021-NLR-NLR-V-05-LE-MESURIER-v.-ATTORNEY-GENERAL.pdf
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LE MESURIER v. ATTORNEY-GENERAL.
D. C., Kandy, 12,998.
Action rei vindicatio against the Croton—Claim for damages for wrongfulpossession—Amendment of pleading.
According to the law of Ceylon, an action rei vindicatio may be broughtagainst the Crown, but not an action in tort.
Where the plaintiff claimed not only the land but also damages andmesne profits arising from alleged wrongful possession on the part of theCrown, the plaintiff was allowed to strike out his claim for damages andmesne profits and proceed with his action for the recovery of the landonly.
T
HIS was an action against the Crown to recover two undividedthird shares of a large portion of land situate partly in the
District of Uva and partly in the Central Province, known asKumanekele, containing in extent 2,656 acres of forest. Thecause of action set out in the 14th paragraph of the plaint was asfollows: —
“ About the beginning of the year 1890 the Crown, through, itsagents and servants, wrongfully and unlawfully took possessionof the said Kumanekele and constructed a line of railway thereonfrom the point G to the point H shown in the plan marked B,and the Crown has since been in the wrongful and forcible-possession of the said Kumanekele, and has used and maintainedthe said line of railway for its own use and benefit to the loss anddamage of plaintiff of Rs. 20,000.”
He alleged that this land was a portion of a tract of country(situate in Udabadana at one time in the District of Uva) grantedby the last King of Kandy by a saunas to his first predecessor-in-title. The Crown denied that the land lay within the boundariesdescribed in the sannas.
The plaintiff prayed for a declaration of title, for a decree thatthe Crown should give up possession of the land to him, and for“ Rs. 20,000 as and for past damages and mesne profits, and furtherdamages and mesne profits at the rate of Rs. 40 per diem fromthe date of the institution of the action, &c.”
Issues ofi law and of fact having been framed, the issues of lawonly were argued, viz.: (1) whether this action is maintainableagainst the Crown; (2) whether the allegation that the Crown,through its servants and agents, wrongfully took possession of the-Kumanekele disclosed a cause of action against the Crown; (3)-whetl^l- the sannas pleaded in the plaint created an estate in tail;'-
whether it was competent to Edward ,$.ames Dehigama and
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Dingiri Amina to transfer the land to A. M. Galloway, W. Ronald,
March 28. an(j w. Henry; (5) whether' the plaint was bad for uncertaintyof boundaries of the land and for deficiencies of the plan filedwith the plaint; and (6) whether the plaintiff could maintainthis action since he was never put in possession, and his vendorsnever had possession.
The District Judge (J. H. de Saram) decided the third and thefifth issue in the negative, and the fourth in the affirmative. As tothe sixth and first issues he held as follows: —
" The question now is whether the plaintiff, as a purchaser, hadright to institute this action, his vendors not having themselveshad possession and not having put him in possession. Howeverdesirable it may be that the question here raised by Mr. Attorneyshould be settled by authoritative decision, 1 am bound to followthe judgments of the Supreme Court on the subject. In Daraude-gedara Appuhami v, Pahalagedaru Apuhami (3 S. 0. C. 61), itwas decided by the Full Court on the 3rd February, 1880, that theexecution and delivery of a conveyance of land, the property ofthe vendor, if in conformity with the Ordinance No. 7 of 1810,transferred the title to the land to the purchaser although nocorporeal delivery of actual possession of the land had followed,and that by virtue merely of the title so created the purchasermight maintain an action for a declaration of title against a thirdparty in possession without title or under a weaker title. Thisdecision was, on the 3rd July, 1883, followed in Punchihami v.Arnolis (5 S. 0. 0. 160), and has ever since then been followed byour Courts. The other point, that a vendor should have had posses-sion at the time of the execution of the transfer by him, does notappear ever to have been decided. The point was argued inDarandegedara Appuhami v. Pahalagedara Appuhami, but wasnot decided, because no objection was taken to the libel in theanswer, on the ground that the plaintiff’s vendor was not seizedand possessed of the land at the time of the sale.
