MUTTUPILLA v. BOWES

143-NLR-NLR-V-17-MUTTUPILLA-v.-BOWES.pdf


( 458 )
Present: Lascelles' C.J. and Pereira J.
MUTTUPILLA *. BOWES.
122—C. R. Colombo, 36.745.
Action against the Principal Collector of Customs—Notice of action—•Civil Procedure Code, s. 461 — Customs Ordinance, No. 17 of18Gf>, s. 132.
Section 461 of the Civil Procedure Code, which enacts. inUr aliathat no action should be instituted against' a public officer inrespect of an act purporting to be done by him in his official capacityuntil the expiration of one month next after notice in writing hasbeen delivered to him, must be deemed to have repealed by impli-cation the provision of section 122 of Ordinance No. 17 of 1860,which specially provided for fifteen days* notice of action in thecase of officers of the Customs. The maxim gene.ralia specialikusnonderogantapplies onlywherethe particular statute relied upou
is a statute in favour of a particular class of persons or the propertyof a particular class.’
But, per Pebeiba <T., section 461 of the Civil Procedure Codedoesnot laydown anymatterof substantive, law, but provides
for a link in the chain of the, procedure necessary for the recoveryof the claimsreferred toin it.Section 4 of the Civil Procedure
Code, therefore, conserves the provision of section 122 of OrdinanceNo.17 of 1869. there being noexpress repeal or modification, of
it anywhere. 1
1 (1SS9) 4 N. L. R. 121.
1914.
2 {1882) S R. D. S».
( 454 )
Per Pereira J.—Where in an action against a defendant(described in the caption of the plaint as the -Principal Collectorof Customs) for the return of certain goods detained by him in hiscapacity of Collector, there was no averment in the plaint that heacted mala fide in detaining the goods or outside the scope of hisauthority,—
Held, that the claim should have been made against the Attorney-General, and not the defendant in his official capacity.
Lasoelles C.J.—The provisions of section 461, which requireone month's notice to be given of all actions against the Crownor against public officers, has superseded the special provisionsof section 122 of the Custom's Ordinance.
A
PPEAL from a judgment of the Commissioner of Requests,Colombo (T. W. Roberts, Esq.)^
The case was reserved for argument before a Bench of two Judgesby Pereira J.
The facts appear from the judgment of Lascelles C.J.
Samarawickreme (with him Canekeratne), for the plaintiff, appel-lant.—The plaintiff has given fifteen, days’ notice of action, as requiredby the Customs Ordinance (No. 17 of 1869, section 122). The Com-missioner was wrong in dismissing the plaintiff's action on the groundthat one month's notice, as required by section 461 of the CivilProcedure Code, was not given. The Civil Procedure Code didnot repeal the provisions of the Customs Ordinance as to notice.The special provision as to notice of actions against Customs officersis not touched by the Civil Procedure Code, which makes provisionsas to actions against public officers generally. Generatin' specialibusnon derogant. Counsel cited Kalii Menika v. Kerala,,1 Jalaldeen v.The Municipal Cowled of Colombo* Barker v, Edger* Maxwell onthe Interpretation of Statutes, 6th ed., p. 285.
The proviso to section 4 of the Civil Procedure Code shows thatsection 461 of the Civil Procedure Code does not affect the provisionsof section 122 of the Customs Ordinance.
van Langenberg, K.C., S.-G. (with him V. M. Fernando, C.C.), forthe plaintiff, respondent.—The maxim generalia speciatibus ,nonderogant applies to cases where the earlier statute confers a privilegeon a particular class of persons. See Garnett v. Bradley * In thepresent case the Customs Ordinance does uot confer any privilegeon any. particular class. If section 122 confers a privilege onCustoms officers, the provisions of section 461 of the Civil ProcedureCode extend the privilege, and do not restrict it. Therefore, themaxim relied upon by appellant does not apply.:
The provisions of section 461 of the Civil Procedure Code andsection 122 of "the Customs Ordinance are inconsistent. The. CivilProcedure Code being the later Ordinance repeals by implication
1014.
Muttupiltav. Bo wee
’ $ N. L. R. 101.
9 {1909) 12 N. L. R. 129.
9 (1898) A. C. 754.
«(1877-78) 8 A.C> 944.
