ed., p. 152—jurisdiction of the Court. is not confined to acts done within the profession.
In re Weare.2 Re HUP—misconduct before admission is sufficientto entitle the Court to suspend or cancel the licence.
In re BeaJce 4 was cited. Re A Solicitor5—solicitor carrying ontrade of a bookmaker was deemed to be guilty of misconduct.
Driebergt K.G., in reply—The cases cited by the Crown can all bedifferentiated from this case. They are either (1) instances ofsolicitors guilty of misconduct outside their profession when employedin a capacity on the sole ground that they were solicitors; or (2)cases in which the Court interfered because they were convicted of anoffence; or (3) case in which solicitors engaged themselves inoccupations which the law specially prohibits.
Cur. adv. vult.
3
4
4 {1905) {93 Law Times) 838.
{1868) L. T. 564.{1861) L. J. 13, 32.
25 L. J. {Chan.) 39.
{1893) Q. B. D. 2,439.
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The Court delivered the following order:—
May 20, 1926.
This is a proceeding for the suspension or removal from office ofCyril Ellawala, a proctor of the Supreme Court, on the ground thathe has been guilty of conduct which renders him liable to be dealtwith by this Court under the provisions of section 19 of the CourtsOrdinance, No. 1 of 1889.
It was initiated by. the Attorney-General, who on March 10filed a petition in which was set out the facts which it was allegedrendered the respondent liable to be dealt with'Tinder the provisionsof the Ordinance above referred to. To the petition were annexedthe record of the District Court of Ratnapura bearing No. 4,373,an affidavit sworn to by Guy Melville Boustead, and copies of thedocuments marked A, B, C referred to in the petition.
In pursuance of a rule issued by this Court, Cyril Ellawalaappeared to show cause against his suspension or removal fromoffice.
A preliminary objection was raised by his counsel to the affidavitannexed to the Attorney-General's petition. It was urged thatit was defective and inadmissible in evidence for the following
reasons : —
It did not give the address of the informant.
It was not in the first person.
It was not entitled as of the proceeding in • which'it was to be
used.
It was sworn to before the Assistant Superintendent of Police
who made inquiry in the matter, and who for that reasonwas said to be an interested party.
It was in effect a verification on- oath of statements made in
the course of an inquiry under Chapter XII. of the CriminalProcedure Code, which in themselves were not admissiblein evidence except for the limited purposes specified insection 122 of that Code.
Upon these submissions was founded the further argument thatthe rule issued on material of which this affidavit formed a partshould be discharged. It was conceded by counsel that a rulemight have been issued on the information of the Attorney-Generalunsupported by any further material. This concession is fatal tothe preliminary objection. The written information of the Attorney-General was before this Court when this rule was issued, and it issupported in Court by the Silicitor-General. The power of thisCourt to investigate charges against members of'the legal professionis unfettered by rigid rules of procedure relating to the initiationof such proceedings or by any strict definition of or limitation as
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to the nature of the material upon which alone such proceedingsmay be founded. Whenever in the opinion of this Court an occasionhas arisen to investigate a charge against an advocate or proctorwhich, if true, renders him liable to suspension or removal fromoffice it has the power to initiate proceedings for the investigationof the charge. It is essential, not only in the interests of theprofession, but of the public, individual members of which areconstrained daily to commit their most vital interests to membersof the legal profession, that cases of misconduct, and especially ofdishonourable conduct, which come under or are brought to thenotice of this Court should be fully investigated, and thattheir investigation should not be hampered or burked by meretechnicalities. The rule issued in this case is well founded, andas we intimated to counsel at the hearing this preliminary objectionmust be rejected.
The next objection raised on behalf of the respondent was tothe reception in evidence at the inquiry into the charge againsthim of the affidavit of Guy M. Boustead. It transpired that thisgentleman had left the Island, and that there was no prospect ofhis returning to the Island for the next two and a half years. Itis for the Court to decide whether it will order the proof of factsby affidavit. The serious nature of the charge made against therespondent, and the fact that such an order if made will deprivehim of the right of cross-examination, are factors which will justifya refusal to make such an order. But the objection is pressedon another ground as well. The affidavit is not a statement offact, but a mere verification on oath of the facts recorded in twostatements annexed to the affidavit. The evidence of Mr. Peiris,Assistant Superintendent of Police, shows that these are the originalstatements recorded by him in the course of an inquiry held underChapter XII. of the Criminal Procedure Code. Mr. Peiris obtainedthe sanction of the Police Court and vested himself with the rightto exercise the powers conferred on an inquirer under Chapter XII.,and these statements were recorded by him in pursuance of thosepowers.
