Law-Report-part-10.pdf

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D I G E S T
Page
ANTIqUITIES ORDINANCE AS AMENDED BY ACT 24 OF 1998 – 267
Section 15C – Bail Act 3 of 1997 – Section 3 (1), Section 7 g – Code
of Criminal Procedure Act 15 of 1979 – Immigrants and Emigrants Act
20 of 1948 – 31 of 2006 – Section 45, Section 47(1) – Prevention of
Terrorism (Temporary Provisions) Act 48 of 1979 – Do the provisions
of the Bail Act apply to persons charged under Antiquities Ordinance –
Constitution – Article 13(2) Article 80 (3), Article 126
Pannipitiya vs. Attorney General
CIvIL PROCEDURE CODE – Section 146 – Raising of Issues – Is it 258
restricted to the pleading? Pure questions of law – Should Court accept
such issues?
Wanigasinghe vs. Jayaratne
CODE OF INTELLECTUAL PROPERTY ACT (NO. 52 OF 1979) – Section 273
10 – The author of a protected work shall have the exclusive right to do
or authorize any person to reproduce the work, make translations, ad-
aptation, arrangement or other transformation of work or communicate
the work to the public – Section 19(1) – The rights referred to in Section
10 shall be protected during the life time of the author and for ffty years
after his death. – Law relating to the trademarks and passing off
Fernando v. Gamlath
(Continued in Part 11)
PENAL CODE – murder – Section 296 – Conviction based on circum- 253
stantial evidence – Inference to be drawn? Evidence Ordinance-
Section 114 (g) – Ellenborough principle – only when a strong
prima facie case has been made out?
Kusumadasa vs. State
(Continued from Part 9)

Kusumadasa Vs. State
CA (Sisira de Abrew J.) 253
be convicted for the offence. Further if the proved facts are
not consistent with the guilt of the accused he cannot be
convicted for the offence. This view is supported by the
judgment of Dias J in Podisingho Vs King(3) wherein His
Lordship held thus: “That in a case of circumstantial
evidence it is the duty of the trial Judge-to tell the jury that
such evidence must be totally inconsistent with the
innocence of the accused and must only be consistent with
his guilt.” On the above ground alone the appellant should be
acquitted.
Finding a Kuppiya (small bottle) with some substance
near the dead body.
P.S Wiesinghe who, on information received from Anura
Kumara, the Grama Sevaka of the area, went to the place
where the dead body was lying fallen, on 26.4.94 around
9.45 p.m. but could not make observation due to the lack of
light. Around 6.30.a.m. on the following day he observed a
kuppiya (a small bottle) with some substance near the dead
body. He could not say anything about the substance found
inside the bottle. No one can say that this kuppiya is a can.
The deceased had taken a can marked P2 when she left for
Adam’s Peak. The mother of the deceased had identifed this
can. The small bottle (kuppiya) found near the dead body is
not this can. Needless to say that there is a big difference
between a kuppiya (small bottle) and a can. Although some
substance was found inside the kuppiya (small bottle) this
was not sent to the Government Analyst. The substance
found in the kuppiya was suppressed from court. This
attacts the presumption under Section 114(f) of the Evidence
Ordinance which is as follows: Court may presume that

254 Sri Lanka Law Reports [2011] 1 SRI L.R.
evidence which could be and is not produced would if
produced, be unfavourable to the person who withholds it.”
When I consider all these matters, I hold that the substance
found in the kuppiya was suppressed from court because it
was unfavourable to the prosecution.
Possibility of the deceased committing suicide must be
excluded
As I pointed out earlier the small bottle (kuppiya) was not
sent to the Government Analyst. Substance found inside the
small bottle (kuppiya) was suppressed from court. Although
the can was produced as P2 the small bottle (kuppiya) was
not produced in court. At this stage it is pertinent to consider
the evidence of Dr. Alwis who conducted the PME. He was
unable to say that the death was due to strangulation since
the internal organs of the neck were not present. He however
through his experience says that it was probable that she had
been strangled to death. But he says he can’t give a defnite
opinion (page 190 of the brief). Doctor in his post mortem
report says that there were no injuries caused by intention-
al violence with weapons. Doctor was not questioned about
suicide. A kuppiya (small bottle) was found with a plastic
cup near the dead body. PS Wijesinghe was unable to say
anything about the substance found in the kuppiya (small
bottle). The said kuppiya was not sent to the Government
Analyst. Under these circumstances it was necessary for the
prosecution to exclude the possibility of suicide. Failure to
exclude this possibility creates a reasonable doubt in the
prosecution case. The above facts are compatible with the
innocence of the appellant and are not consistent with his
guilt. Therefore the appellant should be acquitted.

