SANFORD v. WARING

146-NLR-NLR-V-02-SANFORD-v.-WARING.pdf


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SANFORD v. WARING.C.t Kandy, 6,436.
Recovery of land—Action rei vindicatio against servant of Crown in'Temporary occupation-.—Recovery of land in wrongful possessionof the local Government—Action against Attorney-General—Actionfor tort against the Crown.
Per Bonser, C. J.—Land in the possession of the Crown cannot berecovered in a suit against the servant of the Crown who is in-temporary occupation of it as such servant; the* only way bywhich a subject can recover his land which he alleges to be inwrongful-' possession of the local Government of this Island is byan action brought against the Queen’s Attorney-General of theIsland.
1896.
June 16,18,and 23, andOctober 16.
The proposition taken for granted in Siman Appu v. The Queen's'Advocate (9 Ap. Cases, 571), that an action for tort would not lieagainst the Crown as represented by the local Government of .thisIsland on the ground that the law with respect to the immunityof the Crown from being sued in such actions extends to this Island,queried by Bonser, C. J.
r£,HE facts of the case appear in the judgment of Bonser, C.J.
Domhorst and Wendt, for appellant.
Bamanathan, Acting A.-G., and Loos, for respondent.
15th October, 1896. Bonser, C.J.—
This is an action brought to establish the plaintiffs’ title to anundivided one-third share of a large tract of forest, some 5,000acres in extent, of which the Crown is in possession, and to recover 'the same. The defendant is sued in his official capacity as ChiefResident Engineer of the Haputale Railway Extension.
The plaintiffs allege that they are entitled to this land under asaunas made by the last King of Kandy in favour of theirpredecessor in title. The defendant disputes their title on variousgrounds, and more particularly on the ground that this forest wasnot included in the grant made by the sannas.
We heard a long argument on this point, the result of whichwas to leave on my mind the impression that the plaintiffs havemade out their case in this respect. But there is a fatal objectionto the plaintiffs’ action which renders it unnecessary to enter uponthis question..
It was admitted by Mr. Do/Shorst, who argued the case onbehalf of the plaintiffs, that this is an action rei vindicatio, and thaties object was to recover land whichr-if occupied by the defendant,was occupied by him, not in his private capacity, but in his
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1896.
June 16, IK,and 23, andOctober 16.
Bouses, C. J.
capacity of a servant of the Crown. The Government of Ceylon hasconstructed and works this railway extension, and part of the landBought to be recovered is occupied by the railway line and works.
Can land in the possession of the Crown be recovered in a suitagainst the servant of the Crown who is in temporary occupationof it as such servant ? In my opinion it cannot.
I put the case during the argument of an action rei vindicatiobeing brought against the bailiff or servant as such of a personalleged to be in possession of the property sought to be vindicated,and asked Mr. Dornhorst if he could produce any precedent orauthority for such an action ; but, as I expected, none was forth-coming. From Voet’s statement of the law (Com. ad Pand., VI.1-22) it seems clear that property can only be effectually recoveredby the owner in an action against the wrongful possessor, i.e., theperson who occupies the property, either himself or by his agent,with the animus domini. If the action be brought against anudus' detentor he is entitled to be dismissed from the action. as soon as he discloses the name of the person on whose behalfhe detained the property. In the present case it appeared on theface of the plaint that Mr. Waring was nudus detentor, holding onbehalf of the Crown, and the action ought therefore to have beenat once dismissed.
In my opinion, the only way by which a subject can recoverhis land, which he alleges to be in the wrongful possession of thelocal Government of this Island, is by an action brought againstthe Queen’s Attorney-General for the Island.
It was said that there are decisions of this Court which havelaid down that such ao action will not lie against the Attorney-General; but when these cases are examined it will be foundthat all that Was decided is that an action for tort cannot bemaintained against the Attorney-General in respect of the wrong-ful act of a Government servant.
