COLOMBO MUNICIPAL COUNCIL v. J. A. PERERA

127-NLR-NLR-V-40-COLOMBO-MUNICIPAL-COUNCIL-v.-J.-A.-PERERA.pdf


Colombo Municipal Council v. J. A. Per era.
457
2939 Present: Soertsz A.C.J., de Kretser and Wijeyswardene J3.COLOMBO MUNICIPAL COUNCIL v. J. A, PERERA.
16—M. M. C. Colombo, 17,047.
Motor car—Charge against a registered owner—Possession or use of a carwithout a licence—Burden of proof—User on highway essential—Statutory possession of registered owner—How it may be displaced—Ordinance No. 20 of 1927, s. 31 (1) (vol. IV., ch. 156).
Where a person is charged, as the registered owner of a motor car,under section 31 (1) of the Motor Car Ordinance with possessing or usinga car for which a motor licence is not in force, the burden is on theprosecution to prove not only that the registered owner possessed the carat some time during the material period but also that during that periodif was used on a highway.
Once these elements are proved that statutory possession imputed to theregistered owner can be displaced only in the manner expressely providedby the Ordinance.
T
HE accused in this case was charged under section 32 (1) of the.
Motor Car Ordinance, with possessing or using a motor car forwhich a licence was not in force. The name of the accused appeared onthe Register as that of the owner of a motor car. In 1937 he took out alicence but he omitted to obtain one for the year, 1938. The defenceset up by the accused os that in October, 1937, he sold the car to apurchaser, who informed him that he was going to dismantle it. TheMagistrate convicted the accused.
Bv. Wickremanayake (with him J. A. T. Perera and S. de Zoysa), foraccused, appellant.—The appeal concerns the interpretation of section31 (1) of Chapter 156. It is admitted that the accused’s name appears onthe Register as that of the owner of the car and that he has not given noticeof the sale in 1937. But the question is whether merely because his nameis on the Register he can be charged even though he had sold the ear.According to section 2, the Ordinance applies to a motor car only whenon a highway, unless otherwise provided. There are cases where it hasbeen held that actual possession or user must be proved before theregistered owner can be convicted under section 31 (1)—Hodson v. Maudu-galle1; Government Agent, Western Province v. Bilinda *; GovernmentAgent, Northern Province v. Sepamalai *. A different view was taken inGovernment Agent, Central Province v. Beeman ‘ and Government Agent,Province of Sabaragamuwa v. Periess. The latest case is Hodson v.Cassim' where all the previous cases are reviewed. It is in appellant’sfavour, for it lays down that the presumption of possession can be rebuttedby independent evidence.
Ownership and possession are not convertible terms, as the Magistrateseems to think. Ordinarily no doubt, ownership presumes possession.The only question is whether the presumption can be rebutted. If it canbe rebutled, on the evidence in this case, the accused is.entitled to am
acquittal.
1 (2935) 5 C. L. W. 23.* 11932) 33 N. L. R. 343.
s 3 Cr. .4pp. R. (Ceylon) 33.* '(1934)36 N. L. R. 291.
3 (1936) 1 Cey. Law Journal 42.« (1938) 40 N. L. R. .83.
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SOERTSZ A.C.J.—Colombo Municipal Council v. J. A. Perera.
V. Perera, K.C. (with him E. F. N. Gratiaen), for complainant,respondent.—Section 2 should be given a limited interpretation andwould be applicable only in a case of user. Drieberg J. in The GovernmentAgent, Province of Sabaragamuwa v. Peries (supra) effectively deals withit. It is obscure and, indeed, in the original publication of the Ordinance,it is given the place of a sub-section, viz., section 2, sub-section (2).
. Section 2 was not discussed in the – previous reported cases. Theproduction of the certificate of registration would be prime, facie evidenceof possession, if possession is in question.