Kusumadasa Vs. State
CA (Sisira de Abrew J.) 255
Law relating to cases of circumstantial evidence
In the case of King Vs Abeywickrama (supra) Soertsz J
remarked as follows. “In order to base a conviction on circum-
stantial evidence the jury must be satisfed that the evidence
was consistent with the guilt of the accused and inconsistent
with any reasonable hypothesis of his innocence”.
In King Vs Appuhamy(5) Keuneman J held that “in order
to justify the inference of guilty from purely circumstantial
evidence, the inculpatory facts must be incompatible with the
innocence of the accused and incapable of explanation upon
any other reasonable hupothesis than that of his guilt”
In Podisingho Vs King Dias J (supra) held that “in a
case of circumstantial evidence it is the duty of the trial
Judge to tell the jury that such evidence must be totally
inconsistent with the innocence of the accused and must
only be consistent with his guilt”
In Emperor Vs Browning(5) court held “the jury must
decide whether the facts proved exclude the possibility that the
act was done by some other person, and if they have doubts,
the prisoner must have the benefts of those doubts.”
Don Sunny Vs AG(6)
“The accused-appellant and two others were indicted
on the frst count with having between 1.9.86 and 27.2.87
committed conspiracy to commit murder by causing the
death of Amarapala with one G. and others under Section
113(8) and Section 102 Penal Code and on the second count
having committed murder by causing the death of the said
Amarapala on 27.2.87 under Section 296 Penal Code. After

256 Sri Lanka Law Reports [2011] 1 SRI L.R.
trial the accused-appellant and the absent-accused were
convicted and sentenced to death.
Held:
1. When a charge is sought to be proved by circumstan-
tial evidence the proved items of circumstantial evidence
when taken together must irresistibly point towards the
only inference that the accused committed the offence.
On a consideration of all the evidence the only inference
that can be arrived at should be consistent with the guilt
of the accused only.
2. If on a consideration of the items of circumstantial
evidence if an inference can be drawn which is
consistent with the innocence of the accused, then one
cannot say that the charges have been proved beyond
reasonable doubt.
3. If upon a consideration of the proved items of circum-
stantial evidence the only inference that can be drawn is
that the accused committed the offence then they can be
found guilty.
The prosecution must prove that no one else other than
the accused had the opportunity of committing the
offence, the accused can be found guilty only and only if
the proved items of circumstantial evidence is consistent
with their guilt and inconsistent with their innocence.”
Applying the principles laid down in the above judicial
decisions, I hold that in a case of circumstantial evidence
if proved facts are consistent with the innocence of the
accused, he must be acquitted. Further if the proved facts

Kusumadasa Vs. State
CA (Sisira de Abrew J.) 257
are not consistent with the guilt of the accused, he must be
acquitted. I have earlier pointed out that some proved facts
are consistent with the innocence of the accused and also
not consistent with the guilt of the accused. Therefore the
appellant should be acquitted.
In my view, in a case of circumstantial evidence, if an
inference of guilt is to be drawn such inference must be the
one and only irresistible and inescapable inference. When I
consider the facts of this case, can I draw such an inference?
I say no.
For the aforementioned reasons, I hold the prosecu-
tion has not proved the charge against the appellant beyond
reasonable doubt. I therefore set aside the conviction and the
sentence and acquit the appellant of the charge with which
he was convicted.
SiLva J. – I agree.
LecamwaSam J. -I agree.
Appeal allowed.