“ Cayley, C.J., and Berwick, J., after very elaborate and exhaus-tive examination of the authorities bearing on the point, expressedthe opinion that a purchaser can maintain an action for a declara-tion of title, although, at the time of sale to him, his vendor hadnot possession of the land sold, provided he had a title thereto.Cayley, C.J., said ‘ that when a person signs in the manner‘ required by the Ordinance No. 7 of 1840 and delivers for good‘ consideration a conveyance of all his interest in land, such a‘ conveyance will pass the dominium., if the seller has it, although‘ such dominium may not have been accompanied by physical‘ possession; in the same way' the Dutch transport effected a
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‘ transfer of all the right which the transferor had in the subjeet-' matter of the conveyance, whatever might have been the nature‘ of such right.’ Berwick, J., said, according to Eoman Law, ‘ both‘ movables and immovables equally pass by either fictitious, or’‘ symbolical, or actual delivery, and I only follow what has been‘ the invariably recognized law of the country during the whole of‘ a lengthened experience at the Bar and on the Bench, until' questioned very recently indeed, in considering that the delivery‘ of a deed of transfer of land executed before and attested by a‘ public notary in accordance with the provisions of .Ordinance No.
‘ 7 of 1840, is a constructive delivery of the land itself; the notarial‘ execution and attestation and the registration of the duplicate or‘ protocol (formerly in Court and now with the Begistrar of Lands)
‘ with delivery of the deed, taking the place of the old Dutch' symbolical delivery before the judge and the registration of the' proceeding among the acts of Court, with the same result as in‘ Holland, the principles being the same, namely, contract of sale' plus symbolical delivery equal to dominium, with the consequent‘ right to sue in ejectment.’ These dicta have been followed byour Courts for nearly twenty years, and have, as far as I know,never been overruled. I feel bound to follow them, now that thepoint has been raised. I answer the sixth issue in the affirmative.
" 1 have now to consider the principal issue—whether the plain-tiff can maintain this action, and whether the allegation that theCrown, through its sen ants and agents, wrongfully took posses-sion of the Kumanekele discloses a cause of action against theCrown? This is admittedly an action ex delicto. The Crowhi ischarged with unlawful, entry and possession, through its agentsand servants, of plaintiff’s land. Mr. Attorney relied, amongothers, on two judgments insupport of thecontentionthatthe
action is • not maintainable.One was Muttu Aiyarv.The
Attorney-General, which was instituted in the District Court ofKurunegala in June 1887. That action is on all foiirs with thepresent one. It was there held by Burnside, C.J., and.Dias, J.,that an action ex delicto does not lie against the Crown for thetortuous acts of its servants in taking possession of land claimed'by a subject. I may here remark that this case was decided afterthe case of Jaywirardenc v. The Queen's Advocate (4 S. C. 0. 77)was decided, and in whichCayley, C.J.,said, ‘thepractice
‘ adopted in Ceylon of suing the Crown in the name of the Queen’s‘ Advocate both in real actions for the recovery of specificproperty and in actions for the recoveryof moneydueex
contractu had prevailed for a long series of years and had been‘ recognized by the Supreme Court in hundreds of decisions.’
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1901. Another case relied on by Mr. Attorney was Simon Appu v. TheMarch 28. Queen’s Advocate (9 Appeal Cases, 571), in which the JudicialCommittee of the Privy Council recognized that no action exdelicto would lie against the Crown.
“ The only authority cited by Mr. Rudra in support of his con-tention that the Crown is liable to be sued in tort was the dictumof Bonser, C.J., in Sanford v. Waring, but His Lordship thereexpressly left the question open. The case of Le Mcsurier v. TheAttorney-General (3 N. L. R. 227) cited by Mr. Budra certainlydid not go to the length he contended for. The case of Famellv. Bowman (12 Appeal Cases, 643) and of Wemyss v. The Attorney-General (of the Straits Settlements) (13 Appeal Cases, 197) arecases in which it was decided that the Crown could be sued in tort,in the one case under the New South Wales Act 39 Viet. c. 38, andin the other case under the Crown Suits Ordinance of 1876. Thereis no similar enactment in force in Ceylon.
