F. G. ROWLANDS, Appellant, and THE ATTORNEY-GENERAL, Respondent

098-NLR-NLR-V-74-F.-G.-ROWLANDS-Appellant-and-THE-ATTORNEY-GENERAL-Respondent.pdf


Rowlands v, Attorney.General
385
1971 Present :Weeramanlry, J., and Thamotheram, J.
G. ROWLANDS, Appellant, and THE ATTORNEY-GENERAL,
Respondent
S. C. 10411966 (F)—D. G. Colombo, 53737jMContract—Delusion under which a party is labouring—Whether the other party oxers aduty in law to correct it—Estoppel and promissory estoppel—Scope of thedoctrines—Failure to reply to a business letter—Effect—Whether estoppel arisesfrom silence or inaction—Novation—Requirement of a pre-existing obligation—Contracts seeking to impose liability upon the Crown—-Pre-requisites for theirvalidity aiul enforceability—Undertakings given to a party by the Minister ofFinance to pay a sum of money and not to plead prescripl'on—Invalidity—Ceylon (Constitution) Order in Council (Cap. 379), ss. 46 (4), 67—Assignmentof Ministers' Functions (Consequential Provisions) Act (Cap. 3S5)—GazetteNotifications thereunder—Token vote—Ixirge sums cannot be drawn on basis ofsuch vole—Agency—Suit against Crown as principal—Doctrine that agent needhave only ostensible authority does not apply—Prescription—Accrual of causeof action—Subsequent reference of dispute to arbitralion—Failure of arbitrationproceedings—Whether it has any effect on the running of time.
Plaintiff sued the Crown for the recovery of a sum of Rs. 2,407,872 as damagesresulting from a broach of an alleged contract. His case was presented inappeal on the basis of throe main contentions : (a) that there was a promiseon the part of Government to purchase certain stocks of scrap iron from thoplaintiff for utilisation in a proposed steel factory ; (£>) that there was later anovation of this obligation in terms of which the Government undertook andpromised to pay a certain sum of money in discharge of the obligation it hadalready incurred ; (c) that there was an undertaking by the Crown to waive theplea of prescription which it might otherwise have been entitled to take andthis constituted an obligation binding on the Crown which disentitled it toraise tho plea of prescription.
Tho evidence, documentary and ora), showed that tho plaintiff had muchreason to oxpcct that the scrap iron would bo purchased from him by thoMinistry of Industries on behalf of the Government, but it was not sufficientto establish a legally binding promise. Although tho plaintiff wroto severalletters to tho Ministry stating that ho was holding his stoelc3 of scrap iron forthe Government, the Ministry did not definitely repudiate the suggestion butinformed him in reply that no final decision upon the establishment of a steelfactory had yet been icached by the Government. It was contended that thofailure to disabuse tho plaintiff’s mind of his belief that the Government wouldpurchase his stocks constituted an estoppel precluding the Crown from denyingtho existence of a contract.
In regard to the second and third submissions, tho appellant sought to provenovation by leading evidence that tho Minister of Finance had undertaken,on behalf of tho Government, to pay a sum of ono million rupees in discharge oftho promise that had already been made by the Government and that therewas an agreement by tho Minister not to plead prescription. It was alsoargued that the claim was not, in fact, prescribed mainly because the reference,at ono stage, to arbitration of the dispute had tho effect of interrupting therunning of prescription after the cause of action had already accrued.
LXXIV—17&18!♦—K 6362—2,225 (11/71)
388
Roxclanda v. Attorney-General
It was the contention of the Crown that the Minister of Finance, though ho■was o Minister of Stato, was not the proper authority for making contractsof a nature Buch os would bind the Crown and that, accordingly, both thealleged novation to pay a sum of million rupees and the alleged contract towaive the plea of prescription were invalid for want of authority.
Held, (i) that the failure on the part of Government to disabuse the plaintiff’smind of the belief which he entertained, at any rate at one stago, that thoGovernment was proposing to buy his scrap iron could not build a cause ofaction upon estoppel. No principle is better established in regard to the lawof estoppel than that estoppel operates as a shie'd and not as a sword. Eventhe doctrine of promissory estoppel could not form tho basis of an affirmativecause of action.
(ii) that failure to reply to a business letter does not prove tho truth of thocontents of the letter although it may almcst amount to an admission. Noestoppel would appear to arise from si'ence or inaction unless there is a legal, aaopposed to a moral, duty on tho port of tho recipient of the letter to reply.
, From tho letters produced in tho present case it was impossible to spell outanything in tho nature of a promise legally binding on the Government.
(in) that it is essential to novation that thero should bo a pre-existingobligation for which a now obligation is substituted. Thor© was no such priorobligation in the present caso. Neither in regard to quantum nor in regardto time of payment nor in regard to tho making of tho promise itself was therethat degreo of certainty which is the minimum requisite for tho creation of anobligation which is binding in law.
that one of the clearest statements relating to tho enforceability ofcontracts against the Crcwn was that by Evatt J. of the High Court of Australiain New South Wales v. Banlolph (1934) 52 C. L. R. 455 at 474-5. This statementwhich summarised the law on this matter in terms accepted thereafter evenin England as one of tho most authoritative expositions of the subject was asfollows:—“…in the absence of some controlling provision, contracts areenforceable against the Crown if (a) the contract is entered into in the ordinaryor necessary course of Government administration, (6) it is authorised by theresponsible Ministers of tho Crown, and (c) tho payments which tho contractoris seeking to recover are covered by or referable to a parliamentary grant forthe class of service to which the contract relates ”, However Evatt J. wenton to state regarding class (c), “ In my opinion, however, tho failure of theplaintiff to prove (c) does not affect tho validity of tho conrract in tho sensothat the Cruwn is regarded as stripped of its authority oi capocity to enterinto a contract. . . Tho enforcement of such contracts is to bo distinguishedfrom their inherent validity ”.
In the contract alleged in the present case the throe requisites set out byEvatt J. were absent. Firstly, tho alleged contract was not one that wasentered into in tho “ ordinary or necessary course of Governmentadministration ", Secondly, tho undertakings given by tho Minister of Financeccutd not' bo justified by fho provisions of Araclo 40 (4) of tho Ceylon(Constitution) Order in Council read with tho Assignment of Ministers'Functions (Consequential Provisions) Act No. 29 of 1953 and tho relevantGazette Notifications. Tho requirement of authorisation by tho responsibleMinisters of the Crown was not complied with, for tho responsible Ministers inrelation to a contract involving substantial expenditure would appear to bothe Cabinet ns a whole and not a single Minister acting on his own responsibility.Thirdly, Parliamentary control of finance is one of tho important prinoiples
Rowlands v. Attorney-General
387
laid down in Article 67 of the Ceylon (Constitution) Order in Council. NoMinister of the Crown has authority in his own right to commit the publicrevenue to a cum not coveied or contemplated by an existing vote inthe estimates approved by Parliament. There was never a vote by Parliamentfor the purchase of steol scrap, although there was a token vote in earlier yearsproviding'a sum of Rs. 100 as “ running expenses ” for a steel factory whichbad not yet been established. This token vote had apparently lapsed by thetimo the alleged promise was given in 1958. Even under the authority of avalid token voto, the Ministei could not commit the public revenue to theexpenditure of a large sum of money. However, in regard to a Governmentcontract involving tho payment of money by the Crown, the lack of necessaryfunds would appear to point to unenforceability rather than invalidity cf thecontract.
Accordingly, not ono of tho three tests formulated by Evatt J. in New SouthWales v. Bardolph (supra) was satisfied in the present case. Tho lack of thefirst two requirements would in any event make the contract invalid whilo thelack of the third would make it unenforceable against tho Crown.
that, even if a Minister is authorised, by tho allocation of functionsamong the Ministers, to purchase certain stores or equipment or to waiveprescription, the implementation of the decision of tho Minister belongs to thoadministrative officials concerned. While policy .decisions fall within thepurview of the Minister, financial accountability falls upon his officials.
that it could not bo contended that even if the Minister of Finance didnot have actual authority to bind the Crown he had ostensible authority todo so, irtasmuch as he apparently held himself out to the plaintiff as having suchauthority. In tho field of agency', in so far as it concerns contracts seeking toimpose liability upon tho Crown, the common law doctrine that the ogontneed have only ostensible authority does not apply, and his authority must beactual.
that the Crown was not in law precluded from taking the pleaof prescription. Although tho Minister of Finance genuinely believed, andossurod tho plaintiff, that tho plea of prescription would not be taken by thoAttornoy-Goneral, the Attorney-General had at no stage unequivocally agreedto waive prescription.
that, admittedly, tho cause of action had arisen before 10th July 1958by reason of tho final refusal by Government of the plaintiff’s claim. Thisadmission by tho plaintiff was made in the notice of nction sent by him on 10thJuly 1953 in terms of section 401 of the Civil Procedure Code. The fact that,after the final refusal, the plaintiff made further attempts at making appeals tothe authorities, resulting in drawing certain replies to his lotters, could not takeaway from tho finality of tho refusal. Nor could the subsequent willingness ofGovernment (although this later proved futile) to determine tho dispute byarbitration, with a view to an equitable settlement, do!ay the coromcncemon«of proscription until the arbitration arrangements broke down. *' The runningof time, onco commenced, is not interrupted by tho preparations for arbitrationor by tho pendency of a reference. Tho cause of action has already accruedand indoed it i3 that which constitutes the subject matter of the proposedreference.”
SS8
WEERAMANTRY, J.—Rowlands v. Attorney-General
^.PPEAL from a judgment of the District Court, Colombo.
L. A. T. Williams, for the plain tiff-appellant.
Mervyn Fernando, Senior Croi^n Counsel, with N. Sinnelamby, CrownCounsel, for tbo Attorney-General.
Cur. adv. vult.
June 16, 1971. Weeramantry, J.—
The plaintiff-appellant has been the victim of a most unfortunatecombination of circumstances, and through no fault on his part liassuffered tremendous loss. This action is an attempt to seek relief againstthe Crown but for whose actions in one form or another this loss wouldnot have been sustained.
The cause of this unfortunate state of affairs has been a lack ofdefiniteness and co-ordination in Government policy. This has resultednot only in loss to the plaintiff as an individual but also in grave loss tothe country, for the nett result of this sorry episode is that severalthousands of tons of scrap iron worth millions of rupees in foreigncurrency have been left stacked away till rust and the elements haverendered them valueless to both the plaintiff and the State.
It would appear that after the termination of hostilities in 1945 theWar Department sold its stocks of vehicles in Ceylon and the plaintiffwas the purchaser of a lot of approximately 4,000 War Departmentvehicles. These vehicles were purchased for their scrap value and whenconverted to scrap iron amounted to 24,000 tons in weight.
At the time of the plaintiff’s purchase, scrap iron was an exportable■ material and it was in the expectation of being able to export it that theplaintiff made this purchase on which he expended a sum of Rs. 100,.000In the same expectation the plaintiff had engaged a staff of about 300persons and incurred considerable expenditure in order to reduce to anexportable condition the vehicles which he had so purchased.
It happened that shortly after the plaintiff’s purchase a plan wasadopted by the Government for the commencement of a steel factory inCeylon, using initially all steel and iron scrap available within the country,and that with a view to conserving stocks already in the Island, a banwas introduced on the exportation of ferrous scrap.
The plaintiff’s purchase was on 5th July 1946- A partial ban wasintroduced by PI on 23rd January 1947, that is, in respect of all scrapiron acquired after that date, and by 194S the ban became complete.The plaintiff was able to export only 3,000 tons out of the scrap whichhe had, before the total ban was introduced.
WEERAMANTRY, J.—Rowlands v. AUomey-Qeneral
3S9
It will be seen that the Introduction of the ban on export was anunforeseen circumstance which completely thwarted the plaintiff’soriginal intention and which left him with a commodity in his handswhich was now neither exportable nor, in view of its vastness in quantity,saleable to private buyers within the Island. The plaintiff was of coursenot the only person thus left with this unsaleable commodity in hishand3, but the stocks held by him, according to the evidence, far exceededin magnitude anything held by any other person in the country.
The only direction in which there lay any possibility of relief againsttotal loss was the acquisition by Government of stocks held by tradersand this was indeed the only equitable action which the Governmentcould have taken in this matter.
