014-NLR-NLR-V-45-FERNANDO-Appellant.-and-THE-KALUTARA-POLICE-Respondent.pdf
Fernando and The Kalutara Police.
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1943Present : Soertsz and Keuneman JJ.FEEXAXDO, Appellant, and THE KALUTARA POLICE, Respondent.
S82—M. C. Kalutara, 16,385.
Seashore—Removing sandfrom partofseashore—Limit of seashore—Area
reached by monsoonstorms—Roman-Dutchlaw—SeashoreProtection
Ordinance (Cap. 310) s. 2.
On ‘ thewestern coast of Ceylon the furthest line reached by the
sea duringthe ordinary south-west monsoon storms excluding exceptional
or abnormal floods is the limit of the seashore for purposes of section 2of the Seashore Protection Ordinance.
C
ASE referred by Keuneman J. to a Bench of two Judges. The factsappear from the argument.
H. V. Perera, K.C. (with him E. B. Wickremanayalte), for the accused,appellant.—-The accused has been convicted of removing sand from aprohibited area of the seashore. Under section 2 of the SeashoreProtection Ordinance (Cap. 310) the Governor can proclaim only a partof the seashore as a prohibited area. It cannot be said that the placefrom where the sand was removed by the accused is seashore. TheMagistrate has, by following the South African case of Pharo v. Stephan1,erred in giving to the word “ seashore ” the meaning attached to it inRoman-Dutch law; we have no “ winter-storms ” in this part of theworld. As the word occurs in a legislative enactment it should be givenits ordinary English meaning, in the absence of a special definition in theenactment or unless the Ordinance is one dealing with any civil rights ofthe Crown. The meaning given to “ seashore ” in Webster’s Dictionary is“ all the ground between the ordinary high-water and low-water marks ”,and in the Oxford Dictionary “ the ground actually washed by the sea athigh-tides ”. According to Attorney-General v. Chambers 2 seashore' is“ the land covered by the ordinary flux and reflux of the ocean Seealso Mudaliyar, Salpiti korale v. Silva3. Where a word is not definedin an enactment it has to be given its ordinary and popular meaning—Craie on Statute Law, p. 151. The property in question in the presentcase has hitherto been always regarded as private property, and there isno warrant for holding it as seashore merely because the sea beats into itduring stormy weather. Waves, unlike tides which are influenced by thegun and moon, are caused by winds and can sometimes beat far inlandover and across private property.
T.S. Fernando, C.C., for the complainant, respondent.—As the word“ seashore ” has not been defined in the Ordinance, it must be given itsordinary and popular meaning. But as such popular meaning of theword is vague and the definitions given in the Dictionaries are indefinite,
1 S. A. L. R. (1917) A. D. 1.* (1854) 23 L. J. Ch. 662.
3 (1935) 13 Times 2.
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KEUNEMAN J.—Fernando and The Kalutara Police.
one must have recourse to the legal meaning of the word. If the legalmeaning is to be given, then what must be ascertained is the meaningthe word obtains in the common law of this country. The common lawin this part of the Island is the Roman-Dutch law. English decisionstherefore have no application.
“• Seashore ” has been defined in Pharo v. Stephan 1 by a bench of threeJudges. This definition was approved in the later case of Surveyor-General (Cape) v. Estate de Yilliers 2, a decision by a bench of five Judges-A1 though there are no winter storms in this country, there is evidencein the case that the south-west monsoon lasts for about five monthsevery year. There is therefore a regular stormy season occurring everyyear.
The decision in Attorney-General v. Chambers (supra) is not applicable.It was considered in Pharo v. Stephan (supra), and the reasons for itsinapplicability are stated therein.
Cur. adv. vutt.
December 20, 1943. K eumeman J.—
This appeal was argued before me originally, and I referred it to aBench of two Judges. It was later argued on April 7, 1943, before mybrother Soertsz and myself, and was referred to the Magistrate for therecording of evidence on specified points. After some- delay the evidence-was recorded, and the appeal was further argued before us.
The accused was charged with removing sand from a prohibited place,to wit, the part of the seashore at Kalutara North, which lies betweenthe northern administrative limit of Kalutara Urban Council and Kalu-ganga, proclaimed under section 2 of the Seashore Protection Ordinance(Cap. 310), published in Government Gazette No. 8,616 of May 24, 1940.The offence was punishable under section 5 of Cap. 310. The accusedwas convicted of this offence.