• The law prohibits the reception in evidence of such statements,except for the purposes specified in section 122 of the CriminalProcedure Code. It is not sought to use the statements for eitherof the specified purposes. The proposal is -to give them as. affirmativeevidence of the facts stated therein. The statements are clearlynot admissible for that purpose. It was contended by the Solicitor-General that they are admissible as part of the affidavit of whichthey must now be deemed to be part. The Solicitor-General is inno better position than if Mr. Boustead were present and statedin evidence “ I swear that the statements made by me to Mr.Peiris and recorded by him are true. I produce the original record
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made by Mr. Perns.” In that case counsel would surely be entitledto object to the production of the statements and to their receptionin evidence. The fact that Mr. Boustead is absent but makesexactly the same statement in an affidavit cannot affect the re-spondent’s right to have the statements excluded from cbnsideration.
This objection was entitled to prevail and was upheld. Itremains for *us to consider whether the evidence led by the Solicitor-General establishes the charge laid against the respondent, and if sowhether it is a charge which renders him to be dealt withunder the provisions of section 19 of the Courts Ordinance.
The charge which the respondent was required to meet is asfollows: —
That he being a proctor duly admitted and enrolled has beenguilty of a deceit, malpractice, crime, or offence within themeaning of section 19 of the Courts Ordinance, No. 1 of1889, in that he being a duly elected member of theDistrict Committee of Ratnapura constituted in accord-ance with the provisions of the Buddhist TemporalitiesOrdinance, No. 8 of 1905, did prior to the execution of- alease bearing No. 506 attested by W. E. Peiris, NotaryPublic, in favour of Guy" Melville Boustead wrongfully,unlawfully, fraudulently, and deceitfully agree to accept,and thereafter in the month of October, 1925, did in factaccept, from the said Guy M. Boustead a sum of Rs. 12,500as a bribe, iducement, and gratification for dishonestlysecuring and obtaining for the said Guy M. Boustead theacceptance of- his tender and the execution in his favour’ ofthe said lease of 1,000 acres out of the temple land calledand known as Galatura Nindagama.
The respondent is a proctor; he is also, and at all times materialto this charge was, a member and secretary of the District Committeeconstituted under the Buddhist Temporalities Ordinance, No. 8 of1905, for the District of Ratnapura. Potgul Vihare is a temple inthe District of Ratnapura, and among the temporalities of thatvihare is a large tract of land of about 5,000 acres known as theGalatura Viharagama, situated in the District of Ratnapura.Early in 1925 it was decided to lease the lands comprised in theGalatura Viharagama. Mr. Martin, a proctor practising in Kalutaraand a gentleman of considerable wealth, heard of the proposal tolease these lands. He requested one Dissanaike to make inquiriesfor him, and himself paid two visits to Ratnapura. On his first visithe met Marambe Ratemahatmaya, who is also a member of theDistrict Committee.' On the second occasion he saw and spoke toMuttetugama Ratemahatmaya, the President of the DistrictCommittee. R. B. Dissanayake, who was acting for Mr. Martin, fixes
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Generalv. EUawala
Mr. Martin’s visit as having taken place in February. At that timeBennet Abeyesekere was negotiating a lease of these lands to aDr. Philip of Kalutara. Dissanaike went to see the respondent,Mr. Cyril EUawala, in the company of a Buddhist priest. Mr.EUawala informed him that Bennet Abeyesekere had made anapplication on behalf of Dr. Philip, and that he would first see Dr.Philip and then see Mr. Martin. Dissana^ake says that, on one ofhis visits with the priest, Mr. EUawala said that the rent would beBe. 1 per acre for the first five year3 and thereafter Es. 2 per acre,and added that Dr. Philip was prepared to pay Es. 15,000 to theCommittee for the trouble they were taking.
Dissanaike says that he travelled with Mr. EUawala to Colombo.On their way they picked up Bennet Abeyesekere and visitedDr. Phihp. He stayed outside in the car, while Mr. Ellawalaand Abeyesekere went in. They returned after a while and saidthat everything was all right.
Mr. Martin tells us he decided not to pursue the matter further,and negotiations were broken off. The evidence of Mr. Martin wasnot challenged, and is unimpeachable. Dissanaike is now a poorman, having lost heavily in gemming, but nothing has been elicitedin the cross-examination to which he was subjected which shakeshis credit. He is a witness whose evidence can be accepted andacted upon without any hesitation. This evidence establishes thatearly in 1925 it was decided to lease the Galatura lands; that Mr'.EUawala was actively interesting himself in securing lessees forthose lands; that Bennet Abeyesekere was in touch with him; thathe (Mr. Ellawala) had decided that the rent for the lease should beEe. 1 per acre for five years and thereafter Es. 2; and that in im-parting this information to those who were acting for Mr. Martinhe made the significant observation that Dr. Philip had promisedto pay the members of the District Committee Es. 15,000 for theirtrouble.
In June Mr. G. Boustead, who met Mr. J. L. B. Crozier in thecourse of business, intimated to him that he wished to buy or leaseland, and requested him to inform him if it came to his knowledgethat land was available.
