SANGARAPILLAI, Appellant, and PRASAD, COLLECTOR OF CUSTOMS, Respondent

120-NLR-NLR-V-45-SANGARAPILLAI-Appellant-and-PRASAD-COLLECTOR-OF-CUSTOMS-Respondent.pdf


Sangarapillai and Prasad, Collector of Customs.
'443
1944Present: Moseley S.P.J. and Wijeyewardene J.SANGABAPILLAI, Appellant, and PBASAD, COLLECT OBOE CUSTOMS, Bespondent.
254—D. G. Jaffna, 315.
Customs Ordinance {Cap. 185) section 146—Seizure of goods by Customs Officer—
Release by Collector of Customs on security—Notice of claim by owner—
Proper authority to be sued—Liability of Collector.
Where an action is instituted under section 146 of the Customs1Ordinance for declaration of title to goods, which were seized by aCustoms officer and which were released by the Collector of Customs-on security furnished by the owner, who had given notice of claimunder the section,—
Held, that the Attorney-General was the proper party to be suedin the action.
Semble, the statutory remedy provided by the section is the onlyremedy available to a subject whose goods have been seized as forefeitedunder the Ordinance.
A Head of Department is not liable for the tort of a subordinate,unless the act complained of was substantially the act of the Head himself.
T
HE plaintifi instituted this action under section 146 of the Customs-Ordinance against M. Prasad, Collector of Customs, Northern
Province, in respect of certain goods seized under the provisions of theCustoms Ordinance. The defendant, pleaded, inter alia, that the actionwas not maintainable against him and the learned District Judge upheld,the plea and entered decree dismissing the plaintiff's action with costs.Plaintiff appealed.
H. V. Perera, K.G. (with him J. E. M. Obeyesekere and T. Soma-sunderam), for the plaintiff, appellant.—This is an action for the recoveryof certain goods belonging to the plaintiff which – were originally seizedby one Mr. Tisseverasinghe on behalf of the defendant and which arenow being wrongfully detained by the defendant. The defendant is-the Collector of Customs, Northern Province, and Mr. Tisseverasingheis an Assistant Collector. The trial Judge has dismissed the whole caseon two preliminary issues of law holding—(1) that we have sued a person-
444
Sangarapillai and Prasad, Collector of Customs.
acting in his official capacity and, therefore, we should have sued theCrown, and (2) that the defendant, as .the Head of a Department, is notliable for any tortious act of a subordinate. He has misunderstoodthe legal position. The important point is that we want our goodsback, and the only person whom we should sue is the person who isactually in possession of them. The defendant is being sued not in hisofficial capacity, but for a tort committed by him in detaining thegoods. This is an action, not for damages, but for the restorationof goods. We have reserved our claim for damages as againstMr. Tisseverasinghe for a later action.
The defendant’s position is not different from that of any other wrong-doer. The Head of an executive Department can be sued providedhe has participated in or ratified and adopted the act complained ofRaleigh v. Ooschen1 and Rogers v. Rajendro Dutt et alz are in point. SingerSewing Machine Co. v. Bowes3, Muttupillai v. Bowes4, Sanford v. Warring3and Bainbridge v. The Postmaster-General* to which the trial Judgerefers have been misapplied in this case.
[ Wijeyewaedene J.—Is not this action one for mere declaration oftitle as against the Crown, the proper party to be sued being the Attorney-General? See Le Mesurier v. Attorney-General7 and the argument andjudgment in The Colombo Electric Tramways Co. v. The Attorney-General*.]
Even if it be regarded as such and not as an action for the recovery ofgoods the defendant can be sued. No special remedy such as by way ofpetition of right is available in Ceylon against the Crown. The presentaction is, therefore, maintainable. The whole case depends on a properinterpretation of Raleigh v. Goschen (supra). The civil irresponsibilityof the Crown for tortious acts would be unjust if its agents were notpersonally responsible for them; in such cases the Government is morallybound to indemnify its agent—Rogers v. Rajendro Dutt et al (supra).
R. R. Crosette-Thambiah, Acting Solicitor-General (with him T. S.Fernando, C.C ), for defendant, respondent.—Section 146 of the CustomsOrdinance (Cap. 185) provides the clue for the determination of this case.It is not in dispute that the seizure was made by the Assistant Collectorof Customs. The scheme of the Customs Ordinance is in this wise:forfeiture by operation of law simultaneously with the act of unlawfulimportation, followed by manual seizure, followed by “ condemnationof the goods (a term well known in Prize Law) i.e., the goods becomethe property of the Crown unless the claimant gives the requisite noticeand furnishes .the requisite security. Thereafter—if the requisite noticeand' security are given—section 146 operates to give the claimant astatutory right of action and also prescribes the form of the action. Thisis sometimes known as a statutory contract or a parliamentary contract.It is probably this .that Walter Pereira J. had in mind when he describedthis type of action as one “ as on a breach of contract ”—Muttupillai v.Bowes (ubi sup.). Counsel cited sections 104, 105, 106, 132, 123, 146, and154 of the Customs Ordinance. Once the plaintiff moved under, and
L. R. {1898) 1 Ch. 73.5{1896)2 N. L. R. 361.
{I860) 13 Moore’s Rep. 209.6L- R- (1906) 1 K. B. 178.
