Phipps v. Bracegyrdle
Present; Dalton A.C.J. and Drieberg J.
Application for Revision or in the alternative for Restitutio in
PHIPPS v. BRACEGYRDLE.
D. C. Colombo (Special) No. 1,752.
Restitutio in integrum—Relief from order in judicial proceedings—Mistake
committed through lack of knowledge of facts—No proof of damage.
Belief by way of restitutio in integrum from the effect of an order injudicial proceedings will not be granted where the legality of such orderis not questioned.
A party to an action is not entitled to relief from any mistake whichhe has made through lack of knowledge of facts available to him.
Restitution is not allowed unless the applicant can show that he hassuffered actual damage.
DRIEBERG J.—Phipps v. Bracegyrdle.303
HIS was an application for revision or in the alternative for restitutioin integrum.
Choksy, for petitioner.
Cur. adv. vult.
June 20, 1933. Drieberg J.—
The petitioner who is the plaintiff in this action obtained judgment;against the defendant in England and having registered it here underOrdinance No. 41 of 1921 obtained writ of execution for Rs. 13,968.11 andjcosts. The fiscal seized and advertised for sale “ all that undividedone-third part or share of and in all that and those the estate plantationsand premises called and known as Mayfair comprising the following!allotments of land adjoining each other and forming one property, andwhich from their situation as respects each other can be included in onesurvey, to wit:—there follows in the sale notice a detailed descriptionof six allotments, the extent of each being given, all of which were saidto appear in the survey plan No. 521 of September, 1906, made by Daniel
Jayatileka, Surveyor. These six allotments aggregate 151 acres26 perches. At the sale this was bought by the petitioner who bid upto the amount of his claim, Rs. 14,000, for which he had an order ofcredit.
The sale was confirmed on January 18, 1932, and when the fiscal’sconveyance was about to be drawn, it appeared that Mayfair estate was213 acres 3 roods 29 perches in extent. J. L. Booker, deceased, was theowner of this undivided one-third of Mayfair estate, and the administratorof his estate conveyed his interest in it to the defendant by two deeds.By No. 804 of September 9, 1924, he conveyed a third of the six allotmentsamounting to 151 acres 26 perches, shown in plan No. 521 and bydeed No. 184 of July 7, 1926, he conveyed the intestate’s interest inanother allotment of 62 acres 3 roods 3 perches, shown in plan No. 520of the same date and by the same surveyor as plan No. 521. Thepetitioner’s proctors wrote on August 4, 1931, before the seizure, whichwas in September, to Messrs. F. J. & G. de Saram for a detailed descriptionof Mayfair estate. Messrs, de Saram were not, so far as I can see, theproctors for the defendant in this action, but they say that as proctorsfor the owners of the estate they had the title deeds from time to timein their possession. When this inquiry was made, the title deeds werein the Chartered Bank and from the material before them Messrs, deSaram mentioned only the deed No. 804 which dealt with the six allot-ments of 151 acres 26 perches. It was only when there was a furtheroxamination of the title to prepare the conveyance that the petitioneT’sproctors were aware of the other allotment of 62 acres 3 roods’ 3perches.
The petitioner now asks that this Court should in the exercise of itspowers of revision or of granting restitution set aside all the proceedingsin execution and allow him to commence them again by applying forexecution and seizing and selling the defendant’s interests in Mayfairestate of 213 acres 3 roods 29 perches. The reasons for this applicationare that the petitioner’s„proctors, the petitioner is in England, believed
DRIEBERG J.—Phipps v. Bracegyrdle.
. that the fiscal had seized and sold a one-third share of Mayfair estate.The superintendent of the estate says that he indicated to the fiscal’sofficer the boundaries of the whole estate. The deputy fiscal says that inseizing the six allotments he believed he was dealing with the whole of theestate. Mr. Raffel, the proctor who represented the petitioner at thesale, says that he believed that what was being sold was a one-third shareof Mayfair estate. There is no doubt that this is so, but with the veryimportant qualification that they thought at the same time that it wasa Mayfair estate not of 213 acres but of 151 acres, and it is clear that thepetitioner assessed its value and bid for it on that basis. In factMr. Raffel concedes this, for he says that “ the sale was conducted on thefooting that what was being sold was an undivided one-third share ofMayfair estate and I bid up to Rs. 14,000 under the full conviction andthe belief that the whole of Mayfair estate was comprised of the sixallotments of land described on the sale report”. Mr. Raffel says thathe had instructions from the petitioner’s proctors to buy the undividedshare of the petitioner in Mayfair estate and that he would not havebid at all if he knew that what was being sold was not the defendant’sshare of the whole of Mayfair estate. The particulars of the biddingat the sale are not before me, but Mr. Raffel’s statement that hewas ultimately declared the purchaser suggests that there were otherbidders.
