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Present: Fisher C.J, and Prieberg A.J.
PUNCHI BANDA v. IBRAHIM et al.
24r—D. C. Kandy, 33,915.
Police Ordinance—Protection given to acts of Police Officer—Scope ofauthority—Reasonable and bona fide belief—Ordinance No. 16 of1865.
Section 79 of the Police Ordinance extends protection to any actwhich a Police Officer does in the reasonable and bona fide beliefthat he is acting within the scope of his authority and which is notactuated by any malice or ulterior motive.
PPEAL from a judgment of the District Judge of Kandy. Thefacts are fully stated in the judgment of Drieberg A.J.
H. V. Perera (with Rajapakse), for first defendant, appellant.
R. L. Pereira, for second defendant, appellant.
Keuneman, for plaintiff, respondent.
September 16, 1927. Fisher C.J.—
As regards the first defendant, in my opinion the plea under section79 of the Police Ordinance must prevail. The learned Judge hasdecided that he was not entitled to the protection of the sectionbecause he finds that he did not act in good faith. He says: —
“ The protection afforded by provisions like section 79 of thePolice Ordinance are only intended to apply in caseswhere the public officer has acted bona fide and not incases where he has acted out of the scope of his duties.*1By “ the scope of his duties ” I take it that the learned Judgemeans the extent to which he is expressly or impliedly authorizedto act. I do not think that on the true construction of this sectionits operation is limited as the learned Judge has found. I thinkthat by the words ‘ * intended to be done * * it extends protection toany act which a police officer does in the reasonable and bona fidebelief that he is acting within the scope of his authority, that is tosay, that when he did the act under consideration he intended todo what lie conceived and reasonably and honestly thought to behis duty and was not actuated by any malice or ulterior motive.Whether the writing of the word “ police ** on the petition reallyconstitutes an express direction to do what he did in this case, ifhe thought the occasion demanded it, is a question which I do notthink it is necessary to go into.
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In my opinion the learned Judge’s finding that the firstt defendantwas not acting bona fide cannot be upheld. He was a police sergeantof fourteen years’ service. No suggestion was made that his recordwas tranished. He was not cross-examined as to his credit nor asto his “ having been in touch with the second defendant’s partyeven before the petition was brought to him/’ of which there wasno evidence but which the learned Judge says that his " promptaction ” indicates to his mind. There is no evidence of any motivewhy he should give false evidence. According to his uncontradictedevidence the transfer to the widow was produced to him by her,and there must have been in all probability indications of hostilitybetween the brothers, as two of them were actually there to supporttheir mother’s claim. Under these circumstances the first defendantordered the elephant to be given to the person who seemed to himby reason of the document to have the legal right to it, pendingresort, to Court to have the question of legal rights determined.The effect of his evidence is that he prevailed upon the plaintiff totake that view and made a note of the circumstances which, had hehad it in his mind to be a thorough partisan in favour of seconddefendant and to fabricate a note accordingly, would not, in myopinion, have taken the form that it did. As it is, it seems to meto be a note which is natural and consistent with the surroundingcircumstances and to bear on the face of it the impress of truth.Moreover, the plaintiff, a man of twelve years’ experience in suchmatters, admitted that the first defendant questioned him andwrote down what he said and took his signature to what he hadwritten. He does not suggest what his version is of what he reallysaid, but merely denies that the statement truly sets out what liesaid. * I think the proper deduction to be drawn from it is that it isnot a false record of what took place.
This is a case in which the Judge has seen and heard the witnesses?;,and the position of the Court who hears an appeal in such a case isdescribed by Lindley M. R. in Coghlan v. Cumberiand.1 He says: —“ It is often very difficult to estimate correctly the relative■ credibility of witnesses from written depositions; andwhen the question arises which witness is to be believedrather than another, and that question turns on mannerand demeanour, the Court of appeal always is, and mustbe, guided by the impression' made on the Judge who sawthe witnesses. But there may obviously be other circum-stances, quite apart from manner and demeanour, whichmay show whether a statement is credible or not; andthese circumstances may – warrant the Court in differingfrom the Judge, even on a question of fact turning on thecredibility of witnesses whom the Court has not seen.”x1898) lCk. D. at p. 70S.
