JSA News Letter
2018 Volume 01 Exco 2018 Editorial President Rule of law and independence of judiciary Ranga Dissanayake “Rule of law” means the supremacy of law. Administration is run strictly in accordance with the law. A. V. Dicey in his book; 'Introduction to the study of Law of the constitution' Addl. Magistrate, Colombo describes basic principles which constitute the doctrine. There is no room for exercising arbitrary powers by any authority. All are under the same law and none is over and above the Vice Presidents law. No man or institution is empowered to award punishment to any individual; arbitrarily. All are subject to the same law irrespective of their rank or status and no discrimination is Srinithy Nandasekaran made for the purpose of administering justice. All are equal before law and all are tried in District Judge, Vavuniya the same courts. “Rule of Law” expects the law to be applied equally to all and that the law is certain. Scholars identified certain principles that should be included in the “rule of law” Hasitha Ponnamperuma concept. 1. Independence of the Judiciary District Judge, Kegalle 2. Courts and tribunal processes should be fair. (Right to fair trial) 3. The law must be accessible, clear & predictable. Secretary 4. Ministers must act within their powers and not exceed their limits. 5. The law should be supreme and above all, apply equally to all, except where M. M. M. Mihal objective differences justify differentiation. Magistrate, Mount Lavinia 6. The law should provide access to justice, especially where people cannot resolve inter-personal disputes themselves. Assistant Secretary 7. The law must afford adequate protection of fundamental human rights. 8. Questions of legal rights should be resolved by the law and not by exercising Prasanna Alwis discretion. 9. Separation of powers amongst legislature, executive and the Judiciary (Check
Magistrate, Kaduwela and balance system among three pillars of government) 10. The state should comply with international laws. Treasurer Independence of the Judiciary is considered as the backbone of the rule of law. Hence; Nirosha Fernando Judges have to play a major role. Application of the prevailing law to the given situation is one of the main responsibilities of a judge. However; it should be done cautiously and without District Judge, Negombo discrimination as to the race, gender, wealth or due to any personal influences. As per the Art. 111(c) of the Constitution; interference with judiciary is an offence. Constitution guarantees Editor the judicial functions to be carried out without fear, favor or affection. It is clear that the independence of the judiciary itself is guaranteed by the constitution of the Sri Lanka which Jayaruwan Dissanayake is considered as the supreme law of the country. Magistrate, Horana Average person on the street may not understand the relationship of the independence of the judiciary and the rule of law. They only expect justice to be dispensed when they are Assistant Editor before the court of law. Once citizens lose the confidence in the fairness of the legal system; they may turn to other illegal means to resolve their disputes which may even lead to violence. Rakitha Abeysinghe This was highly considered prior to the establishment of International Criminal Court (ICC). First special rapporteur on the independence of judges and lawyers was appointed by Addl.District Judge, Chilaw UN in 1994 and since then it was considered many instances where rule of law is neglected when independence is infringed. Web Master Whole society is staring at the judiciary and the judicial functions. Media publicity Mr. Anushka Senevirathna always changes the mindset of the general public. Criticisms and attacks to tarnish the judicial independence must be promptly addressed and dealt with. Collective effort of judges Addl. Magistrate, Nugegoda and lawyers is needed to uphold this great principle of “Rule of law” to the maximum, by safeguarding the independence of the Judiciary.
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2018 Volume 01 Secretary ‘s Report 2018 - First Quarter In the first quarter of the year 2018, Judicial Service Association has taken following actions for the benefit of the general membership. Among the said initiatives, in most instances we were able to achieve successful results. 1. Separate Salary Structure for Judiciary The struggle to establish a separate salary structure for the Judiciary was successfully concluded in 2018 January. Following a cabinet decision, Ministry of Justice has issued the Circular No.02/2018 dated 19.01.2018 with the concurrence of the treasury with regard to the allowances of the judicial officers. The Ministry of Finance and Mass Media has issued a separate Management Services Circular No.01 /2018 on 19.02.2018 and thereby a separate salary structure for the judicial officers established. 2. Appointment of High Court Judges from unofficial Bar. Judicial Service Association has learnt in February 2018, that the Bar Association of Sri Lanka has sent a list of nominees to Judicial Service Commission for its recommendation to appoint as High Court Judges, from unofficial Bar. On receiving the said information Judicial Service Association has requested the Judicial Service Commission by latter dated 19.02.2018, to refrain from recommending any nominations from unofficial bar for appointment as High Court Judges. Since the power to appoint High Court Judges is vested with the His Excellency the President, Executive Committee of the Judicial Service Association has decided to send a request letter to His Excellency the President, signed by all the Judicial officers stationed around the country requesting not to appoint any member from unofficial Bar as high court judge directly. On receiving the said letter signed by judicial officers, the Secretary to His Excellency the President by his letter dated 06.04.2018, has informed that the special attention of His Excellency the President has been drawn to the said request by Judicial Service Association. 3. Appointment of High Court Judges from official Bar. In January 2018, Judicial Service Association has received a reliable information that the relatively junior officers from attorney Generals’ Department are to be nominated by honorable Attorney General to be appoint as the High Court judges. Judicial Service Association by letter dated 18.01.2018 has requested the Judicial Service Commission to formulate a minimum eligible criterion for ascension of law officers from Attorney Generals’ to the High Court. 4. Grade 1 School Admission – 2018. In year 2017, the requests to admit the children of the judicial officers to Grade 1 of the National Schools were not fully acceded by Ministry of Education. But for this year Ministry of Education has acceded to all the requests and Secretary to the Ministry of Education has issued letters to admit the children of judges to Grade 1 as requested by judges. Judicial Service Association by letter dated 27.11.2017, has requested the Judicial Service Commission to take steps to establish a separate system for judges in admitting their children to schools by explaining the difficulties facing by judges under existing system. The Secretary to the Judicial Service Commission has informed the Judicial Service Association that the said request was forwarded to Secretary to His Excellency the President and the Secretary to the Ministry of Education for necessary action. 5. Special Loan facility through Peoples’ Bank and Bank of Ceylon. Judicial Service association has negotiated with the Peoples’ Bank and Bank of Ceylon to obtain a special loan facility on concessionary terms for its members. As the result of the said negotiation both Banks have introduced a special loan facility on concessionary terms, which is comparatively less than prevailing market rates.
M.M.M.Mihal, Secretary, Judicial Service Association.
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2018 Volume 01 Appointment of High Court Judges from the Unofficial Bar - from Secretary's reports
19.02.2018
Through: Hon. H. S. Somaratne, The Secretary, Judicial Service Commission, Colombo 12
To: His Lordship the Chief Justice and Honorable Members of the Judicial Service Commission. Appointment of High Court Judges from the Unofficial Bar Judicial Service Association has reliably learnt that the Bar Association of Sri Lanka (BASL) has sent a list of nominees to the Judicial Service Commission (JSC) for its recommendation to appoint as High Court Judges from unofficial Bar. The BASL has already communicated to its members that, the Executive Committee of the BASL has decided on 9th December 2017 to forward suggestions to the JSC, for appointments as High Court Judges from the members of the Unofficial Bar, who are in active practice over 20 years. JSA has also learnt through reliable sources that while the said procedure is under way, the Secretary to the BASL has forwarded a list of nominees from Unofficial Bar, without forwarding the same to the Executive Committee of the BASL, which is the decision-making body of the BASL, nor to the Bar Council. Hence, the BASL has failed to adopt neither a transparent nor legally valid procedure in nominating the lawyers to Your Lordships. This fact has beensubstantiated by several Executive Committee members of the BASL and, up to now some Executive Committee members were not informed about the short-listed nominations. Furthermore, majority of the members of the unofficial Bar has opposed the said move to nominate lawyers to High Court directly and, they have raised concerns about the negative impact which would cause to the system by adopting a non-transparent procedure in nominating members from unofficial Bar. The consensus of the whole minor judiciary on this issue has been expressed by the following JSA resolution, adopted unanimously at the Emergency General Meeting held on 1st April 2017, which was respectfully submitted to the JSC for its kind consideration. “Appointment of Judges to the High Court from unofficial Bar undermines the knowledge, experience and sacrifices made by the District Judges and Magistrates who work under immense pressures and difficulties for long periods of time in difficult areas during their career. Therefore, we respectfully request the Judicial Service Commission to refrain from recommending nominations submitted to them from the unofficial bar for the appointment of judges directly to the High Court in future.” In this background JSA respectfully seeks Your Lordships permission to forward following further considerations in this regard.
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2018 Volume 01 1. Four (4) most senior judicial officers in the Judiciary have already completed 18 years’ service in the judiciary. Since 4 or 5 years’ active practice as an Attorney at Law (AAL) is a pre-requisite to be considered for appointment as a Judicial Officer, said judicial officers would have completed minimum 22 years of practice as AALs. Furthermore, 21 most senior Judicial Officers in the Judiciary have completed 15 years’ service as judges, hence they would have completed or completing at least 20 years of practice as AALs. 2. So far,the BASL has neither informed its members nor the Bar Council regarding a transparent procedure in selecting or nominating the applicants to the JSC. In contrast, all Judicial Officers are selected by a highly transparent procedure published in the Gazette, which comprises of highly competitive examination followed by Viva Voce interview by Your Lordships. 3. Save for the Civil Appeal High courts, High Court, in essence, is a Court of first instance. Therefore, the matters are decided mostly on facts before it. Hence, highly trained and meticulous judicial mind is sine qua non in dealing with matters in the High Court. 4. Judicial officers are accustomed to make decisions judiciously, adhering to audi alteram partem rule and with an unassailable integrity. Moreover, their work and conduct is thoroughly scrutinized by the JSC, the Bar, litigants and media, whereas a nominee from Unofficial Bar never subject to such scrutiny. 5. Active practice as Attorneys at Law for a long period of time might expose members of the Unofficial Bar to develop close connections with clients, police officers, prison officers and court staff etc. Once Caitlin, the founding Head of the Michigan Judicial Institute in the USA, has observed as follows, “Lawyers don’t become good judges by the wave of a magic wand. Not even the best lawyers. To reappear behind the Bench as a skilled jurist is a tricky maneuver. Going from adversary to adjudicator means changing one’s attitude, learning and using new skills, and in some cases severing old ties.” Since appointment to the High Court is the focal point of concern for any Judicial Officer, who work under immense pressure and tiring conditions for a long period of time, with only hope of being elevated to the High Court, the JSA would like to respectfully beg the attention of Judicial Service Commission to consider foregoing facts in sympathetic manner and to refrain from recommending any nominations from unofficial Bar for appointment as High Court Judges. JSA has utmost faith in all the decisions taken by the JSC and, would like to apologize profoundly, if this letter has caused any inconvenience. Furthermore, the JSA would like to emphaze it does not intend to interfere with any decision taken by the JSC in this regard and, it clearly understandsthe JSC has unfettered discretion to make recommendations regarding High Court appointments.
M. M. M. Mihal Secretary - Judicial Service Association Magistrate - Mount Lavinia
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2018 Volume 01
1 Letter to the President - from Secretary's reports
2018.03.02.
අ(ග* ජනා/ප(,
ෛම4පාල 67ෙ9න මැ(;මා,
ජනා/ප( ෙ<ක> කා?යාලය,
ෙකAළඹ 01.
ෙප#$ග&ක )*ඥ වෘ.*ෙ/ ෙයෙදන )*ඥව34 සෘ6ව මහා:කරණ =>?3ව34 ෙලස ප. ABම.
ෙපDEගFක G(ඥ වෘK(ෙL ෙයM 6Nන G(ඥව*O සෘQව මහා/කරණ UVW*ව*O ෙලස පK XYම සඳහා [ ලංකා G(ඥ සංගමය U6O උKසාහයක ෙයෙද_O 6`.
ඒ අbව ෙ> වන UටK මහා/කරණ UVW*ව*O ෙලස පK XYමට V?ෙEශ XYම සඳහා [ ලංකා G(ඥ සංගමය U6O න> ලැe9;වf ග* අගUVW*;මා ෙවත භාර M ඇත. _O ෙපර අව9ථාවක ද [ ලංකා G(ඥ සංගමය U6O ෙ> ආකාරෙයOම ෙපDEගFක G(ඥ වෘK(ෙL ෙයM 6N රාමනාදO කOනO මහතා මහා/කරණ UVW*වරෙයl ෙලස පK XYම සඳහා මැmහK nෙ>M ඇ( o ෙනAසOWO තKKවය ඔබ;මාට මතක ඇතැe Urවාස කරs. සතt වශෙයOම XවෙහAK රාමනාදO කOනO මහතාෙu පK nම Gතtාbvල ද යOන පවා ෙමෙතf Uසw නැත.
