THE COLOMBO ELECTRIC TRAMWAY CO. v. THE ATTONEY-GENERAL et al

048-NLR-NLR-V-16-THE-COLOMBO-ELECTRIC-TRAMWAY-CO.-v.-THE-ATTONEY-GENERAL-et-al.pdf


( 161 )
Present; Wood Benton J. and Ennis J.
THE COLOMBO ELECTBIC TBAMWAY CO. v. THEATTOBNEY-GENERAL et al.
63—D. C. Colombo, 31,840.
Action against the Crown far damages arising out of tort—Not maintain-
able—Action against the “ Government of Ceylon ”—Action against
servants of the Crown for damages for wrongful acts 'done by them—
Roman-Dutch law—How much of it was introduced into Ceylon.
The Grown cannot be sued in tort in Ceylon*
The plaintiff company sued the Attorney-General of Ceylon andMessrs. Cole Bowen and Bakewell, engineers in the employment ofthe Government of Ceylon, for a declaration that the plaintiffcompany had a right to navigate its boats on the Beira lake,Colombo; for an injunction restraining the defendants fromfurther obstructing the navigation and to remove the presentobstruction; for damages, Bs. 8,250, up to. date of action, or inthe alternative Bs. 300,000 by way of compensation or damages inlieu thereof.
Held, that the plaintiff company could not maintain the actionas it was one of tort*
Wood Benton J.—The appellants might perhaps have avoidedthe objection that their action was one of tort by striking out theirallegation that the acts of the respondents were wrongful and *unlawful and the claim for damages, and praying only for adeclaration of title. But this they have expressed no willingnessto do.
Courts have gradually enabled the subject in Ceylon to obtainby action against the Crown the relief that the subject in Englandobtains by petition of right, but nothing more.
An action of tort is not maintainable against the “ Governmentof Ceylon.”
Wood Benton J.—I am unable to regard as serious the conten-tion that the Government of Ceylon can.be treated as. if it were astatutory corporation, such as the Municipal Council of Colombo,entirely distinct from, and entitled to none of the immunities of,the Crown.
Ennis J.—In any case in which the Crown inaCeylon could besued there is no material distinction between the terms Govern-ment of Ceylon ” and “ Crown.”
Wood Benton J.—The appellants might, if they had chosento do so, have sued the second and third respondents as individualsfor any unlawful and wrongful act committed by them, evenalthough they had only acted on behalf or by the authority of theCrown.
Vol. XYI.6
IMS*
s 16–J. N. 86177 (1/34)
iM8.
ColomboEUctficTramwayCo. o.Attorney-General
( 162 )
Ennis J.—Obiter, individual members of the Government arenot liable in damages for acts done by them in the ordinary courseof their dirties and in obedience to the orders of the Government,'which axe not necessarily or manifestly unlawful.
Ennis J*—The Roman-Dutch law which prevails in Ceylon is notthe entire bulk of that law, but only so much of that Dutch commonlaw as can be shown to be applicable, or of the Dutch statutory lawas can be shown to have been specially applied.
Wood Renton J.—It is well settled in Ceylon that if any rule ofthe Roman-Dutch law is found to be inconsistent with the wellestablished practice of the Colony, the reasonable inference is thatit was never introduced into Ceylon.
A PPEAL from a judgment of the District Judge of Colombo**(H. A. Loos, Esq.). The facts appear sufficiently from the
judgment.
Bawa, K.C., de Sampayo, K.C., H. J. C. Pereira, DrieHerg, andHayley, for the plaintiffs, appellants.—This is not an action in tort.Even if the action is one of tort, the action is maintainable againstthe Crown. In conquered countries the laws remain in force untilaltered by the conqueror (6 Hahbury 421). Under the Roman andRoman-Dutch law even actions ex delicto lay against the Fisc.Counsel cited Vm Leeu, Kotze I., p. 12, note (h); Dutch Consul*tations, bk. 4, p. 123; Borb’s Domain, XVI. Decl., s. I; Voet, 1, 3,15; 2, 4, II; 6, 1, 23; 18, 4, 8; 43, 16, 5; Nathan, vol. I., pp. 406and 407; Nathan, vol. I., p. 38; Perezius, bk. 10, tit. 1, sec. 46.
The actions which lay against the Fisc can now be broughtagainst the Attorney-General. The Proclamation of September28, 1799, has expressly conserved the Roman-Dutch law in allmatters.
In a conquered or ceded colony no branch of the royal prerogativeis in force unless it is a necessary incident of sovereignty, or unlessit could be regarded as a continuation of the prerogative of theconquered or ceding power.'
The maxim that ** the King can do no wrong ” does not apply toCeylon. Under the Roman-Dutch law there is no such prerogative.
Where the common law is not the English law, the prerogativeof the King is not to be decided on the principles of English law.The Crown Debts Ordinance would be unnecessary in Ceylon if theEnglish prerogatives are in force in Ceylon. The prerogativenullum tempus occurit regi does not apply to Ceylon, though it is aprerogative of the King.
There are several Ordinances introducing the English law inseveral matters, and not one of the Ordinances refers to theprerogatives of the King.
It is not right to say that the Crown can be sued on contract andnot in tort.
1018.
( 168 )
U the English, prerogative as to immunity of the Sovereign frombeing sued exists in Ceylon, it ought to be held to exist in its entirety.
It has been held in a senes of eases that the Crown could be suedchi contract or for vindication of title. It is illogioal to concedethese actions and to hold that an action in tort does not lie.
Sections 456 et aeq. of the Civil Procedure Code do not place anylimitation on the right of the subject to sue the Crown. The term“ action ” is defined in the Code as a proceeding for the preventionor redress of a wrong. The term “ cause of aotion ” is defined asthe wrong for the prevention or redress of which an action may bebrought, and includes the denial of a right, the refusal to fulfil anobligation, the neglect to perform a duty, and the infliction of anaffirmative injury. Sections 456 et aeq. do not draw any distinctionbetween actions ex delicto and ex contractu; and the terms “action”and “cause of action” include all kinds of actions, including actionsex delicto. The Code must, therefore, be taken to have recognizedthe right of the subject to bring an action even in tort against theCrown.
Judicial opinion is not quite unanimous on the question whetherthe Crown can be sued in tort. In Newman v. Queen’a Advocate 1Clarence J. thought that an action which was one of tort based ona contract was maintainable against the Crown. In Sanford v.Waring 3 and in Le Meaurier v. Layard 3 Bonser C.J. was inclinedto the opinion that the Crown can be sued in tort in Ceylon. Coun-sel also cited Simon Appu. v. Queen’a Advocate,* Fraaer v. Queen’aAdvocate,5 Don Hendrick v. Queen’a Advocate* Attorney-General ofthe Straits Settlements v. Wemyas,r Famett v. Bowman.*
If section 117 of Ordinance No. 11 of 1868 indicates a waiver ofthe prerogative of the Crown, there is no reason why the waivershould be restricted to actions ex contractu and not extended toactions ex delicto.
Even if the action is one of tort, and even if the action is notmaintainable against the Crown, it is maintainable against the" Government of Ceylon.” The “ Government of Ceylon ” cannotclaim .all the prerogatives which the Crown possesses. Counselcited Fraaer v. Queen’s Advocate ,* In re Holmea.*•
The present action is not an action in tort. It is an action inthe nature of an action for declaration of a right, for an injunctionand compensation. Plaintiffs, as members of the public, bring thisaction to vindicate a public right of navigation over the lake, onthe footing that the interruption of the right of navigation hascaused them special damage. An action for declaration of title isusually based upon a wrong or a tort—the wrongful ouster. But,
(1884) 6 S. C. C. 29.5(1888) Bom. 68-68,816.
(1896) 2 N. L.~B. 861.*Q881) 4 S. C. C. 76.
(1898) 8 N. L. B. 221.7(1888) 18 A. C. 197.
(1884) 9 A. C. 586.•(1887) 12 A. C. 643.
• (1861) 2 J- <k- B. 627.
ColomboElectricTramwayCo. t>.Aitomey-Qmeral
&a.
ColomboElectricTramwayGo. v.Attorney-General
( 164 )
nevertheless, the action rei vindicatio has been permitted againstthe Crown. Counsel cited St. James and PaU Mail ElectricLighting Co. v.Bex,1 Ranhamy v. Wijehamy.1
In any case the action can be maintained against the second andthird defendants, who cannot plead any immunity from being sued.The maxim that "the King can do no wrong” cannot be pleadedby the servants of the King as a shield for their illegal acts.Counsel cited Raleigh v. Goschen.*
The public have acquired a light to use the lake and the shores.The Crown has no title to the bed of the lake. Counsel cited'Simpson v. Attorney-General,* Marshall v. Ulleswater Company.*The Government has dedicated the lake to the public by itsProclamation of October 23, 1848.
Section 66 of Ordinance No. 10 of 1861 indicates the procedure thatis to be followed by the Crown when it desires to alter an existingthoroughfare or lake. That procedure was not followed here. Theacts complained against were ultra vires.
The evidence shows that the lake has been used by the publicfrom time immemorial, and that it is not the exclusive property ofthe Government. The public have acquired rights over the lake.
Garvin, Acting S.-G.(with him Akbar, C.C.),ior the respondents.—The passages cited do not bear out the proposition that the Crowncould be sued in tort under the Roman-Dutch law. The passagecited from 1 Nathan 406 and 407 does not support this proposition.The original passage from Voet 43, 16, 5, indicates that the actionthere referred to was created by statute. The word used is“ statuendum." See Casie Chitty’s translation. The statutorylaws of Holland must be shown to have been speciallyapplied in the colonies; otherwise such laws do not apply to thecolonies. r See Karonchihamy v. Angohamy* Silva v. Balasuriya.7
The passage in Voet 18, 4, 8 (Berwick 96) is not an authorityfor the plaintiffs' contention. The action there referred to wasgiven as an act of grace to a person whose lands were transferred bythe Fisc in view of the doctrine of the Roman-Dutch law that salesby the Fisc were indefeasible. This doctrine was not introduced intoCeylon; and the action was given to the subject as an act of grace..
There is nothing to show that the passage from the Dutch Consul-tations refers to an action in tort. The passage in Bort on Domain:refers to disputes as regards regalia, and not to actions in tort.
There are 'three decisions of the Full Bench which have held thatthe Crown cannot be sued in tort. See Fraser v. Queen's Advocate,*Don Hendrick v.Queen's Advocate,* Newman v.Queen's Advocate.1*
1 (1904) 9&I/. T. N. 8. 844.•{1904) 8 N. L. B. 1, at page 19.
3 (1912) 14 E. L. R. 176.7(2911) 14 N. L. R. 462.
3 (2898) 1 Ch. 73.3(2888) Bom. 83-68,316.
am 4. C. 478.•(2882) 4 S. C. C. 76.
(1871) L. R. 10 Q. B. 166.»®(1883) 6 8. C. C. 29.
( 166 )
Ordinance No. 5 of 1835 and the Ordinance No. 11 of 1868 (section117} did not make a waiver in favour of the' subject as to any partof the royal prerogative. A practice had grown up in Ceylon ofsuing the Crown in certain cases where in England a petition ofright lay. These Ordinances only regulated the procedure. Butthe right to sue was not created by the Ordinances. The practiceprobably arose as there was no provision for a petition of right inCeylon.
The Civil Procedure Code has not made any alteration in the law.It is unthinkable that the Legislature would have adopted such anindirect and clumsy method of making such a radical change in thesubstantive law affecting the royal prerogative after the PrivyCouncil had held that an action in tort does not lie against the Crown.
Chapter XXXI. of the Civil Procedure Code no doubt speaks ofactions against the Crown. It does not follow from the sectionsthat every type of action is maintainable against the Crown. Thesections merely indicate the procedure to be adopted in actions by oragainst the Crown.
Where the Government desired to assume liability fpr a tort ithas done so by express legislation. See Bailway Ordinance, No. 9of 1902, section 18; Post and Telegraphs Ordinance, No. 11 of 1908,sections 34 and 35.