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I think those observations are in point here. Under all thecircumstances I think that there was no proper foundation for thefinding of the learned Judge as regards the want of bona fidcs of thefirst defendant, and I therefore think that he is entitled to theprotection of section 79.
With regard to the case against the second defendant, I have hadthe advantage of reading the judgment of mv brother Pneberg.with which I agree.
The appeals are allowed and the judgment appealed from mustbe set aside, and judgment must be entered dismissing the action.The respondent must pay the costs of appeal and in the DistrictCourt.
The plaintiff-respondent filed action alleging that he was theowner of an elephant worth Rs. 1,500 and that he had possession ofit for the last eleven years. He alleged forcible removal of it underthese circumstances: He said that the second defendant-appellantcomplained falsely to the Police Magistrate of Kandy that theelephant had been wrongfully and forcibly removed by him fromthe second defendant's possession; that the petition was referredto the Katugastota Police and that on January 27, 1926, the policesergeant, the first defendant-appellant-, wrongfully removed theelephant from the custody and possession of the plaintiff and gaveit over to the second defendant. He alleged that this gave him acause of action to sue for the recovery of the elephant, or in thealternative for its value and damages.
This elephant had been sold to the second defendant’s husband,Mudalihamy Yedarala, by a deed of October 6, J915. for the sum ofRs. 1,265. Mudalihamy died intestate on March 30, 1925, havingtransferred to his children' all his immovable property. Theplaintiff says that he contributed Rs. 865 of the price of the elephant,and he suggests that by arrangement with his father the elephantwas his from the time of its purchase, and that his father adjustedmatters by giving him less property than the other children-when hedistributed his property among his children. This, however, wasnot done until some days before the death of Mudalihamy.
The second defendant says that- Mudalihamy gifted t-o his childrenall his property except the elephant, and that as it was acquiredproperty she had the widow’s life interest in it or right of maintenancefrom it.'v
While the plaint undoubtedly has the averments necessarv for apossessory action, it is also one rci vindicaiio, for though the plaintiffdoes not ask for a decree declaratory of right it contains an avermentof ownership and an alternative claim for Rs' 1,500. the value ofthe elephant.
P unchiBanda v.Ibrahim
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Counsel for second defendant suggested the issue whether theplaintiff was the owner of the elephant or whether it was the propertyof the deceased -Mudalihamy. On objection by the plaintiff thelearned District Judge refused to allow this issue, but not, however,on the ground that the action was a purely possessory* action or thathe would permit it to be converted or treated as a possessory suit;he upheld the objection on some other grounds which I am unableto understand fully.
Judgment was entered for the plaintiff against both defendantsas prayed for and they have appealed.
As I am of opinion that the plaintiff has entirely failed to proveany possession ut dominus at all, it is unnecessary to deal with thequestion debated at some lenght at the trial whether a possessoryaction is available in Ceylon in such a case as this. The mostrecent authority which has been cited to us on the point is againstthis proposition (Ponnampalam v. Sinnatamby1).
Regarded as a possessory action, and if, as it was assumed, theperiod of possession needed to support it is a year and a day, theaction must fail for this reason; the issue accepted by the plaintifffor this purpose was this, “ Was the plaintiff in possession of theelephant since his father's death, or was the second defendant inpossession as widow? "
The forcible removal complained of was on January 27, 1926, andMudalihamy died on March 30, 1925; the period between thesedates is less than a year and a- day. I am reluctant to base myjudgment on this ground alone, for there is ample material in thiscase to decide the issue of possession and the question of title as weltin favour of the second defendant.
It is unfortunate that the learned District -fudge did not admitthe issue of title and finally determine the dispute about thiselephant. It is not desirable where both parties derive their titlefrom the same source, and we have merely doubtful inferences fromuncertain facts that an action rei vindicaiio should be convertedinto a possessory action and the possessory remedy granted; sucha course has been condemned in the case of Philippa v. Pedris.-
At the time of the purchase of the elephant the plaintiff wasliving with liis father, Mudalihnm}*. He was then a Peace Officer;lie had been appointed to the office in 1911, and held office till 1923,when he was dismissed. He had no salary, and he must necessarilyhave been dependent on his father, who was a man of means. Heoffers no explanation of how he obtained the sum of Rs. 865. Aftersome time he moved to a land belonging to his father, which wasabout 200 yards away, and he says that he kept the elephant there.This is the land which was gifted to him by his father shortly beforehis death. He built a house on it with his own money, as he» (1011) 15 N. L. X. 11.* (1913) 5 Bat. Notes rf Casu 39.
suggests but as the second defendant suggests, with money givenhim by his father. He seeks to support his suggestion that thepayment made by Mudalihamy was reckoned by the latter whenhe distributed his properties before his death by the fact, so healleges, that in the gift to him the lund was valued at Rs. 300,whereas properties valued at Rs. 1,500 Rs. 1,400, and Rs. 1,000were given to the other chidreu.
