Re JAYAWARDANA

034-NLR-NLR-V-08-Re-JAYAWARDANA.pdf


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1906.
March 21.
Be JAYAWARDANA.
Notary Public—Conduct of—Inquiry under e. 18 of Ordinance No. 2 of 1877 at
amended by s. 2 of Ordinance No. 21 of 1900—“ Offence ”—“ Or other.
wise ”—Application for writ of prohibition.
Where information was laid under section 18 of the OrdinanceNo. 2 of 1877 (section 2 of Ordinance No. 21 of 1900) before a DistrictJudge that a notary public had been concerned in several criminal cases,that he was not possessed of property, that he had writs out againsthim, that he was .keeping himself in concealment, and that he made afalse affidavit in a case in which he was defendant, and when the Judgewas proceeding to inquire under section 18'into the matters alleged, inthe information,—
Held, on an application to the Supreme Court for a writ of prohibitionagainst him, that such matters could not be the subject of inquiry undersection 18, that the allegation that the notary was concerned in criminalcases, that he was not possessed of property, that there were writs ofexecution against him, and that- he was keeping himself in- concealment,were not “ offences" against any statute or other law of Ceylon; andthat though giving false evidence before a competent Court was anoffence against the Penal Code, yet it was not intended by the Legislatureto give to; the officers named in section 18 power to inquire into suchoffences committed by notaries outside the sphere of their duties'.
Per Mohobeiff, J.—When information is received by the personsmentioned in the section that tbe notary has committed an offence thosepersons may then proceed to inquire into the “ matter ” of the offence.They are hot to adjudicate upon the offence itself, but to investigate thematerial from which it springs; and then, according as they find certainelements, a report may be made to the Governor, who is empowered,with the advice of the Executive Council, to cancel the notary’s warrantor to suspend him.
Tbe action which is to follow the inquiry is dependent upon whetherthe inquiry shows (1) gross misconduct on the part of the notary indischarging his duties, or (2) incapacity to discharge them with advantageto the public.
The inquiry would not be directed to the criminal aspect of the notary’sconduct, but to the “ matter of the alleged offence ’’ with a view to seeingwhether the notary has misconducted himself in respect of his duties.
T
HIS was an application to the Supreme Court by one Mr.
Tayawardana, a notary public, for a writ of prohibition
against the District*Judge of Negombo forbidding him to inquireinto the matter contained in an information received from theAssistant Government Agent of Chilaw against Mr. Jayawardana,under section 18 of the Ordinance Ho. 2 of 1877 (section 2 ofCfidinance No. 21 of 1900), which runs as follows: —
“ (1) On information received by the Registrar-General, or by theGovernment Agent, Assistant Government Agent, District Judge,or Commissioner of Requests, within whose local -jurisdiction anynotary resides, that an offence has been committed by the notary,
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it shall be lawful for such Begistrar-General, Government Agent, 1305.Assistant Government Agent, District Judge, or Commissioner of Marthf&hBequests to inquire into the matter of the alleged offence, and upon l^yabd ,0.Jproof to his satisfaction of gross misconduct in the discharge of theduties of his office by such notary, or of such notary having provedhimself to be incapable of discharging them with advantage to thepublic, or of his having so conducted himself by repeated breachesof any of the rules contained in or made under this Ordinance, orotherwise, that he ought not to be any longer entrusted with theperformance of the said duties, to report the same in writing,together with the evidence taken by such 'Begistrar-General,
Government Agent, Assistant Government Agent, District Judge,or* Commissioner of Bequests, to the Governor; and thereupon itshall be lawful for the Governor, with the advice of the ExecutiveCouncil, to cancel the warrant granted to such notary, or tosuspend him from his office for such period as the Governor, withthe like advice, may think fit.
“ (2) For the purposes of such inquiry the Begistrar-General,Government Agent, Assistant Government Agent, District Judgeor Commissioner of Bequests shall have power to require theattendance before himself of the notary and of any witness, andthe production of any document that such inquiring officer maydeem material, and to examine such witness on oath or affirma-tion, and to examine such notary without oath or affirmation; andany person required to attend or to produce a document as afore-said, who shall without reasonable cause fail to comply with suchrequirement, shall be guilty of an offence and liable on convictionto a fine not exceeding two hundred rupees. No statement madeby such notary at any such inquiry shall be used in any pro-secution for violation of or for disregard or neglect to observeany of the rules and regulations contained in section 26.
