010-NLR-NLR-V-65-SIDDAPPUHAMY-Appellant-and-ATTORNEY-GENERAL-Respondent.pdf
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BASNAYAKE, C.J.—Siddappuhamy v. Attorney-General
1982 Present: Basnayake, C.J., and Abeyesundere, J.
SIDDAPPUHAMY, Appellant, and ATTORNEY-GENERAL,
Respondent
, 3. C. 117/61—D. C. Kegalle, 12879
Crown Lands Encroachments Ordinance (Cap. 321)—■Section 2—Procedure at inquiry—Meaning of expression “ in a summary way"—Information must be filed byAttorney-General himself.
When, information of encroachment is laid under Section 2 of the CrownLands Encroachments Ordinance, the respondent must be given an opportunityof presenting his defence. The expression “ in a summary way” in theSection does not preclude the District Judge from trying the issues arising inthe proceedings as in an ordinary action between subject and subject.
Information of encroachment must be initiated in the prescribed form filedby the Attorney-General himself and not by petition filed by the Attorney-General's proctor.
Appeal from an order of the District Court, Kegalle.
M. L. S. Jayasekera, for Respondent-Appellant.
Mervyn Fernando, Crown Counsel, for Petitioner-Respondent.
June 13, 1962. Basnayake, C.J.—
On 19th March 1959 the Attorney-General through his Proctor inKegalle filed a petition in the District Court in which he stated—
“ 2. By virtue of the provisions of section 7 of the Crown LandsEncroachments Ordinance (Chapter 321) the Crown is entitled to theallotment of land depicted as Lot No. 8 in Preliminary Plan No. A-45situate within the local limits of the jurisdiction of this Court andmore fully described in the Schedule hereto.
“ 3. The said Lot 8 in P. P. A. 45 forms part of Lots 5088, 5089,5090 and 5097$ in Chena P. P. 241 of 1883, is forest land and has beenproclaimed a Reserved Forest by Gazette No. 5519 of 23rd December1897.
“ 4. On or about the 25th day of June 1957 the respondent above-named has without the permission of the Government, entered uponthe said land and illegally continues to be in possession thereof. Asketch of the said land is filed herewith marked “ A ” and pleaded aspart and parcel of this information.
“ 5. The land encroached on is reasonably worth Rs. 1000.”
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BASNAYAKE, G.J.—fiid<k»gpt*twny v. A.ttomay-$meral
The Attorney-General asked for an order directing Epalatotuwa Gama-ralalage Siddappuhamy, whom he named an respondent to his petition,and all those holding under him to deliver to Her Majesty through hex
agents and servants peaceable possession of a land known as KiridaaeMukalana depicted as lot 8 in Preliminary Plan No. A~45. With thepetition the Attorney-General also filed, an affidavit from the VillageHeadman of Kinigama Wasama. In it the affirmant stated—
“2. To the best of my knowledge and belief the said land belongsand has, at all material times, belonged, to Her Majesty, Her Heirs andSuccessors.
“ 3. The Grown is entitled to the said land by virtue of the provisionsof section 7 of the Crown Lands Encroachments Ordinance (Chapter321).
“4. The said land is depicted as Lot No. 8 in Preliminary PlanNo. A45 and is situate within the local limits of the jurisdiction ofthis Court.
“ 5. The said Lot 8 in P. P. A. 45 forms parts of Lots 5088, 5089,5090 and 5097i in Chena P. P. 241 of 1883, is forest land and has beenproclaimed a Reserved Eorest by Gazette No. 5519 of 23rd December1897.
“ 6. On or about the 25th day of June 1957 the respondent above-named without the permission of the Government entered upon thesaid land, took possession thereof and continues to be in possessionthereof. ”
The petition with the accompanying affidavit was entertained andsummons was ordered for 14th May 1959. On 17th September 1959 therespondent filed objections. He said—
t: 1. This respondent avers that he is in possession of premisesdepicted as Lot 5171 in Preliminary Plan No. 243 in extent SixteenAcres (A 16-R 0-P 0) situated at Epalatotuwa and more fully describedin the schedule hereto.
"2. That by virtue of Booth Settlement dated 29th June 1893Gamarallage Appuhamy and Hinhamy were declared entitled to theaforesaid premises and were in possession thereof.
