022-NLR-NLR-V-54-BASTIAM-PILLAI-Appellant-and-ANNA-FERNANDO-Respondent.pdf
Baatiam Pillai v. Anna. Fernando
113
Present : Nagalingam S.P.J. and Pulle J.BASTIAM PILLAI, Appellant, and AJSnSTA FERNANDO,RespondentS. G. 39—D. C. Negombo (Inty.) 15,480
Power of attorney—3duat be conatrtied strictly—-Construction of general words therein—Recitals control operative part—Civil Procedure Code, s. 25 (b).
The. recitals in a power of attorney stated that as the principal could notlook after the landed properties or manage or collect their income she wasdesirous of conferring that power on the attorney. The operative part,however, contained general words which purported to confer unrestrictedpowers. In an action instituted by the agent in the principal’s name tovindicate ownership against a trespasser and to recover damages from himfor alleged encroachment on certain premises belonging to the principal^—
Held, that a power of attorney must be construed strictly and that thespecial terms in the recitals controlled the general words in the operative part.The agent, therefore, had gone beyond her authority in instituting the actionwhen, in fact, her power was limited only to the management of the propertiesof the principal.
114
PULLE J.—Bastiam JPiUai v. Anna Fernando
./^.PPEAL from an order of the District Court, Negombo.
5. J. V. Chelvanayakam, Q.G., with C. Chellappah, for the defendant.appellant.—The question is whether the power of attorney given byplaintiff to her attorney is sufficient to maintain this action. Wherean act purporting to be done under a power of attorney is challengedas being in excess of the authority conferred by the power it is necessaryto show that, on a fair construction of the whole instrument, the authorityin question is to be found within the four comers of the instruments,either in express terms or by necessary implication—Bryant, Powis andBryant, Ltd. v. La Banque Du Peuple1. A power of attorney is construedstrictly. The recitals govern the whole purpose of the power—Danbyv. Coutts 2. The special terms of a power of attorney prevent generalwords from having an unrestricted general effect—Harper v. Godsell 3.In the present case the attorney was given specific powers, namely, tomanage and collect the income of plaintiff’s property in the NegomboDistrict. The power to sue was given only in respect of the mattersspecifically authorised. It did not extend to include the institutionof an aetion to vindicate ownership against a trespasser.
B. Wikramanayahe, Q.C., with M. I. M. Haniffa and M. Marlchani,for the plaintiff respondent.—Sections 24 and 25 of the Civil ProcedureCode are applicable to the present case. The only question is whetherthe power of attorney is a “ general power ” within the meaning ofsection 25 (b). The cases cited for appellant apply to special powersof attorney. A11 that section 25 (6) requires is a general powerof attorney to appear in Court. See Lanka Estates Agency, Ltd.v. W. M. P. GoreaA
S. J. V. Chelvanayakam, Q.C., replied..
Cur. adv. vuU.
June 27, 1952. Puxle J.—
This action instituted on the 17th October,. 1949, comes up in-appeal ona preliminary point raised by the defendant that the action is not properlyconstituted. The allegation against the defendant, who is the appellant,is that he encroached on premises No. 89, Main Street, Negombo, belong-ing to one Anna Pearl Fernando and caused damage. One of thedefences raised was that the attorney of Anna Pearl Fernando, oneG. Alice Fernando, who purported to file the action in the name of herprincipal had no authority to do so.
Defendant’s counsel conceded before the trial Judge that the termsof the power of attorney in favour of G. Alice Fernando were wide enoughto enable her to institute the action, but submitted that, as Anna Pearl
1 (1893) A. C. 170.
– (1885) 29 Ch. D. 500.
(1870) L. R. 5 Q. B. 422.
(1951) 52 N. L. R. 477 ; 45 C. L. W. 33.
PTJ1LE J.—Bastiam Pillai v. Anna Fernando
115
Fernando was in Ceylon, the attorney could not act tinder that powerThe submission was rejected and the preliminary issue was answeredagainst the defendant. At the hearing of the appeal learned Queen’sCounsel appearing for the defendant confined himself to the argumentthat upon a proper interpretation of the power of attorney G. AliceFernando did not have any authority under it to institute the action.
