MANAWADU v. THE ATTORNEY-GENERAL

005-SLLR-SLLR-1987-2-MANAWADU-v.-THE-ATTORNEY-GENERAL.pdf


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[1987] 2 Sri LR
MANAWADU
v.THE ATTORNEY-GENERAL
SUPREME COURT.
SHARVANANDA, C.J.. ATUKORALE, J. AND SENEVIRATNE. J. •
S.C. No. 77/85.
C.A. No. 643/83.
M.C. NUWARA ELIYA No. 37665.
FEBRUARY 11, 1987.
Forest Ordinance, ss.24(1) (b), 25(1), 40-Confiscation of lorry used for transport of'illicit' timber-S. 7 of Act No. 15 of 1982-Natural justice-Forfeited means liable to beforfeited-Audi alteram partem.
Held (Seneviratne, J. dissenting):
By s. 7 of Act No. 13 of 1982 it was not intended to deprive an owner of his vehicleused by the offender in committing a 'forest offence' without his (owner's) knowledgeand without his participation. The word 'forfeited" must be given the meaning "liable tobe forfeited' so as to avoid the injustice that would flow on the construction thatforfeiture of the vehicle is automatic on the conviction of the accused The amendedsubsection 40 does not exclude by necessary implication the rule of audi alteram
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partem' The owner of the lorry not a party to the case is entitled to be heard on thequestion of forfeiture of the lorry If he satisfies the court that the accused committedthe offence without his knowledge or participation, his lorry will not be liable toforfeiture
The Magistrate must hear the owner of the lorry on the question of showing cause whytfie lorry Is not liable to be forfeited If the Magistrate is satisfied with the cause shown,he must restore the lorry to the owner The Magistrate may consider the question ofreleasing the lorry to the owner pending inquiry, on his entering into a bond withsufficient security to abide by the order that may ultimately be binding on him
Cases referred to:
Inspector Fernando v. Marther – (1932) ICLW 249.
Sinnetamby v. Ramahngam – (1924) 26 NLR 371
Rasiah v. Thambiraj – (1951) 53 NLR 574
Wiseman v Borneman – [ 1969]3 All ER 275
Cooper v. Wandsworth Board of Works -(1863) 14CBNS 180. 194.
Durayappah v. Fernando – (1966) 69 NLR 265. 269-Appd. by P C in (1970)73 NLR 289.
Commissioner of Police v. Tanes – (1957-58) 68 CLR 383. 385
Twist y. Rendwick, Municipal Council – (1976) 136 CLR 106. 109-110
In Re Hamilton – [1981] AC 1038
Abdul Rahuman v Sarath Silva -CA 1810/79 CA minutes of 11 11 1979 (M. CAmparai 17039).
Wicks v Firth – [1982)2 All ER 9. 14.
Coutts&Co. v I R C. -[1953] AC 267. 281
Re Morgan – Wilson's Will Trust-[1968] Ch. 268. 282
A. G. v. Parsons – [1956] AC 421.
Re Lucy's Trust – (1885) 30 Ch D. 119. 124-5.
Rv. Chief Immigration Officer – [1976/' 3 All ER 843. 847.
Arumugamperumal v. Attorney-General – (1947) 48 NLR 510
DeKeyzerv. British Railway Traffic and Electric Co.. Ltd. – [1936] I KB 224.
Attorney-General v. Nagamany – (1949) 51 NLR 149.
Palasamy Nadar v. Lanktree – (1949) 5 1 NLR 520.
D. L. Jayawardane v. V. P Silva. Assistant Collector of Customs – (1969) 72NLR 25.
APPEAL from judgment of the Court of Appeal
H. L de Silva, P.C. with V E Selvarajah. Miss Lakmali de Silva. Chanaka de Silva.Shenaka de Livera and N. Sivendran for appellant
Nihara E Rodrigo. S. C for the Attorney-General
Cur adv vult
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March 26, 1987
SHARVANANDA, C.J.
One Ekmon Wijesuriya was charged on 1 7 5 1983 in theMagistrate's Court, Nuwara Ehya with having on 15 5 83 at Gorden inPussellawa transported out of this area a load of rubber timber tothe value of Rs. 600 in lorry No 26 Sri 2518. without a permit from anauthorised officer, in contravention of Regulations made under section24(1) (b) of the Forest Ordinance (Cap.451) and with thus havingcommitted an offence punishable under section 25(1) read withsection 40 of the Forest Ordinance. The accused pleaded guilty to thesaid charge and was sentenced to a term of three months rigorousimprisonment suspended for five years and to a fine of Rs.500. TheMagistrate also ordered the confiscation of the lorry No. 26 Sri 2518,in which the timber was alleged to have been transported.
The appellant-petitioner (hereinafter referred to as the petitioner) isthe owner of the said lorry bearing No. 26 Sri 2518. He was not aparty to the proceedings in which the order of the confiscation of hislorry was made, nor was he given an opportunity by the Magistrate ofshowing cause against the order of confiscation. He states that thesaid lorry is worth approximately Rs. 350,000.
The petitioner moved the Court of Appeal to revise the order ofconfiscation made by the Magistrate, on the ground that he was notgiven an opportunity of showing cause against the confiscation of hislorry, that there was a violation of the principle of 'audi alterampartem' and consequential denial of justice to him. The Court ofAppeal held that the order of confiscation by the Magistrate was validin law in that section 40 of the Forest Ordinance as amended bysection 7 of the Act No. 15 of 1982, provided that any vehicle usedfor the commission of a Forest Offence (whether such vehicle wasowned by the person charged or not) shall by reason of his convictionbe forfeited to the State and that the legislature had expresslywithdrawn any right of the owner to show cause against forfeiture ofthe lorry. Accordingly, the petitioner's application for Revision wasdismissed.
