W. H. BUDDHADASA, Petitioner, and N. NADARAJA , Respondent

135-NLR-NLR-V-56-W.-H.-BUDDHADASA-Petitioner-and-N.-NADARAJA-Respondent.pdf

8ANSONI J.—Buddhadaaa v. Nadaraja537
Present : Sansoni J.W. H. BUD DH AD ASA, Petitioner, and N. NADARAJARespondent
S.VO—In the matter of an Application for an Injunction under
Section 20 of the Courts Ordinance
Injunction –1‘ower oj Supreme Court to grant injunctions—Conditions precedent—
Liability of a servant oj the Crown—Courts Ordinance (Cap. 6), s. 20—Income
Tax Ordinance {Cap. 188), s.'79 (2) {a).
la an application for an injunction to restrain the respondent, in supposedperformance of his functions as Deputy Fiscal, from wrongfully seizing andselling the movable property of the petitioner in alleged pursuance of theprovisions of section 79 (2) (a) of the Income Tax Ordinance—
Held, tliut the power of the Supreme Court to grant injunctions under sec-tion 20 of the Courts Ordinance “is a strictly limited one to be exercised onlyon special grounds and in special circumstances’’. An injunction will nottherefore be granted if the petitioner was in a position to apply to the District#Court for an injunction at about the time that he filed his. application in theSupreme Court or even if, between the date of his filing his petition in theSupreme Court and the date of hearing of arguments, the petitioner could haveinstituted action in the District Court.
Held further, that a servant of the Crown purporting to act in his officialcapacity on belialf of the Crown can be restrained from so acting by an in-junction issued against him as an individual.
APPLICATION for an injunction under section 20 of the CourtsOrdinance.
I.ssudeen Mohamed, with Carl Jayasintjhe, for the petitioner.
Walter Jai/mmrdene, for the Deputy Fiscal, Western Province.
It. S. W'antisundera, Crown Counsel, as amicus curiae.
May 2, 11155. .Sansoni J.—
The petitioner in this application has asked for the issue of an injunctionunder section 20 of the Courts Ordinance, Cap. 6, to restrain the respondent“ from pursuing the unlawful action already committed ” (i.e., the wrongfulseizure of tho petitioner’s goods) “ and to prevent further unlawful
538
8ANSON I J.—Buddhqdasa;v.:Nadaraja
actions about to be committed, namely, the sale of the petitioner’s goodsand the continuance of the seizure He has also asked that the re-spondent be ordered to release the petitioner’s goods already seized. Therespondent is described in the caption as “ N. Nadarajah of Colomboholding office as Deputy Fiscal, Western ‘Province ” while the petitioner is“ W. H. Buddhadasa carrying on business tinder the name, stylo andfirm of W. H. Hendrick and Sons at No. 63 Bankshall Street, Pettah,Colombo ”.
The application was made by petition and affidavit to which wereattached certain documents referred to therein, and was filed on17th February. It came before Gunasekara, J., who ordered notice to beissued on the respondent returnable 22nd February. Notice was dulyserved on the respondent who filed his own affidavit and the affidavit ofT. Murugaser, Assessor of Income Tax, both dated 19th March. Theaffidavits refer to certain documents filed along with them. In reply tothose affidavits the petitioner’s proctor filed two further affidavits dated21st March from the petitioner and W. H. Hendrick, Managing Director ofMessrs. Hendrick and Sons, respectively, to which were attached certaindocuments referred to therein. '
The petitioner’s complaint in his first affidavit is thatc< the respondentproceeded on the 14th February, 1955 to seize and seal up the goods be-longing to the petitioner at premises No. 63, Bankshall Street, allegingthat he was empowered under a certificate issued by the Deputy Com-missioner of Income Tax in June, 1954, under section 79 (2) (a) of theIncome Tax Ordinance to seize the goods belonging to a firm calledHendrick and Sons Limited ”. He claims to have been the Director/Secretary of the firm of Hendriok and Sons Limited which hadbeen carrying on business at No. 63 Bankshall Street but had ceasedto carry on business in those premises as from August 1954. He claimsthat ho bought the goods of that firm for valuable consideration on 10thAugust, 1954, and thereafter occupied the same premises paying rent toits owners, one of whom is the petitioner himself. He claims that mosto£the goods lying in those premises have been purchased and importedl>y him from various sources. His reason for filing this application is thatho will suiTer irremediable mischief before he can prevent it by bringingan action in an original Court..*.
