D ember v. Abdul Hafeel.
1947Present: Soertsz S. P. 3. and Canekeratne 3.DUMBER, Petitioner and ABDUL HAFEEL, Respondent.
S. C. 36—Application for restitutio in integrum in
C. Colombo, 12,416.
Restitutio in integrum—Petitioner interned at time of action—Unable to instructProctor and place him in funds—Grounds for relief.
Petitioner was sued for demages for breach of contract. He was not presentat the trial but was represented by a proctor and judgment after trial wasentered against him. Petitioner applied for restitutio in integrum on theground that, by reasom of the fact that at the time of the trial be was internedin an Internment Camp, he had been unable either to instruct his proctor orplace him in funds for the proper conduct of the case.
■ Held, that the remedy of restitutio in intergrum was not available in thecircumstance.
CANEKERATNE J.—Dember v. Abdul Hafeel.
.A.PPLICATION for restitutio in integrum.
F. N. Gratiaen, K.C., with Ivor Misso, for the defendant,petitioner.
H. V. Perera, K.C., with V. A. Kondiah, for the plaintiff,respondent.
Cw. adv. vult.
November 12, 1947. Canekeratne J.—
This is an application to have the judgment and proceedings in actionNo. 12,416 M of the District Court of Colombo set aside ; the actionwas one instituted about September 30, 1940, against the petitioner bythe respondent for recovery of damages for breach of a contract of saleof “ old clean and unused newspapers ”. The petitioner denied lia-bility on certain grounds. He had been interned in the InternmentCamp at Diyatalawa and by the end of the year 1942 was transferredto a camp in India. After certain earlier proceedings the care ultimatelycame on for trial on Novermber 30, 1944. Issues were then framed andevidence led on behalf of the respondent but no evidence was called onbehalf of the petitioner who was represented by his Proctor : he howeverraised an issue as regards a term of the contract. The trial was con-cluded and about a fortnight later judgment was entered against thepetitioner.
In the present application which was filed on January 23, 1947, thepetitioner states (a) that he was released from internment in August, 1946,and that by reason of the internment he was not in a position to instructhis lawyers in regard to the steps to be taken and witnesses to be sum-moned on his behalf at the trial and (6) that as a result of being internedhe was not able to place his Proctors in funds for the proper conductof the case and to enable them to summon the necessary witnesses.It was contended at the argument that in the interests of justice thejudgment alleged to have been pronounced in the absence of the petitionershould be set aside as the Roman -Dutch Law allowed restitutio in integrumin respect of proceedings of this nature.
In integrum restitutio, in Roman Law, was a branch of the praetor’sequitable jurisdiction and one of the most remarkable cases of his cognitioextraordinaria. It denotes the act not of a private party, but of amagisterial authority. It is the restitution by the praetor to his originallegal condition, in cases where some injury has been done to a personby operation of law. Tbe interposition in such cases of the highestRoman Minister of Justice bears some analogy to the use made of theprerogative of the Crown in early English legal history. The functionof thus over-riding the law where it collided with equity was only confidedto the highest magisterial authority, and even in his hands was governed
CAJNEKJERATNE J.—Dember v. Abdul Hof eel.
by the principle that he was only supposed to act in a magisterial, notin a legal capacity. Five grounds or titles (justae causae) to extra-ordinary relief (extraordinarium auxilium) were recognized and enu-merated in the Edict, Dig. 4, 1 intimidation (rruius), fraud (dolus malus),absentia, error, minority (aetatis infirmitas). Two, however, of these titles,fraud and intimidation, had additional remedies in the ordinary courseof procedure where they were recognised as grounds of exception andpersonal action—the actio and exceptio metus, the exceptio and the actiodoli. The effect of a grant of restitution was simply to reinstate a personto a legal right which he bad lost, not to give damages on account ofthe violation of a right. It is to be observed that the praetor expresslyavowed his magisterial discretion to be limited by statutory law1.
The remedy of restitutio in integrum became part of the law of Holland.It is the reinstatement of an individual in the position he occupiedbefore some occurrence that had resulted to his prejudice—the act ofrescission is called restitutio in integrum. The remedy was obtainedby an application made at the commencement of the action, but if theobligation was pleaded after an action has been commenced by obtain-ing permission to make a civil application to the Court for relief. Inthe case of a principal transaction, as Schorer states, restitution is grantedby the Sovereign or by the High Council to whom the function is delegated,,the practice being for the applicant to be referred to the inferior courtsto inquire whether it is based on truth and is a sufficiently just one,and if it be found so, the restitution is confirmed ; if not, it is refused.He gives as examples of a principal transaction, a contract or compromiseor adiation of an inheritance.
