068-NLR-NLR-V-16-SOURJAH-v.-FALEELA-et-al.pdf
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[Full Bench.]
Present: Laseelles C.J. and Wood Benton and Pereira JJ.
SOURJAH v. EALBELA et al.
M. C. Colombo, 427.
Prosecution for failure to remove projection on road after notice—Bonafide claim of right based on long possession—Municipal CouncilsOrdinance of 1910, s. 157—Ordinance No. 23 of 1910t s. 6.
The accused were charged under section 157 of the Munioipa*Councils Ordinance of 1910 with having failed to remove withinfourteen days of notice an alleged projection into the street. Theyset up a bona fide claim based on long possession by way of defence.
Eeldt that as title to the road cannot be based on prescription(section 6 of Ordinance No. 23 of 1910) accused could not set up abona fide claim by way of defence.
Lascelles C.J.—It is true that Where a claim is made bona fideit is not the duty of a Magistrate to ascertain whether it is wellfounded; but it is well settled that the jurisdiction of the Magis-trate is not ousted where it is clear on admitted facts that the lawwill not admit of the claim set up—where, in other words, the claimis impossible in law.
Wood Renton J.—Bona fides in cases of this kind are not byitself sufficient to exclude the jurisdiction of the Police Magistrate.There must be a bona fide claim of right; that is to say, the personcharged must be in a position to allege what, if established, wouldbe a good legal ground of defence.
Pereira J.—The last proviso to section 157 does not apply toa case where a person establishes title .or a right to a portion ofground claimed as a part of the road, but is used by him as his own
property; It refers to suoh encroachments, obstructions, and
projections, temporary or otherwise, on or over what is proved tobe or admittedly is road and made or erected lawfully; that is, forinstance, with the sanction, where such sanction is duly providedfor by law, of the proper local authority.
rpHE facts are set out in the judgment.
E. W. Jayeivardene, for the appellants.—This is a matter for aCivil Court. The appellants have a bona fide claim to the portionof road. They have possessed it for over thirty years. [PereiraJ.—You cannot base your claim on prescription; s.ee OrdinanceNo. 23 of 1910.] The appellants have also a paper title. [Laseelles
J.—You did not base your claim on any deed in the PoliceCourt.] Counsel cited Akbar v. Slema Lebhe.1
Hayleyt for the respondent (not called upon).
Cur. adv. vult.
1913.
i (1893) 2 C. L. R. 175.
February 4, 1913. Lasoblles C.J.—
This is a case which was reserved for the opinion of the Full Courton a question of the construction of section 15? of the MunicipalCouncils Ordinance, 1910. The appellants, who are the owners ofa building bearing assessment Nos. 53-55, Old Moor street, wereoharged and oonvicted under the above-menticmed section withhaving failed to remove within fourteen days of notice an allegedprojection or encroachment into the street, consisting of a masonryflight of steps in front of their house.
The argument for the appellants is that they at the trial set upa bona fide claim of right which ousted the jurisdiction of the con-victing Magistrate. The question which then arose, and whichwas reserved for the opinion of the Full Court, was whether such adefence was admissible in a prosecution under section 157, inasmuchas the latter portion of the Bection apparently enables the Councilto take action with regard to projections and encroachments whichhave been made lawfully as well as with regard to those whichhave been made unlawfully.
At the argument our attention was directed to section 90 b,added to the Road Ordinance, 1861, by section 6 of theRoad (Amendment) Ordinance, 1910, the effect of which is thatthe laws under which rights are acquired by right of possession oruser do not apply to roads.
The effect of this alteration in the law is fatal to the contentionthat the defendants set up a bona fide claim of right, for the onlyclaim of right which was seriously put forward was based on longpossession, which, under the amended law, could not found anyclaim to rights on a road.
It is true that where a claim is made bona fide it is not the dutyof a Magistrate to ascertain whether it is well founded; but it iswell settled that the jurisdiction of the Magistrate is not oustedwhere it is clear on admitted facts that the law will not admit ofthe claim set up—where, in other words, the claim is impossible inlaw. (Vide Arnold v. Morgan1 and Coles v. Miles.3)
In the present case the only ground set up was one which in lawcould not support the claim.
I am of opinion that the jurisdiction of the Magistrate was notousted, and that the, appeal should be dismissed. In the circum-stances of this particular case, and without laying down any ruleas to payment of costs in appeals of this nature, I do not thinkthat any order, should be made as to costs.
Wood Renton J.—
There can be no doubt as to what our decision in this case mustbe. The Police Magistrate has found as facts, and the evidencewarrants the finding, that the flight of steps in front of the appellants’* (1911) 2 K. B. 822.* (1888) 67 L. J. M. C. 132.
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■house projects over the pavement and stands on a portion of thestreet. The only defence set up at the trial in' the Municipal Courtwas a plea of prescriptive title. That is perfectly clear from therecord; but by section 6 of Ordinance No. 23 of 1910 the Legislaturehad declared that no person shall be entitled to any exclusive rightsof ownership, possession, or user in respect of any, portion of a roadby reason of his having, whether before or after the Ordinance cameinto operation, had any possession or use thereof. The eSect of thisenactment is to exclude the sole defence relied upon at the trial.The appellant, in his evidence in reply to a question by the Court,said that he had not brought his deed with him. He did not say,however, that he had any deeds, and we may be quite sure that ifhe had been in a position to set up a paper title he would havedone so at the proper time. In view of the provisions of section 6 ofOrdinance No. 23 of 1910, it is unnecessary to consider the questionof the appellants bona fides. Bona fides in cases of this kind arenot by itself sufficient to exclude fhe jurisdiction of the PoliceMagistrate. There must be a bona fide claim of right; that is tosay, the person charged must be in a position to allege what, ifestablished, would be a good legal ground of defence (see Coles v.Miles,1 Arnold v. Morgan 2). The appellants cannot do so here. Iwould dismiss the appeal.
IMS.
WoodSmnroN J.
Sourjah v.Faleela
Pereira J.—
It is clear that the new section (section 90 b) 'added to the BoadOrdinance, 1861, is fatal to the right set up by the appellants, andI agree that the appeal be dismissed without costs.
I may add that in my opinion the last proviso to section 157of the Municipal Councils Ordinance, 1910, does not apply to acase where a person establishes title or a right to a portion of groundclaimed as part of a road, but is used by him as his own property.In that case thfere would be no encroachment on a road, or destruc-tion of it, or projection over it. The proviso refers to such encroach-ments, obstructions, and projections, temporary or otherwise, on orover what is proved to be or admittedly is road and made or erectedlawfully; that is, for instance, with the sanction, where such sanctionis duly provided for by law, of the proper local authority.
Appeal dismissed.
1 (1888) 67 L. J. M. C. 182..
* (1911) 2 K. B. 322.