069-NLR-NLR-V-07-NUSSERWANJEE-v.-FIELD.pdf
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NUSSEBWANJEE v. FIELD.
D. C., Colombo, 13,648.
Jurisdiction of District Court—Illegal arrest at Mali (in the Maidive Islands)
and false imprisonment on board a warship—Release in Colombo harbour
—Damages.
The defendant, who was the Commander of a British man-of-warwhich had been commissioned by the Government of Ceylon to proceed tothe Maidive Islands to ascertain whether a letter purporting to have beensent by the Sultan to the Lieutenant-Governor of Ceylon was a genuinedocument or not, caused the plaintiff, a British subject, to be arrested,upder *the belief that the plaintiff had created a disturbance among thepeople of the Maldivian State by interfering with its political affairs,and brought the plaintiff in the defendant's ship to the Colombo Harbour,and discharged him after two and a half hours’ detention there—
Held that, by reason of the detention in the Colombo Harbour, the.District Court had jurisdiction in respect of the plaintiff's claim fordamages for such detention, and that in assessing such damages the.antecedent acts of arrest at Maid and the conveyance of the plaintiff as a-prisoner thence might be taken into consideration.
Held further, that no man, not even the Sovereign, could arrest andimprison a British subject except under and by virtue of due processof law, and except in accordance with express legislation, and that the •arrest and detention of the plaintiff was contrary to the principles of the..,British constitution, and rendered the defendant liable in damages.
T
HE plaintiff, who alleged himself to be a native of Bombay!
and a British subject resident in Ceylon,' sued the defendant,who was Commander of H.M.S. “ Marathon, ” for the recovery ofBs. 75,000 as damages under the following circumstances:—Theplaintiff was appointed Private Secretary of His Highness theSultan of the Maidive Islands' through his Prime Minister, Moha-mad Didi, who came on an embassy to the Government of Ceylonin May, 1899. On the 22nd June, 1902, the plaintiff went onboard the ss. “ Vasna ” and landed at Maid on .the 24th June for the-purpose of taking up his appointment. The defendant, who hadalso gone to the Maidive Islands, arrested the plaintiff at Maid on.the 25th June, forcibly took him on board the “ Marathon ” and;conveyed him as a prisoner to Colombd, where the ship arrived at5.30 p.m. on the 27th, and the plaintiff, being detained on board-at the Colombo Harbour for about two and a half hours, wa?'released‘and allowed to go on shore about 8 p.m.
The defendant, objected to the jurisdiction of the Court, and;denied that plaintiff had been appointed Private Secretary toHis Highness the Sultan, and justified the,arrest and transport ofplaintiff to Colombo, alleging that he had unlawfully interfered'-'with the political affairs of the Maldives, and had thereby caused
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September 6.
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disturbances among the people, and that the defendant had actedin his capacity as a Commander in the Royal Navy for the purposeof preventing the plaintiff from causing such disturbances.
The learned District Judge (Mr. D. F. Browne) upheld the pleaof jurisdiction and dismissed the plaintiff’s action with costs. Atthe same time he observed that, if the Court had jurisdiction andfound that the defendant was not justified in his acts, he wouldassess the plaintiff’s damages at Rs. 3,000.
The plaintiff appealed. Appeal arguol August 22 and 23, 1904.
