1 St Issue 2015 from the Editor Chief Justice of Sri Lanka

COMMITTEE MEMBERS News Letter 01. Mr.T.D.Gunasekara D.J-.Kalutara 02. Mr.N.M.M.Abdulla Mag.-Batticaloa | [email protected] 03. Mr.H.S.Somaratne D.J.-Pugoda | hssomaratne @gmail.com 04. Mr.M.Ganesharajah D.J.-Mulativu | [email protected] 05. Mr.R.Weliwatta Mag.-Panadura | [email protected] 06. Mr.D.G.N.R.Premaratne Mag.Kurunegala | [email protected] 07. Mr.J.Trotsky Mag.-Bandarawela | trotskymarx1 @yahoo.com 08. Mr.K.A.T.K.jayatilake Mag.Gampaha | [email protected] 09. Mr.I.P.D.Liyanage D.J.-Hatton | [email protected] 10. Mr.R.A.D.U.N.Ranatunga D.J.Walasmulla | [email protected] 11. Mr.A.G.Alexrajah D.J.-Akkaraipattu | [email protected] 12. Mr.H.K.N.P.Alwis Mag.-Kegalle | [email protected] 13. Mrs.G.A.R.Atygalla Addi.Mag.-Colombo | [email protected] P. 01 From The Editor 14. Mr.A.M.I.S.Attanayake D.J.-Anuradhapura | [email protected] 15. Mr.A.D.C.S.Hewawasam Mag.Nuwaraeliya |[email protected] P. 02 Chief Justice of Sri Lanka 16. Miss.H.M.B.R.Wijeratne A.D.J.-Puttalam | [email protected] 17. Miss.K.D.N.V. Lankapura Mag.-Galle | [email protected] 18. Miss.K.G.D.Amarasinghe Juvenile-Mag. Battaramulla | [email protected] P. 04 Secretary’s Desk 19. Mr.A.S.Bodaragama Mag.-Elpitiya | [email protected] 20. Mr.H.S.U.Ramyakumara D.J.-Dambulla | [email protected] P. 06 21. Mr.S.G.C.Wickramanayaka Addi.Mag.-Kurunegala | chamarawickramanayaka @gmail.com Summery Procedure in Debt recovery; way for speedy justice 22. Mr.G.M.T.U.Suwandurugoda D.J.-Warakapola | [email protected] 23. Mr.I.N.N.Kumarage D.J.-Hambanthota | [email protected] 24. Mrs.K.A.G.Punchihewa A.D.J.-Matara | kusalanieagp @gmail.com 25. Mr.D.M.S.Karunarathna Addi.Mag.-Matara | dmskarunarathna @gmail.com 26. Mr.R.S.M.Mahendrarajah Addi.Mag.-Rathnapura | mewanlaw @gmail.com 27. Mr.D.C.K.Perera A.D.J.-Ampara | kayminda @hotmail.com

EDITOR | Jagath Kahandagamage , ASSISTANT EDITOR | Anushka Senevirathna web: www.jsasl.org | e-mail: [email protected] 1 Mr. Jagath Kahandagamage (Editor), District Judge, Distric Court, Horana, Sri Lanka. | 1st Issue - 2015

From the Editor’s Desk.... Dear Colleagues, It is with great pleasure that I welcome you to the first issue of the Jsa News Letter for the year 2015. I take this opportunity to express myself that it is an honour bestowed upon me to work with you this year as the Editor of the JSA News Letter. Like many past years, we will use the JSA News Letter as an important platform to sharpen our members’ analytical and creative writing skills as well enhancing their knowledge. Further we hope to introduce a forum to develop artistic skills of the members this year. As you all aware this year The JSA News Letter comes as a hard copy, obliging the decision taken at the last AGM. Being judges, we are engaged in a very important and difficult task in the implementation of justice and as there are various obstacles and challenges, it is my view that we must unitedly stands together to overcome those. Hence we do not believe the situation is hopeless. We have a wealth of members waiting in their wings to meet any challenge. Therefore I earnestly request all of you to contribute to improve the future issues. I take this opportunity to thank to all who contributed to publish this issue. Special words of thanks must go to Mr. Anushka Seneviratne (Co-Editor), Mr.Wasantha Jinadasa (Hon, President) and Mr. Ranga Dissanayake (Hon, Secretary) for their assistance and encouragements. This year too, the JSA shall rise and shine. It must, it will. I wish you good luck in 2015. Jagath Kahandagamage (Editor) District Judge - Horana

On their promotions ...... Hon. H. P. G. N. Ranaweera, Hon. Sujatha Alahapperuma, Hon N.B.D.N.B. Balalla, Hon. K. P. Fernando, and Hon H. S. Hapuarachchi were elevated to High Courts on 16th of February 2015. After taking oath before the Hon. Chief Justice , they posed for this photograph. We the JSA congratulate our former Hon. Members for their grate achievement and wish every success in their new duties.

1 | 1st Issue - 2015 Chief Justice of Sri Lanka

Hon. Justice Kanagasabapathy Sripavan

Hon. Justice K. Sripavan was appointed as the Chief Justice of Sri Lanka on 30th January 2015. His Lordship was a Judge of the Supreme Court and had been appointed as the Acting Chief Justice on several occasions prior to the new appointment.

Hon. Justice K. Sripavan was born on 29th February 1952 and was educated at Jaffna Hindu College between 1962 and 1972. Thereafter His Lordship joined Ceylon Law College in 1974 and passed out as an Attorney- at-Law in 1976.

His lordship was called to the Bar on 23rd August 1977 and practiced at the unofficial Bar till 1978. Then His Lordship joined the Attorney General’s Department as an Acting State Counsel on 14th February 1978 and become a permanent State Counsel on 3rd March 1979. His Lordship was promoted as a Senior State Counsel in 1989 and was further promoted as a Deputy Solicitor General on 22nd February 1996.

His lordship was the head of Court of Appeal Unit in the Attorney General’s Department and worked on the Court of Appeal and the Supreme Court Cases, including Bills and Fundamental Rights applications. His Lordship was awarded a Diploma in Industrial Law from the University of Colombo in 1992 and Masters of Law Degree from the University of London in 1994.

Hon. Justice K. Sripavan was first appointed as a Judge of the Court of Appeal on 29th May 2002 and become the President of the Court of Appeal in 2007. His Lordship was appointed to the Supreme Court of Sri Lanka in 2008 and was the senior most Judge of the Supreme Court.

We the Judicial Service Association of Sri Lanka congratulate on His Lordship’s appointment as the Chief Justice and wish every success in his Lordship’s new office.

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President’s Message

I am pleased to pen this message to the first News Letter of the JSA for the year 2015 as the President of the Association. At the outset, I have non- negotiable obligation to thank the membership for me to have been appointed as the President.

As you are very well aware, that our Association is guided by traditions of excellence and I hope to continue it as exemplified by our predecessors. Over the few months, we have engaged in unprecedented efforts to address each and every issue that are important to the members of the JSA.

We must admit the fact that, due to the change of control of the Government and resulted change of persons concerned, we were unable to fulfill our initial obligation on time.

Be that as it may, the executive committee of the JSA was able to identify the issues that are important to the membership, and the trends that they see affecting the future of the judicial profession.

Using the information gathered, the executive committee has worked to develop a series of draft goals and objectives for the year 2015.

As a result, we were able to meet His Lordship the Chief Justice and Honorable Commissioners of the JSC to take the blessings and started to negotiate with various stakeholders so required.

I am certain that we are on the process of fulfilling our obligation to the membership.

Please feel free to reach out to me or any member of the committee with thoughts, suggestions, and concerns and we can certainly address them or put you in touch with someone who can. Thank you! Wasantha Jinadasa President JSA 2015 JSA E- Links

JSA Twitter Account JSA Web Site 3 | 1st Issue - 2015

Secretary’s Report

The president and the ex-co of the JSA after assuming duties, launched an extensive programme for the benefit and wellbeing of its members. Initially more than welfare issues, we had to face with the arduous challenge of overcoming the problems and difficulties that the judicial officers were burdened with to which imminent solutions were required. Accordingly, our primary concern was to create a favourable atmosphere within which judges can function independently and free from influences. During the past four months ex-co strived its level best to achieve the said prospect and as a result we humbly admit that we failed to address memberswelfare issues as expected. We believe that all our membership should be aware of the difficulties that the association faced with during the past four month. Subsequent to the appointment of the new office bearers in December 2014, there was a change in the government on the 08th of January 2015. The new government took some time to formalise their practices and procedures and as a result discussions intended to be done with the governmental bodies were delayed. In the meantime a new Chief Justice was also appointed on the 30.01.2015 and thus JSA got its first opportunity to have discussions with the JSC members only on the 20.02.2015. The president Mr. Wasantha Jinadasa and I as the secretary met the JSC members on the 20.02.2015 and placed in writing all the problems and grievances of the minor judiciary. (A copy of the said written document has already been sent to the members). The Chief Justice and the other members seriously drew their attention on our issues and by now steps have already been taken to remedy most of the problems. According JSC circular No 378 which was immensely burdensome to the judges was cancelled with immediate effect. Also JSC showed positive response to the proposal of preparing a sensible and uniform transfer policy for judges and we have information to the effect that the JSC is now in the process of preparing a new scheme of transfer for the judges. It is not necessary to mention that now a sound environment within which judges can discharge duties independently have been created. However we expect that the JSC would provide solutions to the rest of the problems of the judges which are still remain unsettled. In view of discussing problems regarding facilities for the judges the Deputy President Mr. Rashmi Singgappulige and myself met the Hon Minister Mr. Wijedasa Rajapaksha on the 16.03.2015 and brought his attention to the following facts: 01) The ministry secretary’s decision of including the DJs and Magistrates into the category 3 of the circular no 3/2014 relating to the settlement of telephone bills 02) Official bungalows and housing rental issues 03) Providing of official vehicles 04) appointment of a judicial officer for a post of additional secretary to the ministry of Justice. We extensively explained the above issues but however it is regret to inform that the Minister and the Secretary did not successfully respond to them. The attitude of the Ministry towards judges is not favourable and it is evident that the ministry is not willing to safeguard the honour and dignity of the office of the judges.

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Therefore we realized that further discussions with the ministry would be purposeless and thus the EXco decided at the meeting held on the 21/03/2015 to place all problems of the judges to the JSC and the Hon President and the Prime minister of the country. It was also decided to initiate legal action against the ministry when necessary. Amidst all such difficulties we were successful in obtaining following achievements, 1) In consequence to discussions had with the Education secretary we were able to get all children who failed to obtain schools, admitted to schools for the year 2015 2) Many of our members informed us their objection to the proposed increasing of the retirement age of the High Court judges and we took steps to express such dissatisfaction to the JSC and also to the Hon President and the Prime Minister of the country. 3) It was also revealed that not even preliminary steps were taken to proceed the proposed housing project at Mt. Lavinia for the judges although the former JSA then announced that it was commenced. We made a thorough inquiry to this matter and now discussions are in progress with the authorities to acquire the land and grant plots to the judges only on housing value excluding the land value. 4) The project of granting of LRC lands which was initiated by the 2011 JSA was also failed due to many reasons and transfer deeds have not yet given although the land grant document was handed to the JSA on the 16.12.2011 by the LRC. We are now discussing with the authorities to give away the said deeds of transfer to our members who requested such lands. 5) salaries and allowances of the judges have not been increased for quite a long period and none of the budgetary allowances announced during the past two years have been added to the judges salaries. Therefore we intend to bring this to the attention of the Hon President and the Prime Minister in the near future. 6) We also made arrangements for the judges to obtain loans from the Bank of Ceylon at a lower interest rate for housing and other purposes without personal or proprietary securities. (This has already been communicated to the members). As a whole during the past four months we took all possible steps without hesitation to resolve problems and difficulties encountered by the members in the field more than the welfare issues. We assure you that we will be addressing soon all your necessary welfare matters in the near future. Ranga Dissanayake Secretary JSA Quote

5 | 1st Issue - 2015 Summery Procedure in Debt recovery; way for speedy justice By| D. M. J. Dissanayaka LLB., LLM., |District Judge/Magistrate, Kanthale.