Recitals in a power of attorney control its operative part, Dctriby v.Cemits !. There are three recitals in the power which read as follows :
“ Whereas I am the owner of several landed properties at Negombo.
“ And whereas I am unable to look after the said properties personally,as I am at present living at Xandula.'
“ And whereas I am desirous of appointing a fit and proper person tomanage the said properties and to collect their income.”
The intention of the principal which one can gather from the recitalsalone is that as she personally could not look after the landed propertiesor manage them or collect their income, she was desirous of conferringthat power on the attorney. The operative part contains several clausesof which it is not necessary to take note of more than two. The firstof these provides,
“ To appear for me before any court or courts of justice in the saidIsland either as plaintiff, defendant or intervenient and to sign andgrant all necessary proxy or proxies to any Proctor or Proctors…. and prosecute or defend any suit or other proceedings now or
hereafter to be brought by or against me ….”. The second reads,
“Generally to do, execute and perform all such further and otheracts, deeds, matters and things whatsoever which my said attorneyshall think necessary or proper to be done in and- about or con-cerning my business, estates, lands, houses, debts or affairs as fullyand effectually to all intents and purposes as I might or could doif I were personally present and did the same in my proper person,it being my intent and desire that all matters and things respectingthe same shall be under the full management, control and directionof my said attorney.”
Now the law applicable to the construction of general words in a powerof attorney is laid down in the cases of Harper v. Godsell 2 and Bryant v.La Banque du Peuple 3 cited at the argument and is conveniently sum-marised in Article 36 of Bowstead on Agency, 9th edition, p. 59.
“ General words do not confer general powers, but are limited to thepurpose for which the authority is given, and are construed as en-larging special powers when necessary, and only when necessary, forthat purpose.”
(1870) L. B. 5 Q. B. 422.
(1893) A. C, 170.
(1885) 29 Ch. D. 500.
116
PTJLLE J.—Basliam PRlai v. A.rina Fernando
In the former ease Blackburn J. said at p. 427,
“ The special terms of the first part of the power prevent the generalwords from having an unrestricted general effect. The meaning ofthe general words is cut down by the context in accordance with theordinary rule of ejusdem generis.”
Was it necessary for the proper management of the landed propertiesof Anna Pearl Fernando that her attorney Should bring the presentaction 1 The word “ management ” could hardly be extended to includethe institution of proceedings in a Court of law by the attorney in theprincipal’s name to vindicate ownership against a trespasser and torecover damages.
The contention on behalf of the respondent is that G. Alice Fernandocame within the class who are described in section 25 (6) of the CivilProcedure Code as “ persons holding general powers of attorney ” andthat the power of attorney in question answered the description of ageneral power, even though it did not in terms or by necessary implicationauthorize the institution of the action. Reliance was placed on apassage in the judgment of Gratiaen J., in the case of Lanka EstatesAgency, Limited v. W. JM. P. Corea 1 which reads,
“ I do not think that section 25 (5) of the Civil Procedure Code wasintended to refer only to persons who hold general powers of attorneyauthorising them to represent the principal in -'every conceivablekind of legal proceedings.”
This observation was made in a ease in which it was not disputedthat the power of attorney authorized the agent to institute an actionfor the ejectment of a tenant. The point taken on behalf of the tenant*was that the power of attorney was a special power and not a generalpower within the meaning of section 25 (6) of the Code. This does not,in my opinion, help the respondent. An agent who wishes to sue in thename of the principal must first satisfy that he has the authority to sueunder the power of attorney. This is essentially a question of inter-pretation of the document. However wide may be the extent of thepowers and the range of subjects to which those powers relate, if, applyingthe rules of construction of powers of attorney, one cannot read into thedocument an authority to institute the particular suit in question, thensuch a suit must fail.
Applying the proper tests and especially the test that a power of attorneymust be construed strictly I come to the conclusion that the agent has'gone beyond her authority in instituting the action.
The order appealed from should be set aside and the action dismissedwith costs here and below payable by the attorney.
Nagalt>tgaai S.P.J.—I agree.
Appeal allowed.
1 (1951) 52 N. L. R. 477 ; 45 C. L. W. 33.