057-NLR-NLR-V-50-MOHIDEEN-et-al.-Appellants-and-THE-ATTORNEY-GENERAL-Respondent.pdf
HOWARD C.J.—Mohideen v. Attorney-General
217
1948Present: Howard C.J. and Canekeratne J.MOHIDEEN et al„ Appellants, and THE ATTORNEY-GENERAL,
Respondent.
S. C. 484—D. C. Colombo, 17,059.
Customs Ordinance—Forfeiture of goods—Deposit of security—Action forrefund of money—Is it available ?—Section 146.
The action available under section 146 of the Customs Ordinanceto a person whose goods have been seized as forfeited and who has giv nsecurity is not limited to an action for declaration of title to the goodsand the discharge of the bond. He can sue for the return of the moneydeposited as security.
■A-PPEAIi from a judgment of the District Judge, Colombo.
H. V. Perera, K.C., with H. W. Jayewardene, for plaintiffs appellants.
W. R. Weerasooriya, Crown Counsel, for the defendant respondent.
Cur. adv. vult.
December 10, 1948. Howard C.J.—
This is an appeal from a decision on two preliminary issues in an actioninstituted by the appellants, the plaintiffs, against the Attorney-General,for the recovery of a sum of Rs. 30,000. The.plaint alleged that theplaintiffs had consigned to them thirteen bundles of cow leather fromSouth India to Colombo and by letter dated May 28, 1946, the PrincipalCollector of Customs informed the plaintiffs that the thirteen bundles wereforfeited under section 49 of the Customs Ordinance. Maintainingthat the forfeiture of the bundles was unlawful the appellants on May29, 1946, gave to the Principal Collector of Customs notice in writing thatthey intend to enter a claim to the thirteen bundles declared forfeit andpaid a deposit of a sum of Rs. 30,000 and executed a bond in terms ofsection 146 of the Customs Ordinance. The appellants contended that acause of action had, therefore, accrued to them to prosecute their claim asprovided in the said bond and to sue the defendants for the recovery of thesaid sum of Rs. 30,000. On behalf of the respondent it was submittedthat the action could not be maintained under section 146 of the CustomsOrdinance. Issues 12 and 13 were worded as follows :—
“ 12. Have the plaintiffs in terms of the conditions in the bonddated May 29, 1946, given under the provisions of section 146 of theCustoms Ordinance instituted in the proper Court within 30 days ofthe said bond, proceedings for the recovery of the 13 bundles ofleather seized as forfeited under the provisions of the CustomsOrdinance.
10—1>.
J. N. A 80428—1,014 (?/40)
218
HOWARD G, J.—Mohideen «, Attorney-General
13. If issue 12 is answered in the negative can plaintiffs maintainthe present action? ”
Section 146 is worded as follows :—
“ All ships, boats, goods and other things which shall have beenor shall hereafter be seized as forfeited under this Ordinance, shall,be deemed and taken to be condemned, and may be dealt with in themanner directed by law in respect to ships, boats, goods, and otherthings seized and condemned for breach of such Ordinance, unlessthe person from whom such ships, boats, goods, and other thingsshall have been seized, or the owner of them, or some person authorized 'by him, shall, within one month from the date of seizure of the same,give notice in writing to the Collector or other chief officer of customsat the nearest port that he intends to enter a claim to the ship, boat,goods, or other things seized as aforesaid, and shall further give securityto prosecute such claim before the court having jurisdiction to entertainthe same, and to restore the things seized or their value, and otherwise tosatisfy the judgment of the court and to pay costs. On such notice andsecurity being given in such sum as the Collector or proper officerof customs at the port where or nearest to which the seizure was madeshall consider sufficient, be delivered up to the claimant; but if pro-ceedings for the recovery of the ship, boat, goods, or other things soclaimed be not instituted in the proper court within thirty days fromthe date of notice and security as aforesaid, the ship, boat, goods, orother things seized shall be deemed to be forfeited, and shall be dealtwith accordingly by the Collector or other proper officer of customs.”