The petitioner has preferred this appeal against the judgment of theCourt of Appeal. At the hearing before this Court counsel for thepetitioner has urged that the order of confiscation was wrong for thereason that the confiscation of the petitioner's lorry was made withoutthe observance of the rule of 'audi alteram partem' and that section 7
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of the Amending Act No 15 of 1982 did not dispense with theprinciple of natural justice that the owner of the lorry should be heardbefore any judicial order causing loss of his property is pronouncedagainst him
Counsel for the state has submitted that there is a legislative historybehind the various amendments made to section 40 of the ForestOrdinance, and that the legislature after addressing itself to the factthat the owner of the vehicle would be gravely prejudiced by theautomatic forfeiture, deliberately provided for the order of forfeiture ofthe lorry, which was made use of for the transporting of illicit timber,automatic on the conviction of the accused, whether he was theowner or not of the vehicle.
To appreciate the contention of the State Counsel it is necessary toset out the provision of section 40 of the Forest Ordinance and theamendments thereto, made from time to time, to show the increasingconcern of the legislature to arrest the illicit felling of timber from Statelands. Section 40 of the Forest Ordinance (principal enactment) readsas follows (Cap. 451):
"when any person is convicted of a Forest offence, all timber orforest produce which is not the property of the Crown in respect ofwhich such offence has been committed, and all tools, boats, carts,cattle, motor vehicles used in committing such offence shall beliable, by order of the convicting Magistrate to confiscation. Suchconfiscation may be in addition to any other punishment prescribedfor such offence "
Section 40 of the principal enactment was amended by section 12of the Act No. 13 of 1966, by the substitution, for all the words form"shall be liable" to the end of that section, of the following:
"Shall, in addition to any other punishment prescribed for suchoffence, be confiscated by the order of the convicting Magistrate.Provided that in any case where the owner of such tools, boats,carts, cattle or motor vehicles is a third party, no order ofconfiscation shall be made if such owner proved to the satisfactionof the court that he had used all precautions to prevent the use ofsuch tools, boats, cattle or motor vehicles, as the case may be forthe commission of the offence "
Section 40 was later amended by section 9 of Act No. 56 of 1979by the repeal of the proviso to that section. This amendment was later
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repealed by Act No. 13 of 1982, and the following section wassubstituted by section 7 of Act No. 13 of 1982:
The amended section 40 reads as follows:
"Upon the conviction of any person for a ForestOffence-
all timber or forest produce which is not the property of theState in respect of which such offence has been committed;and
all tools, boats, carts, cattle and motor vehicles used incommitting such offence (whether such tools, boats, carts,cattle and motor vehicles are owned by such person or not).
shall by reason of such conviction be forfeited to the State.
(2) Any property forfeited to the State under sub-section shall-
if no appeal has been preferred to the Court of Appeal againstthe relevant conviction, vest absolutely in the State with effectfrom the date on which the period prescribed for preferring anappeal against such conviction expires;
if an appeal has been preferred to the Court of Appeal againstthe relevant conviction, vest absolutely in the State with effectfrom the date on which such conviction is affirmed on appeal.
In this subsection, "relevant conviction" means the conviction inconsequence of which any property is forfeited to the Stateunder subsection (1).
The Court of Appeal has held that since the accused EkmonWijesuriya did not appeal against his conviction under the amendedsection 40, the forfeiture of the lorry bearing No. 26 Sri 2518 wasautomatic and that the lorry had vested absolutely in the State. It hasso held on the assumption that the legislature had withdrawn the rightof the owner to show cause against forfeiture of the lorry to the State,by section 7 of Act No. 13 of 1982.
The burden of Counsel for the petitioner's submission before thiscourt was that the court should imply into section 40 as amended bysection 7 of the Act No. 13 of 1982, the condition that a forfeiture ofproperty can take place only after rules of natural justice have beenobserved in respect of the person whose property is sought to beforfeited.
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In Inspector Fernando v Marther (1) Akbar, J in construing section51 of the Excise Ordinance, which corresponded to section 40 of theForest Ordinance Cap. 451, quoted with approval the followingstatement of Schneider J , in Sinnetamby v Ramalingam (2)
"Where an offence has been committed under the ExciseOrdinance no order of confiscation should be made under section51 of the Ordinance as regards the conveyance used to commit theoffence e g. a boat or motor car unless two things occur.
That the owner should be given an opportunity of being heardagainst it; and
Where the owner himself is not convicted of the offence, noorder should be made against the owner, unless he isimplicated in the offence which render the thing liable toconfiscation."
The vehicle involved in that case did not belong to the accused buthad been hired under an Hire-Purchase Agreement. Akbar, J., held thatsince the registered owner was not implicated in the commission ofthe offence, no order confiscating the car could be made. Though thisopinion was expressed when construing the words "shall be liable tobe confiscated" yet it highlights the principle of construction ofconfiscatory legislation.
In the case on Rasiah v. Thambiraj. (3) Nagalingam, J. stated:
"The main question is whether the learned Magistrate was right inordering the confiscation of the cart without an inquiry having beenheld by him before making the order. The order in this case wouldappear to have been made in terms of section 40 of the ForestOrdinance. That section, it is true does not prescribe for an inquiryor for any special proceedings to be taken by the Magistrate beforeordering the confiscation of the property. Learned State Counselcontended that an order of confiscation can automatically follow anorder of conviction. This contention can be upheld if one limits therule to property of the person who has been convicted of the
offenceIn these cases where the accused person convicted
of the offence is not himself the owner of the property seized, anorder of confiscation without the previous inquiry would betantamount to depriving the person of his property without ?nopportunity being given to him to show cause against the ord-being made."
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Nagalingam, J. proceeded:
"It is one of the fundamentals of administration of justice that aperson should not be deprived either of his liberty or of his propertywithout an opportunity being given to him to show cause againstsuch an order being made. To take a case, which cannot beregarded as an extreme one, where an owner lends or hires his cartwithout knowing that the borrower or hirer intends to use it for thepurpose of committing an offence, would it be right to confiscatethe cart merely because it has been so used. I think that if the ownercan show that the offence was committed without his knowledgeand without his participation in the slightest degree, justice wouldseem to demand that he should be restored his property."
Maxwell Interpretation of Statutes 11th Ed. page 358, underlinesthe presumptions of fair procedure in connection with the exercise ofjudicial powers:
"In giving judicial powers to affect prejudicially the rights ofpersons or property, a statute is understood as silently implying,when it does not expressly provide, the condition or qualificationthat the power is to be exercised in accordance with thefundamental rules of judicial procedure, such, for instance as thatwhich requires that, before its exercise, the person sought to beprejudicially affected shall have an opportunity of defendinghimself."