Walter Pereira(Samarawikrame * with him),' for plaintiff,
appellant.—The detention of the plaintiff in the Colombo harbour,though but for a short time, gave the District Court of Colombo-jurisdiction. Such detention was by itself a sufficient cause ofaction, and section 9 of the Civil Procedure Code gave jurisdictionto the Court within the jurisdiction of which the cause of actionarose The case cited by the learned District Judge (Ranatte v.Sirimal, 1 8. C. R. 5T) has no application. There, the cause ofaction is said to have arisen within the jurisdiction of more thanone Court; that is to say, the occurrences at several places,apparently, had to be put together to constitute the cause of action.Here, the detention in the harbour and arrest at Maid were nodoubt parts, so to say, of the same transaction, but the detentionsince the arrest was a continuing cause of action, and it was opento plaintiff to confine himself to the detention within the. harbourand claim damage in respect of that cause of action only, pleadingthe rest of the acts of the defendant merely in aggravation ofdamages. Then, as to the defendant’s right to arrest, the wholeproceeding was high-handed and illegal. Under the British consti-tution no British subject can be arrested even by the Sovereign,except under due process of law (Bowyer, On the Constitution, 136),and except as is provided by express legislation. The defendanthas pleaded the authority of the local Government for his act,but even the King’s command is no excuse for a wrongful act(2 Anson, On the Constitution, 43), and no servant of the Crown mayset up as defence to a wrongful ^act the express orders of the Crown,or orders implied by the allegation that what he did was an act ofState (An8., 477 Entick v. Carrington, 19 State Trials, 1030). TheActing Governor had no authority to give defendant powej to tarrest. His authority is to be ascertained from Letters Patent andRoyal Instructions, but these, even if sufficient, have not beenproduced in support of the alleged authority. ^See ’Arts. p. 279.)
Van Langenberg, for defendant, • respondent.—The detention inthe “harbour cannot be separated from the rest of the acts of the'
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Septembers.
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1904. defendant complained of. The plaintiff's cause of action, if any,September 6. ig the whole proceeding—the arrest and detention throughout puttogether, and he cannot be allowed to split his cause of actionmerely to give the District Court of Colombo jurisdiction. Thecase in 1 8. C. 22. 57 is in point. Where the whole cause of actionhas not arisen within the jurisdiction of any one Court, the Courthaving jurisdiction is that within the jurisdiction of which thedefendant resides. Any way, the acts of the defendant outside theharbour cannot be taken into consideration in assessing damage.They are clearly acts committed outside the jurisdiction of theCourt. The defendant acted i with perfect bond, fides. Circum-stances had arisen that satisfied him that the plaintiff shouldbe brought away. The defendant honestly believed that he wasmerely carrying out the wishes of the Ceylon Government, and hetreated plaintiff with kindness and consideration throughout.
Cur. adv. vult.
6th September, 1904. Middleton, J.—
This was an action to recover damages for the alleged illegalarrest and false imprisonment of the plaintiff by the defendanton board H.M.S. " Marathon, ” of which ship the defendant was thecaptain.
The facts of the case were that the plaintiff, a Parsee Britishsubject, had been appointed Private Secretary to the Sultan of theMaldives by the new Prime Minister of that Potentate, MohamadDidi, while on a mission from his Sovereign to the Governor ofCeylon in 1899. It would appear that the genuineness of theletter which the Prime Minister brought announcing the appoint-ment was doubted by the Lieutenant-Governor of Ceylon, thenacting as Governor, who commissioned the defendant to proceed inhis ship to Mal4 and ascertain from the Sultan in person itsauthenticity.
Certain members of the mission, including the Prime Minister,were given a passage in the defendant’s ship, but this privilegewas refused to the plaintiff, who proceeded in the B.I. ss. “ Yasna ”,arriving there on the 24th June, a fejv hours after the “ Marathon ”.
The plaintiff was received by the Sultan, and his appointmentconfirmed, but the next day*- he was compelled to go on board the
Mdrathon ” by an officer of the defendant’s, and, in spite of thewritten remonstrances* of the Sultan, conveyed by the defendant:back to Colombo, whereafter a few' hours’ detention in harbour,;while the defendant interviewed the Lieutenant-Governor, the1plaintiff was allowed to go ashore, parting on friendly terms andiwith the offer of presents on the part of the plaintiff with «thedefendant.
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The issues agreed upon were:—(1) Has this Court jurisdictionto entertain this action? (2) Was plaintiff on 25th June, 1899,appointed Private Secretary of His Highness the Sultan of theMaldives ?(3) Was plaintiff confined on board the “ Marathon ”,
and were the acts complained of in paragraph 3 of the plaintunlawful ?(4) Did the defendant unlawfully and forcibly detain
the plaintiff and keep him in confinement on board the ” Marathon ”at Colombo harbour and within the jurisdiction of this Court?