Concern over the individual losses sustained as well as over the lossthereby caused to the country was reflected in the proceedings ofParliament, for we read in Hansard of 16th August 1951, marked P43,that Dr. Kaleel, M.P. had spoken of the investment of large sums ofmoney by various persons in purchasing scrap from the American andBritish Military authorities by public auction in the hope of exportingit to other countries. The sudden embargo on the export of iron leftthese persons with iron on their hands which they could neither exportnor sell, and he observed that whether the party responsible was theMinister of Industries or the Minister of Commerce or the whole Cabinet,it was really an abuse of power in their hands. On that occasion thaHon. G. G. Ponnambalam, Minister of Industries, stated that he acceptedcompletely all responsibility for the embargo that had been placed on theexport of scrap iron and observed that he had no mind whatsoever tochange that attitude. He further observed that he accepted thesuggestion that Government must buy if the export of the scrap wasbanned.
Again, P44, Hansard of 31st January 1952, shows that Dr. Kaleel, M.P.had asked the Minister of Commerce and Trade how long the embargoon the export of scrap iron had been in operation and whether he wasaware that the stocks in the possession of holders were deteriorating invalue through rust and other causes.
We learn from Hansard of 26th February 1952, P45, that the newfactory had been sanctioned and that it would be a complete iron andsteel factory and not a mere steel rolling factory. The Minister furtherindicated in Parliament that purchases of scrap would be made as soonas the site of the factory had been decided on. The Minister alsocategorically stated in Parliament that the Government proposed to buythe scrap and that as soon as storage space became available in whichto put it, the actual purchase of further quantities would be undertaken.
It will be seen from this statement of policy that Government hadmade two decisions, namely that the factory was to be commenced andthat the stocks of scrap in the Island would be purchased by Government,the – only delay being delay till such time as the site was selected.
390WEERAMAJNTRY, J.—Rowlands v. Attorney-Central
It will be Been also that it was the expectation of all parties that thecontemplated factory would soon be established.
By way of background to the establishment of tbe factory it is usefulto note also that during the war years a steel rolling factory had in factfunctioned in the railway yard witli great success and that its outputhad been 30,000 tons of steel a year. It was considered expedient insteadof improving this factory which functioned on outmoded machinery tostart an altogether new factory and it was not as though a steel factoryin the country was an altogether new venture.
The next stage in the history of this unfortunate episode was that theInternational Bank of Reconstruction and Development sent a missionto the Island at the request of the Government of Ceylon and this missionby its Report (P47) of September 1952 condemned the whole scheme,observing that the Government was proceeding prematurely on thisproject and strongly recommending that before going further theGovernment should seek a complete technical and economic evaluationfrom the larger and experienced commercial steel companies. Themission stated that it was its considered opinion that the project wouldimperil more urgent development and should be long deferred.
On 26th September 1952 a question was asked in Parliament (vide P4S)as to whether it was correct to assume that a decision had been reachedto abandon the idea of the iron and steel project and the acting Ministerof Industries and Fisheries answered that no decision had as yet beenmade, thus indicating that at least at that stage the project had notbeen abandoned. At any rate therefore till September 1952 it wouldbe correct to assume that all parties proceeded upon the basis that theplan for the factory was still part of Government policy. Holders ofstocks were therefore entitled until that date to assume that the announcedintention of Government to purchase the 6tocks in their hands, whichthey were unable to export by reason of the embargoes, remainedunchanged.
By 1953 however the project stood definitely abandoned, and theembargo was eventually lifted by P1S0 of 10th August 1953. Thereuponholders of stocks for the first time found themselves free to export.
It is the plaintiff’s position that by this date the stocks in his handshad great ly dwindled in value by reason of rust and deca}' and furthermorethat he was still unable to export his scrap because it had been purchasedby the Government and negotiations were afoot between himself and theGovernment in this connection. It will be noticed that a period of morethan six years had elapsed since the introduction of the partial ban in1947. I
I must pause here for a moment to examine the plight in which theplaintiff was placed in consequence of the sudden ban on exports.
Mr. Arndt, the plaintiff’s Superintendent of Exports of scrap iron, who
WEERAJIANTRY, J.—Rowlands v. Atlorney-Oeneral
391
had entered the plaintiff's service shortly after the ban was imposed,has given us some idea of this expenditure in his evidence, and so alsohave the plaintiff and another employee, Mr. Rabot.
The evidence of these witnesses, regarding whose credit worthinessnot the slightest imputation has been made, shows that at the time of theban, the condition of the metal was very good and that there had beenno deterioration of the material in 1948. The plaintiff took steps toprotect his material by putting up a cadjan screen on the perimeter onthe sea side and screens in front of each stack on the sea face and byspraying them with burnt oil and slush. This was done every year atconsiderable cost.
At the Hendala yard there were also security measures involving theemployment of about 40 watchers as the area covered was extensive—about 40 acres in extent—and each watcher was paid bewteen Rs. 130and Rs. 150 per month apart from overtime at double this rate.Documents in evidence such as P165, P166, P167, P168 support thesepositions.
In addition there were other expenses such as a canteen for cookingmeals, a mess cook, a stand-by-vehicle for security purposes, a driverand a cleaner. Similar arrangements were made for the depots atTrincomalee and Kirillapone. On a conservative basis these securitymeasures cost Rs. 12,500 a month.
All this was in addition to the very large staff engaged by the plaintiffto reduce his stocks to scrap by dismantling the vehicles and cutting upthe heavier members, where their size rendered stacking impossible orinconvenient. The expenses involved in these operations will be referredto again at a later point in this judgment.
Mr. Arndt has stated further that when he left the plaintiff’s servicesin 1951 there was not much deterioration in the heavy materials stacked.
The Crown has made the comment that the plaintiff had ampleopportunity prior to the total ban to export the stocks he had in handand thereby minimise damages. The facts however do not support thissubmission and the plaintiff’s failure to export this stock prior to the totalban has been adequately explained by him.
The export of a large stock of scrap iron needs negotiation with bujmrsabroad in the first instance, compliance with export regulations and theprocuring of freight. It is not a simple matter of merely chartering aship and sending off all the iron, as was suggested by the Crown. Theplaintiff had been to India and made arrangements for the export ofscrap iron to India and towards the end of 1947 when motor scrap exportswere permitted (vide the Controller’s letter P20 of 22nd February 1947)a representative of the Department of Industries made a selection ofcertain scrap and wanted it put aside saying that the other scrap, thatis the motor scrap, could be exported. According to PI62, 935 tons wereexported from Trincomalee in 1947. More scrap could have been shipped
392
WEER[ANTP.Y, J.—Rowlands v. Attorney-General
' but there were other difficulties with the Industries Department aboutpassing the scrap, particularly after the imposition of the partial ban.PI of 23rd January 1947 banned exports of iron and steel scrap with theexception of iron and steel scrap already acquired for the purpose ofexport by persons holding the stocks. The view of the Director ofIndustries was that a firm commitment to export motor scrap, as evidencedby a foreign written contract to export, was required if a permit was tobe granted. The plaintiff had no such contract as he was exporting tohimself as consignee in India, having, as he was at that time entitled todo, arranged for purchase from himself at that end. Consequently, theplaintiff was not allowed to ship scrap iron in the absence of such a writtencontract for export entered into prior to 23rd January 1947.
The letter of the Director of Commerce and Industries P20 of 22ndFebruary 1947 also confirms that he required to be satisfied that thepurchases were made prior to prohibition if export was to be permittedand that ho was prepared to allow the shipment of motor scrap only ifinformed that such lot was ready for shipment. P2I of 29th February194S shows that the Management of the steel rolling factory had inspectedand passed 300 tons of scrap consisting of dismantled and broken upmotor vehicles.
For these and other reasons, shipping could not be continued withouta break. Moreover the availability of shipping between Ceylon and theIndian ports in question was seasonal.
A breakdown of the quantities exported and of the dates of shipment,which has been produced marked P162, suffices to show how laboriouswas the process of export. Even to send so small a quantity as 4,000tons, a large number of shipments had to be made on various dates.With all the formalities involved, the operation was time-consumingand I doubt very much that it was within the ability even of personswith larger resources than the plaintiff to accomplish what it is suggestedhe should have done.
The case of the plaintiff has been presented in appeal on the basis ofthree main contentions :
(а)that there was a promise on the part of Government to buy the
stocks of iron that were in Ins hands for utilisation in theproposed factory.
(б)that there was later a novation of this obligation in terms of which
Government undertook and promised to pay a sum of Rupeesone million in discharge of the obligation it had already incurred.
{c) that there was an undertaking by the Crown to waive the plea ojprescription which it might otherwise have been entitled to takeand this constituted an obligation binding on the Crownwhich disentitled it to raise tho plea of prescription in theseproceedings. I
I shall consider these contentions in that order.
WEERAMANTRY, J.—Howlands v. Attorney-General
393
Turning now to the first of them, it is necessary that the documentaryevidence relied on be examined against the background, already referredto, of a firm intention on the part of the Government to commence sucha factory which was to make use of all stocks of scrap iron available inthis country.
It is stressed on behalf of the plaintiff that not only was the purchaseof his scrap the declared intention of the Government but also that apromise by Government to take over his stock was an eminentlyreasonable one and indeed the only equitable course open to Govern-ment in the circumstances. The scrap was so large in quantity that theembargo placed on its export rendered it incapable of disposal in thehands of the plaintiff, and the only purpose to which it could have beenput was sale to the Government for utilisation as raw material for themill.
Against that background the plaintiff relies on both oral anddocumentary evidence as leading inevitably to the inference that therehad been a firm promise by the Government to purchase this scrap.On this basis the plaintiff’s claim against the Government is a sum ofRs. 2,407,872.
The basic documents relied on by the plaintiff in support of this positionare P37 and P38. Before referring to these documents it is necessaryhowever to refer to the prior correspondence in outline.
There is in evidence a series of documents indicating that the idea of asteel factory was never remote and was in the contemplation of bothparties at any rate up to the end of 1952. It is not necessary to detailthese documents at this stage, suffice it to mention that documents suchas PI 7, P24, P24B, P43, P44, P4G, P48, P49, P54, P55, P55b, P143, P147all confirm this position.
It wrouId also appear that the intention of Government to purchasethese stocks was not a mere unimplementcd intention but that infurtherance thereof many active steps were taken. Valuers and otherexperts visited the plaintiff’s yard from time to time for the purpose ofestimating their value, and the scrap was stacked in accordance withGovernment requirements.
Thi3 meant that the plaintiff had to break up his original stacks andrcstack in accordance with Government requirements. Mr. Perera fromthe Steel Factory used to visit the yard very often and in obedience tohis directions about 12,000 tons were restacked. About 40 to 50 stacks offight scrap were involved as the other stacks were of heavy material suchas chequered plates. After Mr. Perera’s selection there were about 130stacks of heavy material and about 50 or 60 stacks of loose scrap. Thestacking took two to three months.
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394
V EERAM AX TRY, J.—Rowlands v. Attorney-General
Again, Professor Durrer, to whom reference will be made later, visitedthe Hendala yard and inspected the various stacks of scrap.
Another circumstance relied on by the plaintiff as evidentiary of adecision by Government to take over his stocks is based upon tlie historyof the requisitioning and de-requisitioning of the land at Hendala whichthe plaintiff used as one of his yards. This land was de-requisitionedby the Army on 9th December 1950 but possession was retained by theCompetent Authority, the Government Agent, from 9th December 1950in terms of Act 33 of 1950. This w ould appear from the documents Po2end PI 33, and it is the plaintiff’s contention that this land was retainedfor the express purpose of facilitating the storage of scrap.
This continuance of control over the land was not in pursuance of anydesire to that effect on the part of the plaintiff and is stated by theplaintiff to be attributable to the desire of Government itself to haveundisturbed storage of the scrap at Hendala, which incidentally, wasin close proximity to Enderamulla, the site then proposed for the Factory.Moreover, whilst the plaintiff was in occupation at Hendala, rent for theland was paid by Government.
I do not think however that this circumstance merits the importance-attached to it b}' the appellant, for it is at best ambiguous and indicatesthat Government was still interested in this scrap. There is no specificevidence of the precise purpose for which the Government Agent retainedpossession. This evidence is hardly sufficient material from which todraw the inference that Government had purchased or agreed to purchasethe scrap.
I must refer now to the correspondence immediately antecedent to theletters P37 and P38.
In his letter P34 of 18th August 1949 addressed to the PermanentSecretary to the Ministry of Industries, the plaintiff has stressed thatmuch expenditure is being incurred in holding the scrap “ for you ” andthat as the plaintiff would have to introduce various internal changesregarding staff and administration, he would appreciate an indicationwithin a few days if possible when arrangements for taking over thisscrap would be complete. This letter was pursuant to earlier letterssuch as P127 of 25th May 1949, P31 of 7th May 1949, P30 of 6th April1949 all stressing the hardships the plaintiff was experiencing by prolongedholding of the stock, and urging an early take-over.