Well worn matters under summery procedure • Instrument, agreement or document produced [Debt Recovery (Special Provisions) Act No. 2 of 1990 to court appears to be properly stamped(where such as amended by the Debt Recovery (Special provisions) instrument, agreement or- document is required by law (Amendment) Act, No. 9 of 1994] are sometimes seen to be stamped) in certain courts. Dates of institution of those cases were more than 6-10 years back. Plaintiffs of such cases • Not to be open to suspicion by reason of any were banks or other lending institutions. Since “justice alteration or erasure or other matter on the face of it, delayed is justice denied” and “delay defeats equity”, it • not prescribed, is required to find out the reason for such unexpected delay and solutions for that. • court being satisfied of the contents contained in the affidavit filed along with the plaint It is worth to note that this piece of legislation has introduced both civil and criminal jurisdiction. It Considering above, the court can grant Decree is clear that a “lending institution” can only file a civil nisi which should be in the form set out in the First action under Debt Recovery (Special Provisions) Act Schedule to the Act and reliefs that can be granted by No. 2 of 1990 . A “lending institution” is interpreted the courts are specified in that section. in section 30 of the Act where no other legal or natural person (other than specifically mentioned under sec.30) Once the decree nisi is granted by the court it can file a civil case. The provisions regarding criminal should be served on the defendant . Section 6 of the jurisdiction under section 25 of the Act however Act provides that the Defendant shall not appear or expanded the locus standi where even individuals are show cause against the decree nisi unless he obtains leave allowed to file cases . from the court to appear and show cause . It seems that summery procedure on liquid claims in chapter LIII of No action shall be instituted where the sum the Civil Procedure code is similar to the procedure alleged to be in default is less than one hundred and in this Act in obtaining leave of the court to enter the fifty thousand rupees. This monetary limitation is case. Hence obtaining leave of the court to enter and one way of challenging the jurisdiction of the court. defend the matter is a prerequisite. Documents that are needed to be produced when an action is instituted under the Debt recovery Act is After giving the defendant an opportunity of seen in section 3 and 4 of the Act. Accordingly Plaint, being heard court can grant leave to appear and show Affidavit , The instrument, agreement or document cause against the decree nisi, either; sued upon or relied on, draft decree nisi, the requisite (a) upon the defendant paying into court the sum stamps for the decree nisi and service thereof, such mentioned in the decree nisi; or number of copies of the plaint, affidavit, instrument, agreement or document sued upon, or relied on by the (b) upon the defendant furnishing such security as institution, as is equal to the number of defendants in to the court may appear reasonably and sufficient the action should be filed. for satisfying the sum mentioned in the decree Section 4(2) of the Act provides the nisi in the event of it being made absolute; or consideration that should be made in issuing a decree (c) upon the court being satisfied on the contents nisi at the first instance. Those requirements can be of the affidavit filed, that they disclose a defence summarized as follows. which is prima facie sustainable and on such

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terms as to security, framing and recording of Code would deem so. Accordingly; court can’t allow issues, or otherwise as the court thinks fit the Defendant to file an answer. If answer is allowed Where the defendant either fails to appear and to be filed that would be a violation of the statutory show cause or having appeared, his application to show provisions stipulated in the Act and goes against the cause is refused, the court shall make the decree nisi intention of the legislature. absolute. In the case of W.K.M.D.Perera Vs Peoples Bank, Enough attention is not been paid to the correct it was clearly decided that the order given by the trial procedure that should be adopted in debt recovery judge “to appear and file answer” was incorrect and it cases once leave is granted to the Defendant to enter was substituted by the words “to appear and show cause the case . This was one of the main reasons for the delay against the decree nisi”. This case clearly illustrates that caused in cases I have referred at the beginning. After regular procedure can’t be adopted once the Defendant the permission is granted to enter the case, as per the is allowed to enter the case. Next step should not be Debt Recovery (Special Provisions) Act No. 2 of 1990 filing an answer. as amended by the Debt Recovery (Special provisions) Hence, it is required to apply the prescribed (Amendment) Act, No. 9 of 1994, what should be provisions in the Civil Procedure Code to the trial of the correct procedure to be followed? Is it become a the action. It is evident that Part ii / Chapter xxiv of regular action thereafter? Or should we continue it in a the Civil Procedure Code includes provisions regarding summery manner? Let’s peruse the legal provisions and summery procedure. If Sec.7 of the Debt Recovery judicial decisions to ascertain what is correct. (Special Provisions) Act No. 2 of 1990 as amended by In the case of Seylan Bank Plc. Vs Lebbe the Debt Recovery (Special provisions) (Amendment) Mohomed Razik , Hon. Thilakawardana J. citing the Act, No. 9 of 1994 specifically states to apply those preamble of the Debt recovery Act clearly stated that unique provisions of Civil Procedure Code, The court the intention of the legislature was to expedite the of law is bound to follow the same. recovery procedure. Hence it is clear that, if regular If the Defendant is allowed to file an answer and procedure is adopted after the Defendant is allowed to contest the matter as in regular procedure (once the to enter the case, naturally the case will be delayed. If application to enter the case is allowed) it would be waste it is so, the summery procedure becomes meaningless. of time. Because; the time consumed for consideration Parties can easily file cases under regular procedure of the application to enter the case (Consider decree without wasting time to make application to enter the nisi, Issue decree nisi to the defendant, application by case as provided in summery procedure. defendant to enter the case, Written submissions if any, Once the leave is granted the procedure that order of the court) is an excessive procedure. Then the should be adopted is clearly mentioned in section 7 of procedure will not be a summery procedure as expected the Act . since all the initial steps are futile efforts. 7. If the defendant appears and leave to appear In Ramanayaka Vs. Sampath Bank Ltd. And and show cause is given the provisions of sections 384, Others , it was states that the summery procedure in 385, 386, 387, 390 and 391 of the Civil Procedure the liquidated damages (chapter 53 of the C.P.C.) is Code (Chapter 101) shall, mutatis mutandis, apply to same as the Debt recovery procedure. However when the trial of the action. (Emphasis by author) we carefully peruse the whole case record, it is clear that similarity is restricted only to the procedure of according to the above provision, it is crystal obtaining leave of the court to enter and defend. The clear that the sections of the Civil Procedure Code similarity is not for the entire procedure of the case. which are specifically mentioned in section 7 should be Hon. Wijayarathne J. has clearly mentioned that as per applied to the trial of the case. It is not the procedure section 7 of the Debt Recovery Act, sections 384-391 for obtaining leave to enter the case even though of the C.P.C. applies to the trial of the case. Hence it plain reading of the sections of the Civil Procedure is clear that, this case refers the similarity of procedures

7 | 1st Issue - 2015 only to the leave that should be obtained prior to enter Accordingly, the Defendant should start the case and defend the case. once permission is granted for defendant to enter the When provisions of the Civil Procedure Code case. In the event of the respondent stating objections is applied, if both parties appear in courts once the to the application, and not otherwise, and after the leave is granted to the Defendant to enter the case, respondent’s evidence, if any, shall have been read or the proceedings on the matter of the petition shall given, the petitioner shall be entitled by way of reply to commence by the respondent in person, or by his or comment upon the respondent’s case . registered attorney, stating his objections, if any, to the When the respondent’s evidence has been taken, petitioner’s application. The respondent shall then be it shall be competent to the court, on the request of the entitled to read such affidavits or other documentary petitioner, to adjourn the matter to enable the petitioner evidence as may be admissible, or by leave of the court to adduce additional evidence; or, if it thinks necessary, to adduce oral evidence in support of his objections, or it may frame issues of fact between the petitioner and to rebut and refute the evidence of the petitioner. respondent, and adjourn the matter for the trial of It is noteworthy that no affidavit or other these issues by oral testimony . documentary evidence shall be so read without express The court, after the evidence has been duly leave of court, unless a copy of the document shall have taken and the petitioner and respondent have been been served on the petitioner or his registered attorney heard either in person or by their respective attorneys- at least forty eight hours before the day when the matter at-law or recognized agents, shall pronounce its final of the petition comes on to be heard and determined. order in the matter of the petition in open court, either As per the above provision, it is clear that at once or on some future day, of which notice shall be Defendant should start the case once permission is given in open court at the termination of the trial . As granted to enter the case. In Bank of Ceylon Vs. Kaleel, per these provisions it is clear that the Decree nisi which Wimalachandra J. observed that Plaintiff must start was entered initially is only stayed by continuation the case unless the Defendant admits the statements in of the proceedings of the case and still hanging over Plaint. This judgment was given considering only the the Defendant until he shifts the burden back to the provisions of the Civil Procedure Code. Hence, In the Plaintiff by proving a valid Defence. case of Bank of Ceylon Vs. Warnakulasuriya it was As per the above analysis of the legal provisions decided that correct procedure should be summery and the case law it is clear the fact that provisions procedure stipulated in section 7 of the Debt Recovery regarding the summery procedure stipulated in the Debt Act. In this case Wimalachandra J. specifically stated as recovery Act must be strictly followed and accurate follows. procedure should be adopted in such cases. Summery “Dicta in the burden of proof in my judgment procedure should be continued until the conclusion of in Bank of Ceylon Vs. Kaleel has no application to the case. If the provisions of the Act are given strict the circumstances under consideration of the present interpretation as discussed in this article, it will reduce application. The objections with regard to the question the laws delays and lead for speedy justice. “Who should begin the case” is obiter dicta and my observation in judgment in the Bank of Ceylon Vs. Kaleel ought to stand rectified.”

“The best way to find yourself is to lose yourself in the service of others.” - Mahatma Gandhi -

8 | 1st Issue - 2015 Judgements

application, briefly are as follows; Proceedings began Primary Court Procedure Act. under Chapter VII of the Primary Court Procedure Act (hereinafter referred to as the “Act”), before the learned Magistrate (who is deemed to be a Judge of the In the Court of Appeal of the Democratic Primary Court ) upon a dispute referred for adjudication Socialist Republic of Sri Lanka under Section 66(1) (a) regarding the obstruction of a C A (PHC) APN 117/2013 pathway. The parties to the dispute were three siblings. HC Galle HCRA 32/13 The learned Magistrate declared the parties of the 1st part-respondents-respondents (referred to in this Ananda Sarath Paranagama judgment as the “respondents”) as being entitled to use PARTY OF THE 2ND PART- PETITIONER- the pathway of 17 feet in width. PETITIONER vs. Based on this decision, the learned Magistrate directed the removal of the obstruction that was Dhammadhinna Sarath Paranagama constructed across the pathway so as to facilitate the And use of it. Kamitha Aswin Paranagama Discontented with the determination, the party PARTIES OF THE 1ST PART-RESPONDENT of the 2nd Part- Petitioner-Petitioner (referred to in RESPONDENT the rest of this judgment as the “petitioner”) sought OIC, Habaraduwa Police Station, to invoke the revisionary jurisdiction of the Provincial INFORMANT-RESPONDENT-RESPONDENT High Court. Upon hearing the parties as to the Before: A.W.A.Salam, J (P/CA) and Sunil maintainability of the revision application, the High Rajapaksha, J Counsel: Dr Sunil Cooray with R. M Court refused to entertain the same, on the ground Perera for the 2nd party-petitioner-petitioner and that the petitioner has failed to adduce exceptional/ Janaka Balasuriya for the parties of the 1st respondent- special grounds. The instant revision application has respondents. been filed thereafter, with a view to have the impugned Argument on: 10 February 2014 order refusing to entertain the revision application set Decided on: 07 August 2014 aside and revised inter alia on the following grounds. A.W. A. SALAM, J (P/CA) 1. The impugned refusal to entertain the revision This application is aimed at revising an order of the application is contrary to law and the facts of the Provincial High Court entered in the exercise of the case. revisionary jurisdiction vested in it under Article 154 2. The learned High Court Judge has failed to consider, P(3)(b) of the Constitution. A narrative description evaluate, and give reasons for not considering or of the main events preceded the instant revision accepting as exceptional circumstances, the several

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matters set out in paragraphs 10 and 11 of the original Court having to needlessly wait for the fruits said petition. of his victory to be reaped.

3. No other remedies are available to the petitioner Inasmuch as the facts of this case are concerned, to prevent the wall being demolished although the the trend of authority not being in favour of the High Court had set out as the second ground that exercise of the discretionary remedy unless upon there are other remedies available; the applicant showing the existence of special circumstances warranting the clemency of Court to 4. No reasons whatsoever are given in the said exercise the revisionary jurisdiction, the petitioner was judgment for dismissing the revision application obliged to adduce special or exceptional circumstances. on the two grounds stated therein. This is a condition precedent to entertain the revision When an alternative remedy is available the type application by the High Court. of restrain imposed on the exercise of the revisionary Similarly, as there is a right of appeal to this powers, had been discussed in several cases both in our Court against the refusal of the learned High Court Courts and other jurisdictions. Suffice it to discuss the Judge to entertain the revision application, the petitioner principle embodied in the judgment of the well-known has to establish exceptional circumstances to have the case of Rustom Vs Hapangama [1978-79-80 SLR impugned order revised by this Court as well. Volume 1V Page 352] where it is laid down that the revisionary powers of a Court will not be invoked, if It was contended on behalf of the petitioner an alternative remedy is available, unless the existence that the High Court Judge without giving any reasons of special circumstances are urged and established by a judgment of two lines refused to issue notices necessitating the indulgence of Court to exercise its and dismissed the application stating that there were powers in revision. no exceptional circumstances on which its revisionary jurisdiction could be exercised. He complains that this The term ‘revision’ means the examination of a has culminated in a miscarriage of justice. decision with a view to correction. The material points that may arise for consideration in a revision application On a consideration of the practice ordinarily inter alia are whether a subordinate Court has exercised adopted by Courts in disposing revision applications jurisdiction which is not vested in it in law or whether it at the threshold stage, it is manifest that the contention has failed to exercise such jurisdiction which is so vested raised by learned Counsel is wholly untenable and or has acted in the exercise of the jurisdiction illegally devoid of merits. In other words, in an order refusing to or in excess of jurisdiction or with material irregularity. entertain an application, the High Court Judge can most In other words, strictly speaking a revision application of the time able to state that there are no exceptional calls for the correction of errors concerning illegalities circumstances that warrant the entertainment of the and patent irregularities which are of such magnitude application and no more. He is not obliged to give that call for the discretionary powers of Court to details regarding the existence or nonexistence of special correct them. or exceptional circumstances. In passing it might be of some relevance to mention that this is the procedure Hence, it is the duty of a High Court and the adopted even in the Supreme Court when application Court of Appeal vested with the revisionary jurisdiction for special leave is refused. under the Constitution, to ensure that the revisionary powers of such Courts are not invoked as a matter The main ground alleged in the revision of course, at the expense of a successful party in the application made to the High Court was that the