258 Sri Lanka Law Reports [2011] 1 SRI L.R.
WANIGASINGHE vS. JAYARATNE
COUrT OF APPEAL
BASNAyAKE.J
CHITrASIrI.J
CALA 294/005 (LG)
DC RATnAPuRA 18166/MR
OCTOBEr 15, 2009
MAy 11, 2010
JULy 26, 2010
Civil Procedure Code – Section 146 – Raising of Issues – Is it
restricted to the pleading? – Pure questions of law – Should Court
accept such issues?
The trial Judge permitted the defendant to raise an issue though there
was no averment found to that effect in the pleadings fled. The plaintiff
sought and obtained leave.
It was contended that the defendant cannot raise the issue in the
manner suggested unless the answer is amended to include the matters
raised therein.
Held:
(1) Plain reading of Section 146 does not impose a blanket prohibi-
tion to frame issues on the matters that have not been averred
in the pleadings fled in the case. The object of the legislature in
having Section 146 had been to allow the issues on which the right
decision of the case appears to the Court to depend.
Per Chitrasiri.J
“Line of authorities permit a trial Judge to allow an issue to be
raised though the matters contained therein had not been pleaded
when justice demands it and also to arrive at the right decision of
the case at the same time while adhering to the said position of

Wanigasinghe Vs. Jayaratne
CA (Chitrasiri, J.) 259
the law, Courts have repeatedly held that issues cannot be raised
preventing the opposing party being taken up by surprise of the
facts raised in the case”.
(2) In the instant case the defendant was fully aware of the contents of
the agreement in issue therefore the matter that was raised viz the
alleged penal clause was within the knowledge of the defendant
even before fling of this action. There is no element of surprise.
(3) It is clear that, the matters raised are pure question of law. Court
should accept issues concerning pure questions of law though
such matters are not pleaded.
an aPPLication for leave to appeal from an order of the District Court
of ratnapura with leave being granted.
cases referred to:-
1. Silinduhamy vs. Weerapperuma 56 nLR 182 at 196
2. Jayawardane vs. Amerasuriya 20 nLR 289
3. Silva vs. Obeysekera 24 nLR 97
4. Brampy Appuhamy vs. Gunasekara 50 NLr 253
5. Marfer vs. Thenuwara 70 nLR 332
6. De Alwis vs. De Alwis 76 nLR 444
7. Gnanarathan vs. Premawardane 1999 3 Sri Lr 301
8. Ranasinghe vs. Somawathie and others 2004 2 Sri Lr 159
9. Candappa vs. Ponnambalampillai BALJ 1994 Vol 5 Part 2
– page 3
10. A.G. vs. Smith 8 nLR 241
11. Mackinnon Mackenzie & Co vs. Grindlays Bank Ltd 1982 – 2 Sri Lr
212
12. Nadarajah vs. Ramesh 1991 1 Sri Lr 240
13. Hameed vs. Cassim 1992 2 Sri Lr
14. Lanka Orient Leasing Company Ltd vs. Ali and another 1999 – 3 Sri
Lr 109
15. Herath vs. Jayasinghe BALJ 2008 page 93

260 Sri Lanka Law Reports [2011] 1 SRI L.R.
Navin Marapana with Nishanthi Mendis for plaintiff-petitioner
M.V.M. Ali Sabry with Shamith Fernando for defendant-respondent.
December 09th 2010
cHitRaSiRi, J.
Plaintiff-petitioner (hereinafter referred to as the plaintiff)
fled this application seeking to set aside an order made by the
learned Additional District Judge of ratnapura which is dated
14thJuly 2005. On that day being the date of the commencement
of the trial learned Additional District Judge, having considered
the submissions of both parties, made order accepting an
issue suggested by the defendant-respondent. (hereinaf-
ter referred to as the defendant) The issue so accepted was
numbered as 10 (we) and it reads thus:
— w me 2 orK .súiqfï 7 jk fldkafoaish wmeyeÈ,s (Vague) ' ' '@
wd tu fldkafoaish 1997 wxl 26 orK widOdrK .súiqï ' ' ' '@
we tu fldkafoais oKavk j.ka;shlao@˜
Being aggrieved by the said order of the learned Judge,
plaintiff fled this application and moved that leave be granted
to proceed with the same. Consequently, this Court granted
leave and the matter was then fxed for argument. Thereafter,
both Counsel made their submissions on the matter.
Learned Counsel for the plaintiff argued that the afore-
said issue raised by the respondent should not have been
accepted by Court since no averments are found to that effect
in the pleadings fled. He also submitted that it would lead to
change the scope of the defence, taken up by the defendant
in the event the said issue is accepted. Learned Counsel for