The Ministry replied by P35 of 24th August 1949 and this is certainlyin terms which could have been clearer if the Ministry was repudiatingthe suggestion that the plaintiff was holding his stocks for the Government.It docs however inform the plaintiff that it is not possible to state withany exactitude when it would be possible to start negotiations for thepurchase of steel scrap. The same letter also informs the plaintiff thatno final decision upon the establishment of an iron and steel factory hadyet been reached.
WEKRAJLANTRY, J.—Howlands v. Attorney-General395
The plaintiff’s reply to P35 was P36 of 27th August wherein he pressesthe Government once more for a decision on the matter contained in P34as being extremely urgent. The same letter repeats that steps involvingconsiderable expenditure and loss had been taken on the Government’sprevious correspondence.
P83 of 19th September 1949 written in reply to P36 again fails todisabuse the plaintiff’s mind of the belief entertained by him and merelyadopts the very unhelpful attitude that the Permanent Secretary isunable to give the plaintiff any assistance in the difficulty which he wasexperiencing.
The writer must be taken to have been well aware of the steps takenby the plaintiff to keep his stocks in a condition of readiness forGovernment acquisition, of the visits of Mr. M. E. Pcrera to the plaintiff’ssite and of the considerable expense incurred by the plaintiff in breakingup his stacks and restacking on the instructions of Mr. Perera. It wouldbe not inappropriate to indicate here that the attitude of the Governmentdepartment concerned, towards a private citizen who had taken steps inreliance on certain indications given by Government of an intention topurchase, and had incurred great expenditure in connection therewith,left much to be desired. The latter was certainly entitled to expect amore understanding and helpful consideration of the simple request hewas making. If the position of the Government was that the plaintiffsletters proceeded upon a totally incorrect assumption, while it may nothave been the strict legal duty of the department concerned to repudiatethis assumption, one would nevertheless expect such a repudiation inall fairness to a party placed in the plaintiff’s unfortunate circumstancesand acting in a matter of this magnitude.
A perusal of the correspondence leaves one with the unfortunateimpression that there was a lack of appreciation of the plaintiff’s genuinedifficulties and a want of sympathy for the plight in which a cit izen foundhimself not through any fault on his part, but in consequence of changingofficial pob'cics.
It is indeed a saving grace that even at a late stage some governmentofficials handling the plaintiff’s file were struck by the unsatisfactorytreatment he had received at their hands, for we have the document P185by the Ministry of Industries to the Controller of Finance on 2nd June1959. Tills document indicates that there was no doubt that the existenceof a valid legal contract had not been proved, but it recognises however,that the loss incurred by hlr. Rowlands was attributable even in somemeasure to acts of omission or commission on the part of the Government.This document states further that the writer, the Deputy Secretary tothe Treasury, was inclined to the view that it would not be inappropriateto consider whether under these circumstances the Government was notmorally obliged to compensate Mr. Rowlands for any loss he may haveincurred. Furthermore it is significant that there is express recognitionin this letter of the failure on the part of Government to disabuse
390
WEER AM ANTRY, J.—Rawlundu v. A ftornexj-Qenerai
Mr. Rowlands’ mind of the belief which he appeared to have entertained,at any rate at one stage, that the Government was proposing to buyhis scrap.
Passing now to P37 and P3S, P37 was a letter written by him to theDirector of Industries on 16th March 1950, which purports to record theresult of two interviews had with the Director. This letter records, innumbered paragraphs, the matters which according to the plaintiff weredecided at the first interview. These decisions were that varieties offerrous scrap were required by Government for the proposed factory ;that as export of ferrous scrap was accordingly prohibited the plaintiffwas keeping his stocks at the disposal of Government for the proposedsteel factory ; that the Director had agreed to recommend to his Ministerfor consideration that the plaintiff’s stocks of scrap should be takenover and should be paid for at the price then being paid for scrappurchased from other Government departments; that in the eventof Government deciding to pay a higher price for privately ownedscrap, it would consider the possibility of paying the plaintiff the nettdifference in price ; and that the plaintiff was to interview the Directoron the 8th when a final decision regarding these matters would becommunicated to him.
Regarding the second interview, the letter recounts decisions that noacquisition of private stocks would be permitted until the same had beenthoroughly inspected by Professor Durrer, that the Professor woulddefinitely inspect the plaintiff’s stocks on his arrival and that a decisionregarding place of delivery and price would be communicated to theplaintiff when the scrap was so inspected.
The letter recites also that between the dates of the two interviews,plaintiff’s counsel had had several discussions with the Minister and wereinformed that his stocks would be purchased when representations inthat behalf were made through the Director.
The plaintiff attaches the utmost importance to the letter P38 of 23rdMarch 1950, the Director’s reply to P37. This letter denies specificallythat the Director was to recommend to the Minister that the plaintiff’sstocks were to be taken over and paid for at the current price and thata final decision would be communicated at the second interview. Inthe plaintiff’s submission what is significant however is that there areno other specific denials in P3S although the plaintiff had specificallystated in one of the numbered paragraphs of his letter as a decisionarrived at during the first interview, that the plaintiff would keep hisstocks at the disposal of Government for the proposed steel factory.The reply went on to state that a report on the plaintiff’s case had beenmade to the Permanent Secretary, in which report it had beenrecommended that Professor Durrer should inspect the plaintiff’s stocks.Professor Durrer not being at that time in Ceylon, the Director hopedit would be possible to have him carry out his inspection at a very early
WEERAJIAXTRY, J.—Rowlands v. Atlomcy-Gtneral
397
date. In short the latter did not disabuse the plaintiff’s mind of thebelief clearly entertained by him at that stage that he was keeping hisstocks at the disposal of Government for the proposed factory.
The question then is whether the failure of the defendant so to disabusethe mind of the appellant can amount to evidence of a binding contractor can itself constitute a contract binding upon the Crovn.
The learned Judge has quite rightly held that the documentary evidenceis quite insufficient to establish any contract binding on the Crown.Even if it had been understood at the conference that the plaintiff wasto hold his stocks at the disposal of the Crown, this fact would amountto no more than an indication of readiness on the part of the parties tonegotiate with each other and of a serious intention to do so, but by nomeans does it conclusively point to the existence of a concluded contract.Nowhere do any of the documents reveal any promise by Government, orany intimation by Government of a firm intention to buy the plaintiff’sscrap in a manner which can be considered binding upon the Crown.Indications of a willingness to negotiate at some point of time in thefuture there undoubtedly are and declarations by Government of itsintention to purchase, there undoubtedly had been. The former areinsufficient however to constitute either an offer to the plaintiff or anacceptance of any offer on his part. The latter have not beencommunicated to the plaintiff by any officer of Government authorisedto do so, and remain at best unilateral and general declarations notintended to be offers and not therefore capable of acceptance unless theycame in a more specific form to the plaintiff.
Had there been some principle of law upon which the plaintiff maypossibly have been granted relief in the unfortunate situation in whichhe found himself, this court would have been ready to examine theapplicability of that principle to the facts of this case with much sympathyfor the plaintiff. It would seem however that no such principle can beinvoked.
I shall first examine the plaintiff’s contention that Government’sfailure to disabuse the plaintiff’s mind of his belief referred to earlier,constitutes an estoppel precluding the Crown from denj-ing the existenceof a contract to buy his stocks.
Now, even if the facts referred to suffice to raise an estoppel, no principleis better established in regard to the law of estoppel than that estoppeloperates as a shield and not as a sword. “ Its sole office ” according toSpencer Bower1 “ i3 either to place an obstacle in the way of a case whichmight otherwise succeed or to remove an impediment out of the way ofa case which might otherwise fail. It has no other function.Emphatically, it is not a cause of action in itself, nor does it create one,though the application of this, as of any other rule of evidence in thecourse of litigation, may result in a total or partial establishment, or
1 Estoppel by Representation, 1st td. p. 11.
398
WEERA3IAXTRY, J.—Bowlands v. Attorney-General
disestablishment, of the case made by one or other of the partiesSwitching the metaphor from the military to the naval, Spencer Bowerobserves 1 “ To use the language of naval warfare, estoppel must alwaysbe either a mine-layer or a mine-sweeper : it can never be a capital unit. ”
The plaintiff cannot therefore seek to build a cause of action upon thisestoppel he alleges.
It is true that the doctrine of promissory estoppel, which indeed doesnot fall into the category of estoppel properly so-called, has recentlyextended far beyond the limits of estoppel the range of cases where reliefma}' be granted on the basis of promises or representations made byone party to the other. In particular, whereas estoppel relates torepresentations of existing fact, promissory estoppel may cover a caseof representations concerning the future, and to that extent is calledin aid by the plaintiff in regard to the alleged representation that theGovernment intended to buy his stocks.1 2 However the fact still remainsthat even promissory estoppel, though by no means an estoppel properlyso-called, operates to defeat a claim instituted by the promisor in disregardof such promise but not as the basis of an affirmative cause of action.Although the limits of this new doctrine are not clear, it would appearthat it cannot be used to create a new cause of action where none existedbefore.3 In the words of Buckley J.4“ The doctrine may afford a
defence against the enforcement of otherwise enforceable rights : itcannot create a cause of action ; ” and as shown by the learned editorof the second edition of Spencer Bower5 * * a close analysis of all theauthorities leads to this same result.
Again, reliance is placed by the plaintiff upon the principle that failureto reply to a letter or contradict material averments therein, is to beconstrued as an admission of the correctness of such averments. Thedecision generally cited on this principle is that in Colombo ElectricTramways Co. v. Pereira.0 As I had occasion to point outin Wickremasinghe v. Devasagayam 7 that decision does not go the lengthof saying that failure to reply to a business letter proves the truth of thecontents of the letter but only that it almost amounts to an admission.
Colombo Electric Tramicays v. Pereira proceeds upon the basis of certainobiter dicta expressed by the judges in Wicdeman v. Walpole.8 Thesedicta must not be taken to mean that in business communications everyfailure to contradict assertions amounts to an admission of their truth,
1 of p. 12.
1 See Lyle-Mellor v. Lewis cfc Co. (Westminster) (19iG) 1 W .L.R 29.
Halsbury, 3rd ed. vol. 15 p. 175; Combe v. Combe (1951) 2 K.B. 215; C.A;
Pararajasekeram v. Vijayaratnam (190S) 74 C.L.1V. 45.
4 Bccsly t>. Hailwood Estates Ltd. (I960) 2 All E.R. 314 at 324.
Turner's ed. pp. 310-7.
(19 23) 25 N. R. 193.
' (1970) 74 N. L. R. SO.
(1S21) 2 Q.B. 531.
AVEERAMAX'i'RY, J.—Rowlands v. Attorney-General
399
but &b Kay L.J. observed therein, it depends upon a view in eaoh caseof all the particular circumstances under which the letter in questionwas written. In an appropriate case failure to reply may be strongevidence of an admission. There may at the most be a strong inferenceresulting from the failure to deny the fact, that at the conference it wasunderstood that the plaintiff would, pending negotiations, hold hisstocks at the disposal of the Crown, but there is no scope for any inferencefrom P38 that the Crown was admitting that it had contracted to buythe plaintiff’s stocks.
Another ground on which the plaintiff’s claim has been based is theprinciple of estoppel arising from silence or inaction. Assuming thatinducement and alteration of position to the detriment of the representeehave been established, still no estoppel would appear to arise unless thereis a legal,'as opposed to a moral duty, on the part of the recipient of theletter, to reply. In the words of Spencer Bower 1 “ On the other hand,it is firmly established that reticence and passivity in relation to matterswhich give rise to no legal duty to speak or act, whether censurablein foro conscientiae or not, is not a representation of anything,and accordingly creates no estoppel any more than it is actionable ; andthe courts have on the whole steadily repelled the invitations, again andagain addressed to them, to pronounce that silence and inaction, in theabsence of such duty, is other than justifiable in law, or subjects the partyto any liability or disability whatsoever ”
There are indeed extreme instances where the courts have relaxedthis rule and have been prepared to hold that a duty exists in law tocorrect a delusion under which a party is labouring. In my view thopresent case is not one of this nature. It may perhaps be said that therewas a moral duty upon the Crown to state its position on the questionwhether it expected the plaintiff to hold-his stocks for the Government.This is far from saying that the failure to disabuse the plaintiff’s mind ofthis belief imposes a legal obligation upon the Crown to purchase theplaintiff’s stocks. Moreover it is not difficult to visualise numeroussituations in which a person may hold his stocks at the disposal of anotherin the expectation that the latter would purchase, without a firmcommitment by the latter to do so.
