SUPREME COURTDHEERARATNE, J.BANDARANAYAKE, J. ANDISMAIL. J.
SC APPLICATION NO. 192/97CANO. 136/89DC MARAW1 LA NO. 538/M31st JANUARY. 2000
Civil Procedure Code – Action against a public officer – Substitution of theAttorney-General as a party defendant – Section 463 of the Civil ProcedureCode – Steps to appear and defend the officer in the action – EstablishmentCode, Chapter XXXIII section 6.1 – Exemption of the. defendant's docu-ments from stamp duty-Stamp Duty Act, No. 43 of1982, sections 5(14)(bjand 71.
The defendant (the appellant) was the Headquarters Inspector,Wennappuwa Police Station. The plaintiff (the respondent) instituted anaction in the District Court of Marawila in respect of acts purporting Lohave been done by the appellant in his official capacity, after giving himnotices under section 88 of the Police Ordinance and Section 461 of theCivil Procedure Code. The Attorney-General decided to undertake thedefence of the appellant and instructed the appellant to give his proxy tothe State Attorney assigned to the Marawila District Court. Thereafter,the appellant’s answer was settled by State Counsel and sent to the StateAttorney to be filed. The respondent submitted that the proxy and theanswer be rejected as they were unstamped. The DisLrict Judgedisallowed this application. But the Court of Appeal having taken theview that it was only if the Attorney-General's name was substituted asa party defendant that documents filed by him were exempted fromstamp duty, made order that the proxy and the answer be rejected andthe case be fixed for ex parte trial.
By an inveterate practice which has been judically recognized and sinceincorporated in section 6.1 Chapter XXXI11 of the Establishment Code,the Attorney-General may undertake the defence of a public officer eitherby making an application to the court under section 463 of the CivilProcedure Code to be substituted as a party-defendant or by taking steps
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to appear and defend in the action by assigning State Counsel to appearfor the defendant who is a public officer. The proxy and the answer of theappellant were, therefore, exempt from stamp duty. In any event, byvirtue of the provisions of section 5(14)(b) read with section 71 of theStamp Duty Act, No. 43 of 1982, the appellant being sued “virtute officii"the appellant’s appointment given to the State Attorney and his answerwere documents which were exempt from stamp duty.
Cases referred to :
De Silva v. Illangakoon (1956) 57 NLR 457
Sita Rajasingham v. Maureen Seneviratne (1995) 2 Sri LR 71
Vettivelu v. Wijeyeratne (1956) 60 NLR 442 at 443
The Secretary to the Treasury, Colombo v. Mediwaka (1971) 74NLR 503
Abeywickrama v. Pathirana (1986) 1 Sri LR 120 at 139
Maryland Vas Co. v. Macormack KY : 488 S.W. 2d 347 349
Aldridge v. Wooten 68 Ga. APP 887, 24 S.E. 2d 700, 701
State v. Roy 41 N.M. 308 68 P. 2d 162, 165
Yuma County v. Wisener 45 Ariz, 475, 46 P. 2d 115, 118
APPEAL from a judgement of the Court of Appeal reported in (1997) 3 SriLR 74
Uditha Egalahewa, S.C. for defendant – appellantJ.W. Subasinghe, PC for plaintiff – respondent.
Cur. adv. uult.
22nd March, 2000DHEERARATNE J.
The plaintiff – respondent (the respondent) institutedaction against the defendant – appellant (the appellant), in theDistrict Court of Marawila, claiming damages on three causesof action. At the time material to the action, the respondentwas a lawyer of about twenty five years standing and theappellant was the Headquarters Inspector of the WennappuwaPolice Station. The respondent averred in his plaint that on13.01.1988 about 4 p.m. he took two photographs of certainpremises, in respect of which there was an ongoing litigationin the District Court of Marawila, for one of the parties for
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whom he was appearing; that having taken the photographswhen he was returning home by car, he was stopped by a policeconstable who ordered him to proceed to the Wennappuwapolice station; that later at the police station, the constablehanded over the custody of the camera which was with himand his car by which he travelled to the appellant: that at thepolice station the appellant abused and insulted him statingthat he cannot permit anyone to take photographs in his area;that about 7.30 a.m. the following morning, he was informedby the appellant that he had decided to get him remanded interms of the emergency regulations; that he was detained atthe police station until about 10.30 a.m. when he was releasedon bail; and that although his car was released his camera andthe film roll were not. As averred in the plaint, briefly, the firstcause of action was for damages suffered by the respondent onaccount of his being illegally and maliciously arrested anddetained and being insulted; the second was for damagessuffered on account of his being deprived of the use of hiscamera and the unlawful use of the same by the appellant, forsometime; and the third, was for damages suffered on accountof his being deprived of engaging in his professional work in theDistrict Court of Marawila on 14. 01. 1988. By paragraph 25of the plaint, the respondent averred that he gave “notice of theaction by registered post on 1 1th March 1988, to the SeniorSuperintendent of Police, Chilaw division, and the Attorney -General in terms of section 88 of the Police Ordinance andsection 461 of the Civil Procedure Code." I may pause here, torefer to the two provisions under which notice was alleged tohave been given according to the plaint.
