039-NLR-NLR-V-78-S.-M.-SEYADU-IBRAHIM-and-another-Appellants-and-THE-ATTORNEY-GENERAL-Reapon.pdf
Ibrahim v. Attorney- General
301
1975 Present: Tennekoon, C. J-, Pathirana, J,- and Weeraratne, J.S. M. SEYADU IBRAHIM, and another, Appellants, and THEATTORNEY-GENERAL, Respondent
S. C. 377/69 (F)—D. C. Kandy 10364
Customs Ordinance—Sections 154 and 155—Failure to make “ oath tothe property ” as required by Section 155— Does non-compliancewith Section 155 deprive court oj jurisdiction—Are the provisionsof Section 155 directory or mandatory.
The appellants instituted action against the Attorney-Generalclaiming certain wrist watches seized as forefeit under theprovisions of the Customs Ordinance. The action was dismissed onthe ground that the “ oath to the property ” as required by Section155 of the Customs Ordinance was not filed in Court at the time theplaint was filed, although an affidavit affirming to the ownership ofthe wrist watches was subsequently filed in Court before the dateof trial.
TENNE KO ON, CJ. J.—Ibrahim ». Attorney-General
302
Held, that the requirement of making “ oath to the property ” interms of Section 155 of the Customs Ordinance is directory and notmandatory as to the time at which or before which such “ oath ’’should be filed in Court. The requirement of an affidavit ofownership is procedural in character and the failure to comply withit does not deprive the Court of jurisdiction.
Appeal from a judgment of the District Court, Kandy.
C. Ranganathan, with Nimal Senanaydke and 17. C. B.Ratnayake, for the plaintiffs-appellants.
K. M. M. B. Kulatunga, Deputy Solicitor-General, with M. M.Zuhair, State Counsel, for the defendant-respondent.
Cur. adv. vult.
December 2, 1975. Tennekoon, C. J.—
This is an appeal from the judgment of the District Judge ofKandy dismissing an action instituted by the appellants inwhich they claimed certain wrist-watches seized by officers ofthe Customs; the learned District Judge dismissed the claimof the appellants for failure to comply with certain provisionsof Section 155 of the Customs Ordinance. The facts on whichthe submission that the plaintiffs-appellants could not proceedwith the action, because they had failed, in compliance withSection 155 of the Customs Ordinance, to “make oath to theproperty” at the proper time are as follows: —
Date of seizure of watches—20.1.67.
Date of notice of intention to enter a claim and enquiryas to quantum of security to be deposited—12.2.67.
Date of PCC’s letter to plaintiffs requesting deposit ofRs. 750 against costs of action—22.2.67.
Date of deposit of security for costs—7.3.67-
Date of filing plaint in the District Court of Kandy—
27.3.67.
No affidavit or document of any kind was filed with theplaint.
The answer of the Attorney-General was filed on 3.8.67,and plaintiffs’ replication on 7.8.67. Trial was fixed for
Before that date, however, the plaintiffs on 69.67filed an affidavit affirming to their ownership of the wristwatches that had been seized. There was nothing in thisaffidavit regarding the giving of notice and security undersection 154 of the Customs Ordinance. Trial wa3 ultimatelytaken up only on 10.5.1969.
TENNEKOON, C. J.—Ibrahim v. Attorney-General
303
Some of the issues together with the answers the learnedDistrict Judge gave were—
“ 12. Have the plaintiffs failed to comply with the provisionsof section 155 of the Customs Ordinance in that theyhave failed to make oath to the said wristlet watchesas required by the said section ?—A : Yes.
If issue 12 is answered in the affirmative, could the
claim of the plaintiffs have been admitted by thecourt ?—A : No.
Have the plaintiffs provided security to prosecute this
claim before this Court and to pay costs within thetime specified in section 154 of the CustomsOrdinance ?—A: Yes, in view of answer to issues 18& 19.
If issue 13 and/or 14 is answered in the negative, can the
plaintiffs have and maintain this action ?—A : No,in view of answer to issue 13.
18- (a) Did the Principal Collector of Customs fail andneglect to nominate the amount of the seizure of thewrist-watches ?—A : Yes.
Did the Principal Collector of Customs nominatethe amount of security at Rs. 750 by letter dated
?—A : Yes.
Did the Principal Collector of Customs receive the
said sum as security on 7.3.67?—A: Yes.
19. If issue 18 (a), (b) and (c) are answered in the affiirma-tive, can the plaintiff maintain this action ?—A:Yes.
The submissions of Counsel on these issues which were takenup independently of and before the other issues, proceeded onthe basis of the following documents which were marked andtendered to Court after issues were framed—
PI. Letter dated 20.1.67 by which the PCC informed theplaintiffs, interalia.that the watches seized on
are forfeited.