10 | 1st Issue - 2015 learned Magistrate had not given his mind as to the restrict to the issue of actual possession as at the date proof required of the right in question in a Section of filing the information, except where a person who 66 matter, as the action is commonly known. It was in possession of the subject matter is dispossessed was submitted on behalf of the petitioner that the within a period of two months immediately preceding respondents were obliged to establish in the Magistrate’s the date on which information under Section 66 was Court the entitlement to use the pathway by proof of filed. user for an uninterrupted period of 10 years adverse to Unlike in the case of a dispute relating to the petitioner’s rights. This ground alleged as a special possession of immovable property, no timeframe has circumstance warranting the intervention of the High been laid down as to the length of time during which Court by way of its revisionary powers should fail the right should have been enjoyed in relation to the inlimine as there is no requirement under Chapter VII purported entitlement. In resolving such a dispute the – Section 69 to establish the entitlement in the same Judge of the Primary Court is expected to determine manner as is usually proved in a civil case. as to who is entitled to the right which is the subject The ingredients necessary to be proved to obtain of the dispute and make an order under Section 69(2). a declaration of ‘entitlement’ as contemplated in Section The marginal note to Section 69 of the Act reads 69 of the Act will be discussed at a different stage. as “Determination and order of Judge of the Primary On a consideration of the material available, Court when dispute is in regard to any other right”. For it appears to me that the petitioner has failed to purpose of ready reference, Section 69 of the Act is impress upon this Court that there are exceptional reproduced below… circumstances to warrant the intervention of this Court (1) Where the dispute relates to any right to by way of revision. Therefore, the endeavour made by any land or any part of a land, other than the right to the petitioner to involve this Court in the correction possession of such land or part thereof, the Judge of of the purported error committed by the High Court the Primary Court shall determine as to who is entitled should fail. to the right which is the subject of the dispute and The learned Counsel for the petitioner has make an order under Sub-Section (2). submitted that a glaring error of law has been committed (2) An order under this Sub-Section may declare by the learned Magistrate when failing to address his that any person specified therein shall be entitled to any mind as to whether one brother has used the right of such right in or respecting the land or in any part of the way over the other brother’s land adversely to the latter, land as may be specified in the order until such person and for a period of not less than 10 years. The glaring is deprived of such right by virtue of an order or decree error said to have been committed in coming to the of a competent Court, and prohibit all disturbance conclusion as to the existence of the pathway followed or interference with the exercise of such right by such by the order of demolition to remove the impediment, party other than under the authority of an order or according to the petitioner, has ended up in serious decree as aforesaid. miscarriage of justice. The question that arises for determination at It is elementary principle of law that under this stage is whether a party claiming a right to any land Chapter VII of the Act, when the dispute relates to other than the right to possession should establish his the possession of an immovable property, the Judge of right precisely as he is expected to do in a civil case or the Primary Court is duty-bound under Section 68 to whether he could succeed in obtaining the declaration

11 | 1st Issue - 2015 as contemplated in Section 69, merely by proving that existing in another person would fairly and naturally he enjoyed the right as at the time when the dispute be inferred for ten years previous to the filing of the arose. It is to be understood that the proof of the information under Section 66 of the Act. acquisition of the right is totally different from proving This may not be possible in every case relating the enjoyment/existence of the right at the time the to a dispute over a right concerning an immovable dispute arose. property, as the proceedings under Chapter VII of In dealing with the nature of the right, a Judge the Act is required to be held in a summary manner, of the Primary Court is expected to adjudicate under concluded within three months of the commencement Section 69 of the Act, Sharvananda, J (later Chief of the inquiry and the order under Section 68 or 69 Justice) in the case of Ramalingam Vs Thangarajaha as the case may be, having to be delivered within one 1982 Sri Lanka Law Reports - Volume 2 , Page – 693 week of the conclusion of the inquiry. Further, under stated that in a dispute in regard to any right to any Section 72 of the Act before the pronouncement of the land other than right of possession of such land, the order, the material on which the Judge of the Primary question for decision, according to Section 69(1), is Court may act are limited to certain types of material who is entitled to the right which is subject of dispute. unlike in a civil case where parties have the option to The word “entitle” here connotes the ownership of the lead evidence of any volume as long as it is admissible right. The Court has to determine which of the parties and relevant to the facts in issue and facts relevant to has acquired that right or IS ENTITLED FOR THE the facts in issue. TIME BEING TO EXERCISE THAT RIGHT. In It is now trite law that in an inquiry under contradistinction to Section 68 of the Act, Section Chapter VII of the Act, adducing evidence by way of 69 requires the Court to determine the question as to affidavits and documents is the rule and oral testimony which party is entitled to the disputed right preliminary is an exception to be permitted only at the discretion of to the making of an order under Section 69(2). the Judge. The discretion is hardly exercised to permit (Capitalization is mine) oral testimony and generally not granted as a matter of According to the decision in Ramalingam (supra) course. In such an instance it is not only impracticable the Judge of the Primary Court has two options, in but beyond the ability of a party to establish a right deciding as to which of the parties should be declared as is usually accomplished in a civil Court under the entitled to the right. Since the word “entitle” as used regular procedure. in Section 69 implies ownership of the right, the Judge Although in certain limited number of disputes, of the Primary Court could determine as to who in a party may be able to establish the right he claims fact has acquired the disputed right. In the larger sense strictly in accordance with the substantial law, in a large it means any kind of proof of the acquisition of the number of cases they may not be able to do so, by reason disputed right as envisaged by any law dealing with the of the limited time frame within which the inquiry has ingredients to be proved. For instance, if the disputed to be concluded, the restricted mode of proof and the right is the existence of a right of way, the party who sui generis nature of the procedure. desires the Court to pronounce his entitlement may establish the uninterrupted and undisturbed use of the There are two ways in which an entitlement can pathway, by a title adverse to or independent of the owner be proved in the Primary Court. They are … that is to say, a use of the pathway unaccompanied by 1. By adducing proof of the entitlement as is any payment from which an acknowledgment of a right done in a civil Court.

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2. By offering proof that he is entitled to the orders against the right of way being obstructed. One right FOR THE TIME BEING. such case is Perera Vs. Gunatilleke where Bonsor C. J, observed as follows: The phrase “for the time being” as used in the decision in Ramalingam’s case connotes the exercise of “It seems to me that, where a person establishes right by one party, temporarily or for the moment until that he has used a way as of right openly and such time such person is deprived of his right by virtue continuously for a long period and is forcibly prevented of a judgment of a Court of competent jurisdiction. from using it, he is entitled to an injunction to restore If you describe a party as being entitled to enjoy a right him to the quasi possession of the way, irrespective of but for the time being, it means that it will be like that whether he can establish the existence of a servitude. for a period of time, but may change in the future. This We will treat this action as a possessory action and is exactly in keeping with legislative wisdom embodied grant an injunction which will restore the status quo under part VII of the Act. ante” [4 NLR 181]

The rationale behind this principle is that the Historically, unlike in India which introduced conferment of the special jurisdiction on a Judge of laws to combat the breach of the peace arising from the Primary Court under Chapter VII of the Act is disputes relating to immovable properties very early, quasi‑criminal in nature and is intended to facilitate the the Magistrates here did not have the jurisdiction to temporary settlement of the dispute between the parties adjudicate over such disputes until recently. As it was so as to maintain the status quo until the rights of the unaffordable to permit violence in the name of civil parties are decided by a competent civil Court. Subject disputes which generally culminates in the devastation to this, every other concerns however much prominent of the progress of a nation, the bench and the bar had they may appear to be, will have to be placed next to the continued to clamour for Laws to be introduced to imperative necessity of preserving the peace. meet the challenges.

As has been emphasised in the case of In 1953 the Criminal Courts Commission Ramalingam (supra) at an inquiry under Chapter VII, headed by E F N Gratian (Chairman) and M S F Pulle the action taken by the Judge of the Primary Court is (Commissioner) accompanied by its Secretary M C of a purely preventive and provisional nature, pending Sansony forwarded its report to His Excellency the the final adjudication of the rights of the parties in Governor suggesting that changes be brought into the a civil Court and the proceedings under this Section law to put an end to this menace. are of a summary nature. Moreover, it is essential that The suggestions made by the commission with they should be disposed of as expeditiously as possible. regard to disputes affecting lands, resulting in the breach In the circumstances, although it is open to a party to of the peace are found at page 8 and 9 of the report. The prove the right he claims to be entitled to as is required suggestion made by the Criminal Courts Commission under the substantial law dealing with a particular right, was to strengthen the hands of the Magistrates to it is not impossible for him to be content with adducing adjudicate summarily on disputes affecting land where proof to the effect that he has the right to enjoy the the breach of the peace is threatened or likely and to entitlement in dispute for the time being. permit the enjoyment of the rights relating to lands to Even in a civil action when the plaintiff had those who are entitled to enjoy them FOR THE TIME failed to prove a clear case of servitude there had been BEING. instances where the Courts have issued restraining

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It took almost two decades to pass Laws in to a breach of the peace. The ultimate decision as to terms of the suggestion made by the Criminal Courts the legal right of the parties will necessarily have to be Commission, when the National State Assembly made, in subsequent proceedings, by a competent civil in 1973 made Provisions by enacting law No 44 of Court. No particular procedure has been prescribed in 1973 with the inclusion of Section 62 which was later regard to the manner of holding the inquiry, for that replaced by Act No 44 of 1979 (Vide Chapter VII). would only have introduced technicalities. The order eventually made by the Magistrate will be purely a As the original Provision of Section 62 in the temporary one and a refusal to comply with it in breach Administration of Justice Law was based on the report of it is made punishable. [Capitalisation added] of the Criminal Courts Commission, it is pertinent at this stage to reproduce the relevant passages from 11. We have sought to give effect to the principle the said report concerning the suggestions made with that parties should not take the law into their own regard to disputes affecting immovable properties. For hands. Therefore, any party who dispossesses another purpose of ready reference the suggestions made by the forcibly should not gain any advantage thereby, when commission are reproduced below… the Magistrate makes his final order. The scope of the Section has been deliberately made as wide as possible “Dispute as to immovable property in order to embrace all possible disputes concerning 10. Many disputes and resulting offences spring any rights affecting land, and the intention is that in from rival claims to land. There is at present no method making an equitable interim order, a Magistrate is by which a Magistrate can deal speedily and summarily empowered to order a party placed in possession FOR such disputes. It is essential that the Magistrate should THE TIME BEING to furnish security for the purpose be vested with statutory powers to make orders with of complying with the final decision of the dispute”. regard to the possession of lands where disputes [Capitalisation added] affecting such lands may result in a breach of the From the above report, it would be seen that the peace. The procedure suggested by us in Section 98 commission has given the highest priority to orders A is based in part on the provisions of Section 145 being made FOR THE TIME BEING, permitting of the Indian Code of Criminal Procedure. As far as those who enjoy the rights to continue with it, until possible, notice will be given to the parties alleged to such time the Court of competent jurisdiction resolves be concerned in the dispute, but whether such notice the dispute on a permanent basis. reaches the parties or not the Magistrate will hold summary inquiry and may, even before the inquiry is Insistence on the proof of a right as in the case of concluded, make an interim order on the question of a civil dispute, in this type of proceedings, would lead possession in order to maintain the peace. The purpose to two original Courts having to resolve the identical of the inquiry is to enable the Magistrate to determine dispute on the same evidence, identical standard of in a summary manner who should FOR THE TIME proof and quantum of proof twice over. This would BEING permitted to enjoy the right in dispute, but he indeed an unnecessary duplicity and is not the scheme will make an order which may not be founded strictly suggested by the Criminal Courts Commission and on the legal merits of the claim of the rival parties but could neither be the intention of the Legislature. rather with the view to the necessities of the immediate One has to be mindful of the fact that there emergency. It will be directed rather to resorting to the are still judicial officers in this country who function status quo and to ensure that interference, except by simultaneously as Judges of the Primary Court, due process of law, which possession does not give rise

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Magistrates, and Judges of the Juvenile Court, Judges C A. minute dated 18 March 1981, Abdul Cader, J of the family Court and District Judges. If disputes with the concurrence of Victor Perera, J held inter affecting lands under the Primary Court Procedure Act alia that the claimant of a footpath who started using are to be heard by the Primary Court Judges and later it in 1966 August and was obstructed a few months the civil case as District Judges on the same evidence, before the prescriptive period of 10 years, in June 1976 same standard of proof and identical quantum of was not entitled to a declaration under section 69. proof, it would not only result in the utter wastage of Having analysed the evidence led in the lower court his the precious time of the suitors and the Courts but will Lordship formed the opinion that there had been no be a meaningless exercise as well. satisfactory evidence on which it can be held that the claimant exercised a right which has been in continuous Turning to the determination, the learned existence for a period of time prior to his use. Magistrate has addressed his mind to the averments in the affidavits of both parties and considered the I am of the view that the decision in Kandiah documents annexed and given cogent reasons for his Sellappah’s case has been entered per incuriam without findings. In short, the findings of the learned Magistrate properly defining or appreciating that all what section are quite logical, stand to reasons and consistent with 75 mandates is “a dispute in the nature of a servitude” the material available. He has referred to the petitioner and not a dispute touching upon a servitude per se. as having stated at the inspection that the respondents Therefore, when the right concerned is in the nature of used the pathway in question as permissive users. As a servitude relating to a right of a pathway, the period a result, the parties in the Magistrate’s Court were at of 10 years plays no important role. variance only as to the nature of the pathway and not Further, the answer to this issue is found in the whether the respondents used the pathway. There is Judicature Act No 2 of 1978 by which the primary thus an implied admission of the road having been used court had been created. In terms of section 32 (2) by the respondents. Therefore the issue is whether the of the Judicature Act the primary court shall have pathway used by the respondents is a right of servitude no jurisdiction in respect of the disputes referred to or a merely permissive user in nature. The wall has been in the 4th schedule, irrespective of the value thereof. put up overnight to obstruct the pathway. According to the 4th schedule the actions excluded In the Primary Court Procedure Act under from the jurisdiction of the primary court inter alia are Section 75 a dispute is defined as follows… as follows..

