087-NLR-NLR-V-44-DE-SILVA-Appellant-and-DE-SILVA-et-al-Respondents.pdf
de Silva and de Silva.
337
1843Present: Moseley A.C.J. and Keuneman J.
DE SILVA, Appellant, and DE SILVA, et al.} Respondents.
238—D. C. Colombo, 1,286.
Public Service Mutual Provident Association (Cap. 207)—Meaning of wordorphan—Rule defining term—Validity of Rule 8 (1).
The word “orphan” in section 3 of the Public Service MutualProvident Association Ordinance includes the children of a deceased childas defined by rule 8 (1) of the rules of the Association.
Where an Ordinance gives power for the making of rules and providesthat the rules if made in a particular manner shall have the same effectas if they were 'made under the Ordinance, and rules are made in themanner provided, the ordinary question of intra vires or ultra vires willnot apply but it will be permissible for the Courts to consider whetherthe rules so made are consistent with the provisions of the Ordinance,and to hold that the rules if inconsistent with the provisions of theOrdinance are bad.
T
HIS was an interpleader action brought by the plaintiff, The PublicService Mutual Provident Association. The plaintiff alleged
that one C. A. de Silva was a member of the Association. On his deathin November, 1939, the plaintiff paid half the sum payable on his deathto the first defendant, the son of C. A. de Silva. As to the other halfthere was a dispute between the first defendant and the other defendants,the children of a son of C. A. de Silva, who had predeceased him.
N. K. Choksy (with him R. A. Kannangara), for the first defendant,appellant.—The chief object of the Public Service Mutual ProvidentAssociation is to make provision for the widows and orphans of -^hemembers. Section 3 of, and the preamble to, Cap. 207 make this quiteclear. The deceased member in the present case left no widow, and theappellant is the only surviving child. The respondents who are thegrandchildren of the deceased member cannot claim any share. Theword “ orphan ” has a restricted meaning; the Shorter Oxford EnglishDictionary defines it as a fatherless or motherless child. The objectsof the Association cannot be extended by any rule made under section 16of Cap. 207. Rule 8 (1), in so far as it benefits grandchildren, is ultravires. A rule going beyond the, objects of the main Ordinance cannot begiven effect" to. It is not possible, by way of a rule, to make a newenactment. “If a rule were really repugnant to the provisions of theAct, the rule, though made under the powers of the Act, would notoverride its enactments ”.—Craies on Statute Law {4th ed.), p: 268.
H. V. Perera, K.C. (with him E. B. Wickremanayake), for the second,1third, and fourth defendants, respondents.—The meaning of the word“ orphan ” may vary according to the context, and is wide enough toinclude grandchildren.
Section 16 (3) of Cap. 207 provides that all rules made under it shall be-as valid and effectual as if they formed a part of the Ordinance: Rule 8,therefore, should be read as part of the Ordinance. In the circumstancesno question of ultra vires arises. The conflict, if any, between section 3
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KEUNEMAN J.—de Silva and de Silva.
and rule 8, should be treated as a conflict between two sections to befound in the same Act. See dictum of Lord Herschell L.C. in Institute ofPatent Agents v. Lockwood1; Minister of Health v. The King.'
R. A. Kannangara, in reply.—The passage referred to in Institute ofPatent Agents v. Lockwood (supra) is only an obiter dictum. That casewas decided in 1894, before the danger of delegated legislation was fullyrealized. The obiter dictum of Lord Herschell L.C. was adopted byViscount Dunedin, but not by the other Judges, in Minister of Health v.The King (supra). See also, Perera v. Fernando
The words “ child ” and “ children ” must- be deemed to mean descend-ants of the first degree only, and do not include grandchildren—MohamadvBhai v. David de Silva *; Steyn on Law of Wills (1935), p. 39 ; Odgers onConstruction of Deeds and Statutes, p. 155; Stroud’s Judicial Dictionary,p. 305.r
Cur. adv. vult.
