M. W. SILVA, Petitioner, and THE ATTONEY-GENERAL , Respondent

033-NLR-NLR-V-62-M.-W.-SILVA-Petitioner-and-THE-ATTONEY-GENERAL-Respondent.pdf


Silva v. The Attorney-General
121
I960Present: Basnayake, C.J., H. N. G. Fernando, J., and
Sinnetamby, J.
M. W. SILVA, Petitioner, and THE ATTOKNTEY-GENERAL,RespondentS. G. 601—Application to dismiss the appeal to the Privy Councilin S. G. 785}D. G. Colombo 34746 for non-prosecution
Privy Council—Appeal thereto—Dismissal for non-prosecution—“ Due diligence *’—Printing of record in Ceylon—■Rntrustment of it to Government Printer—Timelimit for delivery of prints to Registrar—Crown—Immunity from laches—Prerogative rights of Sovereign—Appeals (Privy Council) Ordinance (Cap. 85),Schedule, Rules 11, 12, 13, 15, 16, 23, 25—Appellate Procedure (Privy.Council)Order, 1921, paragraphs 6, 10, 11, 12, 13, 17, 18—Interpretation Ordinance(Cap. 2), 8. 3—Adoption of Roman Dutch Lata Proclamation (Gap. 9),' ss. 1, 2—Prescription Ordinance (Cap. 55), s. 15.
In an appeal to the Privy Council, final leave to appeal was granted on 25thFebruary 1959. The appellant (the Attorney-General) elected to print therecord in Ceylon. He did not, however, deliver the prints of the record to theRegistrar for examination and certification within the two months specified inparagraph 11 of the Appellate Procedure (Privy Council) Order, 1921. On 15thApril an application was made for extension of time for the delivery of theprints. On 28th April an extension till 28th July was granted. On 16th Julyan application for further extension of four months’ time for the delivery of theprints was lodged on the ground that typewritten copies of the record fortransmission to the Government Printer had not been prepared by theRegistrar. It was heard on 18th September and on 21st December was dis-missed on the ground that it was not properly constituted and was not dulymade as required by the statutes governing it. On the same day the res-pondent filed the present application for dismissal of the appeal on the groundof non-prosecution. Until the date of this application no affidavit or statementhad been filed by the appellant or on his behalf explaining the failure to deliverthe prints of the record to the Registrar. But on 24th December the appellantlodged a motion 'applying for further four months’ time for delivery of the, prints of the record to the Registrar on the ground that, although the type-written copy of the brief had been forwarded by the Registrar to the Govern-ment Printer on 25th August 1959, the Registrar had informed^in reply to aninquiry made by the Crown Proctor on 5th December 1959, that he was com-* pelled to give priority to certain other more urgent work and hoped to sferid"the proof of the prints of the record by 20th December only.
Held, by Basnayake, C.J., andlSinnetamby, J. (H. N. G-. Fekntaotjo, J.,dissenting), that the Attorney-General (appellant) did not exercise due diligencewithin the meaning of Rule 25 Gf the Schedule-to the Appeals (Privy-Council)
" Ordinance. The fact that– the .Government Printer is selected .to print therecord does not release an appbllant from his-duty to-deliver the prints to theRegistrar within the, two months specified, in paragraph 11 of, the AppellateProcedure (Privy Council) Order, 1921, or within such extended time as maybe granted under paragraph 18. The obligation is on the appellant and not bnthe Registrar to have the record prepared subject to the Court’s supervision..'
Per Baskayake, C.J.—The Crown was- not exempt from the duty to .showdue diligence in taking all the necessary steps for the purpose of-prqcuring the
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BASNAYAKE, C.J.—Silva v. Tne Attorney-General
dispatch of the record to England. It was not open to the Crown to rely onthe maxim mtHum tempos occurrit regi.
Per SoniETAUBY, J.—-Even though there was a lack of due diligence on thepart of the officers of the Crown, the maxim nullum tempos occurrit regi applied.Laches cannot be imputed to the Crown unless the Crown has expressly orimpliedly agreed to be bound by all the terms of the Schedule Kules of theAppeals (Privy Council) Ordinance.
APPLICATION made under Rule 25 of the Schedule to the Appeals(Privy Council) Ordinance.
E. B. S. R. Goomaraswamy, with Neville Wijeratne and F. G. Perera,for Plaintiff-Petitioner.
M.Tiruchelvam, Q-G., Solicitor-General, with V. Tennakoon, SeniorCrown Counsel, and H. L. de Silva', Crown Counsel, for Defendant-Respondent.
Gur. adv. vult.
June 10, 1960. Basnayake, C.J.—
This is an application under Rule 25 of the Rules in the Schedule tothe Appeals (Privy Council) Ordinance which reads as follows :
“ Where an appellant having obtained final leave to appeal, fails toshow due diligence in taking all necessary steps for the purpose ofprocuring the despatch of the record to England, the court may, on anapplication in that behalf made by the respondent, or of its ownmotion, on such notice to the parties as it shall think reasonable in thecircumstances, declare the appeal to stand dismissed for non-prosecu-tion without express Order of His Majesty in Council, and the costs ofthe appeal and the security entered into by the appellant shall bedealt with in such manner as the court may think fit to direct.”
On 25th February 1959 final leave to appeal to the Privy Council wasgranted to the Attorney-General, the defendant in the action (hereinafterreferred to as the defendant). Although Rule 11 of the AppellateProcedure (Privy Council) Order, 1921, (hereinafter referred to as theOrder), makes it obligatory on the appellant, where he elects to print therecord in Ceylon, to deliver the prints thereof to the Registrar for examina-tion and certification within two months after obtaining final leave toappeal, he did not do so. On 15th April an application was made for anextension of time for the delivery of the prints. On 28th April anextension till 28th July was granted. On 16th July a motion for afurther extension of four months’ time for the delivery of the prints waslodged in the Registry. Although the rules do not provide for such acourse the plaintiff filed objections to this application on 24th August.The objections were to the following effect:—
• (a) that the defendant had not shown due diligence in taking the■ necessary steps for the purpose of procuring the despatch of therecord to England,
SASNAYAKE, C.J.—Silva v. (The A.Uotne.y~General
123
(6) that no proper application had been made for extension of timewithin the time allowed by the rules,
(c) that the application was not properly constituted and was not dulymade as required by the statutes governing it.
* Those objections were heard on 18th September and on 21st Decemberthis Court upheld the third ground of objection taken by the plaintiffand refused with costs the defendant’s application for a further extensionof time. On the same day the plaintiff filed this application. In anaffidavit lodged with the motion of 16th July 1959 by the Proctor for thedefendant it was stated that typewritten copies of the record for trans-mission to the Government Printer had not been prepared by theRegistrar and that a further four months would be required for deliveryof the prints to him.
The question for decision is whether the defendant has failed to showdue diligence in taking all the necessary steps for the purpose of pro-curing the despatch of the record to England. "Until the date of thisapplication no affidavit had been filed by the defendant or on his behalfexplaining the failure to deliver the prints of the record to the Registrar.Rut on 24th December the defendant lodged the following motion in theRegistry :•—
“ I file herewith my affidavit and on the facts and for the reasonsstated therein move in terms of Rule 18 of the Appellate Procedure(Privy Council) Order 1921 that Your Lordships’ Court be pleased togrant an extension of further four months’ time for delivery oi theprints of the record to the Registrar under Rule 18 oi the aforesaidOrder.”