The Gazette defines the northern and the southern limits of theprohibited area, and there is no question that the sand was removed frombetween the limits. The question we have to decide is whether the placethe sand was taken from was part of the “ seashore ”, for under section %the Governor has power to proclaim “ any part of the seashore ” as aprohibited area, and thereupon no person can remove sand, &c., from“ such area or from the bed of the sea contiguous thereto to a distance ofOne mile from the shore ”. It is to be noted that, while the seawardlimit is defined, the landward limit is not, and that will depend on themeaning of the word “ seashore ”.
Counsel for the accused contended that the word “ seashore ” shouldbe determined according to the" English law, and cited the case ofAttorney-General v. Chambers 3, where it was held that “ in the absence ofall evidence of particular usage, the extent of the right of the Crownto the seashore landwards is prima facie limited by the line of the mediumhigh tide between the springs and the neaps ”.
1 S. A. Reports {1917) A. D. 1.2 <S. A. Reports (1923) A. D. 588.
3 23 L. J. Ch. 662 ; 43 English Reports 486.
KEUNEMAX J.—Fernando and The Kalutara Police.
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Cranworth L.C. in this case stated “ What is the littus? Is it so muchas is covered by the ordinary spring tides, or is it something less ?
‘‘ The rule of the civil law was ‘Est autem littus mans quatenus hybemusfluctus maximus exchrrit ’. This is certainly not the doctrine of our law.All the authorities concur in the conclusion that the right is confined towhat is covered by * ordinary ’ tides, whatever be the right interpretationof that word. By Jvybemus fluctus maximus is clearly meant extraordinaryhigh tides, though speaking with physical accuracy, the winter tide is notin general the highest ”.
Cranworth L.C. considered the authorities and came to the conclusionthat “ the Crown’s right is limited to land which is for the most part notdry or maniorable ”, and that this limit is " the line of the medium hightide between the springs and the neaps. All land below the line is moreoften than not covered at high water, and so may be justly said, in thelanguage of Lord Hale, to be covered by the ordinary flux of the sea ”.
If the English meaning of “ seashore ” is adopted, it is clear thaton the evidence in this case the accused has committed no offence byremoving sand from a prohibited area.
Counsel for the prosecution contended that in Ceylon the word “ sea-shore ” has to be given the meaning appropriate to it under the Roman-Dutch law, and not that under the English law. He cited the case ofPliaro v. Ste-phan1, where it was held that “ under the Roman-Butch lawthe boundary of the seashore is the furthest line reached by the seaduring the ordinary winter storms, excluding an exceptional or abnormalflood *’. This was a decision of three Judges. In the very learned andconvincing judgments, the authorities in the Roman law, the Roman-Dutch law and the English law were fully discussed.
“ The conclusion then to which I come ”, said Solomon J.A., “isthat the definitions in the Corpus Juris, which are all substantially tothe same effect, were adopted by the Roman-Dutch jurists, and that bymaximus fluctus (hybemus) they understand the furthest line reached bythe sea during the ordinary winter storms, excluding an exceptional orabnormal flood. And if that is the Roman-Dutch law on the subjectwe must accept it as binding upon us, unless we are justified on somegood legal ground in rejecting it ”. He further quoted authority for theproposition that “ fluctus in the definitions of littus does not mean tide,but the flow of the sea when agitated by storms ”.
Maasdorp J.A. discussed the question whether “ hybernus ” referredto the winter season or the stormy season, and came to this conclusion: —
“ As a rule the line reached during the stormy season of the year bythe water of the sea would be indicated by the effect of the water onthe land, or it could be ascertained from the evidence of residents inthe neighbourhood. Then again we must not take into account anyextraordinary or occasional storm, but only annually recurring stormyweather. That is indicated by the word ” hybernus ” used in thedefinitions, which points to something happening every season ”.
Solomon J.A. also cited authorities which lead to the conclusion thatthe reference is to a particular stormy season.
S. A. Reports {1917) A. D. 1.
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KEUNEMAJM J.—Fernando and The Kalutara Police.