“ 3. That Appuhamy and Hinhamy aforesaid lived in associationand died leaving as heir this Respondent who entered into possessionthereof.
“4. Further answering this Respondent avers that the identity ofthe land described in the plaint is in dispute and a Plan made withreference to Lot 5171 in P. P, 243 is neoessary for the proper determina-tion of this case.
" 5. This Respondent and his predecessors in title have been in theundisturbed and uninterrupted possession of the said Lot 5171 of thesaid land for a period of 80 years and upwards next before the grievances
BASNAYAKE, C.J.—Sidd@ppu.hamy v. Attorney-General
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hereinafter complained of by a title adverse and independent of thatof the plaintiff and all others and this respondent pleads the benefit of3rd clause of Ordinance No. 22 of 1871.”
He asked that either the petition be dismissed or that he be permitted tomake a plan with reference to Lot 5171 in P. P. 243 and the lot describedin the plaint.
At the hearing Crown Counsel objected to the respondent beingpermitted to lead evidence. He submitted—
“ The information was supported by affidavit and the Court wassatisfied on the evidence of that affidavit and process was issued. Hesays that when the respondent is present in Court in answer to theprocess the Court’s duty would be to examine him in a summary wayand ask him whether he has cause to show why an order should not bemade against him ordering him to deliver possession. The only causehe can show is that he is in possession with the permission of theGovernment. As the section now stands he cannot come into Courtand tiy to claim title because if he has some bona fide title, section 3gives him the remedy and, in fact, he can even claim damages.”
When the counsel for the respondent sought to lead evidence in supportof his case, the learned District Judge made order refusing to permit himto do so and intimated to him that he was prepared to hear only suchevidence as would enable him to prove that the respondent was in posses-sion of this land with the permission of the Government and nothingmore.
The learned District Judge was wrong in not allowing the respondent tolead evidence. Section 2 reads—
“ It shall and may be lawful for the District Court, upon informationsupported by affidavit charging any person or persons with having,without the permission of the Government, entered upon or takenpossession of any land which belongs to, or which immediately priorto such entry or taking possession was in the possession of Her Majesty,Her Heirs, or Successors, to issue its summons for the appearancebefore it of the party or parties alleged to have so illegally entered uponor taken possession of such land, and of any other person or personswhom it may be necessary or proper to examine as a witness or witnesseson the hearing of any such information; and the said District Courtshall proceed in a summary way in the presence of the parties, or incase of wilful absence of any person against whom any such informationshall have been laid, then in his absence to hear and determine suchinformation; and in case on the hearing thereof it shall be made toappear by the examination of the said party or parties, or other sufficientevidence to the satisfaction of such District Court, that the said partyor parties against whom such information shall have been laid hath orhave entered upon or taken possession of the land mentioned or referredto in such information without the permission of the Government, such
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BASNAYAHE, C.J ,—tSiddajrpuhamy v. Attamay-General
District Court is hereby authorized and required to make an orderdirecting each party or parties to deliver up to Her Majesty, Hear Bairs,or Successors, peaceable possession of such land, together with allcrops growing thereon, and all buildings and other immovable propertyupon and affixed to the said land,and to pay the cost of such information;and in case the party or parties against whom any such order shall havebeen made shall not, within fourteen days after service thereof, deliverup possession of the said land and premises, pursuant to the said order,or shall afterwards make or cause to be made any further encroachmentsupon the said land or premises, contrary to such order or in evasionthereof, then and in such case it shall be lawful for such District Courtto adjudge such party or parties to pay a fine not exceeding fiftyrupees, or to be imprisoned, with or without hard labour, for any timenot exceeding fourteen days, and to make a further order for theimmediate delivery over of the possession of such land and premisesto Her Majesty, Her Heirs, or Successors ; and the District Courtshall thereupon cause possession thereof to be delivered to Her Majesty,Her Heirs, or Successors, accordingly.”
