066-NLR-NLR-V-44-BOGSTRA-Appellant-and-CO-OPERATIVE-CONDENSED-FABRIK-Respondent.pdf
272
Bogstra and Co-operative Condensed Fabrik.
1943Present: Moseley A.C.J. and Jayetilleke J.
BOGSTRA, Appellant, and CO-OPERATIVE CONDENSED.FABRIK, Respondent.
87—D. C: Colombo, 11,015.
Enemy property—Plaintiff company carrying on business in Holland—Occupa-tion of Holland by the Enemy—Comppany under enemy control—Vestingof property in Custodian of Enemy Property—Defence (Enemy Property)Regulations of 1939, Regs. 7 (1) and 7 (1) (c).
The plaintiff, a. company incorporated under the Laws of Netherlands,carrying on the business of manufacturing and selling condensedmilk, instituted this action against the defendants to restrain them fromimporting or selling condensed milk bearing a certain mark and alsofrom passing off the condensed milk imported by them as that of theplaintiff. After the defendant filed answer Holland was occupied by theenemy on May 9, 1940.
The Custodian of Enemy Property (the respondent) thereupon filed apetition and moved to' be substituted in place of the plaintiff on the 'ground that all movable and |immovable property belonging to theplaintiff vested in him.
The respondent also produced a letter dated June 26, 1940, writtenfrom London by the Acting Under Secretary for the Minister of Trade,Industry and Shipping, Netherlands, to the local agents informing themthat the Royal Netherlands Government was unable to obtain informa-tion as regards the actual position of the plaintiff and that the latterdoes not figure among the firms which have, since the outbreak of the War,transferred their seats to territories of the Kingdom outside. Europe.
Held, that, the plaintiff was a body Of persons over whom some degree ofcontrol was exercised' by the Enemy within the meaning of Regulation7 "(1) Cc) of the Defence (Enemy Property) Regulations of 1939.
Held, further, that the action instituted for the vindication of rightsbased upon a trade mark arises out of movable property within themeaning of Regulation 7 (1)
^ PPEAL from an order of the District Judge of Colombo.
H. V. Perera, K.C. (with him E. F. N. Gratiaen), for appellants.
N. Nadarajah, K.C. (with, him N. K. Choksy), for 1st respondent.
Cur. adv. vult.
JAYETELKKE J.—Bogstra and Co-operative Condensed Fabrik.
273
March 23, 1943. Jatetzleke J.—
The plaintiff, a company incorporated under the laws of the Nether-lands and carrying on the business of manufacturing and selling con-densed milk at Leeuwarden, instituted this action against the defendantson October 25, 1939, to restrain them from importing or selling condensedmilk bearing a certain mark and also from passing off the condensed milkimported by them as that marketed by the plaintiff. The plaintiff alsoclaimed an account of the profits earned by the defendants or in .thealternative Rs. 5,000 as damages.
On March 9, 1940, the defendants filed answer and on May 9, 1940,Holland was occupied by the enemy. On .February 27, 1942, therespondent, who is the Custodian of Enemy Property in Ceylon, filed apetition and an affidavit and moved to be substituted in place of theplaintiff, or alternatively, to be added as a plaintiff, on the ground thatunder Regulation 7 (1) of the Defence (Enemy Property) Regulations of1939 all movable and immovable property belonging to the plaintiffbecame vested in him.
The Regulation, omitting immaterial words, reads thus :
“ All movable or immovable property belonging to or held ormanaged for and on behalf of an enemy shall be and is hereby vestedin the Custodian and shall be deemed for all purposes to have beenso vested in him from the commencement of the War. ”
The motion was opposed on the ground that the plaintiff was not an“ enemy ” as defined in Regulation 49 of the Regulations. The learnedDistrict Judge held against the defendants on that point and made orderadding the respondent as a plaintiff. The defendants appealed from thatorder.
On appeal a further point was raised, namely, that the subject-matterof the action is not movable or immovable property. Mr. Perera contendedthat all things are divided into corporeal and incorporeal and that onlycorporeal things are subdivided into movable and immovable.
