THE QUEEN v. V. P. DAVID PERERA

133-NLR-NLR-V-66-THE-QUEEN-v.-V.-P.-DAVID-PERERA.pdf


BASNAYAKE, O.J.—The Queen v. David Per era
553
[In the Court of Criminal Appeal]
1962 Present : Basnayake, C.J. (President), Abeyesundere, J., andSilva, J.THE QUEEN v. V. P. DAVID PERERAAppeal No. 9 of 1962, with Application No. 9S. C. 23—M. G. Kandy, 18,359
Trial before Supreme Court—Charge of possessing or using a forged or counterfeitcurrency note—Burden of proof—Evidence—Effect of admission of irrelevantevidence—Limits within which the Judge may ask questions from a witness—Penal Code, ss. 47SB, 47SC—Evidence Ordinance, s. 165.
In a prosecution for possession or use of a forged or counterfeit currencynote the burden is on the prosecutor to prove that the accused knew orhad reason to believe that the currency note referred to in the charge wasforged or counterfeit.
Although no objection is taken at the trial to the admission of irrelevantovidence, a verdict founded on such evidence is bad.
Assuming that it is open to a Judge in a trial by jury to employ the provisionsof section 165 of the Evidence Ordinance to put questions to a witness, then,if he asks questions about any facts which are irrelevant, it is incumbent onhim to draw the attention of the jury to those facts and direct them that theymust not base their verdict on those facts elicited by him which are irrelevant.A Judge acting under section 165 should be wary in questioning witnesses underthe powers conferred thereby, especially when the witness is an accused persongiving evidence on his own behalf.
A Judge is not entitled to put leading questions, the answers to which arecalculated to prejudice the accused. Further, he must not ask questions insuch manner or in such great number as to encroach upon the functions of aCounsel who appears in the case.
Appeal against a conviction in a trial before the Supreme Court.
P. P. Wettesinghe (Assigned), for Accused-Appellant.
V. T. Thamotheram, Senior Crown Counsel, for Attorney-General.
July 24, 1962. Basnayake, C.J.—
The accused-appellant has been convicted on an indictment containingthe following charges :—
“1. That on or about the 9th day of February 1959 at Dodanwelain the division of Kandy, within the jurisdiction of this court, you didhave in your possession a forged or counterfeit currency note, to wit, a
lxvi—24
2R 4001—1,855 (2/66)
554
BASNAYAKE, G.J.—The Queen v. David Perera
Rs. 100 currency note bearing Serial No. V/1318748 knowing orhaving reason to believe the same to be forged or counterfeit andintending to use the same as genuine or that it may be used as genuineand that you have thereby committed an offence punishable undersection 478 C of the Penal Code as amended by Ordinance 19 of 1941.
“ 2. That at the time and place aforesaid and in the course of thesame transaction you did use as genuine the said forged or counterfeitcurrency note by tendering the same to one D. M. Dhanapala, knowingor having reason to believe the same to be forged or counterfeit andthat you have thereby committed an offence punishable under section478B as amended by Ordinance 19 of 1941.
“ 3. That on or about the 11th day of February 1959 at Nattaran-potha in the division of Kandy, within the jurisdiction of this court,you did have in your possession a forged or counterfeit currency note,to wit, a Rs. 100 currency note bearing Serial No. V/13-18748 knowingor having reason to believe the same to be forged or counterfeit andintending to use the same as genuine or that it may be used as genuineand that you have thereby committed an offence punishable undersection 478C of the Penal Code as amended by Ordinance 19 of 1941.”
The burden was on the prosecution tc prove that the appellant knew orhad reason to believe that the note referred to in each of the chargesagainst him was forged or counterfeit. The prosecution relied on thenotes themselves to discharge that burden. Evidence, that the accusedappellant’s father-in-law had been charged with the forgery of one-rupeenotes and the possession of forged one-hundred rupee notes, was alsogiven. The Crown has not been able to satisfy us that that evidence isrelevant to the charges against the appellant. Although no objectionwas taken at the trial to the admission of that evidence, a verdictfounded on irrelevant evidence (Lion Yam Hong & Co. v. LamChoon <Sc Co.)1 is bad.
