087-NLR-NLR-V-54-K.-D.-G.-MADAPPULI-Appellant-and-S.-D.-PATRICK-et-al-Respondent.pdf
Aladappuli v. Patrick
365
1952Present : Gratiaen J. and Pulle J.K.D. G. MADAPPULI, Appellant, and S. D. PATRICKet al., RespondentsS. C. 122—D. C. Kalutara, 26,779
Fishing—Custom—Proof.
The Court will not recognize an existing arrangement arrived at by parti-cular fishermen for the purpose of regulating their respective rights to fish in theopen sea as binding on other members of the community who were not parties tothat arrangement unless such arrangement already possesses all the attributes ofa -valid legal custom.
Semble : Unless such an arrangement is inherently oapable of adaptation toall future variations in numbers and circumstances, it cannot form the basis of •a valid legal custom.
Per Geatiaes J.—“ Under the common law every member of the public hasan equal right to fish in any part of the open sea. Such rights may be curtailed
regulated or even abrogated by statute They may be regulated, but
certainly not extinguished, by custom. ”
2*J. y. B 25066 (2/53)■
366
OR ATT ABN J.—JMadappuli v. Patrick
A-PPEAL from a judgment of the District Uaurt, Kalutara.
N .K.Choksy, Q.G., with D.JH. Weerasinghe, i'or the plaintiff appellant.
N. E. Weerasooria, Q.C., with W. D. Gunasekere, for the 1st defendantrespondent.
V. T. de Zoysa, for the 2nd and 3rd defendants respondents.
November 18, 1952. Gbatiaek J.—
Cur. adv. vult.
This unprofitable action commenced very nearly five years ago. Itconcerns the conflicting claims of the parties to enjoy, in one degree oranother, a monopolistic right to fish with madelas or large fishing nets in apart of the open sea adjoining an area of the sea-beach in the Maggonadistrict known as the Nuda Waraya.
The truth is that no such monopoly exists, because under the commonlaw every member of the public has an equal right to fish in any part of theopen sea. Such rights may be curtailed, regulated or even abrogated bystatute, but that has admittedly not occurred in Maggona. In some dis-tricts they may be regulated, but certainly not extinguished, by custom.In the large majority of cases, however, the situation of persons engagedin any locality in the hazardous enterprise of fishing, unregulated either bystatute or custom, calls for a spirit of sensible compromise which alonewould ensure, by private agreement, some convenient arrangementdesigned to prevent “ a sort of warfare perpetually subsisting between theadventurers ” (Fennings v. Grenville) 1. One can but express thehope that even at this late stage the parties to the present disputewill appreciate the advantages which they would derive from such anarrangement. I do not doubt that the good offices of the AssistantGovernment Agent of the district, if invoked, would be readily availableto them in this regard. If all else fails, the local authority is, we under-stand, empowered to introduce statutory by-laws and rules designed toavoid friction and unhealthy competition.
– Prior to November 1947 the plaintiff had never interested himself infishing with a madela at the Km da Waraya. Indeed the evidence disclosesthat for many years certain members of the defendants’ family (a groupconveniently designated as “the Abrahams ”) and of another family (“ theCoorays ”) had virtually shared a monopoly of fishing with madelas inthese waters. In the result, the very limited number of persons exercising acommon law right which in truth belonged to the entire community madeit a simple matter for the persons concerned to regulate their activities by. fishing in accordance with an agreed system of rotation instead ofindulging in spirited and unprofitable competition with one another. In1946 T. M.R. Cooray, the last surviving member of the “ Cooray ” family,diedand the fishing rights in the Km da Waraya were for the time beingexercised exclusively by “the Abrahams”. During this brief period, a1 1 Taunton 241 at 24S.
GRATIAEiSf J.— Afadajypuli v. Patrick
367
few members of the defendants’ family continued to fish with madelasin the locality undisturbed by outside competition, and they weretherefore able to introduce to their mutual advantage a somewhatdifferent system of fishing by rotation to that which had previouslyobtained. In November 1947, however, the plaintiff proposed to break thismonopoly by purchasing a madela and a fishing boat and, having thusequipped himself, he claimed that he too was entitled to fish at the KudaWaraya. TTia “ intrusion ” was resented, and was strenuously resistedby the defendants. Hence the present litigation.