Crozier met Abeyesekere, who told him of the proposal to lease1,000 acres of land belonging to the Potgul Vihare; that he had gotthe information from Mr. Cyril Ellawala and was acting for him.He asked for particulars, and Abeyesekere wrote him the letter A 1of July 22, 1925. That letter gives particulars of the title, extent,transport facilities, and then there appears the foUowing: —
Tender Es. 20,000 as premium,, thereafter Ee. 1 per acre forthe first five years, thereafter Es. 2 per acre for theremaining period.
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Tiie rent of Be. 1 per acre for the first five years and thereafterat Bs. 2 is the same as the rent for which Cyril Ellawala stipulatedin the conversation to which Dissanaike refers. Bennet Abeye-sekere says he got the information from Mr. Ellawala, who askedhim to secure a lessee, and on this point there is no reason to dis-believe him, nor is there reason to doubt that he was acting forEllawala in trying to secure a lessee, as he is shown to have beendoing in the case of Dr. Philip.»
Crozier conveyed the information to Mr. Boustead, who wasinterested and desirous of pursuing the matter. Abeyesekere andCrozier then went together to see Mr. Boustead. ; There is a conflict-of evidence as to what was told Mr. Boustead about this sum ofBs. 20,000.
Crozier’s version is that Abeyesekere explained that Bs. 15,000had to .be paid to five persons—the incumbent of Potgul Vihare,his brother, and the three members of the District Committee; thebalance sum of Bs. 5,000 was to be Abeyesekere’s commission.
On the other hand, Abeyesekere maintains that the whole sum ofBs. 20,000 was to be his commission computed at the rate of Bs. 20per acre. 'Whatever may have been said to Mr. Boustead, there isvery little doubt that Abeyesekere did say to Crozier that the sum•of Bs. 20,000 was to be applied as to Bs. 15,000 in payments to thefive persons mentioned and as to the balance to himself as commission.The letter A1 commences with the statement " The particulars ofthe 1,200 acres are briefly as follows." Lower down in the sameletter occurs the passage " Tender Bs. 20,000 as premium." Thesewords, says Abeyesekere, were intended to convey the meaning thatthe sum of Bs. 20,000 was the commission payable to him. Theexplanation is absurdly untrue. In all probability the trueexplanation is that Abeyesekere was not prepared to commit topaper the real purpose towards which so large a part' of theBs. 20,000 was to be applied. One thing is clear on the face of theletter—the sum of Bs. 20,000 was not the result of a computationat Bs. 20 per acre because his letter refers to " the 1,200 acres."
Abeyesekere admits that he agreed to give Crozier half his com-mission, and says that amount was to be Bs. 10,000; Crozier dayshe was to receive half Abeyesekere's commission of Bs. 5,000 or,Bs. 2,500. After the transaction had been put through Abeye-sekere gave Crozier the letter A2 addressed to Mr. E. L. F. deSoysa, with whom Abeyesekere had deposited the money he received,requesting him to pay Crozier Bs. 2,400. This,- Crozier says, washis half share less a sum of Bs. 100 claimed by Abeyesekere aspart of the ‘ expenses incurred. This letter strongly supportsCrozier’s statement. Abeyesekere admits he wrote this letter, butseeks to escape from the inference to which it gives rise by means
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of a very lame explanation. He says that, he decided to pay onlyRs. 2,400 to Crozier because he had not done as much as he shouldhave done. It was Crozier who introduced him to Mr. Boustead,and it is evident that Crozier did all that he could be expected to do.When asked in what respect Crozier had failed to do his partAbeyesekere could give no explanation and sought another avenueof escape. He said Crozier had tricked him out of his dues in someother transaction. Abeyesekere was palpably lying. Whetherthe statement be .true oifalse in fact, there can be no question hedid tell Crozier that Rs. 15,000 was to be applied in payments tothe temple authorities and the District Committee, and that thebalance Rs. 5,000 was to be divided between them. There is noreason why Crozier should abandon three-quarters of his claim ifindeed the agreement was that his share was to be Rs. 10,000,particularly when it is proved that Abeyesekere countermanded theorder A2 and Crozier still remains unpaid. Moreover, there is theinherent improbability that so large a sum as Rs. 20,000 would bepaid as legitimate commission or brokerage.
iCrozier asserts that Mr. Boustead was told by Abeyesekere bowthe sum of Rs. 20,000 was to be applied. Abeyesekere says hestipulated for a payment of Rs. 20 per acre “ for procuring theexecution of the lease/' Herbert Fonseka, a proctor, who cameinto the matter at an early stage, supports Crozier, in that he saysa similar statement was made to Mr. Boustead in his presence,Crozier says that the statement was repeated at the office of Messrs.Julius and Creasy, a firm of solicitors, when the parties met thereto take the opinion of Mr. Hughes, a member of the firm, as to titleand that Mr. Hughes was present. Mr. Hughes, who was called forthe defence, says he never heard such a statement being made.Either the statement was made and not heard by Mr. Hughes, or itwas not made at all. It is urged that neither Crozier nor Abeye-sekere would ever have made to Mr. Boustead' a statement whichwas in effect an admission that the bulk of the sum of Rs. 20,000was to be applied in bribery. Mr. Boustead is unfortunately nothere. His version is not before us, and under all the circumstanceswe think the evidence as to the exact terms of the statement madeto him should be treated as inconclusive.