Wanigasinghe Vs. Jayaratne
CA (Chitrasiri, J.) 261
the plaintiff also contended that the defendant cannot raise
the issue in the manner it is suggested unless the answer is
amended to include the matters raised therein.
As it concerns raising an issue, I will frst refer to Section
146 of the Civil Procedure Code which is the section relevant
to framing and acceptance of issues in a civil suit. It reads
thus:
“146(1) On the day fxed for hearing of the action, or on
any other day to which the hearing is adjourned, if the
parties are agreed as to the question of fact or law to be
decided between them, they may state the same in the
form of an issue, and the court shall proceed to determine
the same.
(1) If the parties, however, are not so agreed, the court
shall, upon the allegation made in the plaint, or in
answer to interrogatories delivered in the action, or
upon the contents of documents produced by either
party, and after such examination of the parties as
may appear necessary, ascertain upon what material
propositions of fact or law the parties are at variance,
and that thereupon proceed to record the issues on
which the right decision of the case appears to the
court to depend.
(2) Nothing in this section requires the court to frame and
record issues when the defendant makes no defence.
Aforesaid section requires Judges to record issues of facts
or of law in order to arrive at the right decision of the dispute
before Court when the parties to the action are at variance to
such facts or law. Plain reading of the section too does not

262 Sri Lanka Law Reports [2011] 1 SRI L.R.
impose a blanket prohibition to frame issues on the matters
that have not been averred in the pleadings fled in the case.
Hence, it is clear that basically the object of the legislature in
having the aforesaid section 146 in the Civil Procedure Code
had been to allow the issues on which the right decision of
the case appears to the Court to depend.
However, the Courts in this country have highlighted the
importance of framing issues restricting to the matters that
have been averred in the pleadings fled in the case since
such an attitude may prevent the opposing party being taken
up by surprise of the facts raised in an issue. This position
is very well embodied in our law and a bundle of authorities
also are available to support this proposition.
In the early case of Silinduhamy Vs. Weeraperuma(1) Court
disallowing an application to frame an issue on the question
of “res judicata” had stated:
“I would refer to the two principles which must govern
this matter. One is that a judgment of a Court of compe-
tent jurisdiction directly upon the point in dispute is a bar
between the same parties or those claiming through them if
pleaded; but if not so pleaded, the matter is left at large.”
In the cases of Jayawickrema v. Amarasuriya(2), Silva
v. Obeysekera(3) Brampy Appuhamy v. Gunasekara(4), Mar-
tin v. Thenuwara(5), De Alwis v. De Alwis(6), Gnanaathan v.
Premawardane(7) it had been repeatedly held that issues
which are not strictly arisen out of the pleadings should
not be permitted to be raised. In a recent decision made in
the case of Ranasinghe v. Somawathie and others(8) it was
held that a party will not be entitled to raise an issue on an
unpleaded defence, if it would materially change the
complexion of the case placed on record by that party.

Wanigasinghe Vs. Jayaratne
CA (Chitrasiri, J.) 263
Also, in Candappa v Ponnambalampillai (9) it was held
that:
“the case enunciated by a party must reasonably accord
with its pleadings. No party can be allowed to make at the
trial a case materially different from that which he has placed
on record and which his opponent is prepared to meet.”
Having discussed the aforesaid position in law, I will now
turn to the way in which the Courts in this country have
looked at the issue when the matters raised in an issue had
not been pleaded.
In the case of Silva Vs. Obeysekara (supra) at 107,
Bertram C.J. held:
“Counsel for the plaintiff raised objection that these
issues did not arise on the pleadings and that the
defendant should have got his answer amended so as to
raise the issues. On this objection being taken the learned
District Judge disallowed the issues. Here the learned
Judge was certainly led into a mistake. No doubt it is a
matter within the discretion of the Judge whether he will
allow fresh issues to be formulated after the trial has
commenced. But he should do so when such a course
appears to be in the interest of justice, and it is certainly
not a valid objection to such a course being taken that they
do not arise on the pleadings”.
Also, in the early case of Attorney General Vs. Smith(10) it
was held that the issues need not be confned to the plead-
ings. This principle had been followed in Mackinon Mack-
enzie & Co Vs. Grindlays Bank Limited(11) and Nadarajah
Vs. Daniel(12) as well. In the case of Hameed Vs. Cassim(13)

