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Colonial Cases

Akamoden v. Cassim, 1841

[sale of goods, opium]

Akamoden v. Cassim

Court of Judicature, Singapore[?]
Norris, September 1841
Source: The Singapore Free Press & Mercantile Advertiser, 30 September, 1841

 

LOCAL.

COURT OF JUDICATURE.

   The following important decision, in a case where an objections was raised to the Jurisdiction of the Court, was pronounced by our learned Recorder Sir WILLIAM NORRIS, when last on Circuit at this Station:-

JUDGMENT (Interlocutory.)

SULTAN OMAR AKAMODEN, Plaintiff.

Versus

NAQUODAH MAHOMED CASSIM, Defendant.

   This is a Petition or Bill on the Equity side of the court, calling upon the Defendant for a discovery to enable the Plaintiff to recover damages for the breach of an alleged Agreement by the Defendant to supply him with 100 chests of opium; by the non-fulfilment of which Agreement, it is averred, the Plaintiff has been disabled from completing his own engagements as Opium Farmer to the Dutch Government at Sambas in the island of Borneo; and thereby sustained a loss of 6000 Guiders.

   To this the Defendants pleads,

"that the Court has not jurisdiction in nor can hold plea of the matters in the said Petition contained, and cannot take cognizance of the same, but that the same appertain to and are in the cognizance of the Tribunals of Sambas in Borneo in the said Petition mentioned, and in which place the alleged matters are stated to have taken place; and the Defendant further pleads, that although it appears by the said Petition that the Complainant at the time therein mentioned was Opium Farmer at Sambas in Borneo aforesaid, yet that in point of fact the Complainant was and is the Rajah or Sovereign of the State or Territory of Sambas aforesaid, which is and always has been his place of residence, and that being a Foreign Potentate and not subject in person of effects to the jurisdiction of this Court, it is not competent for him to file his petition therein to compel this Defendant to answer where he has not any remedy by cross-bill or otherwise against the Complainant."

   On the strict principles of pleading this plea would probably be held objectionable and bad for duplicity, as containing two distinct matters, each professing to be a complete bar to the action.  But as this Court enjoys by its Charter a happy immunity from all needless technicalities, and is bound in all cases so to shape its proceedings as to attain substantial justice; as the only objection to the Plea, if available at all, could only have been properly taken advantage of by special demurrer, whereas the Complainant has neither demurred nor replied, the question for present decision standing simply on the arguments of the respective Agents for and against the plea; and as it is but justice that the Defendant should have his remedy, if required, by cross-bill or otherwise; I should have had no difficulty (independently of the authority cited by Mr. NAPIER, which is strictly in point - The Columbian Government v. Rothschild, 1 Sim 84) in accompanying an interlocutory decree for an answer to the Petition or Bill of Complaint with a condition binding the complainant's representative, SEYD OMAR, who has already given security for the Costs, to appear and answer any Cross-Bill which may be filed against his constituent.

   So much as to the latter portion of the Plea.  The former part raises a larger and more important question; for, as observed by Sir THOS. STRANGE (Notes of Cases vol. 1. 155) "not to mention the nicety that often belongs to them, there are few questions of greater importance in Courts of justice than questions of jurisdiction, there being few that eventually affect a greater number of future cases."

   The question is, whether, under the circumstances, the cause of action having confessedly arisen out of the local Jurisdiction, the Court can take cognizance of the complaint?  And the case of Nakoda Matey v. Nakoda Mouranda, decided by myself in this place, last December, is referred to by the Defendant's Agent as a direct authority in the negative.  But the features of that case, it is hardly necessary to observe, were materially different from those of the present.  There, the demand was of 9 or 10 years standing, the defendant a mere casual sojourner, and both parties inhabitants of the same Island, Celebes, if not of the same village, where the cause of Action arose, whither they were both on the eve of returning, where there was a common Tribunal to resort to, and where the witnesses on both sides were at hand. It may fairly be presumed, therefore, that in point of fact the ends of substantial justice were better secured by referring the parties to their own country and tribunal than by consenting to entertain the enquiry here.

