017-NLR-NLR-V-12-THE-SURVEYOR-GENERAL-v.-ZYLVA.pdf
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Present: Mr. Justice Wood Benton and Mr. Justice Grenier.
THE SURVEYOR-GENERAL v. ZYLVA.
D. C., Kandy, 1/15 of 1889.Surveyor—Misconduct—Fraud—Work containing grave errors—Pre-sumption as to plans and surveys—Treatises by experts—OrdinanceNo. 15 of 1889, s. 8—Evidence Ordinance (No. 14 of 1895), ss. 60and 83.
A surveyor, although he may not be guilty of fraudulent mis-conduct, is liable to have his license cancelled under the provisionsof section 8 of Ordinance No. 15 of 1889, if it be shown that his workcontains such errors as prove him incapable of discharging hisduties with advantage to the public.
A party seeking to contradict vivd voce expert testimony by theopinions of a writer of a treatise must either call the author orsatisfactorily account for his absence within the meaning ofsection 60 of the Evidence Ordinance (No. 14 of 1895).
The presumption created by section 83 of the Evidence Ordinance(No. 14 of 1895) in favour of plans and surveys purporting to'be signed by or on behalf of the Surveyor-General, extends toeverything necessary to be done in order to make the survey orplan a faithful drawing and measurement of the lands surveyed.
A
PPEAL by the defendant from an order of the District Judge(J. H. Templer, Esq.) directing that his license as a surveyor
be cancelled under the provisions of section 8 of Ordinance No. 15of 1889.
. The facts fully appear in the judgments.
H. J. C. Pereira (with him Hon. Mr. Kanagasabai), for the defen-dant, appellant.
W. Pereira, K.C., 8.-0., for the petitioner, respondent.
Ow- adv. wit.1908.June 16.
1908.June 16.
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June 16,1908.—Wood Renton J.—
The appellant, Mr. de Zylva, is a licensed surveyor. The respon-dent, the Surveyor-General, took proceedings against him in theDistrict Court of Kandy, under section 8 of Ordinance No. 15 of1889, claiming cancellation of his license on the grounds that he(1) had proved himself incapable of discharging his duties withadvantage to the public ; and (2) had been guilty of gross misconductas a surveyor. The learned District Judge held that both thosegrounds of cancellation had been established against Mr. de Zylva,and directed the cancellation of his license accordingly. Againstthat order the present appeal is brought.
In May, 1905, Mr. de Zylva was employed by Mr. P. D. G. Clarke,Manager of Nivitigala Estate, to survey certain lands in the villagesof Howpe and Horatinella. Mr. Clarke was negotiating for the sale,of those lands to the Ceylon Tea Plantations Company, and thesurvey was necessary for the purpose of obtaining a certificate ofquiet possession from Government. It does not clearly result fiomthe evidence that Mr. de Zylva was aware of this fact at the timewhen the survey was made. The survey, when completed, was,however, submitted to Government, and ultimately the Surveyor-General instituted these proceedings, on the strength of its allegedinaccurate and worthless character, for the cancellation of Mr. deZylva’s license. It is admitted that Mr. de Zylva’s survey and planshowed the extent of the lands in question to be. 1,434 acres 10perches ; whereas, according to the Government survey and plan,the true extent is only 1,341 acres 17 perches. The Surveyor-General, in his petition, and in the evidence adduced at the inquiry,attacked Mr. de Zylva’s methods of working in detail. But themain issues in the case are whether, in point of fact, Mr. de Zylva,in calculating an area of 1,300 or 1,400 acres, was wrong to anextent of nearly 93 acres, and, in the second place, whether anerror of that description comes under one or other or both of thetwo grounds of cancellation laid down in section 8 of OrdinanceNo. 15 of 1889.