The affidavit referred to in the motion does not explain the delay. Itmerely recapitulates the steps taken since the date of the grant of finalleave. The following are the relevant statements in it:—
“ 3. As the prints were not ready for delivery to the Registrar,Supreme Court, for examination and certification, an application forextension of time for delivery of the said prints to the Registrar,Supreme Court, was made on behalf of the Defendant-Respondent-Appellant by Solomon Christoffel Obeysekere de Iavera, Proctor of theSupreme Cotut, on the 16th day of July, 1959.
tc 4. The said application came up for hearing on the 18th day ofSeptember, 1959, and the Supreme Cotut by its Order dated the 21stday of December, 1959, refused to entertain the said application onthe grounds that the said Solomon Christoffel Obeysekere de Riverawas not a Proctor duly appointed by the Defendant-Respondent-Appellant to act for him.
“ 5. The Defendant-Respondent-Appellant by his writing datedthe 22nd day of December, 1959, filed in these proceedings appointedme to act for him in connection with all matters relating to the applica-tion for leave to appeal to Her Majesty in Council. .
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BASNAYAKE, C. J —Silva v. The Attorney-General.
“ 6. Typewritten copy of the brief in the above numbered case wasforwarded by the Registrar, Supreme Court, to the GovernmentPrinter on the 25th day of August, 1959.
“7. On inquiry from the Government Printer for the reasons forthe delay in printing the said record in this case, X received his replydated the 11th day of December, 1959, which is annexed heretomarked ‘ X ’.”
The letter of the Government Printer referred to in paragraph 7 reads :
“ Reference your letter of the 5th instant, I have to inform youthat due to the Printing requests for the forthcoming ParliamentaryElections the production programme of this department had beenseverely disorganized. Highest priority has to be given to the printing •of Election work, however, it is hoped to send you the proof of theabove by the 20th instant.”
To answer the question whether the defendant has failed to show duediligence in delivering the prints of the record to the Registrar, it isnecessary to ascertain the meaning of the expression “ due diligence ” inthis context. The rule of the interpretation of statutes is that wherewords or expressions are not defined in a statute they should be giventheir ordinary meaning having regard to the context in which theyoccur. It is proper to have recourse to standard dictionaries for thepurpose of ascertaining the ordinary meaning of words. According toWebster’s New International Dictionary “diligence” means “per-severing application, devoted and painstaking effort to accomplish whatis undertaken, assiduity.” According to the New Standard Dictionary“ diligence ” means “ assiduous and constant application to one’sbusiness or duty, careful and persevering effort to accomplish what isundertaken ; proper heed or attention ; care ; caution ; especially in law,the degree of personal care, attention or effort due from one in a givensituation ; opposed to negligence.” According to the Oxford Dictionarythe word “ diligence ” means “ constant and earnest effort to accomplishwhat is undertaken ; persistent application and endeavour ; industry,assiduity.” The word “ due ” when used as an attribute is defined inthe last mentioned dictionary “ Such as ought to be, to be observed, orto be done; fitting, proper, rightful, such as is necessary or requisite forthe purpose ; adequate ; sufficient.” It is not necessary to quote themeanings given in the other two dictionaries as there is no materialdifference between them and the one in the Oxford Dictionary. TheNew Standard Dictionary defines “due diligence” as “the degree ofcare or diligence which one is lawfully bound to exercise.” This ex-pression is defined in Black’s Law Dictionary thus : “ Such a measure ofprudence, activity, or assiduity, as is properly to be expected from, andordinarily exercised by, a reasonable and prudent man under the par-ticular circumstances; not measured by any absolute standard, butdepending on the relative facts of the special case ”.
BASNAY-AJCJO, C.J.-—Silva v. The Attorney-General125
When the steps taken by the defendant are examined in the light ofthe meanings appropriate to the context it is to my mind clear beyonddoubt that no diligence whatsoever has been shown “ in taking allnecessary steps for the purpose of procuring the despatch of the recordto England’*.
The judgment of this Court was delivered on 14th November 1958 andfor over one year the defendant with all the resources of the Grown at hisdisposal has not been able to get a record consisting of 100 typewrittenpages printed for despatch to England. The expedition with whichthose who wish to appeal to the Privy Council should act is indicated byRule 11 of the Order which provides that “ If the appellant elects toprint the record or any part of it in Ceylon, he shall deliver the printsthereof to the Registrar for examination and certification within twomonths after obtaining final leave to appeal”. It is only in exceptionalcases that this period may be extended by the Court under the powergranted by Rule 18 of the Order which reads : “ The Court may, for good,cause, extend the time allowed by this Order for doing any act, notwith-standing that the time has expired The defendant has not only failedto deliver the prints within the time prescribed in Rule 11 but he alsofailed to do so within the further period of three months and what ismore even at the end of a further four months for which period heunsuccessfully sought an extension the prints had not been delivered.
The position at the date of this application was that the defendant hadneither delivered the prints nearly five months after the expiry of theextension given to him nor had he obtained further time to do so. Inthese proceedings the defendant has not chosen to file an affidavit or evena statement to show what efforts he had made to get the printing done intime. The plaintiff’s allegation of the lack of due diligence thereforestands unrefuted and unexplained. Even if it were permissible tointroduce into this application the facts stated in support of the de-fendant’s subsequent motion of 24th December for a further four months’time, they do not show due diligence. With the affidavit attached to themotion he has filed a letter from the Government Printer, in which thelatter states in answer to an inquiry made by the Crown Proctor on 5thDecember 1959 that owing to other urgent work he has not been able toprint the record. If the Government Printer was too busy with otherwork the defendant should have found another printer who was lessbusy. Even as it would not be proof of due diligence, if a privateindividual were to say that the printer of his choice regards his otherwork as more urgent and is unable to deliver the prints in time, so will itnot show due diligence on the part of the defendant who has chosen toemploy the Government Printer when he says that the printer of hischoice is too busy to attend to the work in time. There is no provisionof the statute or the rules that requires the records' of cases to which theCrown is a party to be printed by the Government Printer and no other.If the Government Printer was unable to print the record with theexpedition with which it should have been done the defendant shouldhave employed a printer who was able to do so. If he satisfied us that-
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he approached all the available printers who undertook this class of workand that there was no one who would undertake to deliver the printswithin the time allowed therefor, that would be a circumstance that canproperly be taken into account in deciding whether there has been duediligence on the part of the defendant. There is no evidence that anyattempt was made to get the printing done by another printer, nor isthere any material before us that any other printer would not have donethe work within the specified period of two months or if that wereimpossible within the extended period of three months. The successfullitigant is not to be kept away from the fruits of his success owing to thetardy methods of his opponent especially when the opponent is theCrown with all the resources that it has at its command. The de-fendant has in this case not only not shown due diligence in taking thesteps necessary for the purpose of procuring the despatch of the recordto England but he has also been positively negligent in doing so. TheCrown which should set an example to other litigents in acting timeouslyin regard to steps which it has to take in legal proceedings has failed todo so in this case and far from being a good example has displayed atardiness which even a private individual should be ashamed of.
Before the expiration of the further three months’ time granted tohim the defendant moved for an extension of a further four months.That motion was rejected as it was made by a Proctor who had noauthority to act on his behalf.