Attorney-General of the Straits Settlements v. Wemyss1 and Far-nel v. Bowman 2 proceed upon the interpretation of the statutes ofNew Zealand and the Straits.
If the plaintiffs cannot maintain the action as one of tort, canthey maintain this as one for declaration of title to this alleged rightof navigation? The action then is based either on a private rightin themselves, or they sue as members of the public. The plaintiffscannot and do not claim a right of servitude over the lake, whichcan possibly exist only in the case of riparian owners; the rightmust be in respect to the ownership of another land. Counsel citedDe Silva v. Weerasinghe,3 Ranhamy v. Wijehamy,* Don Davith v.Agiris,s D. C. Jaffna, 8,690.*
If the plaintiffs claim to base their action on their rights asmembers of the public, they cannot maintain this action. Theaction must be brought by the Attorney-General. A member ofthe public may maintain this action if he proves special' damages.In that case the action cannot be maintained against the Crown, asit is one of tort. No doubt an action rei mn&catio is an actionbased upon a tort in the Bense that it is based upon an ouster.But it is not an action rei vindicatio that is allowed against theCrown, but only an action for a declaration of title on the footingthat a petition of right would have been allowed in. England.
(1888) 13 A. C. 197.4 T3912) 14 N. L. B. 176.
* (1887) IS A. C. 643.* (78®) 3 Bel. 168.
(1898) 1N. L. R. 808.• (3879) 8 S. C. C. 196.
1918.
ColomboElectricTramwayCo. o.Attorney-General
£913.
{ColomboElectric'TramwayCo. 0./Attorney-General •
( 166 )
The fact that the Crown has waived its right not to be sued fordeclaration of title in respect of property claimed by an individualas his private estate is no authority for the proposition that theCrown has allowed the subject to sue it with respect to a right sharedby an individual as a member of the public. The petition of rightwould not lie in England, and therefore an action for declarationof title would not lie in Ceylon in such a case.
The Boman-Dutch law action tei vindicatio was limited in itsscope, and was allowed to one individual against another individualto recover property belonging to him. It was not recognized as amode of declaring a public right (Voet 6, 1, 2; Casie Chitty 10).
If the Crown is not the owner1 of the lake, it must vest in the public.There is no authority for saying that it vests in each member of thepublic. The action must* therefore, be instituted. by the publicas a whole, if it can be instituted at all. The Attorney-Generalrepresents the public, and the action must be brought by him, andnot by an individual member of the public.
The prerogative of the British King exists in all the conquered orceded colonies, whether the prerogative was enjoyed by the previousSovereign or not. Liquidators of the Maritime Bank of Canada v.Receiver-General of New Brunswick.l
The action brought by the plaintiffs is clearly against the Attorney-General as representing the Crown. The notice of action makesthat clear (see D 39). But it does not matter whether the actionis brought against the “ Crown ” or the “ Government of Ceylon.”The terms means practically the same thing. See Le Mesurier v.Layard.2
If there is a distinction between the terms, and if the plaintiffsare suing the Government of Ceylon, then the action must fail,as the Attorney-General does not represent the Government ofCeylon but the Crown.
The plaintiffs were asked at the trial to say whether they suedthe second and third defendants in their official capacity or in theirprivate capacity. They would not answer that question. Theycannot now turn round and say that they are suing these defendantsin their individual capacity. In these circumstances, no applicationto amend the plaint should be allowed at this stage. See RaDeigh v.Goschen 2 The appeal as against the second and third defendantsfails.
The lake, even if it be a natural lake, as contended by the plaintiffsis the exclusive property of the State. Under the later Bomanlaw and the Boman-Dutch law things which were considered respublic#, under the old Boman law were treated as the property ofthe State or Sovereign.
2 (1898) 8 N. L. B. 227.
i (1892) A. C. 437.
* (1398) 1 Ch. 78.
IMS.
( 167 )
After the Republic was overthrown, and on the return of theEmperors, all that class of property known as res publica becamepart of the regalia (vide The Lex Regia', Buchanan’s Translation ofVoet 64), The public as such ceased to be capable of holdingproperty.
Property thereafter was either State property or privateproperty. Neither the later Roman law nor the Roman-Dutchlaw recognized such a thing as public property in the sense thateach member of the public had a proprietary interest in it (videLeyaer vol. I., pp. 255 to 260; Hemecius, pp. 202-204, section 328.
Groenewegen, who is a recognized authority on the Roman-Dutchlaw, makes it clear that that law required a definite owner for eachsubject of property, and that such a thing as property belonging tothe public was neither recognized nor favoured (vide his De LegatisAbrogatio 18, 19).
Grotius refers to lakes, rivers, &c., as belonging to the State, i.e.,the Government of the United Netherlands, which succeeded theKings of Holland (vide bk.2, tit. 1, section 25, bk.2, tit. 35, section 9,pp. ■63 and 226).
Voet recognizes the right of the princeps to grant permission tobuild on streets, and gives as his reason the fact that such streetsbelong to the princeps (vide Buchanan 68).
There is nothing to show that the Roman-Dutch law recognizedsuch a thing as public property in the sense in which the lake is saidto be public property.
The public being incapable of holding property could not acquiresuch a right even by dedication, which necessarily implies a granteecapable of holding property.
The Legislative Council has approved of the action of the Govern-ment in filling up the lake. It is not open to the subject to questionthe acts of the Government, which have received the sanction of theLegislature. The Government has complied with the provisions of *section 66 of Ordinance No. 10 of 1861. A resolution of Councilwas passed approving of the scheme, and the Legislature votedmoney for this scheme. This amounts to Parliamentary authority.
The right to ferry is the exclusive right of the Crown both underthe English and Roman-Dutch law. Wood Renton's Encyclopediaof the Laics of England, vol. 6, p. 50; Addison 633; Voet 49, 14, 3;Nathan vol. I., section 94; Buchanan’s Reports for 1868, p. 134.The plaintiffs had no grant of a right to ferry.
The plaintiffs have failed to prove special damages. In this casedamage could only have been sustained if the plaintiffs had a legalaccess to the lake. It is admitted that the lands at both terininiiwere Crown property, and that the plaintiffs were only tenants atwill. The Crown had, therefore, perfect right to stop the access.Stoppage of the access necessarily meant stoppage of the ferryservice. The damage complained of arose out of the stoppage of
ColomboEleetfieTromteagCo. o.Attomeo-Oeneras
IMS.
( 168 )
ColomboElectricTramwayCo. o.Attorney-General
access to ona terminus. The Crown had a right to do that. Thefilling up of the lake thereafter caused no special damage to plaintiffs.
Dedication .cannot be inferred from the Proclamation of 1848.The Proclamation only means that the lake was assigned to theProvincial Road Committee as opposed to the District Road Com-mittee for purposes of maintenance. The Proclamation was not madeby the Governor as representing the King, but merely as a creatureof the Ordinance for,the purpose of carrying out a classification ofthoroughfares into principal and minor. The Ordinance was neverintended to create or confer rights which did not exist before. Itwas merely intended to provide funds for what were or thought tobe thoroughfares. The Ordinances of 1844, 1848, and 1861 indicatestrongly thkt thoroughfares were regarded as property of theSovereign. (Vide sections 20-23 of Ordinance No. 16 of 1844; andsections 37, 67, 69, 72 of Ordinance No. 8 of 1848; and sections 9,84, and 89, &c., of Ordinance No. 10 of 1861). There is nothing inany of these Ordinances to show that there was any intention toconfer any proprietary rights on the public. Ordinance No. 12 of1840, which was intended to prevent encroachments upon Crownlands, embrace public roads and streets (vide section 10). This isin accord with the Roman-Dutch law, that all these which were respublica under the Roman law became the property of the Sovereign.
Bawa, in reply.
Cur. adv. vult.
April 15, 1913. Wood Renton J.—
The plaintiffs-appellants—a limited company—sue the Attorney-General of Ceylon and Messrs. Cole Bowen and Bakewell, engineersin the employment of the Government of Ceylon, for alleged wrongfuland unlawful acts done by the second and third respondents inthe course of reclamation works carried on in and about the Beiralake in Colombo.
The following paragraphs of the plaint disclose the materialfacts:—
3. The plaintiff company says that the Beira lake in Colombo,commonly called and known as the Colombo lake, which is situatewithin the town of Colombo within the jurisdiction of this Court, is apiece of water in extent about 416 acres, over which the public alwayshad and have a free right of navigation and passage in all directions bymeans of .boats, canoes, and other vessels, and that for a long periodbefore and at the time of the grievances hereinafter set forth there wasof right and ought to have been through, over, and along all parts of thesaid Colombo lake and in all directions a public and common waterwayand right of navigation in boats, canoes, and other vessels for all the.King’s subjects to go and return at their own will and pleasure. Never-theless, the second and third defendants, being engineers employed bythe Government of Ceylon 'as aforesaid, their servants' and agents, inor about the month of April, 1910, wrongfully and unlawfully, andoontrary to and in violation of the aforesaid rights of the public, began
1918.
( 1<» )
to fill up and have sinee filled up with earth, bricks, and divers quantitieserf other materials a large portion of the said lake, namely, at thatportion coloured brown in the sketch or plan filed herewith as part ofthis plaint, whereby the public were prevented from exercising theirright aforesaid in and over that portion of the Colombo lake.
The plaintiff company says that in or about the year 1899 itpurchased and acquired from one F. J. Stewart, who for many yearspreviously had carried on and conducted a service of steamboats for thecarriage and conveyance of' passengers and goods across the saidColombo lake between the points A and B on the plan annexed hereto,all his rights mid interests in the said service of steamboats, and ail thesteamers, plant, and appliances connected therewith, and all the good-will of the said business. The plaintiff company considerably improvedthe said business and imported new steamers and continued to carryon the said service of steamboats, and have up to the time of the acts.complained of carried on and conducted the said service of steamboats,taking a certain reasonable freight of ferryage, to wit, the sum of twocents from each person so Carried. The plaintiff company also rentedfrom the Colombo Municipal Council and the Military authoritiesrespectively at each of the points A and B a certain plot of land anderected certain landing stages and other buildings for the purpose ofthe said steam ferry service at each such point. The said ferryboatswere daily plying for them across the said lake between the hours of5.30 a.m. and 9.15 p.m., and Were available for the use and convenienceof all members of the public on payment of the fare aforesaid.
The appellants further allege that the wrongful interruption oftheir feriy service has caused them special damage, which theyestimate at Rs. 1,000 a month, and value their entire right “ inrespect of the premises ” at Rs. 300,000, and claim—
A declaration of their right to navigate their boats ** on the
said lake, and between the points A and B.”
An injunction directing the respondents to remove so much
of the reclamation of the lake as obstructs them and othermembers of the public in the navigation of steamers andboats between the points A and B.
An injunction restraining the respondents and their agents
and servants from reclaiming any further “ portion ofthe lake so as to interfere with the appellants* rights orthose of the public. ** *
Rs. 8,250 as damages up to the date of action, with further
damages at the rate of Rs. 1,000 a month until allobstruction to the appellants’ free right of navigationon the lake has been removed, or, in the alternative,Rs. 300,000 by way of compensation or damages inlieu thereof.
Costs.
The defendants-respondents, who file one answer, plead that theaction is not maintainable on the grounds that—
No action for an injunction lies against the Crown or itsservants or agents in carrying out its orders or directions.
WoodBentos J.
ColomboElectricTramwayCo. v.Attorney-General
19*9.
WoodBenton J.
ColomboJBlectrieTramwayCo, v.Attorney•General
( 170 )
No action for damages lies against the Crown for anything
alleged to be done wrongfully or in contravention- ofpublic rights, nor does such an action lie against theservants or agents of the Crown for anything alleged to bedone as aforesaid, provided that such servants or agentsdid no more than carry out the orders and directionsof the Crown, and, as against the second and thirddefendants, there is no averment that they did anythingmore than carry out such orders and directions;
The law does not recognize such a state of things as anything
being done wrongfully or contrary to or in violation ofthe right of the public by the Crown or the Governmentof Ceylon acting bona fide and within the scope of theirauthority.