The question of suits against the Crown in this Island wasconsidered by the Privy Council in the case of Siman Appu v.The Queen’s Advocate (9 Ap. Cases, 571), where it was held that an.action for breach of contract would lie against the Crown. Thatdecision was based on the ground that a long-continued course ofpractice of the Courts to allow such actions' had been recognized'by the local Legislature.,
Their Lordships said : “ The 117th section of Ordinance No. 2“ of 1868 runs as follows u—
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All suits instituted in the nameof theQueen’s Advocate onbehalf of theCrown for therecovery of anydebt, damage, or demand, ortoobtainpossec-sion of any property, provided the amount or value in dispute exceeds
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£10, may be instituted and prosecuted, at the discretion ofthe Queen’s Advocate, in the District Court held at the principaltown of the Province in which the defendant resides, or in whichthe cause of action shall have arisen wholly as to any part, or inwhich such property is situated ; and all suits instituted by any privateparty against the Queen’s Advocate wherein the amount or value in'dispute exceeds £10 shall, unless the Queen’s Advocate consents toforego such right, be instituted and prosecuted in the District Courtheld at the principal town of the Province in which the act, matter, orthing in respect of which any such suit shall be brought shall havebeen done or performed, or in which the property in dispute is situated,and the said District Court shall have cognizance of and-power to hearand determine such suits as if the cause of action had arisen withinthe district.
“ It appears to their Lordships that the latter part of that section“ would be deprived of its meaning, unless it is held that, in the“ view of the Legislature, suits might be instituted by private“ persons against the Queen’s Advocate for the recovery (amongst“ other things) of debts and damages. It is said that to give that“ meaning to the Ordinance would prove too much, for it would“ include actions for damages ex delicto, which, as every one admits,
“ cannot be brought against the Crown. But it does not follow“that because the words are wide enough to include actions ex“ ddicto they must do so. They are not words adapted to confer a“ new right or to establish a new kind of suit. They are only“ regulative of rights and proceedings already known, and they“ must be construed according to the state of things to which they“ clearly refer. They can therefore receive a full and sufficient“ meaning without extending them to actions ex delicto, but they“ cannot receive a full and sufficient meaning—indeed, it is.difficult •
“ to assign them any substantial operation at all—unless they“ embrace actions ex contractu."
Now, every word of that reasoning applies equally to actions torecover land. The words “ or to obtain possession of any pro-“ perty ” cannot be given any meaning unless they apply to actionsrei vindicatio. Cayley, C.J., who had himself been Queen’s Advo-cate, said in Fernando’s case decided in 1881 (4 S. G. C. 77): “ Thepractice adopted here of suing the Crown in the name of the Queen’s“ Advocate, both in real actions for the 'recovery of specific property,
“ and in actions for the recovery of moneys due ex contractu, has“ prevailed here for a long series of years, and has been recognized by“ this Court in hundreds of decisions ; indeed has not, so far as we
“ carf ascertain, ever been called in, question until now.”
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But their Lordships, although they decided the case on the groundabove mentioned, intimated that had it been proved that theright of a subject to sue the sovereign by his officer existed in
ISM.
June IS, IS,and 23, andOctober IS.
Bouses, C.J..
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1896.
June 16, IS,■and 23,-andOctober 16.
Bonseb, C.J.
Holland under the Roman-Dutch Law, they would have held thatthe right now existed in this Island. At page 685 of the report thispassage occurs:—
There certainly seems no more antecedent reasons why the Counts ofHolland should be exempted from suit through their officers than existedfor the exemption of the King of Scotland. And though it is very likelythat whilst great potentates, like the Dukes of Burgundy an,d the Kingsof Spain, were Counts of Holland, it would not be very safe to sue them,■yet when the United Provinces became independent, suitors might findthemselves more favourably placed.
“ But whatever speculations may be made upon these points,“their LordBhips cannot advise Her Majesty that such was the“ Roman-Dutch Law, unless it is shown to them that it was so.
“ And neither the researches of counsel nor their own have enabled“ their Lordships to attain any certainty on the subject.”