( 455 )
the provision as to notice of action in section 122 of the CustomsOrdinance. See Le Mesurier v. Murray,1 Aharon Appu v. Banda*Section 461 enacts substantive law. One month's notice of actionis a condition precedent to the institution of an action against apublic officer. Section 4 of the Civil Procedure Code does notconserve the provision of section 122 of the Customs Ordinance,as the requirement as to notice is not a question of procedure.
Section 122 of the Customs Ordinance does not make any pro-vision for notice before institution of action. It only provides thatno summons shall be sued out until fifteen days qfter notice. Butthere is nothing to prevent the action being instituted within eventwenty-four hours of the accrual of the cause of action. Section124 gives the Customs officer one month’s time after notice tomake amends. The provision of section 461 of the Civil ProcedureCode is an entirely new provision, and must, be observed.
The action is not maintainable, as it should have been broughtagainst the Attorney-General, and not against the Principal Collectorof Customs.
Counsel also cited 13 L. J. M. C. 110 and (1379) 48 L. ,T. Q. B. 186.Samarawirkreme, in reply.
Cur. adv. vult.
June ID. 1914. Lascei.t.es C.J.—
This case was reserved- for the opinion of a Bench of two Judgeson a point of law raised at the trial. In the Court of Requests theplaintiff’s action was dismissed on the ground that he had not giventhe one month’s notice required by section 461 of the Civil ProcedureCode in cases where a public .officer is sued for an act purportingto be done in his official capacity.
The plaintiff contends that he has complied with .the requirementsof section 122 of the Customs Ordinance (No. 17 of 1869) by giving-fifteen days’ notice of action before Issuing summons.
The question .thus is whether the general provisions of section 461,which require one month’s notice to be given of all actions againstthe Crown or against public officers, ' has superseded the specialprovisions of section 122 of the Customs Ordinance as regards noticeof action against Customs officers.
In 1898, in Le Memrier v. Murray,l Lawrje A.C.J.. held that theprovisions of section 122 of the Customs Ordinance as to noticeof intended action against a Customs officer were superseded bythose of section 461 of the Civil Procedure Code.
This decision has, as far as I am aware, never been questioned;and quite .recently it has been referred to in this Court as anauthoritative statement of the law on the subject (Abaran Appuv. Banda2).
1914.
MultupiUav. Sows*
1 (1498) 3 N. L. B. US.
* (1913) 16 N.h.B. 49.
1914.
LA80SUJBS
C.J.
MnUupiUav. Bowes
( 466 >
It is now contended,, on the strength of the principle embodiedin the maxim generalia spccialibus non derogant, that the generalprovisions of the Civil Procedure Code do not touch the specialprovisions enacted by the Customs Ordinance with regard to theparticular case of actions against Customs officers.
The' conditions on ydnch the subject is allowed by law to sue theCrown or public officers for acts done in their official capacityare. highly important to the public. When we find that- a sectionof the Civil Procedure Code has been judicially interpreted to laydown a simple and uniform rule applicable to all cases, and that thisruling has passed unquestioned for fifteen or sixteen years, I formy part would decline to interfere with the ruling, unless I'wassatisfied beyond all possible doubt that it wa9 erroneous.
; This is very far from the case. The learned Solicitor-Generalhas referred, us to the English case of Oarnett v. Bradley,1 the factsof. which present a close analogy to .those of the present case. The.Statute 21, Jae. I.. c. 16 enacted that, where, in an action for slander,the plaintiff recovered damages less than 40s., he should have nomore costs than damages. The question was whether this enact-ment was superseded by the general provisions; of the JudicatureAct that costs should be in the discretion. of the Judge, or in trialsbefore a jury, should follow the event. The House of Lordsdecided that the provisions of the statute ofi James I. were super-seded by the Judicature Act, and much of the reasoning in thejudgments is in point in this case.
It is clear, in the first place, that, so far as actions against officers ofthe Customs are concerned, the provisions of the Customs Ordinanceand the Civil Procedure Code are inconsistent. The .general; rulein such cases is that the later enactment repeals the earlier. Thisis specially the case where the later enactment, as is the case withsection 461, is couched in negative terms. As was .pointed, out byLord Blackburn in Garnett v. Bradley,1 most of the cases where;themaxim generalia specialibus non derogant is applicable are, caseswhere the earlier statute was in favour of a particular class of persons,or the property of a particular class of persons. In these casesit was considered unfair that an enactment couched in general termsshould abrogate .the particular privilege.