Learned counsel for the Crown stated from the Bar that he believedthat the prints were ready on the date on which we heard the plaintiff’sapplication, but there was no proof that they had been delivered to theRegistrar. Even if they were ready the defendant would not be able toproceed without further application for an extension of time beyond thefour months he has asked for. There can be no clearer indication of thedefendant’s negligence than this. The motion he has filed is futile. Nouseful purpose would be served by granting an extension of four monthswhen it is evident that the defendant cannot satisfy the requirements ofthe law even if it is granted. There is no other application before us norhas there been any application to amend the motion. I cannot escapethe feeling that in the instant case the defendant has fallen far below thestandard one is entitled to expect of the Crown as a litigant.
As an alternative argument the learned Solicitor-General submittedthat the Crown was not bound to act within the time prescribed by therules in the Schedule to the Appeals (Privy Council) Ordinance or in theAppellate Procedure (Privy Council) Order, 1921, because one of theprerogative rights of the Sovereign was that laches did not operateagainst her. The maxim nullum tempus occurrit regi (no time runsagainst the Sovereign), which expresses the same right in another form,is, subject to the limitations placed on it from time to time by statute, apart of the prerogative of the Sovereign of England and part of itscommon law. In the course of years it has been radically altered in thatcountry.
BASNATAKE, C.J.—Silva v. The Attomety-General
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The prerogative rights of the Sovereign of England., being a part ofthe Common Law of that country, do not automatically become the law•of Ceylon ; because Ceylon being a ceded country the law of the country■continues until the Sovereign or the legislature changes it (.Mayor of theCity of Lyons v. Hon. East India Co. *). The law of England obtains in■Ceylon only to the extent to which it has from time to time been in-troduced by express enactment (vide Civil Law Ordinance Vol. II Legis-lative Enactments p. 138). In the case of this country it is only theprerogative rights declared in the Letters Patent constituting the office•of Governor-General (1947) that have been expressly introduced by an-act of the Sovereign. Another of the prerogative rights of the Sovereignis a matter of express legislation by our Legislature (s. 3 Interpretation•Ordinance). In other respects the law governing the Sovereign’s rightsis the Roman-Dutch Law. In fact far from introducing the commonlaw of prerogative of England the Sovereign expressly by the Proclama–tion of 1799 declared that the Roman-Dutch Law was to be the law of theland. This is what the Proclamation says :
“ Whereas it is His Majesty’s gracious command that for the presentand during His Majesty’s will and pleasure the temporary administra-tion of justice and police in the settlements of the Island of Ceylon,'now in His Majesty’s dominions, and in the territories and depen-dencies thereof, should, as nearly as circumstances will permit, beexercised by us in conformity to the laws and institutions that sub-sisted under the ancient Government of the United Provinces, subjectto such deviations in consequence of sudden and unforeseen emer-gencies, or to such expedients and useful alterations as may render adeparture thereform either absolutely necessary and unavoidable orevidently beneficial and desirable …
“ 2. We therefore, in obedience to His Majesty’s command, dohereby publish and declare, that the administration of justice andpolice in the said settlements and territories in the Island of Ceylon,with their dependencies, shall be henceforth and during His Majesty’spleasure exercised by all courts of judicature, civil and criminal,magistrates, and ministerial officers, according to the laws and in-stitutions that subsisted under the ancient Government of the UnitedProvinces, subject to such deviations and alterations by any of the.respective powers and authorities hereinbefore mentioned, and to suchother deviations and alterations as.we shall by these presents or by anyfuture proclamation, and in pursuance of the authorities confided tous, deem it proper and beneficial for the purposes of justice to ordainand publish, or which shall or may hereafter be by lawful authorityordained and published.” (Vol. I, Legislative Enactments, p. 108.)
This very question of the prerogative that time does not run againstthe Sovereign has been decided by this court as far back as 1870 in a casereported in Vanderstraaten’s Reports, 1870. After declaring that in 1
11 Moore, Indian Appeals, 270.
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1BAjSNAYAILE, C.J.—Silva v. The Attorney-General
Roman-Dutch Law, the property of the Fisc is subject to the ordinarylaw and that the subject could acquire a prescriptive title to land asagainst the Fisc in the same way as he was entitled to acquire a title byprescription as against a fellow subject under the common law, thejudgment of the court proceeds thus :
“ The title to public lands in this country being notoriously a com-municable and transferable right,—not being ‘ extra commercium andnot pertaining or inherent to the ‘ majestas * or dignity of the Sovereignpower, are identical in their nature with such property of the ‘ Fisc *as it is certain was subject by Roman-Dutch law to the ordinary termof prescription, and being so identical are subject to the same generallaw of prescription as governed private lands prior to the Ordinance8 of 1834, viz., the ordinary Roman-Dutch Law term in case ofimmovable property, namely one-third of a century.”
The subsequent Prescription Ordinance No. 22 of 1871 which is theone now in force has not affected the legal position of the Crown asstated above for the reason that the provision that saved the statutefrom applying to the Crown then and in 1874, though not identical, is,in so far as it affected the Crown, not substantially different. Theformer reads :
“Provided, that nothing in this Ordinance shall in any way affectthe rights of the Crown, or shall be taken to alter or annul any of theprovisions of any law now in force in this Island, or which may here-after be passed for the prevention of frauds and perjuries.”
The latter states :
“ Nothing herein contained shall in any way affect the rights of theCrown, or shall be taken to apply to any proceedings in any action fordivorce, or to any case in which special provision has been or mayhereafter be made for regulating and determining the period withinwhich actions may be commenced against any public officer or otherperson.”
In dealing with the question whether the nullum, tempus rule is part ofthe law of Ceylon this court stated :
“ The case has next to be considered with reference to the questionwhether that branch of the Royal Prerogative which is founded on themaxim ‘ nullum tempus occurrit regi 5 is in force in Ceylon—for, if so,the Roman Dutch law will not apply. I think it is not. The maximin question is a part of the Prerogative Law of the English Crown,which Prerogative is a part of the Common Law of the ‘ Realm ofEngland ’, of which Ceylon forms no part: and Blackstone says,respecting these territories which belong to the Crown, but which are
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no part of the Kingdom ‘ the common law of England (as such) has noallowance (nor authority), they being no part of the mother country,but distinct, though separate dominions*, (1 Blackstone 108), a passagewhich Stephen in his New Commentaries more precisely connects with* conquered or ceded countries that have already laws of their own *(1 Stephen Com. 99). It follows from the Common Law of Englandhaving no authority here, and from the Royal Prerogative of theEnglish Crown deriving its authority from the Common Law ofEngland, that neither has that prerogative any authority in Ceylon,except so far as the particular branch of it claimed is (1) one necessarilyincident to Sovereignty, or except (2) it has been imposed on thisColony by the Crown in its legislative capacity, as a new law, or (3)unless it already formed part of the law of the country, as the pre-rogative of its rulers, before conquest or cession. But each of thesethree positions is entirely independent of the prerogative of the EnglishSovereign in particular, and of the Crown Law of England of which,the latter is part.’*
This-decision has remained unchallenged since 1870 and is undoubtedlythe law of Ceylon. The considerations that govern a decision of longstanding, especially one which affects the rights of the Crown, are statedby Lord Sumner in Great Western Railway Company v. Rater (8 T. C. 231at 253)thus:
“ Where a decision which limits the right of the Crown has longbeen unquestioned, far more practical weight attaches to this con-sideration of lapse of time than would have been the case had thedecision been the other way. In these contests the subject is alwaysat a great disadvantage. Decisions in favour of the Crown may oftengo unchallenged not because their correctness is generally recognised,but because no private person can face the cost of disputing them.Decisions to the contrary effect stand in a very different position. The. Crown is always very ably advised, in Revenue as in other matters,and for an appeal against the doubtful ruling affecting income tax thefunds can always be found.**
With those observations I am in entire agreement.