(1917) 4 C. W. R. 78.7(1901)5 N. L. R. 65.
* (1914) 17 N. L. R. 453.8(1913)16 N. L. R. 161.
WUEYEWAKDENE J.—Sangarapillai and Prasad, Collector of Customs. 446
invoked the aid of, section 146, it was obligatory on the defendant toact as he did. Malice is not alleged in the plaint and, in fact, was expresslydisclaimed. In the circumstances, this plaint does not disclose a cause ofaction against this defendant. If the security demanded by the defendantwas excessive, the plaintiff was not without legal remedy.
Raleigh v. Goschen (ubi sup.) is authority for the proposition that thehead of a Government Department is not liable for the independenttortious act of his subordinate. The bona fide performance of a statutoryduby cannot constitute a legal wrong. The defendant having doneno more than what the law requires of him, it cannot be said that headopted, or ratified the act of the Assistant Collector. Further, in aclaim for the recovery of goods in the possession of-the Crown the remedyin England is by way of petition of right. It has been held that wherein England the remedy is by way of petition of right, the correspondingremedy in Ceylon is by way of a suit against the Attorney-General—Buckland v. The King; The Colombo Electric Tramways Co. v. TheAttorney-General; Saibo t>. The Attorney-General. The present plaintdiscloses no cause of action against the present defendant.
J. E. M. Obeyesekere in reply.—The seizure in this case was madeunder section 132 of the Customs Ordinance. That section speaks ofgoods “ liable to forfeiture ”. The provisions of section 146 are, there-fore, not applicable in the present case.
Even if we may have sued .the Attorney-General on the basis of aquasi-con tract we have chosen the alternative remedy of an action intort the cause of action being the unlawful detention of property. Theaction has been prematurely dismissed; the remaining issues shouldhave been tried.
Cur. adv. vult.
July 26, 1944. Wueyewardene J.—
The plaintiff instituted this action against “ M. Prasad, Collector ofCustoms, Northern Province, ” in respect of certain goods seized underthe provisions of the Customs Ordinance. The defendant pleaded,inter alia, that the action was not maintainable against him on the factsset out in the plaint, and the District Judge held in his favour on thatplea and entered decree dismissing the plantiff’s action with costs.The plaintiff has appealed against, that decree.
The plaintiff sets out in paragraph 2 of the plain that “ the defendantis the Collector of Customs for the Northern Province ”, and then proceedsto make certain material allegations which may be summarised asfollows: —
Para 3—That Mr. E. B. Tisseverasinghe acting “ for and on behalf ofthe defendant wrongfully and or without any legal justification ”seized 62 bundles of beedies and a motor lorry in which thebeedies were taken.
Para 4—That customs duty had been duly paid.
Para 5—That the plaintiff gave a written notice “ under section 146of the Customs Ordinance ” of his intention to institute anaction in respect of the seized goods and offered to give securityas required by that section.
446 WIJEYEWARDENE J.—Sangarapillai and Prasad, Collector of Customs.
Para 6—That the lorry was released on the plaintiff entering into abond for a sum of Rs. 5,000.
Para 7—That the defendant offered to release the beedies on receiptof the following security: —
security in respect of beedies—Bs. 7,000;
security in respect of penalties which may be imposed under
section 127 of the Customs Ordinance—Rs. 21,000;
security in respect of costs of aetion—Rs. 2,000.
Para 8—“ The plaintiff pointed out that the item of security referred toat (b) of the preceding paragraph cannot be demanded as acondition precedent to the release of the beedies under section146 of the Customs Ordinance. The defendant has howeverunlawfully refused to release the said 62 bundles of beediesunless the said item of security is also furnished. ’'
The reliefs asked for in the plaint are—
that the beedies and lorry be declared not liable to seizure and
that they are Els property;
that the defendant be ordered to return unconditionally the-
beedies and “ in the event of failure to do so that he be con-demned to pay their value, namely, Rs. 7,000 ”;
(jii) .that the defendant be ordered to release the security given insrespect of the lorry.'
Clearly the plaintiff cannot, obtain the relief (iii) in this action. Thebond executed by him is in favour of His Majesty under section 105 ofthe Customs Ordinance, and the proper party to be sued in respect ofthat relief is the Attorney-General. (Civil Procedure Code 456.)