එෙ9 (yයM, ෙපDEගFක G(ඥ වෘK(ෙL ෙයෙදන G(ඥව*O X6z ෙසAයා බැ{මXO ෙතAරව සෘQව මහා/කරණයට පK XYම සඳහා ඉ<{> XYම ;}O ඉm7ෙLM [ ලංකාෙ~ s අ/කරණ පEධ(යම Uශාල yඳ වැ`මකට ලf nෙ> අවධානමf ඇ( n (ෙබන බව අවධාරණය කර 6Ns. ඒ අbව අÅ අ/කරණ ෙ9වා සංගමය ෙලසK, සම9ත පහළ අ/කරණ UVrචයකාරව*O ෙලසK, එම උKසාහය ස>බOධෙයO අපෙu දැƒ Uෙර„ධය පළ කර 6Nන අතර, ඒ සඳහා වන ෙ…; සැෙකUO ඉm7පK කරs.
01. ෙපDEගFක G(ඥ වෘK(ෙL ෙයM 6Nන G(ඥව*O අ;7O වසර 20 කට වඩා වැƒ ෙ9වා කාලයf ඇ( G(ඥව*OෙගO අයz>පK කැඳවා එම G(ඥව*Oෙu න> X6z ෙසAයා බැ{මXO ෙතAරව අ/කරණ ෙ9වා ෙකA_ෂO සභාවට ෙයAs XYම ;}O ˆ‰ත සහ WŠWක> නැ( ‹EගලeO මහා/කරණ UVW*ව*O ෙලස පK nමට අව9ථාව සැලŒ (ෙç. පහළම අ/කරණ UVrචයකාරව*O වන මෙ…9ŽාKව*O බඳවා ගැGෙ>M පවා ඒ සඳහා Uභාගයf පවKවා ඊට අමතරව, ස>sඛ පYfෂණයf
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2018 Volume 01
සහ එම බඳවා ගOනා තැනැKතO ස>බOධෙයO Å}ගK ‹EගලeOෙu V?ෙEශයO ලබා ෙගන එම පK XY> 6Š කරන අතර, ‹Eගලෙයlට මර‘ය ද’ඩනය Vයම කළ හැX මහා/කරණ UVW*ව*O පK XYෙ>M එවැV X6z “යාදාමයf අbගමනය ෙනAXYම Urමය ජනකය.
02. ෙමම “යාදාමය අbව ය_O මහා/කරණ UVW*ව*O පK XYම කළෙහAK, එය අනාගතය සඳහාද වැරm ”?වාද?ශයf වන අතර, ඒ අbව UෙrෂෙයOම ෙEශපාලන ස>බOධක> ඇ( සහ අපfෂපා• ෙනAවන ‹EගලeOට මහා/කරණ UVW*ව*O ෙලස පK nමට අවකාශ සැලෙ9.
03. පහළ අ/කරණ UVrචයකාරව*O [ ලංකාෙ~ සෑම —ෙEශයකම ෙ9වය කර_O තම ˜UතෙL වැƒ කාලයf අ/කරණ ෙ9වය ෙවbෙවO කැප කර_O කට™; කරEm, ඔšOට තම වෘK(ෙL ලබා ගත හැX ෙ9වා උස9nම වන මහා/කරණ UVW* ›රයට පKnමට අවකාශ ෙනAලැœෙමO සහ/ෙහ„ —මාද nෙමO එම පහළ අ/කරණ UVrචයකාරව*Oට දැƒ අසාධාරණයf 6Š nම.
04. වසර 20 කට අ/ක කාලයf ෙපDEගFක G(ඥ වෘK(ෙL ෙයෙදන G(ඥවරෙයlට G(ඥ වෘK(ෙL ෙයෙදන කාලය ;ළ UUධ ‹EගලeO ඇW* XYමට 6Š ෙ~. (උදාහරණ ෙලස UUධ අපරාධක*වO සහ සමාජ Uෙර„ “යාවO¡ VරතවOනO) එෙ9ම ෙEශපාලඥයO ඇ; සමාජෙL UUධ තරා(ර>වල ‹EගලයO සමඟ ද ෙබAෙහ„ G(ඥව*O ඇW*ක> පවKවe. ඒ ෙ…;ෙකAට ෙගන එවැV G(ඥව*O සෘQව සහ X6z ෙසAයා බැ{මXO ෙතAරව මහා/කරණ UVW*ව*O ෙලස පK කරb ලැ¤වෙහAK එම මහා/කරණ UVW*ව*Oට 9වා නව සහ අපfෂපා(ව කට™; කළ ෙනAහැX වන බව අපෙu Urවාසයe. ඒ අbව ෙමම පKXY> ;}O අ/කරණෙL 9වා නKවය සහ G(ෙL ආ/පතt yඳ වැ`මකට ලf Uය හැXය.
රාමනාදO කOනO මහතාෙu පKnම 6Š nෙමO පWව අ/කරණ ෙ9වා සංගමෙL සාමා¥කeO එන>, 6යම mසා UVW*ව*O සහ මෙ…9ŽාKව*Oෙu සහභා¦KවෙයO 2017 අෙ¨< මස 01 වන mන අ/කරණ ෙ9වා සංගමෙL Uෙrෂ මහා සභා *9nමf පැවැK o අතර, එම Uෙrෂ මහා සභා ©9nෙ>M ෙපDEගFක G(ඥ වෘK(ෙL ෙයෙදන G(ඥව*O සෘQව මහා/කරණ UVW*ව*O ෙලස පK XYම ස>බOධෙයO 6ය අ/කරණ VලධාYO U*Eධ වන බවට ෙය„ජනාවf ස>මත කර ගOනා ලM. (එම ෙය„ජනා ස>මතය ද ෙ> සමඟ අsණා ඉm7පK කරs.)
6 3
රාමනාදO කOනO මහතාෙu පKnම 6ŠnෙමO පWව, එම පKnම 6Š o ආකාරය Å}බඳව JSA News Letter ඔබ;මා X6z ආකාරයXO සෑªමට පK ෙනAš බව සහ ඒ ස>බOධෙයO ඔබ;මා පrචKතාපයට පK වන බව අප සමඟ පැවැ(3 හsn> ගණනාවකMම ඔබ;මා පැහැmFව —කාශ කරන ලm. එෙ9ම රාමනාදO කOනO මහතා Gතtාbvල ෙලස අ/කරණ ෙ9වෙයO 2018 Volume 01 ඉවK කළ හැX «මෙ~දයf ස>බOධෙයOද ඔබ;මා ෙසAයා බලන ලm. එවැV තKKවයf රාමනාදO කOනO මහතාෙu පKnම 6ŠnෙමO පWව, එම පKnම 6Š o ආකාරය Å}බඳව යටෙK නැවතK [ ලංකා G(ඥ සංගමය U6O ෙමවැV “යාදාමයf ආර>භ XYම ඔබ;මා ඔබ;මා X6z ආකාරයXO සෑªමට පK ෙනAš බව සහ ඒ ස>බOධෙයO ඔබ;මා U6O X6z ආකාරයXO අbමත ෙනAකරන බව අපෙu Urවාසයe. පrචKතාපයට පK වන බව අප සමඟ පැවැ( හsn> ගණනාවකMම ඔබ;මා පැහැmFව —ඒකාශ අbව කරන ආ’¬ ලm.« ම එෙ9ම වtව9ථාව රාමනාදO අbව කOනOමහා/කරණ මහතා UVrචයකාරව*O Gතtාbvල ෙලස පK අ/කරණ XYෙ> ෙ9වෙයO තV සහ ඉවKඅනනt කළ බලය හැX ඇ( «මෙ~දයf ඔබ;මා ස> U6OබOධෙයOද ෙපDEගFක ඔබ;මා G(ඥ ෙසAයා වෘK(ෙයO බලන ලm. සෘQව එවැV මහා/කරණ තKKවයf යටෙKUVrචයකාරව*O නැවතK [ ලංකා පK XYම G(ඥ ෙනAකරb සංගමය U6Oඇතැe ෙමවැV අÅ Urවාස “යාදාමයf කරs. ආර>භ XYම ඔබ;මා U6O X6z ආකාරයXO අbමත ෙනAකරන බව අපෙu Urවාසයe. ඒ අbව එෙලස පK XY> ෙනAකරන ෙලසට ඔබ;මාෙගO ෙගDරවෙයO ඉ<ලා 6N_O, දැනට
ඒ[ අbව ලංකාෙ~ ආ’¬ පහළ«ම වt අ/කරණයOෙuව9ථාව අbව මහා/කරණ ෙ9වය කරb UVrචයකාරව*O ලබන 6යම mසා පK UVW*ව*O XYෙ> තV සහ අනනtමෙ…9Žා බලයKව*O ඇ( U6O ඔබ;මා අKසO U6O තබන ෙපDEගFක ලද ෙමම FÅය G(ඥ ඔබ;මා වෘK(ෙයO ෙවත ෙයAs සෘQව කර මහා/කරණ 6NOෙනs. UVrචයකාරව*O පK XYම ෙනAකරb ඇතැe අÅ Urවාස කරs.
ඒ අbව එෙලස පK XY> ෙනAකරන ෙලසට ඔබ;මාෙගO ෙගDරවෙයO ඉ<ලා 6N_O, දැනට [ ලංකාෙ~ පහළ අ/කරණයOෙu ෙ9වය කරb ලබන 6යම mසා UVW*ව*O සහ මෙ…9ŽාKව*O U6O අKසO තබන ලද ෙමම FÅය ඔබ;මා ෙවත ෙයAs කර 6NOෙනs.
