THE UNIVERSITY OF CEYLON, Petitioner, and E. F. W. FERNANDO, Respondent

002-NLR-NLR-V-59-THE-UNIVERSITY-OF-CEYLON-Petitioner-and-E.-F.-W.-FERNANDO-Respondent.pdf

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BASXAYAKE, C.*J.—University of Ceylon v. Fernando
957 Present : Basnayake, C.J., Pulle, J., K. D. de Silva, J., Sansoni, J.,.•and V. W. de Silva, A.J.•THE UNIVERSITY OF CEYLON, Petitioner, and E. F. W.
FERNANDO, Respondent
S. C. 56S—In the matter of an Application for Conditional Leave to Appealto the Privy Council in S. C. 559 D. C. Colombo 28,909
Privy Council—Application for conditional leave to appeal —Kolicc thereof to opposite-party—Personal service not necessary—Appeals (Privy Council) Ordinance{Cap. 85), Schedule, Rule 2—Appellate Procedure (Privy Council) Order, 1921,Rules 5, 5A, C.
Rule 2 ofj tlic Scheclttlo to tlio .Appeals {Privy Coimoi!) Ordinance reads nsfollows :—•
“Application to tho court for leavo to appeal shall bo made by petitionwithin thirty (lays from tho dato of tho judgment to bo appealed from, andtlio applicant shall, within fourteen days from tho date of such judgment,givo tho opposito party notice of Such intended application. ”
Held, that tho Rule does not require personal scrvico of tho nofico requiredto bo given thereunder and that Rules 5 and 5A of tho Appellate Procedure(Privy Council) Order, 1921, have no application to it. Accordingly, where thopost is used as a medium of transmitting tho prescribed notice, the applicant isrequired to do nothing more than send, in duo time, a properly addressed prepaidletter containing tho nnmo and address of tho opposito party.
Pradel v. Pcrnando (1934) 3G N. L. R. 132, overruled.
APPLICATION for conditional leave to appeal to the Privy Council.Tho hearing of this application was referred to a Bench of live Judges-under Section 51 (1) of the Courts Ordinance.
II. W. Jaycicardene, Q.C., with John dcSctram, for Applicant-Appellant.
Colvin R. de Silva, with Waller Jayaicardena,Hussein, for Respondent-Respondent.
K. Shiny a and J1/.Cur. adv. vult.
July 31, 1957. Basxayake, C.J.—
This is an application by the University of Ceylon (hereinafter referredto as the University) for leave to appeal to the Privy Council from theJudgment of this Court delivered on 2Sth November 195G.
Rule 2 of the Rules in the Schedule (hereinafter referred to as ScheduledRule 2) to the Appeals (Privy Council) Ordinance requires an applicantfor leave to appeal to the Privy Council—
(а)to give, within fourteen daj'S from the date of the judgment to be
appealed from, the opposite party notice of his intention toapply for leave, and
(б)make an application to this Court by petition within thirty days
from the date of such judgment.
0
B ASX A YAK E, C.J.— Uniccrsily aj C'cylon r. f'crnantfa
The present application lias been made within the prescribed time ;7jut the opposite party (hereinafter referred to as the respondent) opposesit on the ground that the University lias not given the prescribed notice.It is not disputed that failure to give the prescribed notice is fatal to thisapplication. This Court has all along taken the view that the provisionof Scheduled Rule 2 as to notice is imperative and that compliance there-with is a condition precedent to the reception of nil application for leaveto appeal.
Learned counsel on behalf of the University claims that it has in thoinstant case conqdied with the requirements of Scheduled Rule 2 bydoing the following acts :—
B3’ sending by registered post on 6th December 1956 two noticesdirected to the respondent, one signed by the Vice-Chancellorand Registrar of the University and sealed with its Sea), andthe other signed by the Proctor for the University, to each ofthe following places :—
.(i) Xo. S2 Barnes Place, Colombo, the admitted residence of
the respondent, and
(ii) St. Peter’s College, where at the material date the respon-dent was a teacher.
{b) By sending by registered post on 6th December 1956 to the addressfor service given in the Proxy of the Proctor who represented therespondent both at the trial and in the appeal to this Court,two notices in the same terms and signed by the same personswho signed the notices sent to the respondent.
(c) B' handing to the same Proctor personally two similar notices onUth December 1936, before the expiry of the period of fourteendays.
All the notices sent on 6th December 1936 were delivered on 7th .December 1956 at the respective addresses. Beamed counsel for theUniversity submits that all the notices satisfy the requirements ofScheduled Rule 2.