The procedure prescribed in the above section is the ancient Englishprocedure by information. Informations are of two sorts; first, thosewhich are partly at the suit of the king, and partly at that of a subject;and secondly, such as are only in the name of the king (Tomlin's LawDictionary, Vol I). It is the latter sort of information we are concernedwith here. The informations that are exhibited, in the name of theSovereign alone, are also of two kinds ; first, those which are truly andproperly his own suits, and filed ex officio by his own immediate officer,the Attorney-General; or, during a vacancy of that office, by the Solicitor-General. Secondly, those in which, the king is nominal prosecutor,yet it is at the relation of some private person, or common informer,and they are filed by the king's coroner and attorney in the Court ofKing’s Bench, usually called the Master of the Crown Office, who is forthis purpose the standing officer of the public (ibid). Of those two kindsof informations we are here concerned with the first viz. those which aretruly and properly the Sovereign’s own suits and filed ex officio by herown immediate officer, the Attorney-General. The Sovereign’s ownprosecutions filed ex officio by the Attorney-General were in the case ofsuch enormous misdemeanours, aa peculiarly tend to disturb or endangerthe government, or to molest or effxont him in the regular discharge ofhis royal functions, filed in the King’s Bench Division ; but informationsin the form of suits for recovering money or other chattels, or for obtain-ing satisfaction in damages for any personal wrong committted in thelands or other possessions of the Crown, were filed in the ExchequerDivision. We are here concerned with the last mentioned class of informa-tion instituted to redress a private wrong, by which the property of theCrown is affected; as distinct from the information that is filed in theKing’s Bench Division calculated to punish some public wrong or heinousmisdemeanour in the defendant. The information filed in the ExchequerDivision is grounded on no writ under Seal, but merely on the intimation
BASNAYAKE, C.J.—Siddappukamy v. Attorney-General41
of the Attorney-General, who “ gives the Court to understand and beinformed of ” the matter in question; upon which the party is put toanswer, and trial is had, as in suits between subject and subject. Themost usual informations are those for any trespass committed on thelands of the Crown, as by entering thereon without title ; holding overafter a lease is determined; taking the profits; cutting down timber ; orthe like (ibid). As the law relating to Information in the ExchequerDivision is not easily ascertainable the Judges of this Court in 1842 maderules and orders regulating the procedure under section 2. They arein accord with the law stated above and are set out in an Appendix tothis judgment as they are not readily available in the provincial lawlibraries.
The learned District Judge appears to have misconceived the procedureto be followed under section 2 and been led by the learned Crown Coun-sel’s submissions to hold that the expression summary way ” precludedhim from trying the issues arising in the proceedings as in an ordinaryaction between subject and subject. The expression “ summary way ”in this context cannot be and is not a reference to the summary procedureprescribed in the Civil Procedure Code which is a later legislative instru-ment. The “ summary way ” contemplated by the section is the summaryprocedure known to criminal proceedings as opposed to non-summaryprocedure where the Court does not try the matter but holds a preliminaryinvestigation with a view to committing the case for trial to a higherCourt. The words " hear and determine ” imply that the person whohas to answer the complaint after being cited by summons should havean opportunity of presenting his case (Dwarris on Statutes, p. 671, 672).There is also the legal requirement in the law relating to informationsthat in a proceeding by way of Information in the Exchequer Divisionthe trial is had as in suits between subject and subject. That requirementis reflected in rule 4 of the Rules of Court reproduced in the Appendixhereto which provides that the District Court shall inquire into thematters charged in the Information by hearing the witnesses producedin support thereof, and for the defence ; and by the examination of theparty or parties relative thereto, if such examination shall appear tothe Court necessary or expedient.
In the instant case the respondent was denied the opportunity ofpresenting his defence. He denies that he is a trespasser on Crownland, claims that the land he is in possession of is not the land describedin the petition, and claims title to the land he is in possession of. Apartfrom the refusal to hear the defendant there is a further fundamentalobjection to these proceedings. They have been initiated by petitionfiled by the Attorney-General's proctor and not by Information in theprescribed form filed by the Attorney-General himself as is requiredby law. The summons issued on the defendant is also not in the properform. Learned Crown Counsel’s submissions were wrong and the learnedJudge erred in upholding them.
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BASSTAYAKE, C,J.—Siddapptt&amy v. AUamfyA^mmil ^- ■ ,
At tbs hearing of this appeal whsa we allowed the appeal neithercounsel drew our attention to the Rules sod Orders referred to aboveand we therefore made order quashing the proceedings and directedthe District Court to give the respondent a hearing. But before thejudgment passed the Seal of the Court the Rules and Orders referredto above came to our notice and we directed that this case be listedafter notioe to the respective counsel so that we may prior to deliveringthis judgment hear the Attorney-General as a further fundamentaldefect which went to the root of the proceedings had come to light sincewe heard this appeal. We have now heard Grown Counsel and we 6eeno reason to revise our conclusion that the proceedings which should beinitiated by information have not been so initiated and that the petitionfiled by the Attorney-General's proctor is not in law an “ Information
We dismiss the petition with costs both here and below.