The accused gave evidence and denied that he knew or had reason tobelieve that the notes were forged. He said that he received them fromhis father-in-law for the purpose of building a house and that as theamount was insufficient for that purpose he hoped to increase it bygambling wuth the money. He made no secret of the fact that he hadthree one-hundred rupee notes. When a creditor of his demanded hisdebt the accused said in the hearing of the witness Herath MudiyanselageUkku Banda Herath, “ Not that I do not have money, I have got threehundred rupee notes and I have to change them and give you ”, and heshowed the notes in support of his statement. One of those three notes
1 (1928) A. /. B. (P. C.) 127.
BASNAYAKE, C.J.—The Queen v. David Perera
555
was a note lie had received as part of his salary. Herath took them intohis hands and examined the notes. He says he did so because of aremark of his father, “ How can this man have so much money, thesemust be forged notes ”. The accused permitted not only Herath but hisfather also to examine the notes. They did not think they were forged.In fact Herath says they thought they were genuine. Even the post-master who detected the forgery says that if the forged note was handedwith a genuine note he would not have detected it. The prosecutionstates nothing about the third note which the accused-appellant says heused for the purchase of a petromax lamp in Kandy town.
One of the forged notes passed detection by the witnesses Dhanapala,Heen Banda’s wife, and Heen Banda himself who took it to the PostOffice for the purpose of depositing it in the Savings Bank three daysafter he had received it. He was all along under the impression that thenote was genuine. In fact that note was first given to Dhanapala inpayment of his ■winnings at gambling and as he lost money to HeenBanda, Dhanapala tendered the note to him and obtained the difference.Heen Banda says he had seen hundred rupee notes before and that he hadhundred rupee notes in his house on previous occasions and that henoticed no difference between those notes he had seen and handled beforeand the note he took to the Post Office. At the Post Office the forgerywas detected. Though Heen Banda was unable to identify the n jte atthe trial, the postmaster’s evidence establishes that one of the forgednotes was the note Heen Banda brought. The prosecution evidence doesnot establish that the accused knew or had reason to believe that thenotes were forged or counterfeit. On the other hand the evidence of someof the prosecution witnesses negatives guilty knowledge and indicatesinnocence on the part of the accused-appellant because the notes wereaccepted by so many as genuine and the accused was ever ready to letothers examine them. The absence of proof of this important elementaffects the verdict as it has no evidence to support it. We thereforequash the conviction and direct that a verdict of acquittal be entered.
Learned counsel for the appellant has drawn our attention to the factthat the learned trial Judge has asked the accused a very large number ofquestions which, he submits, has prejudiced him. Many of them, hecomplains, are leading questions. He has drawn our attention inparticular to the following question which he submits was unfair as noone was able to state the difference between PI and P2 :—
*' 706. Q : P2 is the note which was found by the police in yourpurse ?
A: Yes.”
556
BASNAYAXK, C-J.—The Queen v. David Perera
The learned Judge directed the jury that the answer was an admissionand that they were entitled to act on it. It was demonstrated duringthe trial that by looking at the notes one could not say which was PIand which was P2 as they looked alike, bore the same number and thesame signatures. There is no record that the note was shown to himas in the case of PI in regard to which he was questioned earlier. Buteven if it had been shown to him there was no distinguishing mark on thenote by which he could have said that, it was the note the police foundin his purse. It merely goes to illustrate what little value can be attachedto an answer given to a leading question on a very important matter.