The respondent has filed an affidavit in which ho says that on 7thDecember, the day on which the notices were delivered both at S2 BarnesPlace and at St. Peter’s College, he left his residence at S a.m. before theletters were delivered there, for the purpose of invigilating at a term testat St. Peter’s College, where he worked from S.45 a.m. to 10.30 a.m.Prom St. Peter’s College he went to the Xational Museum and workedthere till 4.30 p.m., and came back to the College- where lie helped at itsChristmas Fete till 7.30 p.m. and later left for Pern den iya. by theS. 15 p.m. train without goingbackto his house. He returned to Colomboon the night of 16th December 1956 and was handed the letters containingthe notices by his mother the next morning. The respondent also statesthat on being informed on 21st December by his Proctor, Lucian Jansz,that notices addressed to him had been sent by post to the care of theRector, St-. Peter’s College, he went to the College and found them lying■on a table in the Masters’ Room.
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BASXAYAICE, C.J.— University of Ceylon v. Fernando
■ On these facts learned counsel for the respondent submitted .
that notice as required by. Scheduled Rule 2 has not been given,
that a notice under that Rule to be effective must reach the res-
pondent, in the sense of his becoming aware of it, or of the notice,, coming to his knowledge, within the prescribed period offourteen days,
that the delivery of a notice at the respondent’s residence without
pi'oof that he read the notice or otherwise became aware of itwithin the fourteen da}*s, is not notice as contemplated inScheduled Rule 2,
that the delivery of a notice at the place where the respondent is
employed, without proof that he read the notice or otherwisebecame aware of it within the fourteen days, is not notice ascontemplated in Scheduled Rule 2,
that the notice given to and served on the Proctor who represented
the respondent at the trial of the action and in the appeal tothis Court does not amount to giving notice to’ the respondentas the Proctor had no authority to act for him beyond the termsof his Proxy which did not expressly authorise him to receive anotice given under Scheduled Rule 2,
(/) that even if the Proctor who represented him at the trial can beregarded as his agent the deliver}* of a notice to him in theabsence of a special authority under Procedural Rule 6 of theAppellate Procedure (Privy Council) Order-, 1921, does notsatisfy the requirement of Scheduled Rule 2 in view of thedecision of this Court in Frculd v. Fernando h
We have had the advantage of a full argument by learned counsel onboth sides and we have been referred to a number of decisions both ofthis Court and of the Courts in England. It is not necessary for the pur-pose of this judgment to refer to most of the cases cited and only thosewhich have a direct bearing on the questions arising for decision will bementioned herein.
It is an established principle that where personal service is requiredit must be so stated in express words in the enactment and in the absenceof such words a notice required to be given by a statute may be given inany other way. {Beg. v. Deputies of the Freemen of Leicester 2, Ex parte.Porlingell3). Our Civil Procedure and Criminal Procedure Codes and theInsolvency Ordinance contain examples of such express provisions pres-cribing personal service. The words “give”, “send”, “deliver”,and " serve ” by themselves are not to be regarded as connoting personalservice. In certain contexts they have been held to mean merely send ordespatch or transmit (vide Retail Dair, Company Ltd. v. Clarice 4 and theJudgment of Buckley L.J. in Broicne v. Black *). In other contexts theyhave been held to mean not only sent, despatched or transmitted but alsosent, despatched or transmitted and received at the other end. {vide 1
1 (1034) 30 jV. L. It. 132.3 (1S02) L. R. 1 Q. B. 13 at It.
* U1 E. R. CI3 at 013.* (1012) 2 K. B. 3SS.
-•-s (1012) 1 K. B. 310 at 322.
BASXAVAK10. C.J-.— V nivcrsity of Ceylon t Fernando
] 1
Judgments of Vaughan Williams andKcnncdy.L.JJ. in Browne v. Black1.)The decisions of this Court have recognised the use of the post as a meansof giving the notice required by Scheduled Rule 2 and learned counselfor the respondent does not seek to question the right of an applicant forleave to send the prescribed notice by post. Who re the post is usedas a medium of transmitting the prescribed notice, is an applicant forleave required to do more than send, in due time, a properly addressedprepaid letter containing the name and address of the opposite party ?Wo think not, for it is not in his power to do more. Besides, it is wellestablished that “ where a letter, fully and particularly direetedto apersonat his usual place of residence, is proved to have'bccn put into the post-office, this is equivalent to proof of a delivery into the hands of thatperson ; because it is a safe and reasonable presumption that it reachesits destination ”—per Abbott, Ld. C.J. in Waller v. Haynes -. Althoughthe law does not require that the registered post should be used it is thepractice of cautious jjersons (as in the instant case) to adopt the safeguardof registering the letter so that proof of its delivery at its destination couldbe adduced should it become necessary to do so.