In Wiseman v. Borneman (4), the House of Lords underscored theinherence of rules of natural justice in the exercise of powers LordGuest said at page 279:
"It is reasonably clear from the authorities that where a statutorytribunal had been set up to decide the final question affecting party'srights and duties, if the statute is silent on the question, the courtswill imply into the statutory provision a rule that the principles ofnatural justice should be applied This implication will be made onthe basis that the Parliament is not to be presumed to take awayparties' rights without giving them an opportunity of being heard intheir interest In other words the Parliament is not to be presumed toact unfairly. The dictum of Byles J . in Cooper v Wandsworth Boardof Works (5) is clear to this effect and has been followed in manysubsequent cases."
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Lord Morris said at page 278
"That the conception of natural justice should at all stages guidethose who discharge judicial functions is not merely an acceptablebut is an essential part of the philosophy of the law "
Lord Reid said at page 277
“Natural justice requires that the procedure before any tribunalwhich is acting judicially shall be fair in all the circumstances Fora long time the courts have, without objection from Parliament,supplemented the procedure laid down in legislation where theyhave found that to be necessary for this purpose But before thisunusual kind of power is exercised it must be clear that the statutoryprocedure is insufficient to achieve justice and that to requireadditional steps would not frustrate the apparent purpose of thelegislation."
Lord Upjohn in Durayappa v Fernando (6) P.C. said:
". .. upon the question of audi alteram partem, the statute canmake itself clear upon this point and if it does cadit quaestio. If itdoes not, then the principle stated by Byles J., in Cooper v. TheBoard of Works for the Wandsworth District, 14 C.B.N.S. 180 at194 (5) must be applied. He said-
'A long course of decisions beginning with Bentley's case andending with some very recent cases establish that, although thereare no positive words requiring that the parties should be heard,yet justice of the common law will supply the omission of thelegislature.
Dixon C.J., in Commissioner of Police v. Tanls, (7) underlined thiscanon of interpretation:
"It is a deep-rooted principle of the law that before anyone can bepunished or prejudiced in his person or his property by any judicial orquasi-judicial procedure, he must be afforded adequate opportunityof being heard. .. It is hardly necessary to add that its application toproceedings in the established courts is a matter of course. But therule is subject to a sufficient indication of an intention of thelegislature to the country. Such an intention is not to be assumednor is it to be spelled out from indirect references, uncertainreferences or equivocal considerations. The intension mustsatisfactorily appear form express words of plain intendment"
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In Twist v. Rendwick Municipal Council (8) Barwick C J . clarified theprinciples of construction:
"The common law rule that a statutory authority having power toaffect the right of a person is bound to hear him befor,■ exercisingthe power is both fundamental and universal But the legislaturemay displace the rule and provide for the exercise of such a powerwithout any opportunity being afforded to the affected person tooppose its exercise. However, if that is the legislative intention itmust be made unambiguously clear. In the event that the legislationdoes not clearly preclude such a course, the court will, as it were,itself supplement the legislation by insisting that the statutorypowers are to be exercised only after an appropriate opportunity hasbeen afforded the subject whose person or property is the subjectof the exercise of the statutory power. But, if the legislation hasmade provision for that opportunity to be given to the subject beforehis person or property is so affected, the court will not be warrantedin supplementing the legislation, even if the legislative provision isnot as full and complete as the court might think appropriate… But ifit appears to the court that the legislature has not addressed itself tothe appropriate question, the court in the protection of the citizenand in the provision of natural justice may declare that statutoryaction affecting the person or property of the citizen withoutaffording the citizen an opportunity to be heard before he or hisproperty is affected is ineffective. The court will approach theconstruction of the statute with a presumption that the legislaturedoes not intend to deny natural justice to the citizen. Where thelegislature is silent on the matter, the courts may presume that thelegislature has left it to the court to prescribe and enforce theappropriate procedure to ensure natural justice."
The principle that no man is to be condemned in his person orproperty without being heard is fundamental to justice. Parliament ispresumed to act justly and reasonably, and not to intend injustice. Thecourt should therefore strive to avoid a construction of enacted lawwhich leads to injustice. It should further the ends of justice. The aim ofrules of natural justice is to secure justice or to put it negatively toprevent miscarriage of justice. They do not supplant the law butsupplement it. Unless the contrary intention appears, an enactment byimplication imports the principle of the maxim audi alteram partem;this principle is basic to justice. But, if on the other hand, a statutoryprovision either specifically or by necessary implication excludes the
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application of any or all of the rules of natural justice then the courtcannot ignore the mandate of the legislature or read into theconcerned provision the principles of natural justice.
The issue in this appeal relates to the proper construction of section40 of the Forest Ordinance as amended by Section 7 of Act No. 13 of1982. Does this amended section dispense with the maxim of 'audialteram partem’ when it mandates the forfeiture of the vehicle used incommitting the forest offence in the case where the said vehicle is notowned by the accused who is convicted of the offence? The House ofLords in re Hamilton (9) has stressed that:
"One of the principles of natural justice is that a person is entitledto adequate notice and opportunity to be heard before any judicialorder is pronounced against him, so that he, or someone acting inhis behalf, may make such representations if any, as he sees fit. Thisis the rule of audi alteram partem which applies to all judicialproceedings unless its application to a particular class ofproceedings has been excluded by Parliament expressly or bynecessary implication."
There can be no doubt that the construction of the amended section40 contended for by State Counsel and upheld by the Court of Appealwill grievously affect an owner of the vehicle who is not implicated inthe commission of the offence. Principles of fairness and justicecertainly militate against such construction; such construction shouldbe avoided unless the legislative intention to impose an automaticforfeiture of the vehicle quite irrespective of the guilt or innocence ofthe owner in respect of the offence charged, is unambiguously clear.In the amended section 40 the rule of 'audi alteram partem’ has notbeen excluded by Parliament expressly; nor has that rule beenexcluded by necessary implication.
