129-NLR-NLR-V-49-PESONA-Appellant-and-BABONCHI-BASS-Respondent.pdf
442
BASNAYAJCE J.—Pesona v. Babonchi Baas.
1948Present: Basnayake J.
PESONA Appellant, and BABONCHI BAAS, Respondent.
S. C. 16—M. C. Gampaha, 40,157.
Evidence—Child bom of wedded parents—Presumption of legitimacy—How it maybe rebutted—Meaning of non-access—Decision of Privy Council in appealfrom another country—How far binding—Evidence Ordinance, section 112.
The presumption of legitimacy created by section 112 of the EvidenceOrdinance can be rebutted only by clear and cogent evidence which admitsof no reasonable doubt.
Obiter.—(i.) The word “ access *’ in this section connotes not only actualintercourse but also personal access under circumstances which raise thepresumption of actual intercourse. Mere opportunity of intercourse undercircumstances which do not raise the presumption of actual intercourse isnot “ access ” within the meaning of this section.
(ii.) A judgment of the Privy Council in an appeal from some other countryis not binding on the Supreme Court until adopted by that Court.
Appeal from a judgment of the Magistrate, Gampaha.
H. W. Jayewardene, for the appellant.
S. W. Jayasuriya, for the respondent.
Cur. adv. vult.
July 30, 1948. Basnayake J.—
In this action the applicant-appellant (hereinafter referred to as theapplicant), one Handari Pedige Pesona, seeks to recover maintenance
BASNAYAKE J.—Pe&ona v. Babonchi Baas.
443
from the respondent in respect of a child called Somaratne, aged oneyear and four months. She alleges that the respondent is the father ofthe child and that it was bom during the subsistence of her marriagewith the respondent. The respondent denies that he is the father of thechild.
It appears that the applicant and the respondent were married in1938. They had three children of whom all but one Seelawathie died ininfancy. On May 8, 1943, the applicant left the respondent and livedwith her father, a well-known Ayurvedic Physician known as BanduaVeda. In September of that year she sued the respondent for main-tenance for herself and for her child Seelawathie. The respondentoffered to maintain her on condition of her living with him, but sherefused to go back to him on the ground that he was living in adultery.On account of her refusal, which the learned Magistrate appears to haveregarded as without sufficient reason, he ordered the respondent to makea monthly allowance of Rs. 5 in respect of the child only. The respondentfell into arrears with his payments and in April, 1945, he was arrested forfailure to pay maintenance for 10 months. He paid the money intocourt and was released. In May, 1945, the applicant asked for theenhancement of Seelawathie’s maintenance and the respondent wasordered to pay Rs. 7-50 per mensem. On November 23, 1945, therespondent instituted proceedings for divorce against the applicant onthe grounds of malicious desertion and adultery with an unknown man.OnMay 19, 1947, divorce was granted on the groundof malicious desertion..After the institution of the divorce action, but before decree nisi, thechild Somaratne was born, on March 10, 1946.
The applicant and the respondent were at the material time livingin the same neighbourhood. Their houses were about a quarter of a mileapart, there being only three other lands between them. The applicantalleges that she resumed her association with the respondent in 1945,when the respondent was the manager of the village Co-operative Storesto which she had to go for her rations. She alleges that during therelevant period they had intercourse at the Co-operative Stores, andthat about four months after she conceived the child Somaratne shelived with the respondent for three months. The respondent deniesthat he had intercourse with the applicant at the Co-operative Storesor that she lived with him. He says that when the applicant, somewhereabout October 7, 1945, attempted to force herself on him he had herprosecuted for house trespass and that she was discharged on her givingan undertaking not to go to his house again.
The applicant’s case rests on her evidence and the respondent’s onhis. Neither has called any evidence in support. The learned Magistrateaccepts the evidence of the respondent that he had no intercourse withthe applicant after she left him. He also holds that “ the respondent hadphysical opportunities of having access to his wife ” but rejects theapplicant’s claim on the ground that the respondent has rebutted thepresumption of paternity.