Section 88 of the Police Ordinance reads, “All actions andprosecutions against any person which may be lawfully broughtfor anything done or intended to be done under the provisionsof this Ordinance, or under the general police powers herebygiven, shall be commenced within three months after the actcomplained of shall have been committed, and not otherwise;and notice in writing of such action and of the cause thereofshall be given to the defendant, or to the principal officer of the
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district in which the act was committed, one month at leastbefore the commencement of the action; and no plaintiff shallrecover in any such action if tender of sufficient amends shallhave been made before such action brought or if a sufficientsum of money shall have been paid into court after such actionbrought, by or on behalf of the defendant.”
Section 461 of the CPC reads, “No action shall be insti-tuted against the Attorney – General as representing the Stateor against a Minister, Deputy Minister, or public officer inrespect of an act purporting to be done by him in his officialcapacity, until the expiration of one month next after notice inwriting has been delivered to such Attorney – General, Minis-ter, Deputy Minister, or officer (as the case may be), or left athis office, stating the cause of action and the name and placeof abode of the person intending to institute the action and therelief which he claims; and the plaint in such action mustcontain a statement that such notice has been delivered orleft".
Notice in terms of section 461 was rightly given to theappellant, as an allegation of malice in the plaint does notexempt a plaintiff from his duty to give a defendant publicofficer due notice of the action. See De SilvaVs. fUangakoon1".
The Attorney – General after calling for particulars of theincident complained of by the respondent from the appellant’ssuperiors, acceded to the request of the appellant’s superiorsto undertake the defence of the appellant in the District Court.The Attorney – General then instructed the appellant to handover his proxy to Mr. Dalpathadu, the State Attorney assignedto the Marawila District Court, who filed the same andobtained a date to file answer. The answer of the appellant wasthereafter settled by State Counsel and sent to the StateAttorney to be filed. Neither the proxy nor the answer wasstamped at the time of filing. At the trial, the respondentappeared in person having revoked the proxy already given to
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an Attomey-at-Law and the appellant was represented byState Counsel. The respondent submitted that the proxy andthe answer be rejected as they were unstamped. This applica-tion was disallowed by the learned District Judge and therespondent moved the Court of Appeal in revision against thatorder. The Court of Appeal, having taken the view that it wasonly if an application was made by the Attorney-General andhis name substituted as a party defendant that documentsfiled by him were exempted from stamp duty, made order thatthe proxy and the answer be rejected and the case be fixed forex parte trial. The present appeal is the sequel. [The Court ofAppeal Judgment in Jayatissa Herath Vs. Dayaratne is re-ported in (1997) 3 SLR 74).
I may straight away mention that, ordinarily, a documentmay be rejected for non – stamping, only if any law requiresthat stamps should be supplied at the time of its presentation,(see the case of Sita Rqjasingham v. Maureen Seneuiralnd2).Even in that class of document, in certain circumstances,which need not bother us here, it may be possible for a Courtto make an order to supply any deficiency in the value ofstamps subsequently. The proxy not being in that class ofdocument, (if it otherwise attracts stamp duty), cannot berejected for non – stamping. Stamps could be suppliedsubsequently. Therefore the order made by the Court ofAppeal in respect of the proxy cannot in any event be justified.As regards the stamping of the answer, 1 am also unable tofind, on the facts of this case, contrary to what the Court ofAppeal thought, that any link existed between the Attorney -General being substitu ted as the party defendant and exempt-ing the answer of the appellant from stamp duty . As I shalldemonstrate later, exemption from stamp duty can arise, evenwithout the Attorney – General being made a party defendantor even his undertaking the defence of the appellant.
Since certain comments were at the hearing of this appealon the correctness of the procedure adopted by the Attorney -General in undertaking the defence of the appellant in this
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case, I shall make my observations on that matter, to set at restany misgivings that may have arisen.