The evidence in the case shows that the usual rate of commissionis two and a half per cent, in the case of a sale computed on thepurchase price, and in the case of the lease on the total amountpayable by the lessee for the whole term of the lease. On thisbasis the commission ordinarily payable on this transaction wouldbe Rs. 2,370. Mr. Boustead agreed to pay, and has in fact paid,about nine times the amount usually payable as commission.Why? Mr. Boustead knew that this land was the property of aBuddhist temple. He must have known what is common knowledge
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in this Colony, that such land is vested by law in a trustee controlledby the District Committee. What need was there to promise topay this exorbitant sum to any person for negotiating a leasewhen the trustee and District Committee were bound to considereach application honestly and on its merits?
Now, about the time when negotiations with Mr. Boustead andAbeyesekere commenced, upon an application made to the DistrictCourt to authorize a lease of 500 acres out of the Galatura Vihara-gama to Messrs. D. and R. Doulatram, two Indian gentlemen, theDistrict Judge intimated that tenders should be called for.This was on July 30. The District Committee and the trustee tookaction accordingly, and advertisements were inserted in certain localpapers calling for tenders for the lease of 1,000 acres of the.Galatura Viharagama. So that early in the 0001*86 of the nego-tiations to which. Mr. Boustead was a party it was known thattenders were being called for which would be received up to Sep-tember 12. Ultimately Mr. Boustead authorized Crozier to tenderfor him, and on September 11 Crozier went to Ratnapura and pre-sented a tender on his behalf.
Why Mr. Boustead should have undertaken to pay AbeyesekereRs. 20,000 if the tender he made through his agent Crozier shouldhappen to be selected and a lease granted upon the terms proposedin his tender it is impossible to understand, except upon theassumption that there is significance in Abeyesekere *s statement thatit was to be paid to him for “ procuring the execution ofthe lease/’
When Abeyesekere acting with Crozier communicated to Mr.Boustead the information that' the Galatura lands were to beleased, its extent, situation, nature of the title, and other likeparticulars and accompaned Mr. Boustead to the land for the pur-pose of inspecting it, he did all that he could honestly have done.It i6 idle to suggest that so large a sum as Rs/20,000 was to be theremuneration for these services.
Whatever the actual terms of the statement to Mr. Boustead,the circumstances pointstrongly to the conclusionthat heat least
had reason tobelievethat a considerable partof thesumof
Rs. 20,000 was not legitimate commission but was to be applied ininfluencing those in whose power it was to grant or refusea lease.
Among those who submitted tenders was Mr. Proctor Martin.He sent in a tender asking for a lease in favour of himself and aMr. Fernando,who Mr. Martin described as therichestmanin
Ealutara. Mr.Martintook the precaution of .sending acopyof
his tender to the District Judge. This copy shows that whereasMr. Boustead was prepared to pay Rs. 1 per acre for the first five
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years and Rs. 2 per acre thereafter, Mr. Martin was prepared to payRs. 8 per acre for the first five years and thereafter Rs. 6 per acre ofplantable land.
Mr. Boustead's tender was accepted.
In due course an application was made to the District Court forits authorization, and to this application was attached in a sealedenvelope the tenders received in response to the notice. The Dis-trict Judge has no recollection .of having seen amongst them thetender of Mr. Martin. They remained in the sealed envelopetill the envelope was opened again for the purposes of this inquiry.It was not amongst the tenders. The District Judge has no clearrecollection whether the envelope tendered with the application waseven opened by him. If it was , he says it was re-sealed. Theseals now on the envelope are not the Judge's seal. His impressioni6 that they still bear the seals with which they were sealed whenthey were submitted to Court. Mr. Martin did send a tender to thebhustee, and the trustee tells us that in accordance with the instructionsof the committee he took the envelopes unopened and handed themto Ellawala. He heard of Mr. Martin’s tender for the first-time in Court. It is said that if such a tender was receivedit would be idle to suppress it when it was known that the Judgehad received a copy. But did Mr. Cyril Ellawala know that?It is true the trustee’s proctor, Mr. Goonewardene, was aware of it,but there is evidence that he fell ill about that time and no evidencethat he communicated his knowledge to Mr. Ellawala.