The basis of the decision in Inspector Fernando v. Marthar (supra)(1) and in Rasiah v. Thambiraj (supra) (3) is that an order of forfeitureof the vehicle used to commit the offence should not be made, wherethe owner himself has not been convicted of the offence, if (a) theowner of the vehicle was not given an opportunity of being heardagainst the forfeiture (b) the owner is not implicated in the offencewhich renders the thing liable to confiscation. Justice Akbar andJustice Nagalingam founded their decision on fundamental principlesof constitutional importance and not on the narrow ground "shall beliable to confiscation." They emphasised that where the owner can
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show that the offence was committed without his knowledge andwithout his participation in the slightest degree, justice demanded thathe should be restored his property. The proviso in the Forest(Amendment) Act No. 13 of 1966 embodied in statutory form theabove basic defence of the owner But amendment Act No 56 of1979 repealed the said proviso The effect of the repeal came up forconsideration before the Court of Appeal in Abdul Rahuman v. SarathSilva (10). The Court expressed the view that it is difficult to believethat a vehicle is to be confiscated regardless of the innocence of theowner and held that "the confiscation of the lorry without the ownerbeing given a hearing was wrong," The court agreed with thesubmission of Counsel for the owner that the effect of the repeal of theproviso was that "when an owner is convicted of the offence oftransport, when the proviso stood, he could yet urge that he should beheard before confiscation but now without the proviso he cannot makesuch a plea, but confiscation would be automatic." These decisionsunderscore the importance that the courts attached to the principle of'audi alteram partem' and to the interests of justice, that an innocentowner should not be penalised for the offence committed by a thirdparty.
State Counsel relevantly pointed that section 7 of the Amending Act13 of 1982 repealed amended section 40 of the Forest Ordinanceand substituted a new section in terms of which-
"Upon the conviction of any person for a forest offencethe
motor vehicle used in committing such offence (whether suchmotor vehicles are owned by such person or not), shall by reason ofsuch conviction be forfeited to the State."
He submitted that the forfeiture of the vehicle is automatic on theconviction of the offender irrespective of the fact that the owner of thevehicle is innocent and the owner is no party to the commission of theoffence. He referred to the espousal of the object that the Minister hadin mind when introducing the Bill for effecting the Amendment No. 1 3of 1982. Vide Hansard dated 25.2.1982. Vol. 9 Part 19 at pages1558-1559 the Minister said:- "It is necessary in the situation thatwe are faced, where forest resources are fast depleting to see thatstrong and firm action is taken although in the process some innocentpeople might suffer." I see the force of Counsel's argument Howevera construction which offends justice and is repugnant to the Rule ofLaw that permeates our Constitution should yield to an alternateconstruction which is harmony with justice and human rights. It is toomuch to believe that Parliament intended by this amendment to
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jettison the in-built principles of natural justice highlighted in thejudgments of our courts and of courts of other civilised countries. TheConstitution assures justice to all people. Arbitrary forfeiture withoutreference to the owner's culpability is the negation of justice. Thecourts assume that the legislature does not intend injustice and seekto avoid a construction that produces or spells injustice. However it isthe duty of the court to accept the prescription decided on byParliament even though the court considers the result unjust,provided it is satisfied that Parliament did intend that result: Oliver L.J., correctly said in Wicks v. Pirth (11) "That is quite clearly thepurpose and it is not for this court to question or to evaluate the socialjustification for the legislation."
But as Lord Reid in Coutts & Co. v. I R C. (12) said. "If it is allegedthat a statutory provision brings about a result which is so startling,one looks for some other possible meaning of the statute which willavoid such a result, because there is some presumption thatParliament does not intend its legislation to produce highlyinequitable results." "There are certain objects which the legislatureany of them is therefore to be avoided." Maxwell interpretation
of Statutes 1 2th Ed. at page 105.
*
"If the court is to avoid a statutory result that flouts commonsense and justice it must do so, not by disregarding the statute oroverriding it, but by interpreting it in accordance with the judiciallypresumed parliamentary concern for common sense and justice."Per Ungood-Thomas J., in Re Morgan-Wilson's Will Trust (13)However, it should be borne in mind that a Judge's duty is tointerpret and apply the law and not to change it to meet his idea ofwhat justice requires
There is some presumption that Acts passed to amend the law aredirected against defects which have been disclosed about the time theamending legislation was enacted An amendment is not passed in avacuum, but in a framework of circumstances so as to cure a defect ina legislative scheme. The court has to take judicial notice of theprevious state of the law to ascertain the intention of Parliament inamending the law.
Statutes will be construed to avoid absurdity or injustice. The courtsare accustomed to act on certain basic rules which the text-writers callpresumptions in applying canons of construction to statutes A casewhere the meaning of a word was "stretched" occurred in A. G v
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Parsons (14) where the Mortmain and Charitable Uses Act 1888provided that certain land transferred to the Irish Company "shall beforfeited to Her Majesty." The House of Lords considered theconsequences of these words if they were mandatory, and held that"forfeited" meant "liable to be forfeited" in the context of the Act, andso avoided the absurdity. A construction was arrived at with referenceto the consequences which must follow from itIf the construction contended for by State Counsel is right theconsequences of that interpretation are indeed far-reaching, it wouldfollow that if a thief steals a person's vehicle and uses the vehicle tocommit a forest offence, the owner of the vehicle will have his carforfeited for no fault of his. That appears to be a strange conclusionbecause the owner had done no act himself. Further such aconstruction will render the owner helpless against collusion orconspiracy between the prosecutor and the accused to deprive theowner of his vehicle. The admission of the accused or the findingagainst the accused that a certain vehicle had been used in connectionwith the commission of the offence does not bind the owner of thevehicle so as to divest him of the vehicle. The owner is a third partyand he should not be precluded from showing that the admission orthe finding is contrary to facts and that his vehicle was never used forthe illegal purpose. The vehicle will be forfeited only if it was actuallyused to transport the prohibited timber. The owner should be affordedan opportunity to satisfy court that, in fact, his vehicle was not soused. On State Counsel's submission the owner would have no suchopportunity as according to counsel on conviction of the accused, thevehicle vests automatically in the State. These eventualities throw intofocus the arbitrariness of the law on the construction contended for byState Counsel.
