052-NLR-NLR-V-08-CARIMJEE-JAFFERJEE-et-al.-v.-THE-COLOMBO-MUNICIPALITY.pdf
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1905.
December 19.
CARIMJEE JAFFERJEE et al. v. THE COLOMBOMUNICIPALITY.I). C., Colombo, 18,079.
Action to restrain the Municipal Council from wrongfully paying money—Notice—Creationofoffices—By-law—ResolutionofCouncil—
Ultra vires—Ordinance No. 7 of 1687, 88. 47, 50, 59, 122, and 27$—Ordinances Nos. 16 of 1881 and 21 of 1901.
Section 278 of the Municipal Councils* Ordinance (No. 7 of 1887)relating to notice of action does not apply to an action for an injunc-tion to restrain the Council from wrongfully paying money out (ofits funds.
Section 278 applies to all actions for damages in respect of actsdone or purported to be done under the provisions of the saidOrdinance, even though such acts be ultra vires and not justifiableunder the provisions of the Ordinance.
It is lawful for the Municipal Cotmcil to create new offices otherthan those mentioned in sections 49 and 50 of “ The Municipal Coun-cils' Ordinance of 1887 ” without the sanction of the Governor, andsuch^ offices may be created not only by by-law by also by resolutionof Council.
^^PPEAL from a judgment of the District Judge of Colombo.
The facts are fully stated in the judgment of Layard, C.J.
Walter Pereira, K.C., and Domkorst, K.C. (F. M. de Saram withthem), for plaintiffs, appellants.
Sampayo, K.C. (H. J. 0.. Pereira, with him), for the defendant-,respondent.
Cur. adv. vuli.
19th December, 1905. Layauds, C.J.—
This is the second appeal in this case. The plaintiffs, allegingthat they are taxpayers and ratepayers of the Colombo Municipality,seek to have the appointment of the third defendant as AssistantSanitary Officer declared illegal, and pray for an injunction to pre-vent misapplication of Municipal funds by the payment therefrom ofmoneys as salary to the third defendant, and they further seek tohave moneys already paid to third defendant refunded to thef Municipal funds.
When the case first came on for trial in the District Court theparties confined themselves to the legal issue as to whether the plain-tiffs were eititled in law to maintain such an acticm. The DistrictJudge ruled against the plaintiffs, but the Court held that it was
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competent for the plaintiffs as ratepayers to seek the intervention ofthe Court against the misappropriation or misapplication of trustfunds by corporate bodies, and the case was sent back for trial. Atthe second trial the District Judge dismissed the plaintiffs’ claim.The appellants’ counsel, in opening the case, mentioned that a con-siderable portion of the judgment of the District Judge dealt withthe question as to whether the suit was a bond fide one, or whether itwas vexatious and harassing and not for the public benefit. Wesuggested to counsel that we thought it desirable that we shoulddecide the case on the main issues, and counsel for the respondent,whilst stating he was prepared to support the ruling of the DistrictJuclge on the issue above mentioned, acquiesced in the view takenby this Court. The first issue that was argued, and which we havenow to decide, is as to whether the plaintiffs* action ought to bedismissed for want of notice. Section 278 of the Municipal Councils’Ordinance provides as follows:—“No action shall be institutedagainst the municipal council or any councillor or chairman, or anyofficers of the council or any person acting under their or his direc-tion, for anything done or intended to be done under the provisionsof this Ordinance until the expiration of one month next after noticein writing shall have been given to the defendant, stating with rea-sonable certainty the cause of such action, and the name and theplace *of abode of the intended plaintiff and of his attorney or agentin the cause; and upon the trial of any such action the plaintiff shallnot be permitted to go into evidence of any cause of action exceptsuch as is stated in the notice so delivered; and unless such noticebe proved, the court shall find for the defendant; and every suchaction shall be commenced within three months next after theaccrual of the cause of action and not afterwards; and if any personto whom such notice of action is given shall, before action brought,tender sufficient amends to the plaintiff, such plaintiff shall notrecover in any such action when brought, and the defendant shall beentitled to be paid his costs by the plaintiff; and if no such tendershall have been made, it shall be lawful to the defendant in suchaction, by leave of the court where such action shall he pending, atany time before issue framed, to pay into court such sum of moneyas he shall think fit, and thereupon such proceedings shall be had asin other cases where defendants are allowed to pay money into court.”It is argued for the appellants that as the acts alleged to have beendone by the Municipal Council were ultra vires of the Ordinance, theMunicipal Council were entitled to no notice. It appears to me thatif the provisions of this section are applicable to an action such asthis, which I sha^l subsequently discuss, then the Municipal Council
1905.
December 19.Layabd, C. J.
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1905.
December 19.