In view of the first Proviso to section 165 of the Evidence Ordinancethat the judgment must be based upon facts declared by this Ordinanceto be relevant and duly proved, it seems doubtful whether the powerreferred to by section 165 is meant to be exercised in trials by jury andif so whether facts which are not relevant can be elicited by the Judgeunder the power conferred by the section. If it is open to a Judge in atrial by jury to act under that section and ask questions aboutany facts which are irrelevant, then in any case in which he doesso, he should draw the attention of the jury to those facts anddirect them that they must not base their verdict on those facts elicitedby him which are irrelevant. A Judge acting under section 1.65 shouldbe wary in questioning witnesses under the powers conferred thereby,especially when the witness is an accused person giving evidence on hisown behalf. The jury are apt to attach greater importance to questionsemanating from the Judge than to those emanating from counsel oneither side. In the formulation of those questions the Judge should takecare that he does not unwittingly give the jury the impression that hedoes not believe the accused. If he does so, it is likely that they will beinfluenced to the prejudice of the accused by what appears to them to behis view. In other jurisdictions of the Commonwealth where the limitswithin which a Judge may ask questions from those who enter the witness-box are not regulated by statute they have been laid down by judicialpronouncement. Those judicial dicta serve as a usual guide in theapplication of our section, and some of the more important of thosepronouncements are set out below in extenso as the reports in which theyoccur are not readily available in most of our provincial libraries. In theSouth African ease of Rex. v. Laubscher1 Innes C.J. observed :
“ The second irregularity suggested was that the Judge put leadingquestions favourable to the Crown case, the answers to such questionsbeing calculated to prejudice the accused. That might have been aserious allegation had the questions referred to been particularised.
1 1926 A. D. 276 at 281.
BASNAYAKE, C.J.—The Queen v. David Perera
557
Because though a Judge has a certain latitude as for instance in puttingleading questions of an explanatory or supplementary nature—Hodgson v. Rex (18 Cr. Ap. Reports, p. 5)—he is certainly not entitledto put leading questions, the answers to which are calculated toprejudice the prisoner.”
In the English case of Yuill v. Yuill1 Greene M.R. stated—
“ The other argument was to the effect that the trial was unsatis-factory owing to the fact that the judge took an undue part in theexamination of witnesses. It was said that the judge put many morequestions to witnesses than all the counsel in the case put togetherand that he in effect took the case out of counsel’s hands to the em-barrassment of counsel and the prejudice of his case. The part whicha judge ought to take while witnesses are giving their evidence must, ofcourse, rest with his discretion. But with the utmost respect to thejudge it was, I think, unfortunate that he took so large a part as he did.I wish to say at once that having read the many pages of the trans-cript over which the judge’s questions extend ho the exclusion of counsel*often at the most critical points of the examination or cross-examination*I can find no trace whatever of any tendency to take sides or to-press a witness in any way which could be considered undesirable. Itis quite plain to me that the judge was endeavouring to ascertain thetruth in the manner which at the moment seemed to him most con-venient. But he must, I think, have lost sight of the inconvenienceswhich are apt to flow from an undue participation by the judge in theexamination of witnesses. It is, of course, always proper for a judge—and it is his duty—to put questions with a view to elucidating anobscure answer or when he thinks that the witness has misunderstood aquestion put to him by counsel. If there are matters which the judgeconsiders have not been sufficiently cleared up or questions which hehimself thinks ought to have been put, he can, of course, take steps tosee that deficiency is made good. It is, I think, generally more con-venient to do this when counsel has finished his questions or is passingto a new subject. It must always be borne in mind that the judge doesnot know what is in counsel’s brief and has not the same facilities ascounsel for an effective examination-in-chief or cross-examination.In cross-examination, for instance, experienced counsel will see just asclearly as the judge that, for example, a particular question will be acrucial one. But it is for counsel to decide at what stage he will putthe question, and the whole strength of the cross-examination may bedestroyed if the judge, in his desire to get to what "eems to him to lie
1 (1945) 1 AU E. R. 183.
2*—B 4091 (2/65)
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BASNAYAKE, G.J.—The Queen v. David Perera
the crucial point, himself intervenes and prematurely puts the questionhimself. I think it desirable to throw out these suggestions in casethey may be found helpful in the future
" A judge who observes the demeanour of the witnesses whilethey are being examined by counsel has from his detached positiona much more favourable opportunity of forming a just apprecia-tion than a judge who himself conducts the examination. If hetakes the latter course he, so to speak, descends into the arena andis liable to have his vision clouded by the dust of the conflict.Unconsciously he deprives himBelf of the advantage of calm anddispassionate observation. ”
Finally in the case of Jones v. National Coal Board1 Denning L.J.endorsed what Greene M.R. had said in YuilVs case and added—
“ The judge’s part in all this is to hearken to the evidence, onlyhimself asking questions of witnesses when it is necessary to clear upany point that has been overlooked or left obscure ; to see that theadvocates behave themselves seemly and keep to the rules laid downby law ; to exclude irrelevancies and discourage repetition, to makesure by wise intervention that he follows the points that the advocatesare making and can assess their worth ; and at the end to make up hismind where the truth lies. If he goes beyond this, he drops the mantleof a judge and assumes the robe of an advocate ; and the change doesnot become him well.”
