089-NLR-NLR-V-57-THE-ATTONEY-GENERAL-Appellant-and-G.-N.-RUSSEL-Respondent.pdf
1955'Present : Gratiaen, J., and Swan, J.
THE ATTORNEY – GENERAL, Appellant, and G. N. RUSSEL,
Respondent
S. C. 21 {Tnhj.)—D. C. Colombo, 32,-125 M
Uclict—Action ayainst -public ofpeer—Substitution oj Attorney General as parly de-fendant—Effect—Cit'il procedure Code, ss. 4C2, 4G-3.
If in nn notion in tort ngninst n public officer the Attorncy-Geiicrnl is substi-tuted under section 403 of the Civil Procedure Code in tlie place of the pnrfvdefendant, the same issues nrise as would have arisen in the notion ngninst thepublic officer himself; if the plnint irf’s'cnusc of notion ngninst the public officer isestablished the decree is entered ngninst the .-VI1 orncy-Genorn! and will be satis-fied in the snrtio wnv ns nnv other decree nwnrding relief ngninst the Crown.
A PIMjAL from an order of tlu: Risliic-t Court, Gulomlio.
J'. 'Tenncl.oon, Crown Counsel, for the petitioner—appellant -,SJ. Kailirejrunar, for the plaintiff-respondent.
Cur. titlr. rult.
November 11, 1955. Ghatiaen", J.—
This is an appeal by the Attorney-General against an order refusinghis application under section 463 of the Civil Procedure Code (as amendedby section 5 of the amending Act No. 4S of 1954) to be substituted as aparty defendant in an action between private parties.
The plaintiff had sued Mr. R. G. Senanayake of Gregory’s Road,Colombo,on 29th June 1954 to recover Rs. 6,600 as damages. The action is foundedin tort-, tho allegation being that, shortly prior to 16th Starch 1954, Mr.Senanayake had “intentionally or knowingly and without legal justifica-t ion ” induced or procured the Gallo Face Land and Building Company Ltd.to commit a breach of its subsisting agreement with the plaintiff for thetenancy of a residential apartment in Galle Face Court. Air. Senanayakeentered an appearance in the action on 16th July 1954 and was directedto file his answer to the plaint on 20th August 1954, on which date heapplied for, and obtained, an extension of time until 3rd September 1954.A further indulgence was granted him until Sth October 1954, but on theprevious day the Attorney-General made an application under section4G3 (as amended) to be substituted as a party defendant on the groundthat he (the- Attorney-General) had “ undertaken the defence of the saidIt. G. Senanayake The application was supported by Air. Senanayake’saffidavit to the effect that he had held the office of Atinister of Commerce,Trade and Fisheries at all times material to the cause of action set outin the plaint, and had continued to do so until 10th July 1954.
Section 463 of the Civil Procedure Code, in its original form, provided nsfollows :—
“ 463. If the Government undertake the defence of an action againsta public officer, the Attorney-General shall apply to the Court, and uponsuch application the Court shall substitute the name of the Attorney-General as a party defendant in the action.”
By virtue of section 5 of the amending Act No. 4S of 1954, winch passedinto law pending th: present action, section 463 now reads :
“ If the Attorney-General undertakes the defence of an action againsta Jfinis/er, Parliamentary Secretary or public officer, tlxe Attornej’’-Gcne-ral shall apply to the Court, and upon such .application the' Courtshall substitute the name of the Attorney-General as a party defendant• in the action.”•
The Attornej1'-General’s application seems to have been viewed by theplaint iff with considerable apprehension. The action having been filedon the basis that Mr. Senanayake had personally committed an actionablewrong, it was feared that his sudden disappearance through “the trap-door”,so to speak, of section 463 might leave the plaintiff (if he established hiscause of action) without a judgment-debtor. Moreover,, so Mr. Kadirga-mar explained, doubts were entertained as to whether the substitution ofthe Attorney-General as defendant might not completely alter the charac-ter of the litigation so as to divest the plaintiff of his remedjr against the .only person who could be held directly liable under the law of this countryfor the tort complained of. Let me summarise the suggested consequences :the Crown enjoys complete immunity in Ceylon from liability for tortscommitted by one of its executive officers (be ho a Cabinet Minister or onlya subordinate servant of the Crown). Was it not therefore open to theAttorney-General, upon his substitution, to plead that no judgment couldbe entered against him (as legal representative of the Crown) in respect ofMr. Senanayake’s personal tort ? In all these circumstances, the plaintiffexpressed a strong preference for proceeding against Mr. Senanayake.alone.
Having explained these apprehensions to the learned District Judge, Mr.Kadirgamar raised a number of objections to the Attornej’-General’sapplication, and relied in particular on the argument that section 463,having been amended only after the action commenced, could not operateretrospectively to deprive the plaintiff of rights which had previouslyaccrued to him. This latter objection was upheld bjr the learned Judge.
During the argument in appeal, I pointed out that, upon a properconstruction of section 463 (in its original as well as its amended form),there was no substantial reason for fearing the consequences which theplaintiff has in contemplation. The section, when invoked, can neveroperate to tho detriment of a plaintiff who establishes that he has sufferedinjury at the hands of a public officer. It merely empowers the Attorney-General, in cases which seem to him appropriate, to indemnify a plaintiffagainst (for instance) actionable wrongs committed by public officers orservants. In reaching this conclusion, I am fortified by the statementmade to us by learned Crown Counsel that no other interpretation is sug-gested on behalf of tho Attorney-General. It is indeed a matter forregret tluit this assurance was not also given in the Court below.