LaVabd, C.J
are entitled to the notice of action required By section 278, on theground that the Council intended and purported to act under theprovisions of the Ordinance No. 7 of 1887. The provision containedin section 278 is framed to protest the Council from the consequenceof committing illegal acts, which are intended to he done under theauthority of the Ordinance No. 7 of 1887, but which are not justifiedby its terms and cannot be defended by its provisions. The appel-lants contend that the Council was not acting under the provisionsof the Ordinance No. 7 of 1887, and that consequently they were notentitled to the notice of action allowed thereby. If a person knowsthat he has under the Ordinance authority to do a certain thing, andyet intentionally does that thing, he cannot shelter himself by pre-tending that the thing wa6* done with intent to carry out the provi-sions of the Ordinance. It does not appear in this case that theMunicipal* Council, wdien they made the appointment in question,knew that it was not allowed by the Ordinance under which theywere constituted. It is manifest that the Council intended to actaccording to the powers vested in them, although they may havemistaken the legal mode of carrying out their intention. The Councilare entitled to notice of action even if they had made a mistakewith regard to the law (Selmes v. Judge, L. R. 6, Q. B. 724).Council for the appellants invited our attention to the case of Oassimv. Liesching (2 S. C. C. 6). It is. true in that case that this Court held,where a Fiscal had seized and sold plaintiff’s goods under a writdirected against a third person, that section 20 of the Fiscals' Ordi-nance, No. 4 of 1867, did not^apply. That section ran as follows:—
“ Every fiscal shall, during the time he acts as such in the execution ofany process within his province, be civilly responsible in damages toany person who may be aggrieved in consequence of any fraud, grossnegligence, or gross irregularity of proceeding, or gross want ofordinary diligence or abiise of authority (but not otherwise) on thepart of such fiscal, his deputy, or other officers, in the execution ofsuch process; provided that where such damages shall be claimedby reason of the act or omission of any deputy or other officer, thefiscal shall be entitled to move the court to add such deputy or otherofficer as a party to the suit; and if the court shall find that suchdeputy or other officer is responsible for the act or omission owing towhich damages are claimed, he shall be primarily responsible to -satisfy such judgment, and the security given by him for the dueperformance of his office shall be available to satisfy the same withoutany new action being brought on the bond, unless the court shall soexpressly direct. The fiscal shall only be liable t^ satisfy the judg-ment, if such deputy or other officer shall not be able to. satisfy'the
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same; and any payment made by the fiscal in such case shall bedeemed a debt due to the fiscal which may be enforced at any timeby process of execution in the said case on the application of the fiscalwithout a new suit. Provided further that nothing therein containedsnail preclude any person aggrieved by the act or omission of thedeputy fiscal or other officer from giving up his remedy againstthe fiscal and suing only the immediate wrong-doer civilly orcriminally, according to “the nature and circumstances of thecase.*'
As properly pointed out by Phear, C.J., it is plain that this sectionrelated solely to the conduct of the Fiscal and his officer within thescope of his authority. The wording of section 20 is very differentto the one now under consideration, which applies not only to actsdone under the provisions of the Ordinance No. 2 of 1887, but tothose intended, i.e., purported to be done under the provisions ofthat Ordinance. The question, however, remains to be decided asto whether this section is applicable to an action of this nature. It-was held in the case of Flower v. Local Board of Low Leyton (L. R.5, Oh. D. 347} that, where the principal object of an action againsta Local Board of Health was an injunction to restrain an immediateinjury, it is not necessary to give a month’s notice of the cause ofaction under 244 of “ The Public Health Act, T875.” The reasonsgiven by Jessel, M.B., in his judgment, with which James, L.J.,and Bagallay, L.J., concurred, appear to me to be applicable to thecase now under our consideration. I do not think we could holdthat section 278 of the Municipal Councils* Ordinance applied to anaction for an injunction to restrain the Municipal Council fromwrongfully paying away its fund. The section, from the wording ofit, appears to me to apply to an action for damages, and its objectwas to give an opportunity to the Council to 14 tender sufficientamends to the plaintiff,” i.e., to make payment or tender of com-pensation for the damages sustained. To enable the Council totake advantage of the section it must be shown that this action isone for damages, and not for an injunction to restrain the MunicipalCouncil from continuing to pay the third defendant and from mak-ing future misappropriations of Municipal funds. It is impossiblefor the Council to make tender or compensation for damages whenno damages are claimed. Consequently section 278 does not applyto an action of the nature of the present one. The question as towhether the provisions of the similar section in the Ordinance No. 7of 1865 applied to suits for injunctions was decided in Jayasundarav. Municipal Council, Galle (5 S. C. G. 174), in the negative by thisCourt so far ba^ as 1888.
1905.
December 10;Layard,C.J.
