037-SLLR-SLLR-1997-2-ATTORNEY-GENERAL-v.-WILSON-AND-ANOTHER.pdf
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Attorney-General v. Wilson and Another
349
ATTORNEY-GENERAL
v.
WILSON AND ANOTHER
COURT OF APPEAL.
ISMAIL, J„
A. 137/94
C. NUWARA ELIYA 392/M.
JUNE 13, 1997.
Prescription – Motor Accident – Driver pleaded guilty to the charge of negligentdriving – Action filed after 6 years – Prescription Ordinance No. 22 of 1871section 9 – Applicability to State – Roman Dutch Law – Law of England – CivilLaw Ordinance.
The Attorney-General instituted action on 27.07.88 against the defendants-respondents to recover a certain sum with interest being damages caused on7.10.81 to a vehicle belonging to the State, when it collided with a lorry belongingto the 2nd defendant-respondent Society. The 1st defendant-respondent (Driver)had pleaded guilty to a charge of negligent driving. The position on behalf of theAttorney-General at the trial was that as the 1st defendant-respondent hadpleaded guilty to the charge of negligent driving it was not open to therespondents-respondents to take up the defence of prescription. The DistrictCourt held that the action was prescribed. On appeal –
Held:
Upon examination of the pre-existing rights of the Crown under the RomanDutch Law it would appear there was no immunity for the Crown from the rules oflimitation in respect of its alienable rights but there was immunity only in respectof inalienable rights.
Under the Roman Dutch Law the Crown would not be entitled to claimimmunity from the rules relating to prescription. Under that system, althoughprescription did not as a general rule run against the Crown, it did run against theCrown where debts were due to it as though it were a private individual so that ifthe right the Crown was seeking to enforce was an ordinary right of property or anordinary obligation, prescription could be pleaded against it. This principle didnot apply in regard to a claim by the Crown relating to its inalienable rights, thisprinciple is limited only to rights capable of alienation.
The claim for damages by the State is prescribed after the lapse of three yearsaccording to Roman Dutch Law.
APPEAL from the Judgment of the District Court of Nuwara Eliya.
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Cases referred to:
Terrunnanse v. Menike 1 NLR 200 at 202
Corea v. Appuhamy- 15 NLR 65 at 77
John v. Dodweii – 20 NLR 206 at 213 (PC)
Fuard v. Weerasuriya – 56 NLR 12
Tillekeratne v. Bastian-21 NLR 15
Silva v. Attorney-General – 62 NLR 121 at 128
Union Government v. Whittaker Estate- 1916 AD 194
Latsky case -1877 Buch 68
1870 Vanderstraaten Reports 83 at 89
Ms. Eva Wanasundera S.S.C. lor the Attorney-General plaintiff appellant.
Mohan Pieris with Ms. Nuwanthie Dias for the defendant-respondents.
Cur. adv. vult.
July 07, 1997ISMAIL, J.
The Attorney-General instituted an action against the defendants-respondents abovenamed on a plaint dated 27 July '88 to recover asum of Rs. 17,325/- with interest, being damages caused on7 October, 81 to a vehicle bearing No. 33, Sri 8792 belonging to theState, when it collided with a lorry bearing No. 24 Sri 5036 owned bythe 2nd defendant-respondent Society. It was stated that the 1stdefendant-respondent drove the said lorry negligently on thatoccasion while acting within the course of his employment under the2nd defendant-respondent Society and that he has pleaded guilty on17.3.83 to a charge of negligent driving in a case filed against him inthe Magistrate’s Court, Nuwara Eliya.
The Attorney-General pleaded that the provisions of thePrescription Ordinance do not affect the cause of action set out in theplaint. Both defendants denied liability and averred in the answersfiled separately on 15.12.89 and 20.07.90 that the cause of actionpleaded by the Attorney-General is prescribed.
The submission on behalf of the Attorney-General at the trial wasthat as the 1st defendant-respondent has pleaded guilty to thecharge of negligent driving, it was now not open to the defendants-
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respondents to take up the defence of prescription. It was submittedthat it was an admission that a cause of action had accrued to theplaintiff, notwithstanding the lapse of time.
The learned District Judge by his judgment dated 19.4.94 rejectedthis submission and held that as the action has been instituted by theAttorney-General 67z years after the date of the collision, that theclaim for damages was prescribed. The issue on prescription whichwas tried as a preliminary issue was answered in favour of thedefendants-respondents and the action filed by the Attorney-Generalwas dismissed.
The Prescription Ordinance No. 22 of 1871, as amended byOrdinance No. 2 of 1889, which now governs the entire field ofjurisdiction provides in section 9 that no action shall maintainable for anyloss, injury, or damage, unless the same shall be commenced within twoyears from the time when the cause of action shall have arisen.
