068-NLR-NLR-V-42-FERNANDO-v.-FERNANDO-et-al.pdf
Fernando v. Fernando.
279
1940
Present: Wijeyewardene and Nihill JJ.
FERNANDO v. FERNANDO et al.
126—D. C. Negombo, 10,190.
Fishing—Attempt to curtail common law right by custom—Validity of custom.Where the common law right to fish in the foreshore and the high seasadjacent to a certain area of the sea was disputed on the ground! ofcustom, whereby the " paduwas ” in the area were allotted to particularvillages on the principle that the fishermen in such villages shall onlyfish in the “ paduwas ” adjacent to their village,—
Held, that there must be proof of certainty and of the unbrokenexercise of the right to enable the Court to uphold it as a valid custom.
^ PPEAL from a judgment of the District Judge of Negombo.
This was an action brought by the plaintiff who is a fisherman claimingthe right to fish in a fishing area known as Croosadipaduwa which is a.section of the foreshore and the high sea adjacent thereto. The defend-ants resisted the plaintiff’s right to fish on the ground that the fishing inthe different “ paduwas ” between Negombo and Kochchikade wasregulated by long established custom and that the plaintiff was attemptingto upset this custom by asserting a right to fish in an area other than theone allotted to his family.
The learned District Judge dismissed the plaintiff's action.
N.Nadarajah (with him M. Balasunderam), for the plaintiff, appellant.—Every person has a right to fish in the waters of the sea—Fernando et al.v. Fernando et al.1 The question for determination is whether any customhas been proved in this case which derogates from the common law. Acustom to be valid must have four essential attributes. It must beimmemorial; it must be reasonable; it must have continued withoutinterruption since its immemorial origin; and it must, be certain anddefinite—Walter Pereira’s Laws of Ceylon (1913), p. 143. See also Valli-purarn v. Santhanam'; Abdul Khan v. Bibi Sona Dero et al.’; M. I.Rowther v. S. 1. Rotother1; Tyson v. Smith’. A custom of a vague andindefinite nature cannot be recognized by Court—Selby v. Robinson".
For proof of custom in regard to fishihg, see Walter Pereira’s Laws ofCeylon (1913), p. 284; Guruvey v. Bastion7; Arumokam v. Tampaiya*;Baba Appu et al. v. Aberan et al.°; Fernando et al. v. Fernando et al.(supra).
H. V. Perera, K.C. (with him R. L. Pereira, K.C., and K. Aserappa),for the defendants, respondents.—The customs proved in this case is notone which the law will refuse to recognize. It is a reasonable custom, andthe evidence is quite definite. The class of beneficiaries is sufficiently
1 11920) 22 N. L. B. 260.>.' (1838) 9 A. <fc E. 406.
(1915) 1 C. W. B. 96.
3 (7927) L. B. 45 I. A. 10.
(1922) A. I. B. (P. C.) 59.
■* (1788) 2 Term Bep. 758.
(1859) 3 Lor. 161.
(1893) 2 C. L. Bep. 205.
9
{1905) 8 N. L. R. 160.
280
NIHILL J.—Fernando v. Fernando.
clear—Hall v. Nottingham et al. Custom is local in its operation. Whatwas originally a mere arrangement may perpetuate and crystallize itselfinto a custom. See the cases cited in the article on customs in Wood-Renton’s Encyclopaedia of the Laws of England, vol. IV. The judgmentsin Mercer v. Denne in L. R. (1904) 2 Ch. D. 534 and L. R. {1905) 2 Ch.
538 are particularly applicable. See also Encyclopaedia of the Laws ofEngland, vol. VI., Article Fisheries, p. 88.
N. Nadarajah, in reply.—Fishing in the seas is a common law rightgiven to every member of the public—Attorney-General for the Province ofBritish Columbia v. Attorney-General for the Dominion of Canada”.Exclusive right of fishing cannot be acquired either by prescription or bycustom—Fernando et al. v. Fernando et al. {supra).
A custom, to be recognized by Court, must be reasonable—ArjunKaibarta et al. v. Manoranjan De Bhoumick et al.”