“ (3) In no case, however, shall the inquiry referred to in (1) beheld by the person who shall give information of the commissionof such offence.**
The information received by the District Judge was as follows:—
“ I, Bertram Hill, Assistant Government Agent, Chilaw, lay thefollowing information against A. W. Jayawardana, Notary Publicof Chilaw, under section 2 of Ordinance No. 21 of 1900:—
"1. The Notary Jayawardana has been concerned directly orindirectly in several criminal cases, most of which refer to so?peland dispute. The cases are Police Court 21,079, 16,366, 14,093,
14,094, 20,839, and 20,871,. and District Court Griminal 2,566 and2,56$ and other more recent cases the numbers of which can beascertained from the Police Magistrate.
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1006.“2. He has five unsettled writs out against him, amounting to.
March si. Rs. 8,000, which he has made no attempt to settle, and he isLayabd.C.J. reported to be possessed of no property.
“8. There is now is writ out against his person, the executionof which he evades by keeping himself shut up in his house andverandah during the daytime.
‘■'4. In D. C., Colombo, 19.1J8, he was sued for the recoveryof Bs. 4,000 and interest due on a promissory note granted by him;he put in an affidavit dated December, 1902, in which he deniedmaking the notes and receiving any consideration, and he filedanswer to the same effect, but in February, 1904, he consentedto judgment in terms of the prayer of the plaint. It is hi thiscase in which a writ has been issued against his person: Itis maintained that the statements in the affidavit are false, and hemade them knowing them to be false.
“5. I pray that the said notary may be summoned before theCourt and inquiry be held.
“6.' Copy of this information is annexed for service on therespondent.
“ Bertram Hill,
“ Assistant Government Agent.
Domhorst, K.C. (with him Van Langenberg) appeared, insupport of the application for the writ of prohibition.’ *
Rdman&than, S.-G., was heard on behalf of the Assistant Govern-ment Agent. •
Cut. adv. vvlt.
21st March, 1905. Layard, C.J.—(after setting forth the aboveinformation) said.—
The first three paragraphs of the information disclose no offenceagainst any statute law or any other law, but the fourth paragraph,discloses an offence punishable under the provisions of the CeylonPenal Code, and not an offence against any provisions of 'theOrdinance No. 2 of 1877.
By the 17th section of the Ordinance No. 2 of 1877, ambngstother things, it is exacted that any notary who has been convictedof any crime or offence which renders him, in the opinion of theGovernor, with the advice of the Executive Council, unfit to beentrusted with any responsible office, or of any crime or .offencepunishable under section 29 of the Ordinance No. 2 of 1877? shallbecome disqualified for the said office of notary, and his: warrantmay be thereupon cancelled,■ ■ ; i.
It is clear from the above that if a notary is convicted of givingfalse evidence before a competent Court having jurisdiction, hiswarrant can be cancelled. The question in this case is whether
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where it is alleged that a notary has given false evidence, the 1906*matter can be the subject of inquiry under section 18 of Ordinance MarchNo. 2 of 1877 (see section 2 of Ordinance No. 21 of 1900). That Layabd,C.J'.section runs as follows:—
" (1) On information received by the Registrar-General or by theGovernment Agent, Assistant Government Agent, District Judge,or Commissioner of Requests, within whose local jurisdiction anynotary resides, that an offence has been committed by the notary,it shall be lawful for such Registrar-General, Government Agent,
Assistant Government Agent, District Judge, or Commissioner ofRequests to inquire into the matter of the alleged offence, and uponproof* to his satisfaction of gross misconduct in the discharge of theduties of his office by such notary, or of such notary having provedbjnnsftlf to be incapable of discharging them with advantage to thepublic, or of his having so conducted himself by repeated breachesof any of the rules contained in or made under this Ordinance, orotherwise, that he ought not to be any longer entrusted with theperformance of the said duties, to report the same in writing,together with the evidence taken by such Registrar-General,
Government Agent, Assistant Government Agent, District Judge,or Commissioner of Requests, to the Governor; and thereupon itshall be lawful for the Governor, with the advice of the ExecutiveCouncil, to cancel the warrant granted to such notary, or tosuspend him from his office for such period as the Governor, withthe like advice, may think fit.
(< (2) For the purposes of such inquiry the Registrar-General,
Government Agent, Assistant Government Agent, District Judge,or Commissioner of Requests shall have power to require theattendance before himself of the notary and of any witness, andthe production of any document that such inquiring officer maydeem material, and to examine such witness on oath or affirma-tion, and to examine such notary without oath or affirmation; andany person required to attend or to produce a document as afore-said, who shall without reasonable cause fail to comply with suchrequirement, shall be guilty of an offence and liable on convictionto a fine not exceeding two hundred rupees. No statement madeby such notary at any such inquiry shall be used in any pro-secution for violation of or for disregard or neglect to observe anyof the rules and-regulations contained in section 26.