The question that arises for decision on the admitted fact of the birthof the child Somaratne during the continuance of the marriage of theparties to this action is whether the respondent has shown that he had
444
BASNAYAJCE J.—JPesona v. Babonchi Baas.
no access to the mother at any time when the child could have beenbegotten. Section 112 of the Evidence Ordinance (hereinafter referredto as section 112) declares :
“ The fact that any person was bom during the continuance of avalid marriage between his mother and any man, or within twohundred and eighty days after its dissolution, the mother remainingunmarried, shall be conclusive proof that such person is the legitimateson of that man, unless it can be shown that that man had no accessto the mother at any time when such person could have been begottenor that he was impotent. ”
The fact that the child Somaratne was bom during the continuance of themarriage of the applicant and respondent is therefore conclusive proofthat the child is the legitimate son of the respondent, unless the res-pondent can show that he had no access to the mother at any time whenthe child could have been begotten. The judgment of the learnedMagistrate indicates that he has not paid sufficient attention tosection 112. It was admitted that there was a valid marriage and that thechild Somaratne was bom during the subsistence of that marriage. Theapplicant in those circumstances was entitled to rely on section 112 andif neither party led any other evidence she was entitled to succeed.But she went further and gave evidence that she had intercourse with therespondent at or about the material period. The respondent was ableto do no more than deny the assertions of the applicant as to intercourse .
The meaning of conclusive proof is to be found in section 4 (3) of theEvidence Ordinance, which states :
“ When one fact is declared by this Ordinance to be conclusive proofof another, tie court shall on proof of the one fact regard the other asproved, and shall not allow evidence to be given for the purpose ofdisproving it. ”
Notwithstanding this definition of conclusive proof section 112 permitsevidence to be given for the purpose of disproving that the child is thelegitimate child of the man. The words of the section are “ unless itcan be shown ”. What is the degree of proof necessary to show that theman had no access to the mother at any time when the child could havebeen begotten ? Must the man prove that he had no access to the motherby a preponderance of evidence as in a civil case, or must he establish thefact beyond reasonable doubt as in a criminal case ? I shall now proceedto examine these questions.
think the word “ shown ” has been advisedly used by the draftsmanwho appears to have avoided in this context the better known expression“ proved ” which he has explained earlier (section 3) thus :
“ A fact is said to he proved when, after considering the mattersbefore it, the court either believes it to exist or considers its existence-so probable that a prudent man ought, under the circumstances of theparticular case, to act upon the supposition that it exists. ”
The word “ shown ” is a familiar expression and is a word which has awide range of meaning according to its context. As it is Dot defined inthe Evidence Ordinance it should be giyen a meaning appropriate to this
BASNAYAJKE J.—Peaona v. Babanchi Baas.
446
context. In view of the very strong presumption on the other side, Ithink it should be construed in the sense of “ to convince ”, “ to makeclear In any discussion of the degree of counter proof required undersection 112, the following words of Lord Langdale in Hargrave v. Hargrave-1cannot be overlooked :
“ Throughout the investigation, the presumption in favour of thelegitimacy is to have its weight and influence, and the evidence againstit ought, as it has been justly said, to be strong, distinct, satisfactoryand conclusive. ”
The man must make it clear to the court or convince it that he hadno access. He can do so only by clear and cogent evidence which admitsof no reasonable doubt. Stated in another form, the man must establishbeyond reasonable doubt that he is not the father of the child. The viewI have formed is in keeping with the previous decisions of this Court.
In Sopi Nona v. Marsiyan2 Grenier A.J. calls the proof necessaryto rebut the presumption counter proof of an overwhelming character ”,and in the case of Menchy Hamy v.'Hendappoo 3 it is called c' cogent andalmost irresistible proof of non-access in, a sexual sense ”.
This view finds support from the decisions under the correspondingprovision of the Indian Evidence Act. The view has bean expressed that“ very cogent evidence is necessary to rebut the presumption raised bysection 112 of the Indian Evidence Act 4 In the case of Nga Tun E. v.Mi Chon, 6 Sir George Shaw goes even further and says “ to prove non-access, the evidence must be such as to exclude all doubt ”.
This principle of presumption of legitimacy rebuttable ony by evidenceof the highest degree appears to be common to the legal systems of allEnglish speaking countries. It is stated in the Model Code of Evidence 6in the following form :
“ Whenever it is established In an action that a child was bom toa woman while she was the lawful wife of a specified man, the partyasserting the illegitimacy of the child has the burden of producingevidence and the burden of persuading the trier of fact beyondreasonable doubt that the man was not the father of the child. ”
There seems to be another reason for requiring the highest degree ofproof in regard to non-access. Strong reasons of public policy requirethat a child born in wedlock should be treated as legitimate. The questionof access should therefore be approached in the manner laid down byLord Chancellor Eldon in Head v. Head 7 :
“ Whenever it is necessary to decide that question great care mustbe taken, regard being had to this, that the evidence is to be receivedunder a law, which respects and protects legitimacy, and does notadmit any alteration of the status et conditio of any person, exceptupon the most clear and satisfactory evidence. ”
9 Beov. 552 at 555 ; 50 E. R. 457 at 458.
(1903) 6 AT. It. R. 379.
