CORPUS JURIS SL
1. “66 න කර” - ෙක ම ම 2. From the bench 3. Economic Rights under the Intellectual Property law 4. Rei Vindicatio action and Burden of proof
zz66 kvqlrZZ - flgs jsuiqula
1979 අංක 44 දරණ ාථ ක අ කරණ න ධාන පනෙ 66 වග ය ස බ ධෙය ය සකස් කර ෙදන ෙම කර ලැ ඉ ම අ ව ෙමම ෙක ය සකසන ල . ෙකෙස ෙවත 66 න කර ස බ ධෙය ෙන ෙය , ෙප ප පලව ඇ බවද සඳහ මට කැමැ ෙත . ඒවා ද අධ නය ෙක ට වැ දැ ම ලබා ගැ ම ඔබෙ කා ය .
1979 අංක 44 දරණ ාථ ක අ කරණ න ධාන පනත - ාථ ක අ කරණය කා ය ප පා ය ම ම සඳහා සහ ඒ ස බ ධ ක සඳහා ධන සැලැස් ම ෙමම පනෙ අර ණ ෙ . ඒ අ ව ාථ ක අ කරණය සහ අපරාධ අ කරණ බලය ෙ පනෙ හා ෙවන ය ත යක ධානවලට යට ව ත අ කරණ බලය ය ෙ . ෙමම පනත යටෙ ාථ ක අ කරණයට ම මට බලය පවරා ඇ න කට ත ෙල 66 න කරය හැ ය හැක.
පනෙ 7 වන ප ෙ දය - ඉඩ වලට බලපා නා ද සාමය කඩ ෙ ත ජනය ඇ තා ෙහ සාමය කඩ මට ඉඩකඩ ඇ තා ෙහ ආර ළබඳ භාග මට අ කරණ බලය පනෙ 7 වන ප ෙ දෙය ාථ ක අ කරණයට පවර ලැබ ෙ . ඒ අ ව ක ෙල ම ෙ ස බ ධෙය උන ව න තබා ගත ක ණ ව ෙ සෑම සාමය කඩ ෙ ආර ල ස බ ධෙය ම ෙමම ප ෙ දය අදාළ ෙන වන බව . ෙමය අදාළ ව ෙ ඉඩ වලට බලපා නා සාමය කඩ ෙ ත ජනය ඇ තා .... ආර ස බ ධෙය පම .
පනෙ 7 වන ප ෙ දය යටෙ වන ආර ල ාථ ක අ කරණයට ෙය ම - ෙ ස බ ධෙය පනෙ 66 වග ය වැදග වන අතර එෙස ෙහ ම ඒ අ ව ෙය වන න “66 න ” ෙල හැ මට ෙපළ ඇත. ෙ අ ව ඉඩ වලට බලපාන ආර ල අ කරණයට ෙය ෙ මෙ ද 2 හ වා ෙ . ඒ අ ව,
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CORPUS JURIS SL
1. ආර ල බඳ ප ෂණය පව වන ෙප ස් ලධා යාට අදාළ ආර ල සා සාමය කඩ ෙ ත ජනය එ ල ඇ ෙහ සාමය කඩ මට ඉඩ ඇ ටක එය ාථ ක අ කරණයට 66 (1) අ වග ය යටෙ ෙත ර වා තාව ම ෙය කළ හැක. එ ට ආර ල සා සාමය කඩ ෙව ෙ ද ය න අවස්ථාෙ රණය කර ෙ ෙප ස් ලධා යා . න අදාළ ආර ල සාෙව සාමය කඩ ම ව ෙ ද, නැ න ඒ සාෙව සාමය කඩ ෙ ත ජනය පව ෙ ද ය න ස බ ධෙය අවස රණය ග ලබ ෙ ාථ ක අ කරණ මා .
ෙම අ කරණ බලය ස බ ධෙය ර ද ආබෲ මා CA (PHC) APN 64/2010 decided on 2011/05/05 න ෙ කර ලැ පහත දැ ෙවන ෂණය ඉතා වැදග ෙ .
“The above judicial decisions confirm the position that when a police officer files a report under section 66(1 ) ( a) of the Act, the Magistrate is vested with jurisdiction to inquire into the matter. This is only with regard to the assumption of jurisdiction. But above judicial decisions do not take away the power of the Magistrate to reach a conclusion at the end of the inquiry whether or not there was a breach of peace. What happens at the end of the case if the Magistrate observes that there was no breach of peace or breach of peace is not threatened? In my view at the end of the case if the Magistrate finds that there was no breach of peace or breach of peace is not threatened the Magistrate is entitled to dismiss the case. If this power is not given to the Magistrate, decision maker on the question whether or not there was a breach of peace would be the police officer and not the judicial officer. Therefore in my view the Magistrate holding an inquiry under section 66 of the Act is entitled to make a judicial pronouncement whether or not there was a breach of peace. If the judicial pronouncement confirms that there was no breach of peace or breach peace is not threatened, the Magistrate/Primary Court Judge should dismiss the case.”
එ ෙප ස් ලධා යාට, අවශ න (අ) ආර ලට ස බ ධ පා ශවය ට ෙත ර වා තාව ඉ ප කර ලබන නයට ඉ අ කරණය ස්ෙව නා නෙ අ කරණෙ ෙප න ෙල වන බැ කරයකට යට මට බලය ඇ අතර, (ආ) සාමය ආර ෂා ම සඳහා ආර ලට ස බ ධ පා ශවය අ අඩං වට ගැ මට ඔ ට ව ෙ න , පා ශවක ව අ අඩං වට ෙගන ඔ ස බ ධෙය ය යා මක මට ෙන පමාව ාථ ක අ කරණයට ඉ ප කළ ය. ෙ (ආ) අවස්ථාෙ පා ශවය අ කරණයට ඉ ප කරන ට ආර ල ස බ ධෙය වන ෙත ර වා තාවද ඉ ප කළ ය.
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2. ෙදව ව, ඉඩමකට බලපා ලබන ආර ල ස බ ධෙය අදාළ පා ශවක ව ටද ආර ලට ස බ ධ අෙන පා ශවක ව ද අදාළ ය සහ තම බලාෙප ෙර වන සහනය ද සමග ද ව වන ප ය වන ෙත ර වා තාව ාථ ක අ කරණයට ෙය කළ හැක. ෙමෙස ට අ කරණෙ යා ෙවල අ ව ෙහ යාප ං තැපැ ම දැ ම යව ෙත ර වා තාව ඉ ප කර ලැ න ට න 14 ල වන නයක අ කරණෙ ෙප මට අෙන පා ශවයට දැ ෙදන ලැෙ .
ඉහ 1 හා 2 ෙල සඳහ මට ෙය න මෙ දය ෙග මන මෙ දය ෙහ ෙත ර වා තාව අ කරණයට ලද ට පමණ ඉඩ වලට බලපාන ආර භාග ෙක ට රණය ෙහ ආඥාව ලබා ෙ අ කරණය බලය ාථ ක අ කරණයට ලැෙ .
ෙ අ ව ඉඩ වලට බලපා ලබන ආර ම සාමය කඩ ෙ ත ජනය ෙහ සාමය කඩ ම ව ෙ න , එය ඉ ම අ කරණයක ම ශනයට ෙය ම සාෙව සහ පා ශවය ෛන ක බලයට යට ම ෙහ ෙව යහපාලනය සහ සාමකා පැවැ ම පව වා ෙගන යාමට මෙ දය සකස් කර ෙ . ෙම සා ෙමම න කට ත සමාජෙ සාමය අරා ෂා ම ෙව ෙව පනෙ 7 වන ප ෙ දෙය හ වා ඇ වැදග මෙ දය ෙල හැ ය හැක. ෙ ස බ ධෙය පහත ෂණ වැදග ෙ .
“සාමය කඩ ද ව කළ හැ වරද ෙව . ය හැ සාමය කඩ වළ ව ස ෙ තැනැ ත අ ෙ ය අ වා ක තමා ෙවත පැව ඇ යම අ කාරයා වද, තම ය ආප ලබා ගැ ම සඳහා ය තමා අතට ම ෙන ගත ය ය අණ කර . ඔ පළ ෙක ට ම ෙ ට ෙස ය ය.” (Breaches of the peace are punishable offences and to prevent potential breaches the law enjoins the person who has been despoiled of his possession even though he be the true owner with all rights of ownership vested in him, if the recovery is instanter in the sense of being still a part of the res gestae of the act of spoliation then it is a mere continuation of the breach of the peace which already exists and the law condones the immediate recovery, but if the dispossession has been completed, as in this case where the spoliator, the plaintiff, had completed his rescue and placed his sheep in his lands, then the effort at recovery is, in my opinion, not done instenter or forthwith but is a new act of spoliation which the law condemns’ Mans v. Loxton Municipality and Another 1948 (1) SA 966 (CPD)
“In a country like this any attempt of parties to use force in the maintenance of their rights should be promptly discouraged. Slight brawls readily blossom into riots with grievous hurt and murder as the fruits. It is therefore all the more necessary that Courts should be strict in discountenancing all attempts to use force in the assertion of such civil
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CORPUS JURIS SL rights as are in dispute in the present case.” Perera et al. v. Gunatilleke et al. 4 NLR 181
තබා ගැ ෙ ක ණ - ාථ ක අ කරණ න ධාන පනෙ 7 වන ප ෙ දෙ ඇ ළ 66 න කර ස බ ධෙය ාථ ක අ කරණ වරයාෙ අ කරණ බලය පව ෙ ඉඩ වලට බලපාන ආර ල සා සාමය කඩ ෙ ත ජනය එ ල ඇ ෙහ සාමය කඩ මට ඉඩ ඇ අවස්ථාවක පම . එෙස ෙන වන ට ාථ ක අ කරණ වරයාට ඉහත ආකාරව ෙය කරන ෙත ර වා තාව ස බ ධෙය න භාග ෙක ට රණය ෙහ ආඥාව ලබා මට ෙන හැ ෙ . එ සා තම ඉ ෙ ඇ ප සහ ෙ ඛන සහ අ ක මසා බලා සාමය කඩ ෙ ත ජනය පව ද නැ න , සාමය කඩ මට ඉඩ ඇ ද ය න රණය ම ාථ ක මාෙ ධාන කා ය ෙ . ෙමය ෙශ ෂෙය ම ඉහත 2 වන අවස්ථාව ස බ ධෙය වැදග වන බව ෙප ය . ෙ බව ර ද ආබෲ මා CA (PHC) No: 161/98 - Decided on : 21.06.2010 න ෙ පැහැ ව ද වා ෙ .