“dispute affecting land includes any dispute 12. Any action for a declaratory decree including as to the right to the possession of any land or part a decree for the declaration of title to a land. of a land and the buildings thereon or the boundaries 24 (i) for obstruction to or interference with the thereof or as to the right to cultivate any land or part of enjoyment of any servitude or the exercise of any right a land, or as to the right to the crops or produce of any over property. land, or part of a land, or as to any right in the nature of a servitude affecting the land and any reference to The two exclusions referred to above provide “ land” in this Part includes a reference to any building clear authority for the proposition that the right standing thereon. (Emphasis added) intended to be declared under section 69 is definitely not with the regard to servitude per se but a right in the In the case of Kandiah Sellappah Vs nature of a servitude. Sinnakkuddy Masilamany (CA application 425/80-

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Since the dispute in this case therefore is a right According to the affidavit of the Grama connected with land in the nature of servitude there is Niladhari the pathway in question had been used for a no doubt that the learned Magistrate had jurisdiction period of 50 years as access to the aforesaid buildings. to adjudicate on the issue in terms of the Act. In addition, a lawyer practising in Galle and a science teacher had affirmed severally that the right of He also had jurisdiction to order the demolition way had been used over a period of time. of the construction that obstructed the pathway. In Tudor Vs. Anulawathie and Others - 1999 - Sri Lanka The employees of the respondents also have Law Reports Volume 3, Page No - 235 it was decided affirmed to the existence of the road in question. that although there is no specific Provision in the Further, certain others who had used the pathway also had given affidavits. Primary Courts’ Procedure Act, expressly enabling the Court to order removal of obstructions in the way of Upon a consideration of the material referred to restoration of the right to the person entitled thereto in in Section 72 of the Act, the learned Magistrate has terms of the determination made by the Court, there is formed the opinion that the respondents are entitled to no such prohibition, against the Court exercising such a use the said pathway. This being a finding based on the power or making such an order. credibility of the witnesses and parties, I do not think the High Court Judge or this Court should interfere As was held in Narasingh v. Mangal Dubey with it, as the law permits the reversal of such a strong - (1883) 5 Allahabad 163, the Courts are not to act finding only if it had ended up in a miscarriage or on the principle that every procedure is to be taken as travesty of justice. No such eventualities appear to have prohibited unless it is expressly provided for by law. taken place by reason of the magisterial determination. What in fact matters here is the converse that every procedure is to be understood as permissible till it is By placing a permanent obstruction in a haste, shown to be prohibited. As such, I can see no reason with no justification or explanation warranting such as to how the order of demolition made by the learned a quick action, carried into effect over a weekend, magistrate can be faulted as being illegal. It axiomatic the petitioners appear to have aimed at making the wisdom that prohibitions are generally not presumed respondents unable to turn to Court for redress, a compelling reason that had influenced the Magistrate and therefore a court cannot be faulted for acting on to look for a draconic measure to undo the damage. the converse. I feel obliged here to reiterate the concern of The photograph produced marked as 2D9b, Bonser CJ penned over a century and a decade ago by the petitioner has been observed by the Magistrate (4 NLR 181) which needs to re-echo in the minds as an attempt to mislead Court with regard to certain of every officer exercising judicial, quasi-judicial and important features of the subject matter. administrative powers in resolving or investigating into According to the affidavit of the Postmaster a complaint touching upon the breach or apprehension of the relevant area, following the construction of the of a breach of the peace emanating from a dispute wall, postal authorities had experienced difficulties in affecting land. It reads as follows… delivering the mails, addressed to the respondents. “In a Country like this, any attempt of parties Further, the affidavit of the sister of both parties to use force in the maintenance of their rights should bears testimony that the pathway had existed over a be promptly discouraged. Slight brawls readily blossom period of 40 years serving as access road to buildings into riots with grievous hurt and murder as the fruits. It bearing assessment No’s 195/1 and 195/2. is, therefore, all the more necessary that Courts should strict in discountenancing all attempts to use force in the assertion of such civil rights”.

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BONSER CJ- Perera Vs. Gunathilake (1900 - 4 revision under Article 154 (3) (b) of the Constitution. N.L.R 181 at 183) In the circumstances, the fate of the petition could not have been different from how it culminated in the High In conclusion, I wish to place it on record that Court. land disputes can cause social disruption and sometimes loss of life. They can have a negative impact on the Hence, the Magistrate and the Learned High development of lands and eventually on the economy Court Judge are amply justified in their respective of the Country. An efficient and effective system conclusions which effectively had prevented the for settling land disputes is essential in any Country petitioner from taking the law into his own hands. although the resolution of land disputes may appear The decision allowing the respondents to continue to to be complex. However trivial the dispute may be, enjoy the disputed right in the nature of a servitude for it is the duty of the law enforcing authorities to pay the time being, is the only order that could have been serious attention to the issue, particularly with a view lawfully made by the Magistrate. to take a preventive measure against possible violence. Revision application is therefore dismissed The determination of the learned Magistrate points subject to costs fixed at Rs 1,03,000/-. to a right decision taken at the right time in the best interest of the parties, in consistent with the Law and President/Court of Appeal the Legislative aim. Any decision to overturn such a Sunil Rajapaksha, J decision by the High Court would have ended up in a miscarriage of justice. I agree Hence, it would be seen that the petitioner has Judge of the Court Of Appeal failed to adduce exceptional circumstances or made out TW/- a case deserving the exercise of the revisionary powers of this Court under Article 138 of the Constitution. He has neither unfolded a case deserving the intervention of the Provincial High Court by way of

trong Minds Discuss Ideas, Average MindsS Discuss Events, Weak Minds Discuss People. - Socrates -

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Sentencing

In The Supreme Court Of The Democratic No. 03, Socialist Republic Of Sri Lanka Urupitiya. In the matter, of an Appeal with Special Leave Accused-Respondent- Appellant to Appeal granted by Supreme Court under Article Vs. 128(2) of the Constitution of the Democratic Socialist Hon. Attorney General Republic of Sri Lanka. Attorney General’s Department, S.C. Appeal No. 17/2013 Colombo 12. S.C.Spl. LA No. 207/2012 Complainant-Appellant- C.A.No. . 297/2008 Respondent HC. Kurunegala No. 259/2006 * * * * * Hon. Attorney General BEFORE : Eva Wanasundera, PC. J Attorney General’s Department, Sarath de Abrew, J. & Colombo 12. P. Jayawardena,PC. J. Complainant COUNSEL : Nimal Muthukumarana for Accused- Vs. Respondent-Appellant. Ambagala Mudiyanselage Samantha Yasantha Kodagoda, DSG. for Attorney-General. Sampath, ARGUED ON : 05.11.2014 No. 03, DECIDED ON : 12.03.2015 Urupitiya. * * * * * * Accused EVA WANASUNDERA, PC.J. And Between Hon. Attorney General In this case, Special Leave to Appeal was granted Attorney General’s Department, on the questions of law contained in paragraph 21(a) of the Petition dated 01.10.2012. The said question is Colombo 12. as follows:- Complainant-Appellant “Is the judgment of the Court of Appeal Vs. contrary to law and bad in law?” Ambagala Mudiyanselage Samantha Sampath, The Attorney General who is the Complainant- No. 03, Appellant-Respondent in this case (hereinafter referred to as the ‘Respondent’), forwarded an indictment Urupitiya. on 04.08.2006 against the Accused-Respondent- Accused-Respondent Appellant(hereinafter referred to as the “Appellant”) Page 2 to the High Court of Kurunegala for having, on a day And Now Between between 01.08.2003 and 31.3.2004 committed the Ambagala Mudiyanselage Samantha offence of rape punishable in terms of Section 364(2) Sampath, (e) of the Penal Code with regard to W.C. Janitha Perera, a girl under 16 years of age. On 28.10.2008

18 | 1st Issue - 2015 when the case was taken up for trial in the High Court the conviction of any person for having committed of Kurunegala, the Appellant-pleaded guilty to the an offence in terms of Section 364(2)(e) of the Penal charge and the learned High Court Judge committed Code, i.e. „statutory rape, the Court is obliged to the Appellant on his own plea of guilt. Thereafter, impose a term of rigorous imprisonment which is not the High Court imposed a term of 2 years rigorous less than 10 years. imprisonment suspended for a period of 10 years and The facts in this case can be narrated as follows. a fine of Rs.5000/- with a default sentence of 1 year The Appellant, a labourer in occupation had married rigorous imprisonment and also ordered the payment the victim’s sister. They had no children in that marriage. of Rs.200,000/- as compensation to the victim of the The victim’s sister had left the country without the crime W.C. Janitha Perera. consent of the husband about an year after the marriage. Being aggrieved by the punishment imposed The Appellant was then invited by the victims parents on the Appellant by the High Court, the Respondent ie. his mother in law and father in law, to come and Attorney General preferred an appeal to the Court live with them in their house. The victim was a 15 year of Appeal. On 24.07.2012, the Court of Appeal old girl attending school. Only four of them lived in pronounced the judgment setting aside the punishment that house. The girl was found to be pregnant when her in the nature of the suspended term of imprisonment mother took her to the hospital when she was unwell. imposed by the High Court and substituting therefor the Then the pregnancy was 5 months old. The parents minimum term of imprisonment that may be imposed stopped her going to school; told the Appellant not to for the offence, ie. 10 years rigorous imprisonment. come home again; took her to another village and kept However the Court of Appeal did not interfere with her there, with an older married couple who had no the fine and the order for compensation imposed by the children, having in mind to hand over the baby to them Learned High Court Judge. The Appellant has appealed when it is born. The parents did not go to the Police. from the judgment of the Court of Appeal and Special The victim girl did not make any complaint at that time Leave was granted by this Court as aforementioned on to the Police. one question of law. Most unexpectedly, some outsider had informed The argument of the Appellant at the hearing the Police of the area that the Appellant and the victim of this appeal was that the judgment in the case of were mysteriously missing from that house. It is only SC. Reference No. 03/2008 recognizes the imposing then that the Police had launched an investigation and of sentences below the minimum mandatory sentence found that the girl was away in another house whereas after considering the circumstances of the particular the Appellant was living with his parents in his village case and that the present case should be reviewed close by. The statement made to the Police revealed that accordingly. The Appellant prays that this Court should the girl was only 15 years old, and then the Appellant exercise its discretionary power and affirm the High was taken into custody and was later enlarged on bail. Court judgment which imposed a sentence below the The victim gave birth to a baby girl on minimum mandatory sentence to the Appellant setting 19.07.2004 in the Kuliyapitiya Base Hospital. It is the aside the Court of Appeal judgment. The argument of Appellant who informed the Registrar of Births of the the Respondent was that the judgment in SC. Reference area that the baby girl was born, according to her birth 03/2008 with regard to the constitutionality of the certificate filed of record. It is mentioned therein that penal provision in Section 364(2)(e) of the Penal the father of the baby is the Appellant, A.M. Samantha Code amended by Act No. 22 of 1995 concerning the Sampath and that the parents were not legally married. minimum mandatory term of imprisonment, is outside It is accepted that at the time of her birth, the baby the jurisdiction of the Supreme Court and should girl Sanduni Wasana had a father, the Appellant and a therefore not serve as a valid or binding precedent. The mother, the victim. Deputy Solicitor General further argued that upon

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The Attorney General forwarded an indictment consequence of the sexual intercourse between the two to the High Court dated 04.08.2006. It was taken up and that child is a girl child who is now over 10 years for trial on 28.10.2008 for the first time. The Appellant of age. She is getting the benefit of the presence of the pleaded guilty to the charge of rape of a girl below 16 father and the mother as at present. The Appellant is years and he was subject to punishment by the High willingly working for the support of the child. Court under Section 364(2)(e) of the Penal Code as The Charter on the Rights on the Child as amended by Act No 22 of 1955. The baby Sanduni declared in the Children’s Charter 1992 to which Sri Wasana is being paid maintenance by the Appellant Lanka has proclaimed to be a party, Article 03(2) and moreover he visits the school as the father of reads thus:- “The best interest of the child shall be the child when called upon to do so; has arranged the primary consideration in any matter, action or the transportation to and from the school and sends proceeding concerning a child, whether undertaken by money to maintain the child. The High Court imposed any social welfare institution, court of law, administrative a punishment of 2 years RI. suspended for 10 years and authority or any legislative body ”. Article 7 of the same imposed a fine and compensation. reads:- “A child shall be registered immediately after The Attorney General appealed against this birth and shall have the right from birth to a name, sentence to the Court of Appeal. It was argued on right to acquire a nationality and as far as possible the 24. 07.2012 and decided also on 24.07.2012, i.e. on right to know and be cared for by his parents”. the same day and the Court of Appeal set aside the In the case of Dharma Sri Tissa Kumara suspended sentence and imposed a punishment of 10 Wijenaike Vs. Attorney General (SC. Appeal years rigorous imprisonment. It is from that judgment No. 179/2012- minutes of 18.11.2013) Justice that the Appellant is before this Court. Tilakawardane commented that “the decision appears In my mind, the sole question to be decided is to be based on the reality that the Court is the upper whether a mandatory minimum sentence imposed by guardian of a child”. statute i.e. Section 364(2)(e) of the Penal Code stifles In the present case, there is an existing 3rd the hands of the Court imposing the punishment person in the picture, ie. the 10 year - old girl who is thus taking away the judicial discretion in sentencing born and living in this world as a result of the victim or whether Court is bound to impose the mandatory and the Appellant having had sexual intercourse. It is minimum sentence. Since the said sentence, according the Appellant who is the father of the child who at all to the judgment of the Supreme Court in S.C. Reference times concerned has truly and sincerely declared to be 03/2008, is in conflict with Articles 4(c), 11 and the father and is parenting and minding the child born 12(1) of the Constitution, the High Court held that it to the victim. It is a special case where the Court has is not inhibited from imposing a sentence that it deems to give its mind to a 3rd party who happens to be in appropriate in the exercise of its judicial discretion existence as a consequence of statutory rape to which notwithstanding the minimum mandatory sentence. the father of the child has pleaded guilty to. Supposing I believe that every Judge who sits in a Court and the Appellant is sent to jail for 10 years to come, the hears the case in the Court of first instance gets the girl child of 10 years at present will not get the love and opportunity not only to hear the case but also to see the affection, care and support of the father to whom she case with the physical eye, to smell the case, to feel the looks up to at present and would not ever understand case and to fathom the case with the present mind. The the concept of the State punishing him for „statutory Judge could hear the words of evidence and observe the rape committed on her mother, for which the girl is body language of those who give evidence. made to suffer for no wrong committed by her at any time in her life, during her prime childhood which is In this case, leave aside the victim of rape and the included in the 10 years of rigorous imprisonment i.e. Appellant, there exists a child born into this world as a until she is 20 years of age. This fact is a matter of