This is based on the statement 1? 1, which contains some particularsof the deeds by which these properties were transferred. It wouldappear that these are not deeds of gift, in which case the value ofthe subject of the gift would be entered on the deed, but they aredrawn in the form of transfers for consideration. I am aware thatdeeds of gift are frequently drawn in this form, but the amountstated as the consideration cannot be taken as a reliable index ofthe value. I prefer to accept the official valuations for probateyiven in D 3, and from this it will appear that there was a considerableinequality in the value of the properties gifted.
In any case material such as this is entirely inadequate to supportthe conclusion that by this distribution of property the plaintiff,so to speak, repaid out of his inheritance the Rs. 400 paid byMudalihamy.
The plaintiff s case, except for his own evidence, finds very littlesupport. It is admitted by the second defendant that he was for:t considerable period in charge of the elephant, but it has not beer,proved that he was so as owner. He relies upon the fact that inthe testamentary proceedings his proctor stated that he claimedtlie elephant, and on the fact that in a certain Police Court caselie refers to Sivatu as the keeper of his elephant. This is of littlevalue. He also relies on the fact that Medagoda Korala had givenhim a report, P. 2 of -January 10. 1025, that he had an income ofRs. 200 “ from the elephant.*' The learned District -Judge seemsto have been influenced by this circumstance, because the Korala•said that on that occasion the plaintiff was accompanied by hisfather. The Korala, however, recognized the rights of the seconddefendant, for in December, 1925, when he wanted the elephantfor a peraherrf, he wrote to the second defendant for it (letter D 2).Against this entirely inconclusive evidence of the plaintiff there isin addition to the document D 2 the letter D 5 of May, 1921. bywhich Ratnayake applied to Mudalihamy for the use of the elephantfor transporting timber and inquired what the hire would he;also a similar letter. D 4 of June 19. 1924. by winch a Moorman madea similar application to Mudalihamy.
The surest guide to the truth is to be found in the incidents ofJanuary 27, 1926, on which point I think the learned District-Judge has come to a wrong conclusion on the facts. There is noreason for doubting the good faith of the first defendant and the
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genuineness of the record D 1, which he wrote in the presence ofthe plaintiff. The,, settlement there arrived at fully supports thecase of the second defendant. When the first defendant had to takesome action on the report referred to him, the second defendantproduced Mudalihamy's deed for the elephant, and the plaintiffsaid that he had a share in the elephant, and justified his retentionon the ground that the keeper, Siyatu, was unsatisfactory. Thesecond defendant and two of her sons said they wished Siyatu tocontinue looking after the elephant, and Siyatu said that he hadhad charge of it for eight years'and that there had been no complaints.The paintiff signed the record of his statement made by the firstdefendant. I am unable to believe that a man like the plaintiff,who has been a headman, would have signed the Police recordwithout acquainting himself of its contents. If his case is true, therewas most improper action by the first defendant, and when hefound the elephant given over to the second defendant by him as aresult of an application to Court, to which he was not a party, Ithink he would have made very prompt complaint to the PoliceMagistrate and to the superior Police Officers. Instead of which,he did nothing in the matter until he filed his action on April 28,1926, after giving notice to the first defendant under section 461 ofthe Civil Procedure Code.
I agree with my Lord the Chief Justice that the first defendantis entitled to the protection of section 79 of the Police Ordinance.He would not be entitled to it only if he acted maliciously and notin the bona fide exercise of his official duties. Van Hoff v. Keegal.1
The appeals are allowed and the judgment appealed from mustbe set aside, and judgment entered dismissing the action. Therespondent must pay the costs of the proceedings in the DistrictCourt and of this appeal.
1 (1917) 4 C. W. R. 258.
PUNCHI BANDA v. IBRAHIM et al