In Re Lucy's Trust {lb) Kay, J., explained the meaning of the word'forfeited.' The word forfeit, the noun substantive is defined in Dr.Johnson's Dictionary to be "something lost by the commission of acrime
something paid tor the expiation of the crime, a tine, a mulct Bythe same authority the verb "to forfeit" is defined to mean "to lose by
some breach of condition, to lose by some offence" "Forfeit",
the principal adjective is defined to be 'liable to seizure;
alienated by crimeclearly the word "forfeit" means not merely
that which is actually taken from a man by reason of some breach ofcondition, but includes also that which becomes liable to be sotaken…"
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It is significant that Section 40 of the Forest Ordinance finds itsplace in Chap. VII which deals with Penalties and Procedure Itprovides for the penalty when a person is convicted of a forestoffence-a penalty in addition to the punishment provided for bysection 25. If the offender happens to be the owner of the vehicleused, the forfeiture of the vehicle is a legitimate penalty So also, if theowner participated in the commission of the offence by allowing it tobe used with knowledge that it was going to be used for that purpose,forfeiture of the vehicle is a justifiable penalty. But if the owner had norole to play in the commission of the offence and is innocent, thenforfeiture of his vehicle will not be penalty but would amount toarbitrary expropriation since he was not a party to the commission ofany offence.
Among the important rights which individuals traditionally haveenjoyed is the right to own property. This right is recognised in theUniversal Declaration of Human Rights (1948). Article 17(1) of whichstates that everyone has the right to own property and Article 17(2)guarantees that 'no one shall be arbitrarily deprived of his property.'The contention of State Counsel negates this right. An intention toprovide for arbitrary infringement of human rights cannot be attributedto the legislature unless such intention is uneqivocally manifest. WhenParliament is enacting a statute, the courts will assume that it hadregard to the Universal Declaration of Human Rights and intended tomake the enactment accord with the Declaration and will interpret itaccordingly (Vide Lord Denning in R v. Chief Immigration Officer ! 16)).
In the light of the above principles, I am unable to accept thesubmission of State Counsel that the legislature by Section 7 of ActNo. 1 3 of 1982 intended to deprive an owner of his vehicle that hadbeen used by the offender in committing a forest offence without theowner's knowledge and without his participation. Having regard to theinequitable consequences that flow from treating the words 'shall byreason of such conviction be forfeited to the State' as mandatory. I am;nclined to hold, as the House of Lords did in A. G. v. Parsons (supra)(14) that "forfeited" meant "liable to be forfeited." and thus avoid theinjustice that would flow on the construction that forfeiture of thevehicle is automatic on the conviction of the accused. Having regardto the above rules of construction, I am unable to hold that theamended subsection 40 excludes by necessary implication the rule of'audi alteram partemOn this construction the petitioner, as owner oflorry bearing No. 26 Sri 2518 is entitled to be heard on the question of
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forfeiture and if he satisfies the court that the accused committed theoffence without his knowledge or participation, his lorry will not beliable to forfeiture.
I set aside the judgment of the Court of Appeal. I set aside also theOrder of the Magistrate declaring lorry No. 26 Sri 251 8 forfeited anddirect him to hear the appellant-petitioner who is the owner of the saidlorry on the question of showing cause why the said lorry is not liableto be forfeited. If the Magistrate is satisfied with the cause so shown,he shall restore the said lorry to the appellant-petitioner. TheMagistrate may consider the question of releasing the lorry to thepetitioner, pending inquiry, on the petitioner entering into a bond withsurficient security to abide by the order that may ultimately be bindingon him.
ATUKORALE, J.-l agree.
SENEVIRATNE, J.
The submission of the learned President's Counsel was that Section40 of the Forest Ordinance as amended by Act No. 13 of 1982,Section 7 did not provide that the owner of the vehicle should not beheard; as such the rule of audi alteram partem applied and the own. ;rmust be heard before the forfeiture of the lorry. The learned StateCounsel submitted that on the plain construction of this section theforfeiture must be automatic upon the conviction; that when theaccused in this case pleaded guilty for the offence, by the operation ofthis section 41 (a) & (b) forfeiture took automatic effect. My Lord theChief Justice has agreed with the submissions made by learnedPresident's Counsel with which view I very respectfully disagree. I willgive the reasons for my view.
The rule of audi alteram partem is not an inflexible rule and inaddition to that the rules of interpretation also provide that it is theduty of the Court to give effect to the plain meaning of a sectionwhatever the consequences will be to a party. The dicta that the ruleaudi alteram partem is not an inflexible one and will have to be variedor not taken it into account are contained in the dicta of several casesreferred to by My Lord the Chief Justice in support of this point ofview. The exception to this rule is set out in the following cases citedby His Lordship the Chief Justice-
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Commissioner of Police v. Tanes (supra) (7) Having set out theprinciple that the other party must be heard as "a deep rootedprinciple", the judgment adds as follows –
"But the rule is subject to a sufficient indication of an intention of
the legislature to the contraryThe intention must satisfactorily
appear from the express words of plain intendment"
Twist v. Rendwtck, Municipal Council (supra) (8): Barwick, C.
J.:
"The common law rule that a statutory authority having power toaffect the right of a person is bound to hear him before exercising
the power, is both fundamental and universal But the
Legislature may displace the rule and provide for the exercise ofsuch a power without any opportunity being afforded to the affectedperson to oppose its exercrn However, if that is the Legislature'sintention it must be unambiguously clear".
His Lordship the Chief Justice has cited in Re Hamilton (supra) (9)which laid down as follows:
"The rule audi alteram partem applies to all judicial proceedings
unless excluded by Parliament expressly or by necessary
implication".
Having cited this dicta, His Lordship the Chief Justice states:"unless the contrary intention appears an enactment byimplication imports the principle of the maxim audi alteram partem.This principle is basic to justice".
Then, His Lordship the Chief Justice states:
"in the amended section 40 the rule of audi alteram partem hasnot been excluded by Parliament expressly", and His Lordship theChief Justice poses the question "Has that rule being excluded bynecessary implication?"