The true scope of sect ion 463 must be examined in the background of thoCrown’s continued (but much deplored) immunity in this country fromliability for the torts of its public officers. This immunity is precisely the
same as it was in England until the Crown Proceedings Act of 1947passed into lair.. In Ceylon, therefore, what Lord Atkin (then Atkin L. J.)said in Mackenzie v. Air Council1 is still correct :
“ The Crown itself can do no wrong, and the public revenue cannot bemade liable without the Crown’s consent to remedy wrongs committedby servants of the Crown. ”
Only the individual public officer who commits or authorises tho com-mission of a tort is answerable in law to the victim of his wrongful act ;and it is no defence for him to say in such a situation that he had acted inobedience to the orders of the executive government or of anyone else.Since the King can do no wrong, he can authorise no wrong. ”
In England, before the Act of 1947 was passed, government depart-ments frequently resorted to a beneficial device for making the publicrevenue available for the settlement of claims for tort in situations wherea moial obligation was considered to be imposed upon the Crown. TheTreasury Solicitor would, on request, nominate a party against whom theplaintiff could institute proceedings. The Crown stood behind the“nominal” defendant in the litigation, and, if tire plaintiff succeeded,the Crown made an ex gratia payment of the sum awarded as damages.Put tho Courts eventually refused to recognise this colourable devicein Adams v. Naylor – and Royster v. Carey 3. Henco tho Crown Pro-ceedings Act, 1947.
But in Ceylon, the Code of Civil Procedure expressly provides machinery.by which the Crown may do justice in similar situations withoutresorting to the subterfuges which had been found necessary to achievethat end untlbr the earlier English practice. Section 4G3 in its originalform contemplated a case in which “ the Government ” undertakes thedefence of an action against a public officer. Once that has been done,the Attorney-General “ shall ” (the word is imperative) apply for substi-tution as a defendant, and the Court “ shall ” (the word is once again im-perative) allow the application. By this means, effect was given to“ the Crown's consent to remedy wrongs ” committed by a public officer.In any action that is continued after the Attorney-General’s substitution asdefendant, the same issues arise as would have arisen in the action againstthe public officer himself ; if the plaintiff's cause of action against thepublic officer is established, a decree is entered against the Attorney-General. As any decree against tho Attorney-General in his representat ivecapacity is in truth a decree against the Crown, the judgment-debt ispaid from public funds, although, procedural^-, section 462 prohibitsthe issue of a writ of'execution against the Attorney-General (eitheras an original or a substituted defendant).
It will thus be seei that the Government’s decision to “ undertake thodefence ’’-connotes a great deal more than a mere decision to providelegal representation for the public officer concerned. It involves theacceptance of responsibility by the Crown for tho satisfaction of thodeereo which might otherwise have boon awarded in favour of thoplaintiff against the public officer individually.
1 119-27) 2 K. 13. 517 at Sol.1 (191G) -4. C. 515.
3 (1917) K. B. 207.
But was the learned District Judge correct in deciding that thosubstitution and addition of certain words which now appearin section 463 (as amended after this action commenced) have tosome extent altered or enlarged the scope of its machinery ? Ido not think so. The section now applies if “the Attorney-General” undertakes tho defence in tho action against thepublic officer. This does not mean that the decision is the personaldecision of “ Mr. So-and-so who happens to be the Attorney General ofCeylon ”. On the contrary, it is made on behalf of and in the name ofthe-Crown acting through its traditional and constitutional representativein any litigation in which the Grown is interested in our Courts. Beforethe amendment, tho term “ Government of Ceylon ” was equivalent inthis context to “the Crown”: Le Jlesurier r. La yard*, and the latersubstitution of the words “ Attorney-General ” introduces a distinctionwithout a difference.
Let us now consider the effect of the express inclusion of Ministers and'Parliamentary Secretaries in the class of persons whose defences may be -“ undertaken ” by the Attorney-General. I am perfectly satisfied thatthese words were also added out of an abundance of caution and in orderto remove doubts as to what was always obvious. Ministers and Parlia-mentary Secretaries hold office under the Crown. Podi Singho v.Goone-singhe-.They are “public officers” within the meaning of
section 463 in its original form, and the language of the amending Actserves only to emphasise their inclusion.
Bor these reasons, the amendment of section 463 after the presentaction commenced does not offend the prima facie rule against retros-pective legislation ; it has in no way enlarged the ambit of tho Crown’sright of intervention in a special class of private litigation. The Courthad therefore no option but to allow the Attorney-Genera I to be substi-tued for Mr. Senanayake as a party defendant. Indeed, Mr. ICadirgamarmade it clear to us that, if the Crown’s acknowledgment of the correct-ness of this interpretation of section 463 has been communicated to theplaintiff in the lower Court, the application would hot have been res-isted. The true position is now made clear, and I repeat it only to avoidthe possibility of anj misunderstanding as to the legal affect of the orderwhich I propose. The defence which’ the Attorney-General lias under-taken is in truth tho defence of Jfr. Senanayake. Tho real issues arisingfor adjudication will be whether Mr. Senanayake was personally liable indamages upon the cause of action pleaded in the plaint'. If those issues beanswered in favour of the plaintiff, the decreeWill be entered against theAttorney-General and will be satisfied in the same way as any other decreeawarding relief against tho Crown. Upon this understanding, I wouldallow the appeal, and direct that the Attorney-General be substituted asdefendant in the place of the original defendant. In all the circumstancesof the- case, the costs of this appeal and of the argument in the Courtbclcw should bo costs'in the case.
Swan*, j.—I agree.-
Appeal allowed.
l94S) 49 xV. L. R. 344.