The contention of the learned Solicitor-General is against our law andcannot be upheld. The Crown cannot claim immunity from its laches.
It seems incongruous that the Sovereign should appeal to herself, forthat is what the Crown is seeking to do, unless it is claimed that theQueen of Ceylon is appealing to the Queen of England, in which casethere would arise the question what jursidiction has the Queen of Englandover Ceylon ? Be that as it may, if the Crown cannot reach the JudicialCommittee of the Privy Council except through the procedure prescribedin the statute and the rules whose aid it is seeking to invoke, may itinvoke the aid of those provisions that are to its advantage and ignore
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H. N. G. FERNANDO, J.—Silva v. The Attorney-General
those that are not % If that were permitted the Crown would be in. aposition to delay justice to the subject and deprive him of the b.enefit of"decisions in bis favour by applying for leave to appeal to the PrivyCouncil and taking no steps thereafter. The British Sovereign. wasbound by the Magna Carta not to deny or delay justice to the subject.The successor of that Sovereign has not been clothed with greater powers-and is therefore bound by those same restrictions. Acting timeously is-an essential part of the appellate procedure prescribed in the Appeals-(Privy Council) Ordinance and its rules The Crown is therefore not.entitled to ignore the rules designed for the speedy despatch of legalbusiness if it invokes the aid of that Ordinance. Section 3 of the Inter-pretation Ordinance is of no avail in this instance. That section reads
“ No enactment shall in any manner affect the right of the Crownunless it is therein expressly stated, or unless it appears by necessaryimplication that the Crown is bound thereby.”
The right of the Crown means the existing right {Dominion Building-Corporation v. The King 1). If the Crown has a right to go to the PrivyCouncil independently of the Appeals (Privy Council) Ordinance it is-free to do so and that Ordinance does not bar such a right. It is notclaimed in the instant case that it has such a right. There is therefore-no right of the Crown that is affected by the Ordinance or its rules. Theword “ affect ” in a context such as this means affect injuriously (seere Silver Bros. Ltd 2). The Crown is seeking to take advantage of the-Ordinance, which it is perfectly entitled to do. It must then comply-with its provisions and cannot claim to- disregard the very law whose aid-it invokes. If it seeks to appeal under the Ordinance it must show duediligence in taking all the necessary steps for the purpose of procuringthe dispatch of the record to England. If it does not, then the con-sequence prescribed in the Ordinance will visit it in the same way that-it does any other litigant.
The plaintiff’s prayer for a declaration that the appeal of the defendant,do stand dismissed for non-prosecution is granted with costs.
H. N. G. Fernando, J.—
This is an application made under Rule 25 of the Rules in the Schedule*to the Appeals (Privy Council) Ordinance, (Cap. 85), for an order dec-laring that an appeal to Her Majesty in Council stand dismissed for non-prosecution. The appeal in question, which was from a judgment of this.Court delivered on 14th November 1958, was preferred by the Attorney-General, to whom I will for convenience refer as “ the appellant ”. The=opposite party who is the present petitioner is the respondent to that appealand will be referred to as “ the respondent ”. The ground of the applica-
1 (1932) A. C. 533 at 549.2 (1932) A. C. 514 at 523.
HI. N- Gr. FERNA1SDO, «T.—Silva v. The Attorney-General
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tion under Rule 25 is that the appellant failed to show due diligence.intaking all necessary steps for the purpose of procuring the dispatch of therecord to England. For the purpose of considering the application it isuseful to set out seriatim certain relevant dates :—
9th December 1958—Application for conditional leave.
19th December 1958—Application for conditional leave granted.
15th January 1959—Application for final leave.
25th February 1959—Application for final leave granted.
9th March1959—Request by appellant’s proctor to the Registrar
of the Supreme Court for arrangements to be made“ to let the Government Printer have the recordas early as possible so that the print may betaken-in hand immediately”.
6th August1959—The Registrar informed the appellant’s proctor
that the typescript (of the record) was ready andthe proctor was requested to examine the types-cript before transmission to the GovernmentPrinter.
25th August1959—The Registrar forwarded the typescript to* the
Government Printer for printing.
5th December 1959—The appellant’s proctor inquired from the Govern-ment Printer why the printing had been delayed.
11th December 1959—The Printer replied that it was hoped to send the
proof by 20th December and stated that “ dueto printing requests for the forthcoming parlia-mentary elections the productions programme ofthis department had been severely disorganized ”1By affidavit the Government Printer has alsostated that the printing of the record had to bedelayed because of priority work in connectionwith the Emergency (presumably the Emergencydeclared under the Public Security Act and inexistence during October and November 1959).
14th December 1959—A proof of the printed record was forwarded by
the Printer to the Registrar.
9th January I960—The final proof of the record was forwarded by
the Printer to the Registrar.
21st December 1959—The respondent filed the present application.
Of the grounds relied on in the application dated 21st December 1959counsel for the respondent was not able to press those set out in
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H. N. G-. FERNANDO, J.—Silva v. The Attorney-General
paragraphs 11 (d) and (e) of his petition. The following were the groundsset out in paragraphs («z), (£>) and (c) :—
“ (a) the Defendant-Appellant and his Agent have generally failedto show due diligence in taking the necessary steps for the purpose ofprocuring the dispatch of the record to England, and in the prosecutionof the appeal, and in particular, in regard to the typewritten copies ofthe record; (6) the time for the delivery of the prints of the recordof the appeal to the Registrar of Your Lordships’ Court expired on the28th July 1959, and there being no application now pending for furtherextension of time, the Defendant-Appellant and his Agent have failedto exercise due diligence in the matter as required by Law ; (c) thedelay in procuring the dispatch of the record to England and in theprosecution of the appeal is mainly due, inter alia, to the negligenceof the Defendant-Appellant and his Agent in regard to the filing ofProxies, as set out in paras 8 and 9 hereof; ”
It is convenient to dispose firstly of the grounds set out in paragraph<c). The Appellate Procedure (Privy Council) Order, 1921 (SubsidiaryLegislation Vol. 1 page 468) provides in paragraph 11 that if the appellantelects to print the record in Ceylon, he shall deliver the print thereof forexamination and certification within two months after having obtainedfinal leave to appeal. In the present case therefore the record was duefor delivery on 21st April 1959. But an application for the extensionof the time was made under paragraph 18 of the same Order on 15th April1959 and this Court on 28th April 1959 extended until 28th July 1959"the time for the delivery of the printed record. In anticipation of thisextension being insufficient an application for a further extension of timewas made on 16th July 1959, but objection to that application was takenhy the respondent on the ground that it had not been made by the proctorfor the time being empowered in terms of pargraph 6 of the same Orderto act for the appellant in connection- with the appeal. Argument washeard on this objection and this Court on 21st December 1959 upheldthe objection and refused the appellant’s application for a further ex-tension of time on the ground that the application had not been madeby the proctor on record.