එෙස ෙන වන අවස්ථාවක අ කරණයට, අ කරණ බලය ෙන මැ බවට වන ක ෙර ධය ෙගන ඒෙ හැ යාව පා ශවක ව ට ඇත. න එම ෙර ධය අවස්ථාෙ ම ෙගන ඒෙ කම ද පා ශවය ට පව න අතර ප අවස්ථාවක අ කරණ බලය ස බ ධෙය ෙර ධතාව ම කළ ෙන හැ බව ඉහත රණ ෙ ම උග ආබෲ මා ද වා ෙ .
“When a PCJ, on information filed under section 66(1) (b) of the Act (private information), decides to issue notice on the respondent, can it be said that he does so without examining the affidavit filed by the petitioner? I think not. Can it be said that the PCJ is so negligent and careless that he decided to issue notice without reading the affidavit filed in court? I can’t answer this question in the affirmative. At this stage it is pertinent to consider section 114(d) of the Evidence Ordinance which reads s follows: “The Court may presume that judicial acts have been regularly performed.” When I consider all these matters, I am of the opinion that when PCJ decides to issue notice on the respondent, on an information filed under section 66(1)(b) of the Act containing material that there was a threat or likelihood of breach of peace, it is obvious and presumed that he does so after satisfying himself that there was a threat or likelihood of a breach of peace and the failure on the part the PCJ to state so in the proceedings does not deprive him of jurisdiction to hear and conclude the case.” Per Justice Sisira de Abrew in CA (PHC) No: 161/98 - Decided on: 21.06.2010
භාග කරන ෙවල - ෙ ආකාරයට 66 (1) වග ය යටෙ ෙය කර ලබන ආර ස බ ධ භාගෙ සාමාන ෙය පා ශවය ෙග සා ගැ ම වා කව ෙන කරන
Haris Palpola, LL,B. Hons,(OUSL) Attorney-at-Law Page 4
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අතර, ඒ සඳහා ෙබෙහ ෙය දා ග ෙ ප ය ය. භාග කරන ෙවල පනෙ 66 (3) ට ඉ යට ඇ උප වග වල ද ව ලැබ ෙ .
ඒ අ ව, අ කරණය තම ක පෑ සඳහ කළ ප සමග ක පෑම සඳහා තම ශ්වාසය තබන ෙ ඛන අ ණා ඉ ප කරන ෙලස පා ශවක ව ට සහ ඔ ෙ ස බ ධතාව ද වන තැනැ ත ට ධාන කර , එෙස ඒ ප හා ෙ ඛන ඉ ප මට වන නය , 66 (1) වග ෙය පා ශවක ව ඉ ප කර ලැ නෙ ෙහ ඒ උපවග ය යටෙ අ කරණය ඉ ෙ ෙප මට යම කර නෙ යම කළ ය. න ෙමෙස යම කර ලබන නය එ උපවග ය යටෙ පා ශවක ව ඉ ප කර ල න ට නැතෙහ අ කරණෙ ෙප ම සඳහා ඒ උපවග ය යටෙ ඔ ට යම කර න ට ස න ෙන ඉ මවන නය ය ය.
ග කව අ කරණයට ඉ ප කර ලැ ෙත ර වා තාව ස බ ධෙය වන ට ෙකෙස ෙවත 66 (1) ආ වග ය යටෙ අෙන පා ශවයට අ කරණෙ ෙප මට යව ලබන දැ ම, ෙත ර වා තාව ඉ ප කර ස ය ඇ ළත ආර ලට ෂය වස් ව ඉඩෙ ය ෙපෙනන ස්ථානයක ඇල මට අ කරණය සැලැස් ය වන අතර, එ සඳහ නය ඒ න ව අ කරණෙ කැඳවන ඊළඟ නය ය ය.
න ෙප ස් ලධා ය ඉ ප කර ලබන ෙත ර වා තාව මත පදන ට ඉහ ද ව ලැ දැ ෙ ස බ ධ තාවය ද වන තැනැ තා අ කරණෙ ෙප මට අමතරව, තමා ෙ ක පෑම ද ව නා ප සමග ත ශ්වාසය තබන ෙ ඛන අ ණා ඉ ප මට ද යම කළ ය.
ෙ ආකාරයට ප ඉ ප මට යම කළ නෙ ප ඉ ප කර ඇ න ප ඉ ප කරන පා ශවක ව ෙ ඉ ම මත, ය ෙ ඛන ෙවෙත , ඒ ෙ ඛනද සමග හරස් ප ඉ ප මට ස ෙදක ෙන ඉ මවන කාලය අ කරණය පා ශවක ව ට ලබා ය අතර, ඒ සඳහා දාන මට අ කරණෙ ඇ න වා තාව ෙර ස් ා වරයා ඉ ෙ යවා බැ මට අවස්ථාව ද පා ශවක ව ට ෙහ ඔ ෙ ඥව ට ාථ ක අ කරණ වරයා ලබා ය ෙ .
ෙකෙස ෙවත ව තමානය වන ට එ පා ශවය තම ෙ ෙ ඛන වල ටප අෙන පා ශවයට ලබා ෙදන සා ඥව න වා තාව ප ෂා ෙන කරන අතර ය ෙලස ෙ ඛන ඉ ප කර ෙන ෙබ ෙ න එය ගැට ව වන ෙහ එෙස ෙ ඛන භාර ෙද ලැ ව න වා තාව ප ෂා ම යහප බව සැල ය ෙ . වරක අප ෙප න න වක ප ෙ ද වා ෙ ඛන පය අපට ලබා ෙන අතර එය න වා තාව බැ ෙ ෂණය . තව වරක, ලබා ටපෙ ඡායා පය ස බ ධෙය න වා තාව ෂ ණෙ ෙප ෙ එය ම අ ලා පැර ඡායා පය Haris Palpola, LL,B. Hons,(OUSL) Attorney-at-Law Page 5
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ෙල ෙපෙනන ආකාරයට ප කර ඇ බව . ෙමෙස ෙහ න වා තාව ෂණය ම වැදග බව අ පෙ හැ ම .
එෙස ම හරස් ප ඉ ප මට අවස්ථාව සැලැස් ම පම අ කරණයට කළ හැ ෙ . පා ශවය ඒ සඳහා ඉ ම ෙන කර ෙ න එය සැල ෙ අවශ තාව ෙන මැ බව වග ෙ ඇ පා ශවය ෙ “ඉ ම මත” ය ෙන පැහැ ෙ .
ෙකෙස ෙවත ප ඉ ප මට ය ත නෙ හරස් ප ඉ ප මට ඉ ම ෙන කර ලැබ ඇ ට ෙහ හරස් ප ඉ ප මට යම කළ නෙ එය ඉ ප කෙළ ෙහ ෙන කෙළ වද අ කරණය න ව භාගයට යම මට ෙපර, ආර ල ස බ ෙය සමථයට එළ මට පා ශවක ව සහ ස බ ධතාවය ද වන තැනැ ත ව ෙවෙත ඒ තැනැ ත ෙපළඹ මට අ කරණය සෑම උ සහය ම දැ ය ෙ . එය ෙ අ ව 66 (6) වග ය අ ව ාථ ක අ කරණ වරයාට පවර ලැෙබන කම . එ කම උග මා ඉ කර ලැබ ෙන මැ බව න වා තාව අ ව ෙප ය ෙ න අදාළ න භාගෙ රණය ෙහ ආඥාව ස බ ධෙය ඉහළ අ කරණයකට මැ හ මට එය ෙහ ව වන බව ෙම සැලකළ ය. ය ෙහය ෙ ආකාරෙය පා ශවය සමථයට එළෙඹ ෙ න , එ සමථයට එළ ම වා තාගත ෙක ට පා ශවක ව සහ ස බ ධතාවය ද ව න ට ඊට අ ස මට සලස්වා සමථය ප වන ආඥාව මට අ කරණයට බලය ෙ .
ය ෙහය ෙ ආකාරෙය සමථය ඇ ෙන ව ෙ න , අ කරණය න ව භාග මට නය යම කළ ෙ . එම නය ප සහ ෙ ඛන ෙහ හරස් ප සහ ෙ ඛන ඉ ප මට ලබා නෙ ට ස 2 ෙන ඉ මවන නය ය ය. ඒ අ ව පව ව ලබන න භාගය ල මයට පැවැ ය අතර, භාගය ආර භ කර මාස 3 ළ එය අවස කළ ය. භාගය අවස කර ස ය ඇ ළත ාථ ක අ කරණ මා ස්ව ය රණය ෙහ ආඥාව කාශ කළ ෙ . ෙකෙස ෙවත පනෙ 67 (3) වග ය අ ව අවශ න , භාගය අවසානෙ වරයාට මට බලය ඇ ය ධානය ඇ ළ අ ආඥාව භාගය අවස මට ෙපර ෙම වරයාව ෙන වැලැ ෙ .
