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Present; Garvin and Lyall Grant JJ.
DON JAMES ct ah v. DON CHARLES.
319—D. C. Colombo, 15,587.
IVrcmg/tti seizure—Default in payment of sanitary rates—Failure toobscroe <bc order o/ precedence—Malice—Ordinance No, 0 of1873, s. 1.
Where a Vidane Arachchi seized and sold certain property, which,was not movable, belonging to the plaintiff, in default of the pay-ment of sanitary rates, and where the plaintilf failed to point outmovable property, sufficient to cover the amount of the tax, forseizure,—
Held, that the Vidane Arachchi was exempt from liability for notobserving the order of seizure and sale prescribed by OrdinanceNo. 6 of 1873.
HIS was an action brought by the plaintiff to recover a sum oi
Bs. 1,000 damages from the defendants. In default of paymentof Sanitary Board rates by the plaintiff, a distress warrant was issuedby the Government Agent for the seizure and sale of the property ofthe plaintiff to cover the amounts due. The Mudaliyar, VidaneArachchi, and a clerk acting on orders proceeded to the spot, andwhen the Vidane Arachchi had seized some coconuts on the trees-they were resisted. A prosecution was successfully lodged againstthe plaintiff in the Police Court, but the conviction was set aside in-appeal on the ground that there was no authority to seize the nutsand that consequently the resistance offered was not unlawful.The plaintiff thereafter filed the present action for damages against,the Vidane Arachchi for malicious prosecution and wrongful seizure.The learned District Judge dismissed the plaintiff's action.
H. V, Percra, for plaintiff, appellant.—The question of bona fide-vneed not be considered where the act is-an unlawful one. If thedefendant thought that his authority extended even to the pluckingof nuts this would be ignorance of the law. Bona fides would haveto be considered if the action is purely one of malicious prosecution.Here it is not necessary to show malice as ordinarily understood,but only a reckless disregard of the consequences of his act. TheOrdinance requires movable property to be seized first-, and also tendays should elapse before the sale. In this case, therefore, theseizure and sale are both illegal.
[Drieberg K.C. points out that the action was for maliciousprosecution and not for wrongful seizure. ]
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The paragraph in the plaint which says that the defendant acted *
in abuse of the distress warrant is wide enough to include an allege- Don Jamestion of wrongful seizure. With regard to malice, it is not necessary jyonGharU#to prove an intent to injure, but only a reckless disregard of theconsequences of his act (vide Serajudeen v. Allagapa Chetty l). Coco-nuts on the trees, being immovable property, cannot be seised beforemovable property. Even if they could be seized, there w&s no legalseizure. There was only a notice that the coconuts would be soldif the rates were not paid.
With regard to damages, the unnecessary expenses we were putto in defending ourselves in the Police Court would not be tooremote.
Driebery K.C.t for defendant, respondent.—The action was formalicious prosecution and not for wrongful seizure.
The only grievance is that in seizing coconuts the defendant didnot observe the correct order of seizure. How could the plaintiffobject to this when he did not surrender the movable property ? Amere notification is sufficient to constitute seizure. (Corea v. Perns.*)
H. V. Perera in reply.
This is an appeal from a. judgment dismissing the plaintiffs' actionto recover from the defendant a sum of Rs. 1,000. The cause ofaction is set out in the plaint as follows: —
“ That the defendant acted maliciously, unlawfully, and withoutreasonable and probable cause " in entering a certainprosecution against the plaintiff; “ and further statedthat the defendant committed and caused to be done orcommitted acts of mischief and damage to the plaintiffs'property by acting illegally and in abuse of a distresswarrant issued to him by the Government Agent of theWestern Province."
The facts of the case has been clearly found by the District-Judge. The defendant was a Vidane Arachchi. By a letter ofauthority, D 3, dated January 27, 1023, signed by the GovernmentAgent, Western Province, he was authorized “ to seize andsell the properties of the persons named in the annexed schedulemarked Homagama M for default of payment of Sanitary Boardrates due and payable to the Sanitary Board of Homagama. Actingin pursuance of this authority the Vidane Arachchi made a seizureof the coconuts on a land belonging to the plaintiff. He went to theland, served a notice on the first plaintiff, intimating to him thathe had seized the coconuts, and the fact of the seizure was further
> (1910) 21 JV. L. R. 428.
(1909) 12 N. L. R. 147.