It is necessary to consider in greater detail the facts on which theplaintiff asks for reliefs (i) and (ii).
Even if Mr. Tisseverasinghe, who was an Assistant Collector of Customs,Northern Province, committed a tort in seizing the beedies and lorry,the defendant is, not liable, merely because he happened to be the Collectorof Customs, Northern Province. No Head of a Department is liable forthe tort of a subordinate unless the act complained of was substantiallythe act of the Head himself—Raleigh v. Goschen1. No cause of actionhas, therefore, accrued to the plaintiff as against the defendant on thefacts alleged in paragraph 3 of the plaint. Paragraph 4 of the plaintstates that the duty has been paid, and, of course, the burden of provingthat fact is on the plaintiff (section 144 of the Customs Ordinance).Paragraphs 5 and 6 refer to steps taken by him under section 146 of theOrdinance. Those paragraphs 4, 5 and 6 do not set out facts constitutinga cause of action against the defendant. We then come to paragraphs7 and 8 which show what the cause of action is. The cause of action isthe defendant’s refusal to release the beedies on receipt of security (a)and (c) mentioned in paragraph 7 and his insisting on the defendantgiving security (b) in addition. It may be noted here that no damagesare cl aimed against the defendant for the alleged wrongful detentionand the only claim is for a declaration of title to the goods, and an orderfor the recovery of the goods or their value.
1 X. S. (1893) 1 Ck. 73.
WUETEWABDENE J.—Sangarapillai and Prasad, Collector of Customs. 447
It is convenient at this stage to deal with an argument of Mr. Obeye-■sekera in reply to the Acting Solicitor-General. He argued that section146 which refers to goods seized as “ forfeited " did not apply to theseizure in question, as the seizure was made under section 132 whichrefers to goods “ liable to forfeiture ”. It is not necessary to considerthe nature of the distinction sought to be drawn by Mr. Obeyesekerebetween the two classes of goods, as his argument is based on the erro-neous assumption that there is some section in the Ordinance whichstates that goods for which Customs Duty is no.t paid are “ liable toforfeiture ”. There is no such section in the Ordinance. There is, infact, no section which states that goods shall be seized, if no Customs Dutyis paid* The Ordinance sets out in a number of sections (see sections29, 35 , 36, 39, 40, 49, 66, 67, 69 , 95) various matters which have to bedone from the time that the ship carrying the goods arrives within aleague of the port until the final delivery of the goods to the importer.The Ordinance further provides that the goods shall be forfeited for non-observance of any of these conditions. Then section 106 provides that
if any goods, packages, or parcels shall be landed, taken, or passed outof any ship, or out of any warehouse, not having been duly entered, thesame shall be forfeited ’J while section 123 provides that the “ means ofconveyance …. made use of in any way in the ….removal of any goods liable to forfeiture under this Ordinance shall beforfeited ”. A non-payment of Customs Duty must necessarily bepreceded or accompanied by the non-observance of some of these condi-tions. It is by declaring that the goods shall be forfeited for non-observance of the conditions laid down in the sections mentioned by methat the Ordinance declares in effect, that the goods as well as the con-veyance in which they are removed shall be forfeited, if there has been afailure to pay Customs Duty. Such goods and conveyance will be“ seized as forfeited ", and section 146 would, therefore, be applicableto such a seizure. Moreover the plaintiff’s position has been alwaysthat the seizure was governed by section 146 as shown by paragraphs5 and 6 of the plaint, the bond given for the release of the lorry, andparagraph 5 (e) of the petition of appeal which pleads that ‘ ‘ the stepscontemplated by section 146 of the Customs Ordinance having beenduly taken, the property has not been forfeited to the Crown ’ ’.
I shall now proceed to examine the position of the parties undersection 146. Under that section the beedies were ‘‘ to be deemed andtaken to be condemned ’’ and dealt with accordingly, unless the plaintiffgave written notice that he would enter a claim to the goods, and thathe was prepared ‘‘ to give security to prosecute such claim Thesection then required the Customs Officer to whom such notice was givento release the goods on receiving such security as “ he shall consider'sufficientIt will thus be seen that it was the action taken by the
plaintiff in giving notice and in expressing his willingness to give securitythat created the situation which rendered it necessary for the defendantto exercise his powers under section 146 and fix the amount of thesecurity. That was a power which the Legislature made it obligatoryfor him to exercise. Could it then be said that in exercising that powerhe had given a cause of action to the plaintiff against himself? It is not
448 W1JETEWABDENE J.—Sangatapillai and Prasad, Collector of Customs.
the case of the plaintiff that the defendant acted mala fide. The Ordi-nance has vested the defendant with absolute discretion as to the amountof security to be demanded. If the defendant has proved himself in-capable of exercising in a reasonable manner the unqualified discretiongiven to him by the Legislature, that does not. give the plaintiff a right tobring this action against the. defendant, whatever relief he may get insome other way.