Withers, J. in Terrunnanse v. Menikew at 202 referring to thisOrdinance said:
"It has been laid down and constantly acted upon by this Courtthat the Governing Ordinance No. 22 of 1871, and the previousOrdinance No. 8 of 1834, kept alive the repeal by regulation No. 13of 1822 of “all laws heretofore enacted or customs existing withrespect to the acquiring of rights and the barring of civil actions byprescription," and that the consequence of that regulation andthose Ordinances was to sweep away all the Roman Dutch Lawrelating to the acquisition of title in immovable property (includingpositive and negative servitudes) by prescription, except asregards the property of the Crown.”
The Privy Council observed in Corea v. Appuhamy(2) that “thewhole of the law of limitation is now contained in the Ordinance of1871.” The Ordinance itself makes it as complete as possible andprovides in section 10 for a term “in respect of any cause of actionnot hereinbefore expressly provided for, or expressly exempted fromthe operation of this Ordinance."
Lord Haldane said in the case of John v. Dodwell,™ that “thePrescription Ordinance of Ceylon governs the whole of a jurisdictionwhich is general, including law and equity in one system…" A similar
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observation was made by Mr. L. M. D. de Silva in Fuard v.Weerasuriya.w “The Ordinance is clearly applicable to all causes ofaction and no basis can be found in the Law of Ceylon for excludingits application to all or any causes of action in equity.”
In regard to the applicability of the principles of Roman andRoman Dutch Law, Bonser C.J. observed in Tillekeratne v. Bastian,(5>that they “are only of historical interest, as it is recognised that ourPrescription Ordinance constitutes a complete code; and though nodoubt we have to consider any statutory enactments in the light of theprinciples of common law, it will be seen that the terms of our ownOrdinance are so positive that the principles of the common law donot require to be taken into account.”
Despite the whole law in regard to prescription being contained inOrdinance No. 22 of 1871, the submission on behalf of the Attorney-General was that the rights of the State are, however, not affected assection 15 provides that "nothing herein contained shall in any wayaffect the rights of the State” and that therefore the plea ofprescription cannot be taken against the Attorney-General.
There is a similar provision in regard to enactments in section 3 ofthe Interpretation Ordinance which sets out that “No enactment shallin any manner affect the right of the State unless it is thereinexpressly stated or, unless it appears by necessary implication thatthe State is bound thereby”.
The rights of the State referred to in these provisions mustnecessarily mean the right to plead prescription in suits against theState or the right to sue on behalf of the State without the plea ofprescription being taken against it. These rights must existindependently of the Ordinance and it is therefore necessary toascertain what the unaffected rights of the State are and to considerthe pre-existing position of the Crown in regard to its rights andwhether they are affected by limitation.
After the Royal Proclamation of 1799 the Roman-Dutch notion ofthe fiscus, as representing the State and enjoying privileges, passedinto the legal system of Ceylon with the main body of the RomanDutch Law and the relations between subject and subject as well asbetween government and the subject fell to be determined by theRoman Dutch Law. The liability and immunities of the Crown in
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Ceylon continued in practice to be governed by the English Lawrather than the Roman-Dutch, for the prerogatives of the Englishsovereign became part of our law upon the accession of the island tothe British Crown – see Weeramantry on The Law of Contracts -Vol. 1 section 501 page 493.
However it would appear from the judgment reported in 1870Vanderstraaten’s Reports 83 at page 84, that the prerogative right of theEnglish Crown to claim the benefit of the maxim 'nullum tempus occurritregt time does not run against the Crown – was never introduced intothis country. That judgment contains the following passage:
“The case has next to be considered with reference to the questionwhether that branch of the Royal Prerogative which is founded onthe maxim 'nullum tempos occurrit regi’ is in force in Ceylon – for, ifso, the Roman Dutch Law will not apply. I think it is not. The maximin question is part of the Prerogative Law of the English Crown,which prerogative is part of the Common Law of the ‘Realm ofEngland’, of which Ceylon forms no part."
“It follows from the Common Law of England having no authorityhere, and from the Royal Prerogative of the English Crown,deriving its authority from the Common Law of England, thatneither has that prerogative any authority in Ceylon."
