HASSEN v. THE CEYLON WHARFAGE COMPANY

026-NLR-NLR-V-13-HASSEN-v.-THE-CEYLON-WHARFAGE-COMPANY.pdf


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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Middleton.
HASSEN v. THE CEYLON WHARFAGE COMPANY.
C. B.y Colombo, 16,173.
Ordinance No. 7 of 1901. s. 3—41 Within three clear days ”—Computation
of time—Double rent for every twenty-four hours.
Vheu an acthas to bedone within so many clear days, the rule
is to exclude the first and include the last day.
The word“ clear "involvesthe exclusion ofboth terminaldays
if so many clear days at least are given to do an act, or not less thanso many days are to intervene.
Incalculatingthe period“ within three clear days ” in section 3
of OrdinanceNo. 7 of1901, we have to excludethe day of landing
and includethe lastof thethree clear days(fourth day).After
the last of the three clear days, double rent is due only for completeperiods of twenty-fourhours;and no .rent—noteven singlerent—
is due for fractions of twenty-four'hours.
A
PPEAL from a judgment of the Commissioner of Requests,Colombo (M. S. Pinto, Esq.). Certain bags of rice which
ware consigned to the plaintiff were landed on July 16, 1909(Friday), and deposited in the Colombo Customs Warehouse. Theplaintiff removed the bags on July 21, 1909 (Wednesday). Thedefendant company (by virtue of a contract with Government)imposedupon theplaintiff double rent for July 21, viz., Rs. 81.84,
andtheplaintiffpaid thesame under protest. In this action
plaintiff claimed a refund of the said sum of Rs. 81.84, on the groundthat under section 8 of Ordinance No. 7 of 1901 the defendants hadno right to impose the rent.
The learned Commissioner held that he was bound by the judgmentin Ahamed v. Ceylon Wharfage Go.,1 and entered judgment for theplaintiff.
The defendants appealed. The case was first argued before theChief Justice, who ordered it to be listed before two Judges.
Bawa, for the appellants—The decision in Ahamed v. CeylonWharfage Co.1 does not take into consideration the word “ withinIt only explains the word “ clear The first day, July 16, has tobe excluded; but the act of removal has to be done “ within ” threeclear days, exclusive of the day of landing (July 16). In calculatinga period within which an act is required to be done, the day from or
AprU22,mO
1 (1905) 2 Bal. 101.
April22t1910
Hasten, v.The CeylonWharfageCompany
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after which such period is to run is excluded! and the last day ofsuch period is included. Counsel cited 14 Encyclopedia of the Laws
of England, 83, 84; Wickramasooriya v. Appusingho.1
De Sampayo, K.C. (with him Balaeingham), for respondent.—Wemust read section 3 of Ordinance No. 7 of 1901 as giving the plaintiffthe liberty to. keep the bags in the warehouse, paying single rent forthree clear days, and not as imposing on the plaintiff an obligationto remove the bags within three clear days. “ Clear " means clearof both ends. Counsel also referred to Robinson v. Waddington,aEven if the appellants' contention be right as to the interpretation ofthe term " within three clear days ", they cannot succeed, as the bagsof rice did not remain in the warehouse for twenty-four hours afterthe'" three clear days ". [Chief Justice: Is single rent due for the21st ?] No. The Ordinance does not provide for single rent afterthe three clear days. It only provides for double rent for completeperiods of twenty-four hours.
Bawa, in reply.
April 22, 1910. Hutchinson C.J.—
This action was brought to recover Rs. 81.84, which the plaintiffhad paid to the defendants under protest. Some bags of rice wereconsigned to the plaintiff in Colombo, and arrived there by steameron July 15, 1909, and were landed and placed in the defendant'swarehouse on. the 16th, and the plaintiff removed them on the 21st.The defendants claimed from him Rs. 81.84 as double rent inrespect of the rice for one day, that is the 21st, and he was compelledto pay it in order .to obtain delivery of the rice. The defendants'claim was made under section 3 of Ordinance No. 7 of 1901, whichenacts that “ within three clear days from the date of landing,exclusive of Sundays and public holidays, the importer shall make
a full and complete entry thereof; and in default of such entry,
being made and the goods being removed within three clear days asaforesaid, after the same shall have been landed, such goods shallbe liable to double rent for every twenty-four hours of such timeas they may remain in the warehouse thereafter." July 18 was aSunday, so that the three clear days after the goods were landedwere the 17th, 19th, and 20th, and the goods were removed on the21st. The issue which the defendants' counsel suggested, and whichthe Court accepted, was: "Did the plaintiff remove 1,023 bagsfrom defendants' warehouse within three clear days after the landing,i.e., July 16? The Commissioner held that he must follow thedecision in Ahamed v. Colombo Wharfage Co.3 and " deciding theissue in the negative give judgment for the plaintiff." It seems
1 (1895) 1 N. L. B. 178 and (1891) 1 C. L. B. 84.
* X- J. Q. B. voL 18, 250* (1905) 2 Bal. 101.
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that he said M negative ” by mistake lor “ affirmative ”, At all events AprU22,1910the formal decree is that the defendants do pay to the plaintiff HutchinsonBs. 81.84 and costs. I do not understand the decision in 2 Bala-singham as it fa reported. The goods in that case were landed and Hasson v.warehoused on January 7, the 8th was a Sunday, so that the three ThoGvdonclear days within which they had to be removed were the 9th, iLOth,and 11th. They were not removed within these three days.Nevertheless, it was held that they were removed within threeclear days when they were removed on the 12th. I cannotfollow that; “ within " does not mean “ after the expiration of.”