. “ (3) In no case, however, shall the inquiry referred to in (1) be.held by the person who shall, give information of the commission,of such hffence.’’
It is first to be noted in resgect of that section the inquiry islimited to an “ offence " committed by the notary; section 17
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1905. referred to ** crime or offence; ” the word “ crime " has been left
' out in the subsequent section in 1900. At the time of passing of
Xia.xabD'C.J. the Ordinance No. 2 of 1877 the Penal Code had not been enacted,and tile Criminal Law of England was in force here by user, therebeing no express enactment bringing it into force in the Island.Of course the English Law draws a distinction between a crime, and an offence which our Courts never, as far a6 I can gather,recognized. It i6 difficult to ascertain why the Legislature in 1877used the alternative words “ crime ” or “ offence " in section 17,because as I understand' the word “ crime " in its ordinary sensemeans merely an infraction of law, and “ offence " means a crime,*e., an infraction of law. I do not think anything is to be gatheredfrom the ommission of the word “ crime ” in 1900 from the newsection 18. We must look to that section itself to see whether theLegislature intended to include in the term “ offence " all infrac*tions of the law, including offences punishable under the PenalCode. If the word “ offence ” stood alone in that section, it wouldclearly to my mind be extensive enough to include'-all infractionsof the law. The context, however, seems to me to show that theLegislature was not using the word “ offence " in its general sense,for it enacts that it shall be lawful for the several persons specifiedin the section on receiving information that an offence has beencommitted by a notary to inquire into the matter of the allegedoffence. Then it goes on to show what must be proved or estab-lished against the notary.It is remarkable that if it wa6 the
intention of the Legislature to create a right of inquiry into acriminal offence punishable under the Penal Code, such as givingfalse evidence in a matter entirely outside the discharge of hisduties as a notary, it should lay in the first instance such importanceupon the inquirer being satisfied of there being gross misconductin the discharge of the duties of his office by the accused notary;of the accused notary having proved himself incapable of dis-charging his duties with advantage to the public or of his havingso conducted himself by repeated breaches of. any of the rulescontained in the Ordinance that he ought not to be any longerentrusted with the performance of such duties.
It is suggested that the general words ‘ * or otherwise ’ * whichoccur after the words “or of his having conducted himself byrepeated breaches of any rules contained in or made under , thisOrdinance, ” and before the words “ that he ought not to be anylonger entrusted with the performance of the said duties,” readwith, the words immediately following them, show that ihe scopeof the inquiry might be in respect of offences other than thosepreviously specifically defined viz., which relate to .misconduct
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in discharge of the duties of a notary. That would not be in 1905.accordance with the ordinary canon of construction of statutes. MairehiLI think that the words “ or otherwise that he ought not to be any Latabd,CJ.longer entrusted with the performance of the said duties 11 onlymeans " or in other respects in a- similar manner, i.e.9 by znisconrduct in the discharge of the duties of his office, has shown that heought no longer to be entrusted with the performance of suchduties/* If it was intended to cover the case where a notary hascommitted an offence under the Penal Code, one would 'haveexpected the draftsman would have put that as the first alternativethe inquirer had to be satisfied of.
The Solicitor-General says that the provisions of section 18 areso wide that if in the course of inquiry into an offence or com-plaint which was not established the inquirer is satisfied that thenotary complained of is a drunkard, and so reported, the notary'swarrant could be cancelled under this section. I cannot believethat it could have been the intention of the Legislature where thecharge in respect of the alleged offence failed, that the notarycould -be dealt with for some misconduct outside his duties as anotary.
. Another clear indication of what the Legislature intended is tobe gathered from the final words of sub-section 2 of section 18,which runs as follows:—
“ No statement made by such notary at any such inquiry shall beused in any prosecution for violation of or for disregard or neglectto observe any of the rules and regulations contained in section 26. ”
The object of that provision is obvious, that no statement at anysuch inquiry might imperil a notary by being used against him ina criminal prosecution in respect of the offence being inquiredinto under section 18. In ordinary criminal cases an accused isnot bound to give any evidence or to make any statement, but6ub-6ection 2 provides that a notary may be examined by theinquirer, whether the notary wishes to or not. The result of suchexamination might imperil him if it could be available as evidenceagainst him at any criminal trial. The Legislature consequentlystepped in and said any statement made in such inquiry by thenotary cannot be used against him when prosecuted for breach ofthe rules and regulations contained in section 26. It limits it toa prosecution in respect of these rules and regulations, and dotsnot refer to prosecution for offences under the general law, andwhy? I can suggest only one answer to the qtiery, because theLegislature intended that the offences to be inquired into under -section 18 were only such as related to the misconduct of thenotary in discharge of the duties of his office, and nothing in the14—
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1006. examination by the inquirer could be pertinent to general offencesMarch 21. other than such as related to the discharge of the duties of his-tmm, n.T, office, and the notary would not be imperilled by any statement insuch examination in which he might have admitted having com-:
mitted one of such general offences.
