HAG.DE SILVA J. AND,
S.C. APPEAL NO. 71/86.
CANO. 408/78 (F).
DC. GAMPAHA- 16946/LMAY 25.1988.
Declaration of title and ejectment — Compensation —Jus retention^ —■Nomination as successor — Land Development Ordinance ss. 60 arid 72 — Lexnon cogit ad impossibilia-Principle of nunc pro tunc.
One Marthina Hamine was the owner of the lands in suit and they were sold inexecution of a mortgage decree. She applied under .the provisions of the LandRedemption. Ordinance Np. 81 of .1942 to the Land Commissioner for then-redemption in 1945 but she died during the pendency of the proceedings. Herhusband Haramanis. Perera continued the proceedings and the land'wasacquired by the Crown and possession thereof handed over to him in 1955. On12.11.1956 Haramanis executed a document nominating .the defendant(Meraya) as his successor after his death in the presence of the D.R.O. whosigned as a witness. The defendant married.in 1954 and Haramanis lived with■ herVand her husband until his. death on '29.01.1960. After the nomination.Haramanis delivered possession of these lands'to the defendant and herhusband began improving the land. The defendant enjoyed the produce of theselands.-In .August 1961 the. defendant received two grants in respect of theselands, duly registered and on *26.08.1961 she nominated her son SusantheJayaweera as Nr successor reserving life interest toherself. This nominationwas duly registered under the provisions of the Land Development Ordinance in1968. Her own nomination as successor to her father Harahanis was registeredOnly on 10.01.1970 long after her father's death after the Attorney-Generaladvised the Land Commissioner that he could register her nomination nunc protuna
On 16.01.1962 the Land Commissioner, by a document marked in the. caserecognised Edmund Peter. Haramanis’s eldest child, by the second marriage asthe legal successor to Haramanis in respect of these lands #nd he entered intppossession of these lands. The plaintiff claimed the nomination wss invalid inview of S. 60 of the Land Redemption Ordinance whereby nomination had to beduly registered before the death, of the owner of the holding or the permitholder. The Court of Appeal held that the plaintiff was entitled to the land anddefendant should be evicted but as defendant was a bona.fide improver she wasentitled to compensation and a jus retentionis until payment of compensation.
The defendant cannot rely on the maxim tax non cogit ad impossibilia (sameas impotentia excusat legem) becauife she failed to get her own nominationregistered while she got the nomination .of her son registered in 1968. .Themaxim will not applyif the necessity was createdby the act of the person relyingon it'or where alj practical endeavours have not beemused to surmount it andwhere the clearest proof that thenecessity compelled the violation is not there.
The principle nuncpro tunc (now for then) is really an application of the'principle actus curiae nemihem gravabit – the act of the court will prejudice noman and is founded upon justice and good sense. This maxim is applicable incases of delay by courts and not delays by administrative action. ' ‘
j APPEAL from judgment of the Court of Appeal.
. Fait ■ Mustapha P.C. with H. Withanaichchi for defendant – Appellant
J.de Almeida Gunaratne for plaintiff-respondent.-„ Cur. ady. vutt.
September fol. 1988 .
. DE SILVA, J.
The plaintiff-respondent instituted this action in the DistrictCourt of Gampaha, against the defendant-appellant. ?hishalf-sister, seeking a1 declaration that he was entitled to two'allotments of land called Delgahalanda and referred to in theSchedule to the plaint. In addition he sought an ejectmentof theIdefendant therefrom and damages of Rs. 2.400/—in respect of•|the two'years the defendant was in unlawful possession and atiRs. 100/— per month till he is' placed in quiet possessionthereof. After trial the learned District Judge dismissed the'plaintiffs action with costs.
The plaintiff thereupon filed an appeal to the Court of Appealand the latter Court by its judgment set aside the judgement ofthe District Court and entered judgment, declaring the plaintiffentitled to the land in question, and for a writ of ejectment of thedefendant. It also held that the defendant as the bona fideimprover of the land was entitled to compensation from the‘plaintiff for the improvements and to a jus retentionis till suchcompensation was paid. The case was also remitted back to theDistrict Court for the ascertainment of the quantum ofcompensation payable to the defendant for the improvements.