This case is not one in which we can exercise our powers of revision,for no question arises regarding the legality or propriety of any order orproceedings of the District Court.
The form of relief known as restitutio in integrum was primarily oneintended for relief from contracts on the ground of minority, error, fraud,and duress. The object of the action was to recover any property lostthrough the contract, or compensation in damages, or damages generally,but actual damage had to be proved (Maasodorp’s Institutes of Cape Law1907 ed.), Vol. Ill, pp. 58 and 67. Relief is also granted from the effectof an order in judicial proceedings. Relief was granted from orders injudicial proceedings on the ground of absence from the country (Maasdorp(supra) pp. 58 and 70), and has been granted in South Africa in othercases of default (Nathan’s Common Law of South Africa (2nd ed.),Vol. II., pp. 766—769).
But apart from such cases it is granted for reasons similar to those incases of contract. It can be granted where a decree has been obtainedby fraud (Wood-Renton C. J. in Buyer v. Eckert' and Jayasuriya v. Kotela-wala’), also where a proctor has consented to judgment against theinstructions of his client (Silva v. Fonseka* and Narayan Chetty v.Azeez'), for in such cases it could be said that there was in reality noconsent. On the same principle I can understand, though there is noreported case on the point, relief being granted on the ground that bothparties have agreed to a settlement under a mistake of fact, for as in thecase of contract the element of consensus would be absent. It would be adangerous extension of the law to hold that a party to an action can
> (1910) 13 N. L. R. 371 on 375.3 (1922) 23 N. L. R. 447.
2 (1922) 23 N. h. R. 511 on 512.4 (1921 23 V. 7,. R. 477.
DRIEBERG J.—Phipps v. Bracegyrdle.
obtained rlief from any and every mistake which he may make throughlack of knowledge of facts available to him and that he is entitled to haveall steps taken under that mistaken belief set aside and begin again fromthe point where he erred.
The mistake here was not induced by any misrepresentation of thedefendant nor is it a question of mutual error; it is merely a case of thepetitioner through his not knowing the extent of the estate dealing inexecution with what he later came to know was not the entire interest init owned by the defendant. He was under no mistake as to what hebought for he thought he was buying one-third of 151 acres, and I mustassume he paid for his purchase on that basis and he has got what hebought, but he now finds that if he had seized one-third of the extent of213 acres and bought that, it would be more to his advantage and hewould be free from the inconvenience incidental to ownership of aninterest in a part of an estate. If he had, for example, bought from theowner Mayfair estate consisting of six specific portion amounting to151 acres, could he seek relief from the contract solely on the groundthat he later came to know that there was another block of 62 acres,saying, as he no doubt might quite truthfully, that if he had known thishe would not have bought the six blocks ? It appears to me that hewould not be entitled to relief in such a case, and I see no ground fordistinguishing the present case in which the mistake is of the same nature.But even if the relief is available in such a case as this, the petitionercannot succeed for this reason. As I have pointed out, restitution isnot allowed unless the applicant can show that he has suffered actualdamage. The petitioner has suffered no damage whatever in the senseof pecuniary loss. The seizure report is not in evidence, but theadditional deputy fiscal of Kegalla in his affidavit says he valued theundivided one-third share of Mayfair estate at Rs. 44,235 and this alsoappears on the sale report. He goes on to say that he did so in the beliefthat he was dealing with the whole estate; no doubt he did, but I cannotunderstand the valuation of a large rubber estate being made on anyother than an acreage basis and I must take it that what he valued atthat figure was a one-third share of 151 acres 26 perches. By payingRs. 14,000 for this, the petitioner has suffered no pecuniary loss but hasbought at considerably less than the fiscal’s valuation. As I have said,the ownership of an undivided share of a part of the estate may beinconvenient and embarrassing, but this is not without a remedy.
A supplementary affidavit of May 17, 1933, by Mr. Craib, thesuperintendent, was submitted. He says the block of 62 acres 3 roods3 perches is fully planted with rubber and of the same quality as the restof the land. He does not say that it has any buildings on it which giveit any greater value than the other blocks. Mr. Craib appears to assumethat the fiscal’s valuation was of the whole of the estate, but this is notso, the fiscal was dealing with a third share. The application is refused.
Dalton A.C.J.—I agree.
PHIPPS v. BRACEGYRDLE