I shall now deal with the question whether-
Section 40 the present amendment excludes the said ruleunambiguously, or
it does so by necessary unambiguous implication.
To determine whether the relevant amendment section 7 of Act No.15 of 1982 expressly excluded the rule audi alteram partem section40 of the principal enactment (Cap. 451) and the subsequentamendments have to be considered Section 40 of the principalenactment had the phraseology ".. shall be liable . to
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confiscation". In the cases cited by His Lordship the Chief Justice theSupreme Court held that the phraseology "shall be liable" in section40 of the principal enactment (Cap. 451), gave a discretion to theMagistrate as regards the confiscation of the vehicle. Thus, it followsthat to use the discretion the Magistrate had to hear the parties. Forthis exercise, the Magistrate had necessarily to hear the owner of thevehicle, who was not a party to the offence, to determine whether thevehicle was liable for confiscation. Following from this interpretation,the Supreme Court also held that the said section 40 did not excludethe principal of audi alteram partem.
This Law was amended by the next amendment section 12 of ActNo. 13 of 1966. The effect of the amendment was that the phrase"shall be liable" was deleted, and was substituted asfollows :-"shall… be confiscated by the order, of the convictingMagistrate". The necessary conclusion that can be drawn from thisamendment is that this amending section cast an imperative duty onthe Magistrate to confiscate the vehicle. Having so framed the sectionthe Legislature for the first time added a proviso to bring this section inline with the Supreme Court decisions that a party must be heardbefore the vehicle was confiscated. The proviso was to the effect thatno order of confiscation was to be made if the owner of the vehicleproved that he had used all precautions to prevent the commission ofthe offence. Thus, this Section made two provisions;
it made the confiscation imperative,
made provision to hear the owner of the vehicle before such anorder was made.
Due to the problems created by this proviso section 40 wassubsequently amended by section 9 of Act No. 56 of 1 979. This wasa simple amendment, which merely stated that section 40 of theprincipal enactment was amended by repeal of the proviso. Thisamendment, on the face of it, took away the statutory duty cast on theCourt to hear the owner before confiscation. This amendment section9 of Act No. 56 of 1979 was interpreted by the Court of Appeal in theApplication – Abdul Rahuman v. Sarath Silva (10). In this case thelearned Magistrate had confiscated the lorry without hearing theowner. The Court of Appeal set aside the order holding that thisamendment did not remove the right of the owner of the vehicle whowas not a party to the case to be heard, and directed the Magistrateto hear the owner before any order to confiscate the vehicle was
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made. This interpretation in fact upset the law which the Legislatureintended to frame when it dropped the proviso included in the 1966amendment.
It is the above decision, and such other decisions which made theLegislature again to amend section 40, by the drastic Amendment ActNo 13 of 1982 Section 7. The amended section 40(1) (a) provided
that " vehicles used in committing such offence
( are owned by such person or not) shall by reason of
such conviction be forfeited to the State." The important relevantphraseology in this section for its interpretation are the following limbsof this section:
"Whether such motor vehicles are owned by such
person or not'.
In this limb the term "such person" refers to "conviction of anyperson in Section 41".
Shall by reason of such conviction be forfeited to the State.Thus, whether the vehicle was owned or not by the person convictedit was made subject to forteiture. In the second limb the phrase in theoriginal Section 40 "shall be liable", which words were interpreted ascasting a discretion on the Magistrate have been dropped. Thesecond limb is framed in a manner that the forfeiture by the Magistrateis made imperative and to take automatic effect from the convictionipso facto. I hold that on the plain construction of this section in issuein this case this Court cannot, but come to the conclusion that thissection expressly excluded the rule of audi alteram partem. Anargument has been adduced in the present appeal before this Court,and in earlier appeals that such an interpretation to this section causesirreparable hardship to the "innocent owner" of a vehicle, and as suchit cannot be contemplated that the Legislature intended to perpetratesuch an injustice on a citizen, (in this particular instance to confiscate avehicle allegedly of value Rs. 350,000/- without hearing its owner, thepetitioner – appellant). His Lordship the Chief Justice has referred tothe Hansard which contains the proceedings in the Parliament whenthis amendment was introduced. I am now referring to theseproceedings in the Parliament, not with the purpose of assisting thisCourt in the interpretation of this amendment, which matter this Courtcannot take into consideration on the accepted rules of interpretationof a statute. I am citing a portion of the speech of the Hon. Minister ofLands & Land Development, who has moved this amendment only toshow that the State has taken into account the hardship that would be
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caused to persons by amending the Law in this manner The Hon.Minister has in his speech stated as follows: "Sir, the Hon Members
for all being lawyers, made some representations
about the possibility that some innocent persons, may suffer as aresult of some provisions of this law. I am aware that it might happen.These amendments were discussed at length in the Cabinet But we
felt that the situation was so seriouswe must bring
the law", and the Hon. Minister further developed this theme asfollows: "so we felt that we can adequately monitor the type ofprosecutions that will be launched. But it is necessary in the situationthat we are faced, where the forest resources are fast depleting to seethat strong and firm action is taken although in the process someinnocent people might suffer".
