071-NLR-NLR-V-25-SAIBO-v.-THE-ATTONEY-GENERAL.pdf
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Present: Bertram C.J. and Porter J.SAIBO v. THE ATTORNEY-GENERAL.
136—D. C. Colombo, 4,968.
Customs Ordinance, 1869, ss. 104 and 31—Rice removed from bondedwarehouse to ship—Boatmen stealing some rice—Evasion ofpayment of Customs duties—‘Fine—lUegal threat of detention ofboats HU fine was paid—Tayment under protest—Right to recovermoney paid even though it was due—Condictio indebiti—Condictioob iniustam causam^Money had and received—English law sameas the Civil law.
Some lighters belonging to the plaintiff were engaged in tran-sporting imported rice from a bonded warehouse to certain shipsin the harbour. A small quantity of rice was collected by thecrew for unlawful disposal, and incidentally with a view to evadingthe payment of Customs duties. Fines were imposed by thePrincipal Collector on the tindals for offences committed, andthe plaintiff was notified to recover and remit the fines. ThePrincipal Collector further threatened to detain the lighters pendingpayment. The plaintiff paid the money under protest to preventa detention of the boats, and sued the Attorney-General for therefund of the money.
Held, (l) The tindals had committed an offence under section104 of the Customs Ordinance, 1869, and the fines were legallyimposed and due from the tindals.
The Principal Collector had no right to detain the lighters.The detention could not be justified under section 31, whichrelates to boats unloading goods from a ship.
Plaintiff could recover the money paid, although it was dueto the Crown, as it was paid by plaintiff owing to the illegal threatof detention of the lighters.
“ If a public officer, whether in good faith or bad faith, seeksto enforce a claim against any person by the unlawful detentioneither of his person or of his goods, money paid under this pressuremay be recovered back.”
r I ^HE plaintiff In this action sued the Attorney-General for thereturn of a sum of money paid by him under protest to theCustoms Department to avoid the detention of his lighters by theCustoms authorities. These lighters were engaged in transportingimported rice from a bonded warehouse to some vessels in theharbour for shipment to the Maldives. Several hundred pounds ofrice, which were stolen by the crew, were found in the boats. ThePrincipal Collector of Customs imposed a fine on the tindals of theboats for attempting to defraud the revenue by not paying theCustoms duties. He requested the plaintiff to recover and -remitthe fines, and notified him that the lighters had been detained25—xxv.12(60)29
1928.
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1923.
Saibo v, TheAttorney*General
Hayley, for the plaintiff, appellant.
Akbar, Acting S.-G. (with him Fernando, <7.(7.), for the defendant,respondent.
November 26, 1923. Bertram C.J.—
This was an action in which the plaintiff claimed from the re-spondents the return of certain sums paid to the Customs Departmentunder protest. These sums consisted of four fines inflicted on fourtindals in the service of the plaintiff for certain alleged offencescommitted against the Customs Ordinance, No. 17 of 1869. Thesesums were paid to avoid the detention of his lighters by the Customsauthorities in pursuance of an order already made but not yetput into force. The facts are as follows: The lighters had beenengaged in transporting imported rice from the bonded warehouse, inwhich it had been temporarily lodged, to certain ships in the harbourfor shipment to. the Maldives. On a visit of inspection beingpaid to these lighters several hundred pounds of rice were found onboard. It was contended on behalf of the plaintiff that the riceso found merely consisted of the sweepings of rice which naturallyfalls into the lighter during the process of transhipment, and ofwhich no account is ordinarily taken. Looking at the quantity ofthe rice found, its quality and condition, and the places in which ithad been stored, the learned Judge disallowed this explanation, andcame to the conclusion that this rice was the result of petty pilferings,and that the crews of the lighters had collected it with a view to itsunlawful disposal, and incidentally with a view to evading the pay-ment of Customs duties to which it would be liable. Mr. Hayley’scriticisms of this finding of fact were not without force, butthere is ample evidence to justify the conclusions of the learnedJudge, and there is no sufficient reason for interfering with them.The amount of duty which might have been recovered is no doubtextremely small, but the fine inflicted is a light one, and was nodoubt intended chiefly as a warning.
These being the facts, it now becomes necessary to. consider thelaw. What offence had the tindals committed ? The learnedJudge finds, and I think rightly finds, that they had committedan. offence against section 104 of the Customs Ordinance, in thatthey had “ dealt with goods liable to duties of Customs withintent to defraud the revenue.” The tindals were consequently
pending payment. The plaintiff endeavoured to obtain a remissionof the fine, and pending this correspondence the order for detentionwas not enforced. The fines were not remitted; and the plaintiffpaid the fines under protest, apprehending that if he did not paythe lighters would be detained. The District Judge dismissedplaintiff’s action for the refund of the money. He appealed,
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liable to have the amount of the penalty recovered from them as aforfeiture by an action under the section.