The District Judge tells us that when the trustee’s applicationcame before him the fact that Mr. Martin had sent in a tender wasrecalled to his mind and he had it brought up for consideration.Mr. Ellawala was present in Court instructing the trustee's proctorto press for the approval of the lease to Mr. Boustead. Mr. Martin'stender was objected to on the ground that he only wanted the“ plantable ” area, whereas Mr. Boustead was prepared to accept1,000 acres, taking the good land with the bad. Mr. Martin sexplanation is that he heard there was an area of solid rock whichwould grow nothing, and he only wanted that area excluded. Itwas urged before the District Judge that there was a challenge ofthe temple title, that Mr. Boustead had undertaken to pay the costof any litigation he may have with persons asserting title againstthe temple out of his own pocket and take the risk of eviction.It was also urged that Mr. Boustead's standing was an assurancethat the estate would be well developed and well maintained. TheDistrict Judge approved the lease to Mr. Boustead. As to the lastof these points made by the trustee’s proctor under Mr. Ellawala’sinstructions, Mr. Dharmaratne, a senior proctor of Ratuapura,
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who often acts as the District Judge, and whose partner, Mr. Goone-wardene, acted for the trustee in this very matter, says that heknew Mr. Martin and his standing and would himself have had nohesitation in accepting Mr. Martin as lessee. The lease to Mr.Boustead “gave him the right to select and demarcate 1,000 acres-outof the Viharegama. Such a concession is more than Mr. Martinever asked for. It contains an express covenant by the lessor towarrant and defend title, and not a word to suggest that the cost oflitigation was to be found by Mr. Boustead or that he had agreedto take the risk of eviction. The lease is in the usual form, and givesMr. Boustead all the rights and remedies of a lessee. Mr. Cyril Ella-wala is found instructing the trustee’s proctor to inform the Judgethat Mr. Boustead had taken upon himself liabilities and risks ofan extraordinary character, whereas the written record of the agree-ment says no such thing. What it does say, legally construed, isthe exact opposite of what the Judge was told.
Despite Mr. Martin’s standing and the handsome rent he offeredto pay, there was no pause to consider his tender or make any inquiryif further inquiry was thought to be necessary. It w&s imme-diately opposed by Mr. Ellawala, and Mr. Boustead's tender stronglypressed upon the Court for reasons which do not bearscrutiny.
Mr. Ellawala has elected not to give us an explanation of hisscrutiny.
October 1 was appointed for the executionof the lease.
Crozier was informed that Mr. Boustead would travel by trainand wished to be met at Avissawella. He and Mr. Ellawalatravelled from Batnapura to Avissawella by motor. They met Mr.Boustead at the Avissawella Resthouse and journeyed back toBatnapura in the car—Mr. Ellawala and Mr. Boustead occupiedthe back seat. This is the first time Mr. Ellawala is broughtby the evidence into direct touch with Mr. Boustead. On-arrival at the Batnapura Eesthouse, Crozier says he was told byEllstwala to wait downstairs as he wished to speak privately withMr. Boustead, with whom he then went upstairs.
A short while later Mr. Peiris, a proctor and notary, arrived andthe lease was executed. Mr. Boustead, who had omitted to bringhis cheque book, wrote out three orders on his Bankers, the NationalBank of India, on ordinary paper. One of these plain paper chequesfor Bs. 2,000 he handed to the trustee, being payment in advanceof rent for two years; another for Rs. 12,600 he handed to Mr.Cyril Ellawala; and the third for Bs. 7,600 to Bennet Abeyesekere.After the transaction was completed Mr. Boustead left for Avissa-wella by motor accompanied by Mr. Ellawala and. Proctor Fonseka.They went to the resthouse. Mr. Fonseka says that as they were
1926
Garvin,
DALTON,AND LYAIL
Grant JJ.
Attorney-Generalv. EUaioala
( 26 )
1926
Garvin,Dalton,and Lyau,Grant JJ,
Attomey-Qeneralv. Ellawala
about to leave he commenced to enter their names in the resthousebook. He entered his name and Mr. Boustead's name, and wmsabout to enter Mr. Ellawala's name when he was seized by thearm by Ellawala, who asked him not to enter it. He says he hadactually written the first two letters of the Jiame Cyril. Visitorsare requested to sign the rest-house book, and it is the usual thingto do so, though it is not invariably done. It is not a mere recordof names of those who visited the resthouse, but is a book in whichis entered against each name the amount of resthouse chargeslevied. The book shows that on October 1 Mr. Herbert Fonsekaand Mr. Boustead were in the resthouse. In the next line appearsa name, Piyadasa. It is not the name of anyone connected withthis case. Then appears the name Crozier. He was not amember of the party, and if he came in it must have been later.Jt is quite clear that the name Crozier was written over what lookslike a capital C and a small y in another handwriting. They do nobappear in the line occupied by the name Piyadasa as one mighthave expected. Fonseka’s explanation is that his sight is bad–lie wears rather powerful lenses—and that he probably passed overa line. The lines are fairly close together, and this is probablya true explanation. The record speaks for itself. It supportsFonseka. The names of Mr. Fonseka and Mr. Boustead appear inthe book. There is also the indication that a C and a y werewritten in the line now occupied by the name Crozier. Mr. CyrilEllawala was there, but his name is not entered. Presumablybecause he did not wish it to appear.