This argument bears some similarity to that which was addressed to theCourt in Ex Parte Master of the Supreme Court1. In discussing theCommon Law meaning of the expression “ immovable property ”Innes C.J., said: —
“ The question may be regarded from two standpoints. You maylook at it first in this way : that all things are divided into corporealand incorporeal, and that corporeal things are subdivided into movableand immovable—leaving non-corporeal out altogether, and making‘ movable ’ and ‘ immovable ’ simply subdivisions of corporeal things.That seems to be the view of Van der Keessel. He says (sec 178):
‘ By the law of Holland, as under the Roman Law, incorporeal things,where the law or the will of the owner has given no direction to thecontrary, are not comprehended under movable or immovables, as inthe case of legacies, agreements, and mortgages ’. Voet (I. 8. sec. 18)looks at the matter from another standpoint: ‘ Incorporeal thingsare things which can neither be handled nor'touched, and consist in aright, as inheritances, servitudes, debts, actions; and revenues. But
1 (1906) T. S. 563.
274 JAYETILEKE J.—Bogstra and Co-operative Cohdensed Fabrik.
as the greatest portion of the municipal laws ignores the division intocorporeal and incorporeal and is content with a mere division intomovables and immovables (MatDe Auct. 1, 3, 13, and De Crim. 48.20, 4, 21), it will be worth while to inquire under which class eachincorporeal thing is to be accounted, whether movable or immovable.;In his .opinion incorporeal rights should wherever possible be divided,into movable or immovable. < It seems to me that the view expressedby Voet is the common sense and the preferable one. I think our lawwould favour the division of such rights into one or other of the abovecategories wherever possible.”
I respectfully agree with this view. The incorporeal rights mentionedby Voet are not exhaustive. Rights to patents, designs, trade marks,copyrights, etc., have been treated by the law as incorporeal. (Maas-dorp’s Institutes of South African Law, Vol.2, page 1.) Such rights, fromtheir very nature must be reckoned as rights to movables.
The expression “property” is defined in Regulation 49 as follows:“Property means movable or immovable property and includes anyrights, whether legal or beneficial, in or arising out of property, movableor immovable”.
This action was instituted by the plaintiff for the vindication of certainrights based upon the ownership of a trade mark. These rights ariseout of movable property ' within the meaning of the definition of“property”.
I now come' td the only other argument that remains to be dealt with•and that is based on the meaning'of the expression “enemy” in Regula-tion 7 (1). The part of the definition which is relevant to this appeal is.clause (e) which -reads—
(c) “ any body of persons (corporate or un-incorporate) carrying onbusiness at any place, if and so long as the body is controlled by aperson who is an enemy within the meaning of this definition ”.
The respondent produced a letter addressed by the manager of theplaintiff to. the local agents and posted at Leeuwarden on May 3, 1940.giving them detailed instructions as to what they should do with moniesdue to the plaintiff; in the event of Holland being occupied by the Germans.He also produced a letter dated June 26, 1940, written from Londonby the Acting Under Secretary for the Minister of Trade, Industry'and. Shipping* Netherlands;, to the local agents informing them that' theRoyal Netherlands Government was unable to obtain any informationas regards the actual position of the plaintiff and that the latter does notfigure among the firms which have, since the outbreak, of. the War,transferred their seats to territories ofhe Kingdom outside Europe.
It "was urged that this evidence did not prove that the plaintiff wascarrying on business in Holland or that the plaintiff was controlled by anenemy on and after May 9, 1940. A similar point seems to have beentaken in Re an arbitration between N. V. Gebr: Van Udens Scheepyaart enAgentuur Maatschappij and Sovtracht .
In that case the respondents, a company incorporated under the lawsof the Netherlands and carrying on the business of shipowners at Rotter-dam, chartered one of their vessels to the appellants, a Russian company.
1 (1941) 3 AU Eng. Rep. p, 419.
275
JAYETILEKE J.—Bogstra and Co-operative Condensed Fabrik.
