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SINGARAYER v. ATTORNEY GENERAL
NLR56V39
1954 Present: Gratiaen J.,
Sansoni J. and Fernando A.J.
R. SINGARAYER, Appellant, and THE ATTORNEY-GENERAL, Respondent
S. C. 457 of 1951-D. C. Point Pedro, 3,905M
Customs Ordinance (Cap.
185)-Section 146-Security for costs of action-Form in which it may be
given-Meaning of word " security ".
Security for costs of action required under section 146 of the Customs Ordinance
may be furnished in some other form than cash. In the context, the word security
includes " every document or transaction by which the payment of money is
assured, or its recovery facilitated ". Security may therefore be given in the
form of the personal guarantee of a surety coupled with a mortgage in favour of
the Crown of the surety's interest in a specified allotment of land.
APPEAL
from a judgment of the District Court, Point Pedro. Owing to a difference of
opinion between the two Judges before whom it was first argued, it came up for
hearing before a Bench of three Judges, in terms of section 38 of the Courts
Ordinance.
E. R. S. R. Coomaraswamy, with E. B. Vannitamby and D. R. Perera, for the
plaintiff appellant.
M. Tiruchelvam, Crown Counsel, with V. S. A. Pullenayagam, Crown Counsel,
for the defendant respondent.
Cur. adv. vult.
July 26, 1954. GRATIAEN J.-
On 29th October, 1950, certain Customs officers seized a motor launch, of which
the appellant claims to be the owner, off the coast of Thaiaidy for an alleged
contravention of regulations framed under section 68 of the Customs Ordinance.
On 10th November, 1950, the Collector of Customs of the Northern Province wrote
to the appellant confirming the seizure of the launch " as forfeited under the
Ordinance ". The letter added that " for purposes of action under section 146 of
the Ordinance security for the launch had been fixed in a sum of Rs. 35,000 plus
a further sum of Rs. 3,000 for costs of action ".
That section 146 applies to a situation of this kind is now conceded by Mr.
Coomaraswamy. The section provides inter alia that all ships, boats, goods and
other things " seized as forfeited under the Ordinance " shall be " deemed and
taken to be condemned " unless the person from whom they are seized or their
owner shall within one month give notice in writing to the Chief Officer of
Customs at the nearest port that he intends to enter a claim for them, " and
shall further give security to
prosecute such claim before the
Court having jurisdiction to entertain the same, and to restore the. things
seized or their value, and otherwise to satisfy the judgment of the Court and to
pay costs ".
Section 147 provides that no claim to anything seized under the Ordinance shall
be admitted by the Court " unless the claimant shall at the time of filing his
libel or plaint to establish his claim satisfy the Court that he has given
notice and security as in the preceding section enacted ".
On 28th November, 1950, the appellant gave notice in writing to the Collector of
Customs of his intention to institute the present action, and ,at the same time
tendered a bond in a sum of Rs. 3,000 (i.e., the amount fixed by the Collector
as security for costs under section 146) conditioned for the due prosecution of
the action and the payment of any costs that might be awarded against him. This
bond was executed by the appellant .and by his surety V. Velupillai who, in
addition to his personal guarantee, hypothecated in favour of the Crown his
interests' in certain immovable property " for further and better securing the
payment of all moneys due under the bond ".
The appellant had explained in his letter that he was unable to tender security
in a sum of Rs. 35,000 fixed by the Collector as security for the launch ; he
therefore consented to the vessel continuing to remain in. the possession of the
Customs authorities pending the final decision of the action which he proposed
to institute. The Collector replied (1) that security " for c