It should be apparent that the respondent cannot substantiate theallegation in paragraph 11 (c) of his present petition that the delay inprocuring the dispatch of the record to England was mainly due to thenegligence of the appellant or his agent in regard to the filing of Proxies.Even if the proper proctor had made the application in July 1959 for afurther extension of time and such an extension had been granted, wouldit have followed that the Registrar of the Supreme Court could or wouldhave provided the typescript of the record on a date earlier than 25thAugust 1959, and would it have followed that the Government Printerwould have completed the printing earlier than 9th January 1960 ? Inmy opinion the refusal of the application for the further extension, onthe ground of the lack of the proper appointment of the proctor making
H- N. Gr. FERNANDO, J.—Silva v- The AJUomey-General
133
it, was quite unconnected with the activity or want of activity on*the part of the Registrar and the Government Printer, and cannot in anysense be regarded as the cause for the delay, if any, in the preparationand printing of the record.
The above summary relating to the appellant’s application for ex-tensions of time for delivering the record show that at the time when therespondent made his present application under Rule 25 there was not inforce any order of this Court extending beyond 28th July 1959 the timeallowed for the delivery of the record. In paragraph 11 (b) of hispetition the respondent relies on this circumstance as showing a lack ofdue diligence. Expressed in different language, the ground urged is thatif a respondent to an appeal comes to this Court under Rule 25 on theday after the expiration of the period previously allowed for the deliveryof the printed record to the Registrar, he must succeed for the simplereason that on that day no “ extension order ” is in force. I think theanswer to this argument is to be found in paragraph 18 of the 1921Order :—“ The Court may, for good cause, extend the time allowed bythis Order for doing any act, notwithstanding that the. time has expiredThat paragraph contemplates that an extension of time may be allowedfor good cause “notwithstanding that the time has expired”; but theparagraph could be rendered a mere nullity by a wary respondent if thetrue position is that he must necessarily succeed if his application underRule 25 is made before the appellant invokes paragraph 18. In thepresent case moreover the appellant’s, application of 16th July 1959 waspending in this Court until 21st December 1959 when the reservedjudgment was delivered. The reason for the omission of the appellant tomake a fresh application for a further extension of time is apparent. Theappellant’s proctor presumably awaited the judgment of this Courtbefore filing a fresh application under paragraph 18 which he did withsufficient expedition on 24th December 1959. In my opinion thereforethe fact that no application for a further extension of time was pendingon 21st December 1959 does not establish any want of due diligencecontemplated in Rule 25. In fact counsel for the respondent did notargue that the omission of the appellant to file under paragraph 6 of the1921 Order an appointment of the proctor who made the application of16th July 1959 constituted want of diligence.
Rule 25 contemplates that an appellant must show (due diligence intalcing all necessary steps for the purpose of procuring the dispatch of therecord to England. The steps required by the Rules and the Ordercomprise (in a case where the record is to be printed in Ceylon) :—
the preparation of the record, i.e. of “ the aggregate of papers
relating to an appeal … proper to be laid before Her
Majesty in Council on the hearing of the appeal” (Vide de-finition of “ record ” in section 2 of Cap. 85),
the payment of the fees prescribed by the 1921 Order for the
preparation, examination, certification, and transmission of therecord,
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H- N. G. FERNANDO, J.——Silva v. The Attorney-General
the exclusion (in consultation with the Registrar and the opposite-
party) of documents which are not relevant to the subject-matter of the appeal.
the delivery of the printed record to the Registrar within two
months after the date of the grant of final leave to appeal, or-within such further time as the Court may allow under para-graph 18 of the Order.
Rule 11 states that the preparation of the record shall be subject tothe supervision of the Court, and Rule 12 that the Registrar as well as-the parties and their legal agents shall endeavour to exclude from the' record all unnecessary documents. These provisions read together with_the definition of “ record ” appear to indicate that the aggregate ofrelevant papers has to be collected together and when so collected willconstitute “ the record ”, which is ultimately to be printed and there-after transmitted to the Privy Council. Having regard to the fact thatthe original papers would be in the custody of the Registrar and shouldnot except in very special circumstances be allowed out of his custody,,and having regard to the provision in Schedule 1 to the 1921 Orderwhich imposes a charge payable to the Registrar “ for fair copying the-record and examining the transcript thereof”, it would seem that thepractice prevailing in the office of the Registrar is, in the absence of anyexplicit provision in the Rules or in the Order, the only appropriate-practice which could have been adopted. That practice is for the-Registrar to prepare in accordance with instructions given by theappellant a transcript of the aggregate of relevant papers, which trans-cript is utilized for the purposes of printing the record. And where-the Government Printer is the chosen agency for the printing, it isthe Registrar who transmits the transcript to the Printer, though of”course he would do this as the agent of an appellant.
In my view, what Rule 25 contemplates is that the steps whichI have mentioned in the two last preceding paragraphs are the steps-which should be taken with diligence by an appellant. The groundrelied on by the respondent in paragraph 11 (a) of the present petition,is that they were not diligently taken.
It has not been urged that the appellant delayed to apply to theRegistrar for the preparation of the record for printing ; he made the-necessary request to the Registrar on 9th March 1959, ten or twelve-days subsequent to the date when final leave to appeal was granted.But it is urged that there was a lack of diligence in that the appellantdid not between 9th March 1959 and 25th August 1959 (on which date-the Registrar transmitted the typescript to the Government Printer)communicate with the Registrar with a view to having the preparation.of the typescript expedited. In this connection it was even suggestedthat the appellant should, when he did not for some time receive noticefrom the Registrar that the transcript was ready, have written againi
H. N. Q. FEBNAJTOO, J-—Silva v. The Attorney-General
135
to the Registrar to ascertain whether his request for the preparationof the record had "been received by the Registry. With respect I seelittle or no justification for this suggestion. Whether the letter of 9thMarch 1959 had been sent by post or else by hand, and notwithstandingthe delays and failures of postal delivery experienced in this countryfor some time, X think that a person who forwards a letter throughnormal channels to a Government department would be quite entitledto assume that the letter would be duly received. In any eventparagraph 17 of the 1921 Order provides for the keeping in the Registryof a Minute Book open to inspection by parties and the Minute Bookshows that the letter of 9th March was duly received, so that there wasnothing which the appellant need have done in anticipation of a hypothe-tical failure of delivery. The principal suggestion in this context isthat (to employ a word I used during the argument) the appellant shouldhave kept on harassing the Registrar in order to persuade or compelhim to conclude the preparation of the transcript earlier than the actualdate of completion. Keeping in mind that the Registrar is a publicofficer, that it was his duty as such to have the transcript prepared,that he was paid the statutory fee for a transcript, and that he is theprincipal officer of the Supreme Court which is charged by Rule 11with the supervision of the preparation of the record, I cannot agreethat Rule 25 requires an appellant to make any special effort to expeditethe preparation of a transcript. I think on the contrary that any party-appellant is quite entitled to assume that the Registrar would have atranscript prepared as expeditously as the exigencies of his departmentwould permit. In the absence of any evidence indicating any unduedelay on the part of the Registrar and of further evidence indicatingthat under pressure of constant reminders the Registrar would havegiven special preference to the preparation of this particular transcript,I would hold that the relevant Rules did not require the appellant toaddress any communication to the Registrar other than his letter of 9thMarch 1959. The length of the period 9th March 1959 to 25th August1959 does not operate as a res ipsa loquitur establishing that the periodwas extraordinarily long or that either the Registrar or the appellantwas guilty of any lack of diligence.