ඥව ට වැදග වන පාදනය පනෙ 66 (8) වග ෙ ඇ ළ ෙ . ඒ අ ව කාශ කර ෙ පා ශවක ව ට ෙහ ස බ ධතාවය ද ව ලබ න ට ෙප ම සටහ මට යම කර ලබන අවස්ථාවක, ඒ ෙප ම ඥවරය ම සටහ කර ලැ ය හැ ම . ය ෙහය පා ශවය ෙප ම පැහැර හ න ෙහ ප සහ තම ෙ ඛන ඉ ප ම පැහැර හ න අවස්ථාවක ඔ පැහැර හැ ම කළ තැනැ ත ෙල සලක ලැෙබන අතර, භාගයට සහභා මට ඔ ට අවස්ථාව ෙන පව . එෙස ව , අ කරණය ඉ ෙ ඇ එෙස පැහැර හ න පා ශවක ෙ ක පෑම සහ අ වා ක
Haris Palpola, LL,B. Hons,(OUSL) Attorney-at-Law Page 6
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ස බ ධෙය වන ක ද සැල ලට ෙගන අ කරණය අවස ආඥාව ෙහ රණය කළ ෙ .
ඉඩ වලට බලපාන ආර ල ය නට, පනෙ 75 වග ෙය ය ඉඩමක ෙහ ඉඩමක ෙක ටසක ෙහ ස තකයට ඇ අ වා කම බඳව සහ එ ෙග ඩනැ වල ස තකය බඳව ෙහ , ඒ ඉඩෙ නැතෙහ ඉඩ ෙක ටෙස මා බඳව ෙහ , ය ඉඩම ෙහ ඉඩමක ෙක ටස ෙහ වගා ෙ අ වා කම බඳව ෙහ , ය ඉඩමක නැතෙහ ඉඩමක ය ෙක ටසක ෙබ ගවලට ෙහ පලදාවට ඇ අ වා කම බඳව ෙහ , ඉඩමට බලපාන පරවශතාවක ස්වභාවෙ ය අ වා කම බඳව ෙහ ය ආර ල ඇ ළ වන බව සඳහ කරන අතර “ඉඩම” බඳ ය සඳහ මකට ඒ ඉඩම මත ය ෙග ඩනැ ල බඳ සඳහ ම ද ඇ ළ කර ඇත.
ාථ ක වරයාෙ රණය සහ ආඥාව - ාථ ක වරයාෙ රණය ෙහ ආඥාව ආකාර 2 කට ප නෙ 7 වන ප ෙ දෙ පාදන අ ව දැ ය හැක. එන ,
1. අදාළ ආර ල ඉඩමක ස තකය ස බ ධෙය ට සහ, 2. ආර ල ෙවන ය අ වා කම ස බ ධෙය ට ෙල .
1. අදාළ ආර ල ඉඩමක ස තකය ස බ ධෙය ට .
ෙ ස බ ධෙය අදාළ ෙව ෙ පනෙ 68 වග ය . ඒ අ ව, පා ශවය අතර වන ආර ල ඉඩමක ෙහ එ ෙක ටසක ස තකය ස බ ධෙය වන අවස්ථාවක ාථ ක අ කරණ වරයාෙ කා යය ය ව ෙ , ෙත ර වා තාව ඉ ප කරන අවස්ථාෙ ඉඩෙ ෙහ ඉඩ ෙක ටෙස ස තකය දැ ෙ කවර ද ය න රණය ම , ඒ අ ව ස තකයට ක ලැ ය ෙ කවර ද ය න ස බ ධෙය ආඥාව ම ය.
ෙමෙස කර ලබන ආඥාෙ ඇ ළ ය ව ෙ , අ ක අතර, බලය ඇ අ කරණයක ආඥාව ෙහ කාශය යටෙ , ාථ ක අ කරණ වරයාෙ ආඥාෙ සඳහ ය තැනැ ත ෙහ තැනැ ත ය ඉඩම ෙහ ඉඩෙ ෙක ටස ෙනරප ලබන , ඒ තැනැ තාට ෙහ තැනැ ත ට එම ඉඩ ෙ ෙහ ෙක ටෙස ස තකය ය බව , ඒ බලය ඇ අ කරණෙ ආඥාවක ෙහ කාශයක බලය යටෙ හැර අන ාකාරය ඒ ස තකය දැ ෙම ලා වන සෑම බාධාව ම තහන කර ලැෙබන බව ය.
ෙම ආර ලට ෂය වන ඉඩම ස බ ධෙය වන “ස තකය” ඉතා වැදග ක ණ වන බව ඔබට ෙපෙන ඇත. 68 වග ය යටෙ ස ය ක ණ ව ෙ 66 වග ය යටෙ ෙත ර වා තාව ෙය කර ලැ නට වෙය මාස ෙදකක කාලය ළ අදාළ ඉඩෙ Haris Palpola, LL,B. Hons,(OUSL) Attorney-at-Law Page 7
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ෙහ ඉඩ ෙක ටෙස ස තකය දර ලැ ෙ ක ද ය න . ඒ අ ව එෙස මාස ෙදකක කාලය ඇ ළත ස තකය දැ ය තැනැ ත ෙ ස තකය අෙන පා ශවක බලහ කාරෙය අ කර ඇ බවට උග මා සෑ මට ප වන ටක , ඒ ස තකය අ කර ලැබ ඇ තැනැ තාට නැවත ස තකය ආප ලබා මට ධාන කර නා සහ, අ කරණ බලය ඇ අ කරණයක ආඥාව ෙහ කාශයක බලය යටෙ හැර අන ාකාරය ඒ ස තකයට ඇ ය හැ ය බාධා තහන ෙකෙර නා ආඥාව මටද ාථ ක අ කරණ වරයාට බලය ඇත.
ෙකෙස ෙවත , 68 (1) උපවග ය යටෙ කර ලබන ආඥාවක එ සඳහ ය පා ශවක ව ට ආඥාෙ සඳහ ඉඩෙ ෙහ එ ය ෙක ටසක ෙහ ස තකය ආප ලබා ය බවට වන ධානය වද ඇ ළ කළ හැක.
ෙ ස බ ධෙය වන වැදග න ව , Ramalingam v. Thangarajah (1982) 2 Sri LR 693 ව. එ පහත ෙක ටස අවධානෙ තබා ගැ ම වැදග ෙ .
“In an inquiry into a dispute as to the possession of any land, where a breach of peace is threatened or is likely under Part VII, of the Primary Courts Procedure Act, the main point for decision is the actual possession of the land on the date of the filing of the information under section 66; but, where forcible dispossession took place within two months before the date on which the said information was filed the main point is. Actual possession prior to that alleged date of dispossession. Section 68 is only concerned with the determination as to who was in possession of the land or the part on the date of the filing of the information under section 66. It directs the Judge to declare that the person who was in such possession was entitled to possession of the land or part thereof Section 68(3) becomes applicable only if the Judge can come to a definite finding that some other party had been forcibly dispossessed within a period of two months next proceeding the date on which the information was filed under section 66. The effect of this sub-section is that it enables a party to be treated to be in possession on the date of the filing of the information though actually he may be found to have been dispossessed before that date provided such dispossession took place within the period of two months next proceeding the date of the filing of the information. It is only if such a party can be treated or deemed to be in possession on the date of the filing of the information that the person actually in possession can be said not to have been in possession on the date of the filling of the information. Thus, the duty of the Judge in proceedings under section 68 is to ascertain which party was or deemed to have been in possession on the relevant date, namely, on the date of the filing of the information under section 66. Under section 68 the Judge is bound to maintain the possession of such person even if he be a rank trespasser as against any interference even by the rightful owner. This section entities even a squatter to the
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CORPUS JURIS SL protection of the law, unless his possession was acquired within two months of the filing of the information.
That person is entitled to possession until he is evicted by due process of law. A Judge should therefore in an inquiry under Part VII of the aforesaid Act, confine himself to the question of actual possession on the date of filing of the information except in a case where a person who had been in possession of the land had been dispossessed within a period of two months immediately before the date of the information. He is not to decide any question of title or right to possession of the parties to the land. Evidence bearing on title can be considered only when the evidence as to possession is clearly balanced and the presumption of possession which flows from title may tilt the balance in favour of the owner and help in deciding the question of possession.”
සැල ය ක - ෙමම අවස්ථාෙ ෙත ර වා තාව 66 වග ය යටෙ ාථ ක අ කරණෙ පවර ලැ නට වෙය මාස 2 ක කාලය ළ තම අදාළ ඉඩෙ ෙහ ඉඩෙ ෙක ටසක ස තකෙ බව , තම ෙ ස තකය බලහ කාරෙය අ පා ශවය අ කර ලැ බව , ස තකෙ ලැ වා යැ ය ලබන තැනැ තා ප ය සහ ෙ ඛන ම මාණව ආකාරෙය ෙප වා ය ෙ . එ තැනැ තා අදාළ ඉඩම ෙහ ඉඩෙ ෙක ටස ස බ ධෙය ෛන ක කම ෙන දර ෙ වද ගැට ව ඇ ෙන ෙ . ම සාදය , පනෙ කම ස බ ධෙය ෙන ව ස තකය අ ම ස බ ධෙය පමණ සාක ඡා වන සාෙව .
2. ආර ල ෙවන ය අ වා කම ස බ ධෙය ට
පනෙ 69 වග ය ෙ ස බ ධෙය වැදග ෙ . ස තකය හැර ඉඩමට බලපාන ෙවන ය අ වා කම , උදාහරණය ෙලස පරවශතාව වැ , ආර ල ෙහ ෙව සාමය කඩ ෙ ත ජනය ෙහ සාමය කඩ ම ෙව ෙ න , එම අ වා කමට ක ඇ ෙ මන පා ශවයටද ය න රණය කර ආඥාව ෙ බලය ාථ ක අ කරණෙ වරයාට ෙමම වග ෙය ලැෙ .
ෙ ආකාරෙය මා ලබා ෙදන ආඥාව ය තැනැ ත ව ඉඩමට ෙහ ඉඩෙ ෙක ටසකට ඇ ය අ වා කම , අ කරණ බලය ඇ අ කරණය ආඥාව ෙහ කාශය අ කරන , ඒ තැනැ තාට ඒ අ වා කම ස බ ධෙය කම ය බවට යම කළ හැක. එෙස ම ඒ අ වා කම යා මක ම ස බ ෙය වන ය බාධා ඉව මට ද ඒ අ ව හැ යාව ලැෙ .
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ෙමම වග ය ළ 68 වග ෙ ෙම මාස 2 ක ස තකය ස බ ධෙය සඳහන ෙන පව න බව තබා ගැ ම වැදග ෙ . එෙස ම ර ද ආබෲ මාෙ පහත ෂණයද තබා ගැ ම වැදග ෙ .
“A person who without any legal right starts walking over another person’s land over a period of two months cannot claim that he is entitled to an order in his favour under the Primary Court Procedure Act and it is not the duty of the primary court judge to make an order that such a person is entitled to use such a land as a road. For these reasons I hold that a person claiming servitude or a right of way over another person’s land must, if he is seeking an order to use such a road under the Primary Court Procedure Act, prove that he is entitled to such a right. Such a person is not entitled to an order in his favour under the Primary Court Procedure Act on the ground that he has been using such a land as a road.” CA (PHC) 78/2008 decided on 26.3.2010
සැල ය ක - ෙමම අවස්ථාෙ ද අ ය ඇ බව යා න තැනැ තා ප හා ෙ ඛන අ ව ත ට අදාළ අ වා කම බව ාථ ක අ කරණය සෑ මට ප වන ආකාරෙය ෙප වා ය ය. එ ෙත ර වා තාව අ කරණෙ ෙග මට වෙය මාස 2ක කාලෙ අ වා කම පව ව ලැ වා යැ ෙප ම මාණව ෙන ෙව ෙ වග ෙ මාස 2 ක කාලය ස බ ධෙය ෙන ද වන සාෙව .
* පනෙ 70 වග යද සැල මට ග න.
රණය ෙහ ආඥාව ලබා ෙ ාථ ක වරයා සැල ය ක - ඉහ ද ව නට ෙය න අවස්ථා ෙදෙ ම පා ශවය ස බ ධෙය රණය ෙහ ආඥාව ලබා මට හැ යාව ාථ ක අ කරණ වරයාට ඇ බව පැහැ ෙ . ෙකෙස ෙවත , ෙ ආකාරෙය ආඥාව ෙහ රණය ලබා ය හැ ෙ පහත සඳහ ක ප ෂා ෙම සහ සලකා බැ ෙම ප වය. ඒවා න ,
(අ) ඉ ප කර ලැ ෙත ර වා තාව සහ සපය ලැ ප හා ෙ ඛන ද (ආ) ය කා ණය ස බ ධෙය ඉ ප මට අ කරණය අවසර ෙද ලබ නා ද, ඉ ප කරන ලද ප ෙහ ෙ ඛන උ ගත ව නා ද ඒ කාරණය බඳ ෙවන සා සහ (ඇ) ාථ ක අ කරණෙ වරයා ස්ව ය අ මතය ප අවසරය ෙද ලබන වා ක ෙහ ත ක ඉ ප ද ෙ .
ෙ අ ව අ කරණයට අවශ ව ෙ න වා ක සා කැඳ ෙ හැ යාව පවා පව න බව ෙප ය . ම සාදය , ාථ ක අ කරණ වරයාෙ අ මතය ස බ ධෙය 72 (ඇ) උපවග ය ළ සඳහ වන සාෙව . එෙස ම අවශ න වරයාට අදාළ ආර ලට ෂය වන ඉඩම ප ෂා මට වද ෙ ඔස්ෙස අවස්ථාව ලැෙ . ෙ ත වය
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බලාෙප ෙර ව ෙ පනත යටෙ කර ලබන ම ශනය කාලය ස්ෙස ඇ ෙන ෙග ස් ඉ ම අවස මට අවස්ථාව සැල ම බව Paramasothy v. Nagalingam (1980) 2 Sri LR 34 න ෙ ද වා ෙ .
සැල ය ක ණ - පනෙ 71 වග ය ෙම සැල ය ෙ . ඒ අ ව ආර ෙ පා ශවය අ කරණය ඉ ෙ ෙප ෙන න අවස්ථාවක ෙහ ෙප ය ද නැතෙහ ඉ ප කර ලැ වද ෙ ඛන අ ණා ඇ ව ෙහ නැ ව වද ප ඉ ප ෙන කරන අවස්ථාවක අ කරණය ,
(අ) ස තකය ස බ ධෙය ආර ල බඳ න වක න , එවකට ස තකය දරණ පා ශවක ට ස තකය තව රට තබා ගැ මට අවසර ෙද ආඥාව කළ ය. (ආ) ෙවන ය අ වා කම ස බ ධෙය ආර ල බඳ න වක න , ඒ අ වා කම ස බ ධෙය එවකට පව නා ත වය තව රට පව වා ෙගන යාමට අවසර ෙද ආඥාව කළ ය.
පනත යටෙ කර ලබන න කට මනාකාරෙ අ කරණ කට ත ෙ ද? - ාථ ක අ කරණ න ධාන පනෙ 7 වන ප ෙ දය යටෙ භාග වන 66 න කර මෙහ ස් ා අ කරණෙ උග මෙහ ස් ා මා ඉ ෙ භාග ෙ . න 66 න වක භාගය සහ අවස රණය ෙහ ආඥාව සාමාන ෙය මෙහ ස් ා අ කරණය ලබා ෙදන වකට ෙහ ආඥාවකට වඩා ෙවනස් ෙ . එෙස ම සා අ කරණය ලබා ෙදන ව ෙහ ආඥාව වැ ව ෙහ ආඥාව ද ෙ ඔස්ෙස ලබා ෙන ෙද . න අවස රණෙ ස්වභාවය අ කරණ රණයක ස්වභායද ග . එ ට 66 න ෙහ අපරාධ යන න ධානය ෙදකටම අදාළ ෙන වන ආකාරය ස් ෙව . ඒ බව පැහැ ව ෙ ාථ ක න ධාන පනෙ 74 (1) වග ෙය . එ යෙව ෙ අ ක අතර, ය ඉඩමකට ෙහ ඉඩමක ය ෙක ටසකට ඇ ය අ වා කම නැත ෙහ ස බ ධතාව න වක ඔ මට ය තැනැ ත ට හැ ෙ ද, ඒ අ වා කමට ෙහ ස බ ධතාවට බලපෑම ෙහ හා ය ෙ යටෙ ෙන ය බවටය. ඒ අ ව පැහැ ව ෙ , 7 වන ප ෙ දය යටෙ භාග වන ජන ය 66 න ෙහ අපරාධ යන මෙ දය වයටම අදාළ ෙන වන න ව ගය බව . ඒ බව C.A(PHC) APN 17/2006 - decided on 30.09.2011 න ෙ රණය අ ව තව සනාථ ෙ . එ සඳහ සලා මා උ ටා ද වා ඇ පහත ෂණය තබා ගැ ම වැදග ෙ .
“Inquiries into disputes affecting land ...... under part VII comprising Sections 66 - 76 are neither in the nature of a criminal prosecution ..... nor in the nature of civil action. Those proceedings are of special nature since orders that are being made are of a provisional nature to maintain status quo for the sole purpose of preventing a breach of the peace and which are to be superseded by an order or a Haris Palpola, LL,B. Hons,(OUSL) Attorney-at-Law Page 11
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decree of a competent Court. Another significant feature is that Section 78 while making reference to criminal prosecutions or proceedings and civil actions or proceedings, has not made any reference to disputes affecting land. This exclusion would reveal the legislative intent that Section 78 is not intended to be made use of, for inquiries pertaining to disputes affecting land under part VII of the Act”
ාථ ක අ කරණයක රණයකට ෙහ ආඥාවකට ධව අ යාචනය - පනෙ 74 (2) වග ෙය පැහැ ව ද ව ෙ 7 වන ප ෙ දය යටෙ කර ලබන රණයකට ෙහ ආඥාවකට එෙර ව අ යාචනය ෙන පව න බව . ඒ අ ව අ යාචනය ෙ අ ය කා තවම පන ඉව කර ෙ . ෙමෙස ෙහ 66 න ව ස බ ධෙය ාථ ක අ කරණෙ රණය අතෘ යට ප වන පා ශවයකට කළ හැ ෙ න ෂණ අය ප ය ඉ ප ම පම . එය පළා බද මහා කරණයට ෙහ අ යාචනා කරණයට ය හැක. ඒ අ ව අදාළ රණෙ ෙහ ආඥාෙ ෛන ක ෙහ අ ක භාවය ම මට හැ යාව ලැෙබන අතර අ යාචනයක ෙම අදාළ රණෙ ෙහ ආඥාෙ හ වැ ද ම මට අවස්ථාව ෙන ලැෙ . ෙම ත වයට ෙහ ව පැහැ සහ ෛන ක ෙල රං වා මා C.A. (P.H.C) Application No.242/2006 decided on 03.11.2009 න ෙ ද වා ඇ ෙ ෙමෙල .
“Sections 68 or 69 of the Primary Court Procedure Act does not provide for an appeal against an order made by a Primary Court Judge. If at all the only remedy against such an order or determination is to move the High Court of the province in revision under Article 154 P of the High Court of the Provinces Special Provisions Law Act No.19 of 1990, or to move the Court of Appeal in revision under Article 138 of the Constitution. The intention of the legislature is not to provide an appeal against such orders because proceedings under the particular chapter are meant to be disposed of expeditiously as possible in order to prevent a breach of the peace. On the other hand orders under the Primary Court Procedure Act are temporary in nature subject to a final decision of a competent court of civil jurisdiction. Legislature has deliberately refrained from granting the relief of appeal against such orders because the parties have an alternative remedy which is more effective and also which will finally and conclusively determine the rights of the parties. If an appeal is provided against such an Order, this process will be delayed and litigation will continue for a long period of time like in a civil suit. This is the mischief the legislature intended to avoid. The only inference that one could draw is that these provisions are meant to
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ෙ ස බ ධෙය තව රට C.A.(P.H.C.) 127/99 decided on 28.03.2011 සහ C.A(PHC) APN 17/2006 - decided on 30.09.2011 න යව ෙ න යහප .
වැදග ක ණ - එෙස ම, ෙ අ ව තබා ගත තව ක ණ ව ෙ ෙ ආකාරයට න ෂණ අය පත ඉ ප කර ලැබ න , ඉහළ අ කරණෙය ාථ ක අ කරණ ව යා මක ම අ ව ෙය ගය ලබා ෙන ග ෙ න , න ෂණ අය ප ය ස බ ධෙය අවස රණය ම ෙ වා, එෙත ාථ ක අ කරණ රණය ෙහ ආඥාව යා මක ම . (C.A(PHC) APN 17/2006)
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FROM THE BENCH……
“It has to be stressed here that credibility of prosecution witnesses should be subject to judicial evaluation in totality and not isolated scrutiny by the Judge. When witnesses makes inconsistent statements in their evidence either at one stage or at 2 stages, the testimony of such witnesses is unreliable and in the absence of special circumstances, no conviction can be based on the testimony of such witnesses. On the other hand one cannot be unmindful of the proposition that Court cannot mechanically reject the evidence of any witness. With regard to appreciation of evidence in criminal cases it would be of importance to quote what Sir John Woodroffe & Amir Ali had to say in their work on - “ Law of Evidence- 18th Edition- Vol. 1 at pg. 471:-
“No hard and fast rule can be laid down about appreciation of evidence. It is after all a question of fact and each case has to be decided on the facts as they stand in that particular case. Where a witness makes two inconsistent statements in his evidence with regard to a material fact and circumstance, the testimony of such a witness becomes unreliable and unworthy of credence.”
Further it is the paramount duty of the Court to consider entire evidence of a witness brought on record in the examination-in-chief, cross-examination and re-examination. In other words Courts must take an overall view of the evidence of each witness.
….. It is a cardinal principle that unreliable and unacceptable evidence cannot be rendered credible, simply because there is some corroborative material.
…… By the impugned judgment the learned High Court Judge had dismissed the appellant’s appeal with costs. Right of appeal is undoubtedly a statutory right available to an accused- appellant against the conviction entered and sentence imposed on him. In this regard the pronouncement of His Lordship Justice Nimal Amaratunga in S.C. Appeal No. 108/2006 - R. Ananda vs. The Commissioner General to Investigate Allegation of Bribery or Corruption (2008 1 BLR- Part II 136) too would lend assistance. Per Amaratunge, J. at page 138:-
“……. I notice that the learned High Court Judge has dismissed with costs. When a convicted accused’s appeal is dismissed Courts do not cast him in costs.”
Thus I conclude that the learned High Court Judge had erred in casting the appellant in costs.
At this juncture it would be appropriate to consider the standard of proof that is required in a case of this nature. Undoubtedly ‘beyond reasonable doubt’ remains as the standard of proof in criminal cases. In proving a bribery charge also same standard of proof is required. It would be pertinent to quote what does the expression ‘beyond reasonable doubt’ mean? Per John Woordroffe & Amir Ali in their aforementioned book on Law of Evidence - (at page 325):
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“For a doubt to stand in the way of conviction of guilt, it must be a real doubt and a reasonable doubt – a doubt which after full and fair consideration of the evidence, the judge really, on reasonable grounds, entertains.”
‘If the data leaves the mind of the trier in equilibrium, the decision must be against the party having the burden of persuasion.’ If the mind of the adjudicating tribunal is evenly balanced as to whether the accused is guilty, it is its duty to acquit. If the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is as manifestly unreliable that no reasonable tribunal can safely convict on it the prosecution must fail. The court cannot be satisfied beyond reasonable doubt, if there be still open some reasonable hypothesis compatible with innocence. There is no emancipation of the mind unless all reasonable doubts have been eliminated from it. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The benefit of doubt, to which the accused is entitled, is reasonable doubt; the doubt which rational thinking men will reasonably, honestly and conscientiously entertain and not the doubt of a timid mind.”
The trend of authority in Sri Lanka too amply demonstrates that the standard of proof required in respect of bribery charges is also nothing but beyond reasonable doubt.…..” Per Justice Ekanayake in Kalinga Padmatillake v. The Director General, Commission to Investigate Allegations of Bribery or Corruption, SC Appeal No. 99/2007 decided on 30.07.2009, (2009) 2 Sri LR. 151
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Economic Rights under the Intellectual Property law
IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA.
Associated Newspapers of Ceylon Ltd, No. 35, D.R. Wijewardena Mawatha, Colombo 10.
SC. CHC (APP) No.30/2003 Defendant-Appellant H.C. (Civil) 12/2001/(3) Vs.
Pituwana Liyanage Shantha Chandraguptha Amarasinghe, 320/C/2, Jothikarama Mawatha, Thalawathugoda. Plaintiff-Respondent
BEFORE : TILAKAWARDANE, J MARSOOF, PC, J & HETTIGE, PC, J
COUNSEL : Mr. Kushan D' Alwis with Prasanna de Silva and Knchana Ratwatte for Defendant-Appellant. Mr. Saliya Pieris with Upul Kumarapperuma, Irusha Kalidasa and Varuna de Saram for Plaintiff- Respondent.
ARGUED ON : 13th June, 2012
DELIVERED ON : 05th October 2012
Ms. SHIRANEE TILAKAWARDANE, J.
The Defendant-Appellant (hereinafter referred to as the “Appellant”) preferred this Appeal against the judgment entered in case No HC (CIVIL) 12/2001 (3) of the Commercial High Court of Colombo dated the 11th of September 2003 on the following grounds:
i. Did the Learned High Court Judge err in holding that damages occurred to the Plaintiff- Respondent (hereinafter referred to as the “Respondent”) on the basis that the Respondent had economic rights to the photographs?
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ii. Did the Learned High Court Judge err in awarding damages to the Respondent in the sum of Rs. 1,000,000/-?
iii. Did the Learned High Court Judge improperly rely on a Gazette submitted by the Respondent without notice to the Appellant?
In considering these questions of law it is opportune to analyze the pleadings, documents and evidential facts relevant to the case.
The Respondent filed action alleging that his intellectual property rights had been violated by the Appellant’s publication of the 9 photographs in issue, taken by the Respondent, (hereinafter referred to as the “Photographs”) in the “Daily News” and “Dinamina” newspapers on the 24th of July 1999. More specifically, the Respondent pleaded that the aforementioned publication violated his economic rights as guaranteed by Section 10 of the now repealed Code of Intellectual Property Act No. 52 of 1979 (as amended, hereinafter referred to as the “Code”) and his moral rights as guaranteed by Section 11 of the Code, as the Photographs were published without his consent or knowledge. Though this law is now repealed in terms of section 69(3)(b) of the Interpretation Ordinance the Rights acquired under the repealed law would not be affected. Accordingly, the Respondent prayed for a declaration that his intellectual property rights had been violated by the Appellant and claimed for damages in the sum of Rs. 2,500,000/-.
In the presentation of his evidence before the learned High Court Judge, the Respondent explained that he took the Photographs in Borella during the communal riots of July 1983. The Respondent further stated that he was in possession of the negatives of the Photographs, a fact corroborated by a witness, Nihal Asoka Siriwardane.
In explaining the volatile context in which the Photographs were taken, the Respondent spoke of the great difficulty he endured – including intimidation, threats of harm and actual assault – to photographically capture the unfolding events of the communal riots of 1983. So dangerous and unpredictable was the atmosphere of the riots that the Respondent, according to his testimony, would sometimes expose only a single frame on a roll before storing it for safekeeping, so as to prevent the loss of precious footage due to the imminent danger of his camera being snatched and/or broken at any moment. His simple narrative of the facts disclose succinctly, the risk to life and limb that he willingly exposed himself, in probably recognizing his social responsibility and seeing himself as the conduit in supplying explicit and vivid information, which he discerned and recognized as being the need of the hour, for the people of a nation to make informed choices . It was only due to the promulgation under Emergency Regulations of the Gazette No 245/8 dated 18th May 1983 of a ban on the publication of incendiary photographs (that could foment communal instability) that the Respondent could not publish his photographs immediately.
When the Photographs were taken in 1983, the Respondent was in the employment of “Aththa” newspapers. By July of 1997, the Respondent was working for “Ravaya” newspapers and had consented to Ravaya’s publication of the Photographs in connection with the 14th anniversary of the 1983 riots. In July of 1999, the said photographs were again published by “Ravaya”
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newspaper but, at this time, the Appellant also published them in its “Dinamina” and the “Daily News” newspapers. The Respondent, at trial, asserted the fact that he did not at any time directly or indirectly authorize the Appellant to publish the Photographs in the Appellant’s newspapers and took the opportunity to note that the Photographs were published by the Appellant as parts of news articles which even lacked a citation listing the Respondent as the source of the Photographs and otherwise failed to mention how the Photographs were obtained. It is important to note here that, during these proceedings, the Appellant unequivocally conceded that (i) the Respondent, in fact, took the Photographs during the July 1983 riots and that (ii) the Appellant did, in fact, publish the Photographs in the manner and on the date as alleged by the Respondent.
In considering the first question of law this Court examines the judgment aforesaid as to whether the Learned High Court judge erred in holding that damages occurred to the Respondent on the basis that the Respondent had economic rights in the photographs.
As it is not in doubt whether the Respondent took the Photographs or whether the Appellant published them, the High Court was left to consider two principle questions: (i) Did the Respondent tender consent to the Appellant to allow the latter’s publication of the Photographs and (ii) did the Respondent have the capacity to consent to their publication in the first place or put another way did the Respondent’s employment arrangement between “Aththa” newspapers allow the Respondent to retain ownership of the Photographs. These aforementioned questions, and therefore, the larger question of whether the Respondent is entitled to economic rights arising from the copyright of the Photographs in terms of the Code is a question of fact and not of law and, to be properly tried before this Court, would require the ascertainment of new facts – this is especially so with respect to the question of the Respondent’s capacity to consent, as the contract of employment between the Respondent and “Aththa” newspapers was not an issue at the time of trial.
It is well established that appellate review is a forum restricted only to reviewing questions of law. In Jayawickrama Vs. Silva 76 NLR 427, the Learned Judge stated that “a pure question of law can be raised in appeal for the first time, but if it is a mixed question of fact and law it cannot be done.” The case of Leechman Co Ltd., Vs. Rangalle Consolidated Ltd. (1981) (2) SLR. 373 espouses the same principle in inverse terms, with the Learned Judge stating that “a pure question of law which does not require the ascertainment of new facts can be raised for the first time in appeal.” The scope of jurisdiction established by a breadth of case law from which the above examples are picked guide this Court to conclude that questions of fact brought to this Court’s attention at the time of appeal, and which necessarily require the ascertainment of new facts, cannot be considered. The Appellant’s failure during the proceedings before the High Court to (i) challenge the originality and ownership of the work or to (ii) lead any evidence during the course of the trial or at the time of cross-examination, are errors in litigation strategy that cannot be rectified through appeal.
Even assuming that this Court is not precluded from considering the economic rights questions placed before us, an analysis of the relevant legislation reveals that there exists no applicable safe harbor or exemption under which the Appellant’s actions can be deemed legitimate. A brief outline of the body of relevant copyright law can be summed up as follows:
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1. Section 7(h) of the Code sets out a definition of the scope of work to be protected by copyright. This section expressly includes photographic work.
2. Section 10(a) of the Code sets out the framework for the economic rights of the author and provides the author with exclusive rights to do or authorize reproduction.
3. Section 11(1) of the Code discusses the moral rights of an author and states that the author of a protected work shall have the right to claim authorship of his work in connection with acts referred in Section 10 and therefore reproduction of the said photographs under Section 10(a) is a violation of the author’s moral rights.
4. Section 13(b) of the Code states that notwithstanding Section 10, protected work can be used without the author’s consent:
…in the case of any article published in newspapers or periodicals on current economic, political or religious topics….the reproduction of such article or such work in the press or the communication of it to the public, unless the said article when first published….was accompanied by an express condition prohibiting such use, and that the source of the work when used in the said manner is clearly indicated.
5. Section 17(1) of the Code indicates that the rights protected under Section 10 are those of the author who created the work.
6. Section 17(3) of the Code discusses works created in the course of employment indicating that where in the course of the author’s employment under a contract of service or work commissioned, the rights in Section 10 will be transferred to the employer or commissioner, where terms to the contrary are not stipulated.
From the above review of the rules governing copyright, it appears that the Appellant’s case rests solely on the application of Section 13(b)’s “newsworthiness” exemption or, alternatively, the availability of the allocation of presumed employer ownership under 17(3). Neither, rule, however, is applicable to the case at hand for reasons that will be dealt with later in this judgment.
Section 13(b)’s exemption is unavailable to the Appellant for the simple reason that, at the time of the Appellant’s publication of the Photographs in 1999, the communal riots of 1983 were no longer current “political” events. While it could be argued that the 14th anniversary of the 1983 riots was itself the current event to which the Appellant’s publication was connected, the legislative intent of 13(b), clearly was to allow for the dissemination of information surrounding actual transpired events, and not to serve as a loophole for use of material in subsequent “news cycles” of an initial event. This determination, combined with the fact that the Appellant appears to have added insult to injury by failing to even acknowledge the source from which the said Haris Palpola, LL,B. Hons,(OUSL) Attorney-at-Law Page 19
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The presumption established under Section 17(3) that an employer holds ownership in employee- created work is also unavailable to the Appellant. The words crucial to our determination of the inapplicability of Section 17(3) are; “in the absence of contractual provisions to the contrary”. While it may well be that the Respondent’s contractual relationship with “Aththa” newspapers – his employer at the time the Photographs were taken – did not stipulate that the Respondent would retain ownership of them, the Appellant’s failure to introduce or request the introduction of the contract between Respondent and “Aththa” newspapers into evidence for review, precluded the High Court from being able to determine whether Section 17(3)’s presumption was met. Had the contract been presented for the High Court’s review, an analysis of the terms of the contract of service or the specific nature of the work commissioned would have been undertaken. An analysis of, among other things, (i) whether the Photographs were taken for personal interest or investigation, (ii) whether the Photographs were taken during or outside of working hours, (iii) whether the Photographs were taken in furtherance of the Respondent’s work assignment and professional objectives, may well have led the High Court to have concluded that ownership remained with “Aththa” newspapers and not the Respondent. As the High Court was not afforded the opportunity to undertake such a factual analysis – and since such questions of fact cannot be reviewed at the appellate level as have hereinabove been explained – this Court finds that the Learned High Court Judge did not err in holding that damages occurred to the Respondent on the basis that the Respondent had economic rights in the photographs. The evidence before the Court therefore leads the Court to conclude that the photographs were taken for personal interest or investigation and not in furtherance of a work assignment that the Respondent had, at the risk of personal safety and with his camera and film. Therefore the photographic works are owned exclusively by the Respondent, who being the author is the first owner of the copyright in his photographs especially as the evidence is that he never transferred his ownership and he therefore continued to retain ownership.
The importance of this topic requires this Court to examine and refer to several relevant international legislative instruments in relation to the rights of the author of copyrighted works. Firstly, this Court will refer to the Berne Convention for the Protection of Literary and Artistic Works 1886 (as amended, hereinafter referred to as the “Berne Convention”), to which Sri Lanka is a signatory. Under Article 5 of the Berne Convention, copyright for creative works do not have to be asserted or declared, as they are automatically in force at creation and are not subject to any “formalities” such as registration or application in countries adhering to the Convention. As soon as the work is written or recorded on some physical medium, the author is automatically entitled to all copyrights in the work, as well as any derivative works. In addition, Article 2 ensures that the rights are protected until the author explicitly disclaims them or the copyright expires. Consistent with Section 17(3) of the Code, which refers to photographs taken in the course of employment under a contract of service, the Berne Convention also deems that the photographer is the sole owner of the copyright in a work upon its creation, in so far as the image was not made under an agreement to the contrary, in which case the ownership of the copyright would vest in the employer.
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Under the current system of law in Sri Lanka, the author is not encouraged to create works outside the ambit of the employment contract or terms of work commissioned out of fear of losing rights to the work. This disincentive, in the future, could lead to lack of journalistic motivation and therefore deterioration in investigatory reporting and subsequent communication to the public. The public has a right to information both communicated via articles, photographs and other medium. As a result of narrowly interpreted laws this right to information may be restricted and ultimately confine the media, which would ultimately impact the fabric of social justice that holds a nation together.
In this regard, the Court wishes to draw attention to the approach taken in continental European States where employers must purchase the usage rights from the author by means of an individual or collective agreement. The authors retain any usage rights not licensed to the employer by that contract, for example the right to reuse photographs already published would require permission from the original creator unless the right to reproduce is explicitly stated in the contract, the rights have expired or such reproduction is restricted by law. They are usually entitled to receive further remuneration for uses that go beyond those covered in the contract of employment. The law must at all times balance the exercise of an authors copyright with public interest. This is seen clearly in the United Kingdom where Section 171(3) of the Copyrights Designs and Patents Act 1988 provides the courts with the jurisdiction to refrain from enforcing copyright claims on the grounds of public interest.
This Court next considers whether the Learned High Court Judge erred in awarding damages to the Respondent in the sum of Rs 1,000,000/-.
It is the opinion of this Court that the Learned High Court Judge was correct in awarding damages of Rs 1,000,000/- to the Respondent for several reasons.
The Photographs were taken during the communal riots of 1983, a period of extreme unrest and conflict among ethnic communities in Sri Lanka. The Photographs captured by the Respondent were not merely photographs of the aftermath of the riots, but of actual live incidents that took place in the Borella area in real time. The Photographs taken by the Respondent seem to be exclusive photographs which represent the appalling violence that took place during the communal riots of July 1983 and it is alleged that there are no other photographs by any other photographer depicting the scenes as seen in the Photographs. Further, the Respondent was subjected to assault, intimidation and threats and in fact his camera was destroyed during the course of taking the Photographs. There is no dispute that the Photographs were taken in difficult and dangerous circumstances and with grave danger to the Respondent’s life.
Section 13(b) of the Code states that the source of the work reproduced needs to be clearly indicated and therefore despite the fact that the Photographs had been published in the “Ravaya” newspaper in 1997, the Appellant, quite apart from failing to exercise the common courtesy of obtaining permission from the Respondent, not only failed to obtain permission from the Respondent but also failed to indicate even the source of the Photographs when the Appellant published them in 1999 as evinced in the evidentiary facts.
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According to the evidence of the Respondent, one of the Photographs was sold at the value of Rs 10,000/- in 1996. Despite this being the only indication of value, the Court is in agreement with Cornish as expressed in his work on Intellectual Property, that the work of a humble photographer is in the same category as the work of a great artist and, this Court will not disturb the Learned High Court Judge’s assessment of the commercial value of the Photographs. This Court agrees that the “exclusive, historical and invaluable” nature of the Photographs is independent of how often they were sold and how much they were sold for – the lack of an existing market does not alone suggest an absence of value.
Finally the Court also considers whether the Learned High Court judge improperly relied on a Gazette submitted by the Respondent without notice to the Appellant.
The Gazette at issue – the Extraordinary Gazette Notification No. 251/21 dated 2nd July 1983 read with Regulation 14 of Extraordinary Gazette Notification No. 245/8 dated 18th May 1983 – is a document, of which the High Court was statutorily empowered to take judicial notice. Under Section 57(1) of the Evidence Ordinance 1896, the Court is mandated to take notice of “…[a]ll laws or rules having the force of law, now or heretofore in force or hereafter to be in force in any part of Sri Lanka.” Nowhere in this mandate is there a requirement that the Appellant be notified of the High Court’s reliance on established law. It is the opinion of the Court that the Learned High Court judge had correctly considered the Gazette and the absence of notice to the Appellant was not in any way a deficiency of due process.