In regard to section 31 (1), it is observed by Drieberg J. that the MotorCar Ordinance is a taxing Ordinance and should be strictly construed.The charging section is really section 33 (2). Section .31 (1) is only amachinery section for sub-section (3). We are, therefore, really concernedwith a machinery section. When one deals with a machinery section,it must be construed liberally.
The words “ owner ” and “ possessor ” are used in a technical senseand not in the ordinary sense. Garvin J. was not right in interpretingpossession as actual possession. The Magistrate was right in holding thatownership and possession are convertible terms. Section 19 indicatesthat the person who is duly registered as the owner is the person who isentitled to the possession of the car. The person entitled to possessionmust be deemed, according to the Ordinance, to be in possession. Thisis made clear by a consideration of section 23 dealing with change ofpossession. The accused has not availed himself of the provisions ofsection 23. That “ possession ” has a technical meaning was held inde Silva v. Rosen’.
J. W. R. Ilangakoon, K.C., Attorney-General (with him M. F. S. PulieC.C.) as amicus curiae.—The point of view taken in Hodson v. Cassim(supra) seems to be the correct one. The registered owner is presumed tobe in possession of the car. If there is no evidence that he had givennotice of the change of possession or that the car was no longer in exis-tence, he should be regarded as owner. The fact that he did not complywith the provisions of section 23 only makes him liable for an offence.But it does not prevent him from showing in a case like the present onethat the ownership has changed hands.
The provision for rebate in section 33 (3) shows that ownership andpossession need not go together.
The nature of proof required in a prosecution of this type should be aslaid down in Hodson v. Cassim (supra).
Cur. adv. vult.
July 10, 1939. Soertsz A.C.J.—
It is not with any desire to play upon words, but only to state a fact,to which our Law Reports bear eloquent witness, that I permit myself theobservation that the Motor Car Ordinance is not an enactment that thosewho run may read. On the very question that now arises for considerationthere is a great variety of judicial opinion, and in view of its not infrequent
> (1933) 3 C. I.. W. 98.
SOERTSZ A.C.J.—Colombo Municipal Council v. 3. A. Perera.
459
recurrence in our Courts, it seemed desirable to have a definite decision-which would afford us “the sure anchorage of a dependable rule”.Hence this Divisional Bench.
The question, stated briefly, is this: What is the liability imposed bysection 31 (1) of the Ordinance when it requires that “no person shallpossess or use a motor car for which a motor car licence is not in force ” ?That question arises in this case in these circumstances. The name of theaccused appears on the Register as that of the owner of Motor CarNo. C7576. In 1937, he took out a licence for it, but he omitted to obtainone for the year 1938, and in consequence, this prosecution was launchedagainst him. The plea he sets up in defence is that in October, 1937, hesold the car to a purchaser who said he was going to dismantle it, and heknows nothing of the car thereafter. These facts the prosecutor is unableto contradict and for the purpose of this case, they may be regarded asestablished. But, it is contended, that the accused is bound to providehimself with a licence year after year, se long as his name continues onthe Register.
We have had the advantage of a full argument by Counsel appearingon the two sides, and also the asistance of the Attorney-General whoappeared as amicus curiae, and I have come to a very clear view upondie question, although that view differs from those taken in earlier cases.
I will now refer to those cases in order to indicate how the law stood inregard to this point when I referred it to a Divisional Bench. In Govern-ment Agent, Western Province v. Bilinda Garvin J. held that for thepurpose of a conviction under this section it is not sufficient to prove thatthe accused man’s name appears on the Register as the owner of the carand that no licence has been taken out by him for the material period, butthat “ the prosecution must also prove that during that period theJmotorcar was in the possession of the accused or that he did use it ”. He acquittedthe accused because his evidence to the effect that although he boughtthis car, it always lay in the garage in which it was at the time hepurchased it, was not opposed. The implication of this ruling is that if ithad been shown that the accused was in actual possession of the car at anymaterial time, he would be liable whether or not he used it.