Did the plaintiff on the 25th June, 1899, unlawfully interferein the political affairs of the Maldivian States, and by such inter-ference cause a disturbance among t^e people of the said State anddanger to the said State, and did it become expedient that plaintiffshould be removed from the said State, and had the defendantpower and authority to cause the plaintiff to be arrested andbrought on board the Marathon ” and conveyed to Colombo?
Was it by command of Her Majesty Queen Victoria that thedefendant caused .the plaintiff to be arrested and brought onboard the said ship and conveyed to Colombo? (7) If so, isdefendant and dismissed the action.
The District Judge found for the defendant on the first issuefor the plaintiff on the second, third, fourth, and sixth issues, butdeclined to hold the defendant consequently responsible on theseventh issue; and on the fifth issue, while finding in favour ofthe plaintiff as regards disturbance, upheld the power of thedefendant and dismissed the action.
As regards the first issue, I find it difficult to follow the reasoningof the learned District Judge and the applicability of the case onwhich he relies in 1 S. C. B., p. 57.
The plaintiff was admittedly arrested by the defendant at Maleon the 25th June, 1899, taken on board the “ Marathon ” againsthis will, and deported thence on that ship in such a manner as tolimit his freedom of motion to the space enclosed by the sides ofthat vessel. He was brought into the harbour of Colombo anddetained there for some two and a half hours until about 8 p.m. onthe evening of the 27th June.
The defendant, in fact, in Lis evidence (pi 182) admits that hebrought plaintiff as a prisoner to Colombo, and that he would notpermit him to leave the ship till lie had seen the Lieutenant-Governor.'
If, therefore, the defendant had no warrant or authority in lawfor so acting, it is clear the arrest and imprisonment of the plaintiffwould constitute a cause of action under the law peculiar tothe British constitution, that no* man, ' not even the SovereignAuthority of the Empire, can arrest and imprison a British subject
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September f.
MlDDLETOSfp
J.
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1904. except under and by virtue of due process of law. (Anson OnSeptember 6. the Constitution, vol. II., p. 43; Boioyer On the Constitution,Middleton, V ■ 136).
I take it this cause of action would be a continuing one so longas the arrest of his liberty endured; arising in fact from momentto moment during the prolongation of the imprisonment.
It would therefore arise aB soon as the plaintiff was broughtprisoner within the jurisdiction of a competent British Court.The plaintiff was admittedly brought a prisoner into Colomboharbour within the jurisdiction,of the District Court of Colombo,and a cause of action for false imprisonment consequently arosewithin ,the jurisdiction of that Court (section 9, Civil ProcedureCocle).
In my view, therefore, the District Court of Colombo had juris-diction to hear and determine this case. If the plaintiff had beensent ashore from the ship outside the three-mile limit, the case, itseems to me, might have been different.
It is not suggested that the Sultan of the Maldives assented to,required, or authorized the arrest of the plaintiff, and counsel forthe appellant expressly limited his argument to the cause of actionarising within the jurisdiction of the Colombo Court.
No question therefore as to the lex loci of the original arrestseems to arise.
The findings of the District Judge, on the facts put in issue arepractically admitted to be correct by both sides, and it cannotseriously be contended that the plaintiff had not his personal libertyso far restricted on all sides by his detention on the “ Marathonas to amount to imprisonment in the eye of the law. Thedefendant has expressly denied (p. 160) that he had authority fromthe Ceylon Government to do anything but report whether theembassy was a genuine one and the letter a genuine sealed one,and has admitted (at p. 170) that his impression as to any excite-ment he saw among .the people might have had an erroneousorigin.
It has not, however, been argued that the District Judge waswrong in the finding that there wds no evidence to show thatplaintiff did actively create any disturbance.