20 | 1st Issue - 2015 grave concern of this Court as “the Court is the upper and antecedents, the offence and its circumstances guardian of any child on earth”. (extenuating or otherwise), the need for deterrence and the likelihood of reform and rehabilitation. I would like to analyse the judgment in the case of S.C. Reference 03/2008. It was a matter of (b) The imposition of mandatory minimum a Reference made to the Supreme Court in terms of sentences would result in imposing identical sentences Article 125(1) of the Constitution of the Democratic in case where court thinks it appropriate and where Socialist Republic of Sri Lanka, made by the High Court Court thinks it most inappropriate which amounts to Judge of Anuradhapura inquiring “whether Section treating unequals as if they were equals, in violation of 364(2) of the Penal Code as amended by Penal Code Article 12(1). (Amendment) Act No. 22 of 1995 has removed the (c) The effect of imposition of mandatory judicial discretion when sentencing an accused convicted minimum sentences would amount to an erosion of of an offence in terms of that Section.” The Learned an essential judicial discretion in regard to sentencing. High Court Judge had submitted her observations to There would be gross disparities in sentences, which the effect that the medical report negates the use of will not only violate the principles of equal treatment force and support the position that sexual intercourse but may even amount to cruel punishment. had been consensual. The Supreme Court stated that even though the woman’s consent was immaterial for The Supreme Court held in S.C. Reference the offence of rape when she is under the age of 16 03/2008 that “as far as Section 364(2)(e) of the Penal years, a woman’s consent is relevant for a Court, in Code is concerned, the High Court has been prevented the exercise of its discretion in deciding the sentence from imposing a sentence that it feels is appropriate for such an offence. The High Court Judge had also in the exercise of its judicial discretion due to the noted that a custodial sentence of 10 yrs. R.I. would minimum mandatory punishment prescribed in Section not benefit the complainant. The Supreme Court had 364(2)(e). Having regard to the nature of the offence also observed that there was no mandatory minimum and the severity of the minimum mandatory sentence sentence before the Amendment No. 22 of 1995 to in Section 364(2)(e) is in conflict with Articles 4(c), the Penal Code, when it made the determination in SC 11 and 12(1) of the Constitution.” Ref. 03 / 2008. In the present case in hand, the learned Deputy The Supreme Court considered Article 4(c), Solicitor General argued that S.C. Reference 03/2008 Article 11 and Article 12(1) of the Constitution, in judgment is contrary to the limitation on judicial review S.C. Reference 03/2008. This case discussed many as contained in Article 80(3) of the Constitution and is Special Determinations such as SC./SD 6/98, 7/98, therefore unconstitutional and outside the jurisdiction 4/2003 and 5/2003 where it was decided that the of the Supreme Court. Bills before Parliament in the respective Determinations In that case, the Supreme Court also held that, which tried to impose „mandatory minimum sentences’ were held to be inconsistent with Articles 4(c), 11 and “Article 80(3) only applies where the validity of 12(1) of the Constitution. The reasons attributed to an act is called into question. However, Article 80(3) the said decisions were as follows:- does not prevent a Court from exercising its most traditional function of interpreting laws. Interpretation (a) The imposition of mandatory minimum of laws will often require a Court to determine the sentences would result in legislative determination of applicable law in the event of a conflict between two punishment and a corresponding erosion of a judicial laws. This is a function that has been exercised by this discretion and a general determination in advance of Court from time immemorial”. the appropriate punishment without a consideration of relevant factors which proper sentencing policy I find that the issue in the present case is a should not ignore; such as the offender and his age, conflict between the provisions in an ordinary law, ie.

21 | 1st Issue - 2015 the Penal Code and the provisions in the Constitution. victim and the Appellant to enter into a marriage as The Constitution is accepted as the Supreme Law the Appellant is already legally married to the victims of the country and the ordinary laws derive their sister who is living abroad. The child is being looked validity from the Constitution. The provisions in the after by the Appellant father in the eyes of the society, ordinary law should be interpreted in the light of the and the child is dependent on the income earned by the Constitutional provisions. The Constitution should be Appellant. used as a flash-light on the provisions of the ordinary In these circumstances I hold that the Learned law. Any mandatory minimum sentence imposed by the High Court Judge had correctly imposed a suspended provisions of any ordinary law, in my view is in conflict sentence of “2 years RI. suspended for 10 years”. I with Article 4(c) 11 and 12(1) of the Constitution agree with the decision of the Supreme Court in S.C. in that it curtails the judicial discretion of the Judge Reference 03/2008 and uphold the conclusion of that hearing the case. For example, the State files criminal case that the minimum mandatory sentence in Section cases against persons in the society; then these persons 364(2)(e) is in conflict with face the charges in Court and defend themselves; at the time of conviction, Court hearing the criminal case Articles 4(c), 11 and 12(1) of the Constitution has no doubt that the accused is guilty or not. If the and that the High Court is not inhibited from imposing State proves its case without any doubt, the suspect is a sentence that it deems appropriate in the exercise of found guilty; otherwise he is acquitted. Court has „no its judicial discretion notwithstanding the minimum discretion’ in that part of the trial which is decided on mandatory sentence. the evidence before court. It is only in deciding on the I set aside the judgment of the Court of Appeal punishment that the Court has a discretion. When a dated 24.07.2012 and affirm the judgment of the High minimum mandatory sentence is written in the law, the Court dated 28.10.2008. However, I order no costs. Court looses its judicial discretion. That part of the law with the minimum mandatory sentence, acts as a bar to Judge of the Supreme Court judicial powers in sentencing or punishing the wrong Sarath de Abrew, J. doer. The Judge who has seen, felt and smelt the case I agree. should be given the discretion in sentencing, considering Judge of the Supreme Court all the circumstances of the case, the consequences of P. Jayawardena,PC. J. a sentence, whether it serves as cruelty to the wrong I agree. doer, the victim or any other person affected by that Judge of the Supreme Court sentence etc. Sentencing is the most important part of a criminal case and I find that provision in any law with a minimum mandatory sentence goes against the judicial discretion to be exercised by the Judge. In the present case, we must look at the big picture with the victim of rape the Appellant, the father of the child born, and the 10 year- old girl child who was born into this world as a result of the victim having been raped. The victim of rape never complained to the Police until after a pregnancy of 5 months when Police on its own came to the victim in search of her when an outsider informed the Police of her missing I have always found that mercy bears from home. There was no chance for the victim to give richer fruits than strict justice evidence as the Appellant pleaded guilty to the charge - Abraham Lincoln - of statutory rape of the victim. There is a bar for the 22 | 1st Issue - 2015

Trial de novo

In The Supreme Court Of The Democratic 1G. Adhikari Appuhamilage Weerawansha Socialist Republic Of Sri Lanka 1H. Adhikari Appuhamilage Ariyakusum S.C. Appeal No. 155/2011 1I. Adhikari Appuhamilage Chandra Kusum SC/HCCA/LA No. 224/2011 1J. Adhikari Appuhamilage Dimuna Sanjeewanie NWP/HCCA/KUR/08/2005(F) All of No. 13, Jayasirigama, Pannala (Post) D.C. Kuliyapitiya Case No. 3901/L 1K. Jayalath Balagallage Solomon Dias Ranasinghe Arachchilage Samadara Malini 1L. Jayamanna Ranasinghe Both of Thalammehera, Pannala (Post) (Deceased) SUBSTITUTED-DEFENDANTS PLAINTIFF AND BETWEEN 1A. Senarath Arachchilage William Singho 1k. Jayalath Balagallage Solomon Dias 1B. Senarath Arachchilage Thushara Senarath Thalammehera, Pannala (Post) 1C. Senarath Arachchilage Samindra Senarath 1K SUBSTITUTED-DEFENDANT- 1D. Senarath Arachchilage Lasantha Senarath APPELLANT All of Weralugama Kuliyapitiya (Post) Vs. SUBSTITUTED-PLAINTIFFS Ranasinghe Arachchilage Samadara Malini Vs. Ranasinghe Adhikari Appuhamilage Appuhamy (Deceased) (Deceased) 1A. Senarath Arachchilage William Singho DEFENDANT 1B. Senarath Arachchilage Thushara Senarath 1A. Wijesinghe Arachchilage Rosalin Nona 1C. Senarath Arachchilage Samindra Senarath (C/o. Balagolla Kade, Kobeygane (Post) 1D. Senarath Arachchilage Lasantha Senarath 1B. Kalubowila Appuhamilage Rosalin Nona All of Weralugama Kuliyapitiya (Post) 1C. Adhikari Appuhamilage Ariyawansha SUBSTITUTED-PLAINTIFFS- RESPONDENTS 1D. Adhikari Appuhamilage Gunawansha Adhikari Appuhamilage Appuhamy 1E. Adhikari Appuhamilage Gunasinghe (Deceased) 1F. Adhikari Appuhamilage Wijesinhge 1A. Wijesinghe Arachchilage Rosalin Nona

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Balagolla Kade, Kobeygane (Post) Adhikari Appuhamilage Appuhamy 1B. Kalubowila Appuhamilage Rosalin Nona (Deceased) 1C. Adhikari Appuhamilage Ariyawansha 1A. Wijesinghe Arachchilage Rosalin Nona 1D. Adhikari Appuhamilage Gunawansha Balagolla Kade, Kobeygane (Post) 1E. Adhikari Appuhamilage Gunasinghe 1B. Kalubowila Appuhamilage Rosalin Nona 1F. Adhikari Appuhamilage Wijesinhge 1C. Adhikari Appuhamilage Ariyawansha 1G. Adhikari Appuhamilage Weerawansha 1D. Adhikari Appuhamilage Gunawansha 1H. Adhikari Appuhamilage Ariyakusum 1E. Adhikari Appuhamilage Gunasinghe 1I. Adhikari Appuhamilage Chandra Kusum 1F. Adhikari Appuhamilage Wijesinhge 1J. Adhikari Appuhamilage Dimuna Sanjeewanie 1G. Adhikari Appuhamilage Weerawansha All of No. 13, Jayasirigama, Pannala (Post) 1H. Adhikari Appuhamilage Ariyakusum 1L. Jayamanna 1I. Adhikari Appuhamilage Chandra Kusum of Thalammehera, Pannala (Post) 1J. Adhikari Appuhamilage Dimuna Sanjeewanie SUBSTITUTED-DEFENDANT- All of No. 13, Jayasirigama, Pannala (Post) RESPONDENTS 1L. Jayamanna AND NOW BETWEEN of Thalammehera, Pannala (Post) 1k. Jayalath Balagallage Solomon Dias SUBSTITUTED-DEFENDANT- Thalammehera, Pannala (Post) RESPONDENT-RESPONDENTS 1K SUBSTITUTED-DEFENDANT- BEFORE: Chandra Ekanayake J., APPELLANT-APPELLANT Rohini Marasinghe J. & Vs. Anil Gooneratne J. Ranasinghe Arachchilage Samadara Malini COUNSEL: W. Dayaratne P.C. with Ms. D.N. Ranasinghe Dayaratne (Deceased) for the 1K Substituted-Defendant-Appellant- 1A. Senarath Arachchilage William Singho Appellant 1B. Senarath Arachchilage Thushara Senarath Dr. Jayatissa de Costa P.C., with Daya Guruge 1C. Senarath Arachchilage Samindra Senarath For the Substituted-Plaintiff-Respondent- Respondent 1D. Senarath Arachchilage Lasantha Senarath ARGUED ON: 11.02.2015 All of Weralugama Kuliyapitiya (Post) DECIDED ON: 02.04.2015 SUBSTITUTED-PLAINTIFF- GOONERATNE J. RESPONDENT-RESPONDENTS

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This is an appeal from the judgment of the High based on prescriptive title of the Defendant-Appellant Court (Civil Appeals) of the North Western Province, and entered judgment in favour of the Plaintiff. In the delivered on or about 19.5.2011. Leave to Appeal was appeal to the High Court by the Defendant-Appellant granted by this court on 07.10.2011, on questions of the learned High Court Judge dismissed the appeal. law referred to in paragraphs 17(a), (b), (c) and (i) of It must be noted that the 1st abortive trial the petition of 1K Substituted-Defendant - Appellant- commenced on 24.11.1977. During the course of the Petitioner. (reference to above paragraphs will be done second trial before the District Court both original subsequently) It would be necessary to briefly refer to Plaintiff and Defendant died and 1A to 1D substituted the facts of the case and to the order made by the Court Plaintiffs and 1A to 1L Substituted Defendants were of Appeal on 02.10.1992, for a trial De Nova, prior to substituted. In the second trial before the District considering the judgment of the said High Court, and Court which is in fact relevant to this appeal, Plaintiff ’s the Appellant’s case. party led the evidence of Surveyor, substituted 1A The original Plaintiff was one Malani Ranasinghe Plaintiff, and led evidence of the depositions and read who filed action in the District Court of Kuliyapitiya in evidence the depositions as per Section 33 of the Evidence Ordinance of original Plaintiff ’s wife Leanora. in case No. 3901/L for a declaration of title to the Deposition produced and marked as P12 which was her land described as lot 2 of “Meegahamulawatta’ alias evidence in the first trial. In the same way the deposition Kongahamulawatta in an extent of about 2 Roods, of one Dhanapala was produced and marked as P14 & 37.5/.24 perches and for damages and ejectment P14a, without any objection. of the Defendant-Respondent. Original-Plaintiff ’s position was that the land in dispute was partitioned The learned President’s Counsel for the on or about 1954 (Plaintiff ’s grand-father by virtue Appellant contended before this court that Plaintiff of the partition decree became entitled to said lot 2) failed to establish title to the land in dispute or to the and that the Defendant was in possession of the land title pleaded in the plaint and that the Defendant- with the permission of the said Plaintiff ’s grand-father. Appellant has placed sufficient evidence of undisturbed However Defendant made a claim to the land in dispute and uninterrupted adverse possession of the corpus based solely on prescriptive title. It was the view of the for a period of over 40 years. On that basis learned Court of Appeal (vide order of 02.10.1992) that there President’s Counsel for Appellant argued that his were certain shortcoming in placing evidence before the client has prescribed to the land in dispute. He further District Court and both parties have not proved each argued that based on the evidence of the Plaintiff ’s party alone, the Appellant was successful in establishing other’s case and as such the Plaintiff should have taken undisturbed, uninterrupted and independent possession a commission to identify the land in dispute properly, to the land in question. At a certain point of time in his since the land in question had been described by more submissions, learned President’s Counsel also thought than one name. Court of Appeal set aside the judgment it fit to submit to this court that the inventory filed in and decree entered by the learned District Judge, the testamentary case which was filed after the demise dismissing the action, and ordered a trial De Nova. In of the original owner Plaintiff ’s father does not include doing so the Court of Appeal observed that it is open the land in dispute, although Plaintiff ’s mother Leanora for parties to lead any further oral or documtentary Ranasinghe was the executor and beneficiary to the last evidence. will. In compliance with the Court of Appeal order I would at this point of the judgment advert to fresh trial was held in the District Court on issues some of the salient points emphasized by the learned already settled earlier before the District Court. President’s Counsel on behalf of the Appellant. However the learned District Judge dismissed the claim

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(a) Civil Appellate High Court failed to consider used to contradict. S.S. Fernando Vs., the Queen 55 whether the District Court properly investigated title NLR 392; King Vs. Sudu Banda 47 NLR 183; 47 of the original plaintiffs. NLR 203. No doubt the trial Judge approached the case with a clear understanding of all above and the (b) Civil Appellate High Court failed to factual and legal position of the Defendant-Appellant’s consider the directions given by the Court of Appeal to case, and that of the Plaintiff-Respondent. commence the trial De Novo which is also a direction to adopt the previous evidence of the abortive first trial This was an action that spread over a fairly in the District Court long period of time. The learned counsel on either side argued this appeal of Substituted parties. In fact (c) In a rei vindication suit it is not necessary over the years parties had to go through and taken to consider whether Defendant has title and possession along the path which resulted in four judgments being where Plaintiff fails to prove title to the corpus. If it is pronounced by our courts, prior to this appeal being so action should be dismissed by the learned District heard, by the Appex Court. Notwithstanding the Judge. On the other hand learned Counsel for the position taken up by the Appellant the starting point Substituted Plaintiff- for the parties concerned emerge from the judgment Respondent in his brief submissions supported pronounced by the Court of Appeal which gave a both the judgment of the learned District Judge which ruling as regards the future course of action which set was delivered on 18.01.2005 and the judgment of the aside the 1st judgment of the District Judge. In civil Civil Appellate High Court. Learned Counsel for the disputes parties could come to certain understandings Respondent emphasized that Plaintiff had good paper and agree on certain matters. As such in the 2nd trial title based on a partition decree of 1954 which by a an admission was recorded and both parties agreed as process and inheritance devolved on the Plaintiff. He regards the corpus, and identity of the land in dispute. also submitted that the burden of proof in a case of (lot (1) in plan 764) Parties also agreed to proceed to this nature would shift to the Defendant party to prove trial on issues raised in the 1st abortive trial. title, as per Section 3 of the Prescription Ordinance. I find that the learned trial Judge has It is also Trite Law that Plaintiff should set out adequately investigated title of the predecessors of his title on the basis on which he claims a declaration the Substituted-Plaintiff-Respondent and that of the of title to the land in dispute and the burden rest on Plaintiff-Respondent, Samadara Malini Ranasinghe. the Plaintiff to prove that title as against the opposing Documents relevant to the case had been produced Defendant party. Vide Wanigaratne Vs. Juwanis marked P1 – P16. Although the Apex Court or any Appuhamy 65 NLR 167. The other important principle other court sitting in appeal is not required to re- would be as set out in Karunadasa Vs. Abdul Hameed write the judgment and evidence led at the trial, it 60 NLR 352 per Sansoni J. “In a rei vindication action would be prudent to refer to certain items of evidence it is highly dangerous to adjudicate on an issue of which fortify Substituted-Plaintiff-Respondent’s case. prescription without first going into and examining the The Surveyor’s evidence remains uncontradicted. documentary title of the parties. Documents P1- P4 being documents relevant to the testamentary case pertaining to the original owner of The aspect of evidence which is of much the property in dispute, conditional transfer deed, the significance is the depositions produced and read in transfer deed in favour of original Plaintiff S. Malini evidence marked P12, P14 & P14a. Evidence given under Ranasinghe and the important documents inclusive Section 33 of the Evidence Ordinance is substantive of documents pertaining to partition decree were all evidence used to prove the truth of facts and not merely produced and marked without any objection. So are the

26 | 1st Issue - 2015 other documents produced on behalf of the Plaintiff- I wish to observe that this court need not be Respondent. At the close of the Plaintiff ’s case all concerned of the abortive first trial and judgment Plaintiff ’s documents were read in evidence without any which was set aside by the Court of Appeal. It is the objection. The learned trial Judge has given his mind to second trial that matters since parties agreed to proceed each and every document produced by the Plaintiff ’s to trial based on certain understandings and admissions party. There are also findings of the trial judge as regards reached between them. As such I would reject the the Substituted-Appellant’s predecessor’s possession to submission that, Plaintiff ’s action was dismissed by the the land in dispute. It was the view of the learned trial learned District Judge in the abortive trial, on the basis Judge that the original Defendant being a relative of that title was not established by original Plaintiff. In the Plaintiff entered the land in dispute and possessed fact it would be misleading and unnecessarily confusing it with the permission of the original Plaintiff ’s, father. to select and apply items of evidence from the abortive trial, merely to match and suit the Appellant’s case. The Evidence of Leanora Ranasinghe (P12) also learned trial Judge has analysed title of Plaintiff ’s party suggest that her husband used to collect and enjoy the in an acceptable and convincing manner according produce (coconuts) and after his death she had collected to law. I also emphasis that the original Plaintiff ’s the coconuts from the land in dispute. Partition decree mother Leanora Ranasinghe was the beneficiary and may not bind the state, but such a decree would be heir to all the properties of her deceased husband good and conclusive against all persons whomsoever. Kiribanda Ranasinghe. In the last will the husband had Therefore the Substituted-Plaintiff ’s party had good also nominated her as the executor. The last will was title, to begin with this suit. duly proved in the testamentary proceedings. If any It is of much importance to consider the last argument was advanced that the subject property was will P1 and deed marked and produced P2. Trial Judge not included in the inventory cannot have any impact to has given serious consideration to deed P2 which was defeat the title of any property lawfully devolved on the a conditional transfer in favour of one Karunaratne, original owner Kiribanda Ranasinghe who bequeath all and deed P2 refer to deed No. 2356 and its schedule his properties to his wife Leanora. As such one cannot and also includes the land in dispute described by its be permitted to pick on another clause in the last will name and details of lot 2 in plan No. 237 emanating where the testator required his funeral rights to be from the partition decree covering the extent of 2 performed along with his five children. Such a request Roods and 37.5/24 perches. P2 also state that Leanora and desire is separate and distinct to the testators wish Ranasinghe became entitled to the land in dispute to convey all his properties to his wife, to the exclusion by virtue of testamentary case Anuradhapura No. of all others. 655/T. Thereafter both Leanora Ranasinghe and the The only issue relied upon by the Defendant above named Karunaratne transferred the property is issue No. (6) based on prescriptive rights. Learned in dispute to the original Plaintiff by deed P3. Trial District Judge very correctly observes that the evidence Judge emphasis that both P2 and P3 deeds, refer to of 1K Defendant-Appellant only suggest mere the land which devolved from partition case 9259/P possession, and the two witnesses who gave evidence on and described in plan 237 as lot 2 and that it is the behalf of the Defendant was highly unsatisfactory and same land described in deed P4 (land subject to the unsupportive of possession as no specific knowledge final partition decree). Therefore the land described in or instances of possession had not been demonstrated plan P5 is one and the same land referred to in P1 – P4. by them. The items of evidence established by the It is also shown in Plan P9. Plaintiff ’s party that the original Defendant entered the land with the permission of Kiribanda Ranasinghe

27 | 1st Issue - 2015 had not been disproved by the Defendants-Appellant’s Where a person enters into occupation of party. There is nothing to show that the nature of property belonging to another with the latter’s possession as above changed or turned to be adverse permission he cannot acquire title to such property and independent to that of the original owner. If it by prescription unless he gets rid of his character of was the case that Defendant was in possession for long licensee by doing some overt act showing an intention years (possession of Defendant party not denied by to possess adversely. Plaintiff ’s party) something equivalent but nothing Naguda Marikar v. Mohammedu (7 N.L.R. 96) short of ‘ouster’ could bring the desired result for the followed. Appellant to prescribe to the land in dispute. Let us see what type of acts could be considered as ‘ouster’. Sirajudeen and Two Othrs Vs. Abbas 1994(2) S.L.R at pg. 365… In the case of Rajapakse Vs. Hendrick Singho 61 NLR 32. Where the evidence of possession lacked consistency, the fact of occupation alone or the payment There was overwhelming evidence that the of Municipal rates by itself is insufficient to establish defendants, since the year 1922 were not only in prescriptive possession. occupation of the land but also took its produce to the exclusion of the plaintiffs and their predecessors Where a party invokes the provisions of section in title and gave them no share of the produce, paid 3 of the Prescription Ordinance in order to defeat them no share of the profits, nor any rent, and did not the ownership of an adverse claimant to immovable property, the burden of proof rests squarely and fairly act from which an acknowledgement of a right existing on him to establish a starting point for his or her in them would fairly and naturally be inferred, It was acquisition of prescriptive rights. held in this case that the evidence disclosed an ouster of the plaintiffs by the defendants and that the ouster A facile story of walking into abandoned continued for a period of over ten years. premises after the Japanese air raid constitutes material far too slender to found a claim based on prescriptive In this case the acts like the occupation of the title. land by the defendants since 1922, taking the produce to the exclusion of the plaintiffs, non-payment of the As regards the mode of proof of prescriptive share of profits to the plaintiffs and the act of not possession, mere general statements of witnesses that giving any share of the produce to the plaintiffs were the plaintiff possessed the land in dispute for a number considered as “ouster”. of years exceeding the prescriptive period are not evidence of the uninterrupted and adverse possession Mere possession for a period of time cannot give necessary to support a title by prescription. It is rise to a plea of ‘ouster’. As recognized in the above case, necessary that the witnesses should speak to specific to prevent possession and enjoyment of the produce facts and the question of possession has to be decided derived from the land in question to the exclusion of thereupon by Court. the owner would be an essential fact. Evidence of the Defendant party suggest only mere possession. One of the essential elements of the plea of prescriptive title as provided for in section 3 of the I would fortify my views with reference to the Prescription Ordinance is proof of possession by a title following decided cases. adverse to or independent of that of the claimant or Navaratne Vs. Jayatunge 44 NLR at pg. 517….. plaintiff. The occupation of the premises must be of such character as is incompatible with the title of the owner.

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The judgment of the Civil Appellate High 17. (a) Have their Lordships of the Civil Court delivered on 19.5.2011, ultimately decided Appellate High Court completely failed to consider to dismiss the appeal. When a Court of law sit in an whether the learned Additional District Judge has Appellate capacity according to law, there cannot be a properly and adequately investigated the title of the necessity to refer to all items of evidence and re-write original Plaintiff ? the evidence. The Civil Appellate High Court has no This question is answered in the negative. Based doubt examined two important aspects of this case. i.e on the investigation Plaintiff-Respondent’s title to the property in dispute and the claim of the 1K Defendant-Appellant based on of title by the learned District Judge, the Civil prescriptive rights. On the question of title the High Appellate High Court dismissed the appeal. Court takes the view that with or without a last will, 17. (b) Civil Appellate High Court failed to under the common law, on inheritance title devolves on consider that in the order of the Court of Appeal to a half share basis to the original owner’s wife Leanora hear the case de novo it was clearly stated that at the trial and the Plaintiff. This part of the analysis by the High Court Judge would be to demonstrate, in any event de novo it will be open to the parties to lead any further the entitlement of Plaintiff, under laws of succession oral or documentary evidence by calling witnesses and inheritance. However the Civil Appellate High which will help in the decision of the case which is a Court has considered the last will P1 of the original direction to adopt the previous evidence as part and owner “Kiribanda”, who bequeath all his properties parcel of the proceedings of the trial de novo which both movable and immovable to his wife Leanora. was not complied with the learned District Judge, and The last will P1, was duly proved in the testamentary adopted part of the evidence produced under Section proceedings, held in the District Court of Kurunegala. 33 of the Evidence Ordinance? Even if a doubt as regards the subject property being The Court of Appeal set aside the judgment of not included in the inventory filed in the testamentary the trial court and directed that trial de novo be held. case, it cannot defeat the original owner’s right and title Court of Appeal never gave any direction to adopt the to the properties, he owned during his life time. On evidence in the abortive 1st trial. Only observation by an examination of the last will P1, it is clear beyond the Court of Appeal was to enable parties to lead both doubt that the original owner’s wish and intention was oral and documentary evidence. Learned District Judge to bequeath all his properties to his wife, Leanora. cannot be faulted in any manner for compliance of Therefore all deeds executed by Leanora the an order of the Court of Appeal. I observe that the mother of the original Plaintiff would be valid for all Appellant merely seeks to confuse the issues, but the future ‘transfers’ and ‘gifts’ of property. As such this learned District Judge had correctly adhered to the court is not in a position to disturb the findings of the directions given by Court of Appeal. Civil Appellate High Court. Further on the question 17. (c ) Have Their Lordships of the Civil of prescriptive rights, the views of the Civil Appellate Appellate High Court completely failed to consider High Court need not be disturbed, as it is clear that the the well-established legal principle that rei vindicatio provisions contained in Section 3 of the Prescription action, it is not necessary to consider whether the Ordinance had not been adequately proved before the defendant has any title or right to possession where the Original Court, by the Appellants. I have already dealt Plaintiff has failed to establish title to the corpus and with the question of ‘ouster’, from which Appellants the action ought to be dismissed? are unable to get any benefit based on same. As such I have no alternative but to dismiss this appeal. The Civil Appellate High Court based on the questions of law are answered as follows: learned District Judge’s judgment examined title of

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Plaintiff-Respondent. learned High Court Judge has original Defendant in the previous proceedings between also considered prescriptive rights in relation to the parties. In these circumstances, there is no obligation provisions contained in Section 3 of the Prescription vested in the original court to consider the evidence Ordinance. As such the question posed does not arise. as suggested by the Appellant, in the abortive trial, as regards the Appellants. 17. (i) Have their Lordships of the Civil Appellate High Court misdirected themselves in considering the Accordingly this appeal is dismissed, and the lack of evidence as to the nature of possession of the Judgment of the Civil Appellate High Court is affirmed. original Defendant and the capacity in which he entered There shall be no costs in all the circumstances of this upon the corpus when their Lordships should have in case. fact considered those issues in relation to the original JUDGE OF THE SUPREME COURT Defendant and not in relation to the Petitioner who has Chandra Ekanayake J. been merely substituted in his place? I agree. The Civil Appellate High Court as well as the learned trial Judge very correctly considered the JUDGE OF THE SUPREME COURT judgment of the Court of Appeal. Judgment delivered Rohini Marasinghe J. by the 1st trial Judge has been set aside by the Court of Appeal. There was no application by the Substituted- I agree. Defendant-Appellant to read in evidence as per Section JUDGE OF THE SUPREME COURT 33 of the Evidence Ordinance the evidence of the

A human being is part of the whole called by us “Universe”.... a part limited in time and space. He experiences his thoughts and feelings as separate from the rest - a kind of optical delusion of his own consciousness. This delusion is a prison for us restricting us to our personal desires and to affection for a few persons nearest to us. Our task must be to free ourselves from this prison by widening our compassion to embrace all living creatures and the whole of nature and its beauty. - Albert Einstein -

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Mines and Minarals Act - Confiscation of Vehicles-

In The Court Of Appeal Of The The background to this appeal needs to be set Democratic Socialist Repuplic Of out in a nutshell. The accused-respondent was charged in the Magistrate’s Court for transporting sand without Sri Lanka. a permit2, and found guilty on his own plea. CA (PHC)120/2012. Upon such conviction under the Act, the HCR/Ratnapura/21/2011 Magistrate is left with a discretion to forfeit any, machinery or equipment, used in, or in connection 1. M C NISHANTHA with, the commission of the offence, to the State under 2. P N WIJEPALA Section 63 (b) (1). 3. W M HEENMENIKE In this case the accused stood charged with transporting sand in a lorry without a license. The 4. W W INDIKA RUWAN question that arises for determination in this appeal is CLAIMANT-PETITIONER-APPELLANTS whether the expression “machinery and/or equipment” IN CA 120/2012, CA 108/2012, CA 107/2012 and can be considered as a vehicle used for the commission CA 119/2012. of the offence. BEFORE: A.W.A SALAM, J (PRESIDENT) & The learned Magistrate took the view that by SUNIL RAJAPAKSE, J reason of the fact that transportation of sand being an COUNSEL: IN CA 107/2012, CA 119/2012, offence and the conveyance has been done by the use of 120/2012, – M C M MUNEER AND IN CA a lorry, the term equipment and/or machinery as used 108/2012 CHATHURA GALHENA FOR THE in Section 63 (b) (1) should be construed to include a APPELLANTS AND THUSITH MUDALIGE SSC “vehicle”. FOR THE STATE. Discontentment in the mind of the owner of the ARGUED ON: 17.2.2014 vehicle arising from the ruling of the learned Magistrate resulted in his electing to invoke the revisionary DECIDED ON 03.09,2014. jurisdiction of the High Court seeking a variation of A W ABDUL SALM, J (P/CA). the order. The end result of the revision application was that learned High Court Judge affirmed the confiscation This appeal involves the confiscation of vehicles of the vehicle concluding that a vehicle is a necessary used in the transportation of sand, contrary to the equipment for moving a thing from one place to another Provisions of the Mines and Minerals Act No 33 and therefore is liable to be forfeited under the Mines of 19921 [as amended] by Act No 66 of 2009. The and Minerals Act. This appeal has been preferred against appellants and respondents in CA 107/2012, CA the said judgment of the learned High Court Judge. 119/2012 and CA 120/2012 have agreed to abide by The learned High Court Judge was guided by this judgment, since the only question of Law that arises the meaning attributed to the words “machinery”, for determination in all these appeals and CA 108/12 “equipment” and “vehicle” in the Oxford Advanced is the same. Learners Dictionary (6th edition-2000) and The

1. Hereinafter referred to as the “Act” 2. Which is an offence under Section 28(1) of the Mines and Minerals Act

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Concise Oxford Dictionary of Current English (8th There are several Enactments which envisage the edition-1990) to give effect to Section 63 (b) (1) of confiscation of a vehicle used in the commission of an the Act. offence. These Enactments specifically refer to the word “vehicle” or such other expression to the like effect. For According to the dictionary meaning relied upon purpose of a fuller discussion on the question, I propose by the learned High Court Judge “machinery” means, to refer to some of the Enactments in which the word machines as a group, especially large ones, agricultural/ vehicle or expression to the like effect has been referred industrial machinery and the parts of the machine that to by the Legislature. makes it works. An alternative definition given in the judgment to “machinery” is machines collectively or In terms of Section 40 of the Forests components of a machine or mechanism. The word Conservation Ordinance upon the conviction of a forest “equipment” in the impugned judgment is defined as related offence the tools, vehicles, implements, cattle “the things that are needed for a particular purpose or and machines used to commit such offence, should activity” or “the necessary articles, clothing etcetera for necessarily be confiscated subject to the owner, if he be a particular purpose”. not the offender, being afforded an opportunity to show cause against an order of a possible confiscation. As is referred to in the impugned decision, as per the Oxford Advanced Learners Dictionary (6th It is quite clear that in the Forest Conservation edition-2000) and The Concise Oxford Dictionary of Act, the words machines, tools and implements have Current English (8th edition-1990), the word vehicle been used as being articles subject to confiscation in means “a thing that is used for transporting people or addition to “vehicles” and “cattle”. In the case of a cart goods from one place to another or any conveyance for usually drawn by cattle both the cart and the animals transporting people, goods etcetera especially on land”. are meant to be confiscated as the confiscatory clause includes both. Relying heavily on the meaning attributed to the relevant expressions, the learned High Court Judge Significantly, Section 78 of the Forest arrived at the following conclusion. Conservation Ordinance defines the word “vehicle” as a boat, cart, motor vehicle, tractor, trailer, container, raft, “It is the considered opinion of this court that tug or any mode of transport whether motorized or the vehicle is a necessary article or thing for the purpose otherwise. Cattle, under Section 78 includes elephants, of transporting minerals. In that context vehicle could buffaloes, neat cattle, horses, ponies, mules, asses, pigs, be considered as equipment for the purposes of the sheep, goats, and the young of the same. Mines and Minerals Act. The Animals Act- Chapter 570 of the Legislative This court is of the view that the learned Enactments- under Section 3A, enacts that any vehicle Magistrate had not erred himself in law, when he made used in the transportation of cattle without a permit the order, while holding that word “equipment” has shall, be liable, by order of the convicting Magistrate, to be interpreted for the purposes of the Mines and to confiscation. Minerals Act to include the “vehicles” as well3”. The Excise Ordinance of No 8 of 1912 which The contention of the appellant is that a vehicle basically deals with the law relating to the import, cannot be forfeited in terms of Section 63 (b) (1) of export, transport, manufacture, sale and possession of the Mines and Minerals Act, as vehicles are not included intoxicating liquor and intoxicating drugs, by section 54 and therefore not meant to be forfeited. identifies as to what things are liable to be confiscated under that Ordinance when an offence is committed 3. Vide page 5 of the impugned judgment- para- against the Provisions of that Law. In terms of Section graphs 2 and 3. 54 (1) whenever an offence has been committed under

32 | 1st Issue - 2015 the Excise Ordinance, the excisable article, material, still, quite similar in many ways to the Mines and Minerals utensil, implement, or apparatus, and the other contents, Act. if any, of the receptacles or packages in which the Section 31A(1) of the Coast Conservation Act same is found, and the animals, carts, vessels, or other enacts that it is an offence to (a) engage in the mining, conveyance used in carrying the same, shall likewise be collecting, possessing, processing, storing, burning and liable to confiscation. transporting in any form whatsoever, of coral; (b) own, Under the Offensive Weapons Act, in terms of possess, occupy, rent, lease, hold or operate kilns for Section 8, dealing with the powers of the police officers the burning and processing of coral; (c) use or possess with regard to a search carried out in certain premises any equipment, machinery article or substance for the for offensive weapons, the Legislature specifically purpose of breaking up coral; and (d) use any vehicle, granted the power to the police to search vehicles for craft, or boat in, or in connection with, the breaking offensive weapons by defining the word “premises” so as up or transporting of any coral but the Director, may to include any place or spot, whether open or enclosed, under the authority of a licence issued in that behalf, and any ship, boat or other vessel, whether afloat or not, permit the removal of coral for the purpose of scientific and any vehicle. research. In terms of Motor Traffic (amendment) Act No 31 A (2) states that where any vehicle, vessel, 8 of 2009, any person who contravenes the Provisions boat, craft, machinery or other equipment is used in of Section 17 (1), (13) or (14) shall be guilty of an contravention of the provisions of subsection (1) any offence and liable to the confiscation of such motor Police Officer shall have the power to seize any such vehicle. vehicle, vessel, craft, boat, equipment or machinery along with any article or substance found thereon. The Sri Lanka Ports Authority Act inter alia Further Section 31 A (3) prohibits the release of deals with property to be taken into custody for purpose such vehicle, vessel, craft, boat, equipment or machinery of confiscation under Section 66 A. Where there is seized under the Provisions of subsection (2), unless an reason to believe that an offence has been committed order of court permitting such release has been obtained. under that Act, all equipment, tools, carts, vessels, guns, tackle, apparel, motor vehicles or any other means of The aforementioned Provisions contained in the conveyance used in committing any such an offence may Coast Conservation Act demonstrate in no ambiguous be taken into custody. However, such equipment, tools, manner the obvious intention of the Legislature towards carts, vessels, guns, tackle, apparel, motor vehicles or the implementation of the scheme as embodied in that other means of conveyance used in the commission of Act. In contrast, no such draconically worded scheme any such offence shall not be taken into custody if they to confiscate vehicles is introduced in the commission are liable to be taken over under the Customs Ordinance. of an offence under the Mines and Minerals Act. The Legislature in enacting the Provisions of the Mines In terms of Section 37 (2) of the Customs and Minerals Act in its own wisdom has adopted a Ordinance, if any goods are transhipped, or attempted comparatively lenient and tolerant attitude with regard to be removed from one vessel to another contrary to to the vehicles of whatever nature that are used in the the Provisions of the Law, such goods, together with the transportation of minerals and contemplated only on boat and other means used for conveying the same, may the machinery and equipment used in the commission be seized and shall be liable to forfeiture. of the offence. Coast Conservation Act No 57 of 1981 deals In Shantha Vs The Attorney-General and inter alia with the survey, preparation and management Another 1991 1 S L R 201 in the Court of Appeal, plan of the coastal zone. It is aimed at regulating and it was pointed out by Sarath N Silva, J [later the Chief controlling the development activities within the coastal Justice] that under Section 54 of the Excise Ordinance, zone. The objectives of the Coast Conservation Act are the excisable article or materials or the apparatus used