July 2, 1943. Reuneman J.—
This is an interpleader action brought by the plaintiff, The PublicService Mutual Provident Association, now incorporated by Chapter 207of the Ordinances. The plaintiff alleged that C. A. de Silva was a memberof the plaintiff Association, and died on November 9, 1939. The plaintiffAssociation paid to the first defendant, the son of C. A. de Silva, half thetotal sum payable on the death, but as the other half, to wit, a sum ofRs. 2,069.80 was in dispute between the first defendant on the one sideand on the other the second, third, and fourth defendants, the childrenof a son of C. A, de Silva who had predeceased him, the plaintiff broughtthat amount into Court, and the present dispute is between the 1stdefendant-appellant and the second, third, and fourth defendants-respondents.
The appellant argued that'the benefits payable by the Association arerestricted to the widow and orphans of the deceased member. Thedeceased left no widow, and the appellant is the only surviving child ofthe deceased member, and the only person, who can be regarded as his“orphan”. The appellant denied that the grandchildren were entitledto any portion of the benefits.
The appellant depended upon section 3 of the Ordinance which setsout the general objects of the Association as follows: —
“ to promote thrift, to give relief to the members in time of sicknessor distress, to aid them when in pecuniary difficulties, and to makeprovision for their widows and orphans ”.
The appellant contended that under section i0 (1) there was no powergiven to make rules in order to extend the objects of the Association,for under section 16 (1) (g) it is restricted to “ the accomplishment of itsobjects ”.
A good deal of the argument turned on the meaning of the word“ orphan ”. The Shorter Oxford English Dictionary defines it as follows.“ one deprived by death of father or mother, or (usually) of both; a fatherlessor motherless child”. This is the strict meaning, but the District Judge
1 L. n. (1391) A. C. 347 a- 339.17 N. L. 17. 494 a’ 499.
* L. R. (1931) A. C. 494.1 (19113 Wcer S4
KEUNEMAN J.—de Silva and de^Silva.
339
has given instances no doubt derived from America, where a somewhatwider meaning has been given to the term. I further think that, inpopular speech, the word orphan denotes some degree of dependenceon the parents, and the term is hardly used, where the person deprived ofhis parents is himself grown up and a bread winner, as is the appellant.Again in the case of this Association, if the word “ orphan ” is to be giventhe restricted meaning, the result would be that if the member had leftno widow or surviving children, but had left grandchildren, there would beno one who could claim the benefits. This would hardly be in consonancewith the other object of the Association, viz., to promote thrift. I amtherefore of opinion that the word “ orphan ” has not a precise and strictmeaning, and that further definition of the word was possible, and evendesirable.
The respondents argued that under the rules of the Association therehas been this further definition. The relevant rule reads as follows : —
“ 8.(1) Upon the death of any member the amount to his credit
…. shall be paid to his widow and legitimate children (which
expression shall mean and include the legitimate issue of any deceasedlegitimate child per stirpes or by representation) ….”.
The respondents further pointed that this rule has been confirmedby the Governor, and notice of the confirmation has been published in theGovernment Gazette, and say that the rule must be regarded “ as valid andeffectual as if it had been enacted ” in the Ordinance itself (see section16 (3) ).
The effect of these last words has been considered in the case of Instituteof Patent Agents v. Lockwood1 decided in the House of Lords—a considered.judgment, but one which is no doubt obiter on this point. Lord HerschellL.C. said on this matter :
“ They are to be 1 of the same effect as if they were contained in theAct’. My Lords, I have asked in vain for any explanation of themeaning of these words or any suggestion as to the effect to be givento them if, notwithstanding that provision, the rules are open to reviewand consideration by the Courts. The effect of an enactment is that itbinds all subjects who are affected by it …. But there is this
difference between a rule and an enactment, that whereas apart fromsome such provision as we are considering, you may canvass a rule anddetermine whether or not it was within the power of those who made it,you cannot canvass in that way the provisions of an Act of Parliament ”.
The Lord Chancellor added : —
“ No doubt there might be some conflict between .a rule and aprovision of the Act. Well, there is a conflict sometimes betweentwo sections to be found in the same Act. You have to try and reconcilethem- as best you may. If you cannot, you have to determine Which isthe leading provision and which the subordinate provision, and whichmust -give way to the other. That would be. so with regard to theenactment, and with regard to rules which are to be treated as if withinthe enactment. In that case probably the enactment itself would betreated as the governing consideration and the rule as subordinate toit ”.-
■ L. R. (lS9i) A. C. 3iT,
340
KETINEMAN J.—de Silva and de Silva.