In Hodson v. Madugalle *, Koch J. adopted this ruling and said, “ it isnecessary for the prosecution to prove that the accused did possess or usethe motor car in question during some period in 1935 ”.
In Government Agent, Northern Province v. Sepamalai1 Dalton J. toofollowed the ruling in Bilinda’s case and acquitted the accused becausealthough her name appeared as that of the registered owner, there was noevidence that “ the accused either possessed or used the motor car at thetime set out in the charge”. Here again, the implication is that inorder to sustain a charge under this section it is sufficient to show thatthe registered owner either possessed or used the car.
In Government Agent, Central Province v. Beeman ‘ Drieberg J: took adifferent view. He held that where a registered owner of an omnibus onbeing prosecuted under this section, set up the plea, that during the period
1 3 Cr. App. R. (Ceylon) 38.3 (1936) X Cey. Law■ Journal 43.
* (1336) 5 Cey. Law Weekly 22.* (1933) 33 N. L. R. 343.
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SOERTSZ A.CJ.—Colombo Municipal Council t>. J. A. Perera.
in question the omnibus “was in pieces at a garage ”, he was properlyconvicted because that plea does not.amount to a statement that “he isnot in possession of the bus. If the bus was left for repairs or Storage atVs garage, it was still for the purposes of this section in the possession ofthe appellant. What the appellant says in effect is that he is not inpossession of a car “ which is capable of being used, but if this is so, heshould have satisfied the Registrar …. and had the registrationof it cancelled,’’ Drieberg J. added that “if as' has been proved, theappellant was in possession of the bus he was liable to take out a licencefor it and it does not matter vihether he used it or not
In de Silva v. Rosen Macdonell C.J. adopted this decision and statedthat the effect of it was that “ the accused not having divested himself ofthe possession in law of this car in the manner provided by section 22 orsection 24 .is still in law in possession of this car and is liable for thelicensing duty”. The defence in that case was that the accused had nocar for three years. The prosecution was unable to contradict that.
In Misso v. de. Zoysa I followed these rulings that “ once a person hasbeen registered owner of a car on his declaration that he is entitled topossession of it, he must be regarded as the person in possession of itunless there has been a transfer of possession in the manner provided bythe Ordinance or unless by the cancellation of the registration it ceasesto be a car which cpn be the subject of possession for the purposes of thisOrdinance ”.
In Government Agent, Province of Sabaragamuwa v. Peries ’, Drieberg J.held that in a charge laid under this section no proof is necessary of its userduring the period when there is no licence in force.
Finally, in Hodson v. Cassim Keuneman J. followed GovernmentAgent, Western Province v. Bilinda and Government Agent, Northern Pro-vince v. Sepamalai (supra) and held that “ the mere production of theregister and proof that the accused’s name appears there as the registeredowner is not sufficient to prove that the accused possessed or used thevehicle in question. But where it has been proved that application hasbeen made for registration …. in the name of the accused by theaccused himself or at his instance . . . . it is possible in such circums-tances to presume prim a facie that the accused possessed the vehicle there-after ”. Keuneman J. added that he did not agree with the ruling inGovernment Agent, Central Province v. Beeman, de Silva v. Rosen andMisso v. de Zoysa, and that he thought that “ the presumption of possession”might be “ rebutted by the accused in any way he wishes
After a very careful examination of all these cases and of the Ordinanceitself, I have, as I said, come to a very definite and clear conclusion thatthe correct view is that for the purpose of section 31, the prosecutor mustprove not only that the registered owner possessed the motor car at sometime during the material period, but also that it some time during thatperiod, it was used on a highway. Once these elements have beenestablished,/it is not open to the accused to rebut possession “ in any wayhe wishes ”, but only by bringing himself within the exemptions expresslygiven by the Ordinance.
> (1932) 2 Gey. Law Weekly 98.3 (1934) 88 N. L. R.'SS91.