The ease of PTtaro v. Stephan (supra) was apparently followed in theease of Surveyor-General (Cape) v. Estate de V{liters1. This was a decisionof five Judges, where the question arose of interpreting the words in agrant “ S.E. to the sea-coast Ip this case the position of the Crownand of the public in respect of the ownership and use of the seashorewas also discussed, but we are not concerned with this matter in thepresent case.
What is the position in Ceylon ? I am of opinion that we are bound tuadopt the Roman-Dutch interpretation of the word “ seashore ”, unlessthere is some good ground for rejecting that interpretation. The Roman-Dutch law applied to the maritime provinces, and the terms should beinterpreted in accordance with that law. There is no evidence of anyconsistent interpretation in any other sense in reported cases. In factthis appears tobe thefirsttime that the word ”seashore ” has been
defined. Thereis onedifficulty, however, that inCeylon we have no
season which can be spoken of as winter. But there is a particular season,namely, the south-west monsson, which is a stormy season annuallyrecurrent on this coast of Ceylon, and I think the phrase fluctus hybemusmay well he applied to that season of the year, and that in this area thefurthest line reached by the sea during the ordinary south-west monsoonstorms, excluding exceptional or abnormal floods, would be the limit ofthe seashore.
As regards the evidence in the case, it seems clear that during thenon-stormy period the highest point reached by the waves of the sea isthe broken line marked C in the sketch SK 1. This line appears tocorrespond to the bank depicted in plan P 2. Beyond that and to theeast is a sandy piece of ground extending 57 to 60 feet landwards. Thisis the portion from which the sand was removed by the accused. Onthis portion there are no houses or plantations. East of this portion isanother piece of ground planted with coconuts extending 19 to 35 feeteastward to thebeach road.There are four coconut trees on this piece
about 40 yearsold. Iaminclined to think thatthis planted portion
may prima facie be regarded as not part of the seashore, but we are notconcerned with it, but rather with the portion west of the planted area,for it was from that portion that the sand was removed.
In the evidence originally led, Mr. Cyril de Zoysa, the Chairman of theUrban Council, stated “ I can say that during the south-west monsoonthe waves beat right up to the beach road ”, and his evidence wasaccepted by the Magistrate. In the later evidence recorded, HendrickPerera, who is a fisherman living in the vicinity of the belt, practicallyopposite the spot where sand is alleged to have been removed, said thatnormally during the monsoon ‘ ‘ the sea reaches almost close to the road—roughly about four or five feet of the road …. It happensregularly during monsoon time ”. This is important evidence, becauseHendrick Perera had exceptional opportunities for observation, andthere is nothing in his cross-examination to suggest that he is an un-reliable witness. This evidence establishes that the maximus fluctushybemus reached well beyond the point where the sand was removed.For the defence also certain witnesses were called. R. W. Fernando,
1 S. A. Re-porta (1923) A. D. 588.
Rajakaruna c. A. G. i., Kalutara.
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a headmaster, who owns land about- 100 or 200 yards from the spotand lives in a house 800 yards from the shore, said that he had only knownthe sea reach the road on one occasion, and that was at the spot wherethe accused removed the sand. In cross-examination he added “ Inmonsoon time the waves do not regularly reach the road, in fact it hashappened only once to my knowledge at or about the spot where thesand had been removed. The protective sand bank has been washedoff during the monsoons ”. This is the bank along broken line C in SK 1.
I*. Y. Peris, Viee-C-hairman, Urban Council, who lived close by to theseashore said “ During rough weather, i.e., the south-west monsoon,the waves go beyond the sand bank. They go about six feet beyondthe sand bank—not more ”. The weakness of this evidence is thatit dees not specifically relate to the spot where the sand was removed.Simon Dalpathadu also spoke to the effect of waves in relation to his own.house X 2 in sketch SK I, which is considerably to the north of thespot where the sand was removed. He added, however, in cross-examina-tion “ The waves do not go up to the road even in monsoon time. Itcomes to about a fathom from the road
I think the evidence establishes that the waves of the sea during thesouth-west monscon period reached the spot where the sand wasremoved, and this took place in the case of an ordinary storm, and notonly in an exceptional or abnormal storm.
I think the offence alleged has been brought home to the accused .The appeal is accordingly dismissed.
Sobrtsz J.-—I agree.
Affirmed.