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Now I come to the really important question in the case, viz., asDecember 19. tc whether the appointment was illegal of the third defendant asLayabp, C.J. Assistant Sanitary Officer by resolution of the Council of the 14fhFebruary, 1902. The appointments that may be made by theGovernor are specially provided for ;by sections 47 to 62, whilstsection 59 provides that the Municipal Council may create, as pro-vided in section 122, such offices other than those mentioned insections 49 and 50 as they may think necessary. There is no doubt,therefore, that the Council for the carrying out of the provisions ofthe Ordinance may create offices other than those above-mentioned.This is further made quite clear by the provisions of section 80,which defines the powers and duties of the Municipal Council, andwhich enacts by sub-section (d) that the Council may adopt, modify,or reject proposals for creating any new Municipal office. So far asthese two sections go, it is quite clear that the legislature intendedto vest the power of creating offices in the Council quite independentof any restraint by the Governor. Appellants’ counsel, however,argues that by insertion of the words “ as provided in section 122 ”the appointment could not be created by a resolution, but must bemade 'by a by-law under section 122, with the sanction of the Gover-nor in Executive Council, and that this was enacted to safeguard theinterest of the taxpayers, because the Governor in Executive Councilwould be able to restrain the defendant Council from making im-proper appointments. I would here point out that in view of Ordi-nance No. 21 of 1901, intituled “ An Ordinance for defining themeaning of certain terms and for shortening of the language used inOrdinances and other written laws and for other purposes,” ** theGovernor in Executive Council ” means no more than the Governorafter consulting the Executive Council, and that the Governor canact entirely independently of the advice of his Council.
The contention then amounts to this, that the Legislature intendedto vest the creation of offices entirely in the Governor. If that issound, it seems to me a roundabout way of doing it, and to almostnullify, and certainly to stultify, the powers vested in the Council bysection 80. However, it is necessary for us to look carefully into theprovisions of section 122, particularly when we find, as it has beenadmitted in this case, that the Council has frequently exercised theright of creating new offices by resolution and without the sanctionof any by-law. Section 122 has been repealed by Ordinance No. 8of 1901, for by section 4 of that Ordinance a new section has«beensubstituted for it. The section provides generally for the makingof by-laws, and no mention is made in it of the particular purposefor which by-laws may be made. Section 5 of Ordinance No. 1 of
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1901 enacts a section very similar to section 122 of the Ordinance No* 71905.
of 1887, which is substituted for section 123 of Ordinance No. 7 of 1887, December 19.
and not for section 122. I think, however, it- is clear that Layabd, C.J.
the Legislature must have intended when passing Ordinance No. 8 of
1901 that the provisions of section 5 should supply the place of
section 122, though through inadvertence it escaped the attention of
the framer of the Ordinance and of the Legislature to amend section
59 of Ordinance No. 7 of 1887 by inserting “ 123 ” in lieu of “ 122 ” in
that section. The new section 123 (section 5 of Ordinance No. 8 of
1901) enacts the matters in respect of which by-laws may be made,
. but does not render it obligatory on the Municipal Council to makesuch by-laws. Amongst other things it provides that by-laws maybe made for “ the creation of offices other than those of Chairman,
Assistant Chairman, and Municipal 'Magistrate, and the paymentof salaries to the holders of such offices.” I understand “ creation ”to mean in that section what it commonly means, viz., ” the act ofcreating.” The power then conferred by section 123 (OrdinanceNo. 8 of 1901) is to make by-laws providing for ” the act ofcreating” such offices other than those aibove mentioned. Thepower of creating has been conferred on the Council by section 59,and the manner or act of creating them is to be laid down by aby-law. I asked during the course of the argument what by-lawsare now in force in the Municipality of Colombo, and I am told thatthey are to be found in Ordinance No. 13 of 1881. I cannot findany special by-laws stating in what manner the Council should exer-cise its powers of creating offices or fixing salaries when created.
The by-laws, however, provide generally with regard to the conductof business by the Municipal Council, and there is no reason to thinkthat the resolution passed by the Municipal Council was not dulypassed in accordance with the by-laws of the Council.
I am not prepared to hold that the action of the Municipal Councilwas wrong, or that the resolution is ultra vires of the powers vestedin the Council by the Ordinance. As pointed out by Lord Campbell,in the case of the Liverpool Borough Bank.v. Turner (30 L. J. Ch.,p. 379), “ it is the duty of Courts of Justice to try to get at the realintention of the Legislature by carefully attending to the whole scopeof the statute to be construed. ” The whole scope and the object ofthe Ordinance must be looked at, and then it will be seen that great jinconvenience may be occasioned and great injury may be done, aspointed out by the District Judge, and the general object intendedto be seemed by the Ordinance would be defeated. Although theprovisions of thejOrdinance may not have been strictly obeyed in thiscase, yet they do not appear to me to be of such material importance
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1905. that the Legislature could have . intended that non-observanceDecember 19. ^ them should invalidate the creation of a new office; it is to beLayard,C.J. noticed in this connection that the Legislature provides (section 4 ofOrdinance No. 8 of 1901) that the only penalty to be imposed for thecontravention of a by-law is a fine not exceeding twenty rupees.As very properly pointed out by the District Judge, to hold* thatonly a by-law could create offices would lead to disastrous results.J do not think I would be justified in overlooking the whole scopeand object of the Ordinance, and that great inconvenience may beoccasioned and disastrous results might arise by holding that only aby-law could create an. office.
I think the plaintiffs’ appeal should be dismissed with costs.
Wendt, J.—I agree that the appeal should be dismissed.