007-NLR-NLR-V-64-THE-ATTORNEY-GENERAL-Appellant-and-THE-NORTH-CEYLON-BUILDERS-AND-CONTRACTORS-.pdf
45
fl. N. G. FERNANDO, J.—Attorney-General v. North Ceylon Builders
and Contractors Ltd.
In my opinion the failure to consider the version of the appellantamounts to a breach of a legal requirement entitling the appellant toappeal on a ground of law. I grant the appeal. The costs of appealis fixed at Rs. 31-50.
Appeal allowed.
1980Present: Weerasooriya, J., and H. N. G. Fernando, J.
THE ATTORNEY – GENERAL, Appellant, and THE NORTH CEYLONBUILDERS AND CONTRACTORS LTD., Respondent
S.C. 17—D. C. Anuradhapura, 4984
Contract—Wrongful interference by third party—Performance of contract therebyprevented—Rights and liabilities of the parties.
Plaintiff company entered into a contract with the defendant (an IrrigationEngineer) on 4th June 1956 to transport and lay “ rip-rep ” (metal or stones)on a section of the bund of a tank before 31st August 1956. The value of thecontract was no Iosb than Rs. 45,900. Clause 6 of the agreement provided thatthe defendant could cancel the agreement if the plaintiff failed to makereasonable progress with the work.
Although the defendant was bound under the contract to give possession of thesite to the plaintiff company to carry out its work, he was prevented from doingso on account of intimidation and wrongful interference by third parties. Conse-quently the Company was prevented from making any progress with the work.The defendant therefore, cancelled the contract on 26th July, 1956.
Held, that the defendant was entitled to terminate the contract on theground that no reasonable progress had been made with the work, howeverunfortunate and reprehensible the causes of that situation were. Theintimidation and wrongful interference by third parties did not constituteprevention of performance of the contract on the part of the defend ant forwhom the work was to be executed.
Ap
PEAL from a judgment of the District Court, Anuradhapura.
V. Tennekoon, Senior Crown Counsel, for the defendant-appellant.
No appearance for the plain tiff-respondent.
Cur. adv. vult.
February 22,1960. H. N. G.. Fernando, J.—
In this action the Plaintiff Company successfully sued the Attorney-General for damages for alleged breach of a contract between the Plaintiff-'r Company and the Irrigation Engineer, Padaviya, for the transport andj laying;by the Company of “ rip-rap ” (metal or stones) on a section of the' Padaviya Tank bund.
46
H. N. G. FERNANDO, J.—-Attorney-General v. North Ceylon Builders
and Contractors Ltd.
In terms of the contract the Irrigation Engineer by his letter of 19thJune 1956 requested the Plaintiff Company to commence immediatelythe work specified in the contract. Accordingly the Plaintiff Companysent three lorries to the site on 24th June 1956 carrying the necessarymaterials and labourers. On tho following day the Company’s employeeserected three cadjan sheds for occupation by the employees during theirstay at the site. It seems clear that the site was land in the occupationof the Irrigation Department on behalf of the Government.
At about 5 p.m. on 25th June 1956 a crowd of Sinhalese people sur-rounded the camp site and told the Company’s employees (who were .presumably Tamil people) that they would not be allowed either to stay orto work at the site. The employees were assaulted and otherwise harass-ed by tho crowd. When the employees tried to interview the Engineerhe too was abused by the crowd. According to a letter P10 of 27th June1956 addressed by the Plaintiff Company to the Director of Irrigation,the Company’s employees were harassed and driven’out of the site andwere advised by the Irrigation Engineer to leave the site for their own.safety. In reply the Company was informed by Pll of 7th July 1956by the Director of Irrigation that “ subsequent developments haveoccurred as a result of which the performance of the contract*hadbeen rendered difficult ”. Subsequently by P12 of 26th July 1956 theIrrigation Engineer “ noted that it is impossible for you to carry out yourobligations under the agreement ” and informed the Company thathe had “ no other alternative but to take action under clause 6 of theagreement ”. This clause is in the following terms :—
“ If the Contractor fails to make reasonable pogress with the saidwork or fails to do the said work satisfactorily the Engineer may atany time at his discretion cancel this agreement and the contractorshall not be entitled, by reason of such cancellation to claim anydamages from the Government or the Engineer ”.
The third clause of the agreement required the Plaintiff Company tocomplete and hand over tho work on or before 31st August 1956. Con-sidering that the agreement was signed on 4th June 1956 and that interms of it the Company was requested on 19th June to commence workimmediately, and taking into account the value of the contract(Rs. 45,900), it was quite reasonable for the Irrigation Engineer todecide on 20th July to take action under Clause 6 of the contract.At that time no progress with the work had in fact been madeand it must have appeared most unlikely that even if work were tostart at once the contract could be completed before 31st August 1956.The learned District Judge however rejected the defence that the cancel-lation was validly made because the Plaintiff Company had failed to makereasonable progress with the work. The learned Judge took the viewthat having regard to the circumstances in which the Company’s em-ployees Avere compelled to leave the site on 26th June 1956, “ it wouldneither be fair nor reasonable to say that no reasonable progress hadbeen made ”.