   In the present instance, on the contrary, the cause of action is of recent origin and the defendant an old established resident, who is not likely for aught that appears, to afford the complainant an opportunity of seeing him in Borneo; so that injustice might probably be done should the Court refuse to hear the Complaint.  But, can it do so consistently with the terms of the charter, the cause if action has arisen out of the local jurisdiction? That is now the question, and the sole one, for decision; for the question of actual or constructive inhabitancy, on which the decision in the former case in a great degree turned, does not arose in the case now before the Court.

   The clause of the charter, page 22, defining the personal jurisdiction of the Court over "all please the causes of which shall or may hereafter arise &c. against any persons who shall be resident within the said Settlement." &c. is certainly ambiguous; for it is not clear whether residents at the time of the Contract or Cause of Action, residents at the time of the Suit, or both these classes of Residents are meant.  Prima facie, however, the first class only would seem to be intended; for if residence were meant to be the sole test of jurisdiction, why advert to the "cause," of action at all, instead of simply adhering to the terms used in the Charters of H.M. Courts at the Presidencies, and in that of Calcutta as explained by the Stat. 21 Geo. 3d. c. 70 viz."All suits and actions against the inhabitants (of Bombay, Madras & Calcutta respectively)?

   That the ordinary civil jurisdiction of the Straits Court was meant to be limited to Contracts and other causes of action of local origin, would seem to be further inferred from the terms employed in pages 3, 10 and 22 of the subsequent Charter of 1837, conferring Admiralty jurisdiction.  In page 12 of this latter Charter it is expressly provided that the jurisdiction of the Court, "in the maritime causes"  shall extend "only to such persons as, pursuant to the provisions therein before contained,  are and would be amenable to the said Court in its ordinary jurisdiction."  Now the "provisions therein before contained," in that behalf, are those in pages 9 & 10, wherein the jurisdiction is limited to "causes civil and maritime, and all pleas of contracts, debts" &c.&c. contracted, done, had, or commenced in upon or by  the sea or public rivers, or ports, creeks, harbours" &c.,  &c. without, throughout, and about the settlement of P. W. Island" &c.

   The indistinctness of the clause in the first charter is, therefore, it should seem, cleared up by the more precise language of the latter, and the collation of both would appear to warrant the conclusion, that as is the Admiralty so was the ordinary jurisdiction of the Court meant to be restricted to Contracts and other causes of action arising within the local limits of the Settlement.   This restricted operation of the Court's powers in the Civil branch of its Admiralty jurisdiction (and by consequence, apparently, in its ordinary civil jurisdiction also,) is further manifest by contrast with the extensive powers immediately before conferred upon it in the same Clause pages 11 & 12, in its criminal jurisdiction, "to take cognizance of all crimes committed on the high seas by any person pr persons whatsoever." And further still (according to the rule exceptio probat regulam) is this limitation of the civil jurisdiction made apparent by the terms of the Stature 2 W. 4. C.51. s. 6, by which in certain cases therein mentioned, Vice-Admiralty Courts are declared to have jurisdiction, "notwithstanding the cause of action may have arisen out of the local limits of such Courts."

   In addition to all this, some decisions of the Supreme Court of Madras as reported by Sir THOMAS STRANGE, appear to furnish authoritative precedents for out deciding here to exercise jurisdiction in cases analogous in some respects, though not in all, to that of Nakoda Mopey v. Nakoda Mourana, which, as already observed, the Court refused to entertain last year.  The cases in Sir T. STRANGE'S Reports to which I more particularly called are those of Naguoah Chitty v. Rachumumah VOL. 1. PA. 152; AND Ram Narran v. Nursiah vol. 2, pa. 289.  In the former of these, the chief Justice, Sir T. STRANGE in delivering the opinion of the Court, remarked as follows:-

It has been truly observed that it is impossible to argue in this Court from analogous cases of jurisdiction in the Courts at home; those Courts being by their constitution, according to their respective modes and purposes of proceeding, the [?????] depositories of the universal justice of the realm, and as such, in every instance in which it is attempted to withdraw a case from their cognizance, bound to see distinctly and unequivocally that a jurisdiction adequate to the object in view exists elsewhere.   If that be not stated so as to appear to the Court, a plea to the jurisdiction fails and the jurisdiction remains.