Now when we turn to Scheduled Rule 2 we find no express wordsrequiring personal service. The requirement of “giving notice” istherefore satisfied by sending a notice by post. In our opinion the re-quirements of the statute arc satisfied once the letter is despatched andreaches its destination within the prescribed period. The addresseemay not be at his house, he may not choose to open the letter, he maydestroy it, his servant or other person to whom the letter is handed by thepostman may forget to give it to him ; but all these are not considerationswhich affect the act of the applicant once he has performed it in duetime. To expect the applicant not only to send the notice in due time,but also to ensure that the respondent reads it or becomes aware of itwithin the prescribed period, is to ask the applicant to do the impossible.Lex non cogiL ad impossibilia is a well-known maxim applicable to theinterpretation of statutes. A statute should be construed so as not toplace upon it an interpretation which requires the performance of theimpossible. Without express words in that behalf wc are not disposedto place on Scheduled Rule 2 the construction that learned counsel forthe respondent seeks to place on it. We are unable to uphold his sub-mission that not onl}- must a notice sent by post be delivered to the addressto which it is despatched but- it must also “ reach ” the addressee in thesense that he must become aware of it by opening and reading the letterwithin the prescribed period.
We are of opinion that in the instant case notice was given the momentthe letters reached Xo. S2 Barnes Place and St. Peter’s College and thatit is immaterial that the respondent was not at his residence at the timethe letter was delivered and for nine days thereafter or did not read thenotices till after the fourteen days. The duty cast on an applicant forleave to appeal being to give notice, once a notice in writing has beendelivered at the usual place of residence of the opposite party in duetime, the terms of the statute are satisfied and it is immaterial whetherhe reads the notice within the prescribed period or after it or never.
(JO 12) 1 K. B. 3JC at 319 and 326.
(1824) 171 E. R. 975.
BASXAYAJvE, C.J.—University oj Ceylon v, Fernando
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In support of his contention that the delivery of the letter at the houseof the respondent was sufficient, learned counsel for the University re-ferred us to the following remarks of Lord Kenyon in Jones v. Marsh 1:—
“ But in every case of the service of a notice, leaving it at the dwelling-house of the party has always been deemed sufficient. So wherever theLegislature has enacted, that before a party shall be affected by anyact, notice shall be given to him, and leaving that notice at his house issufficient. ”•
The view we have formed is in accord with the observations quotedabove, and in our opinion they apply with equal force to a letter deliveredby post.
The soundness of this principle has been reaffirmed by Lord ChiefJustice Abbott in Doe item. Neville v. Dunbar 2 and in the later case ofTanhain v. Nicholson 3, by Lord West bury where he pointed out thatowing to the looseness of the language in some of the later judgments theerroneous notion grew' that it was competent to meet the evidence ofdelivery by counter testimony and to prove that the notice never reachedthe person for whom it was intended.
The argument of this case proceeded on the assumption that ScheduledRule 2 is not satisfied unless the notice is in fact delivered at the addressof the respondent within the period of fourteen days. The questionwhether a notice posted within the prescribed period and in fact deliveredafter it, owing either to delay or mishap in the post or on account of theletter having been posted without allowance being made for its deliveryin the ordinary course of post at the address of the opposite party withinthe period, is a valid notice, does not arise for decision here, and we donot therefore propose to refer to it in this judgment although it wasdiscussed at length in tho course of the hearing and the decision of thisCourt in Balasubramaniam Pillai v. i'alliapa Chelliar4 was cited insupport of the argument that it is sufficient if the notice is sent withinthe fourteen days even though it is delivered to the opposite party afterthat period.
' Counsel for the University contended that a mere sending or despatchingof the notice within the fourteen days was sufficient while counsel for therespondent maintained that not only' must the notice be delivered at theaddress of the respondent within the fourteen days but it must also reachhim in the sense of his being made aware of it within that period.
Our opinion that the University has complied with Scheduled Rule 2disposes of this application. But as this application was referred to aBench of five Jirdges for the purpose of deciding the further qirestionwhether Rules 5 and 5A of the Rules made under section 4 of the Ordi-nance (hereinafter referred to as the Procedural Rules) were applicableto the giving of notice under Scheduled Rule 2, it is necessary' to deal withit as the conclusion we have come to is in conflict with the previous.decisions of this Court.'