The Principal Collector of Customs purported to enforce thisforfeiture by an order for the detention of the vessels, and in sodoing he claimed to act under sections 82 and 101 of the CustomsOrdinance. Those sections prove on examination to have no. application to the case. The learned Judge, however, held thatthe detention might be justified under a particular provision ofsection 31. The provision is in the following terms
“ If any goods be found in a boat without a boatnote, as aboveprovided for …. the boat containing such goods may be
detained …. and …. such boat and such goods shallbe liable to forfeiture.” With very great respect, I am not able totake the view of this provision which the learned District Judgehas taken, and in my opinion it has nothing to do with the case.The provision is not a general provision relating to all boats foundin the harbour. It must be read as part of the section in which itoccurs. That section relates to boats unloading goods from aship. Not only is the provision particularized by its context, it isalso particularized by the words “ as above provided for.” TheSolicitor-General seeks to read these words as though they wereequivalent to “ as above described,” but the two expressions are notsynonymous. If the section were drafted, in the modem manner,in a series of sub-sections, and if this part of the section were in aseparate sub-section and read “ If any goods be found in a boatwithout a boatnote, as provided for in sub-section (1) hereof,” therecould be no possible doubt of the construction. In any case it isabsurd to suppose that any boat found under any circumstances inthe harbour with goods on board is liable to forfeiture, unless itcan produce a boatnote signed by the officer of some ship. In myopinion the section in no way justifies the threatened detention ofthe lighters. __ * N ■
On the infliction of the fine, th_e Principal Collector of Customsaddressed a notice to the plaintiff dated February 15, 1922, inform-ing him of the offence committed by bis tindals and of the penaltyimposed. It requested him to recover and remit the amount asearly as possible, and notified him that his lighters had been detainedpending payment. The lighters were not in fact detained. Theplaintiff entered into a correspondence with the Principal Collectorof Customs and attempted to justify his tindals or to obtain remis-sion of the fine, but without success. Pending this correspondence,the order for detention was not enforced. The plaintiff finding hisefforts fruitless, and apprehending that if he did not pay the moneyhis lighters would be detained, paid the money under protest andbrought this action for its recovery, claiming in his plaint that histindals had committed no offence, and that his boats were not liableto detention.
1*23.
Bertram
C.J.
Saibo v. TheAttorney -Genera!-
( 324 )
1923*
Bertram
C.J.
Saibo v9 TheAttorney-General
Under the law as above explained the legal position appears to bethat the money was in fact due from the tindals, but that the Prin-cipal Collector of Customs was not entitled to order the detention ofthe lighters in order to enforce the payment. What then are theplaintiff’s rights under the circumstances ? The Solicitor-Generalcontended that inasmuch as the money was actually due, it couldnot be recovered from the Government as money had and receivedto the plaintiff’s use, and that if the plaintiff had any complaintabout the unlawful seizure of his lighters, he must seek his remedyin an action in tort against the officer personally-responsible, suchan action, under our local decisions, not lying against the Govern-ment. This contention of the Solicitor-General has on the face of ita certain ingenuity and plausibility, but fortunately for the interestsof the subject it is erroneous. It is not the law that an officer ofGovernment may enforce a lawful claim by unlawful pressure, andthat the Government may thereupon retain the money so enforced.
Under the Roman-Dutch law the present action is not strictlyspeaking a condictio indebiti as was assumed in the course of theargument. The action known as condictio indebiti will be foundexplained in Voet 12, 6. It is an action for the recovery of moneywhich was not due, but which was voluntarily paid under mistake.The action would more strictly come within the condictio describedin thb previous chapter, the condictio ob iniustam causam. One ofthe illustrations of the action given in paragraph 4 is, “ cum repetiturid, quod ex stipuiatione per vim extorta solutum est” that is to say,the recovery of a payment made in pursuance of a promise extortedby force. In English law the action is known as the action formoney had and received. The classical exposition of the principlesof this action is to be found in the judgment of Lord Mansfield inMoses v. Macferlan}
“ This kind of equitable action to recover back money, whichought not in justice to be kept, is very .beneficial, andtherefore much encouraged. It lies only for money which,ex Sequo et bono, the defendant ought to refund : it does notlie for money paid by, the plaintiff, which is claimed of himas payable in point of honour and honesty, although itcould not have been recovered from him by any course oflaw; as in payment of a debt barred by the Statute ofLimitations, or contracted during his infancy, or to theextent of principal and legal interest upon an usuriouscontract, or for money fairly lost at play: because in allthese cases the defendant may retain it with a safe con-science, though by positive law he was barred from recover-ing. But it lies for money paid by mistake; or upon aconsideration which happens to fail; or for money got 1
1 (1760) 2 Burr. 1005 ; 97 E. B. 676.
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1923.
Bhbtbam
C.J.