There is indeed an urgent need for protection of journalists like the Respondent who with skill and commitment respond to the journalistic duty to honor the citizenry of our nation by fulfilling their primary obligation to report on facts in an unbiased, independent, undistorted, and disciplined manner, providing the unvarnished truth whilst maintaining an objective perspective of the people and events they cover. Their journalistic lens needs to be strengthened and empowered by law and their skills be developed through education and investment, propelling them in turn to report with a higher degree of accountability, independence and fairness. A nation of people who make their life’s choices on the information they receive from the media need to support and acknowledge their bravery and fearlessness especially when they become independent monitors of power and the checks and balances in exposing the truth, thereby being a cornerstone in creating a fair and just society. The extended lens of dedicated, fearless and responsible journalists has oft been the tool in effecting social justice and they must be protected, nurtured and supported, as much as an irresponsible journalist who distorts and violates the truth for biased reasons must be soundly condemned and exposed as they shame a noble profession.
In the light of the foregoing, this Court rules that the Respondent is in possession of the economic rights of the said photographs for the reasons stated above and that the judgment of the Learned High Court Judge is affirmed. The sum of Rs 1000,000/- awarded as damages to be paid within one month. The Appeal preferred by the Appellant be accordingly dismissed with costs in a sum of 25,000/-.
JUDGE OF THE SUPREME COURT
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MARSOOF, PC, J
I agree
JUDGE OF THE SUPREME COURT
HETTIGE, PC, J
I agree
JUDGE OF THE SUPREME COURT
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Rei Vindicatio action and Burden of proof
IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF
SRI LANKA
1. Sirisena Nawalage, Near the Post Office, Kalawana
SC Application No. 78/2010 1st Defendant-Respondent- Petitioner SC(HCCA) LA No. 44/2010 Vs. HCCA (Rat) case No. 165/07 1. Omatte Thilakaratne Mudiyanse DC Ratnapura Case No. 8612/L Ralahamillage Wilfred Bandara Kalawana of Thilakaratne Walawwa, Kalawana.
Plaintiff-Appellant-Respondent
2. O.T.M.R.U. Bandara Kalawana Dolehena, Kalawana
2nd Defendants-Respondent- Respondent
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BEFORE : HON. DR. BANADARANAYAKE, CJ.
HON. EKANAYAKE, J. AND
HON. PRIYASATH DEP, PC. J.
COUNSEL : Gamini Marapana PC with Navin Marapana and Nishanthi Mendis for the
1st Defendant – Respondent –Petitioner-Appellant.
Chandana Premathilake with Niluka Dissanayake for the Plaintiff - Appellant- Respondent – Respondent
ARGUED ON : 02nd August 2011.
WRITTEN SUBMISSIONS
FILED ON : 08th September 2011
DECIDED ON : 31st July 2012
Justice Priyasath Dep PC
This is an appeal preferred against the judgment dated 19.01.2010 of the Provincial High Court of Sabaragamuwa holden at Ratnapura by which the judgment of the District Court of Ratnapura dismissing the Plaintiff’s action in case No 8612/ L was set aside and the judgment was given in favour of the Plaintiff. The 1st Defendant preferred this appeal against the judgment of the High Court.
The Plaintiff Omatte Tilakaratne Mudiyanse Ralahamilage Wilfred Bandara Kalawana, instituted action in the District Court of Ratnapura bearing case No.8612/L on 23-2-1988 against Sirisena Nawalage the 1st Defendant and Omatte Tilkaratne Mudiyanse Ralahamilage Upatissa Bandara the 2nd Defendant (brother of the Plaintiff) praying for following reliefs:
a) to declare that he is the lawful owner of the land described in the scheduled to the plaint.
b) to evict the defendant and his agents, servants and employees and others from the said land
c) claiming damages in a sum of Rs. 15,000/- and monthly damages of Rs. 250/- from the date of filing of the action and to the date of the decree.
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d) cost and further relief
The Plaintiff had annexed to the plaint a Pedigree and an Abstract of title. In the schedule to the plaint the Plaintiff had given a description of the land and its boundaries and the extent. The land in question is a part of the Kalawana Nindagama called Pattelle Henyaya alias Panvila Hena bounded on the North by Pattelle Athura , East by Gamsaba Road, South by a land cultivated by D.B. Kalawana (father of the Plaintiff) and on the West by Panwila Heendola and containing in extend Ten (10) acres.
According to the plaint and the Pedigree the chain of title starts from O.T.M.R. Tilakaratne Bandara Kalawana, a co-owner of Kalawana Nindagama who is the grandfather of the Plaintiff. The said Tilekarathne Bandara Kalawana gifted the land to his wife W.A.M.R. Lucy Delgoda Kalawana Kumarihamy by deed No 1601 dated 26 -01-1943.The said Lucy Delgoda Kalawana Kumarihamy by Deed No; 5569 dated 23- 02-1948 transferred that property to O.T.M.R. Dingiri Banda Kalawana who is the father of the Plaintiff. The said Dingiri Banda Kalawana by deed No. 40289 dated 14.07.1970 gifted that property to her daughter O.T.M.R. Kalyanawathi, who is the sister of the Plaintiff. The said Kalyanawathi by Deed No. 652 dated 11.01.1988 transferred the property to the Plaintiff. These deeds were marked as P1-P4 and read in evidence at the trial.
The Defendants filed the answer on 12th June 1989. They stated that the land in question belongs to Kalawana Nindagama. The original owner of the said land was O.T.M.R. Mudali Lokubandara Gamaarachchi. The said Gamaarachchi had ten children. Two of them died issueless and a daughter contracted a diga marriage and thereby forfeited her right of inheritance. Therefore seven of his children including Tilakaratne Bandara Kalwana, grandfather of the Plaintiff became co-owners of the Nindagama. The Defendants had given details of predecessors in title to the land which is different to the pedigree given by the plaintiff. The 1st defendant purchased this land on 26th August 1988 after the institution of this action from several persons who are the co-owners namely, O.T.M.R. Somarathne Bandara, Anura Premalal Samarathunge, Hector Samarasinghe, B. I. Ranaweera; These transferors are either descendents of the original co-owners who inherited shares to the land or the persons who had subsequently purchased land from such persons. 1st Defendant states that he and his predecessors in title enjoyed undisturbed and peaceful possession for more than ten years. He states that without any objections from anyone he had cut drains and planted tea in the said land. He estimates the value of the improvements in a sum of rupees 10 lakhs. He prayed that the action of the Plaintiff be dismissed. In the alternative he had pleaded that in the event of the judgment is given in favour of the Plaintiff he is entitled to compensation for improvements in a sum of Rs. 10 lakhs and remain in possession until the compensation is paid.(Jus Retentionis)
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The Plaintiff filed a replication denying the averments in the answer and further stated that the Defendant is not entitled to compensation as the improvements were made not in good faith and were made unlawfully and fraudulently.
At the trial the Plaintiff raised issues 1 – 6 and the Defendant raised issues 7-14. Subsequently, Plaintiff raised issues 15-16 based on his replication.
The Plaintiff gave evidence and also called one Jayaratne from the Rubber Control Department to state that his late father Dingiri Banda Kalawana obtained a permit to plant rubber. Plaintiff states that her sister after her marriage in 1970s went to reside in Matara and continued to reside in Matara. The land in question was looked after by his father Dingiri Banda.Kalwana. His father the said Dingiri Banda Kalawana died in 1984. After the death of his father there was no one to look after the land and his brother Upatissa Banda Kalawana the 2nd Defendant claimed part of the property. He had entered into a planting agreement with the 1st Defendant Sirisena Nawalage and permitted him to cultivate three acres of land. The 1st Defendant Sirisena Nawalage entered the land and started removing rubber trees and started planting tea. The Plaintiff then sent a Letter of Demand to the 1st Defendant not to cultivate beyond 3 acres of land as he and his sister co-owns the balance 7 acres. The said letter was marked by the Defendant as 1V1. It appears that at that time the plaintiff as well as his brother the 2nd defendant were not aware of the fact that their father had gifted the land to Sister Kalyanawathi Kumaihamy in 1970.
It is the evidence of the Plaintiff that in spite of the fact that his father having donated his land to his daughter Kalyanawathi, continued to possess the land until his death in 1984. The legal owner Kalyanawathi did not show any interest to this land and had permitted his father to possess the land. Thus it is evident that the dispute arose in 1985 after the death of Dingiri Banda Kalawana.
The Plaintiff by deed no 652 dated 11-1-1988 purchased the entire 10 acres from her sister Kalyanawathi. Thereafter he sent a letter 1V2 claiming that he is the lawful owner of 10 acres of land and requested the Defendant to vacate the land. As the defendant failed to vacate the land and hand over the peaceful possession, the Plaintiff instituted the present action.
The learned District Judge in his brief judgment dismissed the Plaintiff’s action. He also answered issues No. 8 and 9 of the Defendant in the negative. The Learned District Judge dealing with the cross claim of the Defendant held that the Defendant did not prove his title. The Defendant was not awarded compensation for the improvements. The learned District Judge further held that the land in question belongs to seven co-owners and Plaintiff’s predecessors in title Tilekarathne Bandara Kalawana had only 1/7th share. Further he had referred to Letters of Demand sent by the Plaintiff to the Defendant and observed that those letters are contradictory of each other. (1V1 and 1V2) He had referred to the judgment in Muththusamy v Seneviratne 31 CLW 91 at page 91 and several other judgments dealing with legal principles applicable to rei vindication actions. He had correctly stated that in rei vindicatio actions the Plaintiff is required Haris Palpola, LL,B. Hons,(OUSL) Attorney-at-Law Page 26
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to establish his title and that there is no burden cast on the Defendant. The Learned District Judge dismissed the Plaintiffs action on the basis that the Plaintiff could not prove his title.