264 Sri Lanka Law Reports [2011] 1 SRI L.R.
ranaraja J held:
“if it is not necessary that a new issue should arise in the
pleadings. The only restriction is that they urge in framing
a new issue should act in the interest of justice.”
In the case of Lanka Orient Leasing Company Ltd Vs. Ali
and Another(14) it was held thus:
“1. The arbitration agreement was part and parcel of the
plaint.
2. The amendment is a necessary amendment on which
the right decision of the case appears to depend …..
The agreement being part and parcel of the plaint even
without an amendment of the answer an issue could have
been raised at the trial under section 146(2) of the Civil
Procedure Code, according to which, “where parties are
not agreed as to questions of fact or of law to be decided
between them, the Court shall upon the allegation made
in the plaint, or in answer to interrogatories delivered in
the action, or upon the contents of documents produced
by either party … … … proceed to record the issues on
which the right decision of the case appears to the court to
depend.”
Moreover, in the case of Herath Vs Jayasinghe(15) where an
issue as to the presence of a trust that had not been pleaded;
it was held that:
“issues are not restricted to pleadings and an issue may
be raised even after the commencement of the trial, if such
a course appears to be in the interest of justice and neces-
sary for the right decision of the case.”
In the circumstances, it is evident that the line of
authorities permits a trial Judge to allow an issue to be raised

Wanigasinghe Vs. Jayaratne
CA (Chitrasiri, J.) 265
though the matters contained therein had not been pleaded
when justice demands it and also to arrive at the decision of
the case. As mentioned herein before even the Section 146 of
the Civil Procedure Code envisages allowing an issue ensuring
the right decision of the case. At the same time, while adhering
to the said position of law, courts have repeatedly held that
the issues cannot be raised preventing the opposing party
being taken up by surprise of the facts raised in the issue.
However in doing so, trial judges should consider all the
circumstances of the case in order to avoid any surprise to
the opposing parties that would take away their opportunity
to reply to those matters.
However, it must also be noted that the issues raised to
determine a pure question of law should be accepted even
if those matters have not been specifcally pleaded. Such
a rule has to be in place as no one is allowed to overlook the
law of the land merely because such a matter had not been
mentioned in the pleadings.
I will now examine the matter that is being argued in this
instance. Admittedly, the matters raised in the issue that had
been accepted in the impugned order had not been pleaded.
Contention of the plaintiff is that the issue 10 (we) should not
be accepted as the matters referred to therein had not been
pleaded by the defendant. The said issue 10 (we) concerns
a question of a penal clause namely Clause 7 (we) of the
agreement marked P2 contained in the agreement put in
suit.
The said agreements put in suit marked P1 and P2
had been fled with the plaint and the defendant also is a
party to the said two agreements. Hence, it is clear that the
defendant was fully aware of the contents of the agreements
and therefore the matter that was raised in the issue 10 (we)

266 Sri Lanka Law Reports [2011] 1 SRI L.R.
namely the alleged penal clause was within the knowledge
of the defendant even before the fling of this action. Hence,
it is clear that there had not been an element of surprise as
far as the defendant is concerned when it comes to the facts
referred to in the issue in question.
The issue also poses the question whether the clause 7(we)
in the agreement marked P2 would amount to a penal clause.
Then again the question arises whether the action fled in the
district Court being an action to claim damages for violation
of the terms of the agreements put in suit, could the plaintiff
claim penal damages along with liquidated damages.
It is clear that such a matter is a pure question of law.
As I have mentioned before, Court should accept issues
concerning pure questions of law though such matters have
not been pleaded. If such a question of law is not determined
due to not pleading the same, it would allow the Court to
disregard the positive rules of law when determining the
issues of the case. Such an attitude will certainly not mete
out the justice.
In the circumstances, it is my considered view that the
plaintiff had suffcient knowledge as to the facts contained
in issue No.10 (we) and also it is necessary to have same as
an issue, more specifcally in the interest of justice. Hence
I am not inclined to interfere with the decision of the learned
District Judge who accepted the said issue.
For the aforesaid reasons this appeal is dismissed with
costs.
eRic BaSnaYaKe, J. – I agree.
Appeal dismissed.