Judges would do well to bear in mind the words in the passages quotedabove and endeavour to abide by the counsel contained therein. In theinstant case it is difficult to escape the conclusion that the fact that therewere limits to the power of a Judge to ask questions had escaped theattention of the learned Judge. Out of a total of 713 questions appear-ing in the transcript 293 are attributed to him. Not all those ques-tions appear to be questions designed " to discover or to obtain properproof of relevant facts Some of them were questions asked from theaccused-appellant who gave evidence on his own behalf on mattersof record in another proceeding against the accused-appellant’s father-in-law without due proof of those matters. The accused was requiredto furnish an explanation for his conduct in not obtaining from hisfather-in-law the details about the cases against him for forgery orpossession of counterfeit currency notes. The line of questioning followedby the learned Judge tended to show the accused-appellant in anunfavourable light and it is not unlikely that the jury inferred, from thefact that his father-in-law was involved in cases of forgery and possessionof forged or counterfeit currency notes that the accused knew or had reasonto believe that the notes which were in his possession were forged orcounterfeit.
Accused acquitted.
1 (1957) 2 W. L. R. 760.
H. N. G. FERNANDO, J.—Baatian v. Benedict
559
1961 Present: H. N. G. Fernando, J., and L. B. de Silva, J.S. M. BASTIAN, Appellant, and S. M. BENEDICT, Respondent8. C. 152/1959—D. C. Negombo, 18849
Contract—Funds sent by a Ceylonese from abroad to Ceylon in contravention of ExchangeControl laws—Use of them by sender’s agent in Ceylon to conduct business—Claims of principal and agent against each other resulting from the businesstransactions—Objections to them on ground of illegality-—Validity.
The defendant was a Ceylonese who had lived in Malaya for sometime.When he was in Malaya he executed a Power of Attorney in favour of theplaintiff in order to enable the plaintiff to invest his moneys which he proposedto send from Malaya and otherwise to conduct business in Ceylon. Thereafterhe successfully transferred his secret assets to Ceylon by the device of handingmoney to persons in Malaya who arranged for premium payments to be madeto the plaintiff in Ceylon but for the defendant’s credit.
After the defendant returned to Ceylon in 1953, the plaintiff jsued him fora certain sum of money as due to him as salary and commission and expensesarising from the agency. The defendant claimed a certain sum in reconvention.The trial Judge declined to enter a decree upon either the plaintiff’s claim orthe defendant’s claim in reconvention. He held that the transactions betweenthe parties were contrary to public policy, being tainted by illegality on theground that the moneys which the plaintiff received in Ceylon on the defend-ant’s account were brought into Ceylon by illegal means.
Held, that the finding of the trial Judge in regard to the question of illegalitywas wrong. “ Assuming that the plaintiff would not have acted as the agentof the defendant and thereby become entitled to claim |remuneration andexpenses but for the fact that the defendant’s money came to iCeylon by meanswhich contravened Ceylon’s Exchange Control laws, it was not necessaryfor the plaintiff to found his claim on the illegality if any. The agency andthe right to earn remuneration were proved without any need to rely uponany facts which constituted a contravention of those laws. Vice versa thedefendant’s counter-claim was proved, not by any reliance on the factof any contravention of those laws, but rather by the plaintiff’s own clearadmissions in the correspondence.”
.A.PPEAL from a judgment of the District Court, Negombo.
H. W. Jayewardene, Q.G., with G. Ranganathan, L. G. Seneviratne andMiss 8. Wickremesinghe, for Defendant-Appellant.
S. Barr Kumarakulasinghe, with G. T. Sameraurickreme, V.J.Martynand K. Ratnesar, for the Plaintiff-Respondent.
Cur. adv. vult.