33 | 1st Issue - 2015 in the commission of the offence could have been between the State in the exercise of its Legislative power confiscated and the motorcycle used for the transport is and the private citizen” [1981] A.C. 251, 279. not liable for confiscation. Elaborating further the Court In the case of De Saram Vs Wijesekara 4 CWR highlighted that the Magistrate has not indicated the 403, it was held that the Provisions dealing with the Provision under which the motorcycle was confiscated disposal of properties under the Code of Criminal and therefore set aside the order of confiscation. Procedure is never intended to authorise a court to In Perera Vs Van Sanden 46 NLR 383 Cannon order the forfeiture in any case where there is no express J held that where the accused was convicted, under a penal Provision in law requiring or permitting forfeiture defence regulation, of buying cement without a permit of property on the commission of any offence. and the Magistrate ordered the confiscation of the It is axiomatic that in exercising the judicial cement, in the absence of the Provision for forfeiture, function, courts seek to give effect to the will of in the penalties paragraph No. 52 of the Defence Parliament by declaring the meaning of what has been (Miscellaneous) regulations, the Magistrate had no enacted. On the contrary, Courts do not impute to power to order confiscation. Section 413 of the Criminal the Legislature an intention to abrogate or deprive the Procedure Code did not justify the Magistrate’s order as citizens of their possessory rights affecting properties the words “for the disposal of ” in the Section were not by attempting to read into the Legislation what the sufficiently wide enough to include confiscation. Legislature in reality did not intend. In this particular The decision in Perera Vs Van Sanden 46 NLR appeal the interpretation given to the relevant Section in 383 is justified in the light of the dictum of MacDonnell the lower Courts could not have been intended by any CJ made in the case of Police Sergeant vs Raman stretch of imagination. Deprivation of property rights Kankani 37 NLR 187 where His Lordship stated should not be contemplated unless such an intention that “the Courts must remember that the forfeiture is clearly and explicitly manifested, indicating that the or confiscation is a penal Provision and the power to Legislature had directed its attention to the rights or confiscate should clearly be given by law”. freedoms in question, and has consciously decided upon abrogation or curtailment of such rights. Silva Vs Muthai 45 NLR 142 concerns the violation of Regulation 6 (e) of the Defence (Purchase A reproduction of a pertinent comment by of Foodstuffs) Regulations, 1942, which provided that Maxwell from the fourth edition of Maxwell on Statutes transporting country rice from one district to another an would throw light on the concept against deprivation of offence and in such a case the vehicle or vessel in which rights without the expression of clear intention. It states certain produce has been transported may, after notice that it is the last degree improbable that the Legislature to the owner of the vehicle or vessel, be confiscated. would overthrow fundamental principles, infringe Moseley SPJ held that the bull in the circumstances of rights, or depart from the general system of law, without the case was unable to be regarded as a vehicle or vessel. expressing its intention with irresistible clearness. In 20 NLR 115 Govindan Vs Nagoor Pitchche The constitution in Article 28 promulgates that the accused was convicted under Section 53 (4) of the the exercise and enjoyment of rights and freedoms Police Ordinance, with obstructing a public road by a is inseparable from the performance of duties and sherbet cart containing sherbet, aerated waters for sale, obligations, and accordingly it is the duty of every and was fined Rs. 5, and an order was made forfeiting person in Sri Lanka inter alia to uphold and defend the cart and its contents. Ennis J held that the order as the Constitution and the law; to respect the rights and to forfeiture was wrong. freedoms of others; and to protect nature and conserve riches. Commenting on the Long standing assumptions of Statutory Interpretation Lord Diplock in Fothergill As far as the various confiscatory Provisions v. Monarch Airlines stated that “the Court is a mediator in several Enactments are concerned, Court has to

34 | 1st Issue - 2015 necessarily presume that the Legislature knew well, the A physical count of the Motor Traffic Act shows confiscatory Provisions affecting vehicles contained that the word “vehicle” has been used there at 302 places. in the Legislative Enactments prior to the passing of In terms of Section 240 of the Motor Traffic Act, the Statute titled “The Mines and Minerals Act” and “vehicle” is a conveyance that is designed to be propelled exact expressions used to favour confiscation of the or drawn by any means, whether or not capable of being vehicles. Hence, I am of the view that it is not without so propelled or drawn and includes a bicycle or other significance that the Legislature vested with exclusive peddle powered vehicle and trailer carriage, cart, coach, right to deprive the citizens of their property rights, tram car and mechanically propelled and/or electrically had clearly thought it fit not to use the word “vehicle” and/or solar energy propelled vehicle or vehicle or any other words of similar meaning in the Mines and propelled by liquid petroleum gas or vehicle propelled Minerals Act. by alternative fuel and any artificial contrivance used or capable of being used as a means of transportation In this background to construe the intention of on land but does not include a railway locomotive. The the Legislature in any other manner would amount to word “equipment” is never contemplated under the making the statutory expression senseless of it and give Motor Traffic Act or the other Enactments to equate an undue extended meaning to the word “equipment” it to a “vehicle” or a mode of transport nor can it be which could never have been in the contemplation of identified as machinery. the Law Maker even in the remotest possibility. Now, If the Statute lacks the quality of being it should be crystal clear that the Parliament had never unequivocal, it is left to the Parliament, in exercise intended to enforce through court a draconic measure of the legislative power of the People, to look into such as the one incorrectly construed in the order of the it, and contemplate measures, in its own wisdom for learned Magistrate and that of the learned Judge of the taking steps that may deem necessary. Until then, it is High Court. our duty to interpret it, as between the State and its To permit the construction of the Provisions subjects, unmoved by the social conditions and/or regarding forfeiture in the relevant Statute unvaried, in other considerations outside the purview of the judicial my opinion would amount to condoning an attempt to function. legislate which is not within our domain. The duty of In terms of the same Section “motor vehicle” courts is to carry out the intention of the Parliament. means It is by making sense of the Enactment the Legislative (a) any mechanically and/or electrically, and/or wisdom is given effect to and not by giving extended solar energy propelled vehicle or vehicle propelled by meaning to the language especially when such an liquid petroleum gas or vehicle propelled by alternative extended meaning would result in the deprivation fuel including a tractor or trailer which is intended or of a right. It is appropriate to quote the assertion of adapted for use on roads but does not include a road- Lord Hoffman in R v Secretary of State for Home roller; Department; Ex parte Simms (2002) 2 AC 115 at 131 (b) any mechanically and/or electrically and/or where His Lordship stated that “ the principle of legality solar energy propelled vehicle, or vehicle propelled by means that Parliament must squarely confront what it is liquid petroleum gas or vehicle propelled for alternative doing and accept the political costs. Fundamental rights fuel or intended for use on land in connection with an cannot be overridden by general or ambiguous words. agricultural or constructional purposes such as levelling This is because there is too great a risk that the full dredging, earthmoving, forestry or any similar operation implications of their unqualified meaning may have but does not include a road-roller; passed unnoticed in the democratic process. In the Under Section 50 of the Vehicles Ordinance a absence of express language or necessary implication to “vehicle” includes carriages, carts, coaches, tram cars the contrary, the courts therefore presume that even the and mechanically propelled vehicles, and every artificial most general words were intended to be subject to the contrivance used or capable of being used as a means of basic rights of the individual”. transportation on land.

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The authorities cited by the learned Senior State 107/2012 (HCR/RATNAPURA/23/2011) and CA Counsel, in my opinion are not applicable to the present (PHC) 119/2012 (HCR/RATNAPURA/90/2010) issue. The issue before court is more in the nature of a set of non-complex facts and how best the law could be The emphases made in this judgment are all mine. applied to them, in the best possible manner as stated in President/Court of Appeal the Statute and without stepping out from the Mines and Sunil Rajapakse, J Minerals Act. In such an event, the only interpretation that could be and ought to be given to the confiscatory I agree. Provisions contained in the Mines and Minerals Act is Judge of the Court of Appeal that no vehicles or other means of transport had been in the contemplation of the Legislature, to be made Post scriptum subject to confiscation. This being the last decision I make, in my judicial The learned Senior State Counsel contended that career aggregating to a period of well-nigh three and we must supplement the written words (machinery and half decades, I avail of the opportunity to acknowledge equipment) so as to give force and life to the intention my indebtedness to the Bar both official and unofficial of the Legislature. No doubt as contended by the for making my task easier. learned Senior State Counsel the court must set to work on the constructive task of finding the intention of the A W A Salam legislature. However it is to be noted that the intention TW/- of the Legislature plays an important role only when the Statute is not clear or cannot be applied in reference to ((1.) CA 120/2012 – (2). CA 108/2012- (3). CA 107/201 (4). its plain meaning. However in this case no such necessity 19/2012 JUDGMENT - 03RD SEPTEMBER 2014 A W A arises to gather the Legislative intent. SALAM, (P/CA) MINES AND MINERALS ACT SECTION 63 (b) (1)) He further invited us to implement this, taking into consideration the social conditions which give rise to it and of the mischief which it intended to prevent. Adverting us to certain decisions, the State invited us to give effect to the confiscatory clause in the Act, by not altering the material of which the Act is woven, but by ironing out the creases. I regret my inability to respond to this invitation in a positive manner, as an interpretation given on the lines suggested by the State would definitely alter the material of which the piece of Legislation in question is woven. As regards the wording of the confiscatory clause in the Act, I find no creases or wrinkles in the Act and as a matter of Law the Legislation in question is creaseproof. In the circumstances, I set aside the order of confiscation of the vehicle as it is not forfeitable to the State under the Provisions of the Mines and Minerals The first requisite of civilization is Act. that of justice This judgment would be applicable with necessary - Sigmund Freud - changes to appeals bearing numbers CA (PHC) 108/2012 (HCR/RATNAPURA/18/2011), CA (PHC)

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The document we tendered to His Lordship the Chief Justice and Honorable Commissioners of the Judicial Service Commission on the issue of Extension of Age of Retirement for The High Court Judges and Appointments of High Court Commissioners

Honorable Sir/ Madam,

RE; EXTENSION OF AGE OF RETIREMENT FOR THE HIGH COURT JUDGES AND APPOINTMENTS OF HIGH COURT COMMISSIONERS

The Judicial Service Association comprising of District Judges and Magistrates of Sri Lanka notes with grave concern a pending decision by His Excellency the President to increase the age of retirement of High Court Judges from 61 to 63 years. We understand that the High Court Judges’ Association has met His Excellency the President in the presence of the Honorable Minister of Justice on 07 May 2015 and extracted an undertaking to increase the retirement age of the High Court Judges from 61 to 63 years.

Moreover, they have proposed for those who are about to retire in the near future should be given High Court Commissioner posts until necessary amendments to the Judicature Act is introduced to increase the age of retirement for High Court Judges.

We, the Judges of Courts of First Instance are greatly perturbed at these turn of events due to the following reasons;

1. The increase of retirement age of High Court Judges by 2 years will block the creation of vacancies and delay the due promotions of the deserving senior District Judges who will be more often than not forced to retire as a District Judge without a promotion.

2. The extension of time granted to the High Court Judges to serve an additional period of 2 years will cause a delay in the creation of vacancies and deprive the opportunity for young lawyers to join the Judicial Service of the country.

3. since no change has been recommended in the retiring ages of Supreme Court and Court of Appeal Judges and the decision to equal the retiring age of High Court Judges to that of the Court of Appeal Judges will deprive the High Court Judges from getting their due promotions to the Court of Appeal in a timely manner and disrupt the balance existing in the present structure.

4. It is of our humble view that appointment of High Court Commissioners is not meant to keep the persons who are required to retire by operation of Law further in the service but to fulfill the retirement of exigency of service. In addition, this course of action may violate the Government policy that no one in the Government service allowed to work after retirement. We were made to understand that the Judicial Service Commission had taken a decision to apply this provision only with a view to fill the vacancies in the High Courts situated in Northern and Eastern provinces due to the lack of Tamil speaking Judges in the minor judiciary.

5. Our humble opinion is that most senior Tamil speaking District Judges could be appointed as a High Court Commissioner and he or she could be elevated to the post of High Court Judge once it becomes due, instead of appointing retired High Court Judges.

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6. Hence The decision to appoint High Court Judges as High Court Commissioners without any age limit will not only deprive the senior District Judges from their due promotions but will also create frustration and stagnation amongst the lower ranks of the judiciary.

The negative impact to the independence of the Judiciary caused due to the above reasons need not be further explained to Your Lordships and Ladyship as we have no doubt Your Lordships’ and Ladyship would be well aware of the dangers that can be caused to the society and the country as a whole with a dissatisfied minor judiciary who will have no redress in sight.

Hence, we humbly request with utmost respect to consider our views with your Lordships’ and Ladyship’s wisdom in respect of the above mentioned issues.

Thank you Yours faithfully Wasantha Jinadasa President Judicial Service Association

It always seems impossible until its done. - Nelson Mandela -

EDITOR | Jagath Kahandagamage , ASSISTANT EDITOR | Anushka Senevirathna web: www.jsasl.org | e-mail: [email protected] 2 Mr. Jagath Kahandagamage (Editor), District Judge, Distric Court, Horana, Sri Lanka.