එ>.එ>.එ>._හා<, ආ?.එ9.ඒ. mසානායක, ෙ<ක>, සභාප(, අ/කරණ ෙ9වා සංගමය, අ/කරණ ෙ9වා සංගමය,
මෙ…9ŽාK - ග එ>.එ>.එ>._හා<, ආ?.එ9.ඒ. mසානායක, A Bigෙ<ක>, Thanks to all the Judicial සභාප(,Officers from the JSA අ/කරණ ෙ9වා සංගමය, අ/කරණ ෙ9වා සංගමය, Judicial Service Association is wishes to thank all the judicial officers who have placed their signatures to the letter sent to Hisමෙ…9Žා ExcellencyK - theග 7 JSA News Letter 2018 Volume 01 Reply from President's Secretary - from Secretary's reports 8 JSA News Letter 2018 Volume 01 Letter to JSC Regarding Nomination from AG's Department - from Secretary's reports 06. 02. 2018 To His Lordship the Chief Justice and other honorable members of the Judicial Service Commission, Through the proper Channels, Hon. Secretary, Judicial Service Commission, Colombo 12. Necessity to Formulate Minimum Eligibility Criteria for the Ascension of Law Officers to the High Court Judicial Service Association respectfully wishes to draw kind attention of His Lordship the Chief Justice and other honorable members of the Judicial Service Commission regarding nominations by Hon. Attorney General (AG) for ascension of Law Officers to the High Court. According to the time tested traditions of the Attorney General's Department, aimed at enriching the judiciary with injecting only the best legal minds of the country, the most senior or second most senior Senior State Counsel (SSC) has been nominated to the High Court. This is abundantly clear from the name list of distinguished personalities who held the Office of the High Court from Attorney General's Department during the past, such s late Jusitce Gamini Amaratunga, Justice Raja Fernando, Justice DPS Gunasekara & Justice Ramanathan. The JSA consider it is timely to convey above facts to the JSC, as there is reliable information that relatively junior officers in the Attorney General's Department are to be nominated to the High Court by the Hon. AG. Obviously, appointing junior SSCs from the AG's Department will bring down the quality and standards expected of the High Court. According to the spirit of the Article '111(2) (a)' of the constitution, the sole authority in determinining who is suitable, or not suitable to be appointed as a High Court Judge is vested with the JSC. Needless to remind that present DSGs in AG's Department are in fact senior tier of SSCs, before the recent cadre enhancement in the AG's Department. However, JSA is not insisting on appointing present DSG (senior tier of earlier SSC) to the Office of the High Court. In recommending the judicial officers to appoint as High Court judges. Judicial Service Commission adopts a very stringent criterion. consideration such as Whether the annual increment was earned by the officer, whether any disciplinary matters are pending against such officer, whether the all the pending judgments are delivered by him and seniority of the officer are considered in such instances by the Judicial Service Commission when considering for High Court appointments. In this backdrop the JSA humbly beg the His lordship the Chief Justice and other honorable members of the JSC to consider adopting a criteria similar to the one adopted in recommending the judicial officers High Court, to ensure that the most suitable officers are recommended to High Court from the AG's Department. Judicial Service Association through this letter does not intent to interfere with any of the decisions taken by the JSC in any circumstances. The Judicial Service Association is eternally grateful for the most kind hearing granted to it during the past years and respectfully seek the kind attention of the Hon. JSC in this matter too. MMM Mihal, Secretary Judicial Service Association. 9 JSA News Letter 2018 Volume 01 School Admissions - from Secretary's reports His Lordship the Chief Justice and Honorable members of the Judicial Service Commission Through proper channels, Honorable Secretary, Judicial Service Commission, Hulftsdorp, Colombo 12. Request to Intervene in to establish a system in admitting the Children of the Judges to Schools Judicial officers are encountered great difficulties in getting their children admitted to schools, since judicial officers are not in a position to follow general procedures adopted in admitting their children to schools, due to the nature of the office they hold. As this is a very sensitive and personal issue and which effecting their official duties, JSA at its highest capacity intervened into it and even met His Excellency the President on several occasions to explain the practical difficulties faced by judicial officers. But so far, no permanent solution provided in this regard. Even though there were no mechanism, the Secretary to the Ministry of Education has responded the requests made by JSA with the recommendation of Judicial Service Commission favorably by admitting the children of judges, to school requested for during past several years. But this process was not implemented in year 2017 and as the result 5 children of judges were not provided schools requested for. Out of those 5 children, one child had not given any school. Accordingly, these children were compelled to be at home for a year without a school. By this letter Judicial Service Association seeks the indulgence of His Lordship the Chief Justice and other honorable members of the Judicial Service Commission to explain the necessity of establishing a separate mechanism in admitting the children of judges to schools. Thereby Judicial Service Association respectfully request the Judicial Service Commission to intervene in that regard. Present System of Admitting Children for Grade I. The circular presently in force in respect of school admission for grade one is the circular issued by the Ministry of Education on 30.05.2017. For past several years the criteria specified in the said circular was adopted with minor changes. In terms of the said circular following are the categories of selection children to government schools for grad one. I. Children of residents in close proximity to the school 50% II. Children of parents who are past pupils of the school 25% III. Brothers/Sisters of students already studding in the school 15% IV. Children of person in the staff of institutions directly involved in school education 05% 10 JSA News Letter 2018 Volume 01 V. Children of officers in Public Sector/State Corporations/State Banks receiving transfers on service exigency 04% VI. Children of persons arriving after living abroad with the child 01% According to the above criteria, in practice judges eligible to apply under category 1 and V, to admit their children to schools for grade 1. Difficulty faced by the judges in applying under above 1st category. 1) According to the nature of the duties none of the Magistrates or District Judges can work more than 3 years in one station. Therefore, a judicial officer cannot reside in an area close to an intended school for 5 years period to secure the full marks needed to admit his/her child under prevailing circular. (According to the circular, to obtain full marks for residence 5 years period of residence needed and to secure the full marks for proximity, judge should choose resident near the school, which cannot be done since judge should reside in the bungalow provided for or at the place approved by the JSC.) 2) When applying under the category of close proximity, parents are required to submit certain documentation. Due to the office hold by the judicial officers they are practically restricted to act in the manner as other applicants do in submitting documents and thereby most of the time fail to secure required marks to admit their children to schools under the first category. Difficulty faced by the judges in applying under above V th Category. 1) This category has been provided for the children of Government entities, Cooperation, Statutory boards and state bank officer’s Children to get admissions to schools. Ministry of Education has allocated a 4% share for it. Article 170 of the constitution specifically excludes the judicial officers from the category of public officers. Accordingly, even though public officers are provided with a scheme to admit their children to school, judicial officers as the officers of a separate arm of the government are not provided with a scheme. Due to unavailability of a scheme judicial officers are compelled to apply under the category V, which is intended for public officers. 2) Transfer procedure of the judicial officers completely different from other public officers. While the annual transfer list of judges decided in November, the transfers of judges implemented on exigencies of service around the year, by the Judicial Service Commission. Since application for admitting children for grade 1 called in the month of July, most of the judicial officers will not in a position to apply on due time. 3) Since judges are required to serve in any part of the country due to the special nature of the service, most of the judges do not accompany their family members with them. The reason for this is the likelihood of him getting transferred to another station at any moment. Therefore, most judges are not in a position to get their children admitted to schools as done by the other public officers. 4) There are only a limited number of Magistrates and District Judges in Sri Lanka. Among them only few judges serve in main cities like Colombo, Kandy and Galle. In contrast the public sector consists of many government institutions and public officers in main cities. Annually large number of public officers are transferred to said institutions in the main cities. Since most of the court houses consist only one or few 11 JSA News Letter 2018 Volume 01 judges most of the judges will not be in a position to get a transfer to main cities for the purpose of admitting the children to schools. In such circumstances judges will have to compete with other public officers to secure a place for their children for schools and due to restrictions placed on judges the chances of securing required marks are low in such instances. The nature of the transfer system and the requirement necessitated by Judicial Service Commission in selecting the residence has contributed to this situation. 5) Further in this criterion also to secure the required marks the judicial officer must reside near the intended school. Bur as explained earlier since judicial officers are required to reside in the bungalows or a place approved by the Judicial Service Commission it is impossible to secure required marks to admit the children. Judicial officers are restricted from socializing in the area they are stationed. They face many practical difficulties in their jurisdiction in the event of admitting their children to schools in the very jurisdiction they work. It is difficult to maintain independency in court when the cases of the school principals, teachers and parents are reported to the courts, especially when the judge has to attend parent’s teachers meeting at the school. Due to this reason most judges are very particular about selecting a school for their children and most of the judges are prefer to select a school out side their jurisdiction. Since admitting a child to a school, a very sensitive and personal issue, non-availability of a proper mechanism would make room for the judicial officers to meet politicians and other government official to secure a place for their children to schools. Such a situation would be a challenge to independent of the judiciary and would pave the ways to malpractices. Due to the above-mentioned reasons it is important to establish a separate system for judges in admitting their children to schools. In such circumstances it is respectfully suggested that the children of the judges be given the requested schools irrespective of the place of works. Considering the facts that there are only around 225 judges in the minor judiciary and the number of Children of the judges to be admitted would not be more than 10 per year, the request for establishment of a separate scheme for judicial officers would not be unreasonable. Therefore, JSA respectfully request the Judicial Service Commission to intervene in this most sensitive and personal issue of judges which have an effect on interfering in the independence of the judges, and their works, in order to maintain the dignity and independence of the judicial office. Therefore, Judicial Service Association believe that His Lordship Chief Justice and other members of the Judicial Service Commission will pay special attention to this and would take steps to establish a separate system for judges in admitting their children to schools. M.M.M. Mihal, Secretary, Judicial Service Association. 12 JSA News Letter 2018 Volume 01 IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA SEC. 83 OF THE TRUST ORDINANCE I. Did the Honourable Judges of the High Court of Civil Appeal err in law by coming to the conclusion Watagodagedara Mallika that there was no proof of a constructive trust as Vs. the Honourable Judges of the High Court of Civil 1. Hearath Mudiyanselage Punchi Banda Appeals failed to consider the evidence in relation 2.Watagode Gedara Dhammika to the attendant circumstances which are sufficient to prove a constructive trust, in that the Petitioner remained in possession of the property for nearly SC Appeal/185/15 10 years after executing the Deed of Transfer SC HCCA LA 669/14 marked “P5”. CP/HCCA/Kandy 88/2012 FA II. Whether the Honourable Judges of The High Court D.C. Kandy Case No.21558/05 of Civil Appeals erred in law by not considering the questions that the Petitioner never intended to part Before : B.P.Aluwihare, PC. J, Anil Gooneratne, J with the beneficial interests (of the property) in the & K.t.chitrasiri, J. circumstances of the case. Counsel : S.N..Vijithsingh with Abindra Perera for III. Whether the Honourable Judges of the High the Appellant. Respondents are absent Court of Civil Appeals err in law by holding that no constructive trust exists in the circumstances of and unrepresented this case. th Argued On : 15 July, 2016. The facts relating to this action are as follows: th Decided On: 04 December 2017 The Plaintiff became the owner of the property in suit Aluwihare, PC, J: through inheritance and the transfer to her of their The Plaintiff-Appellant-Appellant (hereinafter referred shares by some of her relatives. She, along with her to as the Plaintiff) filed action in the District Court husband lived in the house that was standing thereon, against the 1st and 2nd Defendant-Respondents- approximately 27 perches in extent. In addition, there is Respondents (hereinafter referred to as 1st and 2nd one other building standing there on that was used by Defendants, respectively) and sought a declaration the plaintiff and her husband who were engaged in the against the 1st Defendant that the property which is the business of running a bakery. subject matter of this case is held by the 1st Defendant There had been two distinct transactions germane to in trust for her, and to declare the deed of transfer this action where the Plaintiff was involved. executed by the 1st Defendant in favour of the 2nd According to the Plaintiff, in the year 1999, she borrowed Defendant, null and void. a sum of Rs. 20,000/-from the 1st Defendant whom The learned District Judge gave judgment in favour of the plaintiff claimed, is a money lender. This assertion the defendants and dismissed the action of the Plaintiff remains un-assailed. In furtherance of this transaction on the basis that the Plaintiff had failed to prove her the plaintiff executed a deed P5, which is dated 5th July, case on a balance of probability.The High Court of 1999. The deed P5, is ex facie, a deed of transfer for a Civil Appeals by its judgment dated 11th November, consideration of Rs.20,000. Plaintiff in her evidence 2014, dismissed the appeal of the Plaintiff and affirmed had said that the value of the property is approximately the judgment of the learned District Judge which Rupees five hundred thousand (Rs.500,000). judgement the Plaintiff is challenging before this court. The Plaintiff, however entered into a second transaction This court granted leave to appeal on the following in December of that year with the 2nd Defendant, who questions of law: happened to be her own cousin, the 2nd Defendant being the son of the Plaintiff ’s mother’s brother. 