As the learned District Judge has observed, a ban on the export ofscrap iron does not by itself mean that Government was undertaking totake over the stocks which were in the possession of the plaintiff andother persons. Such a result could not be reached in the absence of adefinite agreement in that behalf. No doubt, in the special circumstancesof the case, there was nothing else the plaintiff could have done with hisstocks but hope that Government would acquire them, but neither theinability of the plaintiff to dispose of his stocks in any other way nor theannouncement by Government of an intention to purchase stocks canimpose contractual liability upon the Crown.
1 Estoppel by Representation, 1st td. p. G7.
400
WEERAMANTRY, J.—Rowlands v. AUorney-Qcneral
In the result then, however much one sympathises with the plaintiff,and whichever way one views the series of letters put in evidence, and inparticular the letters P37 and P3S, it is impossible to spell out from themanything of the nature of a promise binding on the Government.
It has been strenuously submitted by counsel for the plaintiff that theplaintiff has at no point been proved to have made false allegations andthat there lias been no disbelief of the plaintiff on any matter by thelearned Trial Judge. There has likewise been no suggestion under cross-examination that ho wrote false letters. While this is perfectly true,the fact remains that the plaintiff has apparently very honestly beenunder the impression that Government would purchase his stocks andhas held his stocks in this belief, but he has been under the wrong buthonest impression that there was a legally binding promise by Governmentwhereas that was never the case. It may be pertinent to observe thatthe plaintiff is one who appears to have advised himself on the law, madehis own drafts, conducted his own case and made submissions on legalquestions himself. While in doing this ho has acquitted himself withcredit, it may well be that through his lay view of the legal questionsinvolved he honestly but wrongly convinced himself that the Crownwas under a binding legal obligation to acquire Jus stock of scrap.
These observations suffice to dispose of the plaintiff’s first contention,that there was a promise on the part of the Government to purchase hisstocks.
I pass now to his second contention, namely that the Governmentundertook and promised to pay a sum of one million rupees in dischargeof the obligation it had already incurred. The argument of novationthus advanced involves also certain subsidiary questions among whichare the authority of the Minister of Finance to make such a promise onbehalf of the Government, and the necessity in any event for theavailability of funds to back such a promise if made. These subsidiarymatters arc pertinent also to the tlu'rd question argued before us, namelythe alleged agreement b3' the Crown not to plead prescription.
The evidence on which the plaint ilf relies in support of his second basisof argument, is briefly as follows.
Mr. Alagiyawanna, a witness for the plaintiff, has stated that thej lalntiff had asked him for his help as he had to receive a large sura ofi loncy from the Government. The witness, who knew the Prime Minister,undertook to speak to the latter and obtain whatever help was necessaryfor the plaintiff. He delivered a letter from the plaintiff to the PrimeMinister who asked him to interview the Minister of Trade. The witnessaccordingly interviewed the Minister of Trade, who asked him to attenda second interview. At the second interview the Permanent Secretarywas also present and so was the plaintiff. It was there suggested thatthe plaintiff should s^e the Prime Minister. The Prime Minister granted
WEERAMANTRY, J-—Rowlands v. Attorney-General
401
an interview to the plaintiff and asked him to see Mr. Stanley de Zoysa,the Minister of Finance. The plaintiff told him that he knew Mr. Stanley' de Zoysa and it was not necessary for him to be given an introductionto Mr. Stanley de Zoysa. On a later occasion the witness had metlIr. Stanley de Zoysa who had told him that he would consider the matter.
It was in these circumstances that Mr. Stanley de Zoysa came to dealwith the plaintiff’s file, although he had earlier been unwilling to dealwith it in view of his prior personal acquaintance with the plaintiff andhis knowledge of this particular matter.
Mr. de Zoysa, who gave evidence, remembered two stages in regardto this matter. The first was when he asked his officials to go into thismatter and arrive at a conclusion one way or the other as soon as possible.The second was when, in consequence of delay in complying with hisearlier instructions, he felt that some kind of direction or control atMinisterial level was necessary, and instructed his Parliamentary Secretaryto deal with the plaintiff’s claim. On his instructions his ParliamentarySecretary dealt with it, and ho remembers having been told by him thathe had practically concluded investigations. The witness thought thatthe matter was reaching finality. The result did not concern him oneway or the other but he wanted the plaintiff’s claim decided expeditiouslyand fairly'.
At one stage the witness directed that if the two parties, namely', theplaintiff and the Government together with the Attorney-General, couldnot arrive at any conclusion, the claim should be referred to arbitration.He took this step as a matter of principle and Government policy. Itwas in this context that he gave the plaintiff the letter P63 of 29th AugustI95S, to which reference will bo made later, which stated that Governmentshould not and would not take the pica of prescription.
According to Mr. de Zoysa, he had suggested arbitration in the eventof the matter not being satisfactorily concluded between the parties.However, according to the information he had, there was nothing to bearbitrated on, for his impression was that the question had been adjustedto the satisfaction of the parties at that stage and he believed the figuroagreed upon had been mentioned to him. This figure M as about a millionrupees.
That a figure approximating a million rupees had indeed been discussedwould appear also from a letter of May' 1960 (P85 of 30th May I960)which the plaintiff sent to the Treasury. This document shows that thoplaintiff at any rate genuinely believed that Government was willing topay him a sum approximating this amount. This document is a draftof the terms of arbitration, as suggested by the plaintiff, wherein it isrecited that “the Government was willing, in equity', to pay the partyof the first, part about 1 /3rd of the said claim as reasonable compensation.”The plaintiff’s claim at that stage being a sum of about two and a halfmillion rupees, a third of this sum would be in excess of Rs. S00,000.
402
WEERAMANTRY, J.—PowlaiuUt v. AUorttey-3cnerai
Mr. de Zoysa had stated in his evidence that the fact that the plaintiffwas a personal friend of his has not affected his judgment in this matterand in fairness to Mr. de Zoysa I should state that there is nothing in thoevidence to indicate otherwise. Quite evidently he felt convinced thattho plaintiff had an equitable claim and he was anxious to do justice tothe plaintiff as far as he could.
The plaintiff thus asserts that at the stage of negotiations had withMr. de Zoysa, the pre-existing obligation of the Government towardshim became the subject of a novation by which there was substituted forthat indeterminate obligation, a new obligation to pay him a sum in thoregion of Rs. 1,000,000.
Now it is essential to novation in the first place that there should boa pre-existing obligation for which the new obligation is substituted.As already indicated such prior obligation is entirely absent in the presentcase.
Furthermore the evidence that there was a firm promise to pay a sumof one million rupees is altogether lacking in that definiteness which isnecessary to establish such a claim. Neither in regard to quantum norin regard to time of payment nor in regard to the making of the promiseitself is there that degree of certainty which is the minimum requisitefor tho creation of an obligation which is binding in law.
Yet another objection is that in any event Mr. de Zojsa lacked therequisite authority for this purpose. This objection is pertinent alsoto the third submission 6f the appellant, namely that there was anagreement to waive proscription, for this too is said to be a contractentered into between the plaintiff and Mr. de Zoysa on behalf of theCrown. The ensuing discussion thus relates to both the second and thothird of the appellant’s submissions.
Now it is the contention of the Crown that Mr. de Zo3-sa though aMinister of State, was not the proper authority for making contracts of anature such as would bind the Crown. It is thus argued that both thoalleged contract to pay a sum approximating a million rupees and thealleged contract to waive the plea of prescription arc invalid for want ofauthority. The Crown contends further that a person seeking to bind theCrown by a promise made on its behalf is under the burden of provingthat the person making the contract had the necessar}- authority to doso.
The plaintiff’s contention on the other hand is that for the purpose ofmaking these contracts, the Minister is and represents the Governmentof Ceylon and that the allocation of functions and powers among thoMinisters of the Crown as contained in the relevant Gazette Notifications,amounts to a specific delegation to the Minister of Finance of all the powerto settle this case.
WEERAMANTRY. J.—Rowlands v. Attorney-General
403
One of the clearest statements relating to the enforceability of contractsagainst the Crown is that by Evatt J. of the High Court of Australia inNew South Wales v. Bardolph1. TJii3 statement which summarised thelaw on this matter in terms accepted thereafter even in England as oneof the most authoritative expositions of the subject, states : “ . . . in theabsence of some controlling provision, contracts are enforceable againstthe Crown if (a) the contract is entered into in the ordinary or necessarycourse of Government administration, (b) it is authorised by theresponsible Ministers of the Crown, and (c) the payments which thecontractor is seeking to recover are covered by or referable to aparliamentary grant for the class of service to which the contract relates. ”However, Evatt J. further went on to state regarding class (c), “ In myopinion, moreover, the failure of the plaintifF to prove (c) does not affectthe validity of the contract in the sense that the Crown is regarded asstripped of its authority or capacity to enter into a contract. .. Theenforcement of such contracts is to be distinguished from their inherentvalidity. ”
This statement makes it clear in the first place that there aro twoseparate questions—enforceability and validity—that need considerationin regard to these contracts.
With a view to determining questions of enforceability and validity,the most convenient approach would be to view the problem before usin the light of the three requisites set out by Evatt J.
In regard to the first of these, it seems clear enough the present caseis not one where the alleged contract was entered into in the “ ordinaryor necessary course of Government administration ”. The type ofcontract entered into in New South Wales v. Bardolph may be cited as anillustration of such a contract. The contract under examination inthat case was one for the insertion of government advertisements in therespondent’s newspaper. Evatt J. observed2 that “The insertion ofadvertisements for Government trading concerns such as the TouristBureau, and also for ordinary administration purposes, was essential tothe proper functioning of the Government of the State of New SouthWales. ” The .contract wo are here concerned with is of a categoryaltogether impossible to bring within the ambit of such phraseology.
The second requirement, that it should be authorised by the responsibleMinisters of the Crown calls for a consideration of Mr. Stanley de Zoysa’sauthority as Minister of Finance to authorise contracts of this nature.
Article 46 (4) of the Ceylon Constitution (Order-in-Council) providesthat each ^Minister other than the Prime Minister shall be charged withthe administration of such subjects and functions as may be assigned tohim by the Prime Minister. The Assignment of Ministers’ Functions *
* (1934) 52 C. L. R. 455 at 474-5.
8 Ibid, p. 462.
404
WEERAMAKTRY, J.—Howlands v. Attorney-General
(Consequential Provisions Act) No. 29 of 1953 provides that the PrimoMinister may by Order published in the Gazetto make such incidental,consequential and supplemental provisions as may be necessary orexpedient for giving full effect to eny assignment of subjects andfunctions.
In this case, Gazette Notifications made by virtue of this provisionhave been produced, indicating the functions of the Ministry of Finance.According to these documents, P153 and PI 54, the previous assignmentsmade by the Primo Minister have been cancelled and the Minister ofFinance is assigned, inter alia, the following subjects : Control of andsanctions for expenditure, including refunds from revenues, irregularities,losses, write offs, waivers and surcharges; purchase of stores andequipment, indvding procedure relating to requisitions, indents, tendersand contracts ; and ex gratia payments to private parties.
The appellant submits that this assignment of functions is sufficientto cover a decision by the Minister to pay a sum of Rs. 1,000,000 insettlement of a contract as well as a decision to waive prescription of acontract.
It seems clear that contracts of this nature do not fall within the subjectsso assigned to the Minister of Finance. This is not a matter of “ controlof expenditure ” nor is it a sanction of expenditure incurred or to beincurred by some other authority. These arc the controlling wordsgoverning the next items from "refunds” to “surcharges”, includingthe word “ waivers ”. The next category is purchase of stores andequipment. This is not a case of purchase of stores or equipment, andsince these words govern the other categories from “ requisitions ” to“ contracts ’* there is again no applicability of any of these items to thepresent case. As regards " ex gratia compensation to private parties ”it is patently clear as will presently be seen, that at the very minimum apromise by a Cabinet Minister to make an ex gratia pajment of the orderof a million rupees requires the approval of Parliament or at the veryleast of the Cabinet.
Furthermore the lack of seriousness of the promise made can begatheredfrom the conduct of the Minister himself. He has taken no steps to seekCabinet approval or to go before the House and obtain its approval tothis largo and unusual item of expenditure.
It is to be noted also that this particular transaction does not fall withinthe day to day administration of the departments working under theMinister but is one of a naturo so unusual that quite apart from themagnitude of the payment involved, it is clear that the Minister wasunder a duty to seek Cabinet authority. Moreover the proposed paymentinvolved a question of principle, namely whether Government wasaccepting liability to compensate those who could not dispose of theirstocks owing to the embargo on exports. The financial implications ofsuch a decision were in no way limited to the immediate case of theplaintiff.