The Plaintiff appealed against this judgment of the District Judge to the High Court of Ratnapura exercising Civil Appellate jurisdiction. The parties filed written submissions and the Honorable High Court Judges in their judgment dated 19.01.2010 set aside the judgment of the District Court and allowed the appeal of the Plaintiff.
The main ground for the dismissal of the Plaintiff’s action by the District Court was that the plaintiff’s predecessors in title had only 1/7th portion of the land. This is on the basis that there were seven co-owners to this land. It is to be noted that Kalawana Nindagam consists of more than thousand acres. It was owned by seven co-owners including Tilakaratne Bandara.Kalawana, the grandfather of the Plaintiff. This was long prior to 1943 as evidenced by the documents filed in this case. Since then the original co-owners had died leaving behind number of heirs/successors, the exact number is not known. The Nindagm land was not partitioned. It was revealed in evidence that some of the lands forming part of the Kalawana Nindagama was acquired or vested with the State. Some of the lands were occupied by the villagers who prescribed to the land. Therefore it is unlikely that the original co-owners or their heirs continue to possess the entirety of the remainder of the Nindagam land as co-owners.The land which is the subject matter of this case consists only of 10 acres. It is the contention of the Plaintiff that the predecessor s in title of the plaintiff possess this land as a separate and distinct land prior to 1943 as evidenced by the Deed bearing Number 1601 dated 26-1-1943 marked P1.Since then this land was described with specific boundaries and extent.
The Honorable Judges of the High Court in appeal held that the land in question was owned and possessed as distinct and separate land by predecessors in title of the Plaintiff. The Honorable Judges further held that ouster can be presumed even though the original owner is a co-owner of the aforesaid Kalawana Nindagama.
The Honorable High Court Judges referred to the case of Fernando vs. Fernando and others reported in Bar Association law Reports (2006 BLR 28). In this case Weerasuriya J having considered previous decisions of the Supreme Court stated that “It is a common occurrence that co-owners possess specific portions of land in lieu of their undivided extents in a larger corpus. This type of possession attributes to an express or classic division of family property among the heirs is sufficient to prove an ouster provided that division is regarded as binding by all the co- owners and not looked upon solely as an arrangement of convenience”.
The Hon. High Court Judges having considered the Plaintiff’s evidence and deeds P1 – P4 produced by the Plaintiff held that Plaintiff has sufficiently proved the title. The Defendant had taken up the position that by virtue of the deed No. 8348 executed in 1988 marked in evidence as V15 he became owner of the land and he and his predecessors in title had prescriptive title. This title deed was executed after the institution of this action. The High Court Judges as well as the Haris Palpola, LL,B. Hons,(OUSL) Attorney-at-Law Page 27
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District Judge correctly disregarded this deed. The Honorable Judges relied on Talagune v De Livera 1997 1SLR 253. In that case it was held that “under our code, there is no provisions which permit a Defendant to plead by way of the defense, matter arising subsequent to the institution of the action, The judgment must determine the rights of the parties on the date of the institution of the action”.
The Civil Appellate High Court for the reasons set out in the judgment set aside the judgment of the District Court and entered judgment in favour of the Plaintiff but without damages.
Being aggrieved by the judgment of the High Court, 1st Defendant filed a leave to Appeal Application in the Supreme Court and obtained leave on following questions of law. a) Had their Lordships’ of the High Court of Ratnapura failed to give effect to the decision in De Silva v Gunathilake, 32 NLR 217, Muthusamy v Seneviratne, 31 CLW 91, Peris v Savunhamy, 54 NLR 207 and Wanigaratne v Juwanis Appuhamy, 65 NLR 167 and Harriet v Padmasiri 1996 1 SLR 358 ?
b) Had their Lordships’ of the High Court erred in having failed to consider the Petitioner’s right to compensation for the improvements done by him in view of the fact that the Learned District Judge has specifically stated that he has not considered the rights of the Petitioner in his Judgment?
c) Had their Lordships of the High Court erred in holding that the Petitioner ought to have filed an appeal against the failure of the Learned District Judge to adjudicate upon his rights, when the Petitioner had clearly won the case in the District Court ?
First Question of Law
It is the contention of the learned President’s Counsel for the Defendant that the Honorable High Court Judges disregarded the judgments of the Supreme Court regarding the burden of proof applicable to rei-vindicatio actions. In support of this argument he had cited several judgments. Including De Silva v Gunathileke 32 NLR 217, Wanigarathne vs. Juwanis Appuhamy 65 NLR 167, and Harriet v Padmasiri 1996 1 SLR 358.
In De Silva vs. Gunatillake 32 NLR 217 at page 219 Macdonell CJ citing authorities on Roman Dutch Law referred to principles applicable to rei vindicatio action in the following manner. “There is abundant authority that a party claiming a declaration of title must have title himself. “To bring the action rei vindicatio plaintiff must have ownership actually vested in him”. (1 Nathan p. 362, s.593) “The right to possess may be taken to include the ius vindicandi which Grotius (2, 3, and 1) puts in the forefront of his definition of ownership.” (Lee’s Introduction to Roman-Dutch Law, p. 111 note, ed 1915). “This action arises from the right of dominium. By it we claim specific recovery of property belonging to us but possessed by someone else” (Pereira,
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CORPUS JURIS SL p. 300, ed.1913, quoting Voet 6, 1, 3). The authorities unite in holding that plaintiff must show title to the corpus in dispute and that if he cannot, the action will not lie.
In Wanigarathne vs. Juwanis Appuhamy 65 NLR 167 Herath J stated that “The defendant in a rei vindicatio action need not prove anything, still less his own title. The plaintiff cannot ask for a declaration of title in his favor merely on the strength that the defendant’s title is poor or not established. The plaintiff must prove and establish his title”
In the case of Dharmadasa v Jayasena 1997 3 SLR 327(SC) G.P.S. de Silva CJ at page 330 quoted with approval the aforementioned statement of Macdonall CJ in De Silva vs. Gunathileke 32 NLR 217 and the statement of Herath J in Wanigarathne vs. Juwanis Appuhamy 65 NLR 167
It is settled law that in rei vidicatio actions the plaintiff must prove his title. In establishing his title the plaintiff cannot rely on the weakness of the defendant’s title. In this appeal we have to consider whether the plaintiff established his title or not.
In order to prove his title the Plaintiff produced four deeds marked P1-P4. These deeds indicate that since 1943 the land in question was identified with specific boundaries. The extent of the land is 10 acres. The identity of the land was not in issue. It was established that the plaintiff and his predecessors in title had title to the .land in question and had established the right of dominium over the land and had possession of the land in question until the death of his father Dingiri Banda Kalawana in 1984. It is to be noted that disturbance to the land commenced after the death of Dingiri Banda Kalawana and due to the conduct of the Defendant. It is only the Plaintiff who objected to the conduct of the Defendant. If the land in question belong to and possessed by some others as alleged by the defendant, the question that will arise is why such owners kept silent when the 1st defendant took over the possession of the land and started removing rubber trees and commenced planting tea while completely changing ecology of the land. Therefore it is abundantly clear that until his death, the father of the plaintiff did possess and use the land and he had undisturbed and uninterrupted possession.
Therefore it was established that the Plaintiff’s predecessors in title had the ownership and the possession of the land. Therefore the Plaintiff had proved his title to the land. It is incorrect to state that the honorable High Court Judges failed to give effect to Supreme Court Judgments pertaining to rei vindicatio actions.
Second Question of Law
The Learned District Judge dismissed the plaintiff’s case but did not order compensation for improvements to the 1st Defendant. Due to the dismissal of the Plaintiff’s action in the District Court, the Defendant was not ejected and he remained in possession. Therefore, question of compensation did not arise. The Honorable High Court Judges set aside the judgment of the District Court and held in favour of the Plaintiff and declared that the Plaintiff is the owner of the
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land and ordered the ejectment of the Defendant. There was no order for compensation for improvements carried out by the Defendant.
As the Honorable High Court Judges did not consider the question of compensation for improvements it is appropriate at this stage to consider whether the 1st defendant is entitled to compensation or not. The 1st Defendant, the appellant entered the land in question after entering into a planting agreement with the 2nd Defendant who is the brother of the Plaintiff. This agreement was in respect of 3 acres of land. Thereafter, he unlawfully occupied the balance 7 acres of land. Since then he was in possession of the land. As he was not a bona fide possessor he is not entitled to any compensation. He had been in occupation of the land unlawfully for more than two decades and he would have reaped the benefit of the improvements carried out by him at his own risk. Therefore, I hold that the Defendant is not entitled to any compensation for the improvements.
Third Question of Law
Third question of law is ‘Did the Hon. Judges of the High Court err in law when they held that the Petitioner ought to have appealed when the learned District Judge failed to adjudicate upon his rights specially regarding awarding of compensation for improvements?’ The Defendant in his answer prayed for the dismissal of the Plaintiff’s action and in the alternative, in the event of judgment given in favour of the Plaintiff to award compensation for improvement and until such time compensation is paid to remain in possession. (Jus Retentionis).In view of the dismissal of the Plaintiff’s action in the District Court there was no need to adjudicate on Defendant’s rights as he was not ejected and he continued to possess the land. Therefore, there was no necessity for the Defendant to appeal against the judgment of the District Court. Therefore the finding of the High Court on this point is erroneous. However it did not affect the judgment of the High Court.
For the reasons stated in this judgment, I affirm the judgment of the High Court setting aside the judgment of the District Court which dismissed the case of the Plaintiff.
Appeal dismissed. I order the 1st Defendant to pay Rs. 50,000/- to the Plaintiff as costs of this appeal and the Plaintiff is entitled to the costs of the appeal to the High Court and also costs in the District Court.
Judge of the Supreme Court
Dr. Shirani A. Bandaranayake, CJ.
I agree. Chief Justice.
Chandra Ekanayake, J.
I agree. Judge of the Supreme Court
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