013-SLLR-SLLR-1987-2-PUNCHIHEWA-AND-TWO-OTHERS-v.-DAYASENA.pdf
CA
Saranelis v. Agnes Nona (Dheeraratne, J)
115
PUNCHIHEWA AND TWO OTHERS
v.DAYASENA
COURT OF APPEAL.
G. P. S. DE SILVA (President. C/A) AND ABEYWIRA. J.
D C. MATARA 280/SP.
C.A. 272/81 (F).
JANUARY 30. 1987.
National Lotteries Board-Title to winning sweep ticket-Maintainability-S. 16(4) ofFinance Act No. 11 of 1963-Forfeiture of prize money to fund of National LotteriesBoard.
The plaintiff (at the time a minor) bought a sweep ticket out of the money given to himby his employer the 2nd defendant for tea. At the draw of 6.3.1977 this ticket wasfound to have wop the first prize. When the results appeared in the newspapers on8.3.1977 the 1 st oefendant. another employee of the 2nd defendant, fraudulently tookthe sweep ticket from the plaintiff telling him he would deposit the money in the Bank asplaintiff was a minor and to wait for a week. After the lapse of a week the 1 st defendantsuggested to plaintiff to accept Rs. 50.000 but plaintiff refused and complained to thePolice. The 1 st, 2nd and 3rd defendants (the 2nd and 3rd defendants being brothers)pleaded that the ticket was purchased by them from the money of the vegetablebusiness carried on by them. The three defendants had gone to the Lotteries Board andclaimed the money on 10.3.1977 but the officer said the money could not be given toall three of them. The rules permitted the money being given to only one person. The2nd defendant then sued the 1st and 3rd defendants in D.C. Matara 1/1146 Z and thatsuit was settled on 17.10.77. By this settlement each of them would receive a 1/3share. Plaintiff filed his suit on 21.10.1977. The defendants pleaded the decision inCase No. 1/1146 Z in their favour and s. 16(4) of the Finance Act whereby on the lapse
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Sri Lanka Law Reports
[1987] 2 Sri L.R.
of 6 months from the date of the draw (6.3.1977) any prize money of a lottery "whichhas not been granted to the person entitled thereto by reason of the fact that suchperson is not to be found shall be forfeited and paid to the Fund of the Board". TheLotteries Board said they would abide by the decision of the Court and took no furtherpart in the suit. The District Judge gave judgment for plaintiff.
Held-
The plaintiff not having been a party to the earlier case between the defendantswas not bound by the decree in that suit
Section 16(4) of the Finance Act postulates a situation where the prize 'has notbeen granted to the person entitled thereto by reason of the fact that such person is notto be found". Here the prize had in fact been claimed on 10 3.1977. Further this wasan objection which only the National Lotteries Board could take
APPEAL from judgment of the District Court of Matara
M. S. A. Hassan with Miss Jayatilleke for defendants-appellants.
Ranjith Abeysunya with Ruwan Fernando for plaintiff-respondent.
Cur. adu vult
March 16, 1987
G. P. S. DE SILVA, J. (President, C/A)
The plaintiff instituted this action on 21st October 1977 against the1st, 2nd and 3rd defendants and the National Lotteries Board (4thdefendant) for a declaration that he was the winner of the 1 st prize(Rs. 100,000) on sweep ticket No. 57 H 00161 (P2) issued by theNational Lotteries Board. Admittedly, P2 was the sweep ticket thatwon the first prize and the draw was held on 6th March 1977.
According to the plaintiff, who was a minor at that time, he boughtP2 as well as another ticket with the money that was given to him forhis tea by his employer, the 2nd defendant. It was the case for theplaintiff that on the day when the results of the lottery appeared in thenewspapers (8th March 1977) the 1st defendant, who was also anemployee under the 2nd defendant, fraudulently took the sweep ticketP2 from his possession saying that he would deposit the money in theBank, as the plaintiff, being a minor, would not be able to obtain themoney. The 1 st defendant had further told him to wait for a week andthat he would get him the money. After the lapse of one week, the 1 stdefendant had suggested to him to accept a sum of Rs. 50,000 andthe balance to be taken by the 1 st defendant. He was not agreeable tothis suggestion and since the money was not forthcoming, he made acomplaint to the Police.
CA
Punchihewav Dayasena.tG. P. S De Silva, .J )
117
On the other hand, the case for the 1st, 2nd and 3rd defendants(2nd and 3rd defendants .are brothers) was that P2 was notpurchased by the plaintiff with his money but that P2 was purchasedby them with the money belonging to the vegetable business carriedon by the three defendants. The 1 st defendant m his evidence statedthat he along with the other two defendants went to the office of theNational Lotteries Board, presented P2 and claimed the prize money.The officer of the National Lotteries Board to whom the defendantshad presented P2 gave evidence and stated that P2 was presented tothe National Lotteries Board on 10th March 1977. This date isimportant in view of the legal objection taken by thedefendants-appellants to this action being maintained.