Lastly, it appears to me that in view of section 17 the Legislaturemust have thought that for offences punishable under the PenalCode or any statutory law other than the Ordinance No. 2 of 1877 anordinary prosecution could be instituted, and the notary if oon->victed could be dealt with under that section and could nothave intended to provide another tribunal to ascertain or inquire-whether the notary had committed any such offence when theordinary Courts of law were open and capable of investigating suchoffences, nor could it have been intended by the Legislature to rendera notary alleged to have committed such an offence liable to beexamined by an inquirer under section 18 of Ordinance No. 2 of1877, whereby he might be entrapped into giving an answer which,might be used against him in a subsequent criminal prosecution.
For the above reasons I think the District Judge of Negombo-has no jurisdiction to enter into the inquiry, and should be pro-hibited from inquiring into the matter of the complaint of theDistrict Judge of Chilaw above referred to.
Let the writ of prohibition issue.
MotfCREIFF, J.—
Ordinance No. 21 of 1900 substituted a new section for section 18of Ordinance No. 2 of 1877. The question is mainly what the words“ or otherwise ” occurring in that section mean. They are to be foundin the old section in the Ordinance of 1877, but the new Ordinancehas introduced reference to a matter which is not to be found inthe old Ordinance. When information is received by the persona,mentioned inthe section thatthe notaryhas committedan
offence, thosepersons may then proceedto inquire intothe
“ matter ” ofthe offence. Theyare not toadjudicate uponthe
offence itself, but to investigate the material from which it springs;and then, according ps they find certain elements, a report may bemade to the Governor, who is empowered, with theadvice of the Executive Council, to cancel the notary’s warrant orto suspend him. We can only surmise as to the'reason for refer-ence to offences or the meaning the word was intended to convey.Section 17 dealt with the case in which the notary was convictedof a crime or offence, and it might be thought that the followingsection was intended to deal with the case in which there wasno convictionand' to give theauthoritiesan • independentand
summary power of dealing with an undesirable notary.
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' The word “ offence ” was applied in England to summary cases inwhich a penalty might be inflicted, but I imagine that in Ceylonit naturally applies to something which is punishable under thePenal Code or some other provision of the law in force in Ceylon.
Section 18 empowers the persons mentioned in the section, and.the Governor, with the advice of the Executive Council, to takecertain action. The action which is to follow the inquiry isdependent upon whether the inquiry shows (1) gross * misconducton the part of the notary in discharging his duties, or (2) in-capacity to discharge them with advantage to the public, or (3)^, toquote the words of the section, his* having “ so conducted himselfby repeated breaches of any of the rules contained in or madeunder this Ordinance or othewise, that he ought not to be anylonger entrusted with the performance of the said duties."
It is true there is a rule to the effect that a general expressionis to be confined by the words which immediately surround it,but as Lord Justice Bowen says in Skinner & Co. v. Shew & CoL. R. (1893) 1 ch. 413, the rule or maxim of common sense issubject to the exception that the general expressions are to beconstrued generally when it appears from a wider inspection ofthe matters legislated upon that such was the intention of the Le-gislature. The question here is whether the words “ or otherwise “are wide enough to include a false statement made or sanctionedby a notary in a case unconnected with his. duties as a notary.
I feel the force of the observation that the points to whichinquiry is directed have no reference to crime, but I should con-jecture that the insertion of the word “ offence ” in section 18 wasmeant to establish a correlation between that section and section 17.The latter .section gives power to deal with the notary on con-viction. I should surmise that section 18 was meant to givesimilar powers where for some reason there has been no con-viction. Action under section 17 is started by conviction, but itis only undertaken on the footing that the conviction renders theconvicted person unfit to be a notary. So in section 18 the inquiry- would not be directed to the criminal aspect of the notary’s conduct,but to the “ matter of the alleged offence, ’* with a view to seeingwhether the notary has misconducted himself in respect of his duties.
I am not convinced from a wider inspection of these provisionsthat in using the words “ or otherwise ’’ the Legislature meant toextend the- inquiry beyond the professional conduct of the notary.They occur in the section in the Ordinance of 1877, where thereis no reference to an offence, and I agree that the writ shouldgo, because it is not clear that in this Ordinance the words hadreference to a criminal offence, and it seems certain that theyhad no such reference in the Ordinance of 1877.
1000.March 21,
MoNorarrr,
J.