The respondents deny the alleged public rights of navigation orpassage over the Beira lake. The following paragraph in the answermay be cited as a statement in brief of the respondents* case on thefacts:—
The whole of the said lake (including its beds and banks and theislands in it), which covered a much larger area than that mentionedby the appellants, belonged to the Crown. Neither the appellants norany other member of the public had ever acquired any rights in, orwith respect to, or in connection with, any part or portion of the saidlake, but on the contrary the Government of Ceylon, representing theGrown, has from time to time reclaimed large portions of the said lake. without any let, hindrance, or objection by anybody, and used andenjoyed the portions so reclaimed as Crown property, and has fromtime to time done /and exercised divers acts and rights of ownershipwithout demur or objection either by the public or by any privateindividual, and the Crown has continued to exercise and still exercisessuch rights in and over the area that has been and is still designated theBeira or Colombo lake, and the same is still the absolute property ofthe Crown.
Finally, the respondents plead that the improvements effectedby the Crown on the lake are mainly for the benefit of thepublic.
On these pleadings the District Judge framed a variety of issues,which it is unnecessary to cite in detail. The appellants^ counselobjected to issues (1) and (2), on the ground that they treated theaction as being one against “ the Crown ** instead of against “ theGovernment of Ceylon contended that to issue (6) should havebeen added the words tl and if so, was the Government of Ceylonauthorized to do so?*’; that in issue (9) their claim for Bs. 300,000should have been described as “ compensation or damages thatissue (10) was irrelevant, inasmuch as, although the lake was theproperty of the Crown, there might be a public right ot way over it;'and that in issue (12) the question should have been raised whether,
1919.
( 171 )
even if the improvements effected by the Crown on Beira lake wereplainly for the benefit of the public, individuals to whom they hadcaused loss were disentitled to redress. There was no interlocutoryappeal against the District Judge’s order settling the issues, and theobjections above mentioned were not Btrongly insisted upon at theargument before us. I see no reason to think that the issues onwhich the case went to trial were improper or insufficient. Evidencewas led on both sides. The learned District Judge answered allthe material issues of law and fact in the respondents’ favour, anddismissed the appellants’ action with costs.
The first point to be determined is whether the action is one oftort. I think that it is. The plaint, which bears a striking resem-blance to the petition—admittedly founded on tort—in Attorney-General of the Straits Settlements v. Wemyss,1 alleges a wrongfuland unlawful interference by the respondents with the rights of thepublic in general and the appellants in particular over Colombolake, and claims special damages. No useful analogy can be drawnbetween such a case as the present, in which, as the appellants'counsel conceded at a later stage in his argument, the whole recla-mation proceedings are challenged as wrongful and unlawful, andauthorities such as St. James and Pall Mall Electric Lighting Co. v.R.,2 turning on damage done in the exercise of powers created bystatutes, which also made provision for the payment of compensa-tion. The appellants might perhaps have avoided the objection. that their action was one of tort by striking out their allegation thatthe acts of the respondents were wrongful and unlawful and theclaim for damages, and, as was done in Le Mesvrier v. Attorney-General,* praying only for a declaration of title. But this they haveexpressed no willingness to do. Whether, if such an alteration inthe character of the action had been made, it would have beenmaintainable on other grounds, or could have succeeded on themerits, are points with which we are not here concerned.
If, then, the present action is one of tort, will it lie against theCrown? The burden of establishing the affirmative answer to thisquestion is on the appellants. For the purpose of discharging it, theyrely on the following line of argument. Under the Boman law andBoman-Dutch law actions ex delicto lay against the Fisc. The-Proclamation of September 23, 1799,4 kept the Boman-Dutch lawon foot in Ceylon. Actions ex contractu and rei vindicatio admitted-ly lie against the Crown in this Colony; and the language of section456 of the Civil Procedure Code, 1889, is wide enough to includeactions of tort also.
After the best consideration that I can give to the authorities to-which we have had access, I am not prepared" to hold that theappellants have shown that either under the Boman or the
i (1888) IB A. C. 197.s (1901) 6 N. L. R. 66.
* (1904) 90 L.T.N.S.M.*8.2.
WoodBentos J.
ColomboElectricTramwayCo. v.Attorney-General
1918.
WoodRbnton J.
ColomboElectricTramway• Co. v.Attorney-General
( 172 )
Roman-Dutch law the sovereign power could be sued ex delicto orex qua8i-delicto. Most of the authorities quoted to us are examinedby Sir Charles Layard, then Attorney-General, in his argument inLe Meeurier v. Attorney-General.1 The only instance to be foundamongst them of a claim ex delicto made against the sovereignpower is the payment by the States General of Holland of damagesto Philip of Spain for injury done to his house in Rotterdam.3Submission to a claim for damages by such a monarch as RingPhilip H. forms a somewhat slender precedent in support of thecontention that, under the Roman-Dutch law, the sovereign could besued ex delicto or ex quaei-delicto by the subject. No other precedenthas been unearthed by the industry of the Bar in the present case.We were furnished with the following translation of the passage inthe Dutch Consultations,8 which was cited in Sanford v. Waring4: —
The Treasurer of North Holland was sued for the payment ofannuities in arrears for some years which it was his duty to pay on thecommand of the Prince. The plaintiff having filed his plaint on the duedate, the Treasurer pleaded that the claim could not be entertained andprayed for absolution from the instance. Just as the Fisc, whichrepresents the Prince, cannot be sued without venia (agendi), so a vassalor subject cannot, as a matter of right, 6ue his Lord or Prince withoutvenia, the argument being taken from the analogous case of a freedmanand his master. The plaintiff prayed that the plea be rejected because,said he, it is not' usual to observe this rule in the case of the Prince,seeing that it is a matter of daily occurrence for the Procureur-GeneraJand Treasurer, who are the Fisc, and represent the Prince, to be suedwithout venia being previously obtained.. And also seeing that this ispeculiarly an exception which cannot be relied on as in itself decisive ofthe notion, but one to which, without prejudice to the same, there shouldbe an answer. The Court ordered the defendant to answer peremptorily,or at least in the alternative.
Thus advised at the Hague on February 7, 1600, and signed R. vanAmsterdam.
The appellants’ counsel were unable to identify the venia referredto in this passage with the “ sanction ” dispensed with in Ceylon bythe Proclamation of January 22, 1801, and even if they could havedone so, the passage in question relates merely to a claim for arrearsof annuities, and does not show that the Fisc could be sued in delict.
The same observation applies to the following citation fromBort’s Domain *:—
All disputes with regard to regalia, either between the Prince andprivate parties, or between private parties themselves, must at the firstinstance come before the Court of Holland, which has jurisdiction bysection 7 of the Ihstructie of the said Court in all matters concerningdomains.
>. (1901) 5 N. L. R. 65. And see Voet1,3,15; 2, 4,11; 6,1,23; 18, 4,6; 43,16, 6.
» Van Leett, Kotze 1., p. 12, note (h).
Decl.lV.Cms.123.
(1896) 2 Tt. L. R. 364.
XVI. Decl. s. 1. And see also Perez.,Vh. 10, tit. 1, s. 46.
1918.
( 178 )
For aught that appears to the contrary, the disputes here referredto may have involved merely the question whether certain rightswere jura regalia or not. In any case the passage does not showthat any private party could sue the Prince ex delicto.
But even if the appellants had been able to demonstrate that theright to sue the Prince in delict existed under the pure Boman-Dutch law, the questions would still remain, in the first place,whether the Dutch had introduced that part of their law intoCeylon, and, in the next place, whether, if so, it had not beensuperseded, on the British occupation, by that branch of the royalprerogative which confers on the sovereign immunity from actionin tort at the instance of the subject. The extent to which theDutch introduced their own law into the outstations, is a subject ofgreat difficulty, and as yet very partial elucidation.1 We have noaccess here to the original authorities, or to the recent Dutch orGerman commentaries upon them. But it is settled in Ceylon2that if any rule of Boman-Dutch law is found to be inconsistent withthe well-established practice of the Colony the reasonable inference isthat it was never introduced. It is on this principle that the inde-feasibility of title derived from the Crown, created by a Constitutionof Zeno, and undoubtedly incorporated into the Boman-Dutch law,has been held never to have formed part of the law of this Colony.But, supposing that the Dutch Government could be sued in delictin Holland, and had extended the same right of action to its subjectsin Ceylon, the immunity of the English sovereign by virtue of hisprerogative from being sued in tort would take effect, unless it wereexcluded expressly, or by necessary implication,* as, for instance,where in Ceylon 4 a clear right, pre-existing under Boman-Dutchlaw, of prescribing against the Crown was recognized in practice andby subsequent legislation. The appellants’ counsel contended thatin the case of a conquered or ceded colony no branch of the royalprerogative attached, unless it either was a necessary incident ofsovereignty, or could be regarded as a continuation of the prerogativeof the conquered or ceding power. The immunity of the Englishsovereign from being sued in tort is, however, a direct consequenceof the fundamental maxim of English constitutional law that “ theKing can do no wrong,” and its extension to all the colonies, whetherconquered, ceded, or settled, has been assumed in every case inwhich the question has arisen.5 The argument that the existenceor extent of any branch of the royal prerogative in a conquered or•
1 See Burge, 2nd ed., vol. 1., pp. 903 Gp. In re Wi Matua's Will, (1908)
et seq.A. 0, 448.
SUva o. Balasuriya, (1911) 14 N. L. 3 D. C. Colombo, 1,24$, (1870)
452.Vanderstraaten 83, 84.
* Hitman Appu v. Queen's Advocate, (1884) 9 A. C. 586;. FameU v. Bowman,(1887) 12 A. C. 114$, in which counsel in supporting the appeal admitted that,But for the special legislation on which he relied as conferring a rightof action in tort .against the Crown, the case would be unarguable; andAttorney-General of the Straits Settlements v. Werpyss, (1888) 13 A. C. 197.
WoodBhntoh J.
ColomboElectricTramwayCo. v.Attorney-General
1918.
WoodBenton J.
_ ColomboElectricTramwayCo. o.Attorney-General
( 174 )
ceded colony depends on the question whether it can be linked onto a prerogative of the same character and extent existing beforethe conquest or the cession is, I think, disposed of by authority.The cases of Exchange Bank of Canada v. Reg.1 as interpreted bythe Privy Council in Liquidators of the Maritime Bank of Canada v.Receiver-General of New Brunswick 3 and New South Wales TaxationCommissioners v. Palmer 3 show, for instance, that the priorityenjoyed by the sovereign over subject-creditors in respect of debtsof equal degree will, unless limited by local law or waiver, apply inits fulness in a conquered or ceded colony, although it was notexistent in, or was limited by, the antecedent law of that colony.3The appellants’ counsel strenuously contended that the observationsof Lord Watson, as to the extent of the royal prerogative in thecolonies, in delivering the judgment of the Privy Council in Liquida-tors of the Maritime Bank of Candda v. Receiver-General of NewBrunswick,3 were controlled by the context, and applied only incases, such as Reg. v. Bank of Nova Scotia,4, in which the propertyin suit^was vested in the Crown by Imperial legislation. In In reOriental Bank Corporation * however, Chitty J. said: “No dis-tinction was drawn in argument, and very property, between therights of the Crown suing in respect of Imperial rights and the rightsof the Crown with regard to the colonies.” But the assumption offact on which this argument rests is, I think, unfounded. LordWatson’s language is perfectly general. He was disposing of a casein which the question was whether, in the distribution of powerseffected by the British North America Act, 1867, the ProvincialGovernment had priority over other simple contract creditors, orwhether that branch of the prerogative had been reserved for theDominion Government. The Provincial Governments had possessedthat prerogative before the Act; the only question was whether theAct had taken it away. It was under these circumstances thatLord Watson made use of the following language, and incidentallyexplained Exchange Bank of Canada v. Reg.,5 which might havebeen thought inconsistent with it:—
The prerogative of the Queen, when it has not been expressly limitedby local law or statute,.is as extensive in Her Majesty’s colonial posses-sions as in Great Britain. In Exchange Bank of Canada v. Reg.5 theBoard disposed of the appeal on that footing, although their Lordshipsreversed the judgment of the Court below and negatived the preferenceclaimed by the Dominion Government upon the ground that by the lawof the Province of Quebec the prerogative was limited to the case ofthe common debtor being an officer liable to account to the Crown forpublic moneys collected or held by him.
i (1886) 11 A. C. 157.3 (1893) A. C. 487.