   But here it is different, because though co-ordinate in its nature with those courts so far as its jurisdiction attaches, the jurisdiction of this Court is limited with regard to persons &c.&c.

In the other case, the Court said:

They thought that inhabitant for the purpose of jurisdiction meantresident  and that a constructive inhabitancy would not so .    .    . what a condition a stranger might find himself in, arrested suddenly for a large demand, not belonging to the place but casually at it, being an inhabitant perhaps of the extreme point of the peninsula! How would he be able to find bail?  Then as to his defence to the action; he might have to send for his witnesses to a most inconvenient distance.    In nineteenth cases out of twenty he would not find them at Madras.  Natives residing in the interior have no conception of the Supreme Court; they do  not contract or carry on their dealings with reference it it.  The native residents do."

   If these passages do not expressly state, they at least strongly imply, that the legal maxim, debitum at contractus sunt nullius loci, ought, in the opinion of the Supreme Court of Madras, to be received in India with greater  qualification than in England; and that inhabitancy alone would not be sufficient to ground jurisdiction where the Contract or cause of action arose elsewhere and with reference to other Tribunals.

      I have thought it necessary to go thus much into detail, in order to explain clearly the grounds of my decision in the former case, and to avoid the appearance of inconsistency, now that I feel myself obliged, in deference to the weight of Authorities to which I have since had access (and which being of very recent publication were necessarily unknown to me before) to decide somewhat differently in the present instance; though, had the question depended simply on the construction of our own Charters, without reference to the earlier charters of the Supreme Courts at the Presidencies, I should still have thought there was at least room for the doubt whether the Court could properly take cognizance of the present Suit.

   The chief authority to which I refer is the case of Madoo Wissenauth v. Ballo Gunnasett reported in pages 149 to 158 of a Volume of Decisions of the Supreme Court at Calcutta, published a few months ago by Mr. MORTON, a Barrister of that Court.  The case in question, which is appended by way of note to other questions of jurisdiction at Calcutta, was decided in the Recorder's Court at Bombay so long ago as January 1818, by the then Recorder, Sir ALEXANDER ANSTRUTHER,  from whose M S notes it is now apparently published for the first time. And, as the Reporter informs us in an Appendix at the end of the Volume,

"the doctrine contained in this able Judgment appearing to have been regarded by the local Government as dangerous innovations unauthorized by law,"

References upon the subject were in consequence made to the Advocates General, MACLIN and SPANKIE and to the Counsel of the Court of Directors, Mr. Serjt. (now Justice) BOSANQUET, whose opinions were also reported at length and appear fully to concur with those expressed by Sir A. ANSTRUTHER.  The learned Judge, in his very luminous judgment, expresses his

"perfect acquiescence in the decisions of most of the cases upon the subject in Sir THOMAS STRANGE's notes at Madras;"

But he dissents from one of them, thinks another questionable, and dissents also from "some of the reasoning which the Judges appear to have employed in supporting them." 

   I have already quoted the observations of the court at Madras with references to the argument from analogous cases of jurisdiction in the Courts at home.   On this subject, Sir A. ANSTRUTHER remarks as follows;

A foreigner arriving in England, for whatever purpose, in time of peace, is immediately answerable in the Courts of the country for all claims of personal contract wherever arising, and there must be some direct and clear words to shew that the Court of the Recorder of Bombay, which is expressly declared to have in general all authority which the Courts of Westminster Hall have in England, shall not be able to hold jurisdiction over an Arab or Mahratta in Bombay, under the same circumstances in which the Courts at West miner would hold jurisdiction over a Frenchman or a German.