Mr. Boustead travelled to Colombo by train. Mr. Fonseka andMr. Ellawala travelled with him. The next morning Mr. Fonseka byarrangement went to Mr. Boustead’s office at about 9.30. He metMr. Ellawala and the trustee coming downstairs. Each of themhad a cheque. He stopped them and asked Mr. Ellawala for thenumber of the cheque in favour of the trustee as he wanted thenumber for insertion in the attestation clause. He saw a chequefor Rs. 2,000 on the National Bank in favour of the trustee andin Mr. Ellawala’s hand a cheque for Rs. 12,500. These cheques hadobviously been given in exchange for the plain papercheques.
Abej’esekere also came to the office and received a cheque forRs. 7,500 in exchange for his plain paper cheque. The followingcheques signed by Boustead Bros, have been produced: —
F 587084 cash or bearer Rs. 12,500.
F 587085 K. C. Dhamasekera Rs. 2,000.
F 587087 B. Abeyesekere Rs. 7,500.
They all bear the same date-^October 2, 1925. They have all beencashed. K. C. Dhamasekera is the trustee.
( 27 )
It will be noticed that the first cheque is for Es. 12,500 and thevery next in the series is the cheque in favour of the trustee. Therecan be no doubt that this cheque F 587084 for Bs. 12,500 is the oneFonseka saw in Ellawala's hands. This cheque bears Mr. Boustead'sendorsement. Counsel urged that if this cheque was cashed byEllawala it would according to the practice of the bank have bornehis signature as well. He suggests it could only have been cashedby Mr. Boustead. Whether Ellawala handed in the cheque andbeing known to the bank received payment himself, or whether helater met Mr. Boustead who obtained the cash for him we do notknow. But there can be no real doubt that the cheque producedwas cashed and the proceeds found its way into Ellawala's hands.
■ That very day he is shown to have paid Es. 3,000 in cash as partpayment for a motor car. The absence of his name on the backof this cheque is in harmony with its absence from the resthousebook. This, it is said, is not conclusive. It is strong prima facieevidence. But what is conclusively proved is that at the executionof the lease Mr. Ellawala received a plain paper cheque forEs. 12,500 out of the Es. 20,000 promised by Mr. Boustead.Abeyesekere has received the balance Es. 7,500, and thereis not the slightest reason to doubt that Elllawala has hadBs. 12,500 cash. He has not denied it.
These are the principal points in the case presented against theproctor. The witnesses, Crozier and Fonseka, have been vigorouslyattacked in cross-examination, Crozier is an uncertificated bank-rupt, and he has been committed to jail on civil warrants. Hewas at one time a broker, and he says his certificate was refusedbecause he did not keep books. He claims to have settled withhis principal creditors and that he has only a few minor debtsoutstanding. He has not. been frank with Mr. Boustead; heconcealed from him the fact that he was to get from Abeyesekerehalf this commission of Es. 5,000, and arranged for Es. 1,000 forhimself,' which he was paid. These circumstances and otherblemishes in his evidence have been given the weight which theyare entitled to receive. Having carefully considered and examinedhis evidence we are satisfied that this story in the main is true.Much of the story cannot but be true. On all points of importancehis evidence has been explored and examined in relation to thewhole case and may safely be acted upon to the extent indicatedin that examination. Crozier has no motive for giving false evidencewith intent to implicate Ellawala. Mr. Fonseka is a proctor whosename is on the rolls. His record is not a good one. But hiscontribution to the case against Ellawala is. not considerable.On those points his evidence is so strongly supported by other factsand circumstances that there is no reason to reject it.
1926
OAsm,
Dalton,
and Lyalc.Grant JJ.
Attorney-Generalv. Ellawala
( 28 )
1926
Gabvin,Dajlton,AND LyALI*
Grant JJ.
Attorney*Generalv. EUaw ala
.Bennet Abeyesekere was an obviously untruthful witness. _ Atthe time of this transaction he had been adjudicated an insolventfor the second time. He admits to having been fined Rs. 5 forbringing a false charge. He was called by the Solicitor-Generalwith the knowledge that he had sworn an affidavit which was inthe hands of the respondent. His evidence does not advance thecase against Ellawala, except to the extent that he supports Mr.Fonseka's statement that a cheque for Bs. 12,500 written on aplain piece of paper was handed by Mr. Boustead to Mr. Ellawala.The leading feature of his evidence is his statement that Mr. B.ous-tead did this at his request as a payment by him to Mr. Ellawala.Mr. Ellawala, he says, had from time to .time lent him money andhad Otherwise shown him much kindness, so he decided to pay himBs. 8,000 which he owed him and to give him an additional sumBs. 4,500 to mark his gratitude. There is no record of any ofthe loans which go to make up this debt of Bs. 8,000. It is notshown in the statement of assets and liabilities filed by him in theinsolvency proceedings. Mr. Ellawala did not prove for thisamount, or at all in those proceedings. The debt, says Abeyesekere,was' barred by limitation. His outstanding liabilities to creditorsas shown by him in the insolvency proceedings is Bs. 12,500. Heforgot his creditors, he forgot the arrangement he says he madewith Crozier to pay him Bs. 10,000 out of this very sum ofEs. 20,000, and pays Mr. Ellawala Bs. 12,500, partly in settlement ofmoral obligations to the extent of Bs. 8,000 and as to Bs. 4,500 as agift. Further comment is unnecessary. It is sufficient tosay that such a story, particularly when it proceeds from the lips of awitness who has so strongly impressed us as utterly unworthy ofcredit, is one which we cannot accept.