Cur. adv. vult.
December 3, 1940. NmL J.—
The plaintilf-appellant is a' fisherman who brought an action in theDistrict Court of Negombo claiming the right to fish with the aid of whatis known as a “ madel ” net in a fishing area known as Croosadipaduwawhich is a section of the foreshore and the high sea adjacent thereto lyingbetween Negombo and Kochchikade. The respondents had resisted theappellant’s right to fish in these waters with a “ madel ” net on the groundsthat the fishing in different “ paduwas ” between Negombo and Kochchi-kade was regulated by long and firmly established custom and that theplaintiff was attempting to upset this custom by asserting a right to fishin an area or “ paduwa ” other than the one allotted to himself and hisfamily.
According to the respondents there are nine “ paduwas ” betweenNegombo and Kochchikade and these are allotted so far as “ madel ” netfishing is concerned to different villages along the foreshore on the principlethat the fishermen in such villages shall so fish only in the “paduwas”adjacent to their villages. Some of the larger villages may have the usepf more than one “ paduwa ” but that, as I understand it, is the principle:
Now the appellant being a man of the village of Palangature in thesense that he was bom there, has the right to- fish in certain other“ paduwas ” but not in the “ paduwa ” known as Croosadipaduwa, whichis reserved for the fishermen who are born and bred in the village ofKudapaduwa. From the appellant’s own evidence at the trial it isapparent that he is aware of this custom or arrangement but he claimshis common law right to fish anywhere in the high seas.
That such right exists in every subject of the Crown is unassailable.The problem in this appeal is to determine whether the appellant has lostthat right because he himself is bound by a custom which this Courtwould be prepared to uphold.
1 (1875) 1 Exch. D. 1.* L. R. (1914) A. G. 153 at 170.
’* A. I. R. 1934 Qai. 401 at 464.
NTHTT-T. J.—Fernando v. Fernando.
281
That the common law right may be controlled by custom regulatingthe time and mode of fishing was recognized in -the case reported in-3 Lorensz, p. 161 and this principle was approved by Bertram C.J. inFernando v. Fernando In stating the common law right Bertram C.J.said:—“ It might no doubt be shown that by long established customthe public rights of fishing must be exercised in a particular way or evensubject to particular rotation designed to secure the fairest and mosteffective exercise of the general right ”.
The same principle was referred to in the earlier case of Baba Appu v.Aberan *, but in both cases it was made clear that any such custom mustbe reasonable. It must not for example be a – custom which wouldpreclude the introduction of improved methods of fishing or a customwhich would deprive a section of the community of its common law rightsin the very matter which the custom was supposed to regulate.
The learned District Judge surmounted this difficulty because heconsidered that the claim of the defendants would not deprive a sectionof the community of its common law rights, but I think what he had inmind was that the plaintiff being a man belonging to a neighbouringvillage had, by the custom itself, his own “ paduwa ” to fish in, that is tosay, in the waters opposite his own village.
Certainly the arrangement by which fishermen residing on this stretchof cost habitually fish with a “ madel ” net in the sea nearest to theirhomes strikes one as reasonable or at least convenient and it may be veryregrettable that the plaintiff in this action was not content to stay wherehe belonged. Nevertheless the question having been raised, its deter-mination in the sense adopted by the learned District Judge, wouldinvolve a great deal more than the return of a wandering fisherman to hisown waters, for the custom as stated by certain of the witnesses for thedefendants is one which would, if upheld, in its strict sense be good againstall the inhabitants of Ceylon, for it would for all time reserve for this typeof fishing, a certain section of the sea coast and the high sea adjacent to aparticular community.
In other words the section of the community deprived of its commonlaw rights would be all others not inhabitants of the village of Kuda-paduwa. It may seem highly improbable that fishermen from Colombo,Jaffna, Batticaloa or other parts of Ceylon will ever desire to fish atKudapaduwa with “ madel ” nets but when we are asked to uphold acustom and so turn it into law every consequence must be considered'.