If the surveys and plans of the Surveyor-General are correct, theerror was made. Section 83 of the Evidence Ordinance requires thecourt to presume the accuracy of such surveys and plans if theypurport, as those in issue in the present case do, to be signed byor on behalf of the Surveyor-General. I think that the presumptioncreated by this section extends to everything necessary to be donein order to make the survey or plan a faithful drawing and measure-ment of the land surveyed, and includes, therefore, the selection ofproper bases of measurement. The presumption in question is only,however, a presumption of fact; and Mr. H. J. C. Pereira contendedthat, in the present case, he had rebutted it sufficiently to entitlehim to an independent re-survey of the whole area before his client’swork was condemned as unskilful, I am unable to adopt this view,
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The mere fact that Mr. de Zylva had gone over the ground and hadarrived at different results from those of the survey office is not,under the circumstances of this case, sufficient to displace thestatutory presumption. Mr. Benzie, his witness, did not personallycheck Mr. de Zylva’s work; and in considering the weight due tohis opinion as to the necessity of a re-survey, the possibility of anunconscious bias in favour of Mr. de Zylva, who was formerly hispupil, and the fact that he has admittedly no knowledge of thechanges in the Ceylon survey system since 1893, have to be kept inview. The passages to which Mr. Pereira referred us in the Adminis-tration Report of Mr. Grinlinton (1898, B vii. pp. B 2, 3 ; 1899, B iii.p. B 2) and in Mr. Barnard’s contributions to Mr. Warren’s Adminis-tration Reports for 1902 (B iv. p. 10) and for 1904 (B v. p. M 18)do not, in my opinion, help the appellant, in view of Mr. Bernard’sevidence in regard to them. The passages on which Mr. Pereiramainly relied are these : “ An error in the triangulation,” saysM. Grinlinton, “ and irregularities which are being inquired into,have led to an overlap m the survey, which will take a long time tocorrect, and which will prevent the issue of preliminary plans of thenorthern block this year.” This statement relates to the Provinceof Sabaragamuwa. In his report on trigonometrical surveys(Warren’s Administration Report, 1902, B iv., p. B 10) M.Barnard says : “ The discrepancy in latitude at Delft between theCeylon triangulation and the South Indian System led me toinvestigate the value of the original astronomical observations takenat Colombo in 1860, upon which the trigonometrical latitudes arebased. The results have proved that these observations are to beconsidered only as a very rough approximation to the truth.” Inthe corresponding report for 1904 (B v., p. M 18) we find thefollowing : “ The usual routine work was heavier at the beginningof 1904 than in previous years, owing to the large number of pointsrequired for the extension of the topographical surveys in Uva.This led to a certain amount of revision of the old work in thatProvince with the object of placing some of the minor stations onthe new fixing, but without much success, on account of the
inaccuracy of the old observationsCertain abnormal mis-
closures in trianglesrendered it advisable for me to investigate
the causes of such discrepancies with a more accurate instrument.”Even if they stood unexplained, I do not know that it would befair to treat statements of this description as involving an admissionon the part of the survey office of the present inaccuracy of itssurveys and plans for practical purposes. But M. Barnard, whosegood faith and whose knowledge on such subjects are not challenged,has told us that no admission of the kind was intended. Theremarks made in the report of 1898, he says, “ would not apply inany way to the bases selected by M. Dawson. They have referenceto something quite different, namely, ordinary check-pole work and
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to triangles of a lower class even than minor triangles. .My remarks(in the report of 1902) are purely scientific, and are not intended toconvey the impressions that a survey made on that triangulationwould be erroneous or even inaccurate.” “ The misclosures,” Mr.Barnard also says, “ mentioned in my report of 1904 have merelyscientific interest, and refer only to a very small number of seconds.This report only refers to a subsidiary line of triangles on thenorth-east portion of the Island, and has nothing to do with thepresent case.” Mr. Barnard then produced a diagram (B 6) of thetrigonometrical survey of Ceylon showing the principal triangulationof the Island, in thick lines, and proceeded: “ If any of the anglesdepicted in the triangle with thick lines are in error, it indicates anerror of the triangulation of the Island. The angles included bythese thick lines are checked and re-checked and computed so oftenthat it would be absolutely impossible that any error should remainundetected.” I have quoted these passages, not as constitutingaffirmative evidence of the accuracy of the plans of the survey office,but as showing that the expressions of opinion in the Surveyor-General’s Administration Beports, which Mr. Pereira cited, cannotbe utilized by the appellant for the purpose of rebutting the statutorypresumption in favour of their accuracy. I think that that pre-sumption stands; and the evidence of Mr. Dawson, Mr. Stronach,Mr. Warren, Mr. Ridout, and Mr. Barnard justified the learnedDistrict Judge in holding, as he did, that the error imputed by theSurveyor-General to Mr. de Zylva had been committed.