WEERAMAXTRY, J.—Howlands v. Attorney-General
405
Tbe principle of seeking Parliamentary approval for important decisionsand for those involving large sums of expenditure seems well established.As will be seen, presently the expenditure involved did not come withinthe estimates approved by Parliament. This was thus a new kind ofexpenditure which Parliament had not contemplated.
Jennings while examining the powers of the Treasury over Financehas noted that “ Proposals which involve substantial increases inexpenditure, immediately or contingently, are obviously of such on orderof magnitude that they require Cabinet sanction1 ”. He notes also that"The Treasury would not be prepared to allow an old sub-bead to beexceeded or a new sub-head to be opened if they thought the expenditurein question either from its amount or from its nature was such thatParliament ought to have cognizance of it before it was spent. ”2 Inthe present case these tests of amount and nature point very strongly tothe need for Parliamentary cognizance of the proposed expenditure.The sum was large enough and the circumstances in which the Treasurywas allegedly being committed to pay this sum not legally due, were soaltogether unusual, that, one can have little hesitation in concluding thatParliamentary authorisation was required.
On this point the evidence of Mr. de Zoysa is specifically to the effectthat ho had not consulted the Cabinet about this matter. He expressedthe view that this was a claim against Government and would be a matterfor the Minister of Finance in consultation with the other departmentsconcerned.
All this would show then that the requirement of authorisation by theresponsible Ministers of the Crown, the second requirement stipulatedby Evatt J. is not present in regard to the contract alleged by the plaintiff,for the responsible Ministers of the Crown in relation to a contract oftliis nature would appear to be the Cabinet as a whole and not a singleMinister acting on his own responsibility.
The third of the heads specified by Evatt J. now calls for more detailedconsideration.
Parliamentary control of finance is one of the important principles ofour Constitution and has been a tenet of Engb'sh constitutional law atany rate since the Revolution of 16S8. No Minister of the Crown hasauthority in his own right to commit the public revenue to a sumnot covered or contemplated by an existing vote.
Article 67 of the Ceylon Constitution (Order-in-Council) provides thatno sum shall be withdrawn from the consolidated fund except underthe authority of a warrant under the hand of the Minister of Finance’,
1 Cabinet Government, 3rd id. p. 152.
1 Ibid p. 167 citing the Epitome of the Reports from E elect Committees dfPublic Accounts.' ■
406
WEERAMAJiTRY, J.—Rowlands v. Attorney-General
and sub-section (2) goes on to provide that no such warrant shall boissued unless the sum has, by resolution of the House of Representativesor by any law, been granted for a specific public service for tho financialyear during which the withdrawal is to take place or is otherwise lawfullycharged on the consolidated fund. The decision, therefore, as to whethera sum not provided for in the estimates is to be withdrawn from theconsolidated fund for payment of sucji a claim, is not a decision whichthe Minister of Finance could make on his own initiative, but requirestho consent of the House of Representatives. In this case the proposedsettlement or waiver related to sums of money running to several lakhsof rupees, and it can scarcely be contended that any Minister of the Crowncan by reason of his own decision on the matter, charge the public fundswith an expenditure of this magnitude which lias not been authorisedby Parliament.
The estimates of the Government of Ceylon for some years have beenproduced in evidence. The earlier estimates for 1947-4S (PI 51) and for1948-49 (P152) show only a nominal sum of Rs. 100 as a token vote fortho running expenses of a steel rolling factory, and a sum of Rs. 50,000for the establishment of a steel factory. So also do Pi50 for 1949 50,P147 for 1950-51, P148 for 1951-52 and P149 for 1952-53. P143 for1958-59 shows an estimated expenditure up to September 30, 1959, ofRs. 1,600,000 on account of preliminary expenditure and contributionto initial capital of the corporation for the steel rolling project. Theprovision for the year 1959-60 (P144) shows an estimated expenditureup to September 30, 1959 of Rs. 1,600,000. So also the estimates for1960-61 (P145) and for 1962-63 (P146) show provisions for expenditureunder similar heads. Nowhere has there been a vote by Parliament forthe purchase of steel scrap.
When the token vote in earlier years provided a sum of Rs. 100 as“ running expenses ” for a steel factory, which had not yet beenconstructed, it would be a st raining of language to say that the acquisitionof millions of rupees worth of raw materials in contemplation of thefuture commencement of the factory, comes within that head. Moreover,by the time the alleged promise was given in the year 1958, this tokenvote had apparently lapsed. It is indeed true that under the authorityof a token vote there had been a practice with regard to advance accountsto spend large sums of money1. Such a practice however, if it existedwas an illegal one even from the Treasury point of view, as is borne outby the evidence of the writer of the work just referred to, who, givingevidence as a Treasury expert before the Public Accounts Committeeon August 18, 1961, stated that the practice of exceeding the advanceaccount limits was illegal and that the Attorney-General had advisedthat a two thirds majority of Parliament was necessary to legalise such apractice.*
1 Vide C. Ilalaaingham, Parliamentary Control oj Finance, p. 30.
J Vide Balaeingham, ibid. Appendix /, p. 56.
WEERAMANTRY, J.—Rowlands v. Attorney-General407
Again the provision of such sums as Rs. 1,600,000 could not cover thepurchase of raw materials for the factory, but was for preliminaryexpenditure for the factory and a contribution towards the initial capitalof t he Corporation. The general principle seems to be clear that althoughdetails of expenditure may not be specified in a vote, and to that exte ntthe Executive may spend such sum at discretion, still such expendituremust be restricted to “ the four corners of the vote . Consequently ifin this care the Minister promised on behalf of the Crown to pay such asum or to waive prescription regarding such a claim, it was illegal for theMinister to commit the public revenue to this expenditure, even if therehad been a token vote during the relevant period.
It has been submitted as a further argument against the validity ofsuch a contract that it would appear to be a settled principle that sgovernment contract involving the payment of money by the Crownrequires an express appropriation by Parliament of funds for the purposesof the contract. At one time there was ample authority in support ofsuch a proposition, for it was carried by all the text books, with a varietyof reasons adduced in support. Thus Professor Wade 1 2 and Halsbury3based the principle on the implied condition that the obligation isdependent on the supply of funds by Parliament; Keir and Lawson, onthe incapacity of the Crown to contract without Parliamentary approval4and Berriedale Keith, on reasons of public policy 5. There is authority .to the same effect in Anson 6.
Despite this apparently unanimous view which prevailed some yearsago, it would appear that in recent times considerable doubt lias beencast on it 7. The principle, thought to be based on the decision of ShoeJ. in Churchward, v. R.8, was seriously doubted by the High Court ofAustralia in New South Wales v. Bardolph 9 already referred to. Themore recent text writers seem agreed in doubting the principle. ThusGarner10 11 considers it “ doubtful whether such an artificial principle wouldbe accepted by the courts today unless a term to that effect could boread into the contract in the particular case” and .Mitchell11 is to the sameeffect. The third edition of Halsbury likewise departs from the viewexpressed in the second edition and states that : “ The considered opinionof a powerful court ” in New South, Wales v. Bardolph should prevail
1 Darrell, Parliamentary Grants, cols. 291-7.
A ppendix to Dicey; The Law of the Constitution, 9lh cd., p. 528.
3 2nd ed. Vol. VI, p. 4SS.
1 Cases in Constitutional Law, 3rd cd., p. 220.
The Constitutional Law of the British Dominions, p. 387.
Law and Customs of the Constitution, 4th cd., Vol. 11, part II, p. 1S1.
7 Mitchell, The Contracts oj Public Authorities, pp. 71-2.
(1805) L. R. 1 Q. B. 173 at 209.
(193 i) 52 Com. L. R. 455.
10Administrative Law, pp. 218—9.
11The Contracts of Public Authorities.
408
WEERA1LAXTRY, J.—Rowlands v. Attorney-General
against the contrary view1. Street likewise 2 states that it is plain thatChurchward's case appears to have been misunderstood and that “theother authorities alleged to * confirm the decision ’ in Churchward v. R.are equally flimsy props for the statements of law expressed in the textbooks. ” 3
Viscount Haldane in Commonwealth of Australia v. Kidman, whenconsidering an application for leave to appeal to the Privy Councilobserved 1 that the Governor-General contracting on behalf of theCrown“ was presumed only to bind the funds which might or might not boappropriated by Parliament to answer the contract, and if they were not,that did not make the contract null and ultra vires ; it made itnot enforceable because there was no res against which to enforce it. "
These considerations suffice to show that the lack of necessary fundsdoes not make the contract invalid as the Crown has suggested, but, asindicated in New. South- Wales v. Bardolph, that the question ofenforceability is another matter, and that the lack of funds, as in thiscase, would appear to point to unenforccability rather than invalidity.
Kot one of the three tests formulated by Evatt J., we see then, issatisfied in the present ease. The lack of the first two requirementswould in any event make the contract invalid while the lack of the thirdwould make it unenforceable.
For all these reasons I conclude that the contract on which the plaintiffrelics is invalid and that even if there had been a valid contract, it wouldbe unenforceable against the Crown.
It is pertinent also to make a few further observations relating to themanner in which this alleged contract was entered into. The allocationof functions among the Ministers means ordinarily that the Minister isthe authority vested with the right to control the matters so entrustedto him and therefore to make policy decisions regarding them. Thedecision once made, ordinarily falls for its physical implementationwithin the province of officials, whose duty it is to implement the decisionsof the Minister. If loi example it is d< ci .id to purchase certain storesor equipment one would he. surprised indeed if the purchases were madeby the Minister himself. Likewise it is not ordinarily to be expectedthat a Minister himself, beyond sanctioning a contract with a privatecitizen, would enter into it himself, for there are the proper officials forperforming this function. The Parliamentary system functions in facton the principle that, the policy decisions once taken, their implementationbelongs to the administrative officials concerned.
1 3rd ed., Vol. 7, p. 232 note q.
1 Op. cil p. 01.
J At p. S7.
* (1026) 32 A. L. R. 1 at 2-3.
WE ERAS IAN TRY, 3 .—Rowland* f. Attorney-General
409
When a Minister makes a decision to -waive prescription or to pay asum of money, that decision would, if the Minister has authority in thatregard, be a decision of the Government, pursuant to which a contractwould be made in the usual way between the Crown and the citizen.This contract would ordinarily be entered into by officials carrying outthe directives of the Minister. The informal communication of that■decision by the Minister to the citizen concerned is however far differentfrom the making of a binding contract between the Crown and thecitizen. Far less can the Crown be considered bound when the Minister’s-decision is of tlie altogether unusual nature we meet with in this ease.It is well recognised that although there are no legal restrictions on thecontents of Government contracts, the Government generally contractsonly on the basis of certain fixed standard terms and conditions l. Whentherefore a contract of such an altogether unusual nature is alleged andsued upon, the plaintiff would need specially satisfactory proof that thecontract has been entered into in such a way as to bind the Crown.
The usual indicia of this, namely a contract formally entered intothrough officers of the Crown specially or generally authorised for thatpurpose, are altogether lacking in the present case.
In this case, had such a contract been made by the appropriate official•or officials, Mr. de Zoj'sa as Minister of Finance was apparently quiteclearly prepared to authorise it. One would however, expect suchcontract to be made in the usual way in the first instance, before it attractsvalidity either prospectively or retrospectively, from the Minister’s■authorisation, and we have none such here.
If the conduct of the Minister in this ease could be relied upon as• constituting a contract binding on the Crown, there would indeed he thegravest danger of the Government being sought to be held contractuallyliable on the basis of informal discussions had with and assurances given■by Ministers.
It is pertinent also to observe that while policy decisions fall withinthe purview of the Minister, financial accountability falls upon his officials.
A Head of Department is an accounting officer and the" PermanentSecretary the chief accounting officer of a Ministry. "When the Auditor-General examines accounts and reports to the Public Accounts Committee,it is the accounting officer who is called upon to explain the expenditurebefore the Public Accounts Committee. If there is an irregularity in•expenditure in that a sum not voted by Parliament is expended, it is theaccounting officer who is liable to a surcharge and the fact that thoMinister has ordered the expenditure without Parliamentary sanction isno answer to the irregularity. Even if the Minister had ordered paymentof this sum without authority, it follows that an accounting officer whopaid out such sum did so at his peril.
1 Street, Governmental Liability, p. 99.
410
WEERAMANTRY, J.—Howlands v. Attorney-General
It has been urged, again, that even if Mr. dc Zoysa did not haveactual authority to bind the Crown he had ostensible authority to do so,inasmuch as he apparently held himself out to the plaintiff as having suchauthority.