P2. Letter dated 12.67, which stated, inter-alia, that theplaintiffs should also forfeit a sum of Rs. 1,000 undersection 129 of the Customs Ordinance.
Dl. Letter dated 12.2.67 by which plaintiffs gave notice ofintention to enter a c’aim and -equesting PCC tostate what amount should be deposited against costof action.
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TENNEKOON, C. J.—Ibrahim v. Attorney-General
P3. Letter dated 12.2.67 by which PCC nominated a sum ofRs. 750 as the amount to be deposited as security.
P5. PCC’s official receipt dated 7.3.67 for the sum of Rs. 750deposited with him by the plaintiffs.
P4, The affidavit dated 6.9.67 testifying to the ownership bythe plaintiffs of the wrist-watches forfeited by theCustoms Authorities. (This affidavit not filed inCourt with the plaint which was filed on 27.3-67 butfiled subsequently on 6.9.67.)
The learned District Judge answered the issues in the mannerindicated earlier and in view of his answers to issues 12 and 13dismissed the plaintiffs’ action, but as there was a claim inreconvention by the Attorney-General he ordered the case tobe called on a later date to fix a date for the trial of that claim.
Section 154 of the Customs Ordinance reads as follows : —
“ All ships, boats, goods, and other things which shallhave been or shall hereafter be seized as forfeitedunder the Ordinance, shall be deemed and taken to be con-demned, and may be dealt with in the manner directed bylaw in respect to ships, boats, goods, and other things seizedand condemned for breach of such Ordinance, unless theperson from whom such ships, boats, goods and other thingsshall have been seized, or the owner of them, or some per-son authorized by him, shall, within one month from thedate of seizure of the same, give notice in writing to theCollector or other chief officer of Customs at the nearestport that he intends to enter a claim to the ship, boat, goods,or other things seized as aforesaid, and shall further givesecurity to prosecute such claim before the Court havingjurisdiction to entertain the same,and to restore
the things seized or their value, and otherwiseto satisfy the judgment of the Court and to paycosts. On such notice and security being given insuch sum as the Collector or proper officer of Customs at theport where or nearest to which the seizure was made shallconsider sufficient, the ship, boat, goods, or other thingsseized shall, if required, be delivered up to the claimant ;but if proceedings for the recovery of the ship, boat, goods,or other things so claimed be not instituted in the properCourt within thirty days from the date of notice and secu-rity as aforesaid, the ship, boat, goods, or other things seized
TEtOTEKOON.^J. J.—Ibrahim v. Attorney-General
305
shall be deemed to be forfeited, and shall be dealt withaccordingly by the Collector or other proper officer ofCustoms. ”
In the present case, notice of intention to enter a claim andthe giving of security were not done on the same day. Notice ofintention was given in due time and at the same time inquirywas made as to the amount of security that ought to be deposi-ted ; the Principal Collector, however, informed the plaintiffs ofthe amount of security to be deposited only after one month hadelapsed from the date of seizure. An objection taken by theAttorney-General that the security was not deposited withinone month of the seizure was rightly over-ruled by the learnedDistrict Judge, because the Principal Collector had informed theplaintiffs of the amount of the security only after one month hadelapsed from the date of seizure. Security was deposited on 7th.of March, 1967. Section 154 requires action for recovery of thegoods to be instituted within thirty days from the date of noticeand security ; but where the giving of notice and the giving ofsecurity are validly effected on two different dates, the thirtydays within which action has to be instituted must necessarilyrun from the latter of those two dates- Thus the plaintiffs in thiscase had to institute action on or before the 6th of April 1967.The present action was instituted on the 27th of March, ten.days before the expiry of thirty days from 7th March, 1967.This was within time and indeed the Attorney-General took noobjection on that score.
Section 155 of the Customs Ordinance may, without alteringits sense or any of its words, be conveniently set out as follows
No claim to anything seized under this Ordinance shall be
admitted by such Court—
unless such claim be entered in the name of the owner,
with his residence and occupation, (hereinafter referr-ed to as clause (a) ) ; nor
unless oath to the property in such thing be made by the
owner, or by his attorney or agent by whom suchclaim shall be entered, to the best of his knowledgeand belief, (hereinafter referred to as clause (b) ) ; nor
unless the claimant shall at the time of filing his libel
or plaint to establish his claim, satisfy the Court thathe has given notice and security as in section 154 enac-ted, (hereinafter referred to as clause (c) )•
3M
TENNEKOON, C. J.—Ibrahim v. Attorney-General
Apart from complying with the provisions contained in thesetwo sections, a person seeking to have his claim to goods seizedunder the Customs Ordinance adjudicated upon hy a Courtwould also have to comply with section 461 of the Civil Proce-dure Code. Thus one sees that the Customs Ordinance, an Ordi-nance enacted in 1869 erected several barriers in the path of aclaimant desiring a judicial hearing of his claim.