Crozier and Abeyesekere were the intermediate links betweenMr. Boustead and Mr. Ellawala, who did not come into direct touchuntil the day on which the lease was executed. Abeyesekere’sconnection with the matter of the lease of Gallitura lands commencedearly in the year. He was given the information by Mr. Ellawalaand was requested by him to secure a lessee. It was Abeyesekerewho was in negotiation with Dr. Philip, and Mr. Ellawala is provedto have actively interested himself in the mater to the extentof going down to Colombo to see Dr. 'Philip accompanied byAbeyesekere.
It is Mr. Ellawala whb is approached by Dissanaike and thepriest. He tells them what rent is expected, and makes the signi-ficant observation “ Dr. Philip is prepared to pay the members ofthe Committee Bs. 15,000 for their trouble.” Crozier and Abeye-sekere get into touch, and Abeyesekere tells Crozier that Bs. 15,000out of the sum he wanted from a lessee was to be paid to five persons,of whom three were the members of the District Committee. The
( 29 )
trustee was called as a witness and gave evidence. He was anordinary Sinhalese villager, poorly clad, and obviously a person ofpoor standing. Yet he is the trustee of this temple and vested withthe care of its valuable temporalities. Let him speak for himselfas to his appreciation of hie own position. The committee orderedhim not to open the tenders. He did not open them. He was teldto deliver the tenders to the committee. He handed them toMr, Cyril Ellawala. His own estimate of his part In this affair iscontained in his words “I did what the District Committeeordered me to do/' The man is a cypher. The transaction wasentirely in the control of the committee.
Abeyesekere is next brought into touch with Mr. Boustead, whoagrees to pay Es. 20,000 to him for procuring the execution of thelease. Is it conceivable that Abeyesekere did not proceed to ensurefor himself the large share which he intended for himself bycontriving the acceptance of Mr. Boustead’s tender? A number oftenders were received. Mr. Boustead’s tender was accepted despitethe fact that Mr. Martin had made a tender at a far higher rental—a tender which at least merited some inquiry as to what he meantby “ plantable ” land. The District Judge is moved for sanctionand the tenders are forwarded with the application. Mr. Martin’stender was not amongst them. It is the District Judge who isreminded of Mr. Martin’s tender and brings it up for consideration.Mr. Ellawala instructs the trustee’s proctor to oppose its accept-ance and to press for the acceptance of Mr. Boustead's tender.He instructs him to urge reasons which are inconsistent with factsand obtains the District Judge’s assent. '
On the day appointed for the execution of the lease he is in closecontact with Crozier and goes to Avissawella to meet Mr. Bousteadand accompanies him to Ratnapura. He receives a plain papercheque from Mr. Boustead for Bs. 12,500. He accompanies Mr.Boustead to Avissawella Resthouse. There he contrives that hisname shall not appear in the visitors book. He travels to Colombowith Mr. Boustead and obtains a cash cheque for Es. 12,500 andlater cash.
These are the proved facts. What other conclusion do theylead to than that Mr. Ellawala had agreed with Abeyesekere, whowas Mr. Boustead’s agent, in consideration of a gratification toprocure the acceptance of Mr. Boustead’s tender and the executionof a lease to his favour. The tender was accepted, and Mr. Ellawalais shown to have successfully induced the Court to approve thetender by urging reasons which have already been fully stated. andexamined. He then gets into touch with Mr. Boustead, and possiblyin consequence of a very natural distrust of Abeyesekere gets directfrom Mr. Boustead a cheque for Es. 12,500, the gratification which
1928
Garvin,
Daiton,
AND L7ALL
Grant JJ.
Attorney -Generalv. Ellawala
( 30 )
1926
Garvin,
Dai»ton,
AND LYAIAGrant JJ.