Abeyesthtdebe, J.—I agree.
Appeal allowed.
APPEND X
Rules and Orders, for regulating proceedings under the Ordinance No 12 of 1840,entitled “ An Ordinance to prevent encroachments upon Crown Lands ”
PROMULGATED ENT OPEN COURT ON THE SIXTEENTH DAT OF
DECEMBER, 1842
It is Ordered, that from and after the fifteenth day of January next all Informa-tions exhibited by the Queen’s Advocate, or any Deputy Queen’s Advocate, invirtue of his office, charging any persons with having committed a breach of theOrdinance No. 12 of 1840, entitled “ An Ordinance to prevent encroachmentsupon Crown lands,” shall be, as near as may be, in the form following :—
In the District Court ofFiledday of
A. B. Esquire, Deputy Queen’s Advocate for the District of, who
prosecutes for and on behalf of Her Majesty, presents and gives the Court to beinformed.
That C. D. late ofin the District of
on theday oflast,
atin this District of
(here set forth distinctly the. nature and description of the offence, as the case may be)contrary to the provisions of the Ordinance No. 12 of 1840 entitled “ an Ordinanceto prevent encroachments upon Crown lands, ” in that behalf made and provided .
Wherefore upon due proof and Conviction thereof the said A. B. prays the Judg-ment of the Court against the said C. D. according to Law.
The Secretary of the Districc Court shall upon order of Court as soon as maybe after the filing of any such information, and of the affidavit in support thereofrequired by the said Ordinance issue and deliver to the Fiscal the process of thesaid Court, for compelling the appearance, before the said Court, upon such dayas the District Judge shah appoint, of the Defendant to answer the charge, of thewitnesses in support thereof, and of such persons a* the said Defendant may desireto have summoned in his behalf; and the said Fiscal shall serve a copy thereof on theDefendant, and on each of the witnesses therein named, and shall at the time ofserving such copy on the said Defendant, ascertain from him she names and placesof abode of the persons whom he requires to be summoned on bis behalf, and shall
Peiris v. De Silva
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thereupon forthwith serve on each of such persons a copy of the said process; andthe said process shall be by Summons under the hand of the said Secretary, and asnear as may be in the form following.
In the District Court of
To the Fiscal of the said DistrictSummons
C. D. ofto appear personally before this
Court aton the day ofnext at
o’clock in the forenoon, then to answer, and abide the Judgment of this Court, uponthe Information of B. Esquire, who prosecutes for and on behalf of Her Majesty,that the said C. D. (here shortly insert the particulars of the offence charged.) and summonalso E. F. ofG. H. of
&c., and such persons (if any) as you shall be required by the saidC. D. to summon on his behalf, that they and each of them be and appear personallyat the day and place aforesaid, to testify all they and each of them know concerningthe said charge.—Serve on each of them the said C. D.—E.C.—G. H. &c., a copyof thi3 summons and return to this Court on that day what you have done thereon.
Dated attheday of
If either party, having neglected or omitted to cause any person or personsto be summoned to give Evidence on his behalf in manner aforesaid, shall desireto compel the appearance of any such person or persons to give Evidence at theTrial, he may sue out theprocess of the Court for that purpose ; which shall be bysummons under the hand of the Secretary in the form in use in other prosecutionsbefore the said Court.
On the day on which the Summons is returnable the District Court shall,unless the said Court shall see fit to order the hearing to be postponed to somefuture day, inquire into the matters charged in the Information, by causing theSecretary to read the same, by hearing the witnesses produced in support thereof,and for the defence; and by the examination of the party or parties relative thereto,if such examination shall appear to the Court necessary or expedient. Providedthat if the Prosecutor do not appear on such date the Information shall,be dismissed.
The service of all Summonses and orders issued, or made, by any DistrictCourt under or by virtue of the Ordinance No. 12 of 1840, or under or by virtue ofthe foregoing Buies and Orders, shall be made by the Fiscal in the same manner asis provided to be done in other prosecutions before the said Court.