(1861) Ramanathan’a Reporta 1860-62. p. 90.
Janglia v. Jhingrya (1921) A.I.R. Nagpur 71.s 16 Criminal Law Journal of India, p. 84.
3 Model Code of Evidence of the American Law Institute, p. 313.
(1823) Turn dk R. 138 at 141 ; 37 E.R. 1049 at 1060.
446
BASNAYAK.E J.—Pesona v. Babonchi Baas.
Another aspect of the matter that one must bear in mind is that theman’s defence carries with it the implication of adultery by the womanand involves the bastardization of a child who is no party tothe proceedings.
The standard of proof should therefore be the same as that requiredin the case of a matrimonial offence. That standard has been laiddown recently by Lord Merrinian 1 in the following terms :
“The same strict proof is required in the case of a matrimonialoffence as is required in connection with criminal offences properly socalled. ”
Justices Hodson and . Barnard have, in the case of Ginesi v. Ginesi 2adopted Lord Merriman’s view.
. I now come to the question whether the husband may himself giveevidence of non-access in proceedings under the Maintenance Ordinance-In England and other countries where principles of English law prevail,the husband is not even permitted to testify to non-access 3. Under theRoman-Dutch system the rule that the husband is not competent totestify to non-access prevails in a modified form 4. It is thus stated byKotze J.A. 5
“ While the Roman-Dutch writers held the presumption pater estquem nuptiae demonstrant to be rebuttable, they on the other handadhered to the principle that neither the father nor the mother couldbastardise their issue. But this latter principle appears to have beenconfined to cases where the child would be directly prejudiced by thedeclaration or evidence of the parent. ”
In India, opinion was at one time divided, but the accepted view nowseems to be that the English rule applies only to divorce proceedingson account of the provisions of the Indian Divorce Act, and that inmaintenance proceedings the parents are competent witnesses on thequestion of non-access. Our own Evidence Ordinance contains no rulethat the parents are not competent witnesses on the question of non-access when it arises in maintenance proceedings, but in the case ofSopi Nona v. Marsiyan (supra) Layard C.J. states at page 381 :
“ I desire here to point out to the Magistrate that it has beenrepeatedly held by this Court that neither the husband nor the wifeis a competent witness as to the fact of their having or not havingsexual intercourse with each other, where the legitimacy of the wife’schild is in question. ”
This expression of opinion is irreconcilable with the provisions of section120 of the Evidence Ordinance, which enacts that in all civil proceedingsthe parties to the suit shall be competent witnesses, and may be regardedas over-ruled by Jane Nona v. Leo. 6 It does not appear from the reportthat the other Judges shared the opinion of Layard C.J., nor have Ibeen able to find any case decided since 1895, the year of our Evidence
1 Churchman v. Churchman (1945) 2 All. E.R. 190 at 195.
(1947) 2 All. E.R. 438.
3 Goodrlght ex dim Stevens v. Moss. 2 Coiop. 591 at 594.
Russell v. Russell (1924) A.C. 687.
Surmon v. Surmon (1926) A.D. 47 at 53.
Surmon v. Surmon (1926) A.D. 47 at 53.
(1923) 25 N. L. R. 241.
BASNAYAKE J.—Pesona v. Babonchi Baas.
447
Ordinance, which expresses the same view. The cases decided beforethat year proceed on the English Law of Evid nee which was introducedby section 2 of Ordinance No. 3 of 1846, and was our law till the enactmentof the Evidence Ordinance in 1895.
Under our law therefore the husband is a competent witness, and mayhimself give evidence that he had no access to the mother at the niaterialtime. In the instant case, as I have already stated, the respondent’sevidence is unsupported, although it appears from his evidence that, ifwhat he is saying is true, there are many witnesses who could have beencalled to corroborate him. In assessing his uncorroborated testimonyone has to bear in mind the fact that he is an interested witness -who isseeking to gain the advantage of not paying maintenance.
A very important circumstance, which seriously impairs the value ofthe respondent’s evidence, is the fact that in the divorce action which hebrought against the applicant he alleged adultery. The applicantdenied it and called upon the respond nit to prove it. He failed to do soand was granted a divorce on the ground of malicious desertion only. Inview of the very high standard of proof required to establish non-access,the respondent’s testimony alone cannot prevail over the conclusivepresumption in favour of legitimacy reinforced, as it is, by the applicant’sown testimony. The appeal must therefore succeed.