Attorney-Generalv. EUawala
he had earned and in amount very little short of the sum ofBs. 16,000 which he said the Committee had been promised by Dr.Philip.,
At the close of the case presented by the Solicitor-General, counselfor the respondent intimated that he did not propose to call hisclient. After consultation we decided in fairness to the respondentto invite him to consider again whether this was not a case in whichthe respondent should give us the beneUt of his explanation.After a brief consultation between the respondent and his legaladvisers we were informed that it was decided that the respondentshould not enter the witness box and would take his stand uponhis strict legal lights. It was contended that no case had beenestablished. We cannot agree. The respondent has had everyopportunity to place his explanation before us. He has elected notto do so. On the evidence before us we are of opinion that the chargeagainst him has been established.
We should perhaps mention that at the commencement of theseproceedings counsel submitted certain affidavits which he said hewould move to read. Very shortly afterwards he desired to with-draw them, and did so with our leave in pursuance of his decisionnot to make any admission or concession and to ask that the chargebe proved against his client.
It only remains to consider the submission that the charge, evenif it be held to have been established, does not bring this case withinthe words “ any deceit, malpractice, crime, or offence/* It iscontended that in the present state of the law the acts ascribedto the respondent in the charge do not amount to a crime or offence.His conduct, had he been a public servant, would have rendered himliable to prosecution and conviction under the Penal Code of theColony. He is not a public servant, but the position he occupiesis none the less one of great trust. Indeed, he is a member of acommittee constituted by law and vested with large powers designedand directed to protect Buddhist Temporalities and ensure thedue administration of such property by the trustee in whom itis vested.
i
A special provision prohibits any lease by the trustee except withthe sanction of this committee. In this very matter, in respect ofwhich the law vests in District Committees a special supervisorypower over the trustee, the respondent, in gross breach of the trustreposed in him, accepts a bribe to advance the interests of oneapplicant when his plain duty was to secure the best possible termsfor the temple;* he is proved to have deceived the Court, and I haveno doubt the trustee, and possibly the other members of the com-mittee, and in the matter of his attitude towards Mr. Martin’stender to have acted in flagrant disregard of the very interests he
( 31 )
was there to protect. It is a question whether he placed it beforethe other members of the committee. He did all this to the endthat he should ensure for himself the money he received at thecompletion of the transaction.
If he has not brought himself within the grip of the criminal law,he is proved to have been guilty of grossly dishonourable andreprehensible conduct. We leave it to the authorities to considerwhether this case does not show that there is a real need forlegislation on the lines of the Corrupt Practices Act.
It is said that he has not misconducted himself in the characterof a proctor. We cannot admit that no matter how dishonourablya proctor may be proved to have acted he is not amenable as longas he was not acting in the character of a proctor. In the case ofFrancis Blake/ a solicitor, it was contended that the fraud whichhe was shown to have committed did not amount to a crime andwas not committed in the course of a transaction in which hewas acting as solicitor. The contention was rejected, and thefollowing passage from Lush's Practice, p. 218t was quoted withapproval: —
“For any gross misconduct, whether in the course of hisprofessional practice, or otherwise, the Court will expunge thename of the attorney from the roll.”
7n re Weave3 is a case in which the same principles were applied.Lord Mansfield observes in re Brownsall 3:“But the question is
whether after the conduct of this man it is proper that he shouldcontinue a member of the profession which should stand free from allsuspicion.' ’
If this question be asked, whether the respondent after the conductof which he has been guilty should continue a member of thehonourable profession to which he belongs, there can be but oneanswer.I
But it is said that he must be shown to have been guilty of adeceit or malpractice. Neither the research of counsel nor ourown inquiries have discovered any cases in which these wordshave been construed in a similar context. In collusion withAbeyesekere he secretly engages in consideration of a bribe toprocure the execution of a particular lease regardless of and to thedetriment of the very interests he is appointed to protect. Therecan be little doubt he deceived the trustee, and so far as we knowthe fellow-members of his committee. He pretended to advise andconsult with them frankly and honestly as a member of thecommittee whereas he was already pledged in advance and inCourt he was guilty of misrepresentation of facts.
1 (1560) 30 L. J. N. S. Q. B. Com. Law 32.* (1893) L. R. 2 Q. B. D. 439.
8 2 Cowp. 829
1986
Garvin,
Dalton,
AND LTAIjI.
Grant JJ.
Attorney-Generalv. EUawala
( 32 )
1926
Garvin,
Dalton,and LyallGrant JJ.
Attorney.
Generalv. EUawala
This conduct was inevitable if the object of his secret engagementwas to be attained. It is gross misconduct which involves deceit.
We are of opinion that the respondent has made himself amenableto be dealt with under, section 19 of Ordinance No. 1 of 1889.
In the circumstances of this case there is but one order whichshould in justice and in the interests of the profession and thepublic be made. It is that he be removed from the roll, and we orderaccordingly. This Court has the right and the power to restore himto the rolls if and when, to use the words of Lord Esher,“ he continues a career of honourable life for so long as to convincethe Court that there has been a .complete repentance and adetermination to persevere in honourable conduct/'
Garvin J.
Dalton J.
Lyall Grant J.