The respondent was until 11th Much, 1955, the Deputy Fiscal, WesternProvince. He relira in his affidavit on a certificate of tax in default dated25th June, 1954, issued by the Deputy Commissioner Income Tax undersection 79 (2) (a) of the Income Tax Ordinance, Cap. 188, in respect of taxduo from Hendrick and Sons Limited, of No. 63 Bankshall Street., Hesays he received along with that certificate a letter from the DeputyCommissioner requesting him to take early action to recover the tax fromthe defaulter. He refers in his affidavit to the reports he received from hisofficers who were sent to demand payment from the defaulter, to theeffect that they demanded payment of the tax from the Manager of theCompany on several occasions early in July and August, 1954. As nopayment was made, the respondent says that he directed his writ offioer
8 ANSON1J.—Buddhadasa v. Nadaraja639
on 15th September, 1954, to seize; the movable properties of the. Companyand that he received a report from his officer that he had effected aseizure on 15th September and placed guards over the property seized. Acopy of a letter dated 16th September purporting to have jbeeo sent bythe petitioner as Secretary of Hendrick and Sons Ltd., 63 BankshallStreet, is referred to in the affidavit. It reads :—
Colombo,. 16.9. 54.
Fiscal, W. P-,
Colombo.
Hoar Sir,
With ref. to the C. I. T. No. H 9/58 on which certain goodswere seized by your officer, I hereby undertake to hold the saidarticles at your disposal. If the cupboards containing thesearticles are sealed the name of the business will suffer damage.I therefore request you to refrain from sealing the cupboards.
Yours faithfully,
(Sgd.) (Illegibly.)
W. H. BuddhadasaSecretary,
Hendrick and Sons Ltd.,
63 Bankshall Street,
Colopibb 11.
mimissioner of Income Tax on 17th September directed the re-spondent to stay sale and withdraw the guards provided Its. 200 a day waspaid by the defaulting Company. No further seizure was apparentlyattempted till November, 1954, but on that occasion the respondent says-he was informed by his officer that the defaulting Company had boonliquidated and that tlio goods lying in tlioso premises belonged to tlie-lietitioncr. On 11th January, 1955, the Commissioner of Income Taxagain directed the respondent to take immediate steps to ^eizo. and sellthe movable property at No. 63 Bankshall Street for recovery of anybalance outstanding on the certificate. The respondent say^ lijs officerstarted to seize and inventorise the goods at No. 63 Bankshall Street-on 17th Jannary and this process went on til! 21 st January.
MO
SAITSONI J.— StuMfKfdaga t». Naderaja
In his second affidavit dated 21st Maroh, 1955, which was obviouslydied to meet certain allegations in the respondent’s affidavit, the peti-tioner refers to the seizure alleged to hhve been effected between 17th and21st January in the following paragraphs
The respondent avers that he seized tjbe goods between the 17th
and 21st January, 1955. It is admitted that the respondent’s.subordinates came to the premises on the 17th of January, 1955,
and proposed to seize the goods but I resisted the same andthereafter the guards left the premises.
On or about the 26th of January, 1955, the respondent’s subordi-
nates accompanied by a Police Sergeant came again to my pre-mises at 63 Bankshall Street and attempted to seize and seal my. goods. On showing my documents of title to the goods in thepromises, the respondent’s subordinates and tho Police Sergeantleft my premises.
If however the respondent’s officers' presence in my premises be-
.tween the 17th day of January, 1955 and the 21st day of January,1955, and the inventorizing of my goods was deemed a seizurethen there was in fact a suspension of seizure for the reasonthat I continued to carry on business and dealt with the goodswhich were alleged to be already seized as owner as I wasentitled to in the usual course of my business, during the saidporiod and subsequently. .