Section 463 of the CPC reads “if the Attorney – Generalundertakes the defence of an action against a Minister, DeputyMinister, or a public officer, the Attorney – General shall applyto the court, and upon such application the court shallsubstitute the name of the Attorney – General as. a partydefendant in the action For convenience, I shall henceforthrefer to the persons mentioned in this section generically aspublic officials.
Section 464 reads “if such an application is not made bythe Attorney – General on or before the day fixed in the noticefor the defendant to appear and answer to the plaint, the caseshall proceed as in an action between private parties, exceptthat the defendant shall not be liable to arrest, nor his propertyto attachment, otherwise than in execution of a decree.”
The latter section gives the consequences of the Attorney- General not making an application to substitute himself asa party defendant; section 462 had already laid down that nowrit against person or property shall be issued against theAttorney – General in any action brought against the State, orin any action in which he is substituted as a party defendant.The words in section 464, “the case shall proceed as in anaction between private parties", should be read in the contextof the contents of section 462. There is hardly any differencein the procedure to be adopted in an action between privateparties and in an action between the Attorney – General and aprivate party, except that in the latter case, no writ against theperson or property shall be issued against the Attorney -General. (For the sake of completeness, I may mention here,although no writ could be issued against the Attorney -General, the State, as a matter of practice, never fails tohonour a civil judgement pronounced against it, in the nameof good governance). The words “except that the defendantshall not be liable to arrest, nor his property to attachment,"
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in section 464, could only mean that the defendant publicofficial is immune from being arrested and his property frombeing sequestered before judgement, as provided for in Chap-ter XLV1I of the CPC. It was contended on behalf of therespondent that when the action becomes an action betweenprivate parties, the proxy and the answer of the appellantattracts stamp duty. The action becomes an action betweenprivates parties, insofar as the CPC is concerned and thatcannot apply to matters covered by any other enactment,unless the CPC or any other enactment expressly provides so.It is significant that an application for substitution in terms ofsection 464 could be made only on or before the day fixed inthe notice for the defendant to appear and answer the plaintand not thereafter. What if a situation demands a publicofficial intervening in an action as a necessary party and thengetting the Attorney – General to undertake the defence on hisbehalf? Section 464 could be of no assistance in such asituation. It is obvious that the word “notice" in section 464is a reference to a summons (form no. 16) and not a notice ofaction (form no. 79), firstly as the latter does not fix a date forappearance and answer and secondly, after section 461 A wasintroduced, the notice of action could be given even after theinstitution of the action.
An inveterate practice, not in anyway repugnant to theprovisions of the CPC, has been in operation, whereby theAttorney – General undertakes the defence of a public officialreferred to in section 463, without seeking to substitutehimself as a party defendant and this practice is well knownamong those acquainted with the working of the Attorney -General’s Department. Furthermore, this practice has beenjudicially recognized by this Court in at least two decidedcases. In the case of VettiueluVs. Wijeyeratne131 K.D. de SilvaJ. (Sansoni J. agreeing) stated , The fact that the Attorney -General had not made an application under section 463 of theCivil Procedure Code does not disentitle him from assigning aCrown Counsel to appear for the defendant who is a public
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officer from the Bar that when public officers are sued in tortthe Crown does not take up the defence but the Attorney -Genera] instructs the Crown Counsel to appear for them. Noobjection can be taken to that practice”. Again, in the case ofthe Secretary to the Treasury, Colombo, Vs. Mediwaka!41,Sirimane J. (with Wijayatillake J. agreeing) observed “It isobvious that the Attorney General had undertaken the defenceof the officer concerned, although there was no strict compli-ance with section 463 of the Civil Procedure Code. Whenpublic officers are sued, it is the practice of the crown proctorsto file their proxy and a crown counsel to appear at the tried,and this practice has been recognised and approved in VettiveluVs. Wijeyeratne”.
It is not a matter of surprise that this long standingpractice found its way into the Establishment Code, whichCode as learned State Counsel correctly submitted, has all thebinding force of a statute. See the observations of SharvanandaCJ. in Abeywickrama'Vs. Pathirana'51. In the chapter XXXIII ofthe Establishment Code, section 6 is titled "Defence of anaction against Public Officers in their official capacity”.
Section 6.2 reads, “If an officer who is not the Head of aDepartment receives notice of a civil action in respect of an actpurporting to be done by him in his official capacity he shouldcommunicate immediately with the Head of his Department,who should consult the Attorney – General as in the samemanner as in subsection 6.1.