I shall now examine the submission of learned counsel for the applicantthat the word “ access ” in section 112 means opportunity of inter-course. He relies on the case of Ranasinghe v. Sirimanna1 wherein MyLord the Chief Justice following the case of Karapaya Servai v. Mayandi 2,which is a decision of the Privy Council in an appeal from the High Courtof Rangoon, holds that the word “access” in section 112 means no morethan opportunity of intercourse. Learned counsel submits, on theauthority of the case he relies on, th.it the decision of the Full Bench ofthis Court in Jane Nona v. Leo (supra) has been superseded by the•decision of the Privy Council. In Jane Nona v. Leo it was held that theexpression ''access” in section 112 means “ actual intercourse ” andnot opportunity for intercourse. The two decisions are irreconcilable.
I find myself unable to uph >ld the submission of learned counsel. Lithe first place, there is nothing to show that the observations ofSir George Lowndes are not obiter. The indications are that they are, forhe says:
“ It was suggested by counsel for the appellants that ‘ access ’ inthe section implied actual cohabitation, and a case from the Madrasreports was cited in support of this contention. Nothing seems toturn upon the nature of the access in the present case, but their Lordshipsare satisfied that the word means no more than opportunity of inter-course.”
Furthermore, a decision of this Court cannot, in my view, be regarded as•over-ruled by the Privy Council until it is considered by that body and
1 (1946) 47 N. L. B. 112.
* (1934) A. I. R. (Privy Council) 49.
448
BASNAYAKE J.—Pesona v. Babonchi Baas.
pronounced to be not a true statement of the law of this country. I sayso with great deference to My Lord the Chief Justice. When it has noteven been referred to before the Board and the Board has not given itsmind to the decision, it cannot be said to be over-ruled. The word over-ruled, when used in connexion with a decision of a court, carries with itthe implication that a superior tribunal has considered that decision andset aside its authority as a precedent by declaring a different doctrine tobe the true exposition of the law on the subject.
Section 51 of the Courts Ordinance declares that the decision of aBench constituted in the manner prescribed shall in all cases be deemedand ta,ken to. be the judgment of the Supreme Court. This Court hasat no time decided that one statutory Full Bench may over-rule thedecision of another Full Bench. In fact the trend of tho decisions of thisCourt is that one Full Bench cannot over-rule another and that a decisionof the Full Bench is law until over-ruled by the Privy Council or until thelaw so declared is altered by the legislature. Jn the case of Emanis v.Sadappu 1 Bonser C.J. discussing the question “ Is a solemn and unani-mous decision of the collective Court on a question of law delivered in1862—a decision which followed previous decisions of this Court—to betreated as a binding authority or not ? ”, says :
“ Even if the Court as at present constituted was unanimously ofopinion that the original decision was wrong, it would, I conceive,be out of our power to alter the law as laid down by our predecessors.That can only be done by the Privy Council reversing these decisions,or by an enactment of the Legislative Council.”
In the case of Perera v. Perera 2 Layard C.J. observes
“ I consider that this Court sitting collectively has no power toover-rule the previous judgment of a Collective Court.”
In the later case of Jane. Nona v. Leo (supra), Garvin J. states at page 250 :“ This Court has always acted on the principle that a judgment of aFull Bench of this Court, at whatever point in its history such ajudgment was delivered, was to be regarded as final and binding onevery Court in this Island, unless and until the law declared by suchjudgment was over-ruled by His Majesty’s Privy Council or alteredby the Legislature.”
I have endeavoured to explain why I think Jane Nona v. Leo has notbeen over-ruled by the Privy Council. Undoubtedly, so long as the rightof appeal to His Majesty remains, the Judicial Committee of the PrivyCouncil may, in the exercise of its jurisdiction, set aside the decisions ofthis Court but, in my opinion, I say so with respect, it may do so onlywhen it is coirsidering an appeal from a judgment of this Court. Indeciding an appeal from another country the question of over-ruling thedecisions of this Court does not arise. This Court has, at all times,regarded decisions of the Privy Council with the highest sanctity. Itsdecisions in appeal from this country are binding on this Court. In all
*(1897) 2 N. L. JR. 261.
* (1908* 7 Jd. L. B. 173 at 180.
B ASXAYAJvE J,—Pesotia v. Babonchi Baas.
