Parmsoty V. Veenayagamoorthy Et Al.,

1943 Present: Moseley and Keuneman JJ.

PARMSOTY, Appellant, and VEENAYAGAMOORTHY et al.

262-D. C. Jaffna, 15,713.

Tort-Action for damages to car-Ownership of car-Defence of justification at Law-Negligence of defendant.

Where a person brings an action for damages caused to a car by the negligence of the defendant and for personal injuries caused to himself it would be sufficient in order to sustain his cause of action if he has only a limited interest in the car.

Where the defendant has discharged the onus laid upon him of proving that his act was justified by law, it is open to the plaintiff to prove that the defendant is not entitled to th6 protection of the law because the powers conferred upon him by statute were exercised negligently.

APPEAL from a judgment of the District Judge of Jaffna.

The facts appear from the headnote and the argument.

L. A. Rajapakse (with him C. T. Olegasegaram), for the plaintiff, appellant. The plaintiff's claim has been dismissed chiefly on the ground that the plaintiff was not the owner of the car in question. It is submitted that the evidence in the case sufficiently proves the ownership of the plaintiff. The fact that the car was registered in the name of the plaintiff's brother is not conclusive evidence of that brother's ownership- Sarasinghe v. Wijedasa[(1920) 8 C. W. R. 3.].

Even if the plaintiff was not the owner of the car he had a sufficient interest in it to enable him to bring this action Nathan's Law of Torts (1921 ed.), pp. 62-63.

N. Nadarajah, K.C. (with him H. W. Thambiah), for the defendants, respondents.-The defendants are public servants and were bona fide discharging a statutory duty when they stopped cars suspected of carrying contraband. They are peace officers within the meaning of section 2 of the Criminal Procedure Code, and were acting lawfully. See sections 23 and 32 (1) (b) of the Criminal Procedure Code ; sections 31 (1) (2), 71, 75, 27, 28, 31, 76 of Dangerous Drugs Ordinance (Cap. 172) ; sections 27, 28, 31, 71, 76 of Customs Ordinance (Cap. 185). No action will lie for doing that which the Legislature has authorised if it be done without negligence-David Geddis v. Proprietors of the Bann Reservoir2[ L. R. (1878) 3 A. C. 430 at 454-6], Union Government v. Sykes [S. A. L. R. (1913) A. D. 156 at P. 169.], Jayawardene v. William 4[ (1920) 21 N. L. R. 379 at P. 381.], Nathan's Law of Torts, p. 8, McKerron's Law of Delict (2nd ed.) 87, Costa v. Sinho[(1903) 7 N. L. R. 287.].

It cannot be said that the plaintiff was the owner of the car. He had merely a limited interest in it. See McKerron's Law of Delict (2nd ed.), 126.

L. A. Rajapakse in reply.-The defence of statutory authority must be expressly pleaded and strictly proved. The provisions of the law under which the defendants acted were not pleaded.

The exercise of statutory power is limited by an important consideration, namely, that it must be carried out without negligence-McKerron's Law of Delict, pp. 88-89. In the present case there was definite proof and finding of negligence. The practice of stopping motor vehicles in the manner adopted in this case has been condemned-Ossen v. Excise Inspector Ponniah[(1932) 34 N. L. R. 50.], Excise Inspector, Elephant Pass v. Regunathapillai[ (1933) 14 C. L. Rec. 123.].

The wrong of trespass consists in the unlawful disturbance of another person's possession, and is essentially a wrong to possession and not to ownership-McKerron, pp. 214, 126.

Cur. adv. vult.

July 6, 1943. MOSELEY J.-

The respondents to this appeal are respectively the Udaiyar of Pandaiterrippu and the Kirama Vidhane of Mathakal. It is not disputed that on September 22, 1939, they were in receipt of information of the arrival of a ship with " contraband ". In order to intercept cars by means of which they suspected the contraband would be transported and, if necessary, to arrest persons concerned in the

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