3 (1997) A. C. 179.
411 3. C. R. 1.
* TI8S8) 11 A. C. 157.
* Cp. In re Henley S Co., (1878) 9 Ch.D. 489; In re Oriental BankCorporation, (1884)28 Ch. D. 648;In re Bateman's Trusts, (1878) L.R. 15 Eq. 855.
1918.
( 175 )
Has, then, the immunity of the sovereign from liability to be suedin tort been abandoned, either expressly or by necessary implication,in Ceylon? No such abandonment can be inferred from thelanguage of section 2 of the Proclamation of September 28, 1799.That section merely made provision for the continued administra-tion of justice in accordance with the pre-existing law. Section 117of Ordinance No. 11 of 1868 was interpreted by the Privy Councilin Simon Appu v. Queen’s Advocate 1 as creating no new rights butonly regulating procedure. Section 456 of the Civil Procedure Code,1889, is an enactment of the same character. It provides in effectthat actions which can be brought against the Crown in Ceylon areto be instituted against the Attorney-General as representing theCrown. To interpret the section as if it also enacted that any claimfor relief falling under the definition 3 of ” action ” in the CivilProcedure Code could be made against the Crown would do violenceboth to its language and to its spirit. If the law had recognized aright of action against the Crown for tort, we might have expectedthat some instances at least of its successful exercise could have beenfound. Not one is forthcoming. The mere absence in such a caseas this of “ ancient precedents ” is, as Lord Blackburn observed inThomas v. Reg.,5 “a strong argument.” But there is more. Thereis an almost unbroken current of judicial opinion and authority tothe effect that such an action will not lie. The point was raised inFraser v. Queen’s Advocate,4 Fraser was postmaster of Galle byColonial, and packet agent of Galle by Imperial, appointment.He was suspended under the Colonial Regulations, and sued theQueen’s Advocate as representing the Crown for arrears of salary.Creasy C.J. and Stewart J., whose decision was affirmed by theCollective Court, held that the claim against the Queen’s Advocatein respect of salary as packet agent could be supported only by anallegation that the Colonial Government, by suspending Fraser,“ had prevented him from fulfilling the duties of his packet agency,whereby the Imperial Government had refused to pay his salary,”and added (it was unnecessary to decide the point), ” we greatlydoubt whether such an action was ever maintainable here.” InDon Hendrick v.'Queen’s Advocate,s the original record of whieh Ihave called for and examined in view of the fact that the report ofthe case in 4 S. C. C. 76 purports only to give a ” substantial ”reproduction of the judgment, and of the contention of the appel-lants’ counsel that, notwithstanding the sense in which Burnside C.J.(the Queen’s Advocate sued in the case), Dias J., and Clarence J.interpreted it in Newman v. Queen’s Advocate,® it was nd authorityfor the proposition that the Crown cannot be sued in tort in Ceylon,the plaintiffs alleged that the Government Agent had ” unlawfully
i (1883} 9 4.7. 688.* (1881) 4 8. C. C. 76.
*8.6.* (1884)6 8.C.C.29. Bee Jay a-
* (1873) L. R. 10 Q. B. 81.warfone v. Q. A., (1881) 4 8.
*(1868) Ram. 88-88,816.O.C.77.
WoodBb&ton J.
ColomboRleetrieTramwayCo. v.Attorney*General
1913.
Wood
Benton J.
ColomboElecbrieTramwayCo.
Attorney•General
( 176 )
and unjustly ” ordered the crops of their paddy lands to be taxedat a rate which was too high for private property, and which wouldcreate a presumption that they belonged to the Crown, and, inaccordance with the settled practice,1 sued the Queen's Advocateas representing the Crown for declaration of title and damages.There was no averment that the plaintiffs had been disturbed intheir possession, and accordingly the Queen's Advocate demurredto the libel, maintaining that it disclosed no cause of action. TheDistrict Judge over-ruled the demurrer, treating the action as onequia timet. On an appeal by the Queen’s Advocate, the CollectiveCourt (Cayley C.J., Clarence and Dias JJ.) upheld the demurrer.The judgment, which is reported verbatim and not merely in“ substance ” in 4 S. G. 0. 76, is short, and was apparently notreserved. “ The cause of action,” said Cayley C.J., “ is an alleged‘ unlawful and unjust order ** made by the Government Agent.Whether this order was carried out or not is not stated, but what iscomplained of is clearly an alleged tort on the part of the Govern-ment Agent, for which the Crown is not responsible.” Althoughthe Judges do not say so in terms, the ratio decidendi of this caseobviously was that nothing had occurred to enable the plaintiffsto claim a declaration of title, and that an action in tort would notlie against the Crown.
The case of Newman v. Queen’s Advocate3* is a decision of theCollective Court, to the effect that an action in tort will not lieagainst the Crown in Ceylon. The plaintiff sued the Queen’sAdvcate for damages for personal injuries sustained by him whiletravelling as a passenger on the Ceylon Government Railway.Section 13 of Ordinance No. 10 of 1865 imposed upon the Govern-ment of Ceylon liability for loss and damage to goods in course oftransit by rail, but was silent as to passengers. The case wasargued in appeal beforeJSurnside C.J., Clarence and Dias JJ. Allthree Judges were agreed that a pure action of tort would not lieagainst the Crown, and Burnside C.J. and Dias J. held that theplaintiff’s action must be dismissed. Clarence J. dissented'on theground that the action was only one of tort based on contract, andthat in such a case the Crown might be held liable. Even the dissentof Clarence J. will not help the appellants here. The judgments ofBurnside C.J. and Dias J. are direct decisions against them. xTheeffect of this chain of authorities was recognized in Simdn Appu v.Queen’s Advocate,4 where, as the Privy Council state,it was concededon all hands that an action in tort will not lie against the Crown inCeylon. In Sanford v.Waring,s and again in Le Mesurier v.Layard,*Bonser C.J. raised, without deciding, the question whether,notwithstanding all the previous decisions and dicta on the point,
i (1883) 4 8. C. C. 77.<■ (1884) 9 A. C. 586, and Cp. Famell
(1884) 6 8. C. C. 29.u. Bowman, (1887) 12 A. C. 643.
And see section 18 of Ordinance3 (1896) 2 N. L. R. 361.
No. 9 of 1902.6 (1898) 8 N. L. R. 227.
( 177 )
the Crown was not liable to be sued here in tort after all. In supportof this view, the learned Chief Justice referred to the Boman-Dutchauthorities above mentioned, and particularly to the submission ofthe States General to the claim of Philip, and also to the decisionsof the Privy Council in Attorney-General of the Straits Settlements v,Wemyss 1 and Famell v. Bowman.2 In Le Mesurier v. Attorney-General f3 however, Bonser C.J. modified the view that he hadexpressed in Sanford v. Waring,4 to the extent of admitting that itssoundness must be regarded as at least doubtful, and suggested thatthe Legislature should bring the law of Ceylon into line .with theenactments held by the Privy Council in Attorney-General of theStraits Settlements v. Wemyss1 and Famell v. Bowman2 sufficient tomake the Crown liable to be sued in tort in the Straits .Settlementsand New South Wales respectively. No such legislation has beenenacted. I have already dealt with the Boman-Duteh authoritieson which Bonser C.J. relied. I venture to think that they do notjustify the inference that he drew from them. The special legislationwhich formed the ratio decidendi in Attorney-General of the StraitsSettlements v. Wemyss1 and Famell v..Bowman2 is of a charactervery different from section 117 of Ordinance No. 11 of 1868 andsection 456 of the Civil Procedure Code, 1889. In each case itdirectly created rights of action against the Crown, and its languagewas wide enough to include actions of tort. Section 117 of Ordi-nance No. 11 of 1868 and section 456 of the Code of 1889 merelyprescribe the procedure by which rights of action, already existing,against the Crown are to be enforced. The appellant's counselprgued that if, as the Privy Council held in Biman Appu v. Queen'sAdvocate 4 section 117 of Ordinance No. 11 of 1868 was wide enoughto include actions ex contractu, there was no logical reason why thatsection, or section 456 of the Civil Procedure Code, 1889, should notextend to torts also. But xnSiman Appu v. Queen's Advocate 5 thePrivy Council, as I understand their judgment, did not hold, andwould not have been prepared to hold, that section 117 of OrdinanceNo. 11 of 1868 would by itself have sufficed to create a right of actionex contractu against the Crown. On the contrary, they held that, sofar from creating new rights, it merely regulated the procedure as toexisting rights, and that, therefore, the recognition, in conformitywith the established practice of the Courts in Ceylon, of actionsagainst the Crown ex contractu by no means involved as a logicalconsequence the conclusion that the Crown could be sued in tort.
I think that the real explanation of the development of the law inCeylon as to suing the Crown is that the Courts have graduallyenabled the subject in Ceylon to obtain by action against the Crown *the relief that the subject in England obtains by' petition of right,i {1888) 18 A. C. 197.3 (1901) 5 N. L. R. 65.
a (1887) 12 A. C. 643.4 (1898) 8 N. L. R. 861.
M1884) 9 A. C. 586.
ami
Wood
Ronton j;.
ColomboElectricTramwayCo. v.Attorney-:General
17-
1M8.
WoodBoston J.
ColomboBleetrioTramwayCo. v.Attorney-General
( 178 )
but nothing more. The extent of the relief obtainable by petitionof right is well established. In Tobin v. Reg.1 the suppliant’s shiphad been seized and destroyed by a naval commander under theauthority of the Crown in pursuance of statutes for the suppressionof the slave trade. The Court of Common Pleas (Erie C. J.f Williams,Willes, and Keating JJ.) held that a petition of right would not lie,inter alia, because the action was one of tort. 8ir Hugh Cairns had.argued for the suppliant that “ a petition of right does lie to recoverunliquidated damages for a wrong. Not indeed for such a wrongas an assault, but' if the Crown is to be held responsible for the seizureof chattels, the Crown must continue to be liable where the wrongcannot be recompensed by the return of the chattels.” This con-tention was over-ruled by the Court. ” Whatever,” said Erie C.J.,
“ was the form of procedure, the substance seemB always to havebeen the trial of the right of the subject as against the right of theCrown to property or an interest in property which had been seizedfor the Crown.
“ A petition of right does not lie to recover damges from theKing for a mere wrong supposed to have, done by him. Not a singleinstance of a recovery of such damages from the King has been cited.
In Feather v. Reg.2 the suppliant had obtained a patent for improve-ments in the construction of ships. The Admiralty Commissionershad infringed it. Cockburn C.J., Crompton, Blackburn, andMellor JJ., followed Tobin v. Reg.,1 and held that a petition of rightwould not lie. “ The only cases,” said Cockburn C.J., “ in whichthe petition of right is open to the subject are where the land orgoods or money of a subject have found their way into the possessionof the Crown, and'the purpose of the petition is to obtain restitution,or, if restitution cannot be given, compensation in money; or wherethe claim arises out of a contract as for goods supplied to the Crown
or to the public service……… No case has been adduced
in which a petition has been brought in respect of a wrong properlyso called.”
In Thomas v. Reg.,9 Blackbrun, Quain, and Mellor JJ. held thata petition of right will lie for breach by the Crown of a contractresulting in unliquidated damages. ‘‘It appears,” said Blackburn J.,*• that at the time of the passing of the Act ” (i.e., the Petition ofEight Act, 1860) “ there was a general impression that a petition ofright was maintainable for a debt due or a breach of contract by theCrown.”