449
cases in which the Bench is unfettered by any previous binding decisionof this Court, it follows the decisions of the Privy Council though suchdecisions be in appeals from other countries. But to say that a decisionof the Privy Council in an appeal from another country has the effect ofautomatically changing our law, is a proposition for which no authorityhas been cited and for which I can find no support hi the case books.In my view such a Privy Council decision (hereinafter referred to where-ever convenient as a non-binding Privy Council decision) does not bindthis Court and does not have the force of binding authority in thiscountry unless and until it is adopted by this Court. In adopting sucha decision this Court will be guided by its own cursus curiae. A singlejudge is free to follow such a non-binding Privy Council decision inpreference to a single judge decision of this Court, but in my view he isnot free to follow such a decision in preference to a decision of two ormore judges of this Court. Similarly, in my view, two judges may followa non-binding Privy Council decision in preference to a decision of twojudges of this Court but cannot prefer such a decision to a decision ofmore than two judges, nor can a non-binding Privy Council decision bepreferred to a decision of a Full Bench constituted under section 51 of theCourts Ordinance even though such Bench is not composed of all thejudges of this Court. I wish to guard myself against being understoodas saying that one judge may over-rule the decision of a single judge orthat two judges may over-rule a decision of two judges or that a Benchcomposed of a number of judges may over-rule the decision of anotherBench consisting of an equal number. It is my view that one Benchcannot over-rule another of equal status. As I have observed earlier, adecision of this Court can be over-ruled either by the Privy Council inappeal from this country or by a Bench of this Court having greaterauthority than the one whose decision is over-ruled. In this connexionI should not omit to refer to the following observations of Sir AntonBertram C.J. in Jane Nona v. Leo (supra) :
e' I would still hold that it would not be competent for a bench ofthree judges to over-rule the opinion of a previous bench of threejudges just as, in my opinion, it is not competent for a bench of twojudges to over-rule a judgment of two judges (though I am awarethat my brother Ennis dissents from this opinion).”
Although there is a dearth of authority on the question before me,instances in which Dominion Courts have not followed Privy Councildecisions in appeal from Courts of other countries are not unknown1.The Court of Appeal of Alberta preferred a decision of the House of Lordsin London Joint Stock Bank v. Macmillan2 to the view of the PrivyCouncil in Colonial Bank of Australasia v. Marshall 3. The same Courtadopted the views of the Court of Appeal in England and the Irish Courtsin preference to the Privy Council decision in Victorian Railways Com-missioners v. Coidtas 4. In the case of Hare v. Trustee of Heath5 to which,
M1931) D. L. R. (Canada) 256 ; (1933) (1) D. L. R. (Canada) 490.
*(1918) A. C. 777.
(1906) A. C. 559 at 568.
* 13 A. C. 222.
5 (1S84) 3 Cape S. C. Reports 32.
450
BASNAYAJCE J.—Pesona v. Babonchi Baas.
I was referred by Mr. S. W. Jayasuriya on behalf of the respondentthough he did not appear at the argument, De Villiers C. J. observes :
“ The case of Tatham v. Andree was decided by the Privy Council in1863 on appeal from the Supreme Court of Ceylon when the Roman-Dutch Law also prevails ; but I ought here to observe that if thedecision of the Privy Council in that case had been inconsistent withthe rules laid down and recognised in this Court for half a century, andif those rules appeared to me to carry out the true principles of theRoman-Dutch Law, I should not consider the decision of the PrivyCouncil as binding upon this Court in the present case.”
The High Court of Australia has gone even further than the SupremeCourt of South Africa when it refused, in the case of Baxter v. Commis-sioners of Taxation1, to follow the decision of the Privy Council in Webbv. Oulrim2 on leave granted by the Supreme Court of Victoria whereinthe Privy Council disagreed with the view taken by the High Court inDekin v. Webb 3. The question as to the view that should prevail in thecase of conflict between a decision of the Privy Council in an appeal fromthe Supreme Court of Gold Coast and a decision of the Federal Court,arose in the Nagpur High Court in the case of Bhagwati Charon Shuklas/o Ravishankar Shukla v. Provincial Government, G. P. dk Berar4 butthe Court expressed no precise view on the matter.