Now in the field of agency, in so far as it concerns contracts seekingto impose liability upon the Crown, the common law doctrine that thoagent need have only ostensible authority does not apply, and hisauthority must be actual. There is clear authority to this effect inAmerican law1 but there would appear to be a dearth of authorityin English law2. In our law however there is now clear authority tothis effect.
I should refer first to the decision of the Privy Council in Altomey-General v. A. D. Silva3. Dealing with a contention on behalf of thoplaintiff that the Principal Collector of Customs had represented to thepublic that certain goods were saleable, their Lordships observed thatin advertising the goods for sale, the Principal Collector of Customs nodoubt represented to the public that the goods were saleable, but thoquestion was whether this act of the Principal Collector could be said tobe an act of the Crown. It was argued that by reason of the fact that thePrincipal Collector had been appointed to his office under the CustomsOrdinance and was the proper officer to administer it, he must be regardedas having had ostensible authoritj' on behalf of the Crown to representto the public that goods advertised for sale under the Customs Ordinancewere in fact saleable under that Ordinance. If so, although the goodswere in fact not saleable under the Ordinance it was submitted that thecontract was binding on the Crown. Their Lordships did not regardthe Principal Collector as having any such authority. In terms equallyapplicable to the case wo arc considering, their Lordships observed thatno public officer unless he possesses some special power, can hold out onbehalf of the Crown that he or some other public officer has the right toenter into a contract on behalf of the Crown when in fact no such rightexists. In so far as it is sought to contend that the Minister concernedhad held out that he had authority to enter into this contract on behalfof the Crown, the same considerations apply.
Referring to the hardships that might be caused to the citizen by such arule, their Lordships further observed in A Homey-General v. A. D. Silvathat the subject derives benefits sometimes directly and sometimesindirectly from property vested in the Crown, and that its properprotection was necessary in the interest of the subject even though itmay cause hardship to an individual. The same consideration appliesto tho protection of the public funds.
» Whiteside u. U. S. [1376) 93 U. S. 217 at 256.
iStreet. Governmental Liability, p. S J.
(1953) 5i H. L. R. 529 at 536.
WEERAMANTRY, J.—Rowlands v. Attorney-General
411
IVijayasooriya v. A tlomey-General anot her decision of Their Lordships,stresses that if a subject wrongly assumes that the person he is dealingwith has a wider authority than in fact he had, he acts at hisperil. Applying even this principle, one secs that no member of the publiccould reasonably believe that a Minister of the Crown has unlimitedauthority to contract on behalf of the Crown. He may have wideauthority, but his contracting powers are limited and his contractualpower is not co-equal with that of the Government. Knowing that hiscontracting powers are limited, a member of the public, if he were relyingon an act of such party, should have ascertained whether or not that actwas authorised. If the act was not authorised, then it could not be heldto be such as would bind the Crown or give rise to any estoppel.
For all these reasons then, the plaintiff fails to establish any valid orenforceable contract against the Crown as urged on his behalf in thesecond main contention urged before this court.
I proceed now to examine the plaintiff’s third proposition, that therewas an agreement by the Crown not to plead prescription and that forthis reason it is now not open to the Crown to take up this plea in itsanswer.
The basic submission on this matter is that the Minister of Financeon the 29th of August 195S gave a firm undertaking to the plaintiffamounting to a serious and deliberate promise which is binding in lawnot to plead prescription. The plaintiff’s case is that in so doing theMinister of Finance acted for and on behalf of the Government of Ceylonand with the consent and concurrence of the Attorney-General. Thisrepresentation, according to the plaintiff, was acted upon by him tohis detriment, and on this basis it is pleaded alternatively that thedefendant is estopped from now asserting prescription.
Agreements not to plead prescription are not contrary to public policyand would be binding both under English and Roman-Dutch law. Underthe former system consideration would be necessary2 and under Roman-Dutch law such an agreement would be valid and binding if seriously anddeliberately made.
However in this caso the real difficulty arises not in connection withthe legal efficacy of such an agreement, but in connection with theauthority of the Minister of Finance, Mr. Stanley de Zoysa, to enter intosuch an agreement on behalf of the Crown. The Crown submits that hedid not have such authority and has urged, further, that whatever thepowers of the Minister, still the authority in whom the ultimate decisionrested was tho Attorney-General, who represents the Crown in litigation.
A consideration of these legal questions necessitates a preliminaryexamination, of the somewhat extraordinary evidence placed before *
*(1950) 51 N. L. R. 361.
Chilly, Contracts, 22nd cd. S. 1521; Franks, Limitation, pp. 19-20.
4:12
WEERAMANTRY, J.—h'oulaniLt v. Attorney-General
court in this connection. The parties being at variance in theirinterpretation of this evidence, it is necessary to refer to it in somedetail.
The main item of evidence in support of the plaintiff’s case regarding a-,waiver of prescription is the document P2, a letter of 29th August, 195S,to the plaintiff by Mr. Stanley de Zo3'sa, the Minister of Finance, reading,in these terms : “ This is to confirm the information I conveyed to you*at our interview this afternoon. I have discussed with the Attorney-General the question of prescription as regards your claim. TheAttorney-General agrees that, in view of the Government’s delay in.disposing of this matter, Government should not, and will not, if the-question arises, raise the question of prescription in this regard.”
The circumstances in which this letter was obtained have been-described both by the plaintiff and Mr. de Zoysa. The plaintiff statedthat in view of the discussions which he had had with the Minister ofFinance and the indication that he was prepared to initiate steps towardsthe settlement of the claims out of court, he, the plaintiff, had beenadvised to take precautions safeguarding his position, lest prescription,should run against him. For that reason and purely as a precaution, hehad mentioned the question of prescription to the Minister. As a resultof his representations to the Minister, the Minister spoke to the Attorney-General over the telephone in his presence and the letter P2 was given to-him. This letter, typed then and there by the Minister’s confidential-secretary, was handed to the plaintiff by the Minister, who left theIsland the next day on official business.
The plaintiff also states that throughout 195S and 1959, at all thediscussions he had at the Treasury, the ^Ministry of Finance and theMinistry of Industries, the question of proscription was never raised, andthat in view of the ftL’nister’s indication that- he would have the claimreported on by his Parliamentary Secretary, the plaintiff felt that there-was no need for precipitate action.
Mr. de Zoysa ceased to be Minister of Finance in April I960, and the-plaintiff contends that thereafter the helpful attitude of Treasury officials-towards him was markedly changed. He was perturbed to discover thatthe file copy of P2 was missing and that the Treasury would not take upa definite position as to whether they were dom ing this documentcompletely or whether they were suggesting that it was fictitiously datedand given after Mr. de Zoysa ceased to be Minister. In an3r event, theTreasury would not commit itself to a decision regarding this letter. TheTreasury officials kept putting him off from interviews and he was ableto get no information and make no headway in regard to his claim.
In view of this intransigent attitude regarding his claim, he wrote aletter on 5th April, 19G0, to the Deputy Secretary to the Treasurj- stating,,with reference to the Finance Minister’s letter of 29.S.5S that,
“ undoubted^-, the Minister had in mind that the Honourable Attome}–Gencral would honour his own pledge in this matter but as I have no such
VVEERAMANTRY, J.—Jtcwlands v. Attorney-General
413
confirmation, as it would be preferable to have in my hands, I requestyou to please take such steps as you deem necessary to secure for me theconfirmation of the Attorney-General.”
The same letter refers to the circumstance that no file copy of theletter of 29.8.58 could apparently be traced in the Treasury files or inthe Ministry files, and observes that this was the second occasion ■whenvital documents had been found missing from the relevant files sinceFebruary, 1959. 4
Referring to a conference with the Deputy Secretary on 4th April1960, the plaintiff indicated that the original of the letter of 29.8.58had been produced at the conference on that date together with itsoriginal envelope. This was a precaution apparently taken by theplaintiff lest a denial of this letter should emanate from official sources.All that the plaintiff received in reply to this letter P76 was a curtcommunication P78 sent on behalf of the Controller of Finance acknow-ledging receipt of the letter together with the enclosure. Thereafter, theplaintiff wrote P79 on 29th April 1900 in order to remove any doubtsthat might exist regarding the authenticity of the letter of 29lh August1958 in view of its absence from the files. He requested the Secretary tothe Treasury to ask the Attorney-General to state whether or not hoadmitted the telephone conversation to which Mr. de Zoysa alluded inthat letter, and to inform him with tne least possible delay what exactlywas the Government’s position on t he question of prescription.
For the purpose of record, the letter repeated that Mr. de Zoysa hadstated “ No self-respecting government nor its Attorney-General woulddefend itself behind a plea of prescription in a case like this ”. Theletter also requested that Mr. de Zoysa’s confirmation or denial of thisand other facts be sought and that the writer should be informed in theevent of a denial by Mr. dc Zoysa of such a position.
On the 23rd of May, the plaintiff had an interview with the Secretary'to the Treasury and by' his letter PS2 on 25th May', he placed on recordhis version of that interview. In PS2 the plaintiff repeats that he hadno reason whatsoever to doubt the bona tides of Mr. Stanley de Zoysa’sconversation with the Attorney'-Gcneral and that “naturally I shouldhave preferred to have such confirmation with me, but the lack of onohardly matters in the absence of a denial ”. Neither P79 nor P82 wasdenied by' the recipients or challenged in regard to the accuracy' of itscontents.
Mr. Stanley de Zoysa himself stated in evidence that the plaintiffcomplained of delay in the settlement of his claim and on the eve ofSir. do Zoy'sa’s leaving Ceylon for a conference, the question of delay wasbrought to his notice.
414
WEERAMANTRY, J.—Rowlands v. Attorney-General
Mr. de Zoysa went on to say that the plaintiff requested a letter as asafeguard, and when shown P2, acknowledged that it was his letter givento the plaintiff in these circumstances. He also stated that he hadinformed Mr. Rqvlands that the question of prescription should notworry him as the plea of prescription would never be taken.
The plaintiff also called his Proctor Mr. Modder, w ho stated that at thetime he was advising the plaintiff there was no question of prescriptionas the claims were not prescribed, but he advised the plaintiff not to losesight of the fact that Jus claims might become prescribed and that itwould be wise to take some precautions. Ho also stated that theplaintiff showed him a letter of Mr. Stanley de Zoj sa undertaking not totake any plea of prescription in regard to the matters pending betweenthe plaintiff and the Crown.
Upon all this material, there can be no doubt whatsoever about theauthenticity of the letter P2, and despite the reluctance of the Treasuryto admit these facts it is clear that the document was one given byMr. Stanley de Zoysa while he held office as Minister of Finance.
What, then, follows from the letter P2 ?
The first question is whether the document proves that the Attorney-General had agreed that the plea should be waived.
Now, it would appear that Mr. de Zoysa did truly believe at the timehe gave the letter P2, that the plea of prescription would not be taken andthat the Attorney-General had concurred in this view. It has not beensuggested to Mr. de Zoysa that he misled or intended to misleadthe plaintiff. It i3 clear therefore that whatever lie recorded in thedocument P2 was genuinely believed by him to be theposition at the timehe wrote it.
We now come to a conflict between the plaintiff and the Crownregarding the conversation between the Minister and theAttorney-General.
Mr. de Zoysa has stated that, feeling that it would be unconscionableand immoral if the plaintiff were put into a situation of having to go tocourt and be time barred by reason of delays of officials, he telephoned theAttorney-General and informed him that it was his (Mr. de Zoysa's) viewthat- if the plaintiff had to go to court, it would be immoral for the Govern-ment to take the plea of prescription. The Attorney-General repliedthat he should be free to takeany legal plea that might be available to him,but Mr. de Zoysa’s view was that any Government should not behave inthat way. He therefore told the Attorney-General that he did notwish him to take the plea and that those were his instructions, addingthat the latter was only the lawyer and the Government w as the h’tigant.The conversation appears according to Mr. de Zo3-sa to have ended on thenote of an abrupt comment by Mr. de Zoysa to the Attorney-Generalthat he had better carry out his instructions.
WEERAMANTRY, J.—Rowlands t Attorney-General415
Mr. de Zoysa did not make a minute of the conversat ion on the Treasuryfile. He himself did not put the minute on a more official basis, expectingthat the Attorney-General would make a minute of the conversation,nor did he confirm the conversation in writing or give any instructionsto the Attorney-General in writing. He gave verbal instructions and hethought it was “ up to the Attorney-General ” to make a minute statingthat the Minister had given him oral instructions.