13 JSA News Letter 2018 Volume 01 IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA Whereby the Plaintiff leased an undivided portion of At the hearing of this case, the learned counsel for the the property in suit, an extent, 30 feet by 20 feet to the Plaintiff-Appellant, strenuously argued that both the 2nd Defendant for a sum of Rs.15,000, for a period of District Court and the High Court of Civil Appeals, 15 years in 1999. The lease which had been notarialy had totally misdirected themselves with regard to the executed, was produced at the trial (P6). The said requirement of attendant circumstances which are vital indenture (P6) permits the lessee (2nd Defendant), at to bring a transfer of property within the meaning of his expense, to put up a structure with a concrete roof Section 83 of the Trust Ordinance. on the portion of the land leased out to him. Further It was pointed out by the learned counsel that there had the indenture estops the 2nd Defendant from demanding been a total failure on the part of the learned District any payment in respect of the expenses incurred for the Judge to evaluate the evidence in the correct perspective construction of the building. and on the other hand had failed to consider vital items It appears that, as per the lease agreement, the 2nd of evidence in arriving at his conclusions. The learned Defendant has put up a structure and has been carrying counsel submitted that the misdirections on the part of on his business activities from that location since then. the District Judge and the same lapses, had permeated the In the year 2005, a dispute had arisen between the 2nd judgment of the High Court of Civil Appeals and they Defendant and the Plaintiff when the 2nd Defendant too failed to appreciate evidence placed before the court made an attempt to prepare a building site on the by the Plaintiff which had gone largely unchallenged. property in suit and the 2nd Defendant had disclosed that The learned counsel drew the attention of the court to a he had purchased the property from the 1st Defendant. passage of the judgment of the High Court wherein the Plaintiff had promptly lodged a complaint to that effect learned judges of the High Court of Civil Appeals had with the Galagedara Police which had been produced at referred to the position taken up by the Plaintiff which the trial marked P8. is reproduced below: In the said statement the Plaintiff had taken up the “The second contention of the appellant is that the position that she borrowed Rs.20,000 from the 1st 1st respondent (1st Defendant) had not appeared in Defendant and that she continued to pay the interest the trial court, therefore, since his (her) evidence was and when she approached the 1st defendant to settle the unchallenged, the learned District Judge could have amount borrowed and to have the property redeemed, acted on his (her) evidence. But what the appellant the 1st Defendant had informed that he had sold the (Plaintiff) has forgotten is that the same evidence had property in question to the 2nd Defendant. been challenged by the 2nd respondent (2nd defendant) as It was then that the Plaintiff had taken the initiative to he had totally denied of the existence of a trust between file an action in the District Court against the 1st and the parties. (The emphasis is mine) 2nd Defendants. I am of the view that the High Court of Civil Appeals The 1st Defendant after filing answer had not participated fell into the same error made by the learned District in the trial. The trial against the 1st Defendant had Judge, when they too made the same observation, and if proceeded ex parte while the 2nd Defendant had the learned District Judge had decided the non-existence contested the case, claiming the land and had taken part of a trust, based on the denial by 2nd Defendant of the in the proceedings. existence of the same, as claimed by the judges of the Both the 1st and 2nd Defendants did not respond to High Court of Civil Appeals, their finding cannot be the notices issued by this court when this matter was correct, for the reason that the 2nd Defendant was not supported for leave to appeal and also at the hearing. privy to any of the transactions that took place between Both were throughout absent and unrepresented. That the Plaintiff and the 1st Defendant which were solely had been the case before the High Court of Civil between two of them. Appeals as well 14 JSA News Letter 2018 Volume 01 IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA The 2nd Defendant came into the picture only seven the land consequent to the lease and before he bought months after the transaction between the Plaintiff and the property from the 1st Defendant, the 2nd Defendant the 1st Defendant and seven months after the deed P5 had put up a building on the land and had carried on was executed as well. He came to the land only as a lessee business for about three years, but the 1st Defendant and that transaction was also confined to the plaintiff neither raised any objection nor took any action to evict and the 2nd Defendant as the 1st Defendant was not him from the property. even in the picture as far as the transaction relating to With regard to the inaction on the part of the 1st the lease. Similarly that transaction was confined to the Defendant, the 2nd Defendant had said that the 1st plaintiff and the 2nd Defendant. The 1st Defendant was Defendant complained to him and he in turn requested never privy to the lease in question. the Plaintiff to get the property redeemed, but the Then, what knowledge did the 2nd Defendant had to Plaintiff did not do so. The 2nd Defendant had said that speak with regard to the existence of a trust? If at all, it after a lapse of about 2 to 3 years he (the 2nd Defendant) would have been necessarily based on knowledge gained bought the property from the 1st Defendant. from third parties and would tantamount to hearsay and The applicable law:- cannot be acted upon in the absence of any other person Section 83 of the Trust Ordinance states that: who had first-hand knowledge giving evidence on the issue. “Where the owner of a property transfers or bequeaths it, and it cannot reasonably be inferred The main issue that this court is called upon to decide consistently with attendant circumstances that is whether the facts adduced in this case are sufficient he intended to dispose of the beneficial interest to establish a constructive trust and whether the High therein, the transferee or legatee must hold such Court of Civil Appeals gave its mind to the said issue in property for the benefit of the owner or his legal the correct perspective. representative” Before I consider the issue referred to above, I wish to One needs to bear in mind that where a constructive refer to the evidence of the 2nd Defendant, albeit briefly. trust within the meaning of Section 83 of the Trust nd 2 Defendant admitted that the Plaintiff is in possession Ordinance is asserted, it is incumbent on the court to of the impugned property and she was living there even meticulously examine the evidence placed before the on the date he testified in court. He also admitted that court, the reason being, on the face value the evidence a portion of the land was given to him on a lease by placed may give the appearance of a straight forward the Plaintiff for a period of 15 years and as per the transaction of a sale but the real intention of the Indenture of lease, he put up a structure. It is significant parties can only be gleaned from a close scrutiny of the nd that the 2 Defendant had said, that after the lease circumstances under which the transaction was effected. was executed, he came to know that the Plaintiff has And the intention of the parties is of paramount transferred the property in favour of the 1st importance. nd Defendant. In the year 2004, the 2 Defendant says It is in this context that our courts have consistently st he bought the property from the 1 Defendant, but held that the provisions of the Prevention of Fraud did not request the Plaintiff to vacate the same, nor Ordinance and Section 92 of the Evidence Ordinance did he take any steps to cancel the lease, even after he do not bar parole evidence to be led to establish the nd bought the property. In his evidence, the 2 Defendant attendant circumstances contemplated in Section 83 had stated that he requested the Plaintiff to have the of the Trust Ordinance, when a court is called upon property redeemed, but he was told by the Plaintiff that to decide on the intention of the parties, in relation to she is not in a position to do so and it was thereafter transfer of property. that he got the property transferred in his name. What is also significant is, upon coming into occupation of 15 JSA News Letter 2018 Volume 01 IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA This aspect was considered in the case of Dayawathie burden on the transferor to prove facts bringing and others Vs. Gunesekera and another 1991 1SLR 115 himself within Section 83 of the Trust Ordinance. as well as in the case of Muttamma Vs. Thiagaraja 62 Once a party adduces facts (circumstances) in NLR 559. In the case of Thiagaraja (supra) Fernando that respect, the court, however, has a duty to J (as he then was) in reference to Section 2 of the consider the cumulative effect of circumstances Prevention of Fraud Ordinance and Section 92 of the so placed before arriving at a finding on the issue. Evidence Ordinance stated that; Although our courts have in several judgements “The plaintiff sought to prove the oral promise referred to several facts that a court ought to to reconvey not in order to enforce that promise, consider in deciding this issue, one must bear but only to establish an “attendant circumstances” in mind it is not an exhaustive list of attendant from which it could be inferred that the beneficial circumstances, as, a circumstance is attendant or interest did not pass. Although that promise was not would depend on the facts of each case. of no force or avail in law by reason of section Thus, the court cannot move away from its 2 of the Prevention of Frauds Ordinance, it is responsibility of scrutinising these facts in the nevertheless a fact from which an inference of the backdrop of the peculiarities of the case before nature contemplated in section 83 of the Trusts it. In most of these transactions, the transferor Ordinance properly arises. The Prevention of or the borrower if it’s a case of loan, is motivated Frauds Ordinance does not prohibit the proof by the need to overcome a dire financial of such an act. If the arguments of counsel circumstance and a money lender on the other for the appellant based on the Prevention of hand will endeavour to secure the collateral with Frauds Ordinance and on section 92 of the minimum of conditions. It is in that context Evidence Ordinance are to be accepted, then it that we see, even in a case of lending money, the will be found that not only section 83, but also transfer is one that is straightforward, bereft of many of the other provisions in chapter IX of any conditions.” (Emphasis added) the Trusts Ordinance will be nugatory. If for Scrutiny of the judgment of the learned District Judge example “attendant circumstances” in section 83 reveals that, apart from a sweeping statement holding means only matters contained in an instrument that the Plaintiff had failed to establish a constructive of transfer of property, it is difficult to see how trust, the learned District judge had failed to give his a conveyance of property can be held in trust mind to numerous “circumstances” that the court ought unless indeed its terms are such as to create an to have given its mind to, in order to draw inferences as express trust”. to the intention of the parties. The High Court of Civil Appeals in its albeit brief As referred to earlier in a case of this nature a court judgment had also not referred to any of the attendant cannot ignore the attendant circumstances adduced and circumstances adduced on behalf of the Plaintiff. is required to give its mind to circumstances established and decide, as to whether it can be reasonably inferred On the face value of the impugned deed P5, the land that the parties concerned did not intend to part with in extent of 27 perches, with two buildings standing the beneficial interest of the property. thereon had been sold for Rs.20,000/-. The Plaintiff had stated that its true value is around Rs.500,000/-. At this point I wish to refer to the views expressed by The 2nd Defendant in his evidence, presumably giving L.J.M Cooray with approval, in his book “The reception evidence with an intention to safeguard his rights had in Ceylon of the English Trust 1971” said that, the value of the property is between Rs.50,000 “No doubt as held in the case of Sinna Lebbe v. or Rs.100, 000. Even going by the conservative estimate Pathumma 3. C.L R 98 and Fernando v. Fernando of the 2nd Defendant, the value of the property is five 35 N.L.R 154, where a person has a notarial times more than what is stated in the deed of transfer conveyance in his favour, courts have placed a P5. 