“ The argument against the petition of right lying in such a caseis, we think, entirely grounded on the absence of ancient precedents.And that is undoubtedly a strong argument.” It was contendedin Thomas v. Reg.,9 however, that the remedy was available only incases in which the freehold waB concerned. But the Court negativedi (1864) 88 L. J. C. P. 199.3 (1865) 8B.4 8. 867.
* (.1874) L. R. 10 Q. B. 81.
1918.
( 179 )
this contention on the authority of The Bankers’ case.1 The Bankers’case 1 was regarded as a precedent in point. Thomas v. Beg.* wasfollowed in Windsor v. Annapolis By. Co.,a during the argument ofwhich Lord Halsbury said:—
THa King can do no wrong mnma that he cannot commit a tort—he can do wrong in other senses.
The remedy by petition of right has not, so far as I can see, beencarried beyond the point at which these authorities leave it, andwould not extend to such a claim as we have to deal with in thepresent action. If the analogous right granted to private indivi-duals by the Courts in Ceylon iB to be made more comprehensive,the enlargement of its scope mint be the work of the Legislature.I hold that the appellants’ action is not maintainable against theCrown.
Hie next contention on the appellants’ behalf was that, even ifthin is an action of tort, and such an action is not maintainableagainst the Crown, it is maintainable against the Government of•Ceylon. The appellants, however, have not sued the Governmentof Ceylon. Hie action is instituted, against “ His Majesty’sAttorney-General,’’ and in the notice of action (D 39) Bent by theproctors of the appellants to the Attorney-General, in terms ofsection 461 of the Civil Procedure Code, 1889, they expressly say• that he will be sued “ as representing the Crown, for the Crownhaving filled up that portion of the Beira.lake in Colombo lyingbetween Dhoby island and the Pettah railway station, whereby freenavigation across the lake up to the bank near the Pettah railwaystation has been obstructed and the right of the (appellants) andother members of the public to such navigation has been injuriously
affected, and whereby the (appellants) have been prevented
from conducting and carrying on their steamboat service across thelake.”
But the matter is concluded, so far as we are concerned, by thedecision of the Collective Court in he Mesurier v. Layard.* In thatcase the plaintiff sued the Attorney-General, as representing the“ Government of Ceylon,” for arrears of salary. The Attorney-General objected that he represented not the Government ofCeylon “But the Crown. The District Judge upheld this objectionand dismissed the action. The Supreme Court (Bonser C.J.,Withers J., Lawrie J. dissenting) reversed his decision on the groundthat few most purposes the expressions “ Government of Ceylon ”and “ Crown ” are identical, and that an action against the Govern-ment of Ceylon is an action against the Crown. Sections 456-462of the Civil Procedure Code strongly support this view of the law,-referring as they do throughout—except in section 458, to which Iwill revert in a minute—to the “ Crown ” as the party whom the
114 Bow. St. Tr. 6.• {1886) 11 A. C. 607.
* (1874) L. B. W Q. B. 8L* (1898) 8 N. L. B. 287.
WoodRenton J.
ColomboBlectrieTramwayCo. e.Attorney-General
1918.
WoodBenton J.
ColomboElectricTramwayCo. v.
Attorney-General
( 180 )
Attorney-General is to represent. Moreover, if the distinction whichthe appellants seek to draw between the “Crown” and the “Govern-ment of Ceylon ” is sound, this curious result follows, that the latteris not entitled to the notice of action which section 461 secures evento a village headman sued in respect of any act purporting to havebeen done by him in his official capacity. It was argued thatsection 458 of the Civil Procedure Code, which enacts that “ theCourt, in fixing the day for the Attorney-General to answer to theplaint, shall allow a reasonable time for the communication with theGovernment through the proper channels ” told in favour of theappellants’ contention on the point under consideration. I do notthink so. Section 458 merely provides for the ordinary contingencyof the Attorney-General requiring, on behalf of the Crown, toconsult the head of a department, or the Government Agent of aProvince, as to the circumstances under which any action arises oras to the defence which ought to be set up, before filing answer. Iam unable to regard as serious the contention of the appellants’counsel that the Government of Ceylon can be treated as if it were astatutory corporation, such as the Municipal Council of Colombo,entirely distinct from, and entitled to none of the immunities of, theCrown, or a mere department of Government, such as the Commis-sioners of Public Works (Graham v. Public Works Commissioners1).The appellants’ counsel further relied on Zn re Holmes2 and Fraser v.Queen’s Advocate 3 in support of his contention that the Governmentof Ceylon does not represent the Crown. With Fraser v. Queen’sAdvocate 3 I have already dealt. In re Holmes,2 in so far as it hasany bearing on the question, is rather against the appellants than intheir favour. There a demurrer to a petition of right in England inrespect of land in Canada was allowed on the ground that the Queenwas as much resident in Canada as in England and that the suitought to have been brought in Canada, where the land was situated.*The remark already made in regard to actions of tort against theCrown is applicable, mutatis mutandis, here. If there had been anyreasonable probability of getting rid of the difficulty of suing “ theCrown ” in tort by making “ the Government of Ceylon ” thedefendant to the action, the experiment would have been tried longbefore Le Mesurier v. Layard.3 The unbroken practice in regard toactions in contract has been to sue formerly the Queen’s Advocate,and now the Attorney-General, as representing the Crown.*
The question whether the present action can be maintained .against the second and third respondents presents more difficulty.The learned District Judge has held that there is no necessity, inview of the finding that the Crown is not liable, to consider theposition of the second and third respondents, “ for they are the1 (1901) 2 K. B. 781.4 See Seiner v. Salisbury (Marquis of,
•» (1861) 2 J. SB. 627.(1876) 2 Ch. D. 386.
» (1868) Ram. 63-68, 916.3 (1898) 8 If. L. R. 227.
* See authorities cited above.
( 181 )
servants of the Grown, and have performed the acts complained ofon Crown property under the instructions of the Crown.** The caseof Raleigh v. Ooschen,l however, shows—and the respondents*eounsel did not contest this—that the appellants might,, if they hadchosen to do so, have sued the second and third respondents asindividuals for any unlawful and wrongful act committed by them,even although they had only acted on behalf or by the authority ofthe Crown. It is clear, however, both from the caption and fromthe language of the plaint, in which they are said to have acted as“ engineers employed by the Government of Ceylon,*’ and in theprayer of which the Attorney-General and they are describedwithout distinction as “ the defendants,” that these respondentswere sued in their official capacity. The action could not be heldto be maintainable against then! without an amendment of theplaint, and without* their having a fresh opportunity of givingevidence on their own behalf. In Raleigh v. Goscheiv,l a motion fora similar amendment was refused. There, no doubt, the facts weredifferent, as the plaintiffs proposed not merely to sue the original•defendants individually as well as officially, but to bring new parties.In opposing the motion, however, Sir Richard Webster, thenAttorney-General, said: “It is a serious thing to allow actions ofthis kind, which are very common, to be cured by amendment,”and Romer J., in upholding the objection, observed that what theplaintiffs were seeking to do was to change one action into anotherof a substantially different character. I think that these considera-tions hold good here, and that no amendment of the plaint with aview to making the present action maintainable against the secondand third respondents should be allowed. I am all the less disposedto sanction such an amendment, because the appellants’ counselwhen challenged by the Solicitor-General at the commencement ofthe trial in the District Court to say whether or not the second andthird respondents were sued in their official capacity refused tomake any statement on the subject, and also because, even asagainst these respondents, the action would, in my opinion, fail onthe evidence.
The case may be considered on the merits more briefly. It isdifficult not to feel that what the appellants would really havedesired to establish is a right of ferry between the points A and B,referred to in the plaint and in the evidence, i.e., from Fettah railwaystation to Slave Island. No such claim, however, is made in theplaint, and no right of ferry could have been claimed successfully,in view of the fact that, if for no other reason, the ferry servicecarried on by the appellants between the points above-mentionedwas admittedly hot an exclusive one. We must take the appellants’case, therefore, in the form in which it has been presented to us.They come forward as members of the public to vindicate an alleged
iQS98)lGh. 73.
1913.
WoodBenton J.
ColomboElectricTramwayCo. v.Attorney-General
1S13.
WoodBsnton J.
ColomboElectricTramwayCo. r.Attorney*General
( 182 )
public right of navigation over Beira lake, and plead the interruptionof their ferry service between points A and B as special damage. Itis obviously essential to the establishment of this claim that theappellants should prove that the public have rights—in the propersense—of navigation over the lake. The evidence adduced for thispurpose falls under three categories: evidence as to the origin andcharacter of the lake itself, acts of public user, and the proclamationBy the Governor of the lake as a “ principal lake ” under OrdinanceNo. 8 of 1848. I will consider each of these categories in turn.
The appellants led very little vivd voce evidence as to the originand character of the lake. Mr. Coombe, their Chief Engineer, whohas only been in Ceylon since 1900, said: “I know only by hearsaythe past history of the lake." Mr. Stephens, their Manager, whocame to Ceylon in 1880, says nothing on the subject. Mr. Raffel,a Burgher in the employment of Messrs. Aitken, Spence & Co., whowas bom in Colombo and has spent all his life there, says: "I knowas much of the history of the lake as any one," but gives no details,except that it " was called the * lung of Pettah.’ " Mr. F. W. Boishad known the lake for nearly forty-seven years, and gives thefollowing evidence: “ The boats used to go along the moat throughthe Fort to the harbour; the moat was part of the fortifications, andthere was the sally port. Colombo had a real fort then—an oldDutch fort* From the lake the boat entered through the sally portinto the portion of the moat inside the Fort. The old Fort canalwas a very ancient Dutch one. I remember its being filled up. Theold moat was certainly artificial, and I infer that the old canal wasnot a part of the lake, but an artificial one, for it was built up onboth sides.”
Mr. Buckney, the son of the founder of the ferry service, cameto Ceylon in 1878. He says nothing on the subject, nor doesMr. MacMahon, the appellants* Traffic Manager, nor Mr. de Silva,nor Mr. Weinman.
Mr. Loos, Proctor, said in cross-examination: “ As a matter ofhistory, I have heard the Dutch built the lake—they excavated thelake; the excavated earth was used for building the forts. Thecanal which ran into the Fort from the lake must also have beenmade by the Dutch at the time the lake was made.*’
This evidence was objected to, and Mr. Loos qualified it inre-examination: ” I cannot say in what history I read that theDutch excavated the land and made the lake. I heard so.”
Colonel Symons said: “ I believe the portion of the lake wherethe rope ferry to the Club Chambers was, and the ground on whichthe Colombo Club stands, are all Military reserve grounds—ColonialMilitary grounds. The permission of the Military had to beobtained for building the Colombo Club building. I believe theMilitary are entitled to pull down the Club building for Militarypurposes.”
( 188 )
In re-examination he explained that he had no specific knowledgeon the subject.
The late Mr. Justice Wendt said: “ It is possible to getfrom the lake through the canals into the Kelaniya river. Ihave often gone that way. The Kelaniya river is connectedwith the lake by a canal—the San Sebastian canal; there is alock, too.”
Sir William Mitchell said: ** The canal was made so long ago thatI cannot say if it was a part of the lake; there was a moat round thePort which had communication with the lake. I always regardedthat canal as a portion of the lake, and I always thought that I hadas much right to use that canal as I had to use the lake. We did notresent the filling up of the canal because it got very low and stankbadly. The filling of the canal was an interference with what wethought were our rights, but we did not resent it as it had becomea nuisance. At that time we would have resented a filling up ofthe lake.”
This exhausts the appellants* vivd voce evidence as to the originand character of Beira lake. Even excluding those portions of itwhich tend to support the contention of the respondents that thelake is Crown property, it obviously is insufficient to raise any kindof presumption that the lake is one over which public rights ofnavigation would exist. On the other side, we have the evidenceof Mr. Gamon, Warrant Officer of the Boyal Engineers, that theportion of the lake between the points A and B has always beenconsidered Military property; and the opinion of Mr. Anthonisz,the Government Archivist, based on the books and maps which hementions, that 11 the Colombo lake is an artificial lake formation,built by the Portuguese at the time they built the line of rampartsreferred to in Ribeiro’s book, and enlarged by the Butch.’* Mr.Anthonisz was severely cross-examined as to the grounds of thisopinion, and confronted with the works of Bo Couto and Barros,who wrote before Ribeiro, and who say nothing as to the buildingof an artificial lake, and also with an article by Commander Somer-ville, R.N., in “ Spolia Zeylanica ** (P 13), in which the view isdeveloped that Beira lake is a lagoon like the well-known lakes ofNegombo and Puttalam.