Saibo v* TheAttorney-General
It has been shown by William David Evans in an interestingappendix to his translation of Pothier's Law of Obligation (editionof 1806, vol. //., p. 378) that for every material phrase of thispassage Lord Mansfield had the authority of an express provisionof the Civil law, so that the English law on the subject may betreated as identical with the law of this Colony.
In English law it has been long settled by a series of cases that ifa public officer, whether in good faith or bad faith, seeks to enforcean unlawful claim against any person by the detention either of hisperson or of his goods, money paid under this pressure may berecovered back. One of the best statements of this principle willbe found in the judgment of Lord Abinger B. in AUee v. Backhouse}How, then, does the English law stand on the question of theenforcement by unlawful pressure of a lawful claim ?
In Sowell v. Champion 2 execution was issued against the goods ofthe plaintiff in pursuance of a lawful debt, but in a place to whichthe process did not run. The judgment-debtor who paid the bill inorder to recover the goods brought an action in trespass, and it washeld that he was entitled to recover in damages the whole value ofthe goods, and not merely the amount of damage which he hadsustained by their, being taken in a wrong place. Lord DenmanC.J. said: “ Parties are not to extort even what is justly due bythe improper execution of a warrant. It might lead to the mostfatal consequences if we were to hold otherwise. The person whotakes upon him to exact money by an authority which he does notpossess is bound to repay what he has so levied.” Patterson J.said ; “ I am of the same opinion. As to the amount of damages,the reduction would not perhaps be mischievous in the present case ;but I am afraid of the principle that would be established if weheld, where money has been levied by an illegal course of proceed-ing, the damage to be taken into consideration is only the amountof injury actually sustained. AH kinds of irregularities wouldfollow if such a doctrine were admitted.”
See also Clark v. Woods? A writ of execution was issued for therecovery of poor rates, but by a mistake a sum of six shillings forcosts was unlawfully included. The Justices issued a warrantcommanding the constable to arrest the plaintiff until payment of
' (1838) 3 M. db W. 650 ; 150 E. B. * (1838) 6A.&E. 407 ; 112 E.B. 156.
1305.3 (1848) 2 Ex. 395; 154 E. B. 545.
through imposition (express or implied) or extortion; oroppression ; or an undue advantage taken of the plaintiff'ssituation, contrary to laws made for the protection ofpersons under those circumstances.
“ In one word, the gist of this kind of action is that the defendant*upon the circumstances of the case, is obliged by the ties ofnatural justice and equity to refund the money.”
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the sum. The amount was paid under protest, and it w&s held thatin an action in. trespass the plaintiff was entitled to recover, notmerely the six shillings costs, but the whole sum exacted. Platt B.observed that the law is perfectly clear that where a person has asum of money extracted from his pocket by unlawful means he isentitled to recover the whole of such amount back again.
In Pitt v. Coomes1 a judgment-debtor was taken in execution ona judgment, but the arrest was irregular because it was made whilehe was returning from Court. He paid the amount of the judg-ment into Court, and in a subsequent application he was heldentitled to recover the whole sum, notwithstanding that it waslegally due. Lord Denman C.J. said: “ The arrest, we think,was illegal. The consequence is that the money was improperlyextorted. In saying so, I do not mean to say that the proceedingwas corrupt, but the money, having been the price paid to recoverliberty when improperly taken away, must be restored.”
It might be argued on behalf of the Solicitor-General, that in thetwo cases first cited the action was an action in tort and would notlie against the Government, whereas the present action is an actionunder an implied contract. There is, however, nothing in this.The measure of the plaintiff’s right is the^ame, whether it is deter-mined in contract or in tort. What he may recover as damages inone action he may recover on the implied contract in the other.
If the Solicitor-General were right, then, even in an action in tortagainst tlje Principal Collector of Customs (there being no circum-stances to justify the infliction of exemplary damages), the damagesrecoverable in such a case as the present would be merely nominal.Perhaps the best answer to the contention is, in the words of LordMansfield : “It (that is, the action) lies for money which ex aequo etbono the defendant ought to refund.” This is the principle both ofthe Roman and the English law.
I may further note that' even if the Solicitor-rGeneraTs contentionwere right, the answer which Mr. Hayley made to it in the presentcase would of itself be sufficient. The fines, indeed, were due, butthey were not due from the plaintiff, but only from his tindals. Iam not satisfied that he would ever have thought of discharging theliability of his tindals, but for the threat of detention against his ownvessels. ^ Inhis action he challenged both the fine and the detention.He did not expressly say “ even though the fine is due from thetindals you cannot recover it by detaining my boats,” but it wQuldnot be ex aequo et bono that under such circumstances a man shouldbe tied down to the terms of his protest. It is not, however,necessary to consider this point. For the reasons I have given,I am of opinion that the appeal must be allowed with costs.
Pouter J.—I agree.
Appeal allowed.
> {183;) 2 A. 4b E. 459 ; 111 E. JR. 178.
1923.
Bertram
C.J.
Saibo v. TheAttorney-General