November 10, 1961. H. N. G. Febnando, J.—
The defendant in this action is a Ceylonese who had apparently livedin Malaya for sometime being employed there in the Public WorksDepartment. The plaintiff who described himself as a businessman isthe defendant’s brother-in-law, being married to a sister of thedefendant.
560
IT. 1ST. G. FERNANDO, J.—Bastian v. Benedict
In Hay 1950 the defendant wrote to the plaintiff {P3) that he intendedto send some money to Ceylon “ so that I can quit this country (Malaya)at any moment ” and requested the plaintiff to look for a house for himin Jaffna or Colombo stating that he could spare about Rs. 30,000 forthe purpose. A while later in P5 of July 1950 the defendant informedthe plaintiff that he would try to send some money from Malaya throughChettys who apparently would pay rupees in Ceylon in exchange forfunds in Malaya, which they could thereupon remit to India. In orderto enable the plaintiff to invest the°e moneys in Ceylon and otherwiseto conduct business in Ceylon, the defendant executed a Power of Attor-ney in favour of the plaintiff. Thereafter several letters which showthat the defendant successfully transferred his secret assets to Ceylonby the device of handing money to persons in Malaya who arrangedfor premium payments to be made to the plaintiff in Ceylon but forthe defendant’s credit. According to the judgment in this case it wascommon ground between the parties that in the course of about threeyears the defendant had collected about three lakhs of rupees in Malayaand was able to have corresponding payments made in Ceylon to theplaintiff. The letters P41, P45, P47 and others written by the defendantto the plaintiff indicate that the defendant’s anticipation in 1950 that itmay be necessary for him to return to Ceylon “ at any moment” wasdue to the fact that the Malayan Police were investigating into hisaffairs there and trying to trace his Bank balances and remittances. Itis scarcely necessary to read between the lines of these letters in orderto understand how the defendant was able to amass so much money inso little time. In one of these letters dated 21st July 1951 he says :
“ My promotion is a great disadvantage to me. Before I was incharge of a District, now in charge of State. Before I was in chargeof overseers and now in charge of T. A. s. Income is nothing butI hope to organise and turn to be a fruitful one as at Klang in anotheryear’s time.”
In regard also to the money which was to be accumulated in Ceylonthe defendant was careful to instruct the plaintiff not to disclose“ the collections in Ceylon ” to the local tax authorities and to pretendinstead that the money represented accumulations in Ceylon. Thedefendant ultimately returned to Ceylon in 1953 and at that stage theparties apparently fell out. This action was the consequence of theirdisagreement.
The plaintiff sued the defendant on the basis that he was entitled toa salary and commission and to expenses in a total sum of about Rs. 38,000,but stating that he owed the defendant a sum of Rs. 18,000 which hadbeen taken from the defendant’s moneys and utilised in the purchaseof a house for the plaintiff. This amount was deducted in the plaintfrom the plaintiff’s claims which became reduced to a sum of aboutRs. 19,000. The defendant denied the liability and further counter-claimed a sum of about Rs. 23,000 as due to him on other transactions.In addition the defendant claimed that the plaintiff had purchased ahouse at Negombo with the defendant’s money and that the purchase
H. N. G-. FERNANDO, J.—Bastian v. Benedict
561
was made on behalf of the defendant. On this ground the defendantclaimed either a transfer of the property into his name or in the alterna-tive a payment to him of Rs. 32,500. With regard to the plaintiff’sclaim for salary and commission the learned District Judge held on therelevant issues that a sum of Rs. 16,702 37 is due from the defendantto the plaintiff under these heads. As for the defendant’s counter-claimfor the sum of Rs. 23,000 odd alleged to be due to him on the accounts,the finding of the trial Judge was that the accounts were settled in orabout July 1953 and that with one exception nothing is due from theplaintiff to the defendant. Apart from the question of prescriptionand the further interesting question of law which latter led the learnedDistrict Judge to reject the plaintiff’s claim for the said amount ofRs. 16,000, I see no reason to interfere with the findings of fact to whichI have just referred.