Bo Couto states, however (pp. 299, 308, Ferguson’s translation,B 31), that Raju, King of Ceylon, drained the lake at the time of thesiege of Colombo in 1587?—a feat scarcely consistent with Com-mander Somerville’s theory that it was a large lagoon. No materialsother than those placed before the District Judge with reference tothe origin and history of Beira lake were brought to our notice in theargument of the appeal. There is no need to express any opinion ofour own on the subject. Suffice it to say that for anything that theappellants have shown to the contrary Mr. Anthonisz’s theory maybe quite correct.
1918.
WoodRhkton J.
ColomboElectricTramwayCo. v.
• Attorney-General
1018.
Woo©
BbntohJ.
ColomboElectricTramwayCo. o.Attorney-General
( 184 )
The evidence of user consists of various ferry services carried on.for hire successively and sometimes simultaneously by native canoesand steamboats, including the service of the appellants themselves,the transport of produce by mercantile firms with lake frontages,an extensive user of the lake for pleasure purposes by the owners ofproperties on its banks, and an equally extensive user of portions ofit by other^sections of the community without any riparian interests,e.g,} by boys for bathing, by dhobies for washing clothes, and bycarters for washing their bulls and carts. All these kinds of userhave been long continued, and, for the most part, uninterrupted.
We are not concerned in the present case with the claims ofmerchants with lake frontages or riparian owners. The appellantsadmit that they have no right of ferry. Their ferry service has tobe considered, therefore, merely as evidence of the alleged publicright of navigation. On the one hand, it has been exercised con-tinuously and profitably by the appellants and their predecessors intitle at least from 1874 downwards. On the other hand, we find theappellants or their predecessors in title consistently admitting thetitle of the Military authorities to a portion of the lake traversed bytheir boats between the points A and B, undertaking (D 6) todiscontinue the pier, which they had erected at point B, at any timethat the Military authorities might consider it necessary, closingthe service of boats for twenty-four hours every year on a day fixedby the Military authorities in order that they might never be in aposition to claim a* “ right of way over Military property in Colombo,including the lake area,** presuming (D 5) that the native canoeservice would be closed on the same day, and acknowledging therebythe right of the Military authorities to prevent navigation over theMilitary reserve, and accepting from the Municipal Council, to whomthe lake was handed over by Government in 1888, a lease (P 9,No. 427/2,555) of the plot of land at the Pettah terminus on whichtheir boathouse and enginehouse had been erected, containing arecital that the premises were being leased “ with the sanction ofGovernment.0 It would be impossible in the face of this evidence,even if it stood alone, to hold that the appellants had shown thattheir navigation of Beira lake for the purposes of their ferry servicewas otherwise than permissive. The same observation applies' a fortiori to the use of the lake by other classes of the communityfor boating, bathing, and washing carts and bulls. But there isaffirmative evidence, contributed partly by the witnesses for theappellants themselves, showing that Government has throughout,and without protest, till the present action was instituted, dealt withthe lake in a manner entirely inconsistent with the appellants’ claim.
The following passages from the evidence will suffice to makethis clear:—
The Government (says Mr. Loos) did whatever they wanted todo with the lake without any protest from any one. St. John’s canalwent across Norris road, and boats .that came from Slave Island crossed
1913.
( 185 )
the land went right on into the canal; there used to be a bridge inMorris road formerly. That canal was a continuation of the lake. TheGovernment filled up that canal. I did not raise any protest. It didnot strike me that any right of mine was being interfered with. I had.no boats at that time; if I had had, perhaps I might have protested.I never heard that the public interfered with the filling up of the canal.There was no regular landing stage on the lake before the steam ferry-boats started. A canoe could be hired from any part of the bank, and-the passengers could land on any part of the banks of the lake.
Government filled up a large part of the lake when the railway linewas built, and passengers then went across the railway line to get to theboats. The Government has reclaimed considerable portions of theJake and possessed the reclaimed portions as Government property.Near the Royal College the lake extended up to its boundary. TheGovernment reclaimed that portion of-the lake and made the roadwhich is now there on the spot where formerly the lake stood.
WoodBenton J.
ColomboElectricTramwayCo. v.Attorney-General
This evidence is qualified in re-examination by the statementthat: —
Until recently only very small portions of the lake were filled up,and the free use of the lake by the public was not interfered with.
I know (says Mr. de Silva) the present Norris road. Where itstands now used formerly to be the lake, in parts. It is now Govern-ment property. I mean the railway line is Government property. Noone objected to the Government taking over that portion. That was .since 1874; I cannot give the exact date. The building of the railwaycaused me much inconvenience in getting to the lake, but I raised noobjection. As long as I had access to the water I did not mind; it did<cause me inconvenience. After 1874 I ceased to live in the Pettah.I then lived in Slave Island.
Q.—You remember that the Government shifted bathing-places andwashing-places from one place, and erected them in other places ?
A.—Oh, yes; oh, yes. It may have been the Government or theMunicipal Council that shifted the bathing-places.
The Government (says Mr. Justice Wendt) has dealt with largeportions of the lake in-various ways, reclaiming portions for the railwayand the road near the Royal College. The railway is Governmentproperty. I did not object to the Government’s action in the matter,nor did any one else, so far as I can remember. Quite close to my housea large bit of the lake between Vauxhall street and DarJey road has beenrecently filled up and converted into a park by the Municipal Council,I believe. While the public had the use of the lake, the Governmentalso filled up and reclaimed portions of it without any protest from anyone that I am aware of.
In re-examination, Mr. Justice Wendt added:—
The building of the railway did not prejudice my interests in anyway. The bit of the lake filled up near Vauxhall street was a bit ofstagnant water.
The Government (admits Mr. Julius) as a matter of right havereclaimed large portions of the lake and taken them for themselves. Iuse the Galle Face esplanade without permission as a matter of right.No one has interfered with me. I say I have used it as a matter of
IMS.
WoodRbmtoN J.
ColomboEleetrieTramwayCo.«.Attorney -Central
( 186 )
right. The Military authorities might endeavour to prevent my doingso. I do not know that they can prevent the esplanade being usedexcept for Military purposes. 1 have never heard that the Militaryauthority claims a large part of the lake.»
Q.—As a matter of fact, it might be that the Military authoritiesclaim a large part of the lake ?
A.—1 cannot say that the Military authorities have no right overthe lake.
Sir William Mitchell explains the acquiescence of the public inthe filling up of the canal on the ground that “ it got very low andstank very badly,” but admits also the reclamation by Governmentof large portions of the lake for railway purposes.
This body of evidence, most damaging in itself to the appellants'case, is corroborated by affirmative evidence, oral and documentary,of the sale by Government, or settlement on certificate of quietpossession, of eighteen out of the twenty lots of land surroundingthe lake, and of the unchallenged reclamation of large areas of thelake, prior to 1874 and subsequently, for the erection of the Govern-ment Factory, the Gasworks, the Electric Light Station, the Bailway,and the making of streets and parks.
The appellants have, in my opinion, failed to establish any suchacts of user of Beira lake as will suffice to make good the allegedpublic rights of navigation over it. Even had the fact been other-wise, the appellants’ case, in my opinion, must fail. They have noferry, are not riparian owners, and, on the evidence, would have nosuch rights of passage different from those of the public at largeover the lake as could constitute special damage in the eye of the law.Not very much help perhaps is to be derived in a case like the presentfrom English analogies, but it might be argued that if, as is con-tended by the respondents, the lake is an artificial creation and isthe property of the Crown, the decision of the House of Lords inSimpson v. Attomey-General1 would have a more direct applicationto the circumstances than any of the decisions to which I will nowrefer. We were strongly pressed on behalf of the appellants withthe judgment of the Court of Queen’s Bench in Marshall v. Vlles-water Company 2 that a public right of navigating an inland lakeincludes a right of disembarking and coming on shore at any placewhere persons navigating a river would have a right to come onshore, and that, therefore, if there be an obstruction, although inshallow water, which prevents persons landing where they areentitled to land, that is a public nuisance; and also with the rulingsof the House of Lords in Bristow v. Cormican 3 and Johnston v.O’Neill * to the effect that the Crown has no right, as a presumptionof law, to the bed and soil of non-tidal inland lakes. There is,> (1904) A. C. 476.
• 3 (1871) L. R. 10 Q. B. 166; and Cp. Lyon v. Fishmongers’ Co., (1875) L. R.
10 Ch. 691; and see Bourhe v. Davis, (1890) 44 Ch. D. 110.
* (1878) 8 A. C. 641.* (1911) A. C. 652.
( 187 )
however, a wide difference between the character of Ulleswater andLough Neagh—the lakes with which those cases were concerned—and that of the Beira lake as it appears on the evidence before us.Moreover, even if the principle which the rulings in question affirmis applicable under the common law and the statute law of thisColony—an assumption strongly contested by the respondents’counsel—the evidence as to the manner in which Government hasdealt with the Beira lake would, I think, be sufficient to exclude it.
I have reserved for considertion last of all the appellants’contention that the proclamation of the lake on October 28, 1848(P 18), under section 2 of Ordinance No. 8 of 1848—an enactment,tEe effect of which is preserved by section 8 of Ordinance No. 10 of1861—as a “ principal lake ” constituted a dedication of it for allpurposes to the public. That contention is, I think, unsound. Byvirtue of section 2 of Ordinance No. 8 of 1848 the lake, under theProclamation of October 23, 1848, is merely to be deemed ” a“ principal lake ” for " the purposes of the Ordinance.” None ofthose purposes can fairly be said to involve any dedication of thelake to the public. Section 38 of the Ordinance points to the con-clusion that the object of section 2 was to enable the Governor tosecure for any road or. lake dealt with by Proclamation under itpreferential treatment at the hands of the Provincial Boad Com-mittee. The appellants’ counsel relied on the clause in the preamble,which recites as one of the objects of the enactment “ the improve-ment of the means of communication by land and by water in thisIsland, ” and also on the substitution in section 8 of Ordinance No. 10of 1861 of the words “ principal thoroughfare ” for “ principal lake ”in the earlier enactment. The decision of the Government,however, to apply the provisions of the Ordinance of 1848 to Beiralake is quite consistent with an intention to preserve as thoroughfaresonly certain lines of communication, such as that between thewarehouses and the entrance to San Sebastian’s canal, and by nomeans involved a general dedication of the lake to the public. Ihave made this observation on the assumption that the Ordinancein question did effect some kind of dedication of the lake. But, inmy opinion, that assumption is itself untenable. Neither OrdinanceNo. 8 of 1848 nor Ordinance No. 10 of 1861 empowers the Governorto make such a dedication, or vests the ‘‘ principal lakes ” or"principal thoroughfares,” with which they deal, in anybody.They merely create machinery for the maintenance and improve-ment of such thoroughfares. The case for the appellants on thisquestion cannot, I think, fairly be put higher than to say that theproclamation of a lake under section 2 of Ordinance No. 8 of 1848or section 8 of Ordinance No. 10 of 1861 involves a recognition bythe Government of some pre-existing public rights of passage overit. But from this point it is a far cry to the inference that theproclamation of a lake under the Ordinances above referred to
1913.
WoodBhnton J.
ColomboEUetrieTramwayCo. o.Attorney-General
1918.
WoodBenton J.
ColomboElectricTramwayCo. o.Attorney•General
( 188 j
confers upon the public legal rights of navigating it in every direction:There is nothing in the Ordinances in question to warrant any suchinference, and* the manner in which Government has dealt with thelake since 1848 and 1861 clearly shows that nothing of the kind waseither effected or contemplated.