From the judgement of the Court of Appeal the defendant has •appealed.to this Court, with leaveof that Court on the followingthree questions viz:* . .•
. Whether the finding of. the Court of Appeal that the
admission of the defendant in paragraph 18 of her affidavitP9 determines the question whether the plaintiff was theeldest surviving son of Haramanis. Perera at. the time ofHaramanis’sdeath.
Whether the nomination of- the defendant as successor
having been registered after the death of Haramanis Pererarenders such nomination invalid in terms of Section 60 ofthe. Land Development Ordinance considering thecircumstances of this.case. .■'
Whether the amendment to Section 72 of the Land
Development Ordinance by Act No. 16 of 1969 can haveretrospective effect.-
At the hearing of this appeal learned Counsel for thedefendant-appellant submitted that he would not be canvassingthe Appeal Court judgment in. respect of the third questionformulated for our determination and hence it will not benecessary for me to deal with it. We are therefore left, with twoquestions for decision, the first being whether the admission of •the defendant in paragraph 18 of the affidavit P9, which was 'filed by her in an application for a Writ of Mandamus made bythe present plaintiff against inter alia the present, defendantdetermines the question whether the plaintiff is the eldestsurviving child of Haramanis. In .that application the presentplaintiff had averred in paragraph 5 of his petition thatHaramanis Perera (his father) had died on 29.1.1960 leavingsurviving him. the following children, his wife having predeceasedhim, viz. the plaintiff/petitioner being a child of the first marriageand five children of the .second marriage, including the.defendant, the 3rd respondent to that application. What wassignificant was that the plaintiff/petitioner had inot included inthe list of children in that averment the name of Richard Pererathe eldest child of.Haramanis by his first marriage.
, It was the evidence of the plaintiff and his witness EdmundPeter, a full brother of the defendant, and the eldest child ofHaramanis by his second marriage, that Richard was not marriedand had left the residing house about 30 years ago and theinformation received was that Richard was deed; that Richardhad riot attended his father's or mother's funeral nor themarriages of any of his sisters. On the other hand the defendantcontended that the plaintiff's and his witness's evidence thatRichard was dead, was not true as she had seeri Richard in hisfather's house in 1961. The learned District Judge had held thatthat evidence relied on by the plaintiff to prove Richard's deathwas contradictory and hence rejected it.
The Court of Appeal stated that while there was no doubt thatthere were certain contradictions in the evidence of the plaintiffand his witness Edmund Peter, there was also an importantadmission by the defendant which the learned District Judge hadnot taken into consideration viz: the admission by the defendantin para 18 of P9 in which she stated—
"I admit the averments contained in paragraphs -1,3,4,5,(except the date of death of my father) 10 and 13 of theaffidavit of the petitioner abovenamed".
a The Court of Appeal therefore held that by admitting para 5 ofthe petition in which Richard's name as one of the surviving sonsof Haramanis Perera had been omitted, the defendant hadthereby admitted that he was no longer living and that theplaintiff/petitioner was his eldest surviving child by the firstmarriage. In these circumstances, the Court of Appeal held thatthe burden shifted to the defendant to prove that Richard wasliving, which it was stated the defendant had failed to do andhence it could be presumed that Richard was dead and theplaintiff was the eldest surviving child of Haramanis Perera.
Learned Counsel for the defendant submitted that thoughthere was such a situation created by the inclusion of paragraph5 in the admissions contained in paragraph 18 of thedefendant's affidavit P9. in paragraph 19 of her affidavit she had
denied inter alia the averments contained in paragraph 7 of thepetition wherein the plaintiff/petitioner had averred that, he wasthe eldest surviving male chilrfof'Haramanis Perera at the dateof his death. 29.1.1960. We therefore have two positions takenup by the defendant in her affidavit contradictory of each otherWhile one would be able to say that the effect of the admission, of the averments of paragraph 5 of the petition is an admissionthat the,plaintiff/petitioner was the only surviving child of thefirst.marriage and hence the other child Richard who was elderto himwas dead, it was an admission of the death of Richard bynecessary implication, the denial of the averment in paragraph 7of the petition was also a denial by implication that Richard wasdead or put in other words ah assertion by implication thatRichard was alive and hence the plaintiff/petitioner was not theeldest Surviving male child of Haramanis Perera. In this state ofaffairs it is: my view that one cannot fault the view taken by theCourt of Appeal because if it was the defendant's position thatRichard was alive, she could have made a positive averment tothat effect. I would therefore prefer, not to interfere with theconclusions arrived at, by the Court of Appeal on this matter. .