* (1935) 4 Gey. Law Weekly 81.4 (1938) 40 N. L. R. 835
SOERTSZ A.CJ.—Colombo Municipal Council v. J. A. Perera. 461
To this view I have been led by a careful examination of section 2 of theOrdinance. In the course of the argument before us, that section wasseverelyxcommented upon. I believe I joined in the attack. Mr. H. V.Perera went the length of saying that if the draftsman responsible for theOrdinance knew what he was doing when he framed that section, hewould, or at least, ought to have hidden it away in some obscure comer.But the compiler of the New Edition of the Legislative Enactments hadraised that provision from the humble dependence of a sub-section to thesplendid isolation of a section all by itself- By a strange irony, however,it is this very section that, I think, provides the due to what appeared tobe an inextricable maze. It is the “ open sesame ” to the Ordinance.
Section 2 runs as follows: “unless otherwise provided, this Ordinance ap-plies to a motor car only when on a highway Drieberg J. in GovernmentAgent, Province of Sdbaragamuwa V. Peries (supra) interpreted this section* in its reference to highways as dealing with so much of the Ordinanceas regulates the use of cats”. Obviously, this is a considerable restrictionof the meaning of the words of the section. It can be justified only ifupon any other hypothesis other provisions in the Ordinance are renderednugatory. It is a cardinal rule of legal interpretation' that everydeclaration in an enactment must be assumed to mean all that it says, andthat every word must be given effect to if it is possible to do so. If theLegislature intended to limit the operation of section 2 to that part of theOrdinance that relates to the use of a motor car, and not to make itapplicable to “ matters unconnected with the use of a car ”, it could havemade that intention manifest by the employment of an additional wordor two. But, as it stands, section 2 is an invariable condition precedent,and to be assumed unless otherwise provided. Drieberg J. remarkedthat “ it is not well worded ”. Perhaps, there is some justification for theremark, and perhaps, the idea meant to be conveyed by the use of thephrase “ only when on a highway ” might have been expressed better inother words. But the words used seem sufficient for the end in view.
The scheme of the Legislature appears to be to regulate the constructionand equipment of motor cars that are to appear on our highways; toprovide for the mode and conditions of their use on highways consistentlywith the safety of traffic and with the preservation of the road; and toenable the authorities to collect licensing and other fees by way ofreimbursing themselves for the expenditure incurred on account of thesepair and maintenance of highways. In such a scheme, the Legislatureis not all concerned with motor cars that do not come on highways at anytime, or that do not come on highways during some relevant period. Thepurpose of section 2 is to make that fact clear and to declare that whenany question of compliance or non-compliance with the requirements ofthe Ordinance, or of offence or no offence under it arises, that that questionmust be determined with reference to the prerequisite, whether or not atany material point of time or during any material period the motor car inquestion was on a highway. I cannot accept the dicta of Drieberg J.that “ there can be no relevancy to the offence of non-observance of thisprovision where the car happens to be, whether on the road or in the
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SOERTSZ A.C.J.—Colombo Municipal Council, v. J. A. Perera.
garage ”, and that “ it is an offence for a person to possess a car for whichno licence is in force and this is not affected by the question of place of useror whether it is used at all ”. Now it is clear that in the absence of section 2,the use anywhere in Colombo or outside Colombo whether on highways,or on private lands, of cars of certain dimensions, would constitute anoffence. But, obviously the Legislature could not have so intended.So far as it is concerned, there is no purely ethical or moral desideratumin regard to the dimensions of cars. But their size assumes a primaryimportance when the question is whether they may, or may not bepermitted on a highway consistently with other interests. Similarly, theLegislature is not concerned with the dimensions and relative position oftrailers (section 5), or with the construction and equipment of cars(sections 10 (1), 11, 12, 13, 14, 15, 16, 17) when they are not on a highway.To my mind, it is an essential ingredient of the offence that the car waspn a highway at some material point of time.