If the Attorney – General is of opinion that he shouldundertake the defence of such public officer, he will apply toCourt for substitution of the Attorney – General as a partydefendant in the action in place of such public officer, or takesteps to appear and defend in that action as may beappropriate." (emphasis added)
(The identical provision is laid down in section 6.1 inrelation to a Head of a Department receiving notice of a civilaction).
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Section 6.3 states that in either of the cases referred topreviously (that is in the case of an officer who is a Head of aDepartment or an officer who is not a Head of a Department)if the Attorney – General is of the opinion that he should notundertake the defence of the action, he should forward papers,along with the reasons for his opinion to the Minister ofJustice.
I can find no repugnancy or contradiction between theprovisions of the CPC and the Establishment Code in relationto the Attorney – General undertaking the defence of a publicofficial. Nor have those provisions in either enactment anybearing on the stamping or non-stamping of the proxy and theanswer in the present case.
The relevant part of section 5 of the Stamp Duty Act No.43 of 1982, as truncated by me would read. The followinginstruments and documents shall be exempt from the pay-ment of stamp duty: (14) the following documents filed in legalproceedings – (b) documents filed in any Court, by publicofficers suing, or being sued or intervening, virtute officii, inany proceeding in such Court”. The interpretation section 71,defines a document in relation to legal proceedings, to includeinter alia, an appointment of an attorney and an answer.
Is the appellant in the instant case being sued virtuteofficii, which would literally mean by virtue of office? Therespondent denies that the appellant is sued in that capacity.But section 461 of the CPC under which the notice of the actionwas given to the appellant and the form of notice (no 79) bothindicate that the appellant was sued “in respect of an actpurporting to be done by him in his official capacity”'
Learned State Counsel drew our attention to the definitionof the English term virtue of office and the Latin expressionvirtute officii in Black’s Law Dictionary. That reads:
Virtue of office : An act done by virtue of office is one inwhich the act is within the authority of the officer but in doingit he exercises that authority improperly or abuses the con.fi-
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dence which the law imposes on him. Maryland Cas. Co. V.Macormack
Virtute officii : By virtue of his office. By the authorityvested in him as the incumbent of the particular office. Anofficer acts “virtute officii” when he acts by the authority vestedin him as the incumbent of the particular office. AldridgeVs.Wooten/71. Where acts done are within the authority of theofficer, but in doing them he exercises that authority improp-erly, or abuses the confidence which the law reposes in him,whilst acts done “colore officii” are where they are of such anature that his office gives him no authority to do them. StateV. Roy/8K Yuma County V. Wisener/91.
Learned President’s Counsel for the respondent con-tended that the Stamp Ordinance No. 22 of 1909 (as amended)was not repealed by the Stamp Duty Act No. 43 of 1982 andtherefore the former enactment is still in force; that thedefinition of the term “instrument” in section 92 of the StampOrdinance is an inclusive definition, wide enough to include aproxy and an answer; and that subsection 8(3) of the StampOrdinance provided as follows:
“It shall be the duty of every officer in the service of theGovernment… to see that no instrument liable to stamp dutyis received or admitted . . . unless, it shall have been dulystamped”.
Learned President’s Counsel submitted that on the appli-cation of subsection 8(3), the appellant’s proxy and answershould be rejected. He further contended that this argumenthad not been advanced in the course of arguments in tine caseof Sita Rajasingham (supra). It is quite evident, that in makingthe submission based on the Stamp Ordinance, learnedPresident’s Counsel has overlooked section 68 of the StampDuty Act, which reads:
“The Stamp Ordinance (Chapter 247) shall not apply toany instrument executed on or after the appointed date”.
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The appointed date in terms of section 1 of the Stamp DutyAct, as determined by the Minister and gazetted, is Is'January1983. The Stamp Ordinance defines only the term "instru-ment” whereas the Stamp Duty Act defines separately theterms “instrument" and “document." It is quite obvious thatin the context of section 68, the term “instrument" refers to an“instrument” within the meaning of the Stamp Ordinance andnot to an “instrument” within the meaning of the Stamp DutyAct; the interpretation section 71 of the Stamp Duty Actprovides that the definition of an “instrument” in that Act shallapply “unless the context otherwise requires”. I am unable topursuade myself to agree with the submission made byLearned President’s Counsel based on the Stamp Ordinance.
For the above reasons, I allow the appeal and set aside thejudgment of the Court of Appeal. I direct the District JudgeMarawila to proceed with the trial of the action. The respond-ent will pay the appellant a sum of Rs. 10,000 as costs of thisappeal.
BANDARANAYAKE, J. I agree.
ISMAIL, J.- I agree.
DAYARATNE v. HERATH