029-NLR-NLR-V-16-NUKU-LEBBE-v.-THAMBY-et-al.pdf
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i*a.
Prevent: Lascelles C.J. and Wood Benton J.
NUKU LEBBE v. THAMBY at ol.
309—D. C. Matara, 5,386.
Pouter of Courts to interfere with the proceedings of ecclesiastical bodies—Dismissal of priest by congregation — No charges framed — Nopronouncement of judgment of congregation—Dismissal irregular—Domestic tribunals—Powers of dismissal—Right to be heard.
The Courts of law have all along claimed and exercised the rightto interfere with the proceedings of ecclesiastical bodies of alldescriptions wherever claims to property or to civil rights areinvolved.
The dismissal of a priest and manager of a Muhammadan mosqueby the congregation Was held irregular (a) as he had not been givenfair notice of the charges against him, and a reasonable opportunityof putting his defence before the congregation; and (6) as therewas no pronouncement of the real judgment of the congregation.
rjpHE facts are set out in the judgment.
Sampayo, K.G., for the appellants.
Bawa, K.G. (with him Samoni), for the respondent.
Cur. ado. vult.
January 29, 1913. Lascelles C.J.—
In this case the plaintiff was the katibu or incumbent priest andmanager of a Muhammadan mosque at Godapitiya. In this actionhe alleges that the defendants have unlawfully prevented kirn fromacting as the priest of the mosque, and have not allowed him to takepossession and charge of the mosque. The learned District Judgehas given judgment in favour of the plaintiff, ordering him to berestored to possession, and condemning the defendants to pay himdamages. The first point for consideration in the case, is whetherthe case is one which a Court of law ought to .entertain; in otherwords, whether it is a case in which any civil rights are involved.In view of the admission as to damages, and of the undisputedevidence that the plaintiff is entitled to the income of a small numberof coconut trees, there can, in my opinion, be no doubt but thatthe District Court had jurisdiction to deal with the case. It appearsthat complaint had been made by the first defendant against theplaintiff and certain mattichchams, or officials of the mosque; andby agreement the complaint had been referred to the arbitration ofcertain gentlemen skilled in Muhammadan law and custom. Thearbitrators found that the plaintiff and these mattichchams had
1913*
( W )been guilty of certain irregularities, the nature oi which is notspecified, and by way . of punishment imposed fines on the mattich-oham8, and suspended the plaintiff for a given time until the monthof Jemadul Awal, and ordered that at the expiration of .thatperiod he was to be restored to his position as incumbent priest.No question arises as to the validity of the award. It was obeyed,and the period of suspension has long since expired. It appearsthat the plaintiff aroused the resentment of the congregation or aportion of the congregation by causing to be read in the mosque apattuwar or fathwa, in which the validity of the award was im-peached; and as a result of the feelings which this action aroused,the plaintiff was prevented from resuming his position asincumbent priest of the mosque. The defence to the action is thatthe right of appointing or fliflnrug«ing a resident priest is vested inthe congregation, and that the plaintiff, after his suspension by thearbitrators, was lawfully dismissed from his post. There is not inthe record any very definite evidence as to the custom or usagewhich regulates the appointment .or dismissal of a Muhammadanincumbent priest. But, assuming that the right of dismissal isvested in the congregation, I think it is clear on the evidence thatthis right was not lawfully exercised in this case. Before such aright can be lawfully exercised, two conditions at least must becomplied with. In the first place, it is essential on principles ofnatural justice that the person to be dismissed should have noticeof the charges against him, and that he should have a fairopportunity of defending himself. This is a* principle on whichCourts have always insisted in cases where what are calleddomestic tribunals are entrusted with powers of this nature. Thejurisdiction of the Benchers of the Tnns of Court or of the membersor the committees of private clubs are examples of cases in whichthis principle has been enforced. The second requirement towhich “I have referred is that-the opinion-of the body. in., whom, theright of dismissal is vested should be ascertained clearly and withoutdoubt. In both these respects the action of the congregation isdefective. There is no evidence that the plaintiff had an opportunityof defending himself against the charge of improper conduct orinsubordination in having the fathwa read in the mosque, andthere is even le6S evidence as to the decision of the congregationtaken as a whole. The evidence shows that there were two partiesin the mosque, one in favour of the plaintiff and one against him.But which side was entitled to speak for the congregation as. a wholeis a matter which is left entirely in the dark. I think it cannot bemaintained that the plaintiff was lawfully dismissed from his postafter his suspension and after the date when; according to theaward, he should have been restored to his office. I think thejudgment of the learned District Judge is right, and ought to beaffirmed. I would therefore dismiss the appeal with costs.
Lascbuss
<XJ.
Nuku Lebbe«. Thamby
1918.
Nuku LebbeThamby
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Wood Renton J.—
I am of the same opinion. The action clearly involves a claim of *civil right, and it results from the evidence that the congregation'is practically in the position of a domestic tribunal. There is*nothing in the record to show that any special rules existed #withregard to the procedure to be exercised by the congregation in theelection or the dismissal of priests. In that state of the facts there.can be no doubt but that the action lies. The Courts of law inEngland have all along claimed and exercised the right to interferewith the proceedings of ecclesiastical bodies of all descriptions-wherever claims to property or to civil rights are involved. More-over, there is direct authority on the point in Ceylon. It was heldso far back as 1835, in a case reported in Marshall's Judgments atpage 656, that the Courts here had the right to deal with claims of apecuniary and personal description by the priests and officials of acertain Moorish temple, even although for the purpose of investi-gating such, claims it became necessary to deal with religiousprivileges. The same principle is affirmed in the later case of AysaOemma v. Sago Abdul Lebbe,1 although there the Supreme Courtdeclined to exercise jurisdiction on the ground that no civil rightwas involved in the claim. So much for the power of the Courtsto entertain this action. There can be equally little doubt but thatin the absence of any special rules dispensing with the ordinary/conditions under which domestic tribunals must exercise theirjurisdiction and binding upon the respondent by acquiescence, hewas entitled, in the first place, to have had fair notice of the chargesagainst him, and a reasonable opportunity of putting his defencebefore the congregation; and in the next place, to a pronouncementof the real judgment of the congregation itself. I entirely concurwith the observations of my Lord the Chief Justice, that on theevidence neither of these conditions was complied with. I agreethat the appeal should be dismissed with costs.
Appeal dismissed.
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i Bam. (1863-68) 240.