It is now necessary to examine the basis of the claim asserted by theplaintiff and also the grounds on which it was resisted. It will be foundthat the claim as well as the objections thereto were equally insupportablein law.
The plaintiff was not content to rest his claim on his undoubted com-mon law right, as a member of the public, to fish wherever he chose in theopen sea. What he did assert was a claim that, by virtue presumably ofsome nebulous right of “ succession ” to the extinct family of “ Cooray ”,he alone (to quote the language of his pleadings) was “ entitled to the rightto fish with a madela at the Kuda Waraya as between himself and thedefendants on three days of each week ”. Mr. Choksy has very properly-conceded before us that no such exclusive claim can be maintained. Ifit be equated to a claim to enjoy a monopoly for a part of each week duringtbe annual fishing season, it is manifestly ill-founded. If, oh the otherhand, it be construed as a claim to have succeeded to the contractualrights of “ the Cooray family ” in their convenient working arrangementwith “ the Abrahams ” which had subsisted in the past, it was equallywithout substance. In the result the learned District Judge wasperfectly right in refusing him the protection of a declaratory decree inthe form in which it was asked for in the plaint, and in refusing to awardhim damages for resistance to an exaggerated claim which was not his toexercise.
The position taken up by the defendants Was equally ill-founded. Theypleaded in effect that since the death of T. M. R. Cooray, the de factomonopoly which had temporarily been shared by both families had, bysome unexplained principle of “ survivorship ”, become legally andpermanently vested in them to the exclusion of the entire community.
The common law right of the members of the public to fisb in thewaters of the sea cannot be extinguished by any length.of adverse user.—Fernando v. Fernando 1 and Fernando v. Fernando 2. The learned DistrictJudge therefore correctly decided that, subject to any strict proof of anyvalid custom in the locality which would operate to regulate the exerciseof this right, the plaintiff and the defendants equally enjoyed the privilegeof fishing with madelas in the Kuda Waraya. Learned Counsel whoargued the appeal before us both acknowledged the correctness of this longestablished principle, but Mr. Choksy strongly urged that the decree underappeal should be amended by incorporating an alleged local customwhereby persons fishing with madelas at the Kuda Waraya wereunder an obligation to observe a system of rotation “ designed to secure1 (1920) 22 N. Z,. R. 260.2 (1940) 42 XT. L. R. 279.
368
GRATIAEN J.—-Madappuli v. Patrick
the fairest and most effective exercise of the general right (perBertram C.J. in Fernando's case 1.) He accordingly argued that it wasthe duty of the Court, as the petition of appeal suggests, “ to fix the turnor turns to which the plaintiff is entitled ”, and “ that such otherdirections he given as will enable the plaintiff effectively to exercise theright to which he has been held entitled. ”
Before I consider whether the evidence in the case establishes a“ custom ” such as the plaintiff (in a more chastened mood) nowrelies on and, if so, whether it is capable of enforcement orrecognition by a Court of Law, it will be convenient to examinethe law which is applicable. The leading South African authorityon the subject is Van Breda et al. v. Jacobs et al.2 where theCourt upheld the validity of a local custom amongst fishermencarrying-on their business off a portion of the Cape coast whereby “ onceon a free beach, namely a beach where no boats are permanently stationed,fishermen have set their lines for the purpose of catching a shoal offish seen travelling along the coast, no other fishermen are entitled toset a line in front Solomon J.A. pronounced the judgment of theAppellate Court and pointed out that, under the Roman-Hutch Law,which does not differ substantially from English Law on the subject :—
the Court must be satisfied beyond any reasonable doubt that the' alleged custom does in fact exist;
a custom to be valid must be an ancient or long-established one ;
it must be reasonable ;
it must have been uniformly observed, in the sense that the evidence
“ must not vary in regard to the relative circumstances of theact in regard to time, thing and place ”—in other words, thecustom must be proved to be certain.
These rules, which are based on the authority of Voet 1. 3. 27-35, have inthe past substantially guided this Court in disposing of cases where aparty has sought judicial recognition of a disputed local custom—Guruvey v. Bastian 3, Baba Appu v. Aberan 4 and the more recentdecisions to which I have already referred earlier.