The respondents' counsel pressed strongly upon us two additionalpoints, which I do not propose to decide; in the first place, that,adopting the later Homan law1 and the Roman-Dutch law,3,the Legislature of this Colony 4 had made, inter alia, all lakes State*property; and, in the next place, that the approval of the scheme bythe Legislative Council would bar any right to relief that the appel-lants might otherwise have. I am not much impressed with the latterargument, and it is unnecessary to say anything as to the former.
1 hold that the appellants* case fails on the merits, as well aaon the question* whether the action will lie against any of therespondents.
It only remains' to express our indebtedness to counsel on both,sides for the industry, learning,, and ability placed at our disposalin deciding this case. The argument of the appeal was delayedowing to causes over which neither the Supreme Court nor the Barhad any control.
I would dismiss the appeal with costs.
Ennis J.—
This was an action for a declaration that the plaintiff companyhad a right to navigate its boats on the Beira lake, Colombo, andmore especially between the points marked A and B on the planfiled with the plaint; for an injunction restraining the defendantsfrom further obstructing the navigation, and to remove the presentobstruction; for damages, or, in the alternative, for compensationor damages.
The action has been brought against His Majesty’s Attorney-General for Ceylon and Mr. Cole Bowen and Mr. Bakewell, Engineersin the Ceylon Government Service.
The Beira lake, commonly known as the Colombo lake, is a pieceof water some 416 acres in extent, which members of the publichave been in the habit of passing in canoes and boats, and atdifferent spots along the shores certain communities of dhobies havebeen in the habit of washing clothes, while at other spots membersof the public have been in the habit of bathing and washing theircarts, horses, and cattle. The lake is of unknown antiquity, andhow formed is a matter of speculation.
1 Sohm's Institutes j 8rd. ed.t 189, 303.3 Voet 2, 4, 1, 40, 14, 8; Heineccius,8.328; Leyser, ss. 254* 257;
Groenetoegen, De Leg., pp. 18, 19;Van Leeu. (Kotze) I., 151,152.
3 Cp. Ordinance No. 12 of 1840,ss. 6, 10; Ordinance No. 8 of1848, ss. 67, 68, 69; OrdinanceNo. 10 of 1861, ss. 84, 89, 90;Ordinance No. 7 of 1887, 88. 72,73,160,166.
1013*
( I** )
In 1874 a ferry service of boats began to run regularly betweenthe Pettah and Slave Island (the points marked A and B on the plan)*About the same time the Government filled some portion of thePettah side of the lake and constructed the railway over the partfilled in, and first a footbridge, then a level crossing, gave access tothe Pettah terminus over the railway. The plaintiff company arenow the owners of the ferryboats. The whole of the land at theSlave Island terminus was land reserved by the Government forMilitary purposes, and the ferry pier at that terminus stood in thelake. The proprietors of the ferryboats paid one rupee per yearto the Military authorities for the use of the pier and a shed,and another rupee for the use of a pathway oyer the Militaryland from the pier to the high road. The pier and pathway wereannually closed for one day to prevent any claim to a right of wayarising.
Similarly, on the Pettah side the land adjacent to the lake belongedto the Government, the ferryboat proprietors paid rent for theirlanding stage, and the ferry service appears (D 5) to have beenclosed at that end also for one day each year. At one period theproprietors of the ferryboats had a lease (P 9, No. 427/2,557) fromthe Municipal Council, granted with the sanction of the Government,for the Pettah end landing place, but the lease was not renewed onits termination in 1904. Early in 1909 it would appear (P 7) thatthe Government and the plaintiff company entered into a newagreement for a temporary lease of a spot on Dhoby island, underwhich the plaintiffs were paying rent, as seen from Mr. Stephen’sevidence, at the commencement of the suit.
In 1907 a Commission was appointed to inquire into and reportupon the scheme for the improvement of the Colombo lake (appear-ing in Sessional Paper XLHI. of 1908). The Commission madetheir recommendations in Sessional Paper V. of 1910, which wereapproved by the Governor in Legislative Council (D 36) on August 3,1910. Meanwhile by Ordinance No. 7 of 1909 arrangements weremade by the Government to raise a loan for the purposes, amongothers, of the “ Colombo Stations Extensions ” and the “ ColomboLake Development.”
Then, according to the plaint, in or about the month of April,1910, the second and third defendants under instructions from theGovernment began to fill up a portion of the lake. According tothe evidence it would seem that a causeway (about quarter milelong) was constructed between the Pettah shore of the. lake andDhoby island in 1909, and that on April 25, 1910, the plaintiffcompany under protest moved their Pettah terminus to the siteoffered by the Government on Dhoby island, after which the channelto the old terminus was filled up. The road along the causeway wasapparently inconvenient at night and when it was wet, as it waslittered with railway material and very rough. The filling in of the
Ettas J,
ColomboElectricTramway*Co. v.Attorney*General
1913.
Emus J.
Colombo
Electrio
Tramway
Co. o.Attonsey-General
( WO )
lake was carried out by the Government as part of the ColomboStations Extension scheme, which was part of the general scheme forthe improvement of the lake.
The plaintiff company say that in 1909 the profits from the ferryservice began to diminish, and disappeared altogether in 1911, andtheir claim for damages or compensation is based on the loss afterApril, 1910.
The District Court dismissed the plaintiffs' claim on the groundsthat the action was one of tort, and as such could not be maintainedagainst the Crown in Ceylon* and that the lake was the absoluteproperty of the Crown, which could do what it pleased with it.
On appeal the following points were argued:—
Can such an action be maintained-as against the Crown?
If not, can such an action be maintained against the Govern-
ment of Ceylon as distinct from the Crown ?
If not, can such an action be maintained against the second
and third defendants?
Has the plaintiff company shown any right which constitutes
a cause of action?
If so, has the plaintiff company shown any damage which
would enable it to maintain the action ?
As to the first point, in Simon Appu v. The Queen's Advocate 1their Lordships of the Privy Council, referring to the questionwhether under the Roman-Dutch law the sovereign could be sued,said:—
Whatever speculations may be made upon these points, theirLordships cannot advise Her Majesty that such was the Roman-Dutchlaw, unless it is shown to them that it was so. And neither the researchesof counsel nor their own have enabled their Lordships to attain anycertainty on the subject.
Passing then to the law of Ceylon, their Lordships observed that avery extensive practice of suing the Crown had sprung up and hadbeen recognized by the Legislature, particularly in the 117th sectionof the Ordinance No. 11 of 1886, and they proceeded to say:—
It appears to their Lordships that the latter part of that sectionwould be deprived of its meaning unless it is held that, in the view of theLegislature, suits might be instituted by private persons against theQueen's Advocate for the recovery (amongst other things) of debts anddamages. It is said that to give that meaning to- the Ordinance wouldprove too much, for it would -include actions for damages ex delictofwhich, as everybody admits, cannot be brought against the Crown.-But it does not follow that, because the words are wide enough toinclude actions ex delicto, they must do so. They are not words adaptedto confer a new right or to establish a new kind of suit. They are only
*9 4.0. 072.
1918.
( Ml )
regulative of rights and proceedings already known, and they must beconstrued according to the state of things to which they dearly refer.They can, therefore, receive a full and sufficient meaning withoutextending them to notions ex delicto, but they cannot receive a full andsufficient meaning, indeed it is difficult to assign them any substantial
operation at all unless they embrace notions ex contractu It
would certainly be inconvenient that there should be no means ofobtaining the decision of a Court of Justioe in Ceylon on claims madeby the subject against the Crown. Yet there are none if actions ofthis kind do not lie, for the petition of right does not exist in the
Colony And finding that the Legislature recognized and made
provision for such suits at least twenty-eight years ago, their Lordshipshold that they are now incorporated into the law of the'land.
The judgment amounts to this, that the civil procedure laid downin the Code for the regulation of actions against the Crown does notestablish any new kind of suit, but recognized that suits for debt anddamages against the Crown existed. That the right to sue theCrown could not in that particular case be referred to Boman-Dutchlaw, as it had not been proved that such a right existed under thatlaw, but that a practice had grown up to sue the Crown in actionsarising out of contract, and that the provisions in the Code wouldhave no meaning unless it referred to such actions, t.e., actions excontractu for which there was precedent, and accordingly suchactions were held to be part of the law of the Colony.
In this case it has been submitted for the appellants that it is nowpossible to prove that Boman-Dutch law did allow an action againstthe Prince, and the following authorities on the Boman-Dutch lawhave been cited:—1 Nathan 406; Voet 18, tit. 4, 8. 6; VanLeeuwen (Kotze), vol, /., p, 12, note (h); Dutch Consultations Decl.
' IV, Cons, 123 (cited in 11 N. L, B. 364); Bort on Domain XVI.Decl,; 1 Nathan 38; Voet 1, tit. 3, s. 15; Voet 1, tit. 4, ss, 8 and 9;Voet 2, tit, 4, 8. 11.
So far as I understand these references, only one can, withoutdoubt, be said to deal with an action ex delicto, viz., the passagecited in Nathan 1, 406, but the counsel for the respondents haspointed out that it is open to doubt whether that case refers to lawapplicable in Ceylon, as the expression “ statuendum ” used inVoet, bk. 43, tit, 16, 8. 5, from the passage from Nathan comes,indicates that the right sued upon in that case was one created bystatute, and that a Boman-Dutch statutory right can only beaccepted as applicable to Ceylon when the particular statute has beenproved to apply (which has not been done in this case). Thecases of Karonchihamy v. Angohamy 1 and Silva v. Balasuriya,a inmy opinion, decisively show that the Boman-Dutch law whichprevails in Ceylon is not the entire bulk of that law, but only somuch of the Dutch common law as can be shown to be applicable,
i (IMS) 6 V. L. A. 1, at page 19.* (1911) 14 N. L. R. 458, after 459.
Ennis J*
ColomboElectricTramwayCo. v.Attorney-General
1918.
Stains J.
ColomboSleetrioTromioayCo. o.
Attorney-
.General
( 192 )
or of the Dutch statutory law as can be shown to have beenspecially applied. In these circumstances, it is my opinion that it hasnot been proved that the Bioman-Dutch law appertaining to Ceylongave any right to sue the State in an action arising ex delicto.The other citations also are so vague and uncertain as to leave itopen to doubt whether under Roman-Dutch law the State could besued at all, except as a matter of grace. It remains to be consideredwhether any practice in relation to such suits has sprung up whichcould reasonably be said to be incorporated in the law of Ceylon onthe principles laid down in Siman Appu's case.
There are several cases in which it has been expressly affirmedthat the Crown cannot be sued in an action arising ex delicto. Thatclaims against the Crown have frequently been contested on theground that they have arisen ex delicto is mentioned by Cayley C.J.in Jayawardene's case,1 and Newman v. The Queen's Advocate2 is aFuji Court decision which is binding on us. The question wasconsidered in Sanford v. Waring,® in which Bonser C.J. reviewed theRoman-Dutch law on the subject and was not prepared to assent tothe proposition that an action for tort would not lie against theCrown in Ceylon. The question was again before Bonser C.J.(Le Mesurier v. Attorney-General *),. and there he said: “ If thelaw as to the rights of a subject to sue the Crown in actions of tortis doubtful;—and I must admit that it is, since my brother Lawrieis strongly of opinion that the Crown is not liable to be sued in suchactions—then it is high time that the Government should takesteps to bring the legislation of the Island into line with thelegislation of other Colonies, such as New Zealand and the StraitsSettlements."
In that case the plaint was allowed to be amended by the deletionof all words alleging delict. It would appear, therefore, that theCourts in Ceylon have never allowed an action ex delicto to be main-tained against the Crown, and, on the oilier hand, have expresslyaffirmed the proposition that they could not be brought.
In this connection an argument was addressed to us that thepresent case was not one of pure tort, but one for a declaration ofrights and for an injunction and compensation. That in Roman-Dutch law damages in actions ex delicto were punitive rather thanreparatory, and that a petition of right would lie in England insimilar circumstances. In view, however, of. the practice of theCourts in Ceylon with regard to actions of tort against the Crown,and to the absence of any clear proof as to the Roman-Dutch law onthe subject, the argument does not, I consider, affect the presentcase, especially in view of the circumstances that the Governmenthave not been enriched by filling the lake, and it is doubtful whethera petition of right would lie in England in similar circumstances.
