Wijesuriya, H.E. V. Attorney General

[IN THE PRIVY COUNCIL]

1950 Present: Lord Simonds, Lord MacDermott, Lord Reid
and Sir John Beaumont

H. E. WIJESURIYA, Appellant, and ATTORNEY-GENERAL,
Respondent

Privy Council Appeal No. 75 of 1947

S. C. 205-D. C. Colombo, 15,380.

Principal and agent-Agent acting in excess of authority-Plea of ostensible authority -Clear proof necessary-Oral agreement with Crown regarding permit to tap and take produce of rubber trees on Crown land-Is it in respect of a " lease " or a " licence " ?-Applicability of regulation 2 of Land Sales Regulations to such agreement-Is such agreement valid though oral ?-Prevention of Frauds Ordinance, sections 2 and 17.

The Land Commissioner wrote a letter to the Government Agent, Uva. giving him authority to issue a permit to the plaintiff to take the produce of the rubber trees on certain Crown land. The letter authorized the permit to be issued only after the Crown took possession of the land from one S. It was alleged by the plaintiff that on the 4th March, 1943, an oral agreement was entered into between the Assistant Government Agent and the plaintiff whereby it was agreed that the plaintiff should have the right to tap and take the produce of the rubber trees on the Crown land for a period of four years and two and a half months from the 15th March, 1943. The alleged agreement contravened the instructions of the Land Commissioner to take possession of the land on behalf of the Crown and thereafter issue a permit to the plaintiff.

In an action brought to recover damages from the Crown for failure to fulfil the alleged agreement-

Held, (i) that, assuming the agreement to have been made as alleged, it was unauthorized by the Crown and that on this ground alone the action must fail. The instructions given by the Land Commissioner in his letter were clear and were inconsistent with either a permit being issued before the Crown resumed possession of the land or an unconditional agreement being made to grant a permit before that event. The Assistant Government Agent therefore acted in excess of (if not in defiance of) the instructions he had received.

(ii) that if the plaintiff wrongly assumed that the instructions given by the Land Commissioner to his subordinates went further than they did, he acted at his peril.

(iii) that if the plaintiff relied on ostensible authority, evidence of it should have been presented with the particularity which such a plea, always a difficult one to establish, required.

(iv) that the alleged agreement was in respect of a permit which was not a lease but a licence and was therefore not governed by regulation 2 of the Land Sales Regulations.

(v) that the alleged agreement, being oral and not in writing notarially attested, was not " of force or avail in law " by virtue of section 2 of the Prevention of Frauds Ordinance. Nor was it saved by section 17 of the Prevention of Frauds Ordinance. Section 17 deals with instruments, i.e., with transactions which have already been reduced to writing, and exempts certain classes of instruments from the necessity of notarial attestation. There a

nothing therefore in section 17 which saves oral agreements for the sale of immovable property by Government from the necessity of being reduced to writing.

Obiter : The omission of a trial Judge to measure expressly the reliability of the plaintiff's and defendant's witnesses is not per se a ground entitling the Appellate Court to reverse the judgment of the trial Judge on a question of fact.

APPEAL from a decree of the Supreme Court. The judgment of the Supreme Court is reported in (2946) 47 N. L. R. 385.

Gerald Upjohn, K.C., with A. A. Mocatta, for plaintiff appellant.

Sir David Maxwell Fyfe, K.C., with Frank Gahan, for defendant respondent.

Cur. adv. vult,

April 26, 1950. [Delivered by LORD SIMONDS]-

This appeal, which is brought from a decree of the Supreme Court of Ceylon allowing the app

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