The question hether clause (a) is satisfied can be resolved ona mere reading of the plaint. Clauses (b) and (c) require in theone case an affidavit, and in the other either an affidavti or theproduction of such documents, as would satisfy the Court thatthe notice and security provided for in section 154 have beengiven. Under clause (c) the plaintiff is required to ‘ satisfy ’ theCourt ; a mere unsworn averment in the plaint is insufficient to* satisfy ’ a Court. Any statement in the plaint that notice andsecurity have been given must be supported either by an affida-vit or by the production of the documents necessary for theCourt to form an opinion as to whether notice and security havebeen given.
Tt will be noticed that the provisions of section 154 aresubstantival in character and that some of the provisions ofsection 155 can be categorised as substantival in nature andothers as merely procedural. Clause (a) is substantival innature for it virtually says that the right to institute action forrecovery of goods seized vests only in the owner.
The requirement in clause (b) is procedural for clause (a)having already said that the action can only be instituted ihthe name of the owner, clause (b) goes on to say only that theownership alleged in the plaint must be supported by an affi-davit of ownership made by the owner or by his Attorney orAgent.
The condition in clause (c) is also procedural. The parallelsubstantival requirement is contained in section 154 whichenacts that notice and security must be given within a certaintime, and action also instituted within a certain time.
It is to be noted that clause (c) contains the words “at thetime of filing his libel or plaint”; these words do not occur inclause (b); nor can these words be grammatically read asqualifying the requirement of an oath in clause (b).
S°ctmn 154 uses the expression: “ If proceedings for thereCo’<rprv of the goods be not instituted in the proper Court ”,and Section 155 starts off with the words “ no claim to anything
TENNEKOON, C. J.—Ibrahim v. Attorney.General
307
seized under this Ordinance shall be admitted by such CourtThere is obviously a difference between a party ‘ instituting ’an action and the Court ‘ admitting ’ a claim.
The failure to comply with the provisions of section 154 wouldresult in a claimant being deprived of the right to institute andmaintain an action for recovery of goods seized as forfeit. Theeffect of clause (a) is also similar in content in that no personother than the owner can institute such an action.
Clauses (b) and (c) are ancillary to these provisions and area procedural barrier erected by utilis ng a Court’s power toreject a plaint if there is no prima facie and exparte materialto satisfy the Court that the substantive provisions are satisfied.Even if the oath to property is made before summons is issuedand material to satisfy the Court that noitce and security havebeen duly given, is tendered to Court together with the plaint,the defendant is not deprived of the right of raising issues anddefeating the action on the ground that the plaintiff is not theowner or that the plaintiff has failed to give notice and securityin terms of section 154.
If, on the other hand, the plaintiff fails to comply with therequirements imposed by clauses (b) and (c) what would be theposition ? The answer to that question would depend on thefurther question : What purpose are clauses (b) and (c) intended
to serve ? The section starts with the words “ No claim
shall be admitted by such Court ”. In the context in which thisprovision appears I am convinced that the thrust of the sectionis not jurisdictional in the sense that non compliance withclauses (b) and (c) would deprive the Court of jurisdiction, butonly to make it obligatory on the claimant as a matter of pro-cedure to comply with those clauses. In this view of thematter the implication of the provision is not that the Courtshall reject the plaint or libel if clauses (o), (b) and (c) are notsatisfied, but that it may reject the plaint or libel. It is in thissense no different from Section 46 (2) of the Civil ProcedureCode ; for even if the Court inadvertently or wrongly admits aplaint or libel, the defendant has still available to him thesubstantive defence of contending that the action is not by theowner or that the requirements of notice and security as pro-vided in section 154 have not in fact been complied with. Thepurpose of clauses (b) and (c) then is only to see that a person:who cannot truthfully allege that he is the owner of the goodsseized or who cannot show prima facie that he has in fact givennotice and security from troubling the Attorney-General withhaving to come to Court to defend an action in which goods
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TE2SNEKOON, C. J.—Ibrahim «. Attorney-General
seized by the Customs authorities are claimed. For thesereasons I think that the substance of clauses (b) and (c) in sofar as they place an obligation on the plaintiff are directory andnot mandatory as to the time at which or before which theymust be complied with.