It is in evidence that the rules of the National Lotteries Boardpermitted the prize money to be given only to one person. On thepresentation of P2, the defendants-appellants were informed that themoney cannot be given to all three of them. Thereafter on 14th March1977 the 2nd defendant to the present action filed an action in theDistrict Court of Colombo (Case No. 1/1164 Z) against the 1st and3rd defendants to the present action and the National Lotteries Boardin respect of the prize won on P2. That action was settled on 17thOctober 1977 and, according to the terms of the settlement enteredtherein the present defendants-appellants were declared entitled to a1/3 share of the prize.
In the instant case, the District Judge held that the winning ticket P2was purchased by the plaintiff and not by the defendants-appellants. Inhis judgment he has carefully considered the evidence placed beforehim and has given cogent and valid reasons for accepting thetestimony of the plaintiff and for rejecting the story spoken to by the1 st defendant. It is unnecessary to repeat here tne reasons given byhim. It is right to add that Mr. Hassan, counsel for thedefendants-appellants, very properly in my view, did not seriouslychallenge the finding of fact arrived at by the District Judge.
Mr. Hassan, however, contended that in view of the provisions ofs. 16(4) of the Finance Act No. 11 of 1963 the plaintiff cannot haveand maintain this action. Section 16(4) reads thus:
"After the expiration of a period of six months reckoned from thedate of the drawing of lots for the prizes in any national lottery, anyprize in such lottery which has not been granted to the personentitled thereto by reason of the fact that such person is not to befound shall be forfeited and paid to the Fund of the Board:
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Sri Lanka Law Reports[1987] 2 Sri LR.
Provided, however, that where any action or proceedings arising outof any claim made in respect of such prize is pending before anycourt at the expiration of the period aforesaid, such forfeiture shallnot be made, and if in the final determination of that action orproceeding any person is declared to be entitled to such prize, theBoard shall grant such prize to that person, and if no person is sodeclared, such prize shall be forfeited and paid to the Fund of theBoard."
Mr. Hassan submitted that the plaintiff cannot maintain this actionbecause he has filed the action 'after the expiration of a period of 6months reckoned from the date of the drawing of the lots for the prizes
Counsel further contended that in the action filed in the
District Court of Colombo by the 2nd defendant to this action, thedefendants-appellants were declared entitled to a 1/3 share each ofthe prize and that in terms of the proviso to section 16(4) set outabove 'the Board shall grant such prize" to the persons declared. entitled to it in that action.
It seems to me that these submissions are not well-founded. Asurged by Mr.Abeysuriya for the plaintiff-respondent, section 16(4)postulates a situation where the prize 'has not been granted to theperson entitled thereto by reason of the fact that such person is not tobe found". It is manifest on the evidence called on behalf of thedefendants-appellants, that well before the expiry of the period of 6months from the date of the draw, namely on 10th March 1977, thedefendants-appellants had gone before the National Lotteries Board,presented P2 and claimed the prize. Therefore section 16(4) in myview has no application to the instant case. Further, it would appearthat it is not open to the defendants-appellants to take an objection;based on section 16(4). If at all, it is an objection that may beavailable, in an appropriate case, to the National Lotteries Board. Butin the present case the attorney-at-law appearing for the NationalLotteries Board informed the court at the commencement of the trialthat the Board is prepared to abide by the decision of the Court and istherefore not participating in the trial.
As regards the other contention that the Board is bound to grant theprize to the defendants-appellants who were declared entitled to it inthe action filed in the District Court of Colombo, I am afraid I see nomerit in it. That was an action to which the plaintiff was not a party andtherefore he is not bound by that decree. Moreover, the words 'the
CA.Punchihewa v. Dayasena (G. P. S. De Silva, J.)119
Board shall grant such prize" appear in the proviso to the enacting partof the section and the proviso must be considered in relation to theenacting part of the section. As stated earlier, the enacting part of.,section 16(4) has no application to the facts of the instant case. It.would therefore be fallacious to rely on the literal meaning of thewords in the proviso and argue that the Board is bound to grant theprize in terms of the decree entered in an action to which the plaintiffwas never a party.
I can see no basis for interfering with the findings of the DistrictJudge which are reasonable and are in accord with the evidence andthe probabilities of the case.
In the result, I affirm the judgment and decree and dismiss theappeal with costs fixed at Rs. 525.
ABEYWIRA. J. – I agree.
Appeal dismissed.