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1906.April 12.
Present: The Hon. Mr. A. G. Lascelles, Acting Chief Justice, Mr.Justice Middleton, and Mr. Justice Wood Benton.
Mala fide .‘possessor—Compensation—Impensautiles—Impensa ■ neces-
saria—Jus retentionis—Roman-Dutch Lam.
A mala fide possessor is notentitledunder the Roman-Dutch
law,asadministered inCeylon, tocompensation for impensa
utiles; he is only entitled to impensa necessarioe.
Possession is bona fide when the possessor entertains any pro-bable orapparent rightof propertyto the thing possessed;
possession is mala fide when he does not entertain the same.
Wood Rbnton J.—The Courtsought’ to scan . jealously the
evidence of mala fide possession, and to insist that the eonscientiarei aliena should be clearly proved.
HE plaintiffs claimed title to a certain plot of land. The defen-dant denied the title of the plaintiff company, and in the alter-
native claimed Bs. 500 as compensation for valuable improvementsmade by him. The District Judge (J. H. de Saram, Esq.) decidedin favour of the plaintiffs, both on the question of title and on the
ft) (1905) 8 N. L. R. 223.
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question of compensation for improvements. His judgment- on thelatter point was as follows:—
“ The last issue is as to compensation claimed by the defendant.Mr. Vanderwall argued that the defendant being a mala fide- possessoris not entitled to compensation.
“ The defendant was warned against planting the land till the ques-tion of title is settled. He elected to plant notwithstanding thatwarning. In the view I take he knew the land does not belong tohim, and that he had no right to plant it. Pereira, ActingPuisne Justice,’ said in an action of this Court No. 16,147 (1):
‘ A mala fide possessor is one who possesses well knowing thathe has no right to do so, inasmuch as the property possessedbelongs to another, and it would be unreasonable to allow himto force on the true owner improvements which, very useful thoughthey be, are effected according to his own taste or within his fancy,and may be such as the true owner himself would never havecared to effect.’
“ The defendant is a mala fide possessor, and cannot therefore com-.pel the plaintiffs to pay him compensation. The plaintiffs’ propertyis a tea estate, but I understand they are unwilling to take over theplantation made by the defendant and pay him compensation.
“ The Boman-Dutch Law (3 Burge 33) and the Kandyan Law(Armour, page 218) are to the effect that a person in the positionof the defendant is permitted to take away such improvements ascan be removed without detriment to the land. He may thereforeremove it.
“ When the issue as to compensation was framed it was understoodthe plaintiffs might prove the damages they sustained by the defen-dant’s unlawful act in taking possession, and that if they are heldliable to pay compensation the damages sustained by them bededucted from the amount they have to pay. In the circumstances,as I hold the defendant not entitled to compensation, I have to awardplaintiff’s damages. In assessing these I go by the Batemahat-maya’s evidence* as to the quantity of firewood defendant took fromthis land. I put it down at 100 yards, which according to Mr. Tylerwas worth Bs. 2.50 a yard.
“ I give the plaintiffs judgment for the land in question, viz., plotA 6 acres and 16 perches in extent, as shown on plan B withBs. 250 as damages and costs. The defendant is to be permittedto remove the tea planted by him within one month from this date.
April 12.
(1) 2 Balasingham 149.
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1906.in the event of his failing to do so, the Fiscal will be directed to
April 32. remove it, the costs incurred by him to be paid by the defendant.”
The defendant appealed.
Domhorst, K.C., for defendant, appellant.
Van Langenberg, A. S.-G., for plaintiffs, respondents.
Cur. adv. vult.
12th April, 1906. Lascelles A.C.J.—
The question for determination is whether the mala fide possessorof land is entitled to compensation for useful outlay.
We are also asked to review the finding of the Court below thatthe appellant was in fact a mala fide possessor. On this latter pointI will only say that after a careful perusal of the evidence I am notprepared to say that the experienced Judge who tried this case hascome to a wrong conclusion.
With regard to the question of law, the rule of the Civil Law isthat the possessor of another property, whether bona fide or mala fide,is entitled to remain in possession until he is paid his necessaryoutlay on the property, but that a bona fide possessor alone isentitled to compensation for useful as distinguished from merelynecessary outlay.
The Roman-Dutch Jurists are however, divided in opinion on this ‘point. Voet, Van Leeuwen, and others hold, on grounds of naturalequity, that a mala fide possessor is on the same footing as regardsuseful outlay as a bona fide possessor. Grotius and Van der Keesselon the other hand hold that the mala fide possessor is only entitledto necessary expenses. The former view seems to have been adoptedby the Courts in Cape Colony.
I do not think that a detailed examination of the opinions of theRoman-Dutch Jurists and of the reason on which they are basedwill assist us in determining the question under consideration.
The point is rather one of usage. Was the Roman-Dutch Law,which has been introduced into Ceylon and acted upon for upwardsof two centuries, the law as expounded by Voet and Van Leeuwenor the law as expounded by Grotius and Van der Keessel?
The reported decisions are not numerous.