The present case was one in which the appellant elected to print therecord in Ceylon. According to the practice as I have pointed out abovethe printing could not commence until the Registrar furnished thenecessary transcript of the record. That function, of furnishing thetranscript, cannot be said to be performed by the Registrar as the agentof the appellant, and must be regarded as an official function of theRegistrar in his capacity as such. In a case where the appellant electsto print the record in England the Judicial Committee Rules of 1957expressly regulate the procedure. The Ceylon Registrar in such a caseprepares the transcript just as he does in a case where the record is to beprinted in Ceylon. That transcript is transmitted to the Registrar ofthe Privy Council who furnishes a certified copy of it to the appellantto be utilized for the preparation of the print. The procedure expressly
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SINNETAMRY, J.—Silva v. The Attorney-General
provided for in the Judicial Committee Rules makes it abundantly clearthat the Registrar of the Ceylon Court in preparing the transcriptperforms an official duty and is not merely the agent of the appellant.If then in the present case the appellant had elected to print the recordin England could it possibly be suggested, having regard to the timeactually taken by the Registrar of the Supreme Court to prepare thetranscript, that the transcript would have been ready for transmissionto England earlier than 25th August 1959 ? Rule 25 surely would nothave operated against the appellant in that event. In my opinion thefact that in the present case the transcript prepared by the Registrarwas intended for delivery to the appellant in Ceylon, and not to theRegistrar of the Privy Council, cannot in reason make any difference indetermining the question whether the appellant was or was not diligent.
I pass now to the question whether or not the appellant was diligentin the matter of having the record printed by the Government Printer.Here again it would be in my opinion arbitrary to hold that the merelength of the period August 25th 1959 to January 9th 1960 conclusivelyestablishes that the time taken by the Printer was unduly long. Twocircumstances cannot be ignored in this connection : the first that theGovernment Printer is the normal agency entrusted with printing forGovernment departments, and the second that there is no room for thesupposition that the Government Printer may not have dealt with thisrequest for printing as expeditously as lay in his power. While prirruxfacie one might have expected the printing in the present case to havebeen completed much earlier than it actually was, the statement by theGovernment Printer in his letter of 11th December 1959 and the state-ment in his affidavit satisfactorily establish the reason for the apparentdelay in the completion of the work. I do not agree that the appellantshowed lack of diligence in omitting to remind the Printer of theurgency of the work, nor, having regard to the Printer’s explanation,can I agree that reminders would necessarily or probably have resultedin greater expedition.
Eor these reasons I would hold that the want of diligence referred toin Rule 25 has not been established. In view of this conclusion it isunnecessary to consider the further submissions of the Solicitor-Generalthat the Crown cannot be held guilty of laches.
I would dismiss the application with costs.
SlNNETAMBY, J.
I have seen the judgment prepared by my brother H. N. G. Fernando, J.but I regret that I am unable to agree with his view that the Attorney-General has, in the prosecution of this appeal, exercised due diligencewithin the meaning of Rule 25 of the Schedule to the Privy Council
SINNETA ItfBY, J-—Silva v. The Attorney-General
137
Ordinance No. 31 of 1909 (Cap. 86). I propose to follow the nomen-clature adopted by my brother for the purpose of convenience, and referto the Attorney-General as the appellant and the petitioner of thisapplication as the respondent in what follows.
The appellant applied to this Court for leave to appeal to the PrivyCouncil from a judgment which was pronounced in favour of the res-pondent. Conditional leave was granted on 19th December, 1958, interms of the Schedule Rule No. 3 of the Appeals (Privy Council) Ordi-nance No. 31 of 1909 (Cap. 85) and final leave to appeal on 25th February,1959.
The matters which require the consideration of this Court relate to thesteps taken thereafter by the appellant. Rule 25 of the Schedule Rulesexpressly states that
“ the appellant who has obtained final leave to appeal shall pro-secute his appeal in accordance with the Rules for the time beingregulating the general practice and procedure in appeals to HerMajesty in Council.’*
It will be seen that this Rule imposes on the appellant the obligation totake the necessary steps in accordance with the Rules and the necessarysteps required to be taken are to be found in the Schedule Rules as wellas in an Order made by the Supreme Court, under the provisions ofSection 4 of the Ordinance. The Order, which carries the short title oftc Appellate Procedure (Privy Council) Order 1921 ’*, is in numberedparagraphs. The steps to be taken by an appellant must therefore be inaccordance with this Order as well as with the provisions of Cap. 85.There are also certain Rules mainly confined to procedure in Englandand regulating the steps to be taken when the record is printed inEngland : they are to be found in the Judicial Committee Rules 1957.In the main, where the printing of a record is to be done in Ceylon, the.requirements of the Judicial Committee Rules have been incorporated inthe Schedule Rules as well as in the Order.
After the granting of final leave to appeal, paragraph 11 of the Orderimpliedly imposes upon the appellant the duty of electing to print therecord either in Ceylon or in England. If the record is to be printed inEngland, all that the appellant is required to do is to see that the recordrequired for the purpose of the appeal is prepared by the Registrar inaccordance with the Rules laid down by the Judicial Committee, which,as I said earlier, are the same as those set out in Rules 11, 12 and 13 ofthe Schedule Rules and in paragraph 10 of the Order. For the purposeof meeting the costs of translating, transcribing, indexing, and trans-mitting to Her Majesty in Council a correct copy of that record, and for
138
SIaSTNETAMjB Y, J.—Silva v. The Attorney-General
the purpose of meeting the fees payable to the Registrar for examiningand certifying the record, the conditions imposed under Schedule Rule3 required the defendant to deposit Rs. 300 in Court. This.had been doneprior to the grant of final leave. There was thus left to the appellantthe duty of getting the record, as defined in the Ordinance, preparedeither for the purpose of transmitting it to England for printing there orfor the purpose of getting it printed here. Schedule Rule 23 in myopinion imposes on the appellant, and hone other, the obligation to takethese steps. No doubt Schedule Rules 12 and 13 place on the Registraras well as on the parties the task of reducing the bulk of the record byexcluding unnecessary documents etc ; but the obligation to see that therecord is prepared correctly is, nevertheless, upon the appellant. Thatis made clear by paragraph 10 of the Order which provides that theappellant shall serve on the respondent a list of the documents that heconsiders necessary, and after receipt of the respondent’s list, if there areany additional documents that the respondent considers necessary,within 3 days of its receipt, to lodge the same with the Registrar. Itseems to me that the Registrar’s function under Schedule Rules 12 and 13is to assist the parties in deciding what documents are necessary but hecannot, on his own, leave out any document which either party wantsincluded ; for under Rule 12 he has to indicate in the index of papersthat a particular document is included at the request of one party andhas been objected to by the other. Where a dispute arises in connectionwith the preparation of the record, it has to be referred to the Courtunder Schedule Rule 11, which states that the preparation of the recordshall be subject to the supervision of the Court. Section 2 of Cap. 85defines a “ Court ” to mean one, two or three Judges of the SupremeCourt, and clearly “ Court ” does not mean the Registrar. . Paragraph 11of the Order imposes upon an appellant, not only the duty of electingwhether the printing is to be done in Ceylon or in England, but also theduty of delivering the prints, if they are printed in Ceylon, for examina-tion and certification by the Registrar within 2 months of the grantingof final leave. That is a necessary step which has to be taken before therecord can be transmitted to England for under paragraph 12 of theOrder : “if a necessary requirement of the Order or of the ScheduleRules have not been complied with, the Registrar is prohibited fromforwarding the record to the Privy Council.”