Mr. H. V. Perera has pointed out in supporting the reasonableness ofthe custom that according to the evidence fishing by a “ madel ” net .involves the use of private property adjoining the seashore, and thatwhilst it is reasonable that landowners should permit fishermen whomthey know to use their lands for dragging or drying their nets it would notbe reasonable to expect them to extend the same facilities to everystranger. That may be, but there would remain the case of the strangerwho had come to terms with a landowner and who then found himself
precluded by the custom.
1 22 N. L. R. 260
1 8 N.L. R. 160.
282NIHIU-i J.—Fernando v. Fernando.
It is not, however, so much on the score of reasonableness that thecustom alleged is open to question. As a right against all the world, inmy opinion, it would be unreasonable ; as a restriction operative onlyupon fishermen born and bred on this section of the coast it might not.Mr. Perera did not, I think, put the custom higher than that, but therewas considerable uncertainty in the evidence as to precisely who wasentitled and who was excluded. It is the uncertainty which I think mustprove fatal to the respondents’ case.
A custom to be valid must be certain in respect of its nature generally,as well as in respect of the locality where it is alleged to obtain and thepersons whom it is alleged to affect. Vide Halsbury’s Laws of England,vol. 10, p. 6.
The learned Judge himself has confessed that the evidence with regardto the details of the custom is conflicting. After a careful scrutiny of theevidence it seems to me that all that has been proved is a loose arrange-ment, generally acquiesced in because of its convenience, but notinvariably followed.
Take the position of the appellant himself. He was bom in the villageof Palangature. He married a woman named Rosaline who was agranddaughter of Istakki who owned “ madel ” nets at Kudapaduwa.Rosaline’s mother was Elizabeth who married a man of Palangature butafter their marriage they lived at Etukal which lies between Kudapaduwaand Palangature. By the custom the inhabitants of Etukal are notpermitted to fish with “madels” at Croosadipaduwa. One ofIstakki’s nets devolved on Elizabeth. Her husband worked that net atCroosadipaduwa but this according to the witnesses was no breach ofthe custom because he worked only as a “ mandady ” or manager. It isthis practice of employing “ mandadys ” that is responsible for the firstuncertainty in regard to the appellant. He also worked “ madel ” netsat Croosadipaduwa but the respondents maintain that he only did so asa “ mandady
It seems that other nets also devolved on Elizabeth through her motherwho was a woman of Kudapaduwa.
It is admitted that the appellant worked nets at Kudapaduwa butagain it is contended that he only did so as a “ mandady ” for Elizabeth,that is7~during the illness and after the death of Elizabeth’s husband.But the appellant has two“ madel ” nets of his own and he contends thatas well as acting as a “ mandady ” he cast these nets at Croosadipaduwa.
Prima facie the documentary evidence supports his contention. In1931 a dispute arose between the parties in this appeal and the respondentspetitioned the Magistrate at Negombo, that is the document P .1, and itwas supported by an affidavit P 2.
In neither document is the appellant described as a “ mandadyindeed in paragraph 2 of the affidavit he is definitely described as. anowner. The purport of both documents is not to the effect that thecustom now alleged had been violated but that there had been a refusalon the part of the appellant and another man from^Etukal to co-operatewith them in arranging turns by rotation.
NIHILL J.—Fernando v. Fernando.
283
Looking at these documents for a moment apart from the oral evidence ;that, to my mind, was the custom put forward in 1931, and if that was allthat was claimed to-day, this Court might have no difficulty in upholdingit as a reasonable custom, for it would be a custom not disigned to excludebut to facilitate the exercise of the general right.
The learned District Judge appreciated that these documents wereagainst the defendants but he seemed to think that “ P 2 ” being in Englishthe defendants should not be held responsible for the wordingused. That seems to me a dangerous proposition to make. The affidavitwas sworn before a Justice of the Peace who has deposed to the fact thatthe document was read over to the defendants in Tamil and Sinhaleseand that they seemed to understand its contents. If the documents thenbe taken at their face value the balance of evidence on this point swingsvery definitely in the appellant’s favour and Tthink we must regard it asshown that he did cast his own net at Croosadipaduwa.