There, remains to. be answered the second question viz:. whether the nomination of the defendant as successor hayingbeen registered after the death.of Haramanis Perera is renderedinvalid by Section 60 of the Land Development Act.
The facts elicited at the trial disclose that Haramanis, Perera.
. the father of both the plaintiff and the defendant was placed inpossession of lands in question on 28th February 1955. Themanner in which he became possessed of these lands was thathis second wife and mother of the defendant, KahandanaAarachchige. Dona Marthina Hamine was the owner of thoselands. These lands had been sold under a mortgage decreeentered against her in DC Colombo Case No. 7780/M.R.Marthina Hamine being entitled to apply under the provisions of. the Land Redemption Ordinance No. 61 of 1942, duly applied tothe Land Commissioner for their redemption in 1945 but .shedied before the proceedings were concluded. ..
' Haramanis Perera, her husband, however continued theproceedings and the lands were acquired by the Crown andpossession thereof handed over to him in T955.
On 1 2th November 1956, Haramanis Perera went to the officeof the Divisional Revenue Officerr Siyane Korale West (MeduPattu) Imbulgoda and in the presqpce of the D. R. 0, he executeda document nominating the 'defendant as his successor to the. lands after his death and the D. R. 0. signed as a witness.
The defendant who was unmarried at the time of her mother's,death, married in 1954 and Harmanis Perera lived with thedefendant and her husband until his death on 29th January1960. After the defendant was nominated as his successorHaramanis Perera delivered possession of those, lands to thedefendant, and her husband began improving the land byplanting coconuts etc. at their expense. The defendant was inpossession of the lands and she enjoyed the produce of thelands. In August 1961 the defendant received the two grants P1and P2 in respect of these lands duly registered and bn 26thAugust 1961 she nominated her son Meegodage LokithaSusantha Jayaweera as her successor with herself as the life-holder. This nomination has been duly registered under theprovisions of the Land Development Ordinance in 1968. Herown nomination as the successor to her father was registeredonly on 10th January 1970 nearly 10 years after her father'sdeath.
On 16th January 1962 by P3 the Land Commissioner hasrecognised Edmund Peter, Haramanis’s eldest child by thesecond marriage as the legal successor to Haramanis Perera in.respect of these lands and he entered into possession thereof.
For the first time the Land Commissioner, after receipt of theAttorney-General's advice by PI4 on 28th March 1967. thatthe plaintiff’s claim to the land could be accepted, has on 20thMay 1968 sought a review of that advice by P15 stating thatHaramanis Perera had nominated his daughter before hisdeath. Following this letter the Attorney-General.changed hisearlier view and expressed a re-considered view in D8 of 12thAugust 1968, that in the special circumstances of this case it'was possible to take the view that the nomination made byHaramanis Perera of his.daughter the defendant is a valid onenotwithstanding that the formal grant was issued later andadvised the Land Commissioner to register that nomination
nunc pro tunc and recognise the defendant as the dulynominated successor of Haramanis Perera. This nomination, asstated earlier was registered therefore only in 1970'.
If was the plaintiffs contention that in view of the provisions ofSection 60 of the Land Development Ordinance as amended byAct No. 16 of 1969 which states that "no nomination .. of asuccessor shall be valid unless the document (other than a last,will) effecting such nomination ….. is'duly registered beforethe death of. the owner of the holding or the permit-holder", thenomination of the defendant if there be-such a nomination is ofno effect and. does not pass title to her. To overcome thisobstacle, learned Counsel for the defendant has called into aidtwo legal maxims viz: (1) lex non cogit ad impossibilia arid (2) theprinciple of niiric pro tunc. I will first deal with the first legalmaxim and its application to the facts of this case.
' Broome's Legal Maxim's page 197 states that "lex non cogit ad .impossibilia"'is the same as the maxim impotenfia excusatlegem”. This maxim' means "impossibility is an excuse for non-compliance with an absolute provision". It goes on to say"impotantia"4excuses when there is a necessary ,or invincibledisability to perform the mandatory part of the law or to forbearthe prohibitory. In the performance of that duty it has threepoints to which its attention mgst.be directed. .Firstly it must seethat the nature of the necessity pleaded be such as the Jaw itselfwould respect. A necessity created by a man's own .act, with* afair previous knowledge, of the consequences that would followand under circumstances which he then had a power ofcontrolling, is of that nature. Secondly, that the party who was soplaced, used all practical endeavours, to surmount the difficultieswhich already formed that necessity and which oh fair trial hefound unsurmountable Thirdly, that all this shall appear by•distinct and-unsuspected testimony for the positive injunctions ofthe law. if proved to be violated, can give way to nothing but theclearest proof of the necessity that compelled the violation".;.
