062-NLR-NLR-V-67-G.-A.-SOMAPALA-Appellant-and-R.-F.-DE-MEL-and-another-Respondents.pdf
1964Present: Basnayake, C.J., and Sirimane, J.
A. SOMAPALA, Appellant, and R. F. DE MEL and. another*Respondents
8. C. 356/61—.D. C. Colombo, 49541jM
Lotteries Ordinance—Section 14 (c) (fi)—Postponement of bone-race—VaMfity oflottery ticket already bought.
When ft racing chib sells a horse-race lottery ticket which is eofeject to Wireprovisions of section 14 (c) (h) of the Lotteries Ordinance and which beats onit the words “ If races are poetpooed this ticket will be valid £er the pertponed
date ”, the ticket cannot be invalidated by unilateral action on the part of theclub if the racee are postponed. In such a case, the postponement of the racesdoes not constitute a breach of the condition imposed by section 14 (c) (ii).
from a judgment of the District Court, Colombo.
H. W. Jayewardene, Q.C., with 8. 8. Basnayake and D. 8. Wijetoardene,for Plaintiff-Appellant.
G. T. Sameravnckreme, for Defendants-Respondents.
May 7, 1964. Basnayakb, C J.—
The plaintiff-appellant (hereinafter referred to ae the plaintiff) hasinstituted this action against the President and the Secretary ae represen-tatives of a voluntary association known ae the Ceylon Turf Club (herein-after referred to as the Club) for the recovery of a sum of Re. 8,106
2*R 8680 (10/65)which he claims he is entitled to as the holder of the winning ticket in alottery conducted by the Club. The Club resisted the claim successfully.
The material facts are as follows :—On 4th September 1959 the plaintiffpurchased a ticket 01 O No. 00616 in a lottery on a horse-race to be runon 5th September. The Club is a racing club to whom a horse-racelottery licence has been issued. Under the provisions of section 14 (c) (ii)of the Lotteries Ordinance a horse-race lottery licence holder is prohibitedfrom selling a lottery ticket except during the period of forty-eighthours immediately preceding the time fixed by the Racing Club for thestart of a horse-race on which the lottery is to be held. The plaintiffasserts that his ticket was purchased within 48 hours of the time fixedfor the running of the race on which the lottery was to be held. ButOwing to a strike of the employees of the Club the race could not be run.Ia consequence, all the races which were scheduled to run on 5th Septem-ber were run on 12th September. An official race-book is issued andsaid by the Club for each race day. Among other information, it givesa list of all the races to be run on the day for which the book is issued andthe names and full particulars of the horses running in each race. Theofficial race-book issued for 5th September was adopted as the officialrace-book of 12th September by merely pasting on the figure and letters“ 5th ” on the cover the figures and letters “ 12th ”, and the races of5th September were regarded as having been postponed to 12th September.A notice signed by the Secretary of the Club dated 9th September 1959goes on to say—“ The Race Card already published will hold good inevery respect for Saturday, 12th September, but fresh starting declara-tions will have to be made. ” The appropriate body of the Club alsodecided that the races scheduled for 19th September should be held on26th September.
■ The ticket which the plaintiff claims as the winning ticket has thesewords—“ If races are postponed this ticket will be valid for the postponeddate ”. But, despite the course already taken by them, the Secretary.-of the Club on 11th September published notices in the newspapersrequesting the holders of tickets in respect of the lottery which was tohave been drawn on 5th September to return their tickets either to theiragents or to the Club Office and obtain a refund of their value. There-after they proceeded to issue lottery tickets in respect of the lotteryto be held in connection with a horse-race to be run on 12th September.The winning ticket of that issue, which bore the same number as theticket held by the plaintiff, was drawn by a person other than the plaintiff,and that person claimed the price and was paid the money.
When the plaintiff went to the office of the defendant on 16th September,produced his ticket and claimed the first prize, his claim was disputed ;and this action is the result of that dispute. The defendant pleadsthat the ticket issued to the plaintiff was in respect of a race to be run on5th September and that it was not valid in respect of a race to be runon a .subsequent date, and that the plaintiff was not entitled to claim theprize in the lottery drawn on 12th September. The plaintiff relieson the words printed on the ticket—“ If races are postponed this ticketwill be valid for the postponed date ”—and contends that the race waspostponed and that his ticket is valid and cannot be invalidated byunilateral action on the part of the defendant.
The learned District Judge has dismissed the plaintiff’s action on theground that a ticket sold more than 48 hours before the time fixed for therace held on 12th September is invalid according to section 14 (c) (ii)of the Lotteries Ordinance. The learned District Judge does not appearto have paid due attention to the words of section 14. That sectionlays down the further conditions to which a horse-raoe lottery licenceshall be subject in addition to the conditions specified in section 13 orimposed thereunder. The relevant further condition reads—
“ (c) where any such lottery is in connection with a horse-raceat a race-meeting in Ceylon which is held by such society or racingclub, no ticket or chance in the lottery shall be issued, distributed,sold or offered for sale—
by any person other than an employee of such society or racing
club who is authorized in writing in that behalf by suchsociety or racing club, or
except during the period of forty-eight hours immediately
preceding the time fixed by such society or racing club for thestart of such horse-race.”
In the instant case it is not disputed that the ticket in question wassold within forty-eight hours immediately preceding the time fixedby the Club for the start of the horse-race on which the lottery was to bedrawn. The postponement of the race to 12th September does not consti-tute a breach of the condition (c) (ii). Even where there is a breach ofcondition (c) (ii), the Club is not entitled to avoid its contractual obliga-tions by pleading their own wrongful act. The same principle isexpressed in different words in the maxim “ in jure civili receptum est,quotiens per eum, cuius interest, condicionem non impleri, fiat quominusimpleatur perinde haJberi, ac si impleta condicio fuisset—(Dig.L, 17, 161)so often as non-fulfilment of a condition is brought about by him who hasan interest in its not being fulfilled, the condition is treated as though ithad been fulfilled.”
It was also argued that the plaintiff acquiesced in the cancellationof his ticket as he was well aware of the cancellation of the sweep on5th September and that tickets were issued for the races on 12th Septem-ber. Mere knowledge on the part of the plaintiff of the defendant’swrongful act is not sufficient. It must be proved that the plaintiffconsented to the variation of the terms of his contract. There is nosuch proof.
We therefore set aside the order of the dismissal of the plaintiff’saction and direct that judgment be entered for the plaintiff with costsboth here and in the court below.
Appeal allotted.
SntiMAiTE, J.—I agree.