The claim contemplated by section 146 in respect of goods released onsecurity is clearly a claim for declaration of title to goods and thedischarge of the relative bond.r
It was open to the plaintiff to give the necessary security and prosecutehis claim under section 146. He gave the security for the lorry but notfor the beedies. He would not, therefore, be able to prosecute his claimin respect of the beedies in the manner contemplated by section 146.Is he then entitled to obtain relief by adopting some otifier legal procedure?The general principle appears to be against such a view. Where a specialstatutory procedure is provided for recovering property from the Crownthe subject’s remedy in England by petition” of right is taken away{Laws of England (Hailsham) Vol. 9, para 1177).
In England the remedy has to be sought by a petition of right, wherethe subject wants to obtain restitution of goods in the possession of theGrown. In Feather v. the Queen, Cockbum C.J. said:—“ the only casesin which the petition of right is open to the subject are, where the land orgoods or money of a subject have found their way into the possession ofthe Crown, and the purpose of the petition is to obtain restitution, or, ifrestitution cannot be given, compensation in money, or where the claimarises out of a contract. "(See also the judgment of McCardie J. in
Buchland v. the King 1 2).
Our Courts have been enabled to give relief to an aggrieved subjectby the practice of the Crown waiving the right not to be sued for declara-tion of title and restitution of property in cases where the remedy bypetition of right was open to such a person in England. It was held inSanford v. Waring3 that land in the possession of the Governmentcould not be recovered in a suit against the servant of theCrown who is in temporary occupation of it as .tenant and thatthe only . way by which a subject could recover his land whichhe alleges to be in the wrongful possession of the Government "was by anaction against the Attorney-General. (See also Le Mesurier v. TheAttorney-General4' and The Colombo Electric Tramways Co. v. The Attorney-General5.)
The argument against the maintainability of the present action againstthe defendant may be expressed in a slightly different way as in thejudgment of Atkin L. J. in Jliackenzie-Kennedy v. Air Council6: —
“ It was held that the Lords Commissioners of the Admiralty couldnot be sued in tort, though they were named individually, where
1122 English Rep. 1191 at 1204.
2(1933) 148 Times Rep. 557 at page 561.
* (1896) 2 N. L. R. 361.
1901) 5 N. L. R. 65.
s (1913) 16 N. L. R. 161-
(1927) 2 K. B. 517.
WXJ7EYEWABDENE J.—Sangarapillai and Prasad, Collector of Customs. 449
they were described collectively by their official title in a case (Raleighv. Gosclien) where Homer J. came to the conclusion that they weresued in their official capacity. I think that perhaps it might be moreaccurate to distinguish between a suit against a person in his individualcapacity and in a representative capacity, for I cannot see that if youare in fact suing an individual on his personal liability it makes anydifference whether you describe him as an official or not. If, however,you sue him as representing some interest or assets other than his ownwhich you seek to bind by .the action, it becomes very relevant how youdescribe him, for it may be found that as a representative he is notliable at all. And this is clearly true of a representative of the Crownwho qs such cannot be sued in tort. It is, of course, equally clear thatindividual servants of the Crown who themselves commit torts cannotescape liability by pleading the commands expressed or implied of theCrown. But sued as individuals they expose their own assets aloneto liability in the event of judgment against them.”
In the present case the beedies have become the property of the Crown,and they are in charge of the defendant merely as the agent of the Crown,as the Crown must necessarily exercise its right of possession throughan agent. Thus, the defendant is sued in connection with goods vestedin the Crown and the discharge of a bond executed in favour of theCrown. He is, therefore, sued “ as representing some interest or assetsother than his own ". He is moreover described by reference to his officeas Collector of Customs. Viewed in that light, the action is not maintain-able against the defendant. It may be added that Mr. H. V. Pereraargued that this action had to be brought against the defendant and notagainst the Attorney-General as the relief demanded was based on thetortious act of wrongful detention of goods pleaded in paragraph 7 of theplaint. That argument appears to ignore the fact that the defendantwho, as shown above, is sued as a representative of the Crown and notin his individual capacity can plead the same immunity as the Crownitself.
For the reasons stated above, I think that the present action mustfail. The Attorney-General is the proper person, to be sued either in anaction under section 146 for declaration of title to goods released onsecurity or in an action falling outside section 146—if such an action isavailable—for declaration of title and restitution of goods condemnedunder that section.
I would, therefore, dismiss the appeal with costs.
Moseley S.P.J.—I agree.
Appeal dismissed.
S.A 93349 411/491