Mangi v. Sedera (1) is perhaps a case where a mala fidepossessor was allowed compensation for impensw utiles, but the facts,are very briefly reported.
In the Dodangala estate case (2) the Supreme Court clearlyrecognized the view that a bona fide possessor was. alone entitled!to impensee utiles.
(1) ‘(1859) 3 Lor. 291..(2) (1873) 3 Grenier 45,
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Tikri Banda v. Gamagedera (1) was a oase of a bona fide possessor.Mr. Berwick seems to have adopted Voet’s view, but the SupremeCourt expressed no opinion.
N. de Silva, v. Shaik Ali (2) was also a case of a bana fidepossessor. The judgment of Bonser C.J. contains nothing infavour of the contention that a mala fide possessor and a bona fidepossessor have the same rights.
Muttiah v. Clements (3), and Ukku v. Bodia (4), are again cases ofbona fide possession.
In Endorissa v. Andorissa (5), Moncreiff J., after granting anadjournment to enable the defendant’s counsel to produoe authorityfor his contention that a mala fide possessor was entitled tocompensation for useful outlay, dismissed the appeal.
In D. C., Kandy, 16,147 (6) Pereira, Acting Justice, came to theconclusion that a mala fide possessor was not entitled to compensa-tion for impensee utiles. Layard C.J. expressed no opinion..
The inference which I draw from these authorities is that amala fide possessor is not entitled under the Roman-Dutch Law, ashitherto understood and administered in Ceylon, to compensationfor useful outlay.
Cases of the mala fide occupation of land are very common inCeylon, and if it were the law that persons so occupying propertyare entitled to compensation for useful expenditure, it is incrediblethat no reported case can be cited in which this right has been dis-tinctly, laid down.
There can be no question that the considerations drawn fromconvenience are in favour of the view of the law which I have indi-cated as being in force in Ceylon. In this Colony at any rate it isnot desirable to encourage persons to occupy property which theyknow is not their own.
I would dismiss the appeal with costs.
Middleton J.—
This was an action to vindicate title to a piece of land forming partof a tea estate, the property of the General Ceylon Tea Estates Co.,Ltd., and for damages and costs.
The defendant’s case was that the land in question had been thelawful property of one A. de Silva, who being indebted to the defen-dant about 22 years ago, made it over to the defendant promisingto give him a notarial transfer therefor thereafter, which he bad not
1908.April 12.
(1)(1880) 3 S. C. C. 33.
(1895) 1 N. L. R. 228.{3) (1900) 4 N. L. R. 168.
(1902) 6 N. L. R. 45.
(6) (1902) 6 N. L. R. 350.(6) 2′ Balasingham 149.
April 12.
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done, and the defendant claimed a title by prescription to the saidland. The defendant had planted the land in question, which wasin extent about 6 acres and 16 perches, with tea.
The issues agreed upon were: —
Whether the land in dispute is part of the land purchased
by John Perera Ranasinghe from’the Crown in the year
1868 ?
Whether the defendant has acquired a title by prescription
to tbe land in dispute ?
What compensation, if any, is the defendant entitled to
recover ?
The District Judge in giving judgment found on the first issuein the affirmative. On the second issue the District Judge declinedto believe the evidence adduced by the defendant, and expressedhimself satisfied that the defendant did not enter into possessionuntil very recently.
‘ As regards compensation the District Judge held on the autho-rity of a dictum of Pereira A.P.J. in D. G., Kandy, 16,147. (1)that the defendant was a mala fide possessor and could not thereforecompel the plaintiffs to pay him compensation for the tea he hadplanted on their land.
The Judge gave judgment for the plaintiffs for the land in questionand Rs. 250 as damages for the firewood which the defendant hadtaken from the land, giving leave to the defendant to remove thetea planted by him within one month of the date of judgment; in theevent of his failing to do so, the Fiscal to be directed to remove it,the costs incurred by him to be paid by the defendants.
Against this judgment the defendant appealed, and it was argued -on his behalf—first, that he had not been proved to be a mala fide pos-sessor; and second, that if he were a mala fide possessor he was stillentitled under authorities quoted on the Roman-Dutch Law to beallowed utiles impensce as’ well as impensce necessaries.
According to Grotius (section 1., Herbert’s Trans, p. 71) ” posses-sion bona fide.is when the possessor entertains any probable or appa-rent right of property to the thing possessed,” and section 11, p. 71,
“ possession maZa fide is when he does not entertain uhe same.”
In the present case the District Judge has found in no uncertainterms that the defendant is a mala fide possessor, and in view of hisopinion so definitely expressed upon the evidence by and on behalfof the defendant it is extremely difficult for this Court to say thatthe defendant was not, as the learned Judge finds him, a mala fidepossessor.
(1) 2 Balasingham 149.