At the argument before us, there were by consent marked in evidencetwo minutes of the Attorney-General relating to this telephone conver-sation. These do not purport to be a full record of the conversation withthe Minister but are apparently minutes by the Attorney-General for theguidance of his subordinate officers. One of these, X2 of 9.9.58, statesthat no plea of prescription is to be taken in this case without the spccifioapproval of the Attorney-General. It is not, it is to be observed, a minuteto the effect that the plea of prescription is not be taken at all. The otherminute, XI of 2.5.GO, was made when Treasury officials saw the Attorney-General in connection with the plaintiff’s claim. When informed bythese officials that the Minister had written to the plaintiff stating thathe had agreed to waive the plea of prescription, the Attorney-Generalinformed them that he had informed the Minister that such a plea wouldnot be taken without the former’s express approval, but the Attorney-General made it quite plain that he had not stated that he would nottake the plea. The question whether the plea should or should not botaken had not yet been decided by the Attorney-General.
Wre have also the letter P132 by the Crown Proctor to the plaintiffwhich specifically states the position of the Attorney-General, namely,that although Mr. de Zoysa did discuss the matter with him over thetelephone, the Attorney-General at no time undertook or agreed that hoor his successors in officewould not take the plea of prescription.
All this makes it perfectly plain that the Attorney-General himselfhad at no stage unequivocally agreed to waive prescription, althoughMr. de Zoysa appears to have had this impression of their conversation.
One can only conclude that the Minister misunderstood the Attorney-General. The Minister appears to have been genuinely under the impres-sion that the Attorney-General had agreed that prescription was notto be taken, whereas what in fact the Attorney-General said and intendedwas that prescription would not be taken without express reference tohim. I proceed then, upon this basis. I
I do not agree with the submission that inasmuch as a clear decisionhad been taken by the Minister that prescription was not to be pleadedand that decision had been communicated to the Attorney-General andalso to the plaintiff, the Crown is now precluded from taking up this plea.
As has been shown already, the Minister did not have authority to bindthe Crown by contract not to take the plea. The plea was therefore one
WEERAMANTRY, J.—Rowlandi v. Attorney-General
which remained open to the Crown and it was left to the Attorney-Generalas legal adviser and representative of the Crown to decide whether or notto take the plea. Ho was certainly not precluded from doing so as hehad not in any way agreed to waive tho plea.
It seems perfectly clear then that the good intentions of Mr. de Zoysawere insufficient-, however specifically they might have been expressed,to bind the Crown in such a manner as to prevent it from taking thisplea. Had Mr. de Zoysa been the contracting party, I think his letter P2would amount to an expression of intention sufficiently serious anddeliberate to amount to a waiver of the plea. In the present casohowever, it is not Mr. de Zoysa but the Government of Ceylon which isthe party to the contract, and an expression on the part of Mr. de Zoysathat it would be immoral to take such a plea and his clearly genuineintention that the plea should not bo taken, would not suffice tobind the Crown.
Having thus reached the conclusion that the Crown was not in lawprecluded from taking the plea of prescription, we must now proceedto examine whether the plaintiff’s cause of action was in fact prescribed.
The plaintiff came into court on 2Sth August 1961.
According to the plaintiff the final refusal of the Crown to accept hisclaim is contained in the letter PS7 of 20th May 1961 written to theplaintiff by the Controller of Finance. This letter states that governmenthad examined his claims, that no sums of money were due to him andthat government therefore considered that there was no purpose inreferring the matter to arbitration.
This letter is relied upon as the final refusal, so as to show" that thoplaintiff’s claim is not prescribed in any event.
It is significant however that the plaintiff has served on the Crown twonotices of action under section 4GI of the Civil Procedure Code, whichhave been marked PCO of 10th July' 195S and D1 of 10th July 1961.In the first of these he states that as the Minister of Industries had nottaken delivery of his ferrous scrap and had not paid him the value of thesame, he had suffered loss and damage in a sum of Es. 2,3-49,697.
The second notice, a more detailed one, recites two causes of actionand refers to a repudiation by the Crown in or about May 1961, of anagreement made in June/August 1959 to determine all disputes byvoluntary arbitration.
It will be seen that the first of these notices is more than three yearsanterior to the institution of action. What had happend thereafter isthat a protracted correspondence and negotiation ensued in an attemptby' the plaintiff to have a reconsideration of the decision which theplaintiff had himself considered to be sufficiently final to warrant histaking action upon it.
WEERAMANTRY, J.—Howlands v. Attorney-General
417
It seems clear that in the mind of the plaintiff himself there had been afinal refusal of Jiis claim by the time he wrote his first notice PGO of10th July 1958. Indeed he sent a copy of this notice to the Minister ofFinance along with the notice itself. The accompanying letter P59 of10th July 1958 also serves to indicate the plaintiff’s belief that there hadbeen a final refusal of his claim and even at that stage he took the oppor-tunity to urge upon the Minister that his claim should not be legallycontested but honourably settled. This and further attempts by theplaintiff at making appeals to the authorities no doubt resulted inensuing correspondence, but this did not take away from the finality ofthe refusal that had already been made earlier—a refusal which theplaintiff too understood as being sufficiently definitive to require him toseek his legal remedy. This latter correspondence cannot now be reliedupon as making out a fresh refusal and creating a fresh cause of action.After a final refusal one may otherwise be able to keep adressing appealsto the persons concerned, some of which may draw replies, andthen rely upon these replies in order to delay the commencement ofthe prescriptive period. I do not think such a course is permissible.
It is thus evident that the plaintiff’s cause of action had arisen before10th July J95S when he sent his first notice P60 under section 461 of theCivil Procedure Code.
It is pertinent also to note that the notice P133 issued on 1st May 1953by the Government Agent to the owner of the land whereon the metalwas stacked, indicated that by that date Government was no longerinterested in the scrap. Indeed the World Bank Report had been issuedin September 1952 (P47) and any ambiguity as to the date of the finaldecision of the Government not to proceed with the steel factory projectis removed when one sees that P142, the Gazette Notification lifting theexport ban, was in September 1953. A period of nearly five years ofnegotiation ensued before the plaintiff made up Ins mind that with thefinal refusal of Government to purchase his scrap, the time had come forhim to go to court.
It should also be noted that although a series of letters are relied uponby the plaintiff in order to establish the contract he alleges, these lettersdo not form the contract in question, but in association with the oralevidence, are relied upon to prove the contract alleged. The contractalleged is thus an unwritten contract, and the plaintiff’s cause of actionwould in any event be prescribed three years from the date of breach. Atthe latest tliis would be three years from 10th July' 195S when accordingto the plaintiff’s own understanding of the matter, his cause of actionbad accrued.
For these reasons I hold that the plaintiff’s claim is prescribed.
The plaintiff has made the alternative submission that there had beena promise by' the Government to refer the matter to arbitration andthat his cause of action arose only upon its failure to implement thatpromise-
41 S
WEERAMANTRY, J.—Howlands v. Attorney-General
I must for tliis purpose deal with another series of letters leading up tothis matter. This correspondence indicates how the question of arbit-ration came to be mooted, at a point of time subsequent to the accrualof the plaintiff’s cause of action. It also shows that the plaintiff, havingreceived a firm refusal, was attempting, as no doubt a person placed inhis circumstances would have, to obtain a sympathetic considerationof his case on an equitable, rather than a legal basis.
By PG7 of 17.1.59 addressed by the plaintiff to the Junior Minister ofFinance (which letter was after the plaintiff’s first notice dated 10th July195S, under section 461 of the Civil Procedure Code) the plaintiff wrotethat at an interview he had had with the Treasury officials, he was requiredto adduce evidence of the agreement by which he alleged that the Govern-ment undertook to purchase his scrap iron. He states that he hadalready dealt with this matter fully and suggests that a conference on thisquestion would be redundant and should be dispensed with, and requeststhe recipient to dispose of this matter before the end of the month.PG3 followed within a month, on 14th February 1959, and was writtento the Permanent Secretary to the Ministry of Industries. This referredto the interviews had with the latter on 3rd February and the promiseby the latter to communicate with the plaintiff within ten days. Thiscommunication was not received and hence the plaintiff addressed this. letter to the official in question stating inter alia, “ If the Governmenthas now, as it appears to me, accepted in principle the payment of com-pensation in this matter, may I respectfully urge you, Sir, in view of thedelay in disposing of this matter, that the Government in equity mayconsider the interim payment of say, 25 per cent of the value of my claimas an earnest of its position pending further consideration, if need be, ofthe full quantum of compensation that will be eventually paid.”
There was no response to this communication, but the plaintiff on thefollowing day wrote a letter to the Minister of Finance referring to hiscommunication to the Permanent Secretary to the Ministry of Industrieson 14th February. In this letter the plaintiff states : “ May I respectfullyrequest your attention, Sir, to the penultimate paragraph of that letterin which I have taken the liberty to urge that an interim payment at thisstage might be a gesture worthy of the Government’s sympathetic consi-deration in view of the immense hardship this matter has caused over thepast years.” A formal letter P70 was recei%'ed in reply acknowledgingreceipt and stating in stereotyped fashion “ tliat the matter is receivingattention ”. Eight months later on 7th October 1959, P71 was receivedfrom the Deputy Secretary to the Treasury, this time in somewhat morehopeful language, saying that the matter was " under active considera-tion ” by the respective Departments in consultation with the Attorney-General. It said the plaintiff would be informed as soon as thearbitration proceedings are to commence.
WE E R AM AN T R Y, J.—Rowlands v. Allorncy-General
419
Steps were thereafter apparently taken towards preparing the matterfor arbitration and on 18th November, letter P72 by the Deputy Secretaryto the Treasury states that the terms of reference to arbitration in respect ofthese and the plaintiff’s other claims uere in preparation.
The plaintiff had an interview with Mr. V. M. Peiris of the Treasuryon 6th January and by his letter P73 of 7th January confirmed theresults of this interview. It shows, inter alia, that the terms of referenceto arbitration had not as yet been settled by the Attorney-General towhom these matters had been referred in August, and considersthe question whether submissions should not be made to the Attorney-General in connection with this delay.
The plaintiff nominated as his lawyer for drafting the terms of referenceto arbitration, Mr. S. P. Amerasingham, Advocate and Mr. Amerasinghamduly addressed the Solicitor-General by letter P75 on 25th January 1960seeking an early interview in order to draft the terms of referenc e. Appa-rently the plaintiff’s lawyer himself became exasperated at the dclajs ofthe Government in finalising this matter and the plaintiff’s letter P76of 5th April 1960 addressed to the Deputy Secretary to the Treasurystates that the plaintiff’s lawyer had asked to be excused from wastinghis time further in this matter “ as he complains he has never felt sofrustrated as he is in this instance.”
There was still delay in deciding the final terms of arbitration, and theplaintiff by letter P77 of 14th April 1960 informed the Deputy Secretaryto the Treasury that he had retained Mr. G. E. Chi tty, Q.C., in additionto Mr. Amerasingham to represent him at the discussion with the Attorney-General with a view to decide upon the final terms of reference.
From all this the plaintiff derived little satisfaction, receiving the usualtype of stereotyped letter P78 of 16th April I960 from the Controller ofFinance formally acknowledging receipt of the letter of 5th April. Theplaintiff apparently in exasperation on 29th April I960 wrote letter P79to the Secretary to the Treasury requesting an early intimation regardingthe Government’s position on the question of prescription. The lettergoes on to state that Mr. Amerasingham had informed the plaintiff at theend of January that the draft terms of reference to arbitration were welladvanced up to a stage vheu only about two hours of work remained tobe done. It was now ten months since the matter was first referredto arbitration and the plaintiff quite justifiably and understandablyprotested that it was not reasonable that he should be indefinitely delayedin the final disposal of these matters.
By P80 of 7 th May 1960 the plaintiff states that he had been told thatthe Treasury had tentatively nominated an arbitrator and sought toknow his name so as to enable the plaintiff to communicate the nameof his arbitrator to the Crown.
The plaintiff in fact on 30th May 1960 sent to the Treasury his draftP85 of tho agreement to refer the matter to arbitration.
WEERAMANTKY, J.—Iiowlnnds t>. Attorney-GencTtil
420
On 20th May 1961 by PS7 the plaintiff was informed by the Controllerof Finance that his claims had been examined and that, there was nopurpose in referring the matter to arbitration.
Had this been the position, one. does not realise why the officials con-cerned had been subjecting the plaintiff to the tantalising procedure ofholding before him a very real prospect of arbitration on the faith ofwhich he retained lawyers including Queen’s Counsel, in order to discussthe terms, drafted documents, and in so man}' other ways preparedhimself for these mutually contemplated proceedings.
This brief recapitulation will suffice to show that the plaintiff was seekingan equitable adjustment of the matter after receiving a final repudiationof his legal claim. To the extent that the Crown contemplatedarbitration proceedings with a view to an equitable adjustment, the actionof tbc Crown was commendable, but thereafter the indecision whichhas characterised all its actions in this matter came into play again,and having actively encouraged in the plaintiff’s mind the expectation thatthere would be an arbitration, the Crown has belied his expectationsonce more.