In the case of Sunderdas Vishendas and others v. Governor-General inCouncil and another5 O’Sullivan J. in dealing with the argument ofcounsel that the decision of the Privy Council in an appeal from anothercountry is binding on him says :
“ He refers to S. 212, Government of India Act, which is in theseterms :
‘ The law declared by the Federal Court and by any judgment ofthe Privy Council shall, so far as applicable, be recognised as bindingon, and shall be followed by, all Courts in British India, and so far asrespects the application and interpretation of this Act or any Order inCouncil thereunder or any matter with respect to which the FederalLegislature has power to make laws in relation to the State, in anyFederated State.’
and contends that I am bound by the judgment of the Privy Council.He fortifies his argument by pointing out that although the decisionof the Privy Council was not on an appeal from India, nevertheless itwas decided on an identical rule of procedure …. I am of theview that S. 212 must be construed as referring only to judgments ofthe Privy Council in Indian appeals. The Sovereign has retained theprerogative of being the supreme tribunal of justice in the Empire andthe -ultimate right of appeal from all parts of the Empire is thereforeto the King in Council. The Judicial Committee of the Privy Councilis an imperial body representing the Empire and the right ofappeal to it has been defined and regulated in the case of the Dominions,colonies, dependencies and possessions by various statutes, Letters
111907) 4 C. L. R. (Australia) 1087.
*(1907) A. C. 81.
{1904) 1 C. L. R. (Australia) 585.
(1947) A. I. R. Nagpur 1.
(1947) A.I.R. Sind 154 at 159.
BASXAYAKE J.—Pesona v. Babonchi Baas.
451
Patent and Orders-in Council. Laws are not uniform throughout theEmpire and the Privy Council decides appeals in accordance with thelaws in force at the places from which they come. It seems to followthat the decision of this supreme tribunal on an appeal from one part ofthe Empire, regulated as such appeal would be by a particular statute,Charter or Order in Council, and decided in accordance with a particularset of laws, is not and cannot be binding on the Courts in another part ofthe Empire.”
In a later case, Mahomed Mehdi and another v. Governor-General inComvcil and another ! Tvabji C.J., delivering the judgment of the FullCourt of Sind, expressed disagreement with O’Sullivan J. as to the effectof section 212. He sa3's :
“ I am unable, however, to agree with the view of O’Sullivan J.cited above, that S. 212, Government of India Act, makes a decision,of the Privy' Council binding on the Ind'an Courts only when thedecision was made on an appeal from India.”
It must be remembered that the Privy Council, unlike other appellatetribunals, is not bound by precedent. It reserves to itself the right ofgiving advice inconsistent with previous advice in another case or evenin the same case. It will reconsider points decided by itself in othercases. The Marquess of Reading, in dealing with the argument ofcounsel that the Judicial Committee was bound by its own precedents,observes in the case In re Pay ment of Compensation to Civil Servants underArticle 10 of Agreement for a Treaty betioeen Great Britain and Ireland 2 .-
“ At the outset of the hearing in this reference, Mr. Dickie, whoattended their Lordships on behalf of the Council of TransferredOfficers Protection Association, argued that the Board is bound inlaw, and without examination, to follow the decision in the appealin Wigg's case [(1927) A.C. 674], whether they considered it to beright or wrong. He maintained that if it was wrong, nothing short ofan Act of Parliament could rectify it. Their Lordships are unable tohold that this proposition stated in such an extreme form is established.It may well be that the Board would hesitate long before disturbing asolemn-decision by a previous Board, which raised an identical or evena similar issue for determination ; but for the proposition that theBoard is, in all circumstances, bound to follow a previous decision, asit were, blindfold, they are unable to discover any adequate authority.”
One cannot take it for granted that in construing section 112 thePrivy Council will automatically follow what appears to be an obiterdictum in the Rangoon case, especially as there are certain differences,which are not entirely negligible between the corresponding section ofthe Indian Act and our section., When one is considering observationsoccurring in a judgment of the Privy Council one should heed the words i
i (1948) AJ.B. Sind 100 at 102.
» (1929) A. C. 242 at 247.
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BASNAYAK33 J.—Peaona v. Babonchi Boas.
of caution of Sir George Rankin1 whose authority to speak on the subjectis beyond question :
“ The danger in the case of the Judicial Committee is that the
Courts, e.g., in India, may regard everything in the judgment as
equally authoritative with the ratio decidendi.”
I shall now discuss the authorities cited by learned counsel for theapplicant. He referred me to the eases of Trimble v. Hill2 and Robinsv. National Trust Co. Ltd. and others3 and drew my attention to note (r)to paragraph 558 of Volume 19 of Halsbury’s Laws of England, page 258.I find myself unable to regard Trimble v. Hill (supra) as applying to thesituation that arises in consequence of the conflict of opinion between theFull Court of this Island and the Privy Council decision in the Rangooncase. It applies to a different situation which is explained in the opinionof Sir Montague E. Smith at page 344. Since 1879 the relationship ofthe Dominions to Britain has altered considerably and I am not at allsure that today the view expressed in Trimble v. Hill (supra) that theDominion Courts should without question regard themselves as boundby the English Court of Appeal will be accepted either in Britain or in theDominions. It is apparent from the case of Robins v. National TrustCo. Ltd. and others (supra) that by 1927 the attitude towards DominionCourts had changed, for Viscount Dunedin observes at page 519 :
“ These propositions will be found to be settled by the followingcases : Barry v. Butlin (1838) 2 Moo. P. C. 480 ; Croos v. Croos (1864)3 Sw. & Tr. 292 ; Tyrrel v. Painton (1894) P. 151.