“ I am of opinion that this action cannot be maintained. 1answer the first and second issues in the negative, and dismiss thisaction with costs.”
The plaintiff appealed.
Rudra (with H,. Jayawardena ami Browne), for appellant.
—The District Judge is in error in supposing that this is a case exdelicto. It is really an action rei vindicatio. [Lawrie J.,—Butyou claim damages as well as the land itself]. Yes, but the reasonof the damages is not set out in full in the plaint. Plaintiff averredonly this, ” as and for past .damages and mesne profits,” which hemay or may not succeed in proving. As regards the claim to theland, there is no reported case deciding that an action rei vindicatiodoes not lie against the Crown. Several cases relating to actionsin tort are to be found, but the present suit relates mainly to title.The Roman-Dutch Law, which is the Common Law of the Island,recognizes the right of the subject to sue the king. Voet adPand, 1, 4, section 6 (Buchanan's Trans., page 66). The SupremeCourt has also recognized it. Fernando’s Case (4 S. C. C. 77), andSanford v. Waring (2 N. L. R. 361), Mathes v. Barton (3 Lorenz.270), Le Mesurier v. Layard (3 N. L. R. 227), Newman v.Queen's Advocate (6 S. C. C. 29).
Layard, A.-G., with Bawa, for respondent.—Tt is submittedthat the property being situated in the Kandyan Province, thelaw applicable to this case is- the English Law or Kandyan Lawand not the Roman-Dutch Law; and that even if the Roman-Dutch■Law does apply, such an -Action will not lie under that Law,On the conquest of the * Kandyan territory by the British
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in 1815, a Proclamation dated the 2nd March, 1816, was issueddeclaring the Kandyan Provinces vested in the Sovereign of theBritish Empire, and at the same time securing to the inhabitantsof the Kandyan Provinces their civil rights and immunitiesaccording to the laws, institutions and customs in force amongstthem; but no reference is made to the Boman-Dutch Law, nor tothe extension of the law of the Maritime Provinces of Ceylon tothe Kandyan Provinces. It is true that, in arguing the case SimanAppu v. The Queen's Advocate (in 9 L. R. A. C. 571), it wasadmitted by the counsel for the Crown that the Boman-Dutch Lawwas the law of Kandy, and the Privy Council states that “ the“ Kingdom of Kandy was not conquered till 1818. after which the" law of the maritime parts was extended to the interior.” Buithere does not appear to be any authority for that proposition.Subsequent legislation seems to point out that it is erroneous. Forin 1852 the Legislature, by section 5 of the Ordinance No. 5 of 1852,enacted that where there was no Kandyan Law or • custom havingthe force of law applicable to the decision of any matter orquestion arising for adjudication within the Kandyan Provinces,for the decision of which other provision was not thereinspecially made, the Court should in any such case have recourseto the law as to the like question or matter in force in the Mari-time Provinces, which was thereby declared to be the law forthe determination of such matter or question. It is clear there-fore that up till 1852 the Boman-Dutch Law had not been intro-duced into the Kandyan Provinces, and consequently up till 1352the prerogative of the Sovereign that an action could uctf bebrought against him must have been in force. If the law asadministered by the Kandyan kings governed the question of.prerogative rights, it is obvious from the history of those kingsthat they would not have tolerated proceedings of any sort againstthem by their subjects. They wrere absolute monarchs withthe power of life and death and legislation (Niti Niganduvja,p. 7, & c.). On the other hand, if Kandyan Law- is silent on thepoint, there is nothing to divest the British Sovereign of his pre-rogative of immunity from actions. The question then remainsas to whether section 5 of Ordinance No. 5 of 1852 did in any waydivest the British Sovereign of any of his royal prerogatives.Section 5 seems only to deal with questions arising between sub-ject. and subject, where there is no Kandyan Law or custom havingthe force of law applicable to the matter.