I will now consider whether by implication also the relevantamendment under discussion has excluded the rule of audi alterampartem. It was held by the Supreme Court that the principal enactmentsection 40 gave a discretion to the Magistrate regarding theconfiscation of the vehicle, and also that on the construction of thesection the owner of the vehicle had a right to be heard before such anorder was made. In view of the Supreme Court decisions the Law wasamended in two respects. The first amendment section 12 of Act No.13 of 1966 made the confiscation of the vehicle imperative, but witha proviso granting the third party a right to be heard. The history of thislegislation shows that the State then discovered that the lawpertaining to Forest Offences particularly illicit felling was notsufficiently stringent and severe to deter Forest Offences. As such thesecond amendment that of section 9 of Act No. 56 of 1979 wasintroduced. This amendment abrogated the proviso which gave a rightto a third party to be heard before confiscation. The intention of theState in introducing this amendment seems to have been to make theconfiscation of the vehicle imperative and remove the right of theowner of the vehicle to be heard in that exercise. But the Court ofAppeal decision in Rahuman's case (10) (cited above) upset theintention, the Legislature seems to have had in introducing the 1979amendment. In addition to that, it appears that the incidence of ForestOffences increased both in number, nature, and in intensity that theState contemplated further stringent measures to remedy thismischief. In introducing the 1 982 amendment the Hon. Minister ofLands and Land Development has stated as follows:-Vide Hansardcited above-"it was felt by a Committee of Officials that very severe
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49
and punitive measures had to be introduced to see that tne meagreforest resources of our country are preserved in order to preserve thecatchment areas of our forests and also to preserve the environmentand the ecological balance of our country". As I see it because theamendment of 1979 did not have the desired effect due to theinterpretation made in Rahumart's case, (supra) (10) to remedy thesituation, the 1982 amendment has been introduced in its severityand stringency taking into account that innocent persons may sufferIn the earlier Supreme Court decisions and particularly is Rahuman'scase (supra) (10) it has been stated how an innocent owner can sufferfrom the seventy of the law. This argument was also brought forwardin the present appeal before this Court. But this line of reasoning islooking only at one facet of the problem. Just as collusion between thedriver of a vehicle, and a detecting officer can create mischief for theowner of the vehicle, it is also possible that an owner of a vehicleengaged in unlawful transport of timber can with the connivance of hisown servant, the driver of the vehicle, connivance and assistance ofthe law enforcement officers save the vehicle from confiscation byconcocting a false position that he was not a party to the offence. Ihold that it is clear that even by implication the amendment which isthe subject matter of this appeal has excluded the rule audi alterampartem.
The view I have taken regarding the scope and effect of the relevant1982 amendment is fortified by a long line of decisions of theSupreme Court in interpreting similar (I should say like) sections in theCustoms Ordinance to wit – Sections 34(1), 44. 47. 50. 107, 129,120 and such like sections All these sections deal with forfeiture ofproperty on the commission of offences under the Customs Ordinanceto wit:
Section 34 – " and all goods and unladen, landed, or
removed contrary to the directions
shall be forfeited"
Section 44 – "If any person exports or attempts to export or take
out of Ceylon any goods such goods shall
be forfeited "
A long line of decisions of the Supreme Court have held that thesesections provide for automatic forfeiture on the happening of theevent, i.e the breach of the Customs Law or regulations In the caseof Arumugaperumal, appellant and the Attorney General (17), theSupreme Court considered the scope and effect of section 128 (A) to
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(i) of the Customs Ordinance (presently sections 131(1) & (2) of the
Customs Ordinance) – "any shipknowingly usedof
any goods prohibited of import or export,or conveyance of
any goods with intent to defraud the revenue, shall be forfeited". Inthis case the Boat transported to Ceylon from South India a load of 88bundles of beedies which were contraband goods The Boat was incharge of the tindal Balasunderam. As such this Boat was seized bythe Custom Officers. Later the boat was advertised for sale in theGovernment Gazette, then the owner of the boat Arumugaperumalgave notice to the Attorney General and filed action claiming the boat.Mr. Choksy appearing for the plaintiff-appellant contended that beforea ship could be forfeited under sub section (1) of this section the guiltyknowledge of the owner in the importation of prohibited goods mustbe established. There was no proof in the present case that theplaintiff had any knowledge that goods were being imported withoutpayment of prescribed Customs duties. There was an absence of anyintention to defraud the revenue. In meeting this argument HowardC.J. held as follows: "In the circumstances I am of opinion that theboat was forfeited under the provisions of Section 128(A), and thatsuch a forfeiture was valid irrespective of the guilty knowledge of theowner. (The underlining is by me for emphasis). In this connection Iwould refer to the case of De Keyzer v. British Railway Traffic &Electric Co. Ltd. (18). His Lordship cited the headnote of this case andfollowed the principles laid down therein. As this English case hasbeen referred to in the subsequent cases, I will later deal with this casein detail. In the Customs Ordinance which has several sectionsproviding for the forfeiture of goods, in some sections the word"knowingly" has been used. It would be noted that Section 128(A) hasthe phrase "knowingly" used in the importation. Sections 34(1), 44,47, 50 & 107(1) do not have the word "knowingly", whereas SectionV29 has the phrase "knowingly harbour", "knowingly permit", "forfeittreble the value of the goods".
Section 130 states – "who shall be knowingly concerned in anyfraudulent evasion shall forfeit treble thevalue of the goods".
The case of Attorney General, appellant v. Nagamany respondent,(19) – considered the provisions of Sections 128 and 128 (A)(1) ofthe Customs Ordinance (presently sections 131(1) & (2) of theCustoms Ordinance). It is the same identical section considered inArumugaperumal's case (supra) (17). where the term used in the
SCManawadu v Attorney-General (Seneviratne. J)51
relevant section is "knowingly used in the importation shall be
forfeited". In this case Gratiaen, J. ruled that in order to justify theforfeiture of a sailing vessel under section 1 28(A)(1) of the CustomsOrdinance, it is not essential to prove guilty knowledge on the part ofthe owner. Further, Gratiaen, J. ruled that the word "knowingly" isintroduced only to ensure that the penalty of forfeiture shall not beexacted if, unknown to the owner or the person in control of a vessel,prohibited goods are surreptitiously smuggled on board. In bothArumugaperumal's case (supra) (17) and in this case the contrabandgoods were transported with the knowledge of the person in control ofthe vessel in question. In the case of Palasamy Nadar and Lanktree(20) – Gratiaen, J. considered the effect and scope of ,section 46 ofthe Customs Ordinance (presently section 44 of the CustomsOrdinance) which is as follows:
"If any person exportsany goods enumerated in the table
Schedule B in contravention of the prohibitions such goods
shall be forfeited".
Gratiaen, J. in course of the judgment has laid down as follows"I am prepared to concede that the draftsman must be given credit forhaving intended the terms "forfeited" and "liable to forfeiture' toconvey different meanings. If goods are declared "to be forfeited" asopposed to "liable to forfeiture" on the happening of a given event,their owner is automatically and by operation of law divested of hisproperty in the goods as seen as the event occurs. No adjudicationdeclaring the forfeiture to have taken place is required to implementthe automatic incident of forfeiture". His Lordship then refers todecisions in two cases in England in which these principles have beenfollowed.