Now their Lordships will assume that these cases are right. Thereason for this form of expression is that the appellant representedthat the Appellate Division of the Supreme Court of Ontario in thecase of Larocque v. Landry [(1922) 52 Ont. L.R.479] had taken anotherview, in that it held that once probate was granted, though only incommon form, the onus was on him who sought to set it aside, and theCourt in this case held itself bound by that case. It is questionablewhether that is the result of the decision. But assuming that it is,when an appellate Court in a Colony which is regulated by English lawdiffers from an appellate Court in England, it is not right to assume thatthe Colonial Court is wrong. It is otherwise if the authority in Englandis that of the House of Lords. That is the supreme tribunal to settleEnglish law, and that being settled, the Colonial Court, which is boundby English law, is bound to follow it. Equally of course, the pointof difference may be settled so far as the Colonial Court is concernedby a judgment of this Board.”
Since the enactment of the Statute of Westminster in 1931 there hasbeen a marked tendency in the Dominions towards judicial autonomy4.
In certain departments of law, the principles stated by ViscountDunedin will be applicable even to this country. I have in mind the
1 Cambridge Law Journal, Vol. 7, p. 19.
*(1879) 5 A. C. 342.
(1927) A. C. 515.
A. O. of Ontario <fe others v. A. O. of Canada tfc others (1947) 1 All. E. B. 137.
British Coal Corporation v. R. (1935) A. C. 500.
BA.SNAYAJ£E J.—Peaona v. Babonchx Boos.
453*
Civil Law Ordinance, sections 2 and 3 of which provide that in thebranches of law therein specified the law to be administered in this Islandshall be the same as would be administered in England in the like caseat the corresponding period, if such question had arisen or had to bedecided in England. In the decision of questions arising on the branchesof law enumerated in those sections the decisions of the Courts of Englandand no other must be resorted to for the purpose of ascertaining theEnglbh law at a given time. The decision of the Privy Council in appealfrom other countries cannot be accepted on such questions in preferenceto the authoritative decisions of the Courts of England.
I have now to examine note (r) in Halsbury. It reads :
“ A decision of the Judicial Committee of the Privy Council, whenit is the highest court of Appeal from the Courts of the Dominions andColonies, is binding on all such Courts even though the decision canno longer be regarded as a guiding authority in England, Scotland, orIreland, unless the decision is on a subject governed by English lawand there is a subsequent decision of the supreme tribunal to settleEnglish law, namely, the House of Lords, in which the House differsfrom the Judicial Committee of the Privy Council and points out inexpress terms in what respect the Board erred ; in such circumstancesit is the duty of the Courts overseas to apply the law as settled by theHouse of Lords. The view was expresse'd in Negro v. Pietro’s BreadCo. [(1933) O.R- 112] that a decision of the Judicial Committee of thePrivy Council is binding only on the Courts of the Dominion,dependency or colony, from which the appeal is taken, but this view,it is submitted, is wrong.”
I am unable to accept the view expressed by the learned author ofthis note in his concluding words, nor can I give my unqualified assent tothe proposition that the decisions of the House of Lords should, withoutexception, prevail over the decisions of the Privy Council on a subjectgoverned by English law. A decision of the Privy Council in an appealfrom this Court is binding on it, but a decision of the House of Lords isnot. So also in a matter in which our law is by statute declared to bethe same as the English law a decision of the Privy Council in appealfrom this Court is binding on it but a decision of the House of Lords onthe same question is not. The observations of Viscount Cave in Nadanv. The King1 on the history and functions of the Privy Councilindicate to my mind that each jurisdiction from which an appeal lies toHis Majesty in Council must be regarded as a separate entity and that adecision in appeal from one jurisdiction has not the effect of automaticallyover-riding the decisions of the superior tribunals of all the other countrieswhich are irreconcilable with that particular decision of the Board.
It is noteworthy that “ the appeal to the Privy Council is not as ofright; it is an appeal to the King’s discretion, and it is founded on apetition that he should exercise his discretion2 ”. Appeals to the PrivyCouncil are' regulated by the Judicial Committee Acts which providefor the making of Orders in Council regulating the admission of appeals1 (1926) A. G. 482 at 491.a Hull v. McKenna (1926) I. R. at p. 405.