But this is not the present ca6e. Even if it be supposed -that*section 122 of the Customs Ordinance conferred something in theshape of privilege or immunity on Customs officers; this privilege orimmunity is not taken away or abridged by section 461 of the CivilProcedure Code. On the contrary, it is extended.
In my opinion the decision in Garnett v. Bradley 1 is a sufficientauthority to support the ruling of Lawrie A.C.J. on this point.
With regard to .the proviso to' section 4 of the Civil ProcedureCode, I need only say there is ho question here of modifying any
(1877-78) 3 A. C. 944.
( 457 )
special rule of procedure prescribed by an earlier Ordinance. Thequestion here is not one of procedure. It is with regard to theconditions subject to which a certain class of actions is allowed to beinstituted, with regard to a requirement which must be satisfiedbefore the course of procedure begins to run. I do not considerit necessary to consider whether the action is maintainable in itspresent form.
For the above reasons I would dismiss the appeal with costs.
Pereira. J.—
The first question to be considered in this case is whether section461 of the Civil Procedure Code can be said to have repealed byimplication the provision of section 122 of Ordinance No. 17 of 1869as to the period of notice mentioned in it. Section 122 of OrdinanceNo. 17 of 1869 enacts that no summons shall be sued out againstany officer of the Customs for anything done in the exercise of hisoffice until fifteen days after notice in writing shall nave beendelivered to him, and section 461 of the Civil Procedure Code provides,inter alia, that no action shall be instituted against a public officerin respect of an act purporting to be done by him in his officialcapacity until the expiration of one month next after notice. Ithave been argued that the maxim generalia specialibus non derogantapplies, and cases both English and local bearing on the subjecthave been cited. Among the latter are the cases of Kalu Menikao. Kerala 1 and Jalaldeen v. The- Municipal Council of Colombo.– InKalu Menika v. Kerala 1 it.was held that the provision of section 19of the Partition Ordinance, No. 10 of 1863, allowing in effect anappeal from an interlocutory decree for partition under section 4of the Ordinance, was not tacitly repealed, as regards partitionactions under the Ordinance in Courts of Bequests, by the provisionof section 81 of the (later) Courts Ordinance; which granted an appealfrom only , final decrees of Courts of Bequests ; and in Jalaldeen v.The Municipal Council of Colombo – it was held that the provisionof section 14 of Ordinance No. 7 of 1887, which gave jurisdictionto Courts of Bequests to entertain actions for the reduction of theassessment rates levied by the Municipal Council, provided the ratedid not exceed Bs. 100, was not implicitly repealed by section 4 ofOrdinance No. 12 of 1895, which gave Courts of Bequests jurisdictionto entertain all actions in which the debt, damage, or demand didnot exceed Es. 300. Among the English cases cited is that ofBarker v. Edgar. 3 In that case Lord Hobhouse in the course of hisjudgment observed as follows: “ The general maxim is generaliaspecialibus non derogant. When the Legislature has given itsattention to a separate subject, and made, provision for it, the
16N.L. R. 101.(1909) 12 N. L. R. 129,
3 (1898) A. C. 754.
1914.
Laso annusC.J
Muttupillv. Sown
( 458 )
1914. presumption is that a subsequent general enactment is not intendedj to interfere with the special provision, unless it manifests that
intention very clearly. Each enactment must be construed in that
respect according to its own subject-matter and its own terms.The case of Garnett v. Bradley,l cited by the Solicitor-General, however,throws a peculiar light upon this and other similar cases. ThereLord Blackburn in his judgment cited a number of cases similar toBarker vt Edgertz and observed: “ In all these cases'the particularstatute relied upon was a statute in favour of a particular class of
persons or the property of a particular class of persons .