He admits, however, the ambiguity of the Statute and Charter of 1797, which leaves it doubtful (as in our own Charter) whether inhabitancy at the time of the Contract or of the suit or both is to be the test of jurisdiction.   But in determining this question he possessed an advantage which this Court has not, and of which he naturally availed himself, viz., the language of prior Charters "as expanding the meaning of the Statue and of the new Charter granted upon the "same subject."

   He refers accordingly to the first Charter, 13 Geo. I. establishing the Mayor's Courts in 1726 and giving jurisdiction over all persons "residing or being in" each presidency, EITHER "then" (i.e. at the time of the complaint or action  brought) or "at the time when such cause if action did or shall accrue." The second Charter, that of geo. 2d. in 1755 "retained," he observes, "in favour of Europeans, the same jurisdiction over inhabitants of Bombay, either at the time of Contract or Cause of action, or at the time of the action being commenced .  .  .  .   The Statute and Charter of 1797 are to be construed by those former Charters when they are otherwise ambiguous.  .  .  .  The Statute and the  new Charter do not introduce any limitation of the jurisdiction to inhabitants at the time of the suit brought, in exclusion of the inhabitants at the time of the cause of action accruing, but use terms which certainly may include both those classes of inhabitants; and the former class seem to have been more peculiarly in contemplation, not only from the former Charters but from those parts of them which are retained in the new Charter. The new Charter of 1797 expressly retained to the Recorder's Court "all jurisdictions which existed in the Mayor's.    He therefore held it to be "clear that one, who was inhabitant of Bombay at the time of the commencement of the suit is liable to the jurisdiction.

   He then examined the question whether any particular duration of time is necessary to constitute inhabitancy or residence for the purposes of jurisdiction; but as that point is not at issue in the present case, it is needless to enter upon it here.

   This construction of the Bombay Charters is entirely confirmed by the similar construction put upon the Charters of the Supreme court at Calcutta, as appears from a note upon the statute 21 Geo. 3rd. C. 70, S. 17, in Smoult and Ryan's valuable collection of the Rules and Orders of that Court lately published with the sanction of the learned Chief Justice Sir. E. RYAN, (vol. 1, pa. 66.)  The Judges of that Court, it seems, have considered this statute in which the words, "Inhabitants of the City of Calcutta," are, for the first time, mentioned, not as giving the Court, for the first time jurisdiction over the inhabitants of Calcutta, but as merely a declaratory Act, which neither extended noir narrowed the jurisdiction before enjoyed, but corrected an erroneous constriction which had been put on the previous Acts of Parliament.

   And in support of this, positive reference is accordingly made in the note in question to the terms of the previous Charters and the same conclusion drawn as that by Sir A. ANSTRUTHER, viz. that the present jurisdiction is co-extensive with that of the Mayor's Court, and included (independently of the statute 24 Geo. 3rd.) all persons being inhabitants whether at the time the cause of action accrued, or at the time of Action brought.  And this is the more material to the present purpose, because the words of the present Charter of the Calcutta Court, in the corresponding clause, more more nearly resemble those of our own than the words in the Bombay Charter.

   On the whole then, considering the ambiguity of the terms of our Charter on the point in question, and the want of any good reason, so far as I can discover, for supposing that the jurisdiction of H. M. Court here was intended to be less extensive in its general nature that that of H.M. Courts at the Presidencies, U=I am bound, in the absence of preceding Chartres which might solve the difficulty, to resort to the next best mode of ascertaining the meaning and intent of the framers, viz: the terms used in the corresponding clauses of the Charters of those Courts, and the construction put upon them by the learned Judges presiding therein.  What these are I have shewn; and the Authorities referred to, in my opinion, decisively establish the point, that the Court cannot refuse to entertain the present suit, the defendant being a resident in the Settlement at the time of Action brought; not withstanding the fact that the cause of action arose out of the Jurisdiction.

   The plea to the jurisdiction is therefore over-ruled, and the defendant is ordered to file his answer within the usual time; the Complainant's Agent undertaking to appear and answer any Cross-Bill which may be filed against him.  Costs to abide the event of the Suit.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School