In my opinion, therefore, the steps which the appellant is required totake with due diligence after obtaining final leave, for the purpose ofprocuring the despatch of the record to England, may be summarised asfollows :—He has first to take steps for the preparation of the record interms of Schedule Rules 12 and 13, and in terms of paragraph 10 of theOrder. He has then', if he elects to print the record in Ceylon, to deliverthe prints to the Registrar for examination and certification within twomonths of the final leave being granted. He has also to take such stepsas are necessarily incidental to the performance of these two functions.It is to be noted that, where the record is to be printed in England,
SDOJTSTAMBY, <X-—Silva v. The Attorney-General
139
Schedule Rule 16 requires the Registrar to transmit .one certified, copyonly of such record; while if the record is to he printed in Ceylon,.Schedule Rule 15 requires the Registrar to transmit to the Privy Councilforty copies one of which shall be certified. Paragraph 11 of the Ordersuggests that what has to be certified is one of the printed copies wherethe printing is done in Ceylon and not the transcribed typed copy. Thisis consistent with the Judicial Committee Rule 13, which obviously refersto the printed copies as it provides that forty copies of the record shall beforwarded one of which only shall be certified by the Registrar. Havingregard, therefore, to the fact that it is the appellant who has to deliverthe prints to the Registrar within two months under paragraph 11 of theOrder, it is his duty to see that all the steps necessary for the purpose offulfilling this obligation are taken within the time allowed.
In the present case having obtained final leave on 25th February,1959, all that the appellant did was to request the Registrar to forward-the record as early as possible to the Government Printer ; vide documentR I annexed to the affidavit of the Crown Proctor. Having done that,he had taken no further steps to see that the printed copies were availablewithin the two months provided for in paragraph 11 of the Order. Thepractice obtaining in the Registry, as my brother Fernando, J. haspointed out, is for the parties to leave it to the Registrar to inform themwhen the typed script is ready and to request them to examine it beforeit is certified. That examination is generally done no doubt in theRegistry but the obligation nevertheless to send it to the printer forprinting is upon the appellant. He could select his own printer, thoughunder the Judicial Committee Rule 24, where the printing is done in^England, it is the Registrar of the Privy Council who has to get theprinting done. In this case the appellant being the Attorney-General,-the printer selected was the Government Printer, though it would have~been quite open to the appellant to have selected a private Press. Themere fact that there has been in existence the practice of parties availing-themselves of the services of the Registrar in the preparation of thexecord does not, in my opinion, afford an excuse for non-compliance with-the express provisions of the Order : a practice, however convenient,^cannot override the law. It is the appellant’s duty to obtain a copy ofthe record, get it printed, corrected, and submit the printed copies to theRegistrar for certification under paragraph 11 of the Order. He is not•entitled to fall back upon a practice, which came into existence for hisown Convenience and which he followed at his own risk, and put theblame on the Registrar for the delay. In my view, it was his duty tosee that a type-script copy was ready for printing in sufficient time to•enable him to deliver the prints to the Registrar within two months orwithin such extended time as may be granted wider paragraph 18.Schedule Rule 25 requires an appellant to show due diligence in takingthe necessary steps. Due diligence, I take it, means that degree of care■and attention which the <f pater familias ” of the Roman Law or “ thereasonable man ” of the English Law is expected to take in matters
140
SINNT3TAMB-Y, J.—Silva v. The Attorney-General
relating to his own personal affairs. What then is the care one wouldexpect an appellant to take when he has obtained final leave. Onewould expect him to take all such steps as are necessary and within hispower to comply with the requirement that within two months theprints should be in the hands of the Registrar.
In the present case, the appellant obtained an extension of time fordelivery of the prints under paragraph 18 of the Order till 28th 'July,1959. One may assume, therefore, that when the application for ex-tension of time was made on the 15th April, 1959, the Court did notconsider the appellant guilty of lack of due diligence ; one may alsoassume that the Supreme Court as well as the appellant considered thatthe extended time granted was sufficient for the purpose. The Registraris a busy man with many duties to perform and unless he is reminded ofthe Order of the Supreme Court the preparation of the record in an appealmay either escape his attention or be put off and preference given tosome other duty. No evidence has been placed before this Court toestablish inability on the part of the Registrar to attend to this workearlier; the record incidentally when printed comprises of only 69folios. The least one would have expected of an appellant was for sucha person to ascertain from time to time what the position was in order tosee whether the Supreme Court Order would be complied with. TheAttorney-General did nothing of that kind. He kept perfectly quiet andleft it to the Registrar to take his own time in the preparation of therecord. He did not for a moment consider the possibility of any furtherapplication for extension of time being resisted nor did he contemplatethe need for a “ good cause ” to exist in order to support any furtherapplication for extension of time. It''should be noted that the Rules,as I have endeavoured to show, cast the obligation on the appellant andnot on the Registrar to have the record prepared subject to the Court’ssupervision, and if the Registrar performs certain functions in orderpurely to assist a party to do so, it seems to me that delay or slackness orjust indifference on the part of the Registrar will not afford an excusesufficient to meet an allegation that the appellant had failed to exercisedue diligence. The delay that often takes place in Government de-partments is well known and the appellant must be aware of it. Hemade no effort to cause the preparation of the record to be expedited.A request from the Attorney-General for early attention and a reminderthat an order of the Supreme Court had to be complied with within aspecified time coupled with an offer of assistance would, I have not theslightest doubt, have resulted in the matter being given prompt attention.
In this case, apart from writing a letter to the Registrar on the 9thMarch, the appellant did nothing except to apply twice to this Court forextension of time, one was in April, 1959 and the second in July, 1959.The second application was refused, because the proctor who made theapplication on behalf of the Attorney-General had not been properlyappointed. So far as the Registrar was concerned, the appellant did
SINNETAMBY, J.—Silva v. The Axtomey-Qenerol
141
nothing either to ascertain what the present position was or to inquirewhy there had. been a delay or to remind him that time had been grantedonly till 28th July, 1959. It was only on the 25th August, 1959, that theRegistrar, acting, as one must on the facts assume, as agent of theappellant, forwarded a copy to the Government Printer for printing. Inote that my brother Fernando, J. has referred to steps the Registraris required to take under the Judicial Committee Rules. The Registrarunder Rule 14 of the Judicial Committee Rules is required to forward acertified copy of the Record to the Registrar of the Privy Council andRules 17 and 18 contain provisions similar to Schedule Rules 12 and 13 ofCap. 85, but I take it that the Privy Council Rules only deal with stepsthat have to be taken after a certified copy has reached England. Inregard to the steps to be taken prior to that the parties are governed bythe provisions of Cap. 85 and by the Appellate Procedure (Privy Council)Order of 1921. It is to be noted that Schedule Rule 11 rather suggeststhat the preparation of the record is a matter requiring the attention ofthe parties and not of the Registrar. Even if one is to infer from therates fixed in the Schedule to the Appellate Procedure (Privy Council)Order that the duty of fair copying the record is cast on the Registrar, Ido not, with great respect, agree that the appellant is thereby absolvedfrom any responsibility in regard to the performance of his duty.