He refers again to the alleged seizure of 14th February, 1955, in thofollowing paragraphs :—'• . ■
On the I4th February, 1955, the Respondent’s officers came again
to my premises at 63 Bankshall Street, and proposed to seizeand seal my goods. I resisted the same and was taken intocustody and thereafter the goods, were seized and scaled andplaced in charge of guards in my absence.
Therefore I am advisod that the seizure under complaint was in
law and in fact the one that took place on the 14th February,
1955.
It is significant that the petitioner does not deny the allegations in therespondent’s affidavit that aseizurc was effected on 15th September, 1954,and that the letter dated 16th September, 1964, was sent to him by thepetitioner. The omission to refei' to these matters, and to deny thosoallegations if they are untrue, is certainly strange.
I shall now rofer to the proceedings whloh took place at the enquirybefore me. An application had been made by the petitioner’s proctor toadd the present Deputy Fiscal, Mr. E. A. A. de Silva in place of the re-spondent w ho had retired on 11th March, 1955, in order to render thewrit, if granted, effective. Mr. Mohamed supported this applicationbut Mr. Jayawardeno objected to the addition of Mr. de Silva. At tho
SANSON! Jv—Buddhadtiaa v. Nadaraja
511
same "time Mr. Jayawardene raised three preliminary objections to thegrant of an injunction and it was agreed that the preliminaryobjectionsshould be considered first. I accordingly heard arguments on them.
They were :—-
(t) that the petitions and affidavits filed by the petitioner did notbring this case within section 20 of the Courts Ordinance.
' (2) that an injunction would not be granted against a public officerwhere the grant of such an injunction would in effect be thegrant of an injunction against the Crown.-
tluit in any event the Court would not nxerciso its discretion infavour of the petitioner in the circumstances- of this case.
Tt will lie convenient to deal with the first and third preliminary ob-jections together. Section 20 (formerly section 22) of the Courts Ordi-nance repeats tho language of section 49 of the Charter of 1833, tho termsof which were considered by the Full Court in In re Baly *. Mr. Mohamedsubmitted that this judgment was of no binding force hecauso the Charterand the Courts Ordinance are not in pari materia. Now the rule of con-struction in regard to Acts which are in jtari materia is that such Acts areto bo taken together as forming one system and as interpreting andenforcing each other (Craies on Statute Law, 5th Kdition page 120). Hutone should not misunderstand the meaning of the phrase “ Acts in pari■materia ” in tliis context. It only means that the Acts relate to the samesubject or the same branch of the law ; it does not mean that the Acts wereenacted by tho same legislative body. Although the Charter and theCourts Ordinance were not enacted by the same legislative body they areboth legal enactments passed by the legislative authority of the Crown.I consider myself bound by the interpretation given by the Full Courtto provisions of the Charter which are identical with those of the CourtsOrdinance, tlie more so as the Court thought that it was called upon “ toestablish a well considered precedent for the future guidance of thisCourt Tho rule of interpretation which seems to be applicable in thiscase is, 1 think, that enunciated in Australia and adopted by the PrivyCouncil :—" No doubt it is a general rule of construction that when partic-ular words in u statute have received judicial interpretation and thostatute is subsequently repealed and re-enacted in identical terms, thewords in the new enuctment should be considered in the souse previouslyattributed to them by the judiciary. But I think that rule only applies tocases of considered decision upon the meaning of particular words in astatute ” (Craies op. cit. p. 162).
The Full Court considered that it .must look strictly to tho Chartorfor itte guidance, and decided that the relevant provisions “ give to thisC 'ourt a special power to be exercised on very special occasions only. Theyappear to point not simply to a limited jurisdiction, protecting the appli-cant ad interim, until he can. protect himself by obtaining an injunctionin tho District Court, which he can obtain on filing the libel as the very
(1850) 3 Lor. 238. ■
642
8ANSONI J.—Buddhadaaa '■ v.'Kadaraja„
first step in the cause, but they also require that.the applicant should, as acondition precedent to obtaining a writ from this Court, show that he isprevented by some substantial cause from applying at once to the DistrictCourt instead of coming to the Supreme Court at all The judgmentthen gives instances of such cases and proceeds :■<—“The petitioner’s affida-vit simply states that there is not time for. him to apply to the DistrictCourt. That affidavit was sworn on the 6th o^July, the day on which thisapplication was first made to this Courtand;*s the question of right, onwhich the application- was founded, had been' for some time mootedbetween the parties, and the transaction at the College on which theQueen’s Advocate relies, as ground for- believing that irremediable mis-chief would ensue, unless an injunction of this Court bo interposed, tookplace on the 1st of July, the Supreme Court is at a loss for any proof, eitherof insufficiency of time, or of any other cause, of -which this Court as aCourt of Justice could take notice why- the application for an injunctionmight not have been made in the District Court
On this question of the powers of this Court under section 20 we havealso the judgment of Bonser, C.J., in Mohamado v. Ibrahim1. Thelearned Chief Justice pointed out, as the Full Court had also done, thatthis Court has by its constitution no original jurisdiction in civil mattersand that the provisions of section 20 confer “ a limited power, verydifferent from that given by the Judicature Act of 1873 to the EnglishSupreme Court of granting injunctions in all cases in which it shall appearto the Court just or expedient to do so He also held that this Courthas no inherent power to issue injunctions and its jurisdiction is restrictedto the cases referred to in section 20. He then, went on to say: “ It wouldappear, therefore, that the power of granting injunctions is a strictlylimited one to be exercised only on special grounds, and in specialcircumstances, (1) where irremediable mischief would ensue from the actsought to be restrained, (2) an action would lie for an injunction in someCourt of original jurisdiction and (3) the plaintiff is prevented by somesubstantial cause from applying to that' Court Nowhere in hisjudgment did Bonser, C.J., show any disagreement with the judgment ofthe Full Court; on the contrary, I think his judgment occasionally adopts,•with variations, the language of the earlier judgment. While theapplicant failed before Bonser, C.J., because he had not satisfied the above-mentioned first condition, and the applicant before the Full Court failedbecause he had not satisfied the third condition, the preliminary objectionsraise the question whether the applicant before me has satisfied the secondand third conditions.1 ’■
I have already referred to the salient features of this dispute in so far asthey have a bearing on the preliminary .objections. It is necessary toconsider whether the petitioner was prevented by some substantial <»usefrom applying to the District Court for an injunction. I quite appreciatethat he was under an obligation to comply with the imperative provisionsof section 461 of the Civil Procedure Code before he could proceed againstthe respondent in the District Court. I wish to make it clear that if thefirst act of interference by the respondent with the goods-in question
1 (1895) 2 N. L. R. 36.„
8 AN SON* J.—Buddhadasa v. Nadaraja
64*
took place on 14th February, 1965, there would be no substance in thefirst and third preliminary objections because the month’s notice requiredto be given would have involved the petitioner in delay and resultantdamage ; but that is not the view I take of tbe facts as I gather themfrom the affidavits, and I am now considering only such facts as appearto me to be incontrovertible. On the petitioner’s own admission inhis second affidavit, there was an interference or at least a threatenedinterference with the goods in question on 17th January, 1955. It isstrange that though ho refers to these matters, he has studiously refrainedfrom making any admission or denial in regard to the respondrnt’sstatement that there was a seizure in St ptember 1954, with regard towhich the petitioner himself wrote the letter R7 dated 16th September,
Taking these facts alone into consideration I ask myself whetherthe petitioner has established that he was prevented by some substantialcause from applying to the District Court for an injunction. Kven if thefirst attempt at interference with these goods claimed by him only tookplace on 17th January, he could on that day have given the respondent amonth’s notice of action ; he would then have been in s position to applyto the District Court for an injunction at about the time that he filed thepresent application. It was submitted that the petitioner complainsof a seizure which was effected on 14th February. Hut, as the judgmentof the Full Court put it, “ the question on which tho application wasfounded had beon for some time mooted between tho parties ” and if thepetitioner chose to wait until the only forum in which he could ask reliefwas this Court he must bear the consequences of the rule that the powerof this Court to grant injunctions “ is a strictly limited one to be exercisedonly on special grounds and in special circumstances ”,
Hut there is a further objection to the grant of the injunction applied for.It was stated by Mr. Jayawardene that although the papers were filed inthis Court on Kith February and over a six weeks had elapsed before1 heard arguments, no action had yet been filed in the District Court.This statement was not contradicted by Mr. Mohamed and I thereforeaccept it as setting out the true position. If, then, as the Full Court held,an injunction under section 20 is only granted under a limited jurisdictionto protect the applicant ad interim until he can protect himself by obtain-ing an injunction in the District Court, it is clear that the petitioner hasfailed in his duty to act promptly. If I were to issue the injunction Icould only do so on the footing that the petitioner could not, for somesubstantial cause beyond his control, have obtained one from the DistrictCourt ; and this is demonstrably not so. It should not be thought that thisCourt will issue an injunction permanently or for an indefinite period.If tho petitioner’s object was to obtain redress for a threatened wrongand not to hamper the work of the Income Tax Department, he shouldhave given the statutory notice at once, and instituted an action in thoDistrict Court on the earlie t date after the expiry of-one month. If nosuch notice has been given, the petitioner has disentitled himself to anyrelief whatever in these proceedings. For these reasons the applicationof the petitioner must be dismissed.
In appreciation of the helpful arguments of Counsel on tho second pre-liminary objection, I shall deal with it as briefly as possible. Counsel
■>44
SANSONI J.—Buddhadcua v. Wadaraja
t reated as axiomatic the proposition that no injunction lies against the< Iron'll. Mr. Jayawardene sought to deduce from this the corollary thatno injunction will be issued against an officer of the Crown if such an injunc-tion will in its practical effect be an injunction against the Crown. Hisargument was that you cannot do indirectly what you are prohibited fromdoing directly, and the effect of issuing an injunction against the respond-ent in his individual capacity would be to interfere with the work of theIncome Tax Commissioner in collecting >tax for the Crown. The casemay, he said, be different if the respondent as Fiscal were seeking to seizegoods of the petitioner in execution, say, of a decreo entered in favour ofa private judgment creditor. Mr. Mohamed on the other hand arguedthat although the Crown is not liable to be sued in tort and is not liableto an injunction, Crown Servants are personally, though not officially or ina representative capacity, liable for any wrong done by them in the courseof their employment even though done by the authority of the Crown.Thcso propositions, I should add, were conceded by Mr. Jayawardene.Mr. Mohamed denied the existence of a supposed rule that the Crown can-not ho interfered with in its work, for if that were the case, he submitted,no injunction could issue against any servant of the Crown for they are allengaged in doing the work of the Crown.
As I eco it the point in dispute is whether a servant of the Crown pur-porting to act in his official capacity on behalf of the Crown can be re-strained from so acting by an injunction issued against him as an individual..1 think the respondent’s position is correctly'set out in the question 1 havejust posed, for what he did was done in virtue of his office as Deputy Fiscal,and the petitioner has made him a respondent not in his official capacityhut as an individual—thereby complying with the rule in Jialcii/h v.Goschfin ’. The plaintiffs in Iialeigh v, Goschen had, however, asked foran injunction against the Lords of the Admiralty to restrain a threatenedtrespass on their land, and this question would have been considered inthat case if the plaintiffs had not made the mistake of suing the defendantsas an official body. I think the answer to the question is to he found in thejudgment of the Privy Council in Nireaha Tawaki v. Baker 2. In that casean aboriginal inhabitant of Now Zealand sued the Commissioner of CrownLands for a declaration that he and other aboriginal natives owned certainland, and for an injunction to restrain the Commissioner from advertisingthe same for sale or disposal as being property of the Crown. The followingextracts from tho judgment make the position quite clear Theobject of the action is to restrain the respondent from infringing theappellant's rights by selling property on which he alleges an interest inassumed pursuance of a statutory authority, the conditions of which, it isnlleged, have not been complied with. The respondent’s authority to sellon behalf of the Crown is derived solely from the statutes and is confinedwithin the four corners of the statutes …. If the land were notwithin the powers of those sections, as is alleged by the appellant, therespondent had no power to sell the lands, and his threat to do so was anunauthorised invasion of tiro appellant’s alleged rights. In the case ofTobin v. J{.3 a naval officer, purporting to act in pursuance of a statutory1 (180S) l Ch. 73.3 (1001) A. C. 301.
10 a. B. N. S. 310.
8AKSOMI J.—BvUtOiadaaa v. Nudaraja
545
authority, wrongly seized a ship of the suppliant. It was held on demurrerto a petition of right that the statement of the suppliant showed a wrongfor which an action might lie against the officer, hut did not show acomplaint in respect of which a petition of right could be maintainedagainst the Queen, on the ground, amongst others, that the officerin seizing the vessel was not acting in obedience to a command of HerMajesty, but in the supposed performance of a duty imposed upon himby Act of Parliament, and in such a case the maxim ‘ Respondeat superior rdid not apply. On the same general principle it was held in Mitsgrave v.Pulido ', that a governor of a Colony cannot defend himself in an actionof trespass for wrongly seizing the plaintiff’s goods merely by avorringthat the acts complained of were done by him as ‘ Governor ’ or as‘ acta of State ’. It is unnecessary to multiply authorities for soplain a proposition and one so necessary to the protection of the subject.Their Lordships hold that an aggrieved person may sue on Officer of theCrown to restrain a threatened act purporting to be done in supposedpursuance of an Act of Parliament, but really outside the statutoryauthority ”. If in the passage just quoted wo substitute “ goods ” for“ land ” and petitioner ” for ‘ appellant ” 1 think it perfectly fits theca.se I am dealing with.
I find that this case is cited in BowBtead on Agency (11th Edition) p. 280for the following rule :—“ A public agent threatens to do an act, purportingto be in pursuance of statutory powers, but in fact outside the limits ofsuch powers. He may be restrained by injunction at the instance of ajrerson aggrieved ”. It is referred to also in Broom’s Legal Maxims (9thKditiun p. 41) where the learned editor cites it in support of the followingstatement: " Although a petition of right does not lie for a tort committedby servant* of the Crown, yet the servants who commit it, whether spon-taneously or by order of a superior power, are answerable therefor in anordinary action, for the civil irresponsibility of the superior power fortortious acts could not be maintained with any show of justice if itsagents were not personally responsible ”.
Mr. Jayawardene relied on the case of Pile's v. Earl Qrey 2 where VicoChancellor Shadwell granted an injunction because lie was of the opinionthat the injunction sought did not seek to interfere with any public dutywhich the Lords of the Treasury had to discharge, or with any discretionwhich they had to exercise in their public capacity. " But ”, ho said“ it seeks to restrain them from doing a mere ministerial act, with a viewto secure the money for the parties who may be decreed to be entitled toit ”. That case is cited in 18 Hailsham, paragraph 15, ac authority for thestatement that “ in a proper case an injunction will lx granted to restrain adepartment of the British Government from doing a mere ministerial act ifit does not involve an interference with the public duty of the departmentBut I do not regard it as authority for the proposition that an injunctionwill not bo granted to restrain a public officer from threatening to do awrongful act which purports to be within his statutory powers but is infact outside them. It is clear that section 79 (2) (a) of the Tneomo
(/ATS) 5 .4. c. io>.
* 58 E. R. 574.
•M6Liyanage v. Thsgirie ■
Tax Ordinance Cap. 188 empowers and requires the officer “ to cause thetax to be recovered from the defaulter named in the certificate by seizure andsale of his movable property If the officer seizes or threatens to seize theproperty of any other person he would obviously be acting only in sup-posed pursuance of the Ordinance but really outside the statutory autho-rity, and tho Privy Council has decided that he may bo restrained fromdoing so.
Per these reasons I would overrule the second preliminary objection*but in view of my earlier findings on the first and third preliminaryobjections the application for an injunction fails and I dismiss it withcosts.
Application dis?nissed.