47
H. N. G. FERNANDO, J.—Attorney-General v. North Ceylon Builders
and Contractors Ltd.
Reference is necessary in this connection to the Company’s letter PlOof 27th June 1956 in which the Company inquired from the Director ofIrrigation “ what steps you propose to take to enable us to carry out ourwork under the contract with security to life and property of ouremployees The letter further stated that “ the Government will befailing in their obligations towards us if no sufficient protection is affordedto us to carry out our work The District Judge thought that the deci-sion to terminate the contract was unreasonable because it was takenwithout first offering to the Company’s employees the ct security ” whichthe Company had requested and thus rendering it possible for the Com-pany to carry out the contract. It is clear that what the Plaintiff Com-pany contemplated was that the Government should afford protection tothe Company’s employees at the site by maintaining an adequate PolicePorce. In fact a temporary Police Station had been installed at Padaviyaearly in July 1956, but the Irrigation Department did not inform theCompany of this fact. Here too the District Judge thought that theIrrigation Engineer should have informed the Company of the presenceof the Police in Padaviya and invited them to resume work. Tire Com-pany’s counsel had submitted at the trial that “ principles of good con-duct ” required the Irrigation Engineer to convey this information andthis invitation to the Company.
While I agree that the work may probably have been resumed perhapssome time in July 195G if information concerning the establishment of aPolice Station bad been conveyed to the Company, I do not agree thatthere was any contractual obligation to convey such information or thatthe failure to convey it can be relied on by the Company as an excusefor not commencing the work when apparently commencement wouldhave been possible.
In Porter v. Tottenham Urban District Council1 the. plaintiff had con-tracted with the defendants to erect a building on a site provided by thedefendants. The owner of the soil of the road which gave access to thesite, by making an unfounded claim that the road was not a public high-way, delayed the building operation. It was held that the defendantswere not liable for wrongful interference on the part of a third party.Hudson on Building Contracts (7th Edition page 210 el se<j.) refers toseveral possibilities of prevention of performance of a contract on thepart of a person for whom work is to be executed. But there is noinstance cited where .circumstances such as those which arose in thepresent case have been held to constitute prevention of performance.The Irrigation Engineer undoubtedly had a duty under the contract tohand over the site to the Plaintiff Company in order that the PlaintiffCompany may carry out its contract. But the act of the Sinhaleseresidents of Padaviya, in threatening and intimidating the Company’semployees, did not constitute a default on the part of the Engineer incarrying out his obligation to give possession of the site. Undoubtedly,
i {1915) 1 K. B. 77G,
48H. N. G. FERN.ANDO, J.-—Altomey-Oeneral v. North Ceylon Builders
and Contractors Ltd.
interference with, and intimidation of the Company’s employees mighthave been prevented or minimised by the presence of the Police atPodaviya. Even though it may be correct that the Government owes aduty to protect its citizens, that is a duty to be performed by the PoliceDepartment and I doubt much whether any civil suit will lie against thepolice Department for a failure to carry out that duty. Still less can itbe said that an Irrigation Engineer owes an implied contractual duty tothe other contracting party to protect its employees against such inter-ference. It follows that one cannot imply a contractual duty to informthe other contracting party that such interference is not anticipated.If it be correct that work could have been resumed some time in July 1956because of the presence of the Police, that was a matter concerning whichthe Plaintiff Company should have informed itself and reached its owndecision.
So far as the rights and liabilities under the contract are concernedthe simple question decided by the irrigation Engineer whenhe terminated the contract on 26th July 1956 was that no reasonableprogress had been made with the work, and in fact no progress had beenmade at all, however unfortunate and reprehensible the causes of thatsituation.
The learned District Judge observes in his judgment that the PlaintiffCompany was not so much concerned in claiming damages as in vindicat-ing its position that the Company was not in the wrong or the guilty party.My opinion that the Irrigation Engineer was entitled in terms of the agree-ment to terminate the contract on 26th July 1956 does not carry with itany implication that the Company’s failure to make reasonable progresswith the work was in any way blameworthy. On the contrary, mybrother and I would like to express our regret that unlawful and deplorableconduct on the part of third parties prevented performance by theCompany of a contract which it was anxious to fulfil.
Eor the reasons stated the decree appealed from has to be set aside andthe Plaintiff Company’s action dismissed with costs in both Courts.
Weerasooriya, J.—I agree.
Appeal allowed.