For the above reasons I would hold that there has been lack of duediligence on the part of the appellant, and ordinarily the appeal shouldunder Schedule Rule 25 be declared to stand dismissed for non-pro-secution ; but it was urged on behalf of the appellant that, even if theCrown was guilty of not exercising due diligence, the maxim “ nullumtempus occurrit regi ” applies and laches cannot be imputed to theCrown. The King, it has been said by high judicial authority, is notbound by the omissions, neglects and blunders of his officers. Thisprivilege was originally founded upon the preoccupation of the King withthe welfare of the whole Kingdom and the injustice of prejudicing theCrown because of the remissness of his officers. What ever the origin, therule is perfectly well established and has been long acted upon, videCrovm Proceedings by Bell (1948 edition) at page 77. That clearly is thelaw in England. It was at one stage contended that in so far as theprivileges of the Crown are concerned it should be governed, so far asCeylon is concerned, not by the English law but by the Roman DutchLaw. This point appears to have been first taken in a case reported inVanderstraaten’s Reports (1869-1871) at page 83. In that case, theSupreme Court held that the Common law of England had no authorityin Ceylon and that the Royal Prerogative of the English Crown does notexist in Ceylon except in so far as a particular branch of it (1) is claimedas necessarily incident to sovereignty, or (2) has been imposed on thisColony by the Crown as new law, or (3) unless it forms part of the law ofthe country before conquest. For these reasons the Court held in thatcase that prescription in respect of immovable p t operty can be made thebasis of a claim against the Crown and gives rise to title based on adverse
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SKTNETAMBY, J.—Silva v. The Attorney-General
possession for a third of a century. Whatever the true position may bein regard to the grounds of that decision, it has long been accepted thatprescription in respect of immovable property can always be pleadedagainst the Crown. The ratio decidendi of the case reported in Vander-straaten’s Reports does not support the view taken by our Courts inrespect of the Crown’s liability in tort. That immunity is well establishedas a prerogative right which the Crown enjoys. It is neither a necessaryincident of sovereignty, nor has it been imposed as a new law, nor is itclaimed to be part of the law of the country before conquest. It isbased solely on the Royal prerogative which the King enjoys in England,vide The Colombo Electric Tramway Co. v. The Attorney-General x. ' In thelatter case, the dictum of Lord Watson in The Liquidators of the MaritimeBank of Canada v. The Receiver-General of New Brunswick2 to thefollowing effect was quoted with approval:—
“ The prerogative of the Queen when it has not been expresslylimited by local law or statute is as extensive in Her Majesty’s colonialpossessions as in Great Britain.”
It was also held that the immunity of the Sovereign from liability to besued in tort was not abandoned either expressly or by necessary impli-cation. The same view has been taken in South Africa where also theRoman Hutch Law prevails. In Union Government of South Africa v.Tonkin 3 Innes, C.J., while holding that prescription would run againstthe Crown in respect of property readily alienable, the King’s prerogative,save where duly modified, is the same in the several parts of the Empire,and the position of the Crown under a Statute to which the Crown is aparty must be interpreted according to the English principles of con-struction. Both the South African Courts and our Courts have re-cognised the prerogative of the Crown in other matters ; for instance, thepriority over subject creditors in respect of debts of equal degree : butas in Ceylon, in South Africa too it Has been held that a subject mayplead prescription in respect of immovable property against the Crown,and that the Crown must be takon to have abandoned so much of itsprerogative as would lead to a contrary view, vide Union Government{Min. of Lands) v. Estate of Whittaker 4. The view has been expressedboth by the Privy Council and by the Supreme Court of South Africathat the Royal Prerogative remains unaffected in the Queen’s dominionsexcept in so far as the Crown by consent has agreed to waive it. Thisagreement may be either expressed or implied. Sometimes, there isexpress legislation, as in the case of the Crown Proceedings Act of 1947,by which in the United Kingdom a subject was permitted to institute anaction in tort against the Crown, or it may be implied from the terms ofthe Statute itself. Indeed, our Interpretation Ordinance expresslyprovides in Section 3 that no enactment shall in any manner affect the
°(1913) 16 N. L. R. 161.* 1892 A. O. 437.
8 1918 A. D. 533 at 539.* 1916 A. D. 194.
SXNNETAMBY, J.—Silva v. The Attorney‘General
143
rights of the Grown unless it is therein expressly stated or unless itappears by necessary implication that the Crown is bound thereby.The mere enactment of legislation to which the Crown gives its assentdoes not mean that the Crown has abandoned any of its prerogatives.The term “ necessary implication ” has received judicial interpretationby the Privy Council in the case of Province of Bombay v. MunicipalCorporation of the City of Bombay 2. In that case Lord du Parcq whodelivered the judgment of the Judicial Committee stated as follows :—
“ The Crown may be bound, as has often been said, * by necessaryimplication’. If, that is to say, it is manifest from the very terms ofthe statute, that it was the intention of the legislature that the Crownshould be bound, then the result is the same as if the Crown had beenexpressly named. It must then be inferred that the Crown, byassenting to the law, agreed to be bound by its provision.”
Elaborating on this, Lord du Parcq went on to say :—
** Their Lordships prefer to say that the apparent purpose of thestatute is one element, and may be an important element to be con-sidered when an intention to bind the Crown is alleged. If it can beaffirmed that, at the time when the statute was passed and receivedthe royal sanction, it was apparent from its terms that its beneficentpurpose must be wholely frustrated unless the Crown were bound, thenit would be inferred that the Crown has agreed to be bound. TheirLordships will add that when the Court is asked to draw this inference,it must always be remembered that if it had been the intention of theLegislature that the Crown shall be bound, nothing is easier than tosay so in plain words.”
Applying those principles to the Schedule Pules of the Privy CouncilOrdinance No. 31 of 1909 and the Appeal Procedure (Privy Council) Orderof 1921, it cannot, it seems to me, be said that unless the Crown agreesto be bound by the rules in regard to due diligence the beneficent purposeof the Pules would be wholely frustrated. In my opinion, therefore, theCrown has not expressly or impliedly agreed to be bound by all the termsof the Schedule Pules of the Privy Council Ordinance. Indeed, there areother branches of Civil Procedure where the prerogative has been re-cognised. I may mention two instances that came immediately to mind.I refer to the rule in regard to discovery of documents which it has beenheld, both in India and in Ceylon, despite the provisions of the CivilProcedure Code, does not. apply to the Crown i likewise, the Crown hasnever been called upon to give security for costs in appeal from thesubordinate Courts to the Supreme Court or from the Supreme Court tothe Privy Council. 1
11947 A. C. 58.
144
SIN1STETAMJJY, J.—Silva v. The Attorney-General
It was also urged that the Crown being unitary and indivisible, theQueen cannot in one part of her domain forego a privilege without alsoforegoing it in every other part of it. I expressed a contrary view inNadaraja v. Attorney-General1 and see no reason to differ from what! Istated there.
I would accordingly hold that, although there has been, in the cir-cumstances of this case, a lack of due diligence on the part of the officersof the Crown, laches cannot be imputed to the Crown ; and, therefore,that the provisions of Schedule Rule 25 do not apply to the Crown. Forthat reason I would dismiss the present application. I would, however,not allow any costs to the Crown.
Application dismissed. 1
1 (1956) 59 N. Jr. R. 136.