It was contended by the Crown that the action brought by the plaintiffswas not in accordance with the provisions of section 146, and must, there-fore, be dismissed. The only action available under this section to aperson whose goods have been seized as forfeited after having given secu-rity within the time prescribed is for declaration of title to the goods,whereas the plaintiffs had merely asked for a refund of the money whichthey had paid under the bond. In this connection the Crown relied onthe judgment of Wijeyewardene J. in Sangarapillai v. Prasad1. Inthe course of this judgment the learned Judge said that “ the claim con-templated by section 146 in respect of the goods released on security isclearly a claim for declaration of title to the goods and the discharge ofthe relative bond.” The District Judge stated that he was in completeagreementwith this dictum because he construed section 146 to mean thatthe claimant to the goods is bound to bring an action for the recovery ofthe goods by way of a declaration that the goods were not liable to seizureand forfeiture. The learned Judge also held that the goods were notreleased but merely handed over to the claimant pending institution ofaction contemplated by section 146. It was, therefore, immaterial whetheror not the goods had been returned to the claimants. The action pre-scribed by section 146 was an action, in substance, to recover the goods.He, therefore, answered Issues 12 and 13 in favour of the respondentand dismissed the plaintiffs’ claim.
1 {1944) 43 N. L. R. 443.
HOWARD O.J.—Mohideen v. Attorney-General
219
The only question that requires consideration is whether the learnedJudge was correct in holding that an action by a person whose goods havebeen seized as forfeited must under section 146 be for their recoveryor in the alternative a declaration that he is entitled to such goods. Thedictum of Wijeyewardene J. cited in the lower Court does state thatsection 146 contemplates a claim for declaration of title to the goods andthe discharge of the relative bond. It would appear that this dictum wasobiter. In that case the action was instituted under section 146 againstthe Principal Collector of Customs, Northern Province, for the recoveryof goods seized. It was held that such an action should be institutedagainst the Attorney-Gen era!. No other point was decided. Althoughobiter the dictum of Wijeyewardene J. is, however, entitled to consider-ation. But it may be observed that although the learned Judge said thatthe section contemplated a claim for declaration of title to the goods anddischarge of the relative bond, he did not state that this was the onlyclaim that could be instituted or rule out other claims. Section 146clearly contemplates the position where the person brings an action underthe section in respect of the goods seized after the goods have beendelivered to him on giving security. In such a case it must be borne in'mind that the claimant is not prohibited by the Ordinance, pending theresult of the claim, from dealing and disposing of the goods after he hasgiven security. It is quite clear that by the time the claim is consideredthe goods may no longer be in existence. They may be perishable goodsor, as in the present case, goods which may have been converted intosomething else. The wording of the section is not very clear, but I haveno doubt that the intention is to deal with such a position. To ask fordelivery of goods which have been delivered to the claimant or for adeclaration of title to goods no longer in existence does not makecommon sense. I consider that the section must be construed in abroad sense in consonance with natural principles of justice. The claimmakes it clear that it is founded on a wrongful seizure of the goods.I think that is all that is required. The claimant is at liberty to askfor the remedy which flows from such seizure if unlawful. I
I am fortified in my opinion that it is open to the claimant to recoverthe sum of Rs. 30,000 by the phraseology employed in section 151. Thissection is worded as follows :—
“ In case any information shall be brought to trial on accountof any seizure made under this Ordinance, and a judgment shall begiven for the claimant thereof, and the court before which the causeshall have been tried shall certify on the record that there was probablecause of seizure, the claimant shall not be entitled to any costs of suit,nor shall the person who made such seizure be liable to any action orprosecution on account of such seizure ; and if any action shall bebrought to trial against any person on account of such seizure, whereina judgment shall be given against the defendant, if the court beforewhich such information shall have been tried shall have certified onthe said record that there was a probable cause for such seizure, theplaintiff shall only be entitled to a judgment for the things seized, orthe value thereof, and not to any damages, nor to any costs of suit. ”
220 WIJEYEWAUDENE O. J.—Ebrahimjee v. Commissioner of Income Tax
The fact that the words “ or the value thereof ” occur in the sectionindicates that the claim under section 146 of a person whose goods havebeen seized is not limited to a demand for the recovery of the goods ora declaration that he is entitled thereto.
For the reasons I have given the appeal is allowed with costs in thisCourt.
Cahhkicbatnii j.—I agree.
Appeal allowed.