The prerogative rights of the Crown cannot be restricted by anOrdinance without express words. Attorney-General v. Con-stable, 4 L. R. Ex. Div. 172, and the Postmaster-General in re-
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1901.Benham, 10 L. B. Ch. Div. 595. In the Privy Council, in the case
March 28. Tkebergo v. Landry (L. R. 2 A. C. 102), it was held that in anycase in which the prerogative of the Crown has existed, precisewords must be shown to take away that prerogative. It has beenlaid down by the Supreme Court of Ceylon that the Crown is notbound by any general enactment which will deprive the Crownof its prerogative, unless the enactment affects the Crown eitherby express terms or by necessary implication. Horsfall v. Queen’sAdvocate, 5 8. C. C. 101. There is nothing in the Ordinance No. 5of 1852 which divests the Sovereign of his prerogative either byexpress terms or by necessary implication.
Assuming that the Roman-Du,tch Law is in force in the Kandyan-Provinces, the question is whether under the Roman-Dutch Lawau action rei vindicatio would lie against the Crown. Thequestion of the right of the subject to sue the Sovereign has been-frequently discussed in our local Courts, and it has always beenheld that the Crown could not be sued ex delicto. Hendrick v.Queen's Advocate. 4 S. C. C. 76; and Newman v. Queen’s Advo-cate, 6 S. C. 0. 29, and other cases. And the Privy Council inSiman Appu v. The Queen’s Advocate recognizes that there was adistinction in Ceylon between actions in contract and actions intort, for whilst in the former the Crown could be sued in Ceylon,it could not be in the latter. They pointed out in their judgmentin the case Farnell v. Bowman, 12 L. R. A. 0. 643, that every onewas agreed that there existed no practice of suing the Crown intort in Ceylon, whereas there did exist a practice of suing ohcontracts in,C-evlon.
In this case the plaintiff alleges that the Crown by its officershas wrongfully taken possession of land which belongs to him,and that the Crown has adopted the wrongful acts of its officers.The basis of the action is therefore a wrongful act, and conse-quently the cause of action appears to be founded on a tort. Noaction therefore lies against the Crown..
Assuming, however, that the action is one not based on tort, thequestion is whether an action rei vindicatio will lie against theCrown in this Colony. The action rei vindicatio is dealt with inVoet, lib. 6, tit 1, and in it there is no reference to any such actionbeing maintainable against the Crown, as against the fiscus, orimperial treasury. In fact lib. 6, tit 1, num. 23, seems to pointto no such action lying, because it states that even those personswho have bought the property of a third party from the fiscus orfrom the palace of the Emperor or Empress are secure from suchactions, though, by the Constitution of Zeno, an action against thefiscus was allowed as a matter of indulgence (not of right),
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if brought within four years, to recoer the price of the pro-perty sold In the same way, Voet (lib. XVIII., tit 4, uutn. 8)in treating of the sale of an hereditaa says that the purchaser fromthe focus is safe, and cannot be evicted from the premisespurchased. The only remedy is by an action against the focusto recover the amount of money paid to the focus by the pur-chaser. This remedy also appears to be an indulgence, and underthe Constitution of Zeno had to be brought within four years. Ifthe action rei vindicatio will not lie against the purchaser fromthe Crown or focus, much more so would it not lie against theCrown as focus.
In Sanford v. Waring, 2 N. L. R. 361, the Chief Justicerefers to a passage from Hollandsche Consultation (bk. IV., p. 123),.where the Fiscal of North Holland on being sued excepted to theplaintiff’s right to sue, and the Court accordingly overruled theplea and called on the defendant to answer. It does not appearwhat the nature of the action brought against the Fiscal on thatoccasion was. Admittedly, certain actions lay against the focus,and it does not at all follow that the passage referred to coversan action ex delicto or one rei vindicatio. In fact, the passagescited earlier seems to disclose that no action rei vindicatio wouldlie against the focus.