454
BASNAYAKE J.—Pesona v. Babonchi Baas.
from His Majesty’s possessions. Each country from which an appeallies to the Privy Council has its own machinery for regulating appealsto it. It is, of course, always open to any country to declare by legislation _that all Privy Council decisions shall be binding on its Supreme Court.In such a case there can be no question that all decisions are binding.But we have not done so. The Privy Council in its appellate jurisdiction isnot an appellate Court in the sense in which it is in time of war in mattersrelating to Prize. As the supreme appellate tribunal in Prize its decisionswould bind all subordinate Prize Courts throughout the Commonwealth,but to say that its decisions when advising His Majesty in the exerciseof his prerogative have the like force and effect automatically in allparts of the Commonwealth is to ignore the very basis on which appealsto His Majesty in Council rest and the law relating to the constitution andcursus curiae of the Supreme Court of each Dominion. In moderntimes the tendency of the Dominions has been to restrict and even toabolish appeals to the Privy Council1. The principle that each DominionCourt is automatically bound by every decision of the Privy Councilregardless of the source from which the appeal has originated, is onethat cannot be pressed without seriously impairing the judicial autonomyof the Dominions. Another aspect of the matter which is not entirelyirrelevant to the subject under discussion is that the opinion expressed bythe Privy Council is advice tendered to His Majesty and has no bindingforce until enacted by a prerogative Order in Council which is a LegislativeInstrument applicable to the country in respect of which it is made. TheOrder is generally to the following effect:—
“ Whereas there was this day read at the Board a Report from the
Judicial Committee of the Privy Council dated the day of
19 in the words following, viz. ”. (The words
which follow are not the judgment or reasons for the report, butcontain after one or more recitals the decision and directions recom-mended by the Committee. The Order then continues 🙂 “ HisMajesty having taken the said Report into consideration was pleasedby and with the advice of his Privy Council to approve thereof andto order as it is hereby ordered that the same be punctually observedand obeyed and carried into execution. Whereof, etc., etc. ”
The above are the reasons for my opinion that Jane Nona v. L/eo (supra)has not been over-ruled by Karapaya Servai v. Mayandi (supra) andthat it contains our law as to the meaning of “ access ” in section 112 ofthe Evidence Ordinance.
If I may venture, in view of the apparent conflict of opinion betweenthe Privy Council and the Full Bench of this Court, to express, in allhumility and with the greatest respect, my own opinion as to the meaningof the word “ access ” in section 112, it seems to me that the Full Benchhas given the word “ access ” a meaning too restricted, and the Privy
1 Section 106, South Africa Act, 1909.
Article 66 of the Irish Free State Constitution.
Section 74 Commonwealth of Australia Act, 1900.
Canadian Statutes 23 <Sc 24 Qeo. o, c. 53, s. 54.
Sill 9 of Fourth Session of the Eighteenth Parliament of Canada.
An Act to amend the Supreme Court Act.
Section 17, Canadian Statutes, 23 dk 24 Geo. 5, c. 53.
Van Reyk v. Sahibjan.
455
Council a meaning too wide. To my mind Lord Eldon’s explanation ofthe opinion of the judges in the Banbury Peerage case contains th6 trueexposition of the word “ access He says1:
“ I take them to have laid down, so as to give it all the weightwhich will necessarily travel along with their opinion, although not ajudicial decision, that where access according to the laws of nature,by which they mean, as I understand them, sexual intercourse,has taken place between the husband and wife, the child must betaken tobethe child of the married person, the husband, unless on thecontrary it be proved, that it cannot be the child of that person.Having stated that rule, they go on to apply themselves to the ruleof law where there is personal access, as contradistinguished fromsexual intercourse, and on that subject I understand them to havesaid, that where there is personal access, under such circumstancesthat there might be sexual intercourse, the law raises the presumptionthat there has been actually sexual intercourse, and that that presump-tion must stand, till it is repelled satisfactorily by evidence that therewas not such sexual intercourse.”
It appears from the above statement that the word “access” connotesnot only actual intercourse but also personal access under circumstanceswhich raise the presumption of actual intercourse. Mere opportunityof intercourse, under circumstances which do not raise the presumptionof actual intercourse, in my view, is not “ access ” within the Meaning ofsection 112.
For the reasons given in the earlier part of my judgment, this appealis allowed with costs. The case will go back so that the learned Magistratemay determine the monthly allowance that should be'ordered.
Appeal allowed.