16 JSA News Letter 2018 Volume 01 IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA Furthermore, the Plaintiff had leased out a portion of The 2nd Defendant (the lessee) who happened to be a 30 feet by 20 feet out of the land 27 perches in extent cousin of the Plaintiff admitted in his testimony that to the 2nd Defendant for a period of 15 years for a sum he did not keep the Plaintiff informed from whom he of Rs.15,000. If that be the case, the actual value of the leased the property that he is planning to buy the land land necessarily has to be far in excess of Rs.20,000. from the 1st Defendant. On the other hand, the Plaintiff by leasing out a portion The suppressing of this transaction exposes the sinister of the land to the 2nd Defendant even after the execution motives on the part of the 1st and 2nd Defendants. of the deed of transfer in favour of the 1st Defendant Neither the learned District Judge nor the judges of (P5) demonstrates that the Plaintiff had acted as the the High Court of Civil Appeals, had discredited the owner of the impugned property. evidence of the Plaintiff. The only reason both courts Even when one considers the conditions of the lease, held in favour of the Defendants was that the plaintiff which says the lessee (2nd Defendant) is required to had not adduced attendant circumstances from which leave the improvement made to the leased-out portion could be drawn the inference that the Plaintiff had not of the land and the lessee is not entitled to claim any intended to dispose of the beneficial interest of the payment for such improvements from the Plaintiff. This property. condition of the lease is another factor that demonstrate It appears that both the District Court and the High again, that the Plaintiff intended to enjoy the property, Court of Civil Appeal ignored all the circumstances after the expiry of the lease. The 1st Defendant, the referred to above, and fell into error, treating the purported owner, on the other hand did not raise transaction between the Plaintiff and the 1st Defendant a whimper of protest when the 2nd Defendant put as a straight forward sale. up a structure on the property in suit and carried on I have mentioned earlier in this judgement that the 1st business, which could hardly considered as the natural Defendant did not challenge the evidence adduced by the and a probable conduct of an owner of a property. Plaintiff which evidence High Court of Civil Appeals The impugned deed P5 was executed in 1999. Neither have ignored. To reiterate, the High Court of Civil the 1st Defendant nor the 2nd Defendant who claims he Appeals fell in to the same error when it concluded that purchased the property in suit from the 1st Defendant, there was no trust on the basis of the 2nd Defendant`s had taken any step to evict the Plaintiff from the evidence, whereas the evidence clearly showed, that the property. 2nd Defendant was not privy to the transaction between It was the Plaintiff who lodged a complaint in 2005 the Plaintiff and the 1st Defendant. (P7) with the Police, when the 2nd Defendant made It was only the 1st Defendant who was capable of an attempt to clear a portion of the land and sought shedding a different light on the transaction between the intervention of the Police in preventing the 2nd the parties and the failure of the 1st Defendant to do Defendant effecting any changes to the property. so strongly militate against any argument that deed of Plaintiff in her evidence has said that the 1st Defendant transfer (P5) was an out and out transfer between the is a moneylender, which has not been controverted. It Plaintiff and the 1st Defendant. is the position of the Plaintiff that they continued to Considering the attendant circumstances, I am of the pay the interest as agreed and when they approached view that the transaction was only a nominal transfer the 1st Defendant to have the property re-transferred and the Plaintiff had only pledged her property to upon accepting the capital which was Rs.20,000/-, obtain a loan. Accordingly, I answer the questions of the 1st Defendant avoided them. There appears to be law on which leave was granted as follows: some credence to this assertion of the Plaintiff. The I. The High Court of Civil Appeal erred in law Defendant after filing an answer, did not take part in the by arriving at the conclusion that there was no trial before the District Court nor did he appear before proof of a constructive trust. the High Court of Civil Appeals. 17 JSA News Letter 2018 Volume 01 IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA II. The High Court of Civil Appeal erred in law by Written Submission 11.11.2016 by not considering the question that the Plaintiff never the Petitioner-Petitioner- Petitioner- intended disposal of the beneficial interest of the Appellant. impugned property. Decided on : 23.3.2018 III. The High Court of Civil Appeal erred by holding Sisira J De Abrew J that there was no constructive trust exists in the Plaintiff Judgment Creditor Respondent-Respondent- circumstances of this case. Respondent (hereinafter referred to as the Plaintiff- Accordingly, both the judgment of the High Court Respondent) filed action against the Defendant th of Civil Appeals dated 11 November, 2014 and the Judgment Debtor Respondent-Respondent-Respondent th judgment of the learned District Judge dated 29 July, (hereinafter referred to as the Defendant-Respondent) 2011 are hereby set aside. to get a declaration that the Defendant-Respondent was I further hold that Plaintiff is entitled to relief prayed holding property in dispute in trust for the Plaintiff- in prayers (w) and (wd) of the plaint of the plaintiff Respondent; that in the event of the Defendant- dated 10th February, 2005. The learned District Judge Respondent failing to execute a deed in favour of the of Kandy is directed to enter decree accordingly. Plaintiff-Respondent to direct the Registrar of the The Plaintiff is entitled to the cost of this court and court to execute the deed in favour of the Plaintiff- the courts below. Respondent; and to eject the Defendant-Respondent Judge Of The Supreme Court and her agents from the property in dispute. The case was decided ex-parte since the Defendant-Respondent did Justice Anil Goonaratne not respond to the summons. The ex-parte judgment was I Agree. delivered on 13.6.2015. The writ against the defendant- Judge Of The Supreme Court Respondent was executed on 21.6.2006. The fiscal Justice K.t.chitrasiri broke open the house (the property in dispute) which I Agree. had been padlocked and handed over the possession of the property to the Plaintiff-Respondent. Thereafter Judge Of The Supreme Court on 4.7.2006 the Petitioner-Petitioner-Petitioner- Appellant (hereinafter referred to as the Petitioner- CONSIDERATIONS IN AN APPLICATION Appellant) filed a petition under Section 328 of the UNDER SEC.328 OF THE CPC Civil Procedure Code (hereinafter referred to as the Appuhannadige Kotahewage Lesly Ariyasinghe. CPC) to restore him in possession. The learned District Vs Judge by order dated 23.9.2013 refused the application 1. Kusuma Sri Wanasinghe of the Petitioner-Appellant. Being aggrieved by the said order of the learned District Judge the Petitioner- 2. Princymala Abeysuriya. Appellant filed an appeal in the Civil Appellate High Court. The Civil Appellate High Court by its judgment SC Appeal 176/2016 dated 7.12.2015 dismissed the appeal. Being aggrieved SC/HCCA LA 23/2016 by the said judgment of the Civil Appellate High Court, WP/HCCA/AV305/2013(Rev) the Petitioner-Appellant has filed this appeal in this DC Homagama Case No.7621/RE court. This court by its order dated 29.9.2016 granted leave to appeal on question of law set out in paragraph Before : Sisira J De Abrew J, NalinPerera J, 24(iii) of the petition of appeal dated 14.1.2016 which Prasanna Jayawardena PC J is stated below. Argued on : 26.1.2018 18 JSA News Letter 2018 Volume 01 IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA Have the Honourable Judges of the Civil Appellate High fifteen days of the service of the petition on him. Court not considered the possession of the Petitioner- Upon such objections being filed or after the Appellant in the form of constructive trust? expiry of the date on which such objections were Facts of this case may be briefly summarized as follows: directed to be filed, the Court shall, after notice The Defendant-Respondent by Deed No.186 attested to all parties concerned, hold an inquiry. Where by Gallage Indika Jayanth Perera Notary Public marked the Court is satisfied that the person dispossessed P9 sold the property in dispute to Wilfred Rohan was in possession of the whole or part of such Senaratne on 6.5.2004. Wilfred Rohan Senaratne by property on his own account or on account of Deed No.228 attested by RD Attanayake marked P5 sold some person other than the Judgment debtor, it the property in dispute to Suresh Danial and Chandrika shall by order direct that the Petitioner be put Bernard on 30.6.2004. Suresh Danial and Chandrika into possession of the property or part thereof, as Bernard on the same day (30.6.2004) mortgaged it to the case may be. Every inquiry under this section a Finance Company. After redeeming the mortgage, shall be concluded within sixty days of the date said Suresh Danial and Chandrika Bernard by Deed fixed for the filing of objections.” No.235 attested by ND Hirimuthugala marked P1 sold In order to succeed in an application under Section the property in dispute to the Petitioner-Appellant on 328 of the CPC, the person dispossessed must prove 20.3.2006. The Plaint was filed in the District Court that he was in possession of the property when the on 6.7.2004 against the Defendant-Respondent Princy writ was executed. The Petitioner-Appellant who was Mala Abeysooriya. Therefore it is seen that when the dispossessed from the property in dispute filed an plaint was filed, the Defendant-Respondent (Princy application under Section 328 of the CPC. The learned Mala Abeysooriya) was not the owner of the property. As District Judge dismissed the said application of the I pointed out earlier, the Defendant-Respondent Princy Petitioner-Appellant. The basis of the conclusion of the Mala Abeysooriya on 6.5.2004 had sold the property in learned District Judge appears to be that the Petitioner- dispute to Wilfred Rohan Senaratne. The writ issued by Appellant was not occupying the property in dispute the District Court was executed on 21.6.2006. When at the time of execution of the writ (21.6.2006). The the writ was executed the owner of the property was learned District Judge in his judgment has also observed the Petitioner-Appellant by virtue of Deed No.235 that the Petitioner-Appellant was not in possession of the dated 20.3.2006. The learned District Judge dismissed property in dispute. But the learned District Judge has, the application of the Petitioner-Appellant filed under on the basis of the evidence of the Petitioner-Appellant, Section 328 of the CPC. The most important question observed that the Petitioner-Appellant had received the that must be decided in this case is whether the above keys of the property in dispute on 30.4.2006. The writ conclusion reached by the learned District Judge is issued by the District Court was executed on 21.6.2006. correct or not. Section 328 of the CPC reads as follows. This shows that he had obtained possession of the “Where any person other than judgment- property in dispute before the execution of the writ. It debtor or a person in occupation under him is is an undisputed fact that on 21.6.2006 (the day of dispossessed of any property in execution of the execution of the writ) the Petitioner-Appellant was a decree, he may,within fifteen days of such not in the country as he had gone abroad. If a person dispossession, apply to the Court by petition does not occupy a property, does it mean that he does in which the judgment-creditor shall be named not possess the property? In my view, occupation and respondent complaining of such dispossession. possession are two different things. One can possess The Court shall thereupon serve a copy of such a property without occupying the same. To prove petition on such respondent and require such possession it is not necessary to prove that he or she respondent to file objections, if any, within lives in the property or occupies the property. In the present case, the Petitioner-Appellant purchased the 19 JSA News Letter 2018 Volume 01 IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA property on 20.3.2006. The Petitioner-Appellant after of the property at the time of execution of the writ. purchasing the property, had made an application to the 3. The person making the application was dispossessed Ceylon Electricity Board (CEB) to convert electricity in of the property as a result of the execution of the his name. In the said application marked P14, the Grama writ. Niladhari has made an endorsement on 11.5.2006 to When I consider all the aforementioned matters, I the effect that the Petitioner-Appellant was the present hold that the Petitioner-Appellant has proved that he occupier of the property in question. He has also made is not the judgment debtor or not a person occupying an endorsement to the effect that ‘not in occupation’. the property in dispute under him; that he was in The Grama Niladhari in her evidence has stated that possession of the property in dispute at the time of she certified the said application marked P14 on the execution of the writ; that he was dispossessed of basis that the Petitioner-Appellant is the owner of the the property in dispute as a result of the execution property and that she did so after examining the relevant of the writ; and that he was possessing the property deed. The CEB has after examining the said application at the time of dispossession on his own title derived P14 has converted the electricity in the name of the from deed No.235 dated 20.3.2006 attested by ND Petitioner-Appellant on 11.5.2006. The writ was Hirimuthugoda Notary Public. I therefore hold that executed on 21.6.2006 when keys of the property were the Petitioner-Appellant has satisfied the requirements with the Petitioner-Appellant. The Petitioner-Appellant under Section 328 of the CPC. Considering the all the in his evidence has clearly stated that when he purchased aforementioned matters, I hold that the learned District the property in dispute he received the keys from the Judge erred when he refused the application of the previous owner; that thereafter repaired the house; Petitioner-Appellant made under Section 328 of the that when the carpenters were repairing the house the CPC. The learned Judges of the Civil Appellate High doors of the house were opened; that he possessed the Court have failed to consider the above matters and property in dispute on his own title; that he purchased have affirmed the order of the learned District Judge. I the property after studying advertisement published in hold that the judges of the Civil Appellate High Court Silumina News Paper; that he purchased the property as too misdirected themselves on facts and law when they an investment; and that when the Plaint was filed by the affirmed the order of the learned District Judge. For Plaintiff-Respondent, the Defendant-Respondent was the above reasons, I answer the above question of law not even the owner of the property. When I consider the as follows. ‘The Petitioner-Appellant was in possession above material, it is clear that the Petitioner-Appellant of the land on his own title and was not a judgment was in possession of the property in dispute when the debtor or not a person holding the property under the writ was executed and that he was dispossessed. The judgment debtor.’ Petitioner-Appellant was not the judgment debtor For the aforementioned reasons, I set aside the order or is not a person in occupation under the judgment of the learned District Judge dated 23.9.2013 and the debtor. When I consider all the aforementioned matters, judgment of the Civil Appellate High Court dated I am of the view that the Petitioner-Appellant has no 7.12.2015. I hold that the Petitioner-Appellant has connection whatsoever with the judgment debtor in this succeeded in the application under Section 328 of the case. CPC and that he should be restored in possession of In order to succeed an application under Section 328 the property in dispute forthwith. The learned District of the CPC the following matters must be established. Judge is hereby directed to take all necessary legal steps 1. The person making the application is not the to restore the Petitioner-Appellant in possession of the judgment debtor or is not a person holding the property in dispute. The Petitioner-Appellant is entitled property under the judgment debtor. to the costs from the Plaintiff-Respondent in all three 2. The person making the application was in possession courts. 20 JSA News Letter 2018 Volume 01 IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA The Petitioner-Appellant is restored in possession of aggrieved by the amount of permanent alimony ordered the property. by the learned District Judge, the Plaintiff-Respondent appealed to the Civil Appellate High Court (hereinafter Judge of the Supreme Court. referred to as the High Court). The High Court holding Nalin Perera J that the amount of permanent alimony ordered by the learned District Judge was highly excessive, reduced it I agree. to Rs.700,000/-. Being aggrieved by the said order of Judge of the Supreme Court the High Court, Defendant-Appellant has appealed to this court. This court by its order dated 23.5.2017 Prasanna Jayawardena PC J granted leave to appeal on questions of law set out in paragraphs 17(b), (g) and (h) of the Petition of Appeal I agree. dated 24.2.2015 which are set out below. Judge of the Supreme Court. 1. Did the High Court of Civil Appeal err in law by reducing the alimony from Rs.18,00000/- to Rs.700,000/- in the circumstances of the case? CALCULATION OF ALIMONY- DEVORCE 2. Did the High Court of Civil Appeal err in law Rate Ralalage Gedera Anuradha Chathurangani by failing to take cognizance of the fact that by Vs reducing the amount of alimony sought for when Mahamarakkalage Mahindarathne there was no objection from the Respondent in SC Appeal 95/2017 relation to the permanent alimony claimed by the SC/HC(CA) LA 203/2014 Petitioner? SP/HCCA/TA Tangalle 10/2012(F) 3. Did the High Court of Civil Appeal err in law by DCHambantota FD 4167 failing to give reasons in reducing the quantum of alimony from Rs.18,00000/- to 700,000/-? Before : Sisira J De Abrew J, NalinPerera J, Vijith The Plaintiff-Respondent is a Government teacher. The Malalgoda PC J learned District Judge according to the evidence placed Argued on : 21.9.2017 before him concluded that the salary of the Plaintiff- Respondent was Rs.23,000/- at the time of filing the Decided on: 22.1.2018 action. The learned District Judge considering the above Sisira J De Abrew J salary of the Plaintiff-Respondent concluded that the Plaintiff-Appellant-Respondent-Respondent monthly amount entitled by the Defendant-Appellant (hereinafter referred to as the Plaintiff-Respondent) filed was Rs.4625/-. There is no dispute about this figure. an action against his wife to obtain a decree of divorce According to the evidence, at the time of filing the on the ground of malicious desertion. The Defendant- action the Plaintiff-Respondent was 48 years old and Respondent-Petitioner-Appellant (hereinafter referred the Defendant-Appellant was 34 years old. The learned to as the Defendant-Appellant) filed answer requesting District Judge concluded that the Defendant-Appellant a decree of divorce on the ground of constructive was entitled to 30 years of alimony at the rate of malicious desertion. She also asked for permanent Rs.4625/- per month. Thus the amount ordered by the alimony of Rs.5.0 Million. After trial, the learned learned District Judge was (4625x12x30=16,65,000/-) District Judge holding in favour of the Defendant- Rs.16,65,000/-. In addition to the above amount the Appellant granted her the divorce. He also ordered learned District Judge concluded that the Plaintiff- the Plaintiff-Respondent to pay Rs.18,65000/- as a Respondent should pay Rs.200,000/- on the basis permanent alimony to the Defendant-Appellant. Being that he receives income from his properties. However 21 JSA News Letter 2018 Volume 01 IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA the learned District Judge in his judgment observed Held further, that in deciding the amount of permanent that although the Defendant-Appellant claimed that the alimony no fetter was imposed by section 615 of the Plaintiff-Respondent has two acres of paddy land and Civil Procedure Code on the discretion of the Judge. five acres of coconut land, it has not been proved. The Nor was the Judge bound by the amount awarded as Plaintiff-Respondent has, in his evidence, stated apart alimony pendente lite.” from the government salary he does not get any other Wijeratne Vs Wijeratne 73 NLR 546 Supreme Court income. He has further stated that he does not have held as follows. five acres of coconut. The learned District Judge has “In an action for divorce, sufficient ground observed in his judgment that the Defendant-Appellant must be shown before the Court can award as had not proved the amount of monthly income that permanent alimony a sum in excess of the amount the Plaintiff-Respondent receives from his paddy and claimed by the wife as alimony pendent lite.” coconut lands. Therefore granting the above sum of Rs.200,000/- is, in my view, wrong and has to be set The learned District Judge decided to grant permanent aside. The learned Judges of the High court in their alimony for the next 30 years at the rate of Rs.4625/- judgment have considered most of the matters which per month on the basis that the life expectancy in this I have stated above. Considering all the above matters country 75 years of age. Can anybody predict the life I hold that the learned High Court Judges were correct expectancy of a human being? No one can answer this when they decided to remove Rs.200,000/- from the question because life is uncertain. In this country the amount ordered by the learned District Judge. Judges have departed the world whilst holding office.It The next question that must be decided is whether the has to be stated here that this situation does not always amount calculated by the learned District Judge for 30 exist. Court must be reasonable in deciding the amount years on the basis of Rs.4625/- per month is excessive of alimony. According to the learned District Judge’s or not. Learned counsel for the Defendant-Appellant order the Plaintiff-Respondent should pay alimony cited the following judicial decisions. for 18 years even after his retirement. The calculation In Mathew Vs Mathew 57 NLR 511 the Supreme done by the learned District Judge is, in my view, is Court held as follows: unreasonable. “The Court, when granting a decree of separation The learned District Judge when calculating the amount in favour of a wife, ordered the husband to pay an of Rs.4625/-, observed that another sum could be annual sum o f R s. 20,400 in monthly instalments added considering the inflation in the country. But of Rs.1,700. With a view to securing for the wife there is no evidence placed before court regarding the the payment of the annual sum of Rs.20,400 rate of inflation. The learned District Judge appears to the husband was ordered to hypothecate certain have made the said observation to justify the ordering immovable property specified in the decree. of the amount even after retirement of the Plaintiff- Held, (i) that the order for hypothecation of Respondent. Although the Plaintiff-Respondent could immovable property did not fall within the ambit earn his salary increments, there is no evidence before of either sub-section 1 or sub-section 2 of section court about his salary increments. When I consider 615 of the Civil Procedure Code and could not all the above matters, I feel that it is not reasonable therefore stand. to order the same amount to be paid even after the retirement of the Plaintiff-Respondent. But the order (ii) that the order for paying the annual sum of to pay Rs.4625/- per month prior to retirement of the Rs, 20,400 in monthly instalments did not come Plaintiff-Respondent is, in my view, reasonable. At the within the ambit of sub-section 1 of Section time of filing the action the Plaintiff-Respondent was 615 of the Civil Procedure Code but could be treated as an order falling within the ambit of 48 years old. His retiring age is 60 years. Therefore the sub-section 2. decision to pay alimony for a period of 12 years at the 22 JSA News Letter 2018 Volume 01 IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA rate of Rs.4625/- per month (4625x12x12=666,000) dismissed. Considering the facts of this case I do not is, in my view, reasonable. Since the Plaintiff- make an order for costs. Respondent is a Government servant it is reasonable to Judge of the Supreme Court. conclude that after retirement he would get a pension of 80% of his salary. Then considering the amount of Nalin Perera J Rs.4625/-, the monthly amount after retirement would be (4625x80/100) Rs.3700/- I agree. In my view the conclusion reached by the learned Judge of the Supreme Court. District Judge that the Plaintiff-Respondent should pay Rs.4625/- per month even after the retirement of the Vijith Malalgoda PC J Plaintiff-Respondent is erroneous. The next question I agree. that must be considered is that the period for which that the Plaintiff-Respondent should pay alimony after Judge of the Supreme Court. his retirement. As I pointed out earlier no one could predict the life expectancy of a human being. In my SIGNIFICANCE OF SEC. 40 OF THE FOREST view it is reasonable to order five years of alimony at ORDINANCE, DIFFERENCE OF ABSOLUTE the rate of Rs.3700/- per month after the retirement of the Plaintiff-Respondent. This amount would be OWNER- OWNER (3700x12x5=222,000/-) Rs.222,000/-. Considering Ceylinco Leasing Corporation Limited all the above matters, I hold that the Defendant- Vs. Appellant would be entitled to receive a permanent M.H.Harison Officer in Charge Police Station alimony as follows: Kuttigala and others 4625x12x12= 666,000 Supreme Court : SC (SPL)LA 181/11 3700x12x5=222,000 Court of Appeal: CA(PHC)APN45/11 Provincial The total amount would be Rs.888,000/- High Court of Sabaragamuwa sitting in Embilipitiya The learned High Court Judges have given reasons Case No. RA 24/2009 M.C Embilipitiya Case No: when they reduced the amount ordered by the learned 11982 Supreme Court Appeal No.43/2012 District Judge. But in my view the amount ordered by the learned District Judge cannot be considered to be Before : Buwaneka.Aluwihare, PC J. reasonable. Priyantha Jayawardena, PC, J. & For the aforementioned reasons, I answer the 1st question Anil Gooneratne, J. of law in the affirmative, but the 2nd question of law does not arise for consideration. The 3rd question of law Argued On : 08.12.2016 is answered as follows. Decided On: 07.12.2017 “The learned Judges of the High Court did not Aluwihare, PC, J: give sufficient reasons when they reduced the In this matter Court granted special leave to appeal on alimony from 18 lakhs to 700,000.” the following questions of law: I have decided that the Defendant-Appellant is I. Does the word “owned” referred to in Section 40 entitled to Rs.888,000/- as a permanent alimony. The of the Forest Ordinance (Prior to its amendments) learned District Judge is directed to amend the decree exclude an absolute owner? accordingly. Subject to the above variation of the amount II. Is the narrow interpretation given by the Court of of alimony, the appeal of the Defendant-Appellant is Appeal to the word “owned” in Section 40 of the 23 JSA News Letter 2018 Volume 01 IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA Forest Ordinance (prior to the amendment) directly lorry to the State in terms of Section 40 of the Forest in conflict with Section 433A of the Criminal Ordinance. The order of forfeiture by the magistrate Procedure Code? had been affirmed by the Provincial High Court of Background Embilipitiya in exercising its revisionary jurisdiction, mainly on the same grounds averred to by the learned The Accused-Respondent-Respondent-Respondents magistrate. (hereinafter referred to as the Accused) were charged before the Magistrate’s Court of Embilipitiya for Aggrieved by the order made by the High Court, the violating provisions of the Forest Ordinance, allegedly Appellant invoked the revisionary jurisdiction of the transported timber without a valid permit in the lorry Court of Appeal and when the matter was supported for bearing registration number WP LB 9935. notice, by its reasoned-out order, the Court of Appeal refused to issue notice on the Respondents. When the matter was taken up before the said Magistrate’s Court on 7.10.2008, both accused pleaded The gravamen of Ceylinco Leasing, the present guilty and the Magistrate having proceeded to convict Appellant’s complaint is, that the Court of Appeal, did them, had imposed a fine of Rs.10,000 on each of the not consider the “absolute owner”, in the instant case accused. Ceylinco Leasing, as the “owner” of the lorry concerned for the purposes of Section 40 of the Forest Ordinance As the lorry alleged to have been used in the illicit (as it stood before the amendment) At the outset I wish transportation of timber also had been taken into to refer to the significance of Section 40 of the Forest custody, the Magistrate made further order fixing Ordinance. an inquiry, in order to decide as to whether the lorry concerned should be forfeited under the provisions of Forest Ordinance No.16 of 1907, is described in its the Forest Ordinance. long title as “an Ordinance to consolidate and amend the law relating to forests and felling and transport of At the inquiry, an Executive Officer of the Ceylinco timber”. Some of the provisions of the Act reflects the Leasing Corporation Ltd,(hereinafter referred to as choice of policy, in the instant case it is undoubtedly Ceylinco Leasing) the present claimant- absolute designed with a view to protect the environment. owner-Petitioner-Petitioner-Petitioner(hereinafter Large scale deforestation has resulted in an ecological referred to as the absolute owner) giving evidence stated, imbalance and which has impacted adversely on the that the registered owner of the lorry G. Susantha had environment and threatens the very survival of all entered into a hire purchase agreement with Ceylinco living beings. It is a known fact that illicit felling of Leasing in 2006. The witness made an application to the trees in forests has for long been a major threat to the court to have the vehicle released to the absolute owner, dwindling forest cover in the country. The legislative Ceylinco Leasing, stating that the registered owner had response has been the extensive provisions enacted to