The reasoning of the Privy Council in the case of Siman Appmv. The Queen's Advocate appears to be based on the fact that anextensive practice of suing the Crown in contract had existed inCeylon, and was recognized by the Legislature in enacting the117th section of the Ordinance No. 11 of 1868. The language ofthat section, the Privy Council held, did not confer a new rightor establish a new kind of suit, but only regulated rights andproceedings already known and existing. The question narrowsitself to the issue as to whether there has been a recognizedpractice in Ceylon of suing the Crown in actions rei vindicatio.Chief Justice Cayley in Fernando’s case, reported in 4 S. C. C. p. 77.said that the practice of suing the Crown in real actions for therecovery of specific property had prevailed in Ceylon for a longseries of years, and had been recognized by the Supreme Court inhundreds of decisions. The question at issue in that case referredto the right to sue the Crown for the recovery of moneys dueex contractu, and accordingly the words dealing with actions reivindicatio were obiter dicta. It is submitted that no decisions ofthe Supreme Court have ever recognized the right of the subjectto sue the Crown in real actions for the recovery of specificproperty, and no such actions have. been brought. On the.contrary, it has been held so far back as 1884 that where the:9-
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1001. plaintiff sued the Queen’s Advocate for damages arising out ofMarch 28. trespass to land and prayed for a declaration of title as against.
the Crown, that no such action would lie. Appuhami v. Queen’sAdvocate, 6 8. G. C. p. 72, and again in December, 1887, when anaction was brought against the Crown to have certain land declaredthe property of the plaintiff, the Supreme Court consisting ofChief Justice Burnside and Sir Hairy Dias affirmed the decisionof the lower Court, and held that the action, being not one excontractu but based on an unlawful entry by the Crown’s servants,would not lie. Muttu Aiyar v. Attorney-General, D. C., Kurune-gala, 21,762 (unreported). [Bonser. C.J.—Here, we have twoactions in one plaint:one a rei vindicatio and the other for
damages.] There was no such contention in the Court below.An action rei vindicatio is based on a wrong done, and the present-plaint alleges wrongful possession on the part of the Crown.
Rudra. waived the claim for damages and expressed his willing-ness to confine his claim to a. declaration of title merely and toamend his plaint accordingly.
Bonser, C.J.—
In this action the plaintiff alleges that the Crown by its officers-has wrongfully taken possession of land which belongs to him;that the Crpwn has adopted the acts of its officers, and is inpossession of the land, and refuses to give it up to him. He-claims a declaration of title as to the land and also claims thefruit .thereof, and makes a further claim for damages for thewrongful act of dispossession.
He sues the Attorney-General as representing the Crown in this1-Island. The defendant took the objection that nq action of this-kind will lie against the Crown or against him as representing theCrown. Well, if that be so, it is a very alarming state of things,and not very creditable to the Government of this Island. Forthe purposes of the argument, the allegations in the plaint must be-taken to be true, and we are in effect asked to believe that theCrown can dispossess any citizen in this Island of his property,and that there is no remedy open to him. I for my part, am notinclined to believe that the plaintiff is in such a state as is-attempted to make out. I will not repeat the reasons which ledme to think that things are not so bad as suggested. They willbe found set out at length in the judgment I delivered in the caseof Sanford v. Waring (2 N. L. R. 361).
However, the plaintiff by his counsel has waived all claim to anydamages arising from any alleged *tort on the part of the Crown and
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its officers, and has stated in open Court that he is willing 1901.to confine his claim to a mere declaration of title and to the March 28.fruits of the land while in the possession of the Crown, so that it bonser.C.Jis unnecessary for us to determine the question whether the lawin this Island is that no action can be brought against the Crownfor a tort.
The judge of the Court below dismissed the plaintiff’s action onthe ground that he had no claim whatever against the Crown, follow-ing a judgment of this Court delivered in 1887, in the case of MuttnAiyar v. The Attorney-General, which was tried in the DistrictCourt of Kurunegala and came up in appeal before the late ChiefJustice Burnside and Mr. Justice Dias. Mr. Justice Dias deliveredthe judgment of this Court, which was acquiesced in by the ChiefJustice. That case has never been reported, and I think it wouldhave been desirable if it had been left in the obscurity which it hasso long enjoyed. The grounds given by Mr. Justice Dias are not,
I may say with all respect for that eminent judge, such as are con-sistent with the reasoning of the Privy Council in the case shortlybefore decided, in 1884, with regard to actions against the Crownin the matter of contracts. I refer to the case of Siman Appu v.