In December 1950 the plaintiff wrote D 16 to the defendant statingthat he had bought some property in Negombo for Rs. 25,000. Hesaid then that he had bought it in his name because he would thus beable to get a loan on the property from a Bank. It is quite clear fromthis letter that the sum of Rs. 25,000 for the purchase price was takenby the plaintiff from the defendant’s funds in his hands and indeed thatfact was admitted both in the plaint and in the plaintiff’s evidence.He said in the letter that the rent for the house was Rs. 65 and thatthe money would be credited to the defendant’s account and furtherthat if the defendant desired he would have the property written inhis name. Again after the defendant had by P 17 disapproved of thepurchase in the plaintiff’s name the defendant by D 17 of 4th January1951 agreed to transfer the deed to the defendant. In fact the incomefrom this house in Negombo, No. 2 Mudalivar’s Road, was regularlycredited to the defendant’s account in the books which the plaintiffmaintained. Quite clearly the purchase was made by the plaintiffout of the defendant’s money and the plaintiff was a trustee in termsof section 84 of the Trusts Ordinance and he undoubtedly held theproperty in trust for the defendant. But according to the uncontradictedoral evidence of the defendant which the learned District Judge hadaccepted the matter of the Rs. 25,000 taken by the plaintiff for the pur-chase of the Mudaliyar’s Road property was considered in July 1953when the parties went into the accounts. According to this evidencethe plaintiff had then stated that he wished to retain the house forhimself and the defendant had agreed to this provided the Rs. 25,000was paid back before the end of November 1953. This agreement wasreduced to writing in the document D 22 dated 19th July 1953 by whichthe plaintiff and his wife signed a promissory note in the following terms :“… .to repay the money of Rs. 25,000 to Mr. S. M. Bastian
within four months time failing which we promise to transfer thepremises No. 2 Mudaliyar’s Road in favour of Mr. S. M. Bastian.I am transferring my premises No. 153 Kudapaduwa Negombo infavour of Mr. S. M. Bastian for Rs. 7,000. If we are not payinghim the amount we are not mortgaging.”
562
H. N. G-. FERNANDO, J.—Bastion v. Benedict
The learned Judge states that the Kudapaduwa property referred toin D22 was transferred to the defendant in terms of D22 and althoughno deed of transfer was produced at the trial it has not been representedto us at the argument of the appeal that there had in fact been no suchtransfer. Indeed counsel for the plaintiff conceded that if the defendant’sclaim to a transfer of the house in Mudaliyar’s Road is to succeed thereshould be a re-transfer to the plaintiff of the Kudapaduwa house. Thelearned District Judge after consideration of the defendant’s attitudeto the matter of the Negombo house as disclosed in many of his lettersformed the view that soon after the purchase of that house the defendanthad led the plaintiff to believe that he would not insist on a re-transferbut would be satisfied if the plaintiff repaid to him the money utilisedfor the purpose. I do not propose to question the finding in regard tothis for I am in agreement with the further finding of the learned Judgethat the agreement evinced by D22 was a compromise of the rightsif any which the defendant may have had on the basis of a trust; or inother words that in lieu of the former rights which the defendant wouldhave had as a beneficiary under the trust he accepted the promisescontained in D22 and cannot now seek to enforce the trust. I agreealso with the learned District Judge that in so far as D22 contains apromise to re-transfer the property it is not enforceable for want of notarialexecution.
The promise in D22 which the learned District Judge held to have beenaccepted by the defendant in lieu of his equitable right to ask for are-transfer of the Negombo house was one to pay Rs. 25,000 within fourmonths, that is to say before the middle of November 1953. In the letterwritten by the plaintiff on 25th November 1953(D34) the plaintiff
sets out his claims against the defendant amounting to a total sum ofRs. 16,635. He then refers to the transfer of the Kudapaduwa propertyof the value of Rs. 7,000 on which account his liability on D22 becamereduced to Rs. 18,000 and thereafter proceeds to reduce from Rs. 18,000the sum of Rs. 16,635 claimed by him, on which basis the net balancedue would be Rs. 1,365. Stating further that another sum of Rs. 4,000is due to the defendant on the Pawn Shop account he enclosed a chequefor Rs. 5,365 and asked for the return of D22. This cheque the defend-ant returned to the plaintiff sometime later. If then the plaintiff’sclaim for Rs. 16,635 was a proper one he did tender the net balancedue on D22, although strictly speaking his tender was about one weeklate. I would pay no heed to this slight delay, because the defendant’srefusal to accept the cheque was in the circumstances referable not tothe delay but to his disagreement with the plaintiff’s claim that Rs. 16,635was due to him. As it turns out the latter amount corresponds verynearly with the sums which according to the finding of the trial Judgeremains due as salary, commission and expenses from the defendant tothe plaintiff, namely, Rs. 16,702‘37. Having regard to that finding thetender by the plaintiff of a sum of Rs. 1,365 being the net balance due
H. N. G. FERNANDO, J.—Bastian v. Benedict
56S
on D22, if it had been accepted by the defendant, would have fully liquiddated the liability on D22. In the circumstances the most that thedefendant can now demand upon D22 is a sum of Rs. 1,297 63.