Craies on Statute Law, 7th edition states at page 265 — '
"under , certain circumstances^ compliance with the
provisions of statutes whiph prescribes how something is to
SCMadurasinghev, Madurasingha (De Silva. J.)149
* J ■«1'
be done will be excused, i.e if it appears that theperformance of the formalities prescribed by a statute hasbeen rendered impossible by circumstances over which thepersons intended had no.control, like the act of God. or theKing's enemies, these circumstances will be taken as a validexcuse".
1 Maxwell on Interpretation of Statutes. 12th edition page 326says —
"Enactments which impose duties upon or conditions are,when these are not construed as conditions precedent tothe exercise of a Jurisdiction, subject to the maxim "lex non- cogit ad impossibilia". They are understood as dispensingwith the performance of what . is prescribed whenperformance of it is impossible".
| According to the material available, possession of the landswere handed over to Haramanis Perera in 1955. In November1956 he is alleged to have made the nomination but even at thattime the formal grants had not been issued to him and were notissued even up to the date of his death January 1960. Thedefendant received the grants only in August 1961. There is noevidence to show that either Haramanis Perera or the defendanthis nominee took any steps to obtain the formal grants even upto 1961. The defendant then on 26th August 1961 nominatedh4r son and she got that nomination registered in 1968 but‘ failed to get her own nomination registered even at that stage. Itwas only in 1970, two years after the Attorney-General by D8had expressed.a re-considered view that the defendant submittedthe original nomination, of herself for registration. Even if onecould say that till 1961 she could not register the nominationdue to an absence of the formal grants and their being dulyregistered, there is no excuse for her waiting another 9 years toget the. registration done. Since the nomination was made even. before the formal grants were issued. I do not see any reasonwhy the nominations could not be registered before such issue,because these lands had been the subject matter of transactionseven during the lifetime of the defendant's mother, in thesecircumstances, even if this maxim could be applied to a situationwhere a nomination had not been registered during the lifetime
of the owner, in compliance with the mandatory requirement ofSection 60.1 do not think that in-the circumstances of this case,the application of that maxim is justified.
The next matter that calls for consideration is the principles of"nunc pro tunc" which is really the application of the maxim"Actus curiae neminem gravabit" — An act of the Court shallprejudice no man". Broome's Legal Maxims 7th edition page 97reads, "this maxim is founded upon justice and good sense: andaffords a safe and certain guide for the administration of theLaw". In virtue of it; where a case stands over for argument onaccount of the multiplicity of busjness in the Court, or forjudgment from the intricacy of the question, the party ought notto be prejudiced by that delay, but should be allowed to enter uphis judgment retrospectively to.medlthe justice of the case: and.therefore, if one party to an action dies during a curia advisarivuit, judgment may be entered nunc pro tunc, for the delay isthe act of the Court, for which neither party should suffer".",. . . It may; be here mentioned that the power of the Court to.enter judgment nunc pro tunc does not depend upon statute. It isa power of common law. and. in accordance with the ancientpractice of the Court, is adopted in order to prevent prejudice toa suitor fifbm delay occasioned by the act of the Court. Where,however, the delay is not attributable to the act’of the Court, the.above maxim does not apply".
A study of the treatises on Interpretation of Statutes and Law-Lexicons drive me to the conclusion that this maxim is applicable1in cases of delay .by Courts and not in administrative actions. Inany event the registration of the nomination of the defendant asa .successor could be considered only if the other maxim "lex noncogit ad.impossibilia" could be applied*and I have already heldthat the latter maxim is not applicable ir> the circumstances ofthis case. Accordingly the question of the application of theprinciple of nunc pro tunc does not arise in this instance. I wouldtherefore hold, that the defendant has failed on both mattersagitated .before this Court. I affirm the judgment of the Court ofAppeal and dismiss the defendant's appeal with costs.
RANASINQHE. CJ. – i agree JBANDARANAYAKE, J. – I agree.