No doubt he obtained a footing at Croosadipaduwa through his wife’srelations but that does not alter the facts that the custom was not rigid orcertain enough to prevent him casting his own net once he had gottHere.
A further uncertainty arises when the evidence with regard to thoseentitled to benefit by the custom is considered. Thus it was said thatthe right by custom was vested in the inhabitants of Kudapaduwa, nextthat it devolved only on those born and bred in that village which wouldexclude temporary sojourners or those who might move to the village toset up a permanent home. Then two witnesses stated that only membersof St. Sebastian’s Church could fish at Croosadipaduwa.
This brings me to what may be termed the religious background inthis case. It is a fact that the inhabitants of these fishing villages arealmost entirely adherents to the Catholic faith. There may be a fewMuslim and Buddhist traders but these have never sought to fish with“ madel ” nets and if they did, it seems highly probable that their,enterprise would be fiercely resented.
All the fishermen pay tithes which consist of a proportion of their catchor its money equivalent to the church of the village to which they belong.Thus there is a nexus between the fishing industry and church finance onthis section of the coast. That is probably why the Parish Priest ofSt. Sebastian’s Church under cross-examination stated that to fish atCroosadipaduwa an outsider would not only have to reside at Kuda-paduwa but have to be also a member of his congregation. His colleague,however, the incumbent of the church at Palangature, thought thatMuslims residing at Palangature would be entitled to cast nets at any ofthe “ paduwa ” reserved for the inhabitants of Palangature.
Elizabeth, whose evidence greatly impressed the trial Judge, said thatstrangers taking up residence in a village were not allowed to fish with a“ madel ” net in the adjoining “ paduwas ” and she gave a very goodreason, namely, that they would be trespassing on the adjoining lands ifthey did so. -In cross-examination she also put the custom in its extreme
284
NCHILL J.—Fernando v. Fernando.
form—the right was vested in the Catholic congregation of St. Sebastian'sChurch. “ My son Benedict (i.e., a man of Etukal) would have no rightto fish at Croosadipaduwa without the permission of the people ofKudapaduwa and of the priest. If the priest objects he has no right tofish, or if the people object ”. She even stated that a man of Kudapaduwaitself would have to arrange with the people to fish at Croosadipaduwa.Perhaps here she was thinking of turns by rotation.
Lastly there was the evidence of the two “ oldest inhabitants ”.Sebastian Perera aged 80 did not think a religious qualification essentialbut he excluded the stranger who bought land and settled down atKudapaduwa. Gordianu Fernando aged 60 denied the custom altogetherbut he was the plaintiff’s witness and his character was attacked. Itmay be better to ignore his evidence.
As I have already indicated, on this evidence I am not able to hold thatthere is sufficient proof either of certainty or of unbroken exercise of theright to enable this Court to uphold it as a valid custom.
Immemoriality might be inferred, reasonableness might be conceded,but these two essentials are by themselves insufficient where there is alack of certainty in respect of the nature of the custom generally and therehas been interruption.
On such material I am of opinion that this Court would not be justifiedin upholding a custom which in effect must take away, not the rights of aparticular, individual, but the rights of the public at large.
Having declared the appellant entitled to his rights, I feel constrainedto say that I regret this litigation.
The appellant belongs to a community deeply attached to its faith andaccustomed to accept the leadership and practical guidance of its villagepriests. There was plenty of evidence in the present case of the beneficientpart played by the ecclesiastical authorities in the settling of fishingdisputes. It is evident that arbitration was open to the disputants in the.present case had the appellant so desired. He is entitled to his victorybut I doubt whether it will bring him either happiness or profit.
I would therefore set aside the order of the District Judge and directthat decree be entered declaring the plaintiff entitled to fish in the areacalled Croosadipaduwa. I allow the plaintiff costs here and in theCourt below and damages as agreed upon in the nominal sum ofRs. 15.
Wijeyewardene J.—I agree.
Appeal allowed.