A scrutiny of the different chapters of the Ordinance makes this viewinevitable. Chapter II. deals with the construction and equipment ofcars. Section 4 provides for the dimensions of cars for use in Colomboand outside Colombo. Chapters IV., VI., VII., VIII., and IX. deal with“ identification plates ”, “ certificates of competence ”, “ driving rules ",
“ restriction of use on highways and speed limits ”, and “ hiring cars andlorries ” respectively, and as the very titles suggest, are intended to applyto “ motor cars when oh a highway ”. Likewise the supplementarychapter X. contemplates “ motor cars when on a highway ”.
But it may be said that the chapters I have referred to relate to the useof a car and are within the scope of the interpretation given by Drieberg J.
I will, therefore, examine the two chapters I have so far omitted, namely,chapters III. and V., which deal with possession of’cars and in Drieberg J’sphrase “ with matters unconnected with the use of cars ”. These are theimportant chapters so far as this case is concerned. Chapter III. dealswith the registration of Motor Cars. Section 19 (1) read with section 2would have made possession or/and use of a motor car even for a limitedpurpose and by anyone a Call an offence, if it was shown that it had beenon a highway at some material time unless there was a registered ownerof that car. That would have resulted in manufacturers and dealers of carsbeing involved in great hardship, and section 19 (2) is designed to free themfrom that hardship. It provides for possession and/or use by dealers ofcars on a highway although there are no registered owners in respect ofthose cars. Section 19 lays down the first condition for the possession oruse of a motor car on a highway so far as persons other than thoseindicated in its sub-section (2) are concerned. That condition is that thereshould be a registered owner. Section 31 in chapter V. supplementssection 19 and provides the other condition namely that there should be alicence in force to cover both possession and use, at every point of time atwhich a motor car is used on a highway, and here again the dealer isexempted altogether from this requirement, and the owner of a motorcar who has notified the licensing authority that the car will not be usedfor a stated period is exempted during that period from liability toconviction “ by reason only of a person’s possession of the motor car ”.
463
SOEBTSZ A.CJT.—Colombo Municipal Council v. J. A. Perera.
Emphasis is laid on the fact that possession alone will not inculpate himduring that period. If, despite the notification there is user during theperiod notified the person using it will, of course, be liable under section 31
, and the notifying owner’s possession during that period will alsobecome culpable, for the condition for exemption from a licence will havebeen violated, namely the condition of non-user. In that event, the owneras the registered owner becomes liable under 31 (3) to a fine for the offenceas well as to a fine to cover the amount payable for the licence; and theparty who used the car during that period, if he is other than the ownefr,will himself be liable to punishment. Now, it is obvious that it is an easymatter to fix liabjjity in the case of an offending “ user ” of the car. He isthe person detected using it. But if the blamable owner is to be theowner as the (Common law understands him, it will'be necessary to pursuea changing and even elusive person. That of course would be a mostunsatisfactory state of things from the point of view of the Legislature,and to obviate it, section 26 provides that “for the purposes of anyproceeding under this Ordinance, the registered owner shall be deemed tobe the owner”. The only exceptions to this rule are (a) where theabsolute owner registered under section 19 (3) is shown to be in possessionand (b) where the person who would have figured as “ absolute owner ” ifhe had complied with section 19 (3), seizes the car under section 23. (6) andthe registered owner complied with the requirements of section 23 (6) (a)and (b). Any other change of possession does not result in the exemptionof the registered owner from liability unless section 23 is obeyed. Uponsuch a change of possession, however, the person entitled to possession byvirtue of that change is allowed to use the car for seven days although hehas not yet conformed with section 19 (1), but during that period theliability of the registered owner continues despite the change of possessiontill the new owner is put upon the register and licensed. The result isthus attained that there is no interval during which a car “on the highway”exists without an imputable registered owner.
An examination of chapter HI. and chapter V. of the Ordinance in thismanner leads to the conclusion that it is a motor car on the highway thatis in their contemplation as is clearly the case in the other chapters. In aword section two is the comer stone of the Ordinance.