The ground upon which the learned District Judge declined to enter adecree upon either the plaintiff’s claim or the defendant’s claim in recon-vention was, briefly stated, his findings on issues 34 to 37 that the trans-actions between the parties were contrary to public policy, beingtainted by illegality on the ground that the moneys which the plaintiffreceived in Ceylon on the defendant’s account were brought into Ceylonby illegal means. Since the balance that has to be struck in respectof the two competing claims is comparatively small I do not propose tostate at length my reasons for the view that the finding of the learnedJudge in regard to this question of illegality was wrong. The matter isdealt with admirably in the judgment of the English Court of Appealin Botvmakers, Ltd. v. Barnet Instruments Ltd.} from which it is necessaryto cite only a few dicta :—
“ ‘ The objection that a contract is immoral or illegal as betweenplaintiff and defendant, sounds at all times very ill in the mouthof the defendant. .. No court will lend its aid to a man who
founds his cause of action upon an immoral or an illegal act ’ {perLord Mansfield in Holman v. Johnson, 1775)
“ Prima facie a man is entitled to his own property and it is not ageneral principle of our law (as was suggested) that when one man’sgoods have got into another’s possession in consequence of some unlaw-ful dealings between them, the true owner can never be allowed torecover those goods by an action.”
“ In our opinion a man’s right to possess his own chattels will as ageneral rule be enforced … even though it may appear either
from the pleadings, or in the course of the trial, that the chattels inquestion came into the defendant’s possession by reason of an illegalcontract between himself and the plaintiff, provided that the plaintiffdoes not seek, and is not forced, either to found his claim on the illegalcontract, or to plead its illegality in order to support his claim.”
Asstiming that the plaintiff would not have acted as the agent of thedefendant and thereby become entitled to claim remuneration and expensesbut for the fact that the defendant’s money came to Ceylon by meanswhich contravened Ceylon’s Exchange Control laws, it was not necessaryfor the plaintiff to found his claim on the illegality if any. The agencyand the right to earn remuneration were proved without any need to-rely upon any facts which constituted a contravention of those laws.Vice versa the defendant’s counter-claim that his moneys had beenutilised for the purpose of the Negombo house was proved, not by anyreliance on the fact of any contravention of those laws, but rather bythe plaintiff’s own clear admissions in the correspondence.
1 {1944) 2 A. E. R. 579.
564 H. N. G. FERNANDO, J.—Ceylon Motor Transit Co. Ltd. v. David
There remains only the question whet! er the plaintiff’s claim to a sumof Rs. 16,000 odd was prescribed. I see no reason to question the find-ing of fact of the trial Judge that tbe plaintiff was prevented by the deceitand fraud of the defendant from filing his action in time, and with theconclusion that on this ground the plaintiff’s claim was not prescribed.
In the result the decree dismissing the action and the claim in recon-vention is set aside. "Decree will be entered in favour of the defendantfor the sum of Rs. 1,297/63. Having regard to all the circumstancesof the case, particularly the exaggerated claim made by the plaintiff,the plaintiff will pay to the defendant costs in respect of the proceedingsin the lower court as in an action for a sum of Rs. 1,700. But theplaintiff will be entitled to the costs of appeal as in the same class.
L. B. de Selva, J.—I agree.
Decree varied..