1 (1701) 100 E. R. 1121.3 (1071-2) 5 L. R. H. E. English and
' (1S2G) 173 E. R. 10G2.Irish Appeals 601 at 673 and 671.
* (103S') 10 N. L. R. SO.
BASXAYAJCE, C.J.—University oj Ceylon v. Fernando
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It appears to have been assumed in all the previous eases that Proce-dural Rule 5 prescribed a mode of serving the notice required to be givenunder Scheduled Rule 2. The principle -which we have stated above/that where personal service is not expressly required by a statute it shouldnot be construed as requiring personal service does not seem to have beengiven due consideration in the previous decisions. We have no reasonto doubt the soundness of that principle and we do not see how, withoutdoing violence to it, Procedural Rule 5 can be said to prescribe the modeof giving notice under Scheduled Rule 2. Procedural Rule 5, whichprescribes that “ a party who is required to serve any notice may himselfserve it or cause it to be served, or may apply by motion in Court before asingle Judge for an order that it may be issued by and served through theCourt ”, can therefore have no application to a rule which does not requirepersonal service. The Schedule is a part of the enactment, and to holdthat Procedural Rule 5 controls the Schedule would amount to sayingthat a subsidiary rule can over-ride the enabling enactment-. It is wellsettled that a rule made under an enactment cannot derogate from theenactment itself and where a subsidiary rule is inconsistent with theenabling enactment it must 3*ield to the enactment. If Pr ocedural Rule 5was designed to apply to Scheduled Rule 2 it would clearly be ultra vires.There is no ground for assuming that the rule-making authority intendedto make a rule which is clearly ultra vires. Procedural Rule 5 must boregarded as being infra vires of the enabling power, but as having noapplication to Scheduled Rule 2.
As stated above our opinion that Procedural Rule 5 does not prescribethe mode of giving the notice required by Scheduled Rule 2 is in conflictwith the previous decisions of this Court, chiefs Fradd v. Fernando 1.
In that case it was held that Procedural Rules 5 and 5A should be read inconjunction with Scheduled Rule 2 and that as Procedural Rule 5prescribes personal service the notice required by Scheduled Rulo 2 shouldbe served on the opposite party personalty-. We are unable to agreewith that decision. Our reasons are—
As stated in the earlier part of this judgment, Scheduled Rule 2
does not require personal service of the notice required to begiven by it. A rule prescribing the mode of personal servicecannot therefore apply to it.
Procedural Rule 5 is made under section I of the Appeals (Privy
Council) Ordinance which provides for the making of rulesto be observed in any proceedings before the Supreme Court.
The notice given under Scheduled Rule 2 not being a pioceedingbefore the Supreme Court, Procedural Rule 5 can have noapplication to it. (vide Hayley and Kenny v. Zainudeen 2; Muni-ci^ial Council, Colombo v. Lctchiman Chcltiar 3.)
Procedural Rule 5 is designed to apply to notices given after pro-
ceedings have commenced in Court while the notice prescribedin Scheduled Rule 2 is a step to be taken before the application.for leave to appeal is made.
1 (1931) 30 X. L. R. 132.* (1923) 2-5 X. L. R. 312.
3 (1943) 44 X. L. R. 217 at 219.
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Joints Per era v. Masinghe
A statute cannot be modified by rules made under it in the absence
of express power in that behalf. To read Procedural Rule 5 asapplying to Scheduled Rule 2 would amount to holding that theSchedule (which is part and parcel of the enactment) can bemodified by rules made under it. Section 4 does not confer any'power to make rules inconsistent or in conflict with the Ordi-
nance. It would therefore be wrong to read Procedural Rule 5as controlling Scheduled Rule 2.
Procedural Rule 5 when read as applying to notices required to be
given after proceedings have commenced is intra vires of theenabling enactment and should be read in that sense so as togive it validity.-
In our opinion therefore Fradd v. Fernando (supra) has been wronglydecided and we accordingly over-rule it.
We wish to repeat that Scheduled Rule 2 does not require personalservice of the notice required to be given thereunder and Rules 5 and 5Aof the Procedural Rules have no application to it.
The application for leave is granted upon the condition that the appel-lant shall within a period of one month from the date of this judgmententer into good and sufficient security by depositing with the Registrar asum of Rs. 3,000 and by hypothecating that sum by bond for the dueprosecution of this appeal and the payment of all such costs as maybecome payable to the respondent.
We declare the University entitled to costs of the hearing into therespondent’s objection.
Pulle, J.—I agree.
K.I). de Silva, J.—I agree.
Saxsosi, J.—I agree.
. W. de Silva, A.J.—I agree.
Application granted.