100-NLR-NLR-V-19-MEEDIN-v.-JAYAWARDENE.pdf
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Present : De Sampayo J.
MEEDIN v. JAYAWARDENE.
214—P. C. Colombo, 6,559.
Cattle trespass—Failure to give notice of seizure—Is it an offence?
Penal Code, s. 289—Detention of cattle damage feasant—Possession
of cattle without a voucher.
The failnre on the part of a proprietor or occupier of land to givenotice of the seizure of an animal is not an offence under theCattle Trespass Ordinance, 1876, which can be. punished undersection 269 of the Penal Code. Such notice must be given if theowner or occupier desires to seek the remedy provided by the Ordi-nance for the recovery of damages caused by the trespass.
A person seizing and detaining cattle damage feasant is not guiltyof an offence under, section 8 of Ordinance No. 10 of 1898 forpossessing the animal without a voucher.
rpHE facts appear from the judgment.
Garvin, 8.-G., for the appellant.—A person seizing cattle is undera statutory duty to give notice of the seizure to the headman. Thewords of section 7 (Ordinance No. 9 of 1876) are, “ Notice of theseizure shall be given.”
The whole law on the subject of seizure of animals and the recoveryof damages is now contained in the Ordinance. Failure to complywith the provisions of the Ordinance is punishable under section 289of the Penal Code.
Possession of cattle without a voucher is prohibited by OrdinanceNo. 10 of 1898, section 67. P. C. Colombo, 5,674 (S. G. Min.,February 11, 1917).
Canakeratne, for the accused, respondent.—The provisions ofsection 7 are only directory, and not imperative. The Ordinancelass not taken away the common law rights. A person who seizescattle damage feasant may bring an action for damages in a CivilCourt or may proceed under the Ordinance. See Thaver v. Gray,1Ghmaratna v. Salmon.2 The owner of cattle may pay the damagesimmediately, and then there will be no need to come to Court, andonly if the proceedings are in a Court can the Court impose a fine.Ordinance No. 10 of 1898 only penalizes the sale or transfer of cattlewithout a voucher; there is no sale or transfer when a person seizes .trespassing cattle.
Cur. adv. vuU.
1 (1882) 5 S. C. C. 60.* (1898) 1 Tam. 79.
1917.
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1917. March 27, 1917. De Sampayo J.—
Meedinv. 1 In this case the accused was charged by the police, under section.
Jayawardene 239 Df the Penal Code, with having wilfully neglected or omitted togive notice of the seizure of a cow which had trespassed on hisfield, under section 7 of the Cattle Trespass Ordinance, No. 9 of. 1876. To this the Police Magistrate added another charge, undersection 8 of the Ordinance No. 10 of 1898, for possessing the cowwithout a cattle voucher. The accused was ultimately acquittedon both the charges, and the Solicitor-General has appealed.
The point which is most strenuously pressed is that section 7*of the Cattle Trespass Ordinance, 1876, imposes a duty onlandowner in all circumstances to give notice of the seizure of an4animal, and that as no punishment is otherwise provided for the;neglect to perform that duty, the accused is liable to be charged-under section 289 of the Penal Code. .1 am unable to agree withthis contention. The section no doubt provides that notice of theseizure •“ shall ” be given, but in my opinion the provision means^not that notice should be given as a matter of absolute statutory^obligation, but that it should be given if the landowner desires toseek the remedy provided in the Ordinance for recovering thedamages caused by the trespass. It appears to me that it onlystates a condition to be observed in order to obtain the benefits ofthe Ordinance. In this connection the Solicitor-General points oi^tthat under section 7 the Court in which proceedings for recoveringdamages are taken must, in addition to the damages and charges ofkeep, award a fine, and he contends that the imposition of a finemakes the trespass an offence on the part of the owner of the'*animal, and therefore the duty to give the notice in question is of,a;public character, and not merely a condition 'to be fulfilled beforeproceeding under the Ordinance. I do not think that it necessarily,follows that a fine is provided for as the punishment for an offence.-It is noticeable that, although the proceedings for the recovery ofdamages are of a civil nature, there is no provision for stamps onthe headman’s report or the processes of Court, and the headmanhimself has to assess damages and give a report gratuitously. It.may well be that the amount of the fine is really intended to covenall such expenses as should properly be payable to the Crown. Inany event a cattle trespass case need not always reach the Court.If the cattle owner comes up immediately on the seizure and payscompensation, there is nothing to prevent the landowner from'stopping there and giving up the animal. In such a case the Cou^-will have no chance of imposing a fine. Again, under the Ordinanceitself, it is only if the cattle owner does not tender the amount ofthe damages as assessed by the headman within a certain time thatthe headman's report is to be produced to Court and the proceedingsinitiated. I cannot therefore accept the argument that the provisionfor a fine has any bearing on the meaning of the requirement to