It follows that the accused in this case is not liable to conviction undersection 31 (1) because the uncontradicted evidence in the case is that thismotor car was not on a highway in the year 1938 during which it ischarged by the prosecution and admitted by the accused that there wasno licence in force. There was no obligation imposed on him to obtain alicence in 1938, for a motor car that was not on a highway during thatyear. If, however, there was evidence to show that at any time during1938, this car was on a highway, then in my opinion, it Would not haveavailed the accused to prove that although he appeared as the registeredowner, he was not the true owner because he had sold the car in October,1937. I cannot agree with the view taken by Keuneman J. in Hodson v.Cassim (supra), that it is. open to a registered owner to rebut “ the presump-tion of possession ” “ in any way he wishes It is not, I submit, correct to
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SOERTSZ A.C.J.—Colombo Municipal Council v. J. A. Perera.
speak of “ a presumption of possession ” arising from registered owner-«tiip. It is much more than a presumption that arises. A statutoryposession comes into being and overrides de facto possession and possess-sion as it is understood in Common law. This possession imputed to theregistered owner by the Ordinance, can in the view I take, be displacedonly in the manner expressly provided by the Ordinance.
For these reasons, I set aside the conviction and acquit the accused.
In view of the observation made by my brother de Kretser on thequestion of the burden of proof in a case of this kind, I think I ought toadd a few words to state as clearly as possible that my view on the pointis that it is incumbent on the prosecutor to lead evidence, to show that atsome time during the material period, the car was on a highway, and thatit is only in that event, that occasion arises for the accused to enter upon adefence. In this case, I find the accued not guilty, because the prosecutor- stated that he was not able to establish that essential fact. It is true thatthe accused was able to prove and did prove that he had not used the carduring the year in question. He apparently attempted and accomplishedthat task because the prevailing view was that prima facie case against anaccused was established once it was shown that he continued to bethe registered owner of an unlicensed motor car and that it was in hispossession. But my brothers agree with me that “no charge can bemaintained under section 31 in respect of an unlicensed motor car which hasnot been used on a highway at some time during the material period ”. Tomy mind, the inescapable result of that finding is, that in order to establisha case against an accused, it is necessary for the prosecutor to show notonly that he is the registered owner of an unlicensed motor car, but alsothat the motor car was on a highway at some time during the material period,for the Ordinance applies only to motor cars on a highway. Till suchevidence has been adduced, there is no case for the accuse^, to meet. Heis entitled to maintain “a sullen silence” and to claim an acquittal. Iam quite unable to subscribe to the propositions of my brother de Kretserthat “ in the final result the prosecutor will have to meet a defence ofnon-user and that “ in case of doubt …. the doubt should tellagainst the owner of tjie car If I may say so, with respect, thosepropositions appear to me to be topsy-turvy. They are subversive of thefundamental principles of criminal law that the accuser must prove theguilt of the accused, not the accused his innocence ; and that the accused isalways entitled to the benifit of the doubt.
I am aware that there are a few exceptional criminal cases in which theLegislature has imposed upon the prisoner the burden of proving that heis not guilty, but this is not such a case.
de Kretser J.—
I agree, and wish to add that I reserve my opinion regarding the onus ofproof, a matter which was not argued before us nor discussed later.
In the final result the prosecutor will have to be in a position to meet adefence of. non-user, but in a case of doubt the question of onus will be amatter of importance, and, as at present advised, I incline to the view thatthe doubt should tell against the owner of the car.
SOERTSZ A.C.J.—Perera v. Kannangara.
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WlIEYEWARDBNE J.
I have had the advantage of reading the judgment of my Lord theActing Chief Justice, and I agree that no charge can be maintained undersection 31 of the Motor Car Ordinance (vol. IV., chapter 156) in respectof an unlicensed motor car which had not been used on a highway at sometime during the material period.
In this case there is clear evidence that the car in question was not usedon a highway during the year 1938. I would, therefore set aside theconviction and acquit the accused.
Set aside.