The act of the defendant in arresting and deporting the plaintifffrom jllald to Ceylon cannot be supported on any legal grounds.There is no legal warrapl or process of law to sustain it, and plaintiffhad not committed ^ felony or even a misdemeanour or any offencefor which he could be arrested by a pqrson other than a peaceofficer without a warrant. It doe/ not purport to be an act of State,nor does the defendant suggest that he was acting on the orders ^>£
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any superior authority in the person of the Lieutenant-Governor of 1904.Cevion. (Pollock On Torts, p. 108-113. 6th edition). He may have Septembers.thought that the Lieutenant-Governor of Ceylon apparently did not Middletok,desire the presence of the plaintiff in the Maldives, inasmuch as thefacility of proceeding thither in the “ Marathon ” was denied him,and in arresting plaintiff under the circumstances the defendantmay have thought, and probably did think, that he was doingservice which would be acceptable to the Lieutenant-Governor.
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As an act of State it is difficult ^for me to see how it could beconstitutionally supported as against a British subject, althoughthe learned Judge of the District Court finds himself able to^do so.
The defendant stated in evidence that the Lieutenant-Governorapproved of his action. This may, however, only mean that theLieutenant-Governor was glad that the plaintiff had been removedfrom the Maldives, but was not prepared to support the defendant’saction in doing so.
It has been contended that if our judgment is against thedefendant we ought not, in awarding damages, to take into con-sideration what the respondent’s advocate calls the cause of actionarising out of the jurisdiction, but at the same time he argues, inmitigation of damages, the mild treatment of the plaintiff in theMaldives and on the ship by the defendant, and the bond fide beliefof the defendant ■ that he was acting politically right in removingthe plaintiff.
It was practically impossible to prove the detention of theplaintiff on the “ Marathon ” while within the jurisdiction withoutproving the antecedent oircuinstances which led to that detention,and these are therefore before the Court. If the circumstancesof the arrest had been attended with any brutality or ill-treatmenton the part of the defendant, it would, in my opinion, haveaggravated the plaintiff’s claim for damages, just as in the conversecase of consideration and kindness such circumstances ought tomitigate it.
The actual damage which the plaintiff sustained is not perhaps• eapable of any very accurate computation, and that he wasextremely well treated under the circumstances is shown by hisevidence and by the fact that he offered the defendant a case ofchampagne and other presents on leaving the ship.
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The District Judge says: ’“There is no evidence of injury toreputation or damage thereby, ” and that view* was not controvertedbefore us. and he assesses’ the damage at Rs. 3,000. According tothe plaintiff, says the District Judge (p. 220), the Sultan declined'to engage the plaintiff until this* trial was over, although on hisarrival plaintiff, says his appointment was confirmed (p. 80). It
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1904. would appear rather therefore as if the Sultan would not have-Septembers, continued to employ- the plaintiff as his Private Secretary againstMiddleton, declared wishes of the Ceylon Government, even if plaintiffJ. had proceeded back to Mal6 on his release in Ceylon, which therewas nothing to prevent him doing except the fear of anotherdeportation. I am inclined to think therefore .that the actualdamage sustained by the plaintiff was not of a serious character.
The 'injuria which the defendant has caused to the plaintiffrenders the former answerable in damages to the latter under theRoman-Dutch Law, as it is ofian. analogous character to the abuseof power contemplated in Voet, 47, 10, 42- See also Langermanv.„ Cornell, 7 Juta 200.
The defendant has committed an act which under the terms ofthe British constitution amounts to false imprisonment as againstthe plaintiff. This gives a cause of action under the Roman-DutchLaw applicable in this Colony to what are known as torts underthe English Law.
In my opinion, therefore; on the principle laid down in Hekhlev. fifoney (1765), 2 Wilson, 205, that an attack has been made onthe liberty of the subject, but, acting in a more moderate fashionthan was adopted by the jury and ratified, by the Court in thatcase, I would award the plaintiff the sum of Rs. 500 as damages.
The judgment of the District Court must be set aside, and.judgment entered for the plaintiff for Rs. 500 and costs in theCourt below and of this appeal.
Moncrejff, A.C.J.—I agree.