That some such remedy against the Fisc or Imperial Treasuryexisted under the Roman Law is plain from the language of Voet:
“ Non tamen hanc patiuntur actionem (i.e., rei vindicatio) qui• “ rem alienam a fisco emerunt, aut a Principis ueZ August x domo ■
“ eo quod hi statim securi sunt; sola adversus fiscum actione intra“ quadriennum indutia Us, qui pro rei alienatce dominio putaverint" aliquant sibi competere petitionem ” {Com. ad Pand., VI.. 1-23).So also, treating of the sale of an heraditas, he says that the purchaseris safe “ Cum ententes a fisco statin securi sint et fiscum ipsum ven-“ dentem convenire debeat, quis-quis judicio contendere cupit, ad se'“ venditam pertinere hereditatem ” (18, 4, 8).
The same passages show that in Voet’s opinion that was the lawof Holland in his day, and this right to sue the Fisc is recognized inHoUandsche Consvltatien (bk. IV. 128).
There is a curious case mentioned by Kotze, C.J., of the Transvaal,in the notes to his translation of Van Leeuwen’s Commentaries (p.ll),from which it appears that the Sovereign States of Holland sub-mitted themselves to the jurisdition of their own Court, and on the28th July, 1501, were ordered, as defendants, to pay unto Philip ofSpain, the plaintiff, compensation for damages which had beencaused to his house in Rotterdam.
Again, I find a case in the Hollandsche Consvltatien (bk. IV. 123)where the Fiscal of North Holland, on being sued, excerptedto the plaintiff’s right to sue on the following grounds': “ Quasi“ Fiscus qui principem npresentat, in jus vocari non possit sine“ venia, de jure avtem vasallvs dominum subditvs principem injusvocare absque venia non potest, argumento sumpto a liberto“ ad Patronum.” The plaintiff replied that the plea ought to be“ rejected : “ Quia inquit hoc non solere in Principe cbservari [for
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“ actions were brought every day against the Procurer-General aod 1896-“ Fiscal] qiii fiscus surd principem que repreaentatit rum petita venia,’’ and*i3,’an!dand the Court accordingly overruled the plea and ordered the October is.defendant to answer. It does not appear that these authorities Bonser, C.J.were cited to the Privy Council in the case of Siman Appuv. TheQueen's Advocate. They would seem to show that the Governmentof the United Provinces might be sued through its officers.
That the Attorney-General in this Colony is the proper officerto be sued is clear. Until quite recent times he was styled AdvocateFiscal. Although the style was changed first to Queen’s Advooateand then to Attorney-General, no substantial change was made inthe duties of the office, and now section 456 of the Civil ProcedureCode expressly enacts that “ all actions by or against the Crown“ shall be instituted by or against (as the rase may be) the Attorney-“ General.”
It seems to have been taken for granted in Siman Appu v. TheQueen’s Advocate that an action for tort would not lie against theCrown as represented by the local Government of this Island, onthe ground that the English Law with respect to the immunityof the Crown from being sued in such actions extends to this Island.
I am not prepared, as at present advised, to assent to thisproposition.
The more recent cases of Farnell v. Bowman {12 Ap. Cases, 643),and Wemyss, Attorney-General of the Straits Settlements (13 Ap.
Cases, 197), show that at the present day even in Colonies in whichthe English common law prevails there is a strong tendency tomake the local Government liable for the acts, even tortuous, of*their servants whenever the local enactments can be reasonablyconstrued to create or recognize such a liability.
I desire to leave this question open for further considerationwhen it arises for decision.
Then, as to the costs of this action.
The question of the competency of this action was heard anddecided against the defendant before the other issues were framed.
.Had the defendant appealed against that decision, as he mighthave done, the expense of the subsequent trial would have beensaved. The proper order therefore to make will be that the defend-ant will only have his costs up to and including the trial of thepreliminary issue of law. The appeal will be dismissed with costs.
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[Lawme, J., without committing himself to the opinion that an
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action in' ejectment would, 'in the circumstances of this case, have29-
1896.
June 16,18,and 23, and
October 16.
LawBia, J.
lam against .the Attorney-General as representing the Crow, agreed■with his Lordship the Chief Justice that, in the special circumstancesof this case, no action in ejectment lay against the defendant. He,however, rested his judgment on the view he took of the facts ofthe case, and agreed to affirm the judgment of the Court belowdismissing the plaintiffs’ claim.]