This matter was again considered by the House of Lords in Minister of■Health v. The King1 (on the prosecution of Yaffe). Viscount Dunedinthere stated that “the'real clue to the solution of the problem is to befound in the opinion of Herschell L.C.” in the passage I have alreadycited. He further referred to a point, also made in this appeal—
“ There is an obvious distinction between that case and this, becausethere Parliament itself was in control of the rules for forty days afterthey were passed, and could have annulled them if motion were madeto that effect, whereas here there is no Parliamentary manner ofdealing with the confirmation of’ the scheme by the Minister of Health.Yet I do not think that that distinction, obvious as it is, would avail toprevent the sanction given being an untouchable sanction ”.
Viscount Dunedin sums up the matter as follows : —
“ What that comes to is this : The confirmation makes the schemespeak as if it were contained in an Act of Parliament, but the Act ofParliament in which it is contained is the Act which provides for theframing of the scheme, not a subsequent Act. If therefore the scheme,as made, conflicts with the Act, it will have to give way to the Act.The mere confirmation will not save it. ”
The majority of their Lordships are not in disagreement with thedictum of Lord Herschell, but they emphahise, (1) that the rule must bewithin the statutory authority, and (2) that the rules should not beinconsistent with the provisions of the Act.
In my opinion the trlie ^principle to be derived from these decisionsin their application to the present case is that, where there is an Ordinancewhich gives power for the making of rules, and provides that the rules,if made in a particular manner, shall have the same effect as if they weremade under the Ordinance, once the rules are made in the mannerprovided, the ordinary question of intra vires of ultra vires will not apply,but it will always be permissible for the Courts to consider whether therules so made are consistent with the provisions of the Ordinance,and to hold that the rules,if inconsistent with the provisions of the Ordinanceare Bad. In the present case, we must treat the matter, not on the footingthat the rule has to be canvassed as subordinate, because it has to beshown to be.intra vires, but rather on the footing that both the originalprovisions of the Ordinance, and the present rule are. contained in thesame enactment. The question* then arises whether the rule is inconsist-ent with the provisions of the Ordinance. As I have already pointedout, I do not consider that the word “orphan” has been used in its strictmeaning-, and I consider that the rule gives it a meaning which is notincompatible, with the provisions Of the Ordinance. In other wordsthere is not such an inconsistency, that we must hold that the rule mustgive way .to the provisions of the Ordinance as strictly interpreted.
One other point has been raised by the appellant. He contends that,if the rules are to be regarded as valid, he is the sole nominee of thedeceased member. Th'e rules as originally made had not. provided for nomination, but by the Gazette ot November 21, 1924, the power wasgiven to a member who desired the children’s shares to bp divided in
;1 L. B. (1931) A. C. 494.
341
Costa and Jayawardene.
other than equal shares, to notify to the Association the shares he desiredto be allotted to each child. It is to be noted that this rule did not givethe member the right to exclude any child entirely from participatingin the benefits. But by a later Gazette of July 5, 1929, the member wasgiven the power to assign the benefits to any one or more children to theexclusion of the remainder. The evidence with regard to the allegednomination of the appellant is as follows :—A letter 1 D 1 of February 25,1925, alleged to have been signed by the Secretary of the Association,and acknowledging a letter of the “23rd inst”, relating to the nomina-tion of the appellant, was tendered, but rightly rejected as not proved.The member’s letter of February 23, 1925, was not available. Anotherletter 1 D 2 of September 4, 1924, by the deceased member purporting tonominate the appellant was admitted. A copy of the nominationregister of the Association was also put in, where the name of the nomineeis given as the appellant, but the “date of appointment” (by whichpresumably is meant the date of nomination) is given as “Septemberand 10th November, 1924”. Clearly then the only acts of nominationproved were made before the date of the Gazette of November 21, 1924, andeven if, 1 D 1 can be said to have some effect, the nomination in questionwas before the Gazette of July 5, 1929, which for the first time gave to themember the right to exclude any of the possible beneficiaries. I holdthat there has been no valid nomination by the member of the appellant,as sole beneficiary.
The appeal is dismissed with costs.
Moseley A.C.J.—I agree.
Appeal dismissed.