The Queen'8 Advocate. It is quite clear to my mind that thelearned judge had not before him when he wrote his judgment theratio decidendi of the Privy Council in that case.
But as regards the question of an action by a subject to recoverpossession of land in the possession of the Crown, it seems to methat the reasoning of the Privy Council in the case of Siman Appudistinctly applies and governs this case, and I prefer to adopt, theview of the late Chief Justice Cayley, who, having been himselfQueen’s Advocate, stated that " the practice adopted here of suing’“the Crown in the name of the Queen’s Advocate' both in real“ actions for the recovery of specific property and in actions for“ that of moneys due ex contractu has prevailed here for a long“ series of years, and has been recognized by this Court in hundreds“ of decisions.” It was said in argument that there is no founda-tion for that statement of Chief Justice Cayley, but he had at thetime, sitting at his side, Justices Clarence and Dias, who concurredwith him, and Chief Justice Cayley by using “ we ” spoke in theirnames as well as in his own; and I cannot bring myself tobelieve that so learned and eminent a judge as Sir Richard Cayleywould have committed himself to a statement of facts, peculiarlywithin his knowledge, if it was not strictly true.
The proper order to make in this case is that the case beremitted to the District Court to make the necessary amendmentsin the pleadings arising out of the undertaking made in open
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Court by plaintiff’s counsel, withdrawing all claims in respect oftort and confining his claim to a simple one of title. –
In conclusion, I would add that, if the law as to the rights of asubject to sue the Crown in actions of tort is doubtful—andI must admit that it is, since my brother Lawrie is strongly ofopinion that the Crown is not liable to be sued in such actions—then it is high time that the Government should take steps tobring the legislation of this Island into line with the legislationof other Colonies, such as New Zealand and the Straits Settle-ments, and in this connection I would quote the words of thejudgments of the Privy Council in the case of Parnell v. Bowman{12 Appeal Gases, 649), where the Board said: “ Justice requires“ that the subjects should have relief against the Colonial Qovern-“ ments for torts as well as in cases of breaches of contract or the“ detention of property wrongfully seized into the hands of the“Crown”, and I venture to say with all respect that I entirelyconcur in that expression of opinion.
Lawrie, J.—
To me it seems settled law that the Crown is not liable to besued by a subject in actions ex delicto. In so far as this is anaction claiming substantial damagesforan allegedwrongful and'
unlawful act by theCrown throughitsagents andservants and’
for wrongful and forcible possession by the Crown, it cannot, inmy opinion, be maintained. Plaintiff’s counsel was willing thathis plaint should be amended. I propose to order the deletionof the words alleging delict, “ wrongfully and unlawfully ” in thesecond line and “ the wrongful and forcible ” in the sixth line,and “ to the loss and damage of plaintiff of Rs. 20,000 ” at theend of the paragraph, and the third prayer. The action willthen correspond to a petition of rights addressed to the king,a temporate statement, praying the Court for declaration ofan asserted title toland, of whichthe Crown isin possession.
I do not call that an action rei vindicatio. I am not sure thata subject has the right to sue the Crown, as he could a fellow-subject in an action rei vindicatio■ I call the action one fordeclaration of title,which (I takeit)is not thesame as an
action rei vindicatio. It is said that there have been hundreds ofcases in our Courts for declaration of title, in which the Crownwas made defendant; it is said that there has been only one(D. C., Kurunegala, 21,762). I am not very concerned whetherthere have been many or any or none. There is no law denyingthe right of a subject in Ceylon to bring an action for declarationof title against the Crown, i think it is recognized in the
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Ordinance No. 12 of 1840.1 think the analogy of the petition of
rights in England supports it. I think that judgments of thePrivy Council show it is just that such an action should be allowed.
These amendments having been made. I would set aside thedecree dismissing the action, and I would remit the case to theDistrict Judge to proceed according to law. No costs of thisappeal.
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Lawme, 3.