When the letter PS7 written by the Controller of Finance is readagainst the background of P1S5 of June 2, 1959, the minute of the DeputySecretary to the Treasury to the same official, it becomes difficult tounderstand how the writer of PS7 believed he could so easily dispose ofthe matter. I refer to paragraphs 11 and 12 of that minute. Paragraph11 states that although there is no doubt that the existence of a validlegal contract has not been proved, nevertheless, the writer is inclinedto the view that it would not be inappropriate to consider whether theCovernment is in any way morally obliged to compensate Mr. Rowlandsfor any loss that he may have incurred in the particular circumstancesof this case, as a result of any acts of omission or commission on the partof the Government. “ At least this must be in justice granted ”, statesthe minute, “ that the Government did not absolutely disabuseMr. Rowlands’ mind of the belief which Mr. Rowlands appears to haveentertained, at least at one stage, that the Government, was going to buyhis scrap—vide his letter of 18th August, 1949. ”
Paragraph 12 of that minute states that if it is correct that there issome kind of moral obligation, then the question that would necessarilyarise would be the quantum of compensation to be paid to Mr. Rowlands.
As regards this, if it was the intention of Government- to pursue this aspect-of the matter, the writer suggests that the papers may be referred backto him after a further report in consultation with the Chief Valuer.
It is somewhat disconcerting to find that a Government official towhom such a minute had been addressed should find Jiimself able solightly to dismiss the plaintiff’s appeal in the summary terras of theletter PS7.
WEERAMANTJiY, J.—Rowlands v. Altoniey-Ger.eral
421
We thus see firstly that the legal claim had long been repudiated whenthis correspondence started, and secondly that the willingness ofGovernment (although this.later proved futile) to consider tjic questionfurther as a matter of equity, could not delay the commencement ofprescription.
Furthermore, in any event, the mere circumstance that parties agreeto refer a matter to arbitration and that the arbitration agreementthereafter falls through, does not mean that the commencement oflimitation is delayed until the arbitration arrangements break down.The running of time, once commenced, is not interrupted by tilt-preparations for arbitration or by the pendency of a reference. The•cause of action has already accrued and indeed it is that which constitutes'•the subject matter of the proposed reference.
The general principle in English law would appear to be that the period•of limitation runs from the date on which the “ cause of arbitration ”
■ accrued l. Adapting this to our law where there is no specific statutory-provision dealing with the matter, the period of limitation would run•from the date when the cause of action accrued. In England indeedsection 27(5) of the Limitation Act provides that where an arbitrationproves abortive for certain specified reasons, the court may order thatthe time lost be excluded in computing the period of limitation for thatdispute. We have however in Ceylon no special statutory provision•interfering with the normal principles of prescription in this regard.
Consequently' although at a stage subsequent to the accrual of the■plaintiff’s cause of action, arbitration proceedings were mooted andindeed taken up to a certain point, the moment when they eventually•proved abortive is not the moment when time begins to run. The fact•that arbitration proceedings were contemplated does not therefore helpthe plaintiff in attempting to take his case out of the operation of the"Statute.
I am for these reasons compelled to arrive at the conclusion that theplaintiff’s claim on all the alternative bases set forth, must fail.
In view of these findings it does not become necessary to examine in•detail the way in which the plaintiff has made up his claim.
Since however the suggestion has been made that the claim is fancifuland not substantiated by facts and figures and since in any event theopinion of this Court may prove useful on the quantum of damages, it isnecessary to make a few observations in regard to the computation of theplaintiff’s claim.
Briefly the plaintiff’s case is that he bought 4,1G1 vehicles of which2,4S9 were at Hcndala (vide P6), 818 were at Trincomalee (vide P7) and&54 were at Kirillapone (vide P8). After purchase however, the actual
1 Russell on Arbitration, IGth ed. p. 6.
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WEERAMAXTRY, J.—Rowlands v. Attorney-General
count revealed 4,814 vehicles, of which 3,100 were at Hendala, 900at Kirillapone and 804 at Trincomalee. Rabot the personal assistant totho plaintiff states that the first thing he did for the plaintiff was toprepare an inventory of the vehicles in these three depots.
It may be that the discrepancy was due as Sansoni, one of the Managersof tho military vehicle break down Depot has said, to vehicles beingbrought in even after the plaintiff’s purchase, although they have notbeen included in the advice note at the time of taking over.
The plaintiff too has in evidence stated that there were more vehiclesin each of the depots than were referred to in the advice note P6, P7 andPS and that in addition there were also large quantities of loose scrapinside the vehicles.
There is no reason to doubt this evidence of the plaintiff and thereforethe total of 4.S14 vehicles found in the depots upon a physical count maysafely be acted upon.
The quantity of scrap iron available to the plaintiff from this lot ofvehicles has been worked out upon what the plaintiff states is aconservative estimate of 4 tons, as being the average tare weight of avehicle.
On this basis we get approximately 19,000 tons of scrap. To this theplaintiff has added five thousand tons as estimated tonnage to coverloose scrap, having regard to the proportion of loose scrap as comparedwith the quantity of metal in the vehicles. These figures make up atotal of 24,000 tons of scrap. From t his the plaintiff has subtracted thesum of four thousand tons as representing material other than ferrousscrap, thus arriving at the figure of 20,000 tons as the opening stock.
Having regard to the scrupulous honesty' of the plaintiff as displayedthroughout these proceedings and to the fact that his books thoughavailable have not been in any way challenged by the Crown, I considerthe estimate of 20,000 tons to be a satisfactory' basis on which thecalculations may' be made.
The reduction of these stocks to the form of scrap entailed heavy andexpensive work. The plaintiff has stated that the heavy sections of theseArmy' vehicles had to be cut into pieces and this involved the use ofoxygen flames. The vehicles had to be dismantled and the parts had tobe stacked. The items were so heavy that a large labour force wasrequired. The work involved in transporting the scrap between thedepot and the wharfs at Colombo and Trincomalee, requiredheavy motor transport.
Maintenance was likewise very' expensive and has already beendiscussed.
WEE RAMANTRY, J.—Roulanda v. Attorney-General423
The plaintiff had also to find the nearest and best available market inIndia for the sale of ferrous scrap. For these purposes it became necessaryfor him to undertake several trips to India where he concluded all the•essentials for the wholesale disposal of the 20,000 tons of scrap iron whichhe had in Ceylon. To assist him in these negotiations his assistantMr. Rabot as well had to fly to India.
It is thus clear that very heavy expenditure was incurred by theplaintiff in connection with this entire matter.
We have it from PIG2 that 3,606 tons were shipped to India andfrom PI 72 that 5,567 tons were sold in Ceylon making a total of 9,172tons disposed of. Subtracting this from the opening stock of 20,000tons one is left with a balance stock of somewhat over 10,000 tons.
According to P3A the plaintiff makes a further deduction of over 1,000tons on account of non-ferrous scrap and motor parts, leaving accordingto P3A a stock of 8,906 tons undisposed of in his hands.
The average sale price in India was Rs. 2S7 per ton and the averagesale price in Ceylon was Rs. 126. This yields an average sale price ofRs. 207 per ton and on this basis according to P3A if the plaintiff hadsold his 8,906 tons he would have realised Rs. 1,843,542. P3A adds on tothis the various items of expenditure incurred in connection with 8,906tons. The sum of Rs. 492,299 which is the principal amount so addedappears not unreasonable having regard to the very heavy' expenditurewhich the plaintiff was obliged to incur as already outlined. The otheritems added are of a comparatively trifling nature and the plaintiff hasalso reduced from his claim the sum of Rs. 10,000 which he eventuallyrealised upon the sale of his scrap.
Having regard to the plaintiff’s evidence and to the availability of hisbooks in court.it can scarcely be said that the sum of Rs. 492,000 incurredfor looking after this scrap during a period of three years is excessive.Even if some deduction is to be made on that account, that deductionwould be comparatively trilling against the proved value of nearly twomillion rupees as the sale price of the scrap.
On the basis of this computation the plaintiff assesses Ills claim atRs. 2,357,872.
For these reasons I do not think it can fairly be said that this claim isexorbitant or exaggerated as was suggested.
Had the plaintiff succeeded therefore in establishing the causes ofaction upon which he sued, I do not think that it could fairly beurged against him that the quantum of damages claimed is in any wayexcessive.
It should also be observed that the plaintiff through his accountantRajadurai placed before court the result of his inspection of the booksof account. Documents P170 to P174 along with the oral testimony ofRajadurai who audited the account books showed the manner of
424
A YTS ERA-MAX TRY, J.—Rowlands v. Attorney-General
calculation of the figures on which the plaintiff was relying. Thesefigures according to Rajadurai were based upon the plaintiff’s books ofaccount wliich were available in court and had the defendant desired toquestion the accuracy of Rajadurai’s figures or his manner of computationho would no doubt have had the opportunity of doing so. It is notdenied by the Crown that the books were available in court. InasmuchasP170 to PI74 appeared to be a summary of the books, I consider thatthe comment is not available at this stage that the books werenot produced. Section 65 (7) of the Evidence Ordinance provides thatsecondary evidence may be given of the contents of a document whenthe originals consist of numerous accounts or of documents whichcannot conveniently be examined in court and the fact to be proved isthe general result of the whole collection. When Mr. Rajadurai’ssummaries P170 to P174 were sought to be produced and were producedwithout objection, the Crown could not thereafter take up the positionthat prejudice had been caused to it by reason of the non-production ofthe books of account.
The next question i3 the question of mitigation of damages. I havealready referred in another context to the evidence of the manyprecautions the plaintiff took, as for example greasing the scrap andfencing it all round, so as to prevent corrosion, and to the maintenanceexpenses which exceeded Rs. 12,000 per month.
I do not think it could fairly be urged that added precautions werenecessary on his part. It must be remembered that the scrap was ofsuch extensive proportions that it could not possibly be housed or roofedover. It had necessarily to be left in the open, and scrap iron left in theopen for a period of years must necessarily rust and decay. We have theevidence of the plaintiff that although there was a market price ofhundreds of rupees per ton which he could have obtained when the ironwas in good condition, the best he could do with his stock finally was to-sell off the entire lot for a sum of Rs. 10,000.
Another factor to be considered here is the condition report P157dated ISth May 1053, which shows the value of the lots on which this-scrap was stacked. We see from this that at any rate by 1953 tin's scraphad badly deteriorated, for the report observes that there were largequantities spread over about 75 per cent of the land, estimated at 6,000tons of useless scrap iron “ heavily corroded and in a bad state ofdeterioration ”. The major deterioration of the stocks had alreadyoccurred before the breach of contract alleged by the plaintiff and efforts-at reducing damages at any stage subsequent to 1953 would not have-averted any substantial loss. There is therefore little merit in the-submission that the plaintiff could have minimised his loss by sellingeven at that stage.
I consider that having regard to the steps taken by the plaintiff toprotect the property, it cannot be held against the plaintiff that therewas any failure on his part to minimise damages.
De Zoysa v. Inspector of Police
425
. I have already commented upon the great hardship caused to theplaintiff through no fault of his own but in consequence of changingofficial policy. I have also referred to the altogether unsatisfactorymanner in which the Treasury handled the plaintiff’s claim. The learnedtrial judge has been so struck by these matters that he has observed that“ the Government’s omission to disabuse the plaintiff’s mind with regardto his belief that the Government would buy his scrap iron may give riseto a moral obligation on its part to pay the plaintiff compensation inrespect of the acts done by him in the circumstances set out in hisevidence. ” So also, in regard to the Crown’s plea of prescription, he hasobserved that the delay of the plaintiff to institute this action was dueto the negotiations which he was carrying on with the Government. Itis true the plaintiff is not entitled in law to avoid the operation ofprescription on this basis, but we know as a fact that till a very latestage the plaintiff was actively led to expect a settlement by arbitration.The learned District Judge has consequently expressed strong doubtsregarding the propriety of the plea of prescription, “ especially in thecircumstances of this case, where the delay has been due to negotiationsbeing carried on between the plaintiff and the Government. ”
I find myself in agreement with the views expressed by the learnedtrial judge and am of the view that the circumstances of the case, althoughthey can ground no legal claim, may well have given rise to a moralobligation on the part of the government to reduce the amount of theplaintiff’s loss. I
I would give expression to these views by awarding the successfuldefendant no costs either here or in the Court below.
The plain tiff-appellant’s appeal is dismissed.
Tdamothkham, J.—I agree.
Appeal dismissed.