This view dating back to 1870 has been observed by Basnayake,C.J. in Silva v. Attorney-General(6) to be the correct statement of thelaw. The question in issue in that case was whether laches could beattributed to the Crown and the Solicitor General had argued that theCrown was not bound to act within the time prescribed by the rules inthe Schedule to the Appeals (Privy Council) Ordinance or in theAppellate Procedure (Privy Council) Order 1921, because one of theprerogative rights of the Sovereign was that laches did not operateagainst the Crown. Basnayake, C.J. who held that the Crown wasguilty of laches pointed out at page 126 as follows:
“The prerogative rights of the Sovereign of England, being a partof the Common Law of that country, do not automatically becomethe Law of Ceylon; because Ceylon being a ceded country the lawof the country continues until the Sovereign or the legislaturechanges it. The Law of England obtains in Ceylon only to the extentto which it has from time to time been introduced by express
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enactment (vide Civil Law Ordinance Vol. II Legislative Enactmentsp. 138). In the case of this country it is only the prerogative rightsdeclared in the Letters Patent constituting the office of Governor-General (1947) that have been expressly introduced by an act ofthe Sovereign. Another of the prerogative rights of the Sovereign isa matter of express legislation by our Legislature (section 3Interpretation Ordinance). In other respects the law governing theSovereign’s rights is the Roman Dutch Law. In fact far fromintroducing the common law of prerogative of England theSovereign expressly by the Proclamation of 1799 declared that theRoman-Dutch Law was to be the law of the land.”
Upon an examination of the pre-existing rights of the Crown underthe Roman Dutch Law it would appear there was no immunity for theCrown from the rules of limitation in respect of its alienable rights butthere was immunity only in respect of inalienable rights.
In Union Government v. Whittaker's Estate,m C.J. stated as follows atpage 199; "It was pointed out by De Villiers, C.J. in Latsky's case<8>thataccording to Voet (44.3.11) prescription ran against the Crown withregard to rights which could be alienated, but not, as to others and headded 'this seems to be the rule of our law’. That pronouncementsufficed without further elaboration to settle the question. The principlethus laid down was thereafter repeatedly affirmed by the CapeSupreme Court…”. The passage relied upon from Voet is as follows:
“In these matters it appears to be a not unreasonable distinctionthat those things which can be shared with others and transferredto others by the Emperor can also be prescribed; but those thingswhich cannot be shared are abhorrent also of prescription” Voet44.3.11 (Gane’s translation).
Wessels in the Law of Contract in South Africa Vol. 2 page 752 -para 2779 states that “no prescription would run against the state asregards its inalienable rights but with regard to rights which could bealienated prescription would run” and cites the passage from Voetquoted above as authority of this proposition.
Weeramantry in the The Law of Contracts – Vol. 2 section 914 page868, sets out the position under the Roman Dutch Law as follows:
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“Under the Roman Dutch Law as well the Crown would not beentitled to claim immunity from the rules relating to prescription.Under that system, although prescription did not as a general rulerun against the Crown, it did run against the Crown where debtswere due to it as though it were a private individual so that if the rightthe Crown was seeking to enforce was an ordinary right of propertyor an ordinary obligation, prescription could be pleaded against it.This principle did not thus apply in regard to a claim by the Crownrelating to its “inalienable rights”, this principle being limited only torights capable of alienation.
We can thus conclude that the position of the Crown in regard tolimitations is that in so far as prescription is claimed against theCrown in actions instituted by it, there is no principle of law upon thebasis of which immunity from prescription may be claimed by theCrown, where its inalienable rights are not involved”.
The position of the State in relation to prescription being as set outabove, the State cannot use section 15 of the Prescription Ordinanceto extend or enlarge these rights which it expressly left unaffected. Aswas pointed out in 1870 Vanderstraaten's Reports 83 at page 89(9), itwould be as much in contravention of such a clause to hold that theact of which it forms part extends and enlarges, as to hold that itlimits and contracts, the rights of the Crown, for in either case thoserights would be affected".
The position in regard to the period of prescription under the RomanDutch Law is set out by Wessels in The Law of Contract in South Africaat paragraph 2823 as follows; “The usual period for the prescription ofactions according to the civil law was thirty years, though in somecases it was longer and in others shorter. The Roman Dutch Law sincethe 16th century retained the period of thirty years for the prescriptionof obligations and movables and regulated the other periods by thePerpetual Edict of 1540, section 16… Ultimately, the last extant tracesof section 16 of the Perpetual Edict disappeared when the Act 18 of1943 withdrew it from operation in so far as it had not already beenwithdrawn." The period of extinctive prescription now prescribed byAct 18 of 1943 is three years in respect of actions for damages.
In the present case the Attorney General has on behalf of the Statesought to recover damages six and a half years after the alleged
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cause of action had arisen. This claim for damages by the State isprescribed after the lapse of a period of three years according to theRoman Dutch Law as shown above.
I hold therefore that it was open to the defendants-respondents totake up the plea of prescription against the claim of the Attorney-General for damages and that the learned District Judge hascorrectly held that the alleged cause of action is prescribed.
The judgment is affirmed and the appeal is dismissed.
The defendants-respondents would be entitled to the costs ofaction both in the District Court and in this appeal.
Appeal dismissed.