There are three conditions of restitution : (1) The first condition isa laesion by the operation of law, i.e., a disadvantageous change in civilrights or obligations brought about by some omission or dispositionof the person who claims relief. (2) A second condition of relief is theabsence of various disentitling circumstances. Thus relief is grantedagainst the -effect of legal dispositions and omissions, but in RomanHaw not against the effect of delicts. Again the extraordinary relief ofrestitutio in integrum is not granted when the courts of law can administeran adequate remedy. If restitution will be more effective than theordinary remedy it may be granted. (3) A third condition is some.special or abnormal position of the person who claims relief when such,special circumstance is the cause of the loss which he has suffered.Such abnormal positions are minority, compulsion, fear, fraud, error,absence. Thus a minor may be relieved against an injudicious bargain,but not against the casual destruction of the thing he has purchased,for this loss was not occasioned by his minority or inexperience.
Grotius after stating that obligations may be rendered invalid byintrinsic or extrinsic causes proceeds to discuss the reliefs available.Intrinsic causes for relief are fear, fraud and minority. Under extrinsiccauses he discusses decrees or quasi-decrees of Court2. The cases inwhich relief may, according to van der Linden, be obtained can, broadlyspeaking, be grouped under two heads : (1) Relief relating to the original
Sohm, Roman Lmo, 88*a Grotvua, Introduction, 3-48—3, 4 ; 3—49—1, 2.
CANEKERATNE J.—Dember v. Abdul Hafed.
matter itself (substantial relief) : relief, or relieving a party from anyact or contract and replacing him in his former situation is granted onthe ground of his having been induced through fear, fraud, minority,error or other sufficient reasons to do the act against which he praysrelief; among good reasons for obtaining relief he had earlier mentionedthese—fear, violence, fraud, minority, absence, excusable error andprejudice in above half the value of the thing and further, such equitablegrounds as may justify the resolution or cancellation of the contract.(2) Relief relating merely to some omission or error in the process orpleadings (judicial relief1). A Court will grant relief where one has beenbarred from pleading, where there has been delay or default in takingproceedings, as filing a petition of appeal or prosecuting it within thetime limited (ten or twenty days respectively), a creditor omitting tofile his claim in insolvencey. It is necessary to refer again to absenceand the effect of a judgment. In consequence of his absence a personmay have lost a right of action by limitation or some property throughadverse possession on the part of a third person. As regards the formerrelief, by way of restitution does not seem to have been necessary inGrotius’ time, the rule, broadly stated, being limitation cannot runagainst a person who is not competent to sue. Relief against pre-scription in rspect of property could be applied for where there werelawful reasons such as unavoidable absence2. Restitution is granted,according to Maasdorp3, in some matters in which a perons has suffereddamage through absence such as in matters of default in legal proceedingsor in the acquisition of property by prescription. But relief againstan absent person is only granted if the absent person has not left behindone with power to act for him (2 Nathan 165 quoting Voet).
A judgment has, according to Grotius, the force of a final and definitesentence when it does not admit of appeal or reformation or when thetime for such appeal or reformation is passed unless indeed the judgmentis altered by revision. A judgment though ipso jure null and void is validunless appealed against and has the effect of res judicata unless indeedits nullity is due to want of jurisdiction or of service of summons or ofpower to sue. A judgment, however, may be rescinded by a restitutioin integrum, so as to lose all the effect of res judicata and the cause isthen heard de novo just as if the judge had known nothing about it before :restitution was not, as a general rule available, according to Grotius4,on account of the discovery of fresh evidence but in Schorer’s time thelaw had gone further : restitution will be allowed whenever it was notowing to any negligence on the part of the applicant that the documentswere not discovered, for instance, if they were in the possession of a"third person without any act on his part and without any possibilityof his knowing of it, especially if it was due to the fraud of the oppositeparty that they were not discovered5. In the Jurisprudence of Hollandand of those countries, as Burte states, which adpot the civil law, the■exception of res judicata could be avoided only on the ground of fraud-or nullity consisting in the want of jurisdiction either inrespect of the
1 von der Linden, Introduction (Henry's translation), pp. 466, 275, 467, 468.
‘ Grotius, op. cit 2—7-2.4 Grotius, op. cit. 3—49-5.
5 Maasdorp, Vol. Ill (1st Ed.), 70.6 Schorer, note D XXVII.
SOERTSZ S.P.J.—Allots Appu v. Bansagayah.
subject of the suit or on account of the party against whom the sentence-was pronounced not having been only cited and afforded an opportunitydefending himself1.
The cases in which application for relief by way of restitution in respectof judgments of original courts have been made in Ceylon can, broadlyspeaking, be classed under two heads : (a) where a judgement has beenobtained by fraud or where there has been a discovery of fresh evidence ;
where a judgment has been entered of consent and there has been anabsence of a real consent such as in cases of fraud, fear, excess of authorityand mistake. It was open to the petitioner to make an applicationto have his evidence taken on commission and this matter was advertedto in the order made by this Court on March 30, 1944, when this casewas remitted to the District Court. That he was not able to makesuch ah application may be due to his lack of means at the time ; it maybe his misfortune but that is really no ground for differentiating his.case from that of another who is not able to get the funds necessaryfor prosecuting an appeal in time. It can hardly be said that the presentapplication comes within the rule as laid down by the Roman-Dutch.Law1 writers or the decisions of this Court.
The application is refused with costs.
Soebtsz S.P.J.—I agree.