In the present case the three clear days were the 17th, 19th, and 20th,
.and the rice' was not removed within those three days. Anotherpoint, however, which does not seem quite so hopeless was taken bythe plaintiff on the hearing of the appeal. The goods are liable fordouble rent ” for every twenty-four hours of such .time as they mayremain in the warehouse thereafter,” f;a., after the expiration ofthe three clear days. But this rice did not remain for twenty-fourhours after the third day, and I think that it was not liable for anydouble rent. If the Legislature had meant that goods should beliable for double rent for every day or part of a day that theyremained in the warehouse after the expiration of the three cleardays, I think that it would have so expressed it. The enactmentseems to me to mean that the liability is only in respect of eachcomplete period of twenty-four hours, so that if the rice had beenremoved on .the 22nd before midnight on that day, it would havebeen liable for double1 rent for one period of twenty-four hours, i,e.tfrom midnight on the 20th to midnight on the 21st. I would,therefore, dismiss the appeal, but as the plaintiff succeeds, on apoint which was not raised in the Court below, I would make noorder as to costs of this appeal.
Middleton J.—
. His Lordship stated the facts, and continued:—
The case mainly depends on the construction of section 8 ofOrdinance No. 7 of 1901, and I think it is quite clear on the factsbefore us that the plaintiff did not remove his rice from the ware-house in question within three clear days from the date of landing,and if so, he is liable under the section to the payment of doublerent for every twenty-four hours of such time as it may remain inthe warehouse thereafter. The word ” clear ” involves the exclusionof both terminal days, if so many ” clear days ” at least are givento do an act, or not less than so many days are to intervene-{Maxwellon the Interpretation of Statutes, 3rd edition 487)' In other casesthe rule is to exclude the first and include the iast day. Under thesection here the three clear days, excepting the Sunday, wouldterminate on the conclusion of July 20, but the act of removal was
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April22J9lO to be performed within three clear days, and therefore if performedJtoDLETON on the 21st it would not be in conformity to the Ordinance. Mr. de■Sampayo admittedly raised a question, which had not been raised
Baaeen v. before, when he contended that the respondent was not liablefor double rent on the 21st, on the ground that there was not aCompany completion of the twenty-four hours, after the three days, so as toentitle the appellant to demand double rent. The section also doesnot say that the liability for double rent shall apply even if a portionof the twenty-four hours mentioned after the three clear days haselapsed before removal. What it says is that in default of suchentry being made and the said goods being. removed within threeclear days as aforesaid, after the same shall have been landed, suchgoods “ shall be liable to double rent for every twenty-four hours ofsuch time as they may remain in the warehouse thereafter.1 * There isno double rent to pay, therefore, it seems to me, unless they haveremained in the warehouse for twenty-four hours after the lapse ofthe three clear days. The Legislature, if it intended to make aconsignee responsible for double rent for any fraction of twenty-fourhours, should, it seems to me, have so stated its intention. On theprinciple that a penal enactment must be strictly construed, I wouldhold that the plaintiff would not be liable for double rent until the.expiration of the full twenty-four hours succeeding his three clear• days. It is noticeable that section 3 of Ordinance No. 7 of 1901distinctly amends section 27 of the principal Ordinance by makingthe consignee liable to pay “ double rent for every twenty-four hoursof such time as goods may remain in the warehouse ” after the threeclear days, while the principal Ordinance made him liable for doublerent 44 for such time as the goods may remain in the* warehouse,'*after the same period, which would impose a double liability for everysecond after the expiration of the period of three clear days. I donot think the decision of this point involves the hearing of anyfurther evidence on the question, and I would, therefore, hold thatthe appeal must be dismissed on the terms as to costs ordered by myLord. I was at first inclined to consider that the plaintiff would beliable for single rent for the day, but a study of D1 at pages 7, 8, and9 shows, I think, that he escapes it.
After the foregoing judgments were delivered Mr. Bawa obtainedpermission to argue on behalf of the appellants that the plaintiffwas liable for single rent at least.
Hutchinson C.J.—
We gave judgment in this case, yesterday, and at the request ofthe appellants the case was put down for argument, on the .questionwhether the plaintiff was not liable to the defendants for single , rent
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in respect of the fourth day. It was assumed in the Court below ■&pril22,1910
and here by both parties that the defendants are in the position of Hutchinson
agents to the Government to collect whatever rent is due to the
Government.' The only enactment under which single rent could Saasenv.
be payable for the fourth day so .far as I can see is section 18 of
Ordinance No. 17 of I860, which enaots that Government may charge Company
rent for such time as goods remain in the warehouse at such rates
and under such regulations as the Government may fix. Bates
were fixed and regulations made under that enactment, but they
only proyide for payment of rent for three clear days. The Customs
tariff which was put in evidence, which is dated March, 1909, fixes
on page 8 the single rates of warehouse rent, giving as its authority
the Ordinance and the notification of December 2, 1887. Then it
says the goods may remain in the warehouse on payment of the said
rates for any time not exceeding three clear days, after which they
shall be liable for double rant for every twenty-four hours, giving as
the authority for that section 3 of Ordinance No. 7 of 1901. I may
conjecture that the Government if it had thought of it would have
specially provided in the tariff that single rent should he payable
for the fourth day also if the goods were not removed until the fourth
day. But we are bound by the enactment as it stands; by section 3
of the Ordinance No. 7 of 1801 it is enacted that the goods are to
be liable for double rent for every twenty-four hours of such time as
they remain after three clear days, and I think, as I said in my
judgment yesterday, they are not liable for the double rent for a
fraction of twenty-four hours, and I cannot find that under the
regulations- made under the Ordinance they were liable for single
rent beyond the three clear days; I think therefore that the appeal
must be dismissed.
Mu>d£etoh J.—
I agree, and have nothing to add.
Appeal dismisacd.
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