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CrAUVIX -i.Don- -fame*
advertised. Despite the seizure the plaintiff omitted to pay the.small amounts due to the Board. There apparently was reasonto believe that the officers who were charged with the eolledtionwould be obstructed, and so the Government Agent directed theMudaliyar of the district and the chief clerk of the Sanitary Boardto accompany the Vidane Arac-hchi. Accordingly on the dayappointed for the sale the Vidane Arachclii accompanied by theMudaliyar and the chief clerk proceeded to the plaintiffs* land.They caused a number of coconuts, which they have thought suffi-cient in value to cover the amouut due by way of tax to he picked.The Vidane Arachchi then proceeded to sell these nuts. Theplaintiff to whom application had been made that very day forpayment of the tax and who did not do so then proceeded to givetrouble. The second plaintiff held the Vidane Arachchi, while thefirst plaintiff and his brother appeared on the scene and started topush him about. The clerk. Harry Silva, intervened and seized thesecond plaintiff. Then another young man appeared with a ma-moty and struck the defendant. The defendant succeeded inwresting the mamoty from the assailant who ran away. A headman,who was also present, succeeded in arresting him, but he escaped.In a short while this man returned brandishing a knife. Theofficers ultimately succeeded in securing the plaintiffs and two othersand the party proceeded to the. police station.. The Mudaliyar thenreported all the facts and circumstances to the Government Agentwho directed a prosecution of these persons for resistance to thepublic officers in the execution of their duty. It is this prosecutionwhich it is alleged was entered by the defendant maliciously andwithout, reasonable or probable cause and is the foundation for theclaim for damages. The persons charged were all convicted but inappeal they were acquitted, the presiding Judge observing that hecame to the conclusion with reluctance. He was driven to do sobecause he took the view that the Vidane Arachchi had no authorityto seize the nuts and consequently that he was not resisted in hiscapacity of a public servant. The point raised in the appeal fromthe conviction was that- in levying execution the officer was boundby the provisions of Ordinance No. 6 of 1873 to seize and sell propertybelonging to the defaulter in the order set out in that Ordinance.It is a requirement of the Ordinance that movable property of thedefaulter should be first seized: failing movable property the rentsand profits of the house, building, land, or tenement liable to suchtax; failing such rents and profits the materials o.f such house, andfinally the house or land itself. It was successfully argued that theseizure of nuts which had not yet been picked was not a seizure ofmovable property, and that the Vidane Arachchi was resisted whenhe did that which he had no authority to do. There can be littledoubt that when the Vidane Arachchi seized these nuts he did so in
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the belief that he was seizing movable property, and there areindications that this is a view which was shared by his superiorofficers. But the question with which we are here concerned iswhether the prosecution by the Vidane Arachclii can be said to havebeen with malice as that term is known to the law. It is, I think,a sufficient answer to the claim that in entering this prosecution theVidane Arachchi was acting on the orders of his superior officers.These orders were issued upon facts which were stated to the(Government Agent by the Mudaliyar, and not by the VidaneArachchi. There can be no doubt the prosecution was the directresult of the needlessly aggressive and obstructive conduct of theplaintiffs themselves. It is impossible to believe that that conductwas induced by an honest conviction that the officers were actingillegally. It is, I think, obvious that the real reason which actuatedthe plaintiff was a determination to resist the payment of this tax atall costs. Be that as it- may, they have had the benefit of a technicaldefect in the procedure followed in execution of the distress warrant.Apart from this defect there is nothing in the facts and circum-stances of this case which justify the suggestion that the defendantwas impelled to institute this prosecution out of mere desire torevenge himself for the humiliation to which it is said he was sub-jected, nor is there anything to show that from beginning to end thedefendant acted otherwise than in the honest belief that he wasentitled in law to do all he did. The claim for damages for maliciousprosecution fails. It was urged, however, that the plaintiffs wereentitled to recover the damage sustained by them in consequenceof what is referred to as the illegal seizure of these coconuts. Inpoint of fact no damage has been proved, but had there beenevidence of such damage, I think, that the proviso to section 1 of theOrdinance No. 6 of 1878 protects the officer from any such claim.It was competent for the plaintiffs to point out movable propertysufficient to cover the amount of the tax for seizure and sale. Theydid not do so. Under the circumstances the defendant, even if hedid not observe the order of seizure and sale prescribed by theOrdinance, is exempt from liability.
The appeal is dismissed with costs.
Lyali. Grant J.—I agree.
DON JAMES et al. v. DON CHARLES