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give notice of the seizure. The view 1 have expressed, that thegiving such notiee is only a condition to be fulfilled for securing the'benefit of the Ordinance, is supported by section 10, which providesthat " all rights to the benefit of any of the provisions of thisOrdinance shall be forfeited, unless the notice required by section 7' §hall have been given within forty-eight hours from the time ofseizure.” It is argued for the accused that this is a punishmentexpressly provided by the Ordinance for the failure to give notice,and that therefore section 289 of the Penal Code does not apply.—It is not- necessary to go that length; it is sufficient to say that ’section10 makes it clear that the failure to give notice is not such a neglectof statutory duty as it penalized by section 289 of the Penal Code.The following observation of Lawrie A.C.-J. in Rampukpotke v.Silva 1 appears to me to be quite just: “ I think it dangerous torely on the 289th section of the Penal Code as giving authority topunish criminally acts or omissions which have not been declaredby'the Legislature to be offences. For example, the Civil ProcedureCo&e iinposes many duties, the wilful disobedience or infringe-
ment of which are not offences. ” Section 10 of the Cattle TrespassOrdinance provides that ” nothing herein contained shall be held totake away or affect any right which the Crown or any person mayhave at common law for redress in respect of any damage sustainedby trespass of animals.” Now, at common law a landowner isentitled to seize and detain an animal damage feasant, until damages' and costs of keep are paid. Under the Romau-Dutch law thedetention should be in the publicum stabulum or public pound, butas there is no pound of that description in Ceylon, it has been heldthat the landowner himself may detain the animal. See the FullCourt decision- in Tkaver v. Gray.- The argument in that case isbetter reported, and all the authorities are cited in Wendt's Reports11. The Solicitor-General suggested that that decision, waswrong, inasmuch as the headman was constituted the officialcustodian of a trespassing animal, and there was thus a kind ofjmblicum stabulum in Ceylon. But I cannot review a Full Courtdecision, and, moreover, the argument as to the effect of the head-man's charge of the animal appears to me to be unsound. Thereis no obligation on the private person under the Ordinance todeliver the animal to the headman, but only the headman isempowered to take it into his charge, which is a different thing.Further, the detention by the headman is not for the same purposeas detention in publicum stabulum, but for the special purpose ofproceeding under the Ordinance, which provides an alternativeremedy, and the headman himself is to take charge of the animalonly if the amount of the assessed damages is npt immediatelypaid. If the common law remedy has disappeared, as contended,there is no meaning in the proviso to section 10 of the Ordinance,i (1897) 4 Bal. 139.a (1883) 5 S. C. G. 60.
1917
Ds Samtavo
*r.
Meed,in v.■J oyawardene
-( 400 )
1917.
fra SampaxoJ.
Meedin v.Jayawardene
which conserves, not merely the right of action for damages, but theright at common law “ for redress in respect of any damage sustainedby trespass of animals." If, then, the common law remedy by wayof detention still exists, and the accused chose to rely on it, andabstained from giving notice of the seizure for the purposes of thealternative remedy under the Ordinance, it follows that he did notneglect a statutory duty, and could not be prosecuted under section289 of the Penal Code.'
The other charge under section 8 of the Ordinance No. 10 of 1899is equally unsustainable. Section 5 of that Ordinance provides forregulations being made, inter alia, for prohibiting the sale or transferof cattle except upon a voucher, &c.," and the regulation framedthereunder prohibits " the acquisition of cattle from any person inany way except by inheritance or by birth in the penfold, unlessthe recipient receives with the animal the prescribed certificate. "This action and regulation aim at the acquisition of cattle withouta voucher in any mode other than those indicated, and accordinglyit was held by Wood Benton C.J. in 67-—P, C. Colombo, 5,674/which was cited by the Solicitor-General, that where a personbad won an animal in a raffle, and was in possession of it, he,could not be said to be “ lawfully entitled to the possession ” ofthe animal within the meaning of section 8 of the Ordinance.It is clear that these considerations do not apply to the caseof a person who has seized and detains cattle damage feasant.Such a person does not acquire the animal in’ any sense, andrequires no voucher, and, indeed, it is not possible for him toobtain a voucher from the cattle owner, nor has the headman orother officer any authority to grant him one. He is under ..thecommon law, as already explained, lawfully entitled to the possessionof the trespassing animal until the damage caused is paid to him,and he therefore comes within the exception in section 8 of theOrdinance. It appears that in the present case the accused hashad the cow in his custody for about a year since the seizure, andthe Solicitor-General depreciated such possession being sanctioned,as. otherwise a cattle thief could easily defeat justice by setting upsuch a defence. Inconvenience of this kind cannot, however, alterthe law. A landowner who seizes a trespassing animal and gives nonotice thereof, but keeps it himself for a long time, may run the riskof suspicion of theft, but, nevertheless, if he can establish the facts,he is not criminally liable.
In my opinion the verdict of acquittal is right. The appeal isdisznissed.
Appeal dismissed.
» S. C. Min., Feb. 11, 1917: