D. H. MOOSAJEE, Appellant, and Y. CAROLIS SILVA, Respondent

052-NLR-NLR-V-70-D.-H.-MOOSAJEE-Appellant-and-Y.-CAROLIS-SILVA-Respondent.pdf


Moosajee v. Carolia Silva
217
1967 Present :H. N. G. Fernando, C.J., Tambiah, J.,Abeyesundere, J., Silva, J., and Samerawickrame, J.H. MOOSAJEE, Appellant, and Y. CAROLIS SILVA, RespondentS. C. 381't63—D. C. Colombo, 9457/L
Servitude of light and air—Window light—Negative servitude—Bare enjoyment cannotcreate prescriptive title—.Prescription Ordinance {Cap. 68). s. 3.
Judical precedent- Principal of stare dicisis—Qualify ations as to thebinding natureof previous decisions—Meaning <f terms “ Collective Court ", “ Pull Court ”,“ Full B nrh ’’—Extent of the binding force of a decision of a Collective Court—Courts Ordinance, as. 7, 38, 51.
Under the law of Ceylon mere long enjoyment, for ten years, of the freeaccess of light and air through a window of a building does not entitle theowner of the window to the servitude ne luminibus officiatur, i.e., the right toprohibit a neighbour from obstructing the window light by erecting a higherbuilding on his adjoining land. This servitude cannot be acquired by the merefact that the neighbour has not built on his land for a long period so as tocause such obstruction of light and air.
Neale v. de Abrew (1883) 5 S. C. C. 126, Qoonawardana v. Mohideen Koya dc Co.(1910) 13 N. L. R. 264, and Pillai v. Fernando (1905) 14 N. L. R. 138, overruled.
A Court of five Judges constituted in terms of section 51 of the Courts Ordin-ance is not bound to follow a previous docision of a Collective Court upon aquestion of law if that decision did not duly consider the relevant law and wasfounded on a manifest mistake or oversight. Accordingly, the case of Neate v.de Abrew (supra), even assuming that the Court which heard it was a properlyconstituted Collective Court, has no binding force for the reason that the Courtdid not duly consider the law relating to acquisition by prescription of theservitude ne luminibus officiatur and the ratio decidendi of the decision isobscure.
In rogard to the terms “ Full Court ”, “ Full Bench ” or “ Collective Court ”,each term conveys the same meaning. The only proper and meaningful termis “ Collective Court ”, that is, a Court consisting of the full number of Judgeswho at a particular time constitute the Supreme Court in terms of section 7 ofthe Courts Ordinance or the corresponding sections in earlier enactments. ACollective Court is not bound except by a judgment of a previous CollectiveCourt. A decision of any Bench of throe Judges in the period between 1901and 1921 is net a decision of a Collective Court, because during that period thefull number of Judges was four.
Prior to 1901, three Judges did not constitute a Collective Court unless it waaassembled to hear an appeal which had been especially reserved for the con-sideration of the Collective Court, either by one Judge or by the Chief Justicein exorcise of his statutory or inherent rights. Hence a Bench of two Judgessitting at the present time is not strictly bound to follow a decision rendered bya Court of all three Judges prior to 1901 if the latter Court was not especiallyassembled to sit as Collective Court. If therefore the correctness of such adecision is seriously doubted by a Bench of two Judges, the appropriate courseis that a numerically superior Bench, i.e., of five or more Judges, should beconstituted under section 51 of the Courts Ordinance, with power either toapprove or overrule the doubtful decision. It is not clear whether Neate v.de Ab. ew (supra) was decided by a Collective Court properly so called.
LXX—10
1*—H 11330—2,130 (2/68)
218
H. X. G. FERXAN I K>. C..1.—.V oxmen r. Carol* ° S'b-a
A.PPEAL from a judgment of the District Court, Colombo.This appeal was referred to a Bench of five Judges in terms of section 51of the Courts Ordinance.
II. TF. Jayev-ardene, Q.C., with S. IF. Walpita, B. J. Fernando,S. S. Basvayake, B. Eliyatamby and T. L. D. Fernando, for theDefendant-Appellant.
C. Ranganathan, Q.C., with A. P. Ranatunga, E. B.
K.Thevarajah, for the Plaintiff-Respondent.
Vannitamby andCur. adv. vult.
November 14, 1067. H. N. G. Fernando, C.J.—
The plaintiff in this action is the owner of premises No. 71 Old MoorStreet, Colombo, and the defendant is the owner of premises No. 69which adjoins the plaintiff’s premises on the western side. The buildingon No. 71 is a very old one and the wall on its western side had for a longperiod contained a small window, and the access of light and air throughthis was not obstructed by the old building which formerly stood onNo. 69. Some time prior to the institution of this action, the defendantdemolished the building which previously stood on No. 69 and commencedto construct a new building of two floors. The plaintiff thereupon suedfor an order on the defendant to remove certain encroachments allegedto have been made on the plaintiff’s property, and to restrain the defend-ant from building any structure which might interfere with the light andair entering through the window on the western side of the plaintiff’sbuilding. The learned District Judge has entered decree ordering theremoval of certain encroachments, and also ordering the removal oralteration of the eastern boundary wall of the defendant’s buildingin such a manner as to remove the obstruction to the free passage oflight and air through the window on the western wall of the plaintiff’sbuilding. In this appeal the defendant does not contest that part of thedecree which orders the removal of certain encroachments. The appealis only pressed against the order for the removal of the obstruction tothe free passage of light and air.
Although the District Judge does not refer in his judgment to anycase law governing the claim for a free passage of fight and air, thedecision of the learned Judge is fully in accord with the decision of thisCourt in the case of Neate v. de Abrew 1 in which it was held that wherea plaintiff had for ten years enjoyed an unobstructed flow of fight andair through a window, he acquires a servitude ne luminibus officiatur.This judgment was followed in the cases of Goonawardana v. MohideenKoya & Co. 2 and Pillai v. Fernando 3. Nevertheless in the case of Pererav. Ranatvnge *, a Bench of two Judges of this Court decided that theservitude cannot be acquired by mere enjoyment, i.e., by the mere fact
1 (1883) 5 S. C. C. 126.s (2900) 14 V. L. R. 138.
* (19/0) 13 N.L. R. 264.4 (1964) 66 N.L.R. 337.
EL. N. G. FERNANDO, C.J.—Moosajoe v. Ca.roHi> Silva
2l9
that the neighbour has not built on his land for any length of time.The present appeal was referred by my predecessor for consideration bya Bench of five Judges in view of the conflict of previous decisions andof an argument that the decision in Neate v. de Abrew > even if incorrect,is binding on this Court and must be followed.
The case of Neate v. de Abrew is reported both in the Fifth Volume ofthe S. C. Circular and in Wendt’s Reports as having been decided by aBench of three Judges, de Wet A.C.J., Clarence and Dias, JJ. ; butthere is a divergence in the two Reports as to the circumstances in whichthe appeal came to be decided by three Judges. Both reports statethat the appeal was argued on the 2Gth September, 1882 before Clarenceand Dias, JJ. Thereafter according to one report (5 S. C. C. 127) :—
“ The appeal was argued on the 26th September, 1882, before Clarenceand Dias, JJ. It was afterwards arranged, with the consent of Counselon both sides, that De Wet, A.C.J., should be furnished with a noteof the authorities cited, and should take part in the decision of theappeal. ”
but according to the report in Wendt’s, p. 196 :—
“ The case was subsequently (on 29th November) put on forreargument before the full Court (De Wet, A.C.J., Clarence andDias, JJ.) when Counsel agreed to leave the case without furtherargument, furnishing their Lordships with copies of the above reportof the argument.”
The original minutes of the Supreme Court contain a purported orderthat the appeal be listed before the Full Court. This order createssome doubt as to the correctness of the opinion expressed byBasnayake, C.J. in Perera v. Ranatunge that “ the decision cannot beregarded as a decision of the then Full Bench of three Judges . . . ”.Subject therefore to certain observations which we will reserve for thelatter part of this judgment, we propose first to regard the decision inNeate v. de Abrew as having been prima facie one of a Full Court. Underthe law then prevailing (1882) the Supreme Court consisted only of threeJudges.
Upon the passing of Ordinance No. 24 of 1901 the Supreme Courtcame to consist of 4 Judges, and while that was the number of Judgesthe question of the binding effect of a judgment of three Judgeswas considered in Rabot v. de Silva1. That ease was heard in review'by a Bench of three Judges pending an appeal to the Privy Counciland it was contended for the defendant that the Court was bound bytwo earlier rulings, each of a Bench of three Judges (in 1903 and 1904),when the number of the Judges of the Court was four. In consideringthe position of a Bench thus sitting in review, Hutchinson, C.J. madethe following pronouncement :—
“ There is no law prescribing whether the Court so constituted isto follow the ruling of a similar Court given in review. But I thinkit is right that, whether it agrees wnth the ruling or not, it should follow'
1 (1907) 10 N.L.B. 140.
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H. N. G. FERNANDO, C.J.—Moosajee v. Carol is Silva
it, unless perhaps it was founded on a manifest mistake or oversightor was inconsistent with some previous decision of a similar Courtwhich appears to be of equal or greater authority. Such a rulingought to be regarded as the law until it is reversed by His Majestyin Council.”
In the same case Wendt, J. referred at some length to the binding natureof various decisions of the Court, and after considering a number ofearlier cases expressed himself as follows : —
“ Having given the matter my most careful consideration,I
suggest that this Court, whether hearing an original appeal or sittingin review, should consider itself bound by a decision upon a questionof law of a three Judge Bench, whether pronounced before or afterthe Ordinance of 1901 became operative, and whether upon an originalappeal or in review, provided it appears that the law and the existingdecisions of the Coui-t have been duly considered before the threeJudges arrived at such decision. If, however, it were made clear thatthe decision in question was founded on manifest mistake or oversightI should recognize that as an exception to the rule.”
It will be seen that both Hutchinson, C.J., and Wendt, J., were ofopinion that even after the Supreme Court came to consist of fourJudges, the Court was yet bound by previous decisions of a bench ofthree Judges, whether the decision had been given before or after 1901.Middleton, J. however, agreed with Wendt, J., only to the extent thata Court of three Judges would thus be bound :■—
“ Whether a Court of four Judges should be deemed to have powerto over-ride the decision of three is a matter that I would leave to bedecided by that Court if necessary when it is first called intooperation.”
The occasion thus contemplated by Middleton, J. apparently neverarose ; we have not been referred to any case decided by the full comple-ment of four Judges in the period between 1901 and 1921, in which lattery ?ar the number of Judges was increased to five. In the first case decidedby the full complement of five Judges, Bertram C. J. observed thatalthough the former s. 54A of the Courts Ordinance empowered the ChiefJustice to reserve any case for the consideration of all four Judges, therewas a series of cases reserved, not for four Judges, but for only threeJudges out of the four, and that the decisions in those cases have beenconsistently referred to in the law reports as decisions of a Full Bench.In this first decision of a Bench of five Judges (Jane Nona v. Leo1) thequestion which precisely arose was whether after 1921 a Bench of fiveJudges was bound by a judgment of a Court of three Judges. The majorityof the Court held that th:y were not so bound, but only on the groundthat a decision given by three Judges at a time when the Bench consistedof four Judges, must not be regarded as a judgment of a Collective Courtand is therefore not binding on a Collective Court of five Judges.Accordingly, the judgment in Jane Nona v. Leo has no direct bearing on
1 {1923) 25 N.L.R. 241.
H. N. Q. FERNANDO, C.J.—Mooaajee v. Carolts Silva
221
that part of Wendt J.’ s proposition in which he referred to the bindingnature of a decision given by three Judges at a time when the Courtconsisted of only three Judges. For the purposes of the point under dis-cussion in the present appeal, it suffices to state that the Court in JaneNona v. Leo did not disagree in any way with the qualifications statedby Hutchinson, C.J. and Wendt J,. as to the binding nature of previousdecisions. It is interesting that the House of Lords in 1962 (ScruttonaLtd. v. Midland Silicones, Ltd. x) referred to similar qualifications :—
“ I would certainly not lightly disregard or depart from any ratiodecidendi of this House. But there are at least three classes of caseswhere I think we are entitled to question or limit it: first, where it isobscure, secondly, where the decision itself is out of line with otherauthorities or established principles, and thirdly, where it is muchwider than was necessary for the decision so that it becomes a questionof how far it is proper to distinguish the earlier decision. The firsttwo of these grounds appear to me to apply to the present case.”
There must of course have been numerous occasions during the past 60years when Judges of this Court have stated themselves to be bound bydecisions of three Judges of the Court whether sitting as the proper(< Full Bench ” before 1901, or as the mis-named Full Bench after 1901,but such statements cannot be fairly understood to have constitutedan abandonment of the qualifications as to the binding effect whichwere expressed in Robot v. de Silva.
Let me now consider the arguments for the appellant in the presentcase in support of his submission that in reaching the decision in Neate v.de Abrew, the Court did not duly consider the law relating to acquisitionby prescription of the servitude ne luminibtis officiatur, and that theratio decidendi of the decision is obscure.
De Wet, A.C.J., referred in his judgment to certain general statementsof Van Leeuwen as to the character of servitudes. None of these state-ments contains any reference whatsoever to the mode of acquisition ofservitudes ; and the only references in any of the statements to theservitude under consideration in the case are explanations of thenature of the right. Finally the learned Judge cites the followingstatement from Huber, Book 2, p. 294 (5 S. C. C. 129) :—
“ The right that my neighbour shall not build so as to obstructmy light I do not lose even though he should not so build for 50 years,but only if he has built and obstructed my light and I have acquiescedin the same for 10 years.”
This last statement, in the opinion of the learned Judge, supported theproposition “ that any man is of right entitled to the enjoyment of lightand air It is clear, however, that the passage from Huber refers,not to the acquisition of the servitude, but to the loss of the right of
1 (1962) 1 A.E.R. 12.
!•*—H 11338 (2/68)
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H. N. G. FERNANDO, C.J.—Moosajee v. Carolis Silva
servitude by the sufferance of an obstruction for the period of prescrip-tion. Although therefore the learned Judge thought that he was applyingthe Roman Dutch Law to the question before him he did not in factrefer to any text applicable to that question. Thus Voet VIII, 4, s. 5(Gane’s Translation, Vol. 2, p. 484) states :—
“No prescription results from failure to use a right. Meantimeit seems that we should by no means omit to notice that prescriptionof servitude is not brought on by the mere fact that perchance one ofthe neighbours has not used his right upon his property for a longterm, and that the other neighbour has reaped an advantage thereby.What if he has not planted trees on his ground, has not made a pleasuregarden or has not built higher on his ground, and it has thus happenedthat his neighbour’s lights have for a very long time remained un-darkened and his freer outlook in no way obstructed ? Wrong wouldit surely be for his neighbour on the strength of that to claim forhimself a servitude of not building higher or of not having his outlookor lights blocked. To build up higher on one’s own ground and todo things like that are matters of sheer capacity, in respect of whichprescription has not been proved, but freedom has all the time beenretained. Ulpian therefore lays down that no action lies against onewho by building, up darkens the house of a neighbour to whom heowes no servitude, nor can any notice in regard to the new work begiven.”
Indeed the judgment of Clarence J. in the same case indicates emphaticdissent from the opinion of de Wet, A.C.J.:—
“ There can be no question but that, under the Roman Dutch Law,a negative servitude such as this could not be acquired by prescriptionin virtue of bare enjoyment such as plaintiff has had in this case.”
“But in the negative kind, such as window-light, the enjoymentis not attended necessarily by any invasion of the neighbour’s domi-nium. Voet (VIII, 4, 5) is as distinct as possibly can be in laying itdown that bare enjoyment will not create the negative servitude byprescription ; and he cites from Neostadt (Decis. No. 98), a decidedcase which is precisely on all fours with the present, in which the ownerof the windows failed to establish his right although until the neighbourbegan to obstruct them they had remained unobstructed from beyondthe memory of man.”
Clarence, J. himself in Neate v. de Abrew held that upon a constructionof s. 3 of the Prescription Ordinance of 1871 (now Chap. 68), the mereuninterrupted enjoyment for ten years of window lights, deriving lightfrom a neighbour’s land, entitles the owner of the windows to have theadjoining landowner restrained from building so as to obscure them.This conclusion was reached by Clarence, J. upon the basis of a decisionof this Court in Ayankar Nager v. Sinatty1. But unfortunately Clarence, J.appears to have formed the opinion that the principle of juris quasipossessio, which was applied in that case in regard to a right of way,
1 Raiuanathaua' Reporta 1860—62, p.75.
H. N. G. FERNANDO, C.J.—Moosajee v. Carolis Silva
223
was equally applicable in regard, to a negative servitude. This opinion,presumably based upon a passage from Savigny cited in that case, turnsout to have been quite erroneous. The passage cited in Ayankar Nagerv. Sinatty is from page 131 of Perry’s Translation of Savigny. ButSavigny deals elsewhere with the specific case of the acquisition of negativeeasements, and the following statements appear in the course of hisdiscussion :—
“ If my neighbour has built his house to a certain height only,I enjoy the benefit of it merely casually and as a matter of fact, andI have therefore no possession.” (p. 385)
“ It follows from the above that the possession of negative ease-ments may be acquired in two ways—by adverse user, and by legaltitle ; i.e., 1st, by resistance to the attempt to obstruct the user ;2nd, by any juridical proceeding …” (p. 386)
Savigny further states that the same principle which applies in regardto the acquisition of a positive servitude must apply also in this case :—“ In general the acquisition of this juris quasi possessio may be statedthus :—
the act which constitutes the subject of the right must be exercisedin fact, and be exercised as of right.”
The note of the argument in Neate v. de Abrew (5 S. C. C., p. 128, andWendt at p. 194) shows that these statements of Savigny were relied onby Counsel appearing for the defendant. The failure of Clarence, J.to refer to these statements in his judgment can only indicate thatClarence, J. failed to consider adequately the law applicable to thequestion for determination. Indeed he himself expressed in strongterms his own opinion that user of passage is not ordinarily to be regardedas possession, but he felt compelled to disregard his own opinion becausehe held himself bound by the decision in Ayankar Nager v. Sinatty.Yet in considering himself bound by that decision, he fell into the errorof regarding the decision as being applicable in the case of a negativeservitude.
The third judgment in the case of Neate v. de Abrew was that of Bias, J.He too held that the servitude had been acquired under our StatuteLaw governing prescription. But in this judgment also there is noreference whatsoever to the argument most strongly relied on by Counsel,by reference to Voet and Savigny, that the servitude ne lurninibusofficiatur cannot be acquired by the mere long enjoyment of light and air.The statement in the judgment “ admittedly the plaintiff possessedthe right which he claimed for more than 10 years ” begs the question.For a right can only be possessed after a person acquires the right.
Having examined the three judgments, it is now certain that theopinion of the three Judges was not unanimous. The ground relied onby de Wet, A.C.J., was emphatically rejected by Clarence, J. The
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H. N. G. FERNANDO, C.J.—Moosajee v. Carol is Sdva
ground relied on by Clarence J. and Dias J. was not accepted byde Wet, A.'bJ., and it was a ground which could not have been acceptedif the authorities cited to the Court had received examination. De WetA.C.J. himself made no single reference to the only law which could haveapplied, viz., the Prescription Ordinance of 1871.
In these circumstances this Court is fully justified in reaching theconclusion that the law was not “ duly considered ” before the threeJudges who decided Neate v. de Abrew, and accordingly that the decisionis not binding in the sense explained by Wendt, J. in Rabot v. de Silva,and that it was founded “ on a manifest mistake or oversight ” interms of the dicta of Hutchinson, C.J.
W hat s. 3 of the Prescription Ordinance (Chap. 68) requires isundisturbed and uninterrupted possession of lands or immovable propertyfor 10 years, and “ immovable property ” includes a servitude. Once aperson has acquired a servitude, i.e., a positive or negative right affectinghis neighbour’s property (whether by grant, judicial decree or pres-cription) he may properly be said to possess the right. But until theright has come into existence, there can be no possession of it. Thecase is different with land, for a person can actually possess a land whilehe has no right to possess it. That is why the doctrine of juris quasipossessio was necessary. If an act in relation to a neighbour’s propertyis exercised by a person, he is said to possess the right of which the actis the subject. In the case of a positive servitude, e.g., a right of way,a person does exercise the subject of the right when he walks over hisneighbour’s property ; and if he does so “ undisturbed and uninterrupted ”and “ adversely ” he has the juris quasi possessio for the purposes of thelaw of prescription. But in the case of a negative servitude, the subjectof the right is that one’s neighbour must desist from doing an act onhis own land. Many systems of Law—-Roman Law, Roman-DutchLaw, Scots Law, Spanish Law, the Code Napoleon—recognize thatsubject only to one exception, there can be no exercise of the subjectof such a right. (cf. Burge, Colonial and Foreign Laws, Vol. Ill, pp.441, 442.) The exception itself is perhaps purely theoretical and cannotactually lead to an acquisition of a servitude by prescription save inextraordinary circumstances. This exception was first stated in theCode of Justinian (lib. 7.33.12), and is recognized in some of the systemsof law mentioned above. If my neighbour attempts to obstruct theflow of light and air, and I oppose that attempt, the neighbour’s longacquiescence in my opposition, presumably by his desisting from theobstruction, can give me a right to the servitude. But it would appearthat the South African Courts do not recognize even this exception(Ellis v. Laubscher x).
Burge (Vol. Ill, p. 440) states that in English Law a servitude canonly be created by deed. But in early English Law, dong enjoymentof free access of light and air was held to establish a presumption of agrant of the servitude. (English Law appears to have been exceptional
1 (1956) 4 S.A.L.R. 692.
H. N. G. FERNANDO, C.J.—Moosajee v. Carolis Silva
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in favouring claims for “ ancient lights ”.) Such long enjoyment now,by statute, creates the right that there should be no sensible diminutionof the light and air thus enjoyed. But the terms of our PrescriptionOrdinance do not bring into operation the principle which is expresslystated in the English statute.
The conclusion of Clarence J. in Neate v. de Abrew, when considered inthe light of all systems of law' other than English Law, has the consequencethat s. 3 of our Prescription Ordinance is unique in that it permitsthe acquisition of a negative servitude by prescription, on the ground ofthe mere long enjoyment of the access of light and air. We have shownalready that the assumption of Clarence J. that there can be possessionof the subject of this servitude conflicts with all earlier opinion, parti,cularly that of Savigny. But a further consideration is that for purposesof prescription, possession must be adverse. Savigny contrasts casualor accidental or factual enjoyment with enjoyment as of right; wherethere is enjoyment as of right, the element of adversity can be established.We find assistance in this connection from the principle often recognizedin our Courts that a person’s possession of property is referable to hislawful title. An owner of land, who erects thereon a building withwindows, merely exercises his clear right to do what he pleases on hisown land. His act is not referable to any intention to detract from hisneighbour’s rights ; such an act in no way resembles positive acts suchas passage over the neighbour’s land, inserting beams in his wall, oremitting rain or surface water into his premises. The erection of awindow being thus referable to the lawful rights of an owner of land, isincapable of becoming subsequently an adverse act, except in thetheoretical and unusual case to which reference has already been made.
In construing the meaning of s. 3 of our Prescription Ordinance andthe concepts of “ possession ” and “ adversity ” our Courts have forlong understood those concepts in the same sense as they were fairlyrecently explained in the American Re-statement of the Law (Property:Servitudes : s. 458, p. 2928) :—
“ Use must be wrongful or capable of being made wrongful. To beadverse a use must be wrongful as to the owner of the interest affectedor must be capable of being made by him wrongful as to him. If apossessor of land builds on his land in such a way that his buildingreceives support from neighbouring land, or receives light coming fromneighbouring land, he is using the neighbouring land, but since theseuses are not wrongful as to those having interests in such land, norcapable of being made wrongful by them, they are not adverse to them.The use or enjoyment authorized by a negative easement is neither
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wrongful as to the owner of the interests affected nor capable of beingmade by him wrongful as to him. Hence such an easement cannotbe created by prescription.”
For these reasons, we hold that under the law of Ceylon mere longenjoyment of the access of light and air through a window does notentitle an owner of land to the servitude ne luminibus officiatur. Wethus over-rule the previous decisions of this Court to the contrary. Todo so is of great practical advantage in the public interest. In ourcongested cities and towns, adequate work and living space has to beprovided by the erection of tall modern buildings, which may be in quiteclose proximity to each other. It is unthinkable that such necessarydevelopment of available ground-space should be impeded by the merefact of the existence on a neighbouring land of a building which hashitherto enjoyed the access of light and air in fact only, and not as ofright. The civic authorities have by statute sufficient powers to controldevelopment in the interest of public health and on other similargrounds.
We return now to the matter of decisions of a “ Full Court ”, a “ FullBench ”, or a " Collective Court ”, as such decisions have been differentlytermed. The difference in terminology is confusing, particularly ifeach term was intended to convey the same meaning. It appears fromthe judgments in Bandahamy v. Senanayake 1 that the only proper andmeaningful term is “ Collective Court ”, that is, a Court consisting ofthe full number of Judges who at a particular time constitute the SupremeCourt in terms of s. 7 of the Courts Ordinance or of the correspondingsections in earlier enactments. We use the term hereafter in the sensejust explained. Jane Nona v. Leo has already decided that a CollectiveCourt is not bound except by a judgment of a previous “ CollectiveCourt ”. Thus a decision of any Bench of 3 Judges given in the periodbetween 1901 and 1921 is not a decision of a Collective Court, becauseduring that period the full number of Judges was four.
There remains the question whether every decision of a Bench of 3Judges prior to 1901 must be regarded as a decision of a Collective Court.Wendt J. himself, while strongly favouring the opinion that decisions of3 Judges prior to 1901 are binding, mentions the fact that sittings of 3Judges were sometimes merely casual, and not deliberate (Rabot v. deSilva 2) :—
“ In practice, besides these hearings in review, and besides casesspecially reserved, many cases (especially in the earlier years, even upto the seventies, when the number of appeals was small) came before
1 (I960) 62 N. L. R. 313.
* (1967) 10 N. L. R. at p. 147.
H. N. G. FERNANDO, C.J.—Moouajee v. Carolie Silva
227
the Full Bench of three Judges, who, not having other demands upontheir time, sat together to hear a mixed list composed of two-Judgecases and one-Judge cases. There were thus decisions of the FullCourt which dealt with appeals not involving any ‘ ‘ doubt or difficulty ”,and which sprang out of a two-Judge Bench reserving for the opinionof the FuU Bench cases involving points upon which conflicting decwsions existed with the view of obtaining a definitve ruling thereon.”
The last sentence in the passage cited refers, not to instances where3 Judges sat only casuaUy, but to cases where because a Bench of 2 Judgeswas unable to agree on the decision of an appeal, the decision of the Courtwas suspended until 3 Judges were present. A similar suspension isstill necessary under s. 38 of the Courts Ordinance in its present form.
There were thus decisions of Benches of 3 Judges rendered before1901 where the Benches assembled for 3 different reasons :—
3 Judges sat purely casuaUy, because there was no other demand
on the time of one of them.
3 Judges sat in pursuance of statutory provision, but only for the
reason that 2 Judges could not previously agree as to the decisionof an appeal.
3 Judges assembled to hear an appeal which had been specially
reserved for the consideration of the Collective Court, eitherby one Judge or by the Chief Justice in exercise of his statutoryor inherent rights.
We are agreed that decisions of 3 Judges rendered before 1901 in thecircumstances stated at (1) and (2) above cannot be regarded as bindingjudgments of a Collective Court and that before 1901, 3 Judges consti-tuted a Collective Court whose decision would be a binding judgmentonly if their sitting was in the circumstances stated at (3) above. Hencea Bench of 2 Judges sitting at the present time is not strictly bound tofollow a decision rendered by 3 Judges not assembled in the circum-stances lastly mentioned. If therefore the correctness of such a decisionis seriously doubted by a Bench of two Judges, the appropriate course isthat a numerically superior Bench, i.e., of 5 or more Judges, shouldbe constituted under s. 51 of the Courts Ordinance, with power either toapprove or to over-rule the doubtful decision. Many of the judgmentsin Bandahamy v. Senanayke (62 N. L. R. 313) recognize the principle thatthe decision of such a Bench will, on the ground of numerical superiorityand because of the special reservation under s. 51, be followed by anyBench ordinarily constituted under s. 38 of the Courts Ordinance.
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The ‘‘facts” mentioned earlier in this judgment as to the hearing anddecision of Neate v. de Abrew do not clearly establish that the case wasdecided by the Collective Court properly so called. That is a secondreason why the present Bench may properly review and over-rule thedecision.
The appeal is allowed, and the decree of the District Court is variedby the deletion therefrom of the order for “ the removal or alteration ofthe eastern boundary wall of the defendant’s premises in such a manneras to remove the obstruction for the free passage of light and air throughthe window on the western wall of the premises of the plaintiff.”
In the unusual circumstances of this case, we make no order as to thecosts of this appeal.
Abeyesttndere, J.—I agree.
Silva, J.—I agree.
Samerawickrame, J.—I agree.
Tambtah, J.—
I agree with the reasons set out by My Lord the Chief Justice forallowing this appeal. In the early reports, particularly the SupremeCourt Circulars, there are a number of judgments in which all the threejudges who constituted the Supreme Court at that time had taken part.How far these judgments could be considered judgments of a Full Courtor Collective Court has been discussed in Robot v. de Silva 1.
As stated in that case it is only when the Supreme Court assemblesunder statutory provision to sit as a Collective Court its decisions wilhave the effect of a Collective Court. Under the statutory provisionswhich existed when Neate v. de Abrew 2 was decided a Full Court couldonly be constituted if a case was referred to it either by a single judgeor by the Chief Justice. Applying this test the case of Neate v. de Abrewshould be regarded as a Full Court decision.
The three judges who decided the case of Neate v. de Abrew had giventhree different reasons. With respect to the learned judges who decidedthat case, the reasons given by them are demonstrably erroneous. Arethe hands of future generations of judges tied and are they to followthis erroneous decision ? The answer to this question is found in thedictum of Denning L. J. who said : (vide the dictum of Denning L. J.
1 {1907) 10 N. L. R. 140.* (1883) 5 S. C. C. 126.
TAMBIAH. J.—Moo-sajee. v. Carolis Silva
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in Ostime v. Australian Provident Society 1). “ The doctrine of precedentdoes not compel your Lordships to follow the wrong path until you falover the edge of the cliff. As soon as you find that you are going in thewrong direction, you must at least be permitted to strike off in the rightdirection, even if you are not allowed to retrace your steps.”
The English principle of stare decisis has been adopted by us. Asthis dictum of Lord Denning shows, in the United Kingdom a liberalview is now being taken permitting judges to depart from wrong decisionsof a binding nature. In the Dominion jurisdiction, even a more liberalview is being now taken. In Ceylon, it would be sufficient to state thatwe should be content to follow the English principles on this matterwhich has been succinctly set out by the House of Lords in Scrutton Ltd.v. Midland Silicones Ltd. 2. One of the principles enunciated in thiscase is that if a ratio decidendi of a case is obscure, the decision has nobinding effect. The ratio decidendi of Neate v. de Abrew is obscure andwe are not bound to follow it.
In Roman Dutch Law, the better view is that the servitude neluminibus officiatur cannot be acquired by prescription. The PrescriptionOrdinance (Cap. 68) makes specific provision governing the acquisition ofservitudes by prescription. In interpreting the provisions of section 3 ofthis Ordinance, a real servitude has been equated to immovableproperty and it could only be acquired by adverse possession for aperiod of ten years. There must be something in the nature of aninvasion of another’s right and adverse possession of such a right for theperiod of ten years, to entitle a person to claim the acquisition of a realServitude by prescription.
In the instant case, the plaintiff has failed to prove any adverse use.A person is entitled to build as high as possible on his land, under thecommon law, as an incident of his ownership. As stated by the PrivyCouncil in Corea v. Appuhamy 3, possession could never be adverse if itis referable to a lawful title. If a person builds on his land to whateverheight he may desire, he does so as the owner of the land and his right istherefore based on lawful title. In the absence of proof of other facts,he cannot acquire a negative servitude of this nature.
It was urged by Mr. Ranganathan that even if the case of Neate v.de Abrew was wrongly decided, it has been regarded as good law for wellover eighty years and therefore should not be departed from by thisCourt. The principle communis error facit jus was stated by LordBuckmaster as follows : “ Firstly, the construction of a statute of doubt-ful meaning once laid down and accepted for a long period of time oughtnot to be altered unless your Lordships could say positively that it was
1 (1959) 2 A. E. B. 245 at 256.* (1962) 1 A. E. B. p. 12.
* (1911) 15 N. L. B. 65.
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TAMBIAH, J.—Moosajee v. Carolis Silva
wrong and productive of inconvenience. Secondly, that the decisionsupon which title to property depends or which by establishing principlesof construction otherwise form the basis of contracts ought to receive thesame protection. Thirdly, decisions affecting the general conduct ofaffairs, so that their alteration would mean that taxes had been unlawfullyimposed or exemption unlawfully obtained, payments needlessly madeor the position of the public materially affected, ought in the same way tocontinue.” vide Bourne v. Keane1. Lord Evershed M. R. said:
“ There is well established authority for the view that a decision of longstanding, on the basis of which many persons will in the course of timehave arranged their affairs, should not lightly be disturbed by a superiorcourt not strictly bound itself by the decision.” vide Brownsea HavenProperties v. Poole Gorpn 2. The decision in Neale v. de Abrew howeverdoes not affect title and does not come within the principles set out inperpetuating inveterate error. In Pate v. Pate 3 Lord Sumner in decliningto foDow earlier cases on the construction of section 18 of the Preventionof Frauds Ordinance (Cap. 70) which had stood for forty-four years said :“ This is not one of those cases in which inveterate error is left undisturbedbecause titles and transactions have been founded on it which would be
unjust to disturbnor is it in any case sound to misconstrue a
statute for fear that in particular instances hardship may result. Thatis a matter for the legislature, not for the Courts.” Mr. Ranganathanwas only able to cite a few cases (vide Goonawardana v. Mohideen Koya<Sc Co A and Pillai v. Fernando5 where Neate v. de Abrew was followed ;on the other hand, recently it has not been followed, vide Perera v.Ranalunge6).
If negative servitude could be acquired by prescription by the mereact of building in one’s own land, it would follow as a logical consequencethat the right of servitude for prospects could also be acquired in thisway. Such a result would be unthinkable in modern society. Therecognition of this principle would act as a clog on building activity,prevent town expansion and act as a deterrent to town expansion,since a person who had put up a building ten years earlier could alwayssay that he enjoyed the right of prospect to view either the sea or therange of undulating hills, and bring an action asking for an injunctionpreventing persons from building.
For these reasons I agree with the order proposed to be made by MyLord the Chief Justice.
Appeal allowed.
1 (1919)A.C. S15 at 874 ;18 N. L. R. at 293.* (1901) 13 N.L.R.264.
(1958)Ch. 574 G. A.5 (1905) 14 N. L. R.138.
(1915)A. C. 1100, 1108.• (1964) 66 N. L. R.337.