I have considered with care the evidence relied on by the plaintiff,and in my opinion it has signally failed to establish the observance of anylong-established, precise and uniform system of fishing by rotationby the persons who have from time to time in the past fished withmadelas at the Kuda Waraya. X have already mentioned two veryconvenient but nevertheless distinct and different procedures agreedupon in more recent times, first when only “the Coorays " and “theAbrahams ” shared the fishing in these particular waters, and laterwhen “ the Abrahams ” alone enjoyed that privilege. Bunng each ofthese periods, as I understand the evidence, there had been an agreedworking arrangement which was based on contract, but which, thougheminently reasonable at the time of its particular application, was notinherently capable of adaptation to suit every conceivable new situationwhich might arise—for example, a decision of a larger and mpreunwieldy
(1920) 22 jST. L. R. 260 at 266.3 (1859) 3 Lor. 161.
(1927) S. A. A. D. 330.* (1905) 8 N. L. R. 160.
GRATIAEN” J.—lVtadappuli v. Patrick
369
group of fishermen to enter the field of competition by asserting for thefirst time their common law rights as members of the public. Insuch an event the previous systems of rotation might well prove bothimpracticable and unreasonable. Besides, there is the evidence of a dis-interested and reputable witness who speaks of an even earlier period when“ two or three families were fishing ”. At that stage apparently, yetAnother agreed system of rotation had been in vogue.
All that emerges from an attempt to discover some common denomina-tor between the various procedures indicated in the evidence isthat the particular persons fishing in the locality at any given pointof time had always been prudent enough to agree upon a workingarrangement (appropriate to that particular situation and bindingupon themselves alone) which would remove the immediatedisadvantages of unregulated competition. None of those agreements,even if appropriate, could, in the absence of some fresh agreement,legally bind others who might subsequently choose to exercise theirright, as members of the public, to fish in the same waters. In theresult there exists at the present time no custom, in the sense inwhich that term is properly understood, capable of recognition orenforcement by a Court of Law. For “ the test of custom is continuedobservance, and ex hypothesi cannot be suddenly created to meet a newproblem ”. In other words, “ custom cannot create a rule to deal with afuture difficulty ”.—Paton : A TexibooJc of Jurisprudence (2nd Edn.)p. 146.
In this state of the law, the only practical solution to the difficultypresented by the plaintiff’s insistence on his right to fish with a niadela inthis locality would be for all the persons who are presently engaged in thefishing industry at the Kuda Waraya to enter into some sensible agree-ment as to how they should eliminate friction by regulating their commonlaw rights to their mutual advantage. The Courts possess no benevolentjurisdiction to enforce upon people an arrangement in which the elementof consensus which is essential to a contract is lacking. ISTor is it possibleto invent a new “ custom ” to meet the situation. Finally, therewould be no virtue in a pious judicial decree directing litigantsto be sensible in their transactions with one another. Theonly assistance which the Courts of law could give them would be topass a decree embodying any lawful agreement which they mayhereafter conclude for the better regulation of their legal rights interse, without prejudice of course to the rights of persons who arenot parties to the litigation. In the hope that even some limiteddegree of finality may within a reasonable time be achieved inregard to the present dispute, I propose that provision should bereserved in the decree to make this possible..
I would, for the reasons previously indicated, amend the decree passedby the learned Judge to read as follows :—
“1. It is ordered and decreed that the plaintifF is-not entitled to theexclusive right to fish with a madela at the Kuda Waraya at Maggonaon three days a week and that the defendants are also not entitled tb. the exclusive right to fish at the said Kuda Waraya.
370
GUNASEKARA J.—Juan A-ppuhamy v. The Queen
It is further ordered and decreed that the plaintiff and thedefendants as members of the public are equally entitled to fish withmadelas at the Said KLuda War ay a.
If the parties should at any time before 31st January 1953 arrive-at a lawful compromise whereby they agree to regulate inter se theirrespective rights to fish with madelas at the Kuda Waraya, the partiesare at liberty to apply to the District Court of Kalutara for the enteringup of a supplementary decree in this action incorporating the saidagreement, but any supplementary decree so entered shall be withoutprejudice to the rights of other persons^ who are not parties to this-action or to the said agreement. ”
Subject to the above amendment, the appeal of the plaintiff and thecross-objections of the defendants must be dismissed, and there will be no-order as to costs in either Court.
Pux.IjE J.—I agree.
Decree amended.