14S.C.C.77.
*6 8.C.C.M.L. 12. 65.
, c m )As to the second point—whether the action can he maintainedagainst the Government of Ceylon as distinct from the Crown—Cayley C.J. in Jayawardene’s case 1 said.that- the question. “ seemedto be no more than to pray that' the Crown be adjudged to pay themoney by its agents, the Government of Ceylon,” and in the case ofLe Meaurier v. The Attorney-General 3 Bonser C.J. regarded thematter as " something like a quibble to say that the Attorney-Generalrepresents the ‘ Crown,’ but does not represent the ‘ Government ofCeylon,’ holding .that for most purposes the two expressions areconvertible,” and adding, “ our local statute book shows numerousinstances of these being so treated.” Withers J. said he could notappreciate the difference; while Lawrie J. said, “ to assent to theproposition that the Attorney-General of Ceylon is the properdefendant in actions against the Crown in this Colony does not touchthe question what actions lie against the Crown, nor does an assentto the proposition that the Attorney-General of Ceylon is the properdefendant in actions against the Ceylon Government touch thequestion what actions may be maintained against that Govern-ment It seems to me that there is a difference between
the ‘ Crown ’ and the ‘ Government of Ceylon.’ The one is greaterthan the other. There may be actions which may not lie againstthe Crown, which are sustainable against the Government. I amcontent to hold that in such actions the Attorney-General is theright defendant and in that case, which arose out of contract,the action was allowed to proceed against the Attorney-General asrepresenting the Government of Ceylon. In the present case it isalleged in the plaint that the second and third defendants filled thelake as servants and agents of the “ Government of Ceylon,”but in the notice of action (D 39) served on the Attorney-General in terms of section 461 of the Civil Procedure Code it isexpressed to be an action against him “ as representing the Crownfor the Crown having filled up that'portion of the Beira lake inColombo,” &c.
The argument is that the Government of Ceylon can act onlywithin the scope of its authority, while the Crown is not so limited.That as the Crown can do no wrong—the maxim on which its non-liability to suit is based—so it cannot authorize a wrong, and thatthe Government of Ceylon is therefore responsible for any wrongdone, as it cannot be said to act for the Crown in committing atortious act. The term ” Government ” means the Governor(Ordinance No. 21 of 1901).
It seems to me that a consideration of this point involves a con-sideration of the next, the responsibility of the second and thirddefendants. In Feather's case * it was held “ that' a petition of rightwhich complains of a tortious act done by the Crown or by a public
i 4 8. C. C. 71.3 3 N. L. R. 227.
3 6 B. it S. 295.
VOL XVI.r118-kJ.N. 36177(1/84)
IMS.
Etnas J.
ColomboElectricTramwayCo. e.Attorney-General
1913.
Knnis J.
ColomboElectricTramwayCo. c.Attorney-General
( 194 )
servant by the authority of the Crown discloses no matter of com-plaint which can entitle the petitioner to redress. As in the eyes ofthe law no wrong can be done, so in law no right to redress can arise;and the petition, therefore, which rests on such a foundation fallsat once to the ground." " No authority," however, " is needed toestablish that a servant of the Crown is responsible in law for atortious act done to a fellow-subject, though done by the authorityof the Crown."
As to the position of the Government of Ceylon two points arise:whether the Attorney-General represents the Government of Ceylonwhen it acts outside the scope of its authority from the Crown?and whether the Governor (the Government of Ceylon) is a servantof the Crown liable separately for tortious acts ?
In any case in which the Crown in Ceylon could be sued, there isno material distinction between the terms " Government of Ceylon "and " Crown," and this seems to have been the ground of decisionin La Mcsurier’s case,1 where it was held that the Attorney-Generalwas the right defendant. But just as the Attorney-General ofCeylon does not represent the Crown in all cases, in cases inwhich a remedy is sought against the Imperial Government(Fraser’s case 2), for he represents only the Crown in Ceylon, soit is open to argument w'hether he represents the Governmentof Ceylon, where the local Government is acting in a matter(for which an action could not be maintained against the Crown)outside the scope of its authority. I am of opinion that the Attorney-General represents the Government of Ceylon whenever it actspolitically, i.c., as a political body, and that as a political body theGovernment of Ceylon is not a corporation capable of being sued.It is only liable to be sued in cases in which the Crown in Ceyloncould be sued. In the present case, too, it is clear that the plaintiffshave so framed their suit as to claim redress from the Governmentof Ceylon as a body acting, as appears from their notice of action,for the Crown. The case does not therefore directly raise fthequestion as to the liability of individual members of the Governmentregarded as servants of the Crown for tortious acts. It would seemthat the question has not been definitely decided. In Musgrave v.Pulido 3 it was affirmed that it was within the province of the Court?to determine whether any act of power done by the Governor of acolony is within the limits of his authority, but there is no ruling,so far as I am aware, as to whether a Governor mistakenly actingwithin the limits of his authority is protected. In my opinion hewould be protected on grounds of public policy, for it would rendertlie Government of a country impossible if individual membersacting as servants of the Crown in the administration of Government,bona fide and for the public good, wrfere responsible for acts done
1 3 N. I/. R. 227.. 2 Creasy* s Reports I.
a 5 .4. C. 102.
( 195 )
without malice and in the ordinary course of their duties whichshould subsequently transpire, on minute examination, to be outsidethe scope of their authority.
Similarly, as regards the second and third defendants. They aresued as servants and agents of the Government of Ceylon, and wereadmittedly acting in the ordinary course of their duties and inobedience to the orders of Government. A public servant is boundby the rules of the service to obey all orders of the Government.This obedience is required of them by the direct command of theCrown in the Letters Patent constituting the office of Governor,and it would be impossible to hold them liable to punishment fordisobedience and at the same time liable to damages for obedienceto orders which are not “ necessarily or manifestly unlawful. ” I amtherefore of opinion that the second and third defendants areprotected in this case.
The appropriate remedy would be by proceedings in the natureof a petition of right, for which, as I have found above, there is, inmy opinion, no provision in Ceylon in respect of tort, either in theRoman-Dutch law applicable or in the legislation of the country.For these reasons I am of opinion that the action cannot be main-tained against any of the defendants.
Apart from this, I am ofl opinion that the plaintiff company couldnot in any event succeed. They ask for a declaration of a publicright, for which the Attorney-General alone is entitled to bring action,unless it can be shown that the plaintiff has suffered special damages,apart from any injury which the public generally may have suffered.It is necessary to ascertain what right, if any, has been infringed.For the respondent it was contended that the lake is the absoluteproperty of the Crown, and that the public have no rights in or overit. In England it appears to be an open question whether the landunder large lakes belongs to the Crown or to the adjoining owners,but it seems to be generally accepted that the land belongs to theCrown, unless tEe lake is entirely within the limits of a private estate,or evidence of private ownership is otherwise shown. The owner-ship of the land, however, does not prevent the public fromacquiring rights over the water.
A long argument was addressed to us to show that by Roman-Dutch law large lakes were the sole and exclusive property of thePrince as part of his regalia, and it was contended that the RoadsOrdinances did not create any new right or alter the Roman-Dutchlaw. I do not consider it necessary to go into the Roman-Dutchlaw, as, in my opinion, the Ordinances must be construed to infera dedication, to tbe public of a right of navigation over the watersof the lake, even if they do not go further .and legislate to preservea long pre-existing right.
In 1844 the Ordinance No. 16 of 1844 was passed “ for the preserva-tion ana improvement of the streets, roads, thoroughfares, and public
1018.
Enhis J.
ColomboElectricTramwayCo.«.Attorney-General
IMS.
Ennis J.
ColomboElectricTramwayCo. 9.Attorney-General
( 196 )
places within towns, and of the public roads, navigable rivers, lakes,and canals of this Island.” This Ordinance gave certain officers ofthe Government power to do certain acts to which they wouldotherwise not have .authority to do, e.g., to alter the lake and to enterupon adjacent land and there carry out certain works. In 1848another Ordinance, No. 8 of 1*848, was enacted to make “ betterprovision for the formation and maintenance of roads, and for theimprovement of the means of communication by land and by water ”in the Island, and to apply the labour to be performed and themoney raised under the Ordinance for the benefit of the roads andthe means of communication. Section 2 of this Ordinance em-powered the Governor to declare by Proclamation that any lake, &c.,should be deemed to be a principal lake, &c., for the purpose of theOrdinance, and on October 23, 1848, the Colombo lake was declaredto be deemed a principal lake by Proclamation under the Ordinance.In 1861 a consolidating Ordinance was enacted (No. 10 of 1861),which provided (section 8) that lakes, &c., declared principal lakes,&c., under Ordinance No. 8 of 1848 were to be deemed to be principalthoroughfares for the purposes of the new; Ordinance, whichwas enacted to consolidate and amend the law relating to publicthoroughfares.
In 1888 the Government handed over the lake to the MunicipalCouncil, reserving a right to resume possession, with an undertakingby the Council to keep it in navigable order (D 25, D 26, D 27).This transfer, however, does not appear (D 28) to have been madeunder the provisions of section 72 of the Municipal Councils Ordi-nance, No. 7 of 1887, so no argument can, in my opinion, be basedon the terms of that Ordinance.
These Ordinances of 1844, 1848, and 1861 did not give the publicany new rights over roads and lakes, and the effect of declaring theColombo lake to be deemed to be a principal lake for the purposesof the Ordinance was to allocate to its maintenance (section 33 ofNo. 8 of 1848) a somewhat greater share of the maintenance! provi-sion, but these Ordinances and the Proclamation do acknowledgethat the Colombo lake is a navigable lake and a means of communi-cation for the public, maintainable as a public thoroughfare. Itseems to me the Ordinances clearly indicate a public right ofnavigation on certain lakes, and of these the Colombo lake wasunquestionably one. How the right was acquired does not seem tome to be now relevant, as the Ordinances are based on the assumptionand recognize that the public had the right of navigation over thewaters of the lake.
This right of navigation is a right to pass and re-pass in anydirection over the waters of the lake, and it cannot be denied thatthe filling in of the lake was an injury to this right. This right is apublic right. The plaintiff comp.any have not shown or alleged anyprivate right as injured, they were not reparian owners, and they
( 397 )
do not claim a right of ferry. At the Pettah terminus, the accessto which has been prevented by the filling in of the lake, the plaintiffcompany held the landing place on a license from the Government,and P 7 shows that the Government had withdrawn that licenseprior to filling up the channel which gave access to that terminus.The plaintiff company, therefore, had no private interest in the landat the Pettah terminus, and it is clear that/ no right of way over theGovernment land at that spot had been acquired, as it appears thateven the canoe service was stopped for one day every year to preventany right of way being established. Throughout the evidence theplaintiff company’s service of boats is spoken of ,a& a ferry service.The right* of ferry belongs only to the Crown, and the plaintiff com-pany had not acquired any right of ferry from the Crown. Thedamage to the plaintiff company would clearly be special damageto them if any right of ferry in them had been injured, for thedamage is virtually based on a claim to land passengers at a parti-cular spot on the lake shore. No other damage that I can see hasbeen proved. It has not been shown that it cost them any morethan the rest of the public to go round the lake, or to stop at thepoint on Dhoby island and use the causeway for the quarter of amile from that spot and the Pettah. Any inconvenience they mayhave suffered they have suffered with the rest of the public, and theyhave not received any special injury to themselves other thanthrough an inability to land passengers at a particular spot on theshore, a matter which I consider can be claimed only by virtue ofriparian ownership or as incidental to a right of ferry to which theycan lay no claim, and which would in any event be valueless withouta right to pass over the private land along the Pettah shore.
I would dismiss the appeal with costs.
191$.
Ennis J.
ColomboElectricTramway,Co. i>.Attorney-General
Appeal dismissed.