The leading case on the interpretation of these sections providingfor forfeiture in the Customs Ordinance is the Judgment of the Court -by H. N. G. Fernando, C.J., Samarawickreme, J. and Weeramantry. J.in the case of D. I. Jayawardane, petitioner and V. P. Silva. AssistantCollector of Customs (21). This case dealt with forfeiture of propertyexported from Ceylon in contravention of Section 130 of the CustomsOrdinance. This section laid down – who shall knowingly evade suchduties shall forfeit treble value of the goods, and thereby the value ofgoods imposed as forfeiture in this case was Rs. 5,010,504, not amere 350,000/- as in the present appeal before this Court. Thisjudgment of the Court firstly explained and adopted the principledecided in the case of Palasamy Nadar v. Lanktree (supra) (20) (cited
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above) as follows“In the case of Palasamy Nadar v. Lanktree (supra)(20) this court considered the effect of a provision in section 46 (newsection 44) of the Customs Ordinance and construed this provision tomean that on the happening of some event" the owner of the goods isautomatically and by operation of law divested of his property in thegoods as soon as the event occurs". The court further held that "noadjudication declaring the forfeiture to have taken place is required toimplement the automatic incident of forfeiture". The decision in thiscase followed the construction placed in De Keyzer v. British RailwayTraffic & Electric Co. Ltd., (supra) (18) on the language of section 202of the English Customs Consolidation Act of 1876"
Section 130 of the Customs Ordinance provides that on the breachof this section the exporter shall "forfeit either treble the value of thegoods or be liable to a penalty of Rs.1000 at the election of theCollector of Customs". The Judgment of the Court held that when theCollector of Customs uses his discretion regarding the alternativepenalties to be imposed" the principle audi alteram partem, asdiscussed in Durayappah v. Fernando (supra) (6) does not apply in thecase of election authorised or required by Section 130 of the CustomsOrdinance. The Judgment of the Court at page 42 states-"We upheldthe objection to the issue of the Writ which was taken by the youthfulcounsel who led for the Crown, and we express our appreciation ofthe assistance which we have derived from his able and lucidarguments". I regret that I am not persuaded by the submission madeby the President's Counsel for the appellant the then youthful counselin Jayawardane's case, (supra) (21) who has led for the appellants inthis appeal. This decision was approved by the Privy Council in (1970)73 NLR 289.
I will now deal with the English case De Keyzer v. British RailwayTraffic & Electric Co. Ltd., (supra) (18) referred to in the SupremeCourt cases (cited by me above). In this case the Court interpreted alike section in Customs Consolidated Act 1876 Section 202 "All
conveyancesmade use of in the importation,
removal of any uncustomed, prohibited, restricted, or other
goods liable to forfeiture under the Customs Acts shall be forfeitedThis case has considered the forfeiture of a conveyance-a
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53
motor tank wagon seized by officers of the Customs under theCustoms Act In dealing with the submissions Lord Hewart, C. J. laiddown as follows
"there is no opportunity for mercy with regard to a conveyance
which has been forfeited,All that was argued on behalf of the
respondents was that they did not know of the wrongful use forwhich the lorry was being employed. That circumstance was whollyirrelevant to the proceedings before the justices. It did not affect thepurpose for which the lorry had been used If that sort of argumentwere to be open to the owner of a conveyance in such a case as thepresent, the result might be, in the case of two partners, where onewas aware of the wrongful use to which the vehicle was being putand the other was not, that the vehicle might be excused fromcondemnation because of the innocent mind of one of the partners,that result enuring for the benefit of the guilty partner. In the presentcase the argument adduced before the justices, which was really anargument in mercy, that the owner of the vehicle was not aware ofthe illegal use to which it was being put, was wholly irrelevant to theonly question which the justices had to consider".
The Universal Declaration of Human Rights (1948) Article 17(1)states-that everyone has the right to own property and Article 17 (2)guarantees that no one should be arbitrarily deprived of property. TheHuman Rights Declaration as regards the rights to own property is notof that significance to Sri Lanka. But that limb of the Article, that noone should be arbitrarily deprived of property is nevertheless of greatsignificance to us. The Article right to own property is more significantto the capitalist based economy of the United States of America,United Kingdom and such countries where the right to property isenthroned. What is of significance to Sri Lanka is that the ConstitutionChapter 3-Fundamental Rights contains no Article guaranteeing theright to private property. The particularly relevant Articles 14(1) (a) to(i) guarantee several freedoms, but it has to be noted that suchfreedoms do not at all include the right to own property. Therestriction on unrestrained right to property seems to be in accordancewith the spirit of our Democratic Socialist Republic. It is also of muchsignificance that the Constitution of India in its Chapter onFundamental Rights does not have an article guaranteeing the right toprivate property. Our Constitution and other laws have provisions theimplementation of which will result in no one being arbitrarily deprivedof his private property guaranteed by Human Rights. In my view the
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relevant section of the Forest Ordinance is not arbitrary deprivation ofproperty, but the deprivation of property by due process of law, todeal with an economic crime.
My view of the interpretation of the relevant provisions of the ForestOrdinance is also supported by the rules of Interpretation of Statutesadopted in our courts. The following passages from theauthority-Craies on Statute Law (7th Ed.) are relevant forconsideration in the interpretation of the amendment in question-"Butwhere the words of an Act of Parliament are plain the Court will notmake any alteration in this because injustice may otherwise be done.Where the language of an Act is clear and explicit, we must give effectto it, whatever may be the consequence, for in that case the words ofthe Statute speak the intention of the Legislature". (Page 87). Craiesfurther states-"where the language is explicit, its consequences arefor Parliament, and not for the Courts to consider. In such a case thesuffering citizen must appeal for relief to the law giver and not to thelawyer". (Page 90).
In view of the reasons I have given above, I uphold the judgment ofthe Court of Appeal and dismiss this appeal in the Application inRevision with costs fixed at Rs. 1,500.
Appeal allowed.