gone overseas after the detection of this case and further regulate the transit of timber and forest produce under that he had defaulted in the payment of installments. the provisions of the Forest Ordinance. The application to desist from forfeiture was made on the basis that Ceylinco Leasing, as the absolute owner, Section 40 of the Forest Ordinance provides for the had taken all reasonable precautions to prevent the lorry confiscation of the conveyance used to transport the concerned being used for any illegal activity. illicit timber and the provision to my mind is intended to strike at the means of transportation by providing The Magistrate while holding, that at the time relevant to for the confiscation of the conveyance used to transport the case, it was the registered owner who had possession the illicit timber, and is both a logical and legal response of the vehicle and it was incumbent on the registered to the problem of illicit felling. Even in the instant case owner to satisfy court that he had taken all reasonable the two persons who were charged happened to be the precautions to prevent the lorry being used for any driver of the lorry and another person who had been illegal activity, proceeded to make order forfeiting the seated next to the driver. Although they were in physical 24 JSA News Letter 2018 Volume 01 IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA possession of the illicit timber, may have been employees It was further contended on behalf of the Appellant of the “owner” of the lorry. Thus not much deterrence that the word “owner” includes the absolute owner is achieved by imposing punishment on the persons who as well, for the purposes of section 40 of the Forest were in actual physical possession of illicit timber, when Ordinance. In this context the learned counsel for the in most cases, the owner is behind the illegal operation. Appellant referred to section 433A of the Code of The term “owner” of the conveyance for the purpose of Criminal Procedure Act no.15 of 1979 as amended. Section 40 of the Forest Ordinance must be interpreted Section 433A reads as follows: so as to ensure that the objective of the legislature is “In the case of a vehicle let under a hire purchase achieved and not render nugatory. The plain reading of or leasing agreement the person registered as the section 40 gives the impression that forfeiture provided absolute owner of such vehicle under the Motor in terms of the said section is by operation of law, Traffic Act (Chapter 203) shall be deemed to be contingent upon the court finding the accused guilty. the person entitled to possession of such vehicle This court however in the case of Manawadu Vs. The for the purpose of this Chapter”. Attorney General 1987 2 SLR 30 held that the owner of a lorry, who is not a party to the case is entitled to Although not relevant in deciding the issues in this case, be heard on the question of forfeiture of the vehicle. reference must be made to the amendment to the Forest The jurisprudence created in the case of Manawadu Ordinance that was brought in 2009 by Act No.65 (supra) had been followed since then and now it has of 2009 which made Section 433A of the Criminal become trite law that the owner must be afforded an Procedure Code non-applicable to instances where the opportunity to be heard before an order of forfeiture is accused is found guilty or the persons accused plead made under section 40 of the Forest Ordinance. guilty to the charges. The amendment is as follows: The issue that needs to be considered is whether the 40B. The provisions of subsections (1) and (2) of “absolute owner” can be considered as the “owner” for section 433A of the Code of Criminal Procedure the purpose of the section 40 of the Forest Ordinance. Act, No. 15 of 1979, as amended by Act, No. 12 At the hearing of this appeal the learned counsel for of 1990, shall not apply to or in relation to any the Appellant relying on the decision of Manawadu Vs. person who pleads guilty to, or is found guilty of Attorney General (supra) contended, as observed by a forest offence.” Justice Sharvananda (as he was then), that section 40 The amendment referred to has no application to the of the Forest Ordinance as amended, was not intended instant case for the reason that the incident germane to to deprive an owner of his vehicle, used by the offender the present application is anterior to the amendment and in committing the forest offence without his (owner’s) in that context, one could argue, the applicability apart, knowledge and without his participation. His Lordship Section 433A was in force when the inquiry relating did not make a distinction as to the meaning of the to confiscation of the lorry was held.Two matters of word “owner” in the judgment, understandably so as significant relevance have to be taken into consideration the term “absolute owner” crept in to our law by an in deciding the issue raised on behalf of the Appellant, amendment to the Criminal Procedure Code only in i.e., application of Section 433A. 1990, three years after the case of Manawadu(supra) One is the applicability of the provisions of the Code was decided. of Criminal Procedure Act in relation to a “forfeiture The only definition that was available to the term owner inquiry” under Section 40 of the Forest Ordinance and is section 16 of the Motor Traffic Act which states: the other is, whether Section 433A has an application, “Any person who for the time being is the when the issue before court is to decide whether an order registered owner, shall for the purpose of any of forfeiture should be made, as oppose to deciding who proceedings under this Act, be deemed to be the is entitled to possession. owner of that motor vehicle” (emphasis added) 25 JSA News Letter 2018 Volume 01 IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA Section 5 of the Criminal Procedure Code stipulates (the Chapter in the present Code is XXXVIII) states that: that “the word “disposal” does not include confiscation All offences - or forfeiture, and goes on to say a provision of adjective (a) Under the Penal Code, law cannot authorize an encroachment on the legal rights of the owner of the property. As held in the case (b) Under any other law, unless otherwise specially of R v Ran Menika 28 N.L.R 348. “forfeiture is a provided for in that law or any other law, Shall punishment. Apart from section 417 (of the Criminal be investigated, inquired into, tried and otherwise Procedure Code), which authorizes destruction of dealt with according to the provision of this Code property in certain cases, the provisions of Chapter (emphasis added). XL. give powers to regulate the possession of property. Thus, the application of the provisions of the Code of (emphasis added) Justice Dalton went on to hold that Criminal Procedure Act is qualified in that the provisions “… the better authority appears to be that “disposal” of the Code of Criminal Procedure would not have any does not include confiscation or forfeiture, as a provision application if a law carries special provision in relation of adjective law cannot authorize an encroachment on to a particular aspect. the legal rights of the owner of the property.” In my view Section 40 of the Forest Ordinance is a As such I hold that the interpretation given by the stand-alone provision which is triggered when a person Court of Appeal to Section 40 of the Forest Ordinance accused of an offence under the Forest Ordinance is is not in conflict with Section 433A of the Criminal convicted and can be applied and dealt with, without Procedure Code. When the agreement is entered upon recourse to the provisions of the Code of Criminal between the Leasing Company (the absolute owner) and Procedure. the Registered owner, the Leasing Company loses not Secondly, Section 433A is a provision applicable when only the possession of the vehicle but also control of dealing with disposal of property by a Magistrate and the vehicle as well and as to how and when the vehicle a process which does not require the Magistrate to is used is entirely in the hands of the registered owner. determine the “ownership” of the property. Provisions The learned counsel for the Appellant contended that of Chapter XXXVIII of the Code of Criminal under our common law the absolute owner is the real Procedure focuses on delivering the property to the owner of the vehicle and referred to the text, Roman person who is entitled to possession of such property. Dutch Law by Professor R.W. Lee where it has defined It would be pertinent to note that in the instant case ownership to be; Dominion or ownership is the relation the magistrate in fact had acted under section 433A of protected by law in which a man stands to a thing which the Code and had correctly released the possession of he may (a) possess (b) use and enjoy (c)alienate. the vehicle to the absolute owner the present Appellant It is to be noted that the absolute owner neither has on 2.09.2008 on a bond. This order, the magistrate possession nor the ability to use and enjoy the vehicle had made, in terms of Chapter XXXVIII of the Code, and in a leasing agreement the absolute owner voluntarily which deals with disposal of productions. parts with the possession and thereby loses control over In contradistinction, Section 40 of the Forest Ordinance the vehicle. In my view the word “owner” as it occurs in requires the Magistrate to decide as to why the vehicle Section 40 of the Forest Ordinance cannot be considered should not be forfeited, once the person accused of the in isolation applying purely legal definition of the term offence is convicted. “owner” but must be given a purposive interpretation Reginald F Dias in his book “A commentary on the taking into account the intention of the legislature. Ceylon Criminal Procedure Code” Vol II at page 1166, As referred to earlier the objective the legislature intended commenting on the chapter XL of the then Criminal to achieve was to increase the severity of punishment Procedure Code that dealt with disposal of property in respect of vehicles used for transportation. Justice 26 JSA News Letter 2018 Volume 01 IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA Siva Selliah in the case of Manawadu v. O.I.C Police The Appeal is dismissed and under the circumstances, I Station Udupussellewa 1985 2 S.L.R 261 held that “A order no costs. consideration of all these enactments and amendments Judge Of The Supreme Court. establish the need, found by the legislature to increase the severity of punishment in respect of vehicles used Justice Priyantha Jayawardena P.c for transport timber and other forest produce without a valid permit” I Agree. This issue was considered by Justice Dep (as he then Judge Of The Supreme Court. was) in the case of Range Forest Officer Ampara Vs. Justice Anil Gooneratne Orient Financial Services Corporation Ltd. SC Appeal 120/2011 – Supreme Court Minutes of 10.12.2013 I Agree. and his Lordship held “When it comes to showing cause as to why the Judge Of The Supreme Court.1 vehicle should not be confiscated, only the person who is in possession and control of the vehicle REVOCATION OF A DEED OF GIFT- GROSS could give evidence to the effect that the offence INGRATITUTE was committed without his knowledge and he had Thalagalage Wijeratna taken necessary steps to prevent the commission of the offence of transportation.” Vs. By merely having a clause in small print in the (lease) Ratnayake Mudiyanselage Bandara Menike agreement that the registered owner of the vehicle is required to comply with and confirm to all Rules, S.C. Appeal No. 30/2015 Regulations and laws, in my view is not adequate to S.C (Spl) LA No. 113/2014 prevent the commission of offences. All what the officer Court of Appeal No. CA 132/99 (F) from the leasing company said at the inquiry was that D.C Homagama Case No.3291/CD the Company had instructed the lessee to act within the Before : B. P. Aluwihare P.C., J. law at all times. Priyantha Jayawardena P.C., J. & Having considered the foregoing, I hold that, for the Anil Gooneratne J. purposes of Section 40 of the Forest Ordinance, the Argued On : 02.10.2017 owner who has the possession and the control of the vehicle should be considered as the “owner” of the Decided On: 23.10.2017 vehicle. GOONERATNE J. I hold that the Court of Appeal was not in error in This was an action filed in the District Court of holding that the “absolute owner” ought not to be Homagama pertaining to a case of revocation of a considered as “owner” of the vehicle given the facts deed of gift by the Plaintiff-Respondent-Appellant, and circumstances of this case. I further hold that the (now deceased) on the ground of ingratitude of the interpretation given by the Court Of Appeal to the Defendant-Appellant-Respondent. The facts of this word “owned” is not in conflict with Section 433A of case reveal that the District Court held in favour of the Code of Criminal Procedure Act. the Plaintiff-Respondent-Appellant but in appeal to Accordingly, I answer both questions of law on which the Court of Appeal the Appellate Court set aside the leave was granted in the negative and affirm the order Judgment of the District Court and dismissed the action made by the Court of Appeal in this matter. of the Plaintiff-Respondent-Appellant. The main issue as stated in the Judgment of the Court of Appeal is on 27 JSA News Letter 2018 Volume 01 IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA the question of credibility of the Plaintiff-Respondent- ingratitude is a question of fact. It could vary with the Appellant’s evidence that transpired at the trial. circumstances of each case. I do agree with the views of However the Supreme Court granted Leave to Appeal the learned Judge of the Court of Appeal that gratitude on questions of law set out in paragraph 16 (i and iii) is a form of mind which has to be inferred from the of the petition dated 19.07.2014. However the written donee’s conduct, and such an attitude of mind will be submissions of the Plaintiff–Respondent-Appellant indicated either by a single act or a series of acts. refer to three questions of law. In any event I would refer In a case of this nature bare assertions of being assaulted to all three questions which reads as follows: by a person alone will not suffice. Gross ingratitude I. Did the court of Appeal misdirect itself on the should be proved with certainty and with sound concept of standard of proof required to establish evidence. If a party is able to prove gross ingratitude gross ingratitude? would deprive a person of a property right. In the case II. Did the Court of Appeal misdirect itself in in hand the oral testimony of the Plaintiff-Respondent- analysing the evidence led and documents marked Appellant will diminish in its value due to the statement at the trial by the deceased Plaintiff ? made to the police by the Plaintiff. III. Did the Court of Appeal err in entering the In the statements marked and produced in court as Judgment without dealing with the merits of the P3 does not implicate the Defendant-Appellant- Judgment of the District Court. Respondent. It is one Piyasena