034-NLR-NLR-V-22-LEE-v.-CHANDRAWARNAM.pdf
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Present: Bertram C.J. and Schneider A.J.
LEE v. CHANDRAWARNAM.
74—D. G. Hatton, 3 (Special).
Notary authorized to practise in the judicial district of Kandy—Exclusiveof Nuwara Eliya-Hatton division from Kandy District—Eight ofnotary to practise in Nuwara Eliya-Hatton division withoutgetting his warrant altered.
A notary was authorized by his warrant in 1907 to practise hisprofession throughout tho (judicial) district of Kandy. In 1909,.by Proclamation, tho Nuwara Eliya-Hatton division was excludedfrom tho judicial district of Kandy. The Rogistrar-Goneral wasadvised by Government that the creation of the new district didnot interfere with the vested rights of notaries.
Held, that the notary was not entitled under his warrant topractise in the judicial district of Nuwara Eliya-Hatton..
Bertram 0. J.—If the notary wishes to preserve the area of hisoriginal practice, his proper course is to apply to the Governor, undersection 11 of Notaries Ordinance, to change area specifiedin his warrant and to grant him a new warrant.
rJ^HE facts appear from the judgment.
Keuneman, for appellant.
September 6,1920. Bertram C. J.—
This is an appeal from an order of the District Judge of NuwaraEliya, confirming a refusal of the Secretary of the Court to issue to anotary a certificate under section 25of the Notaries Ordinance, No. 1
* (1918) 20 N L. B, 332.
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of 1907, to the effect that he is duly authorized to practise as a ,notary -within the jurisdiction of the Nuwara Eliya-Hatton DistrictCourt.
The notary in question is Mr. Nigel I. Lee, who, besides being anotary, is a proctor belonging to the firm of Messrs. Liesching &Lee of Kandy. Certificates were refused to both Mr. Liesching andMr. Lee, and the learned District Judge confirmed the refusal inboth cases, but it is only in the case of Mr. Lee that an appeal istaken.
The ground for the refusal is that Mr. Lee has not complied withthe provisions of section 12 of the Ordinance, which requires anotary before commencing to practise to make and sign a declarationbefore the District Judge having jurisdiction over the area specifiedin his warrant, to execute a security bond before such Judge, and tofile in the District Court “ of such district ” an attested copy of hiswarrant.
Before considering the facts of the case, it will be convenient toexamine the general scheme of the Ordinance. Throughout theOrdinance there is a close connection between the notaries, whosepractice the Ordinance authorizes, and the various District Courtsof the Island. By rule 1 in Schedule B “ Every person (other thanan advocate or proctor of the Supreme Court) who shall intend toapply for admission as a notary shall give at least three months’notice of his intention to the District Judge of the district and theGovernment Agent of the province in which he resides and in which'he intends to practise.” On obtaining a warrant he must complywith the formalities of section 12 already referred to. Uponcompliance with those formalities he is entitled to be enrolled as anotary in a book kept for that purpose in the District Court. (Seesection 16.) By section 17 (1) a list of all persons authorized to actas notaries within any district must be kept at all times posted at theDistrict Court-house of the district for general information. Bysection 20 the District Judge, within whose jurisdiction a notaryresides, is given jurisdiction to inquire into offences of misconductof notaries, and to report to the Governor on the subject. Everyyear a notary must obtain from the Secretary of the District Courta certificate that he is entitled to practise within the jurisdiction ofthe Court. (See section 25.) The District Court has thus a generalsupervision over notaries authorized to practise in its district. Thewarrant issued by the Governor-to the notary need not authorizehim to practise in any particular judicial district. By section 3 itmust specify the area within which the person appointed is author-ized to practise. This area need not include the whole of a judicialdistrict, it may comprise more tluin one judicial district or portionsof more than one judicial district, but, nevertheless, it is clearly theintention of the Ordinance that, where a notary is appointed withauthority to practise in any area within the jurisdiction of the
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District Court, he shall before practising in that area take steps toenrol himself as a notary at that District Court.
To come now to the facts of the present case, Mr. Lee was ap-pointed a notary under a repealed Ordinance, No. 2 of 1877. Butany rights which he had under that Ordinance are preserved to himby section 5 of the Interpretation Ordinance, No. 21 of 1901. Bysub-section 3 of that section it is laid down that a repeal does notaffect any right acquired under the repealed law. Mr. Lee, there-fore, has all rights he enjoys under the repealed Ordinance. Thereis, however, no substantial difference between the rights of a prootorand notary under the repealed Ordinance and his rights under thepresent Ordinance.
Mr. Lee’s warrant was issued to him on January 29, 1907, and itpurported to give him authority “ to be and act as notary publicat Kandy and throughout the District of Kandy ? ” The firstquestion we have to ask ourselves is, Within what area thiswarrant authorized Mr. Lee to practise ?
Does the expression “ District of Kandy ” refer to the revenuedistrict of Kandy, or to the judicial district of Kandy ? Revenuedistricts and judicial districts are not necessarily identical. Inview of the relation between notaries and District Courts, to whichI have drawn attention above, I have no doubt that the expressionmeans the judicial district of Kandy. On April 29, 1909, a Pro-clamation was issued (see Gazette No. 6,307) establishing a DistrictCourt to be holden in the towns of Nuwara Eliya and Hatton in thedistrict of Nuwara Eliya. The effect of this Proclamation was toexclude the Nuwara Eliya-Hatton judicial divisions from the Kandyjudicial district. What effect did this Proclamation have uponMr. Lee’s rights ? It is contended by Mr. Keuneifian that underhis warrant, Mr. Lee had a vested right to practise in the whole of thearea which was, in fact, comprised in the Kandy District at the dateof his warrant, notwithstanding any alteration that might be madein the limits of that district. This is the supposition on which thepractice has, in fact, proceeded. From correspondence which waslaid before the District Judge it appears that the Registrar-Generalwas advised that the creation of a new District Court of NuwaraEliya did not interfere with the vested rights of notaries under theirwarrants to practise in what was, before the change, the judicialdistrict of Kandy. I am sorry to disturb an existing practice, butI regret that I cannot read the warrant in this way. The areadefined in the warrant may be defined either by actual metes andbounds or by reference to boundaries recognized for some otherpurpose. When the Governor authorized Mr. Lee to practise in thejudicial district of Kandy, I read this authority as permittingMr. Lee to practise within the limits of that district as they mayfrom time to time be defined by law. If any portion of an adjoiningjudicial district were added to the judicial district of Kaiidy, I
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( 1^2 )consider Mr. Lee would be entitled to practise within the area soannexed, and, similarly, if the judicial district of Kandy wererestricted, I take it that the area of Mr. Lee’s practice must herestricted also. If a notary in the situation of the appellant wishesto preserve the area,of his original practice, it seems to me that hisproper course is to apply to the Governor under section II of tireOrdinance to “change the area specified in his warrant, and to granthim a new warrant.” If the effect of the new warrant is toauthorize him to practise within the jurisdiction of two DistrictCourts, then, under section.12, he ought to file his warrant in all theDistrict Courts of the area in which he is authorized to practise.I consider that in section 12 the expression “District Judge,”though used in the singular, must, under paragraph 23 of section 3of the Interpretation Ordinance, he held to include the plural, andthat the expression “ before commencing to practise ” must, withreference to any particular judicial district, be considered asmeaning “before commencing to practise in that District.”
I am, therefore, of opinion that the order of the Secretary (withoutthe qualification directed by the District Judge) must be confirmed,and that the appeal must be dismissed.
Schneider A. J.—I agree.
Appeal diemissed.