A clause in the charter-party provided for arbitration in London. Dis-putes having arisen between the parties in April, 1940, each party ap-pointed an arbitrator but therefore the matter could proceed further theGerman invasion of the Netherland took place and the country wasoccupied by the enemy in May, 1940.
The appellants and their arbitrator subsequently refused to proceedwith the arbitration on the ground that the respondents had becomeenemies. On June 24, 1941, the respondents took out a summons askingfor the appointment of an umpire, "it was contended for the appellantsthat the summons should be dismissed for three reasons, one of thembeing that the respondents had become enemies under the Tradingwith the Enemy Act of 1939.
That Act has a definition of “ enemy ” which is identical with oursbut it does not have a provision which corresponds with Regulation 7 (1)of our Regulations.
The only evidence before the Court was that contained in an affidavitsworn and filed by the solicitor acting for the appellants which statedthat they are a Dutch company, that is to say a company incorporatedunder the laws of the Netherlands, and have their principal place ofbusiness at Rotterdam. It was further stated that Holland was occupiedby the Germans in the second week of May, 1940, the arbitration havingbeen begun in the previous month. –
In June, 1941, the Court was invited on this evidence to infer or to"ake judicial notice of the following facts : — (a) that, the appellantscontinued to carry on business, (b) that the occupation of Holland byGermany continued and (c) that the appellants were controlled by theenemy.
Referring to (a) Goddard L.J., said:—“I think it is fair to draw theinference that the appellants are still trading, or endeavouring to do so,in Rotterdam, though it may be for the purpose only of winding up theirbusiness ”.
I presume that Goddard L.J. referred to the severe punishmentthat Rotterdam had received at the hands of the Germans when he usedthe words “ or endeavouring to do so ”. Perhaps very few buildingsremained undamaged after the bombing of Rotterdam and he wastherefore of opinion that trading in Rotterdam under those circumstancesreally amounted to “ an endeavour to trade ”.
Referring to (b) and (c) Du Parcq L.J., said:—We were asked totake judicial notice of the fact that this occupation continues, and thereis no dispute about this,-or about the fact that some degree of control’,which may well be severe, is exercised by the enemy over the inhabitants
Section 57 of the Evidence Ordinance (Cap. 11) gives a list of the factsof which the Court shall take judicial notice. That list is not exhaustiveand it is open to a court to take notice of facts other than those mentionedin the section.
In The Englishman Limited v. Lajpat Rai • the scope of section 57of the Indian Evidence Act, No. 1 of 1872, which is almost indentical with.1 (1310) I. L. B. 37 Cal. p. 760.
276Appuhamy and Holloway.
section 57 of our Evidence Ordinance was considered. In the words ofWoodroffe J.:—
“ …. Facts, however, of which judicial notice may be taken
are not limited to those of the nature specifically mentioned in theseclauses. These are mentioned because, as regards them, the Courtis given no discretion. As to others the Court must determine in each,case whether the fact is of such a well known and established characteras to be the proper subject of judicial notice. A matter of publichistory may be such a fact. The tendency of modem practice is to
enlarge the field of judicial notice”
Woodroffe and Ameer Ali in their Commentary on the Law of Evidenceapplicable to British India say that the Courts may and will take judicialnotice of, generally speaking, all those other facts, at least, of whichEnglish Courts take judicial notice. (9th Edition, page 469.)
The evidence in this case is much stronger than the evidence in the caseof Re an arbitration between N. V. Gebr. Van TJdens Scheepvaart en Agen-tuur Maatschappij and Sovfracht (supra), which in the opinion of LordGreene, Master of the Rolls, was colourless.
I feel that, on the materials before me, I would be justified in drawingthe inference that after the occupation of Holland by the enemy theplaintiff continued to carry on business in Leeuwarden at least,for the purpose of winding it up and that some degree of control, isexercised by the enemy over the plaintiff. The plaintiff would thus bean enemy for the purposes of the Defence (Trading with the Enemy)Regulations of 1939.
The order of the learned District Judge is, in my opinion, correct,and I would, accordingly dismiss the appeal with costs.
Moseley A.C.J.—I agree.
Appeal dismissed.