who had hit the Plaintiff (Defendant’s husband). I agree with the views Plaintiff-Respondent-Appellant was the owner of expressed on this statement by the Court of Appeal. the land and premisesdescribed in the schedule to If the statement contradict or is an omission to the the plaint. Plaintiff-Respondent-Appellant became oral testimony it is unsafe for a court to act upon it. the owner by deed P1 dated 18.08.54 from which he Especially when gross ingratitude has to be established. derived ownership from his mother. The Defendant- The second complaint to the police by the Plaintiff- Appellant-Respondent was a lessee of the Plaintiff- Respondent-Appellant dated 26.07.1995, there is no Respondent-Appellant from the year 1992. The mention of the Defendant-Appellant-Respondent. The Defendant-Appellant- Respondent had taken care of other complaint to the police is produced marked P4 the Plaintiff-Respondent-Appellant during the period dated 23.06.1997. This statement is a belated statement she was a lessee and looked after him when he was sick made to the police, subsequent to filing action by and promised to do so even in the future. On that basis the Plaintiff-Respondent-Appellant. No court will the Plaintiff-Respondent-Appellant gifted an undivided consider its application and consequences since value of share of 10 perches of the land in dispute inclusive of such statement will greatly diminish due to delay and the house situated therein to the Defendant-Appellant- that being an after thought. This statement no doubt Respondent by deed P2 of 22.05.1995. However implicates the Defendant-Appellant-Respondent. That subsequently the Defendant-Appellant-Respondent is only a wilful attempt on the part of the Plaintiff- breached the above undertaking within a few days Respondent-Appellant to harm the Defendant and after the execution of deed P2, and as such Plaintiff- project Defendants ingratitude. It cannot be relied Respondent-Appellant filed action on the basis of gross upon in the circumstances of the case in hand. Evidence ingratitude by the Defendant-Appellant-Respondent, to Ordinance recognise the rule of impeaching credit of have the deed of gift to her revoked. witness by other evidence. It could be done by proof Deed of Gift P2 though irrevocable could be revoked for of former statements inconsistent with any part of his gross ingratitude under Roman Dutch Law gifts inter evidence which is liable to be contradicted. vivos are as a rule irrevocable, Voet 39.5.4 except for In this background it is also relevant to consider the such cases as ingratitude. 17 NLR 507. The question of evidence of the Defendant-Respondent-Appellant. 28 JSA News Letter 2018 Volume 01 IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA It is Defendant’s evidence that she was a tenant of RIGHT OF APPEAL UNDER SEC. 4(2) OF THE Plaintiff from 1987. Defendant-Respondent-Appellant ICCPR ACT had helped the Plaintiff-Appellant-Respondent and Mallawarachchige Kanishka Gunawardhana as such he gifted 10 perches of the land with the Vs house to her. Defendant testify that she expended her H.K.Sumanasena, Manager (Acting), Special money and built a well, toilet and a room for Plaintiff- Investigations Unit, Sri Lanka Bureau of Foreign Appellant-Respondent (proceeding of 25.09.1998). Employment Defendant-Respondent-Appellant emphasis that she never ill-treated the Plaintiff. It is the explanation of SC. Appeal No.201/2014 the Defendant that Plaintiff sought to revoke deed P2 High Court Colombo case as she married the Plaintiff ’s cousin. As regards the No. HC/MCA/135/13 injuries of Plaintiff the Defendant testified that the Magistrate’s Court Colombo Plaintiff very frequently travelled about at night by Case No.58332/5 bicycle. Defendant-Respondent-Appellant also states in evidence that she will continue to look after the Before : Buwaneka Aluwihare, P.c., J Plaintiff-Appellant-Respondent. Nalin Perera, J, & Slight acts of ingratitude are insufficient to revoke a Prasanna S. Jayawardena, Pc, J. deed of gift 1992 (2) SLR 180. I have to state that a Argued On : 14th September, 2016 Court of law has to consider the totality of evidence led Decided On: 15th March, 2018 and arrive at a conclusion. It is not correct to give your Aluwihare, PC, J: mind only to certain items of evidence. The material Special leave to appeal was granted in this matter on the placed before court does not make it possible to interfere questions: with the Court of Appeal Judgement. Therefore I affirm the Judgment of the Court of Appeal, and dismiss this 1. Whether the Accused-Appellant-Petitioner- appeal without costs. The questions of law are answered Appellant (hereinafter referred to as the Accused- in the negative in favour of the Defendant- Appellant) was entitled to file an appeal against the conviction, and Appellant-Respondent. 2. In instances where there is no right of appeal from Appeal dismissed. a conviction, whether the court is required to Judge Of The Supreme Court consider the existence of exceptional circumstance as a threshold issue in reviewing a judgment of an B.p. Aluwihare P.c., J. original court. I Agree. The facts relating to this matter are straight forward in that, the Accused-Appellant was charged before the Judge Of The Supreme Court magistrate’s court under Sections 64 (a) of the Sri Priyantha Jayawardena P.c., J. Lanka Bureau of Foreign Employment Act No.21 of 1985, as amended. I Agree. The basis of the charge was that, the Accused-Appellant Judge Of The Supreem Court demanded and received a sum of Rs.450, 000 from one Illeperumage Dilhani Pradeepa for the purpose of securing her employment in Cyprus. I do not wish to delve into the facts of the case as they would be of no relevance in deciding the questions of law referred to. 29 JSA News Letter 2018 Volume 01 IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA Suffice it to state that, at the conclusion of the trial, The issue at hand, however, can be resolved by application the learned Magistrate, by his judgment dated 19th of the provisions of the International Covenant on Civil March, 2013 found the Accused-Appellant guilty and and Political Right Act No.56 of 2007 (hereinafter proceeded to convict the Accused-Appellant as charged. referred to as the ICCPR Act). Aggrieved by the judgment aforesaid, the Accused- Sri Lanka is a state party to the International Covenant Appellant challenged the conviction by lodging an on Civil and Political Rights (ICCPR) where an inherent appeal in the High Court. When the matter was taken right of appeal is recognized against any conviction. The up before the High Court, an objection was raised on Covenant, which was adopted by the General Assembly behalf of the Attorney-General, the 2nd Respondent- of the United Nations on 16th of December, 1966, Respondent to the present application. entered into force on 23rd March, 1976. Sri Lanka The learned State Counsel contended that the Accused- acceded to the aforesaid covenant in the year 1980. Appellant has no right of appeal against a conviction Sri Lanka being a dualist state, implementation of the in terms of the provisions of the Sri Lanka Bureau of ICCPR requires that it be incorporated into domestic Foreign Employment Act No.21 of 1985 (hereinafter law which was accomplished in 2007 with the passage referred to as the Act). of ICCPR Act. The goal of the covenant is to define The basis of the objection appears to be, that the right international human rights standards and to require of appeal is a substantive right and not a matter of signatory states to adopt measures to enforce those procedure. The learned judge of the High Court having rights. The rights provided by the ICCPR are regarded upheld the objection raised on behalf of the state, as the basic human rights that should be viewed as dismissed the appeal without considering the merits of restrictions (against derogation) on the governments of the case. signatory states. The ICCPR is valid for its signatory The present appeal is from the said order of the learned states and every signatory government is obligated to High Court Judge. observe its provisions. At the hearing of the appeal the learned counsel for Paragraph 5 of Article 14 of the Covenant lays down the Accused-Appellant referred to Section 31 of the that “Everyone convicted of a crime shall have the right Judicature Act as well as to the Article154 (P) (3) (a) of of his conviction and sentence being reviewed by a the Constitution. Both these are, provisions conferring higher tribunal according to law. appellate powers on the Court of Appeal and the High Jixi Zhang in his article Fair Trial Rights in ICCPR Court. While these provisions confer appellate powers, (Journal of Politics and Law - Vol 2 No.4 2009) states in Martin Vs Wijewardene 1989 2 S.L R 409 His that Lordship Justice Jameel rejected the argument that these “Article 14, paragraph 5 provides that everyone provisions impliedly confer substantive right of appeal. convicted of a crime shall have the right to have The learned counsel for the Accused-Appellant their conviction and sentence reviewed by a higher also relied on Section 317 of the Code of Criminal tribunal according to law. The right to appeal Procedure Act No.15 of 1979. The State, based their is also known as the right to be reviewed. The argument on the principle that the right of appeal Human Rights Committee considers that the is neither a fundamental nor an inherent right, but a right to appeal is absolute. The absolute nature creation of a statute. It was contended on behalf of the of the right to appeal is reflected in the following Attorney-General that there can be no inherent right of three aspects: the right to appeal applies to all appeal from any judgment for determination unless an types of crimes, that is, not only applies to serious appeal is expressly provided for, by the law itself. crimes……… ” The preamble to the Covenant exemplifies the objectives and states: 30 JSA News Letter 2018 Volume 01 IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA “Considering that in accordance with the the ICCPR Act has no application whatsoever to civil principles proclaimed in the Charter of the cases. United Nations, recognition of the inherent Violation of Section 64 (a) of the Sri Lanka Bureau of dignity and of the equal and inalienable rights Foreign Employment Act No.21 of 1985 can be visited of all members of the human family is the with penal sanctions and thus falls within the scope of foundation of freedom, justice and peace in the “criminal offences under any written law” referred to in world” Section 4 (2) of the ICCPR Act and further the Act Recognizing that these rights derive from the (SLBFE) does not carry a specific provision ousting inherent dignity of the human person, the right of appeal against a conviction and a sentence Recognizing that, in accordance with the imposed for a violation under the Act. Thus, I hold that Universal Declaration of Human Rights, the the Accused-Appellant has a right of appeal against the ideal of free human beings enjoying civil and impugned conviction. political freedom and freedom from fear and I am also of the view that with the enactment of the want can only be achieved if conditions are ICCPR Act, Sections 317 and 320 of the Code of created whereby everyone may enjoy his civil and Criminal Procedure Act must necessarily be read with political rights, as well as his economic, social and Section 4 (2) of the ICCPR Act. cultural rights, I answer the first question of law in the affirmative and Considering the obligation of States under the hold that the Accused-Appellant has a right of appeal Charter of the United Nations to promote against the conviction and sentence, to the High Court. universal respect for, and observance of, human In view of the above findings, the necessity to answer rights and freedoms,…… the second question of law on which leave was granted, The ICCPR Act was enacted in the discharge of Sri does not arise. Lanka’s obligation as a signatory to the Covenant and Accordingly, I set aside the order made by the learned the main objective of the Act is to give effect to the High Court Judge on 28th July, 2014 in this matter and Covenant and in my view the provisions of the Act direct the learned High Court Judge to entertain the must be referable to a jurisdiction both to that confers appeal of the Accused -Appellant and to consider the validity to the objectives of the ICCPR and to facilitate same, on its merits. enforceability of the Articles of the Covenant. Judge Of The Supreme Court Section 4 (2) of the ICCPR Act stipulates that every person convicted of a criminal offence under any matter Justice Nalin Perera shall have the right of appeal to a higher court against such conviction and any sentence imposed. I Agree In instances where no right of appeal is conferred by a Judge Of The Supreme Court statute, a party aggrieved, could invoke the revisionary jurisdiction to have a decision of an original court Justice Prassanne Jayawardena P.c reviewed and our courts have always recognized I Agree revisionary jurisdiction in such instances. The provision embodied in Section 4 (2) of the ICCPR Act has now Judge Of The Supreme Court expanded the scope (of jurisdiction) to appeals in the case of all criminal offences. While the expansion of the appellate jurisdiction by virtue of section 4 of the ICCPR Act relates exclusively to criminal cases, concomitantly, it must be stated, that Section 4 (2) of 31 JSA News Letter 2018 Volume 01 Acts passed in 2018 1/2018 - Fisheries( regulation of foreign fishing boats) Amendment Act 2/2018 - Anti- Dumping and countervailing duties Act 3/2018- Safeguard Measures Act 4/2018- excise (amendment) Act 5/2018- International convention for the protection of all persons from enforced disappearance Act 6/2018- Trust (Amendment) Act 7/2018- Intellectual Property (Amendment) Act 8/2018- Active liability management Act 15 new Judicial officers (Class II Grade I) were recruited by the Judicial Service Commission recently 1. Mr.Keerthi Kumburuhena 2. Mr. Mahesh Wakishta 3. Mr. M.Haniffa Mohamed Rafi 4. Miss. M.A. Shashika Erangi 5. Mr. C.J. Hansadewa Samaradiwakara 6. Mr. A. Suranga Asela De Silva 7. Mr. Jayasuriya Kankanamage Prabath 8. Mr. N.S. Gamini Sanath 9. Mr. J.A. Nalaka Sanjeewa Jayasuriya 10. Mr. N.T. Hemantha Pushpakumara 11. Mr. A.A. Priyankara Lakshman 12. Mrs. M.W.G.K. Susantha Gunasekara Perera 13. Mr. H.K. Malinda Harshana De Alwis 14. Mrs. H.D. Darshima Jayawanthi Premarathne 15. Mr. H.D. Chaminda Pushpakumara Karunadasa We welcome all and wish them strength to render their duties without fear, favor or affection while upholding the dignity of the noble profession. Julian Antony Jackson Vs. Horizon Holidays Ltd. (1975) 1 WLR 1468 (1975) 3 AER 92 Lord. Denning, Husband enters into a contract for the benefit of his wife and children. Contract is breached. Contractual nexus. (Describes the standards of sri lankan hotels as well) Damages for the loss of a holiday. Husband can claim damages for his losses, distress, inconvenience, frustration and the sufferings of his wife and children as well. 32