1944 Present: Moseley S.P.J. and Wijeyewardene J.

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

254-D. C. 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 tinder section 146 of the Customs Ordinance for declaration of title to goods, which were seized by a Customs officer and which were released, by the Collector of Customs on security furnished by the owner, who had given notice of claim tinder the section,-

Held, that the Attorney-General was the proper party to be sued in the action.

Semble, the statutory remedy provided by the section is the only remedy available to a subject whose goods have been seized as forefeited under 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.

THE plaintiff 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 the Customs Ordinance. The defendant. pleaded, inter alia, that "the action was 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.C. (with him J.. E. M. Obeyesekere and T. Somasunderam), for the plaintiff, appellant.-This is an action for the recovery of certain goods belonging to the plaintiff which were originally seized by one Mr. Tisseverasinghe on behalf of the defendant and which are now being wrongfully detained by the defendant. The defendant is the Collector of Customs, Northern Province, and Mr. Tisseverasinghe is an Assistant Collector. The trial Judge has dismissed the whole case on two preliminary issues of law holding-(1) that we have sued a person

acting in his official capacity and, therefore, we should have sued the Crown, and (2) that the defendant, as the Head of a Department, is not liable for any tortious act of a subordinate. He has misunderstood the legal position. The important point is that we want our goods back, and the only person whom we should sue is the person who is actually in possession of them. The defendant is being sued not in his official capacity, but for a tort committed by him in detaining the goods. This is an action, not for damages, but for the restoration, of goods. We have reserved our claim for damages as against Mr. 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 provided  he has participated in or ratified and adopted the act complained of Raleigh v. Goschen [1 L. R. (1898) 1 Ch. 73.] and Rogers v. Rajendro Dutt et al [2 (1860) 13 Moore's Rep. 209.] are in point. Singer Sewing Machine Co. v. Bowes [3 (1917) 4 C. W. R. 78.], Muttupillai v. Bowes [4 (1914) 17 N. L. R. 453.], Sanford v. Warring [5 (1896) 2 N.L.R. 361. ]and Bainbridge v. The Postmaster-General [6 L.R.(1906) 1 K.B.178.] to which the trial Judge- refers have been misapplied in this case.

[WIJEYEWARDENE J;-Is not this action one for mere declaration of title as against the Crown, the proper party to be sued being the Attorney-General? See Le Mesurier v. Attorney-General [7 (1901) 5 N.L.R. 65.] and the argument and judgment in The Colombo Electric Tramways Co. v. The Attorney-General [ 8 (1913) 16 N.L.R.161.] ]

Even if it be regarded as such and not as an action for the recovery of goods the defendant can be sued. No special remedy such as by way of petition of right is available in Ceylon against the Crown. The present action is, therefore, maintainable. The whole case depends on a proper interpretation of