When that is the case, where the particular enactment is particularin the sense that it protects the rights, the property, or the privilegesof particular persons or a class of persons, the reason for the rulewhich has been acted upon is exceedingly plain and strong. ” Andthen he proceeded to point out that the so-called particular Act inquestion in that case, namely, Statute 21, Jac. I., c. 16, whichprovided that where a party had obtained a verdict and recovereddamages less than 40#. in an action of slander he should have nomore costs than damages, did not give a privilege to a particularclass, but that it enured to the benefit of all His Majesty’s subjects.The same observation appears to me to apply to the Legislativeprovision in the Customs Ordinance with which we are concerned'in this case. In passing, I should like to observe that Mr. Solicitorcited to us only portions of the judgment of Lord Blackburn, andrelied, inter alia, on- that part of it where his Lordship pointed outthat the two acts that he was dealing with were inconsistent witheach other, and therefore the latter repealed the former. I wassomewhat embarrassed in the course of the argument, becauseI could not bring myself to agree with the proposition in its appli-cation to section 122 of the Customs Ordinance. On a carefulperusal of Lord Blackburn's judgment, however, J see that hisLordship’s dictum had special reference to section 33 of the later ofthe two Acts he was considering, which expressly provided thatthat Act repealed all statutes “ inconsistent with it.'” The dictum,therefore, has no application to the point at issue in the present case;but, as a result of the dictum first mentioned above, the appellant’scounsel’s contention that the maxim generalia specialibus nonderogant applies to this case, in my opinion, fails.
It was also argued by the appellant’s counsel that by virtue ofthe proviso to section 4 of the Civil Procedure Code, section 122of the Customs Ordinance must be deemed to be unaffected bysection 461 of the Code. The proviso lays down that (to citematerial portions only) nothing in the Code shall be held in anyway to affect or modify any special rules of procedure which, underor by virtue of the provisions of any Ordinance now in force, mayhave from time to time been laid down or prescribed to be followed
s (1877-78) 3 A. G. 944.
(1898) A. C. 754.
{ 459 )
by any Civil Court in this Colony in the conduct of any action. 1M4.matter, or thing of which any such Court can lawfully take cogni-T
zance, except in so far as any such provisions are by the Code
“ expressly repealed or modified. ” There has certainly been noexpress repeal or modification by the Code of section-'122 of theCustoms Ordinance, but it has been argued that the provision ofsection 461 of the Civil Procedure Code is not a matter of procedurebut of substantive law. I am aware that this Court has held thatthe Civil Procedure Code enacts in some of its sections substantivelaw, but I cannot see my way to accede to the proposition that theprovision of section 461 is substantive law. The giving of a certainnotice to a prospective defendant is a step in the direction ofenforcing the claim against him. It has nothing to do* with theaccrual of the claim itself. In Poyser v. Minors,1 Lush L.J. observed:
" ' Practice, ’ in its larger sense, like ‘ Procedure, ’ which is used inthe Judicature Acts, denotes the mode of proceeding by whicha legal right is enforced, as distinguished from the law which givesor defines the right, and which by means of the proceeding theCourt is to administer the machinery, as distinguished from itsproduct.. ” When a certain notice is prescribed by law to entitlea person to invite the aid of a Court to enforce a claim, it is, I think.a link in the chain of the procedure necessary to enforce the claim.
While section 461 of the Code lays down a general rule, the provisionof section 122 of the Customs Ordinance should, in my opinion,be looked upon as an exception, which (and not the general rule)is- applicable to the present case. In this view I think that theappellant’s counsel’s argument must prevail, and I would allow theappeal, but that I think that the Commissioner’s decision bn thesecond issue framed in the case is erroneous, and the defendant isentitled to succeed on that issue. It is said that the action is onefor tort against the defendant in, so to say, his personal capacity,but it is, I think, clear that the defendant has been sued in hisofficial capacity as on a mere breach of contract. In the captionof the plaint he is described as the Principal Collector of Customs,and there is no averment that in detaining the plaintiff's goods heacts mala fide or outside the scope of his authority, and the remedysought- is the delivery to the plaintiff of certain goods that hedetains in his capacity of Principal Collector of Customs. Thedecision in the case of Raleigh v. Goschan2, is in point. In thecircumstances mentioned in the plaint, the proper party to be suedwas the Attome-y-General. In my opinion, on the facts placedbefore the Court, the plaintiff is not entitled to maintain this actionagainst the defendant personally, and on that account I agree thatthe appeal be dismissed with costs.
Appeal dismissed.
1 7 Q. B. D. 329, 333.
* (18-98) 1 Ch. 113.