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Van der Keessel (page 73, Thes. 214) says: “ Many authors maintaincontrary to the opinion of Grotius, who has followed the rule of theCivil Law, that a mala fide possessor may deduct the useful expenses, ’ ’also adding ” their opinion cannot however be admitted.” VanLeeuwen, as translated by Kotze (vol. I., p. 184) says: ” But he,who possesses property mala fide well knowing it to belong toanother can derive no profit therefrom, (nemo enim ex buo eoelerecompendium habere debet), and must not merely restore the pro-perty together with the fruits he has actually enjoyed, but also allthat the owner might have derived from the property (the expensesbeing previously deducted) ” and in note (A) the translator addshis opinion that ” the statement of the author in the text is to beunderstood of all expenses, he having inserted the same withinbrackets to show that it differs from the laws of the Emperor Justi-nian cited by him immediately afterwards.”
A note at page 180 of the same volume is to the following effect: —“ As the poena legalee and punishments which deprive a personof his right are not. in use among us, and no one may enrich himself. at the expense of another, the rule has been introduced that he whoknowingly builds upon another’s land may claim and retain alluseful expenses ” referring to Groenewegen. The Courts of CapeColony appear to have adopted the view of Groenewegen, Van Lee-uwen, Voet, and Schorer, holding that a mala fide possessor is in thesame position as regards compensation as a bona fide possessor, andthat he is entitled to recover utiles impensa incurred by him uponland occupied by him (see Maasdorp, vol. 2, p. 54, quoting Bellinghamv, Bloommetje, 4 Buck. 36).
It seems to have been laid down also in De Beer’s ConsolidatedMines v. London and South African Exploration Go. (1) -quotedby Maasdorp in vol. 2, p. 55, of his “Institutes of Cape Law,”that “ a mala fide possessor is in the position of a spoliator, who isbound before all things to restore that which he has obtained byspoliation, and therefore is not entitled to-, a right of retention, butis bound to restore the land before the question of compensationcan be raised b^ him, but .if the owner of the ground has stood by andallowed the building to proceed without any notice’ of his own claim,the mala fide possessor will, through the fraud of the owner, be placedin the same position as a bona fide possessor and entitled to the samerights of retention.”
My own view is that a mala fide’ possessor being “in effect an inten-.tional wrongdoer ought not to complain, if the utiles impensce incurred
(1) 10 S. C. 359.
April 12.
April 19.
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by him should enrich the real owner of the property at his, the spo-liator’s, expense.
This would appear also to be the views of Moncreiff J. [Endoriasa
v. Andorissa (1)], and Pereira A.P.J. [D. G., Kandy, 16,147 (2)].
I would hold therefore that a mala fide possessor is not entitled toutiles impenaa except in cases where the owner of the property stoodby and allowed the building or planting to proceed withoutnotice of his own claim. In such a case I would put the mala fidepossessor in the same position as a bona fide possessor and give himthe same rights of retention.
In the present case in March, 1903, the Batemahatmaya, at therequest of the plaintiff’s Superintendent, told defendant not to planttea until the question of title was settled, to which the defendantreplied that the land was his, but that he would give it up if theSuperintendent would produce his plan.
According to the evidence the defendant subsequently was invitedto view the plan at Gampola but declined to do so.
In 1903 the plaintiffs instituted an action for this land in theCourt of Bequests of Gampola, which was dismissed for want ofjurisdiction as regard the value of the land.
Under these circumstances I think that the defendant has him-self to thank for the position in which he now finds himself ofhaving mala fide incurred utiles impensce on the land of anotherperson, and I would uphold the ruling of the District Judge on thispoint.
Wood Benton J.—I concur. The whole body of direct judicialdecision in the Colony controverts the view expressed by Mr. Berwickin Tikiri Banda v. Gamagedere Banda (3) that a mala fide possessoris entitled to compensation for useful improvements; and notwith-standing the weight which must always attach to any pronouncementof that learned Judge on a point of Boman-Dutch Law, there are,I think, strong reasons why in this instance his opinion should not befollowed. Mr. Berwick’s obiter dicta (for the case in questionwas disposed of on the footing that the plaintiffs had a good,though defeasible, title, i.e., were bona fide possessors), were notadopted by the other members of the Court (Cayley C.J. and Dias J.).Moreover, Mr. Berwick does not consider the controversy betweenthe schools of Voet and Van der Keessel from the sole standpointwith which we are concerned, viz., which of the two conflictingdoctrines had been introduced into Ceylon. I take it, as I havesaid already, that direct judicial authority is in favour of the views
(1) (1902) 6 N. L. R. 350.(2) 2 Balasingham 149.
(1880) 3 S. C. G. 31 at p. 33.
of Van der Eeessel [see e.g., the Dodangolla ease (1); Endorisa v.Andorisa (2)]. If it is permissible to consider whether, on groundsof policy, the more liberal or the stricter doctrine as to the legalposition of the mala fide possessor ought to be adopted in thisColony, I fancy that the question admits of but one answer. Itmay be that the end which the milder view that seems now toprevail in South Africa (Maasdorp, vol. 2, pp. 53, 54) seeks to attainmight be reached here in another way. I think that Courts of Lawought to scan jealously the evidence of mala fide possession, and toinsist that the conscientia ret alienee should be clearly proved. Butwhen once that has been done, the mala fide possessor should beleft to the rigour of the law, as Van der Keessel defined it.
April 12.
WoodRhntow J.