Was it then an error which proved Mr. de Zylva (1) to be incapableof discharging his duties as a licensed surveyor with advantage tothe public; (2) to have been guilty of gross misconduct in thedischarge of his duties as a surveyor ? There is nothing in theevidence which would have justified a finding of fraudulentmisconduct against Mr. de Zylva ; and I desire, speaking for myself,to say that, while affirming the judgment under appeal, I am farfrom endorsing some of the language in which it is couched, or therapidity with which, on his own showing, the learned Judge madeup his mind against the appellant. But if it be true, as the witnessesexamined on behalf of the Surveyor-General declare, in the firstplace, that Mr. de Zylva’s errors, one of which at least, viz., themiscalculation of 92-93 acres—even the lay tnind feels to be startling—not only were not permissible, but were errors in the elementaryprinciples of surveying, and, in the second place, that he musthave known that that work, which he was deliberately puttingforward as accurate, was work tainted with errors of this character,he has, I think, brought himself within both the conditions con-templated by section 8 of Ordinance No. 15 of 1889 ; he has provedhimself unfit to exercise his profession with advantage to the public,and has also been guilty, even in the absence of fraud, of grossprofessional misconduct. Mr. Warren, Mr. Dawson, Mr, Stronach,
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Mr. JEtidout, and Mr. Barnard are witnesses against whose credibilityno suggestion has-been made, and they are undoubtedly experts inthe eye of the law. The unanimity and the weight of their evidencein regard to the points that I am dealing with are not really weakenedby such casual admissions as the one made by Mr. Warren in cross-examination : “ I could not blame a licensed surveyor for havingbeen guided by books such as have been shown me ; ” for, if theSurveyor-General’s case was well-founded, Mr. de Zylva’s operationscontained errors, such as a misclosure of 26 minutes in 77 bearings,for which it would be difficult to furnish any kind of justification.On the other side, there was merely the evidenoe. of Mr. de Zylvahimself and of Mr. Benzie, to whom I have already referred; for the-text books, which the appellant’s counsel relied upon, were clearlyinadmissible, unless he first satisfied section 60 of the EvidenoeOrdinance by proof that their authors were “dead” or couldnot “ be found,” or had “ become inoapable of giving evidence,” orcould “ not be oalled as witnesses without an amount of delay orexpense,” which the court regarded as “ unreasonable.” I conceivethat there is nothing in section 60 of the Evidence Ordinance toprevent the cross-examination of an expert witness as to opinionsexpressed in such treatises. If the witness accepts the author’sview, he makes it his own ; and, apart from that, the knowledge orlack of knowledge that he displays of the writings of other expertsmay be of value in determining the weight that his testimonydeserves. But if it is desired to go further than this, and to con-tradict viva, voce expert evidence by the opinions of the writer of atreatise, the party proposing to adduce such counter testimony musteither call the author, or satisfactorily account for his absencewithin the meaning of section 60 of the Evidence Ordinance. Thereare obvious reasons why the provisions of that enactment should bestrictly enforced. The expert witness who presents himself incourt can be cross-examined as to the grounds of his opinions andhis qualifications for forming them. The absent author speaks fromthe pages of his work ex cathedra, and, as in the present case of someof the experts mentioned by Mr. Pereira, the description that hegives of himself on the title page may convey little or no meaning toa lay tribunal. In the result I am not prepared to differ from thefindings of the District Judge, or as to the incidental errors in Mr. deZylva’s methods of working, the evidence in regard to which I havecarefully considered, though I have not examined it here in detaileither as to the main error of 92-93 acres. I would dismiss thisappeal with costs.
Grenier J.—
I agree to affirm the order appealed from. The presumption inregard to the correctness of the Surveyor-General’B plans has notbeen rebutted-by the appellant. Certainly, the appellant’s eyidence
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1908- has not shaken the groundwork of the ease which has been built upJune 16. against him by the expert and scientific evidence to be found in theGmsnikb J. record. No imputation has been cast on the honesty or good faithof witnesses like Mr: Warren, Mr. Dawson, Mr. Barnard, Mr. Ridout,and Mr. Stronach ; and a careful consideration of their evidence showthat the discrepancy of 92 acres between the appellant’s survey andplan and the Surveyor-General’s cannot be accounted for except onthe footing that the appellant was either ignorant of the elementaryprinciples of surveying, especially with reference to misclosures,such as have been pointed out to us at the argument, or had donehis work so carelessly and negligently as to render him unfit todischarge the duties of a surveyor with advantage to the public.
I am of the same opinion as my brother on the question of theadmissibility of the books on surveying which were sought to beused in evidence in the court below. They were clearly inadmissible,in view of the express provisions contained in section 60 of theEvidence Ordinance. The reasons given by my brother for theirexclusion are cogent ones, and I cannot add anything to them.
The appellant’s counsel pointed out to us that the District Judgehad made up his mind against his client at a very early stage of theproceedings after he had recorded Mr. Dawson’s evidence. I needhardly say that this was wrong, and that the District Judge shouldhave waited until he had the whole evidence before him, and thenhave expressed his opinion.- At the same time I find that theevidence both for the appellant and against him has been recordedwith great care and with a wealth of technical details, and theappellant’s case did not suffer in the slightest degree before as inconsequence of the District Judge’s premature expression of opinion,because everything that could possibly have been urged in supportof the appeal was well and ably urged both by Mr. H. J. C. Pereiraand Mr. Kanagasabai.
There can be no doubt that the configuration of the land in theSurveyor-General’s plan and survey is the same as that in theappellant’s ; and it goes without saying that the discrepancy of92 acres is too large and serious to be lightly accounted for. Theappellant’s case is, however, that his survey and calculations as tothe extent are correct, and the Surveyor-General’s are all wrong.The appellant' has signally failed to establish his proposition andthus rebut the presumption created by section 60 of the EvidenceOrdinance. To my mind there would not have been this largediscrepancy of 92 acres if the appellant knew his work, and wascompetent to discharge his duties as a surveyor. His incompetencyhas been fully established by the evidence, and I would, therefore,affirm the order of the court below, and dismiss this appeal.
Appeal dismissed.