As was said by Lord Penzance in Howard v. Bodington‘ :—
“ I believe, as far as any rule is concerned, you cannotsafely go further than in each case you must look to thesubject-matter, consider the importance of the provisionsand the relation of the provision to the general objectintended to be secured by the Act and upon a review of thecase in that aspect decide whether the enactment iswhat-is-called imperative or only directory.”
If then the plaintiff fails to comply with the requirements ofclauses (b) and (c) of section 155, the Court may reject theplaint ; or, the Court may make order for production of anaffidavit of ownership and for other material to satisfy it thatnotice and security have been given.
On the other hand, if the Court by inadvertence does not giveits mind to those provisions and admits the plaint and orderssummons on the defendant, I think that the Court can stillmake order for compliance with those provisions at any stage ifit still considers it necessary that the plaintiff should be requiredto do so- If there is already an affidavit of ownership and othermaterial to satisfy him that notice and security have beengiven such order need not be made but the action can beproceeded with.
The learned District Judge has relied on the two cases ofRead v. Samsudin (1895) 1 N-L.R. 292 and Avva Ummah v.Casinader (1922) 24 N.L.R. 199. Both cases are authority forthe proposition that,
“ If the plaint is defective in some material points, andthat appears on the face of the plaint, but by some over-sight the Court has omitted to notice the defect, then thedefendant, on discovering the defect, may properly call theattention of the Court to the point, and then it will be theduty of the Court to act as it ought to have done in thefirst instance, either to reject the plaint or to return it tothe plaintiff for amendment. If the plaint is a good oneon the face of it, but the defendant has reason to urge whythe plaintiff is not entitled to sue him, that objection mustbe taken by the answer.”
* (1877) 2 P.D. 203 at 211.
**!£>< ^sEKOGN, C. J.— Ibrahim v. Attarnej-General
309
Both these cases, however, were decided in actions under theCivil Procedure Code:The Customs Ordinance, with which
we are concerned was enacted in 1869 many years before theCivil Procedure Code. The technical barriers which the latterOrdinance has set up before a Court can admit a claim to pro-perty seized under that Ordinance must be understood andapplied somewhat liberally having regard to the parallelsubstantive provisions which are in themselves sufficient to pro-tect the State as defendant. Moreover, the failure of the Courtto immediately observe the non-compliance with clauses (b) and(c) and to take appropriate action, has deprived the plaintiffof the opportunity of presenting a fresh plaint accompanied bythe papers necessary to comply with clauses (b) and (c) ofsection 155, within the 10 days that were still available to him.No doubt a plaintiff must advise himself about the law and anestoppel cannot be set up against the Court ; but I make mentionof this matter only to point out that a liberal interpretation ofprocedural requirements is fully warranted in the context ofprovisions in which the time limitations are so tightly drawnand do not affect the substantial jurisdiction of the Court orthe defences which may be advanced by the defendant on theground of failure to comply with the substance of section 154,or with clause (a), of section 155.
The case of Avva Ummah v. Casinadar referred to earlier isinstructive in this context. In this case the plaint did notcontain as required by section 45 of the Civil Procedure Code,a statement of facts setting out the jurisdiction of the Courtto try and determine the claim ; the Court by an oversightomitted to notice the defect and to exercise its power of reject-ing the plaint under section 46(2) of the Civil Procedure Code.Upon the defendant’s lawyers pointing out the defect an applica-tion was made by the plaintiff to amend the plaint. The appealto the Supreme Court was apparently against an order of theDistrict Court refusing the application to amend. Chief JusticeBertram, with Justice Porter agreeing, after quoting the dictumof Bcnser, C.J. in Read vs. Samsudin, added:
“ The defect has now been made good by the applicationof the proctor for the plaintiff and no further action istherefore necessary.”
On this basis the appeal was allowed.
In the present case there is no doubt that the Attorney-Generalpointed out the failure to comply with clauses (b) and (c) of
section 155 at the first available opportunity ; but by the time
*•—A26064(:p77)
310
Thevakadacham v. Pusvella
the Court came to make its order, which is the subject of thisappeal there was before the learned District Judge both anaffidavit of ownership and also material, in documents PI to P5and Dl, sufficient to satisfy him that notice and security hadbeen given before institution of action. I therefore think thatthe learned District Judge was wrong in dismissing or‘ rejecting ’ plaintiffs’ action at that stage.
I would accordingly allow the appeal and set aside the orderof the learned District Judge with the direction that the trialproceed on the plaintiffs’ claim and on the claim in reconven-tion on issues other than those numbered 12, 13, 14, 15, 18 and19.
As these proceedings were brought about by the plaintiffs’own carelessness, there will be no order for costs.
Pathirana, J.—I agree.
Weeraratne, J.—I agree.
Appeal allowed.