Pannipitiya vs. Attorney General
CA 267
PANNIPITIYA vS. ATTORNEY GENERAL
COUrT OF APPEAL
SISIrA DE ABrEW J
UPALy ABEyrATHNE J
CA 260 – 262/2009
MC GAMPAHA B/400/2009
JUNE 1,3,6,2009.

Antiquities Ordinance as amended by Act 24 of 1998 – Section 15C
– Bail Act 3 of 1997 – Section 3 (1), Section 7 g – Code of Criminal
Procedure Act 15 of 1979 – Immigrants and Emigrants Act 20
of 1948 – 31 of 2006 – Section 45, Section 47(1) – Prevention of
Terrorism (Temporary Provisions) Act 48 of 1979 – Do the provi-
sions of the Bail Act apply to persons charged under Antiquities
Ordinance – Constitution – Article 13(2) Article 80 (3), Article 126
Three accused who were taken into custody on an allegation that they
committed offences under the Antiquities Ordinance sought bail. The
application was made under Section 7 of the Bail Act.
Held:
(1) On a careful consideration of Section 3 of the Bail Act it is
clear that the Bail Act does not apply to any person accused or
suspected of having committed or convicted of an offence under
(1) The Prevention of Terrorism (Temporary Provisions) Act 48 of
1979
(2) regulations made under the Public Security Ordinance
(3) Any other written law which makes express provisions in
respect of the reliance on bail of persons accused or suspected
of having committed or convicted of offences under such other
written law.
(2) Section 15 (c) of the Antiquities Ordinance makes express
provisions in respect of the release on bail of persons charged
with or accused of offences under the said Ordinance. The

268 Sri Lanka Law Reports [2011] 1 SRI L.R.
persons charged with or accused of offences under the Antiquities
Ordinance are covered under the 3rd category above – Provisions
of the Bail Act do not therefore apply to a person charged with or
accused of offences under the Antiquities Ordinance.
aPPLication for bail under the Bail Act.
cases referred to:
(1) AG vs. Sumathipala 2006 2 Sri Lr 126
(2) Sumanadasa vs. AG 2006 3 Sri Lr 202
Wijedasa Rajapakse PC with Luxman Livera and Nimal Rajapakse for
the petitioner.
Rajinda Jayarathne SC for AG.

June 19th 2010
SiSiRa de aBRew J.
This is an application for bail to release suspects taken
into custody on an allegation that they committed offences
under Antiquities Ordinance as amended by Act No.24 of
1998.
Learned President’s Counsel (P.C) for the petitioner was
directed by this court to support the application after serv-
ing notice on the Attorney General. We have heard submis-
sion of both Counsel. The important question that must be
decided is whether this court has jurisdiction to release
the said suspect on bail in view of Section 15C of the said
Ordinance which is as follows;
“Notwithstanding anything to the contrary in the Code of
Criminal Procedure Act no.15 of 1979 or any other written
law, no person charged with, or accused of an offence under
this Ordinance shall be released on bail.”

Pannipitiya vs. Attorney General
CA (Sisira de Abrew J.) 269
Section 47(1) of the Immigrants and Emigrants Act
no. 20 of 1948 (before enactment of Act no.31 of 2006)
which is somewhat similar to Section 15C of the Antiquities
Ordinance was interpreted by a bench of fve judges of the
Supreme Court in A.G Vs Sumathipala(1) Section 47(1) of the
Immigrants and Emigrants Act before the enactment of Act
No 31 of 2006 is as follows:
“Notwithstanding anything in other written law-
(a) every offence under paragraph (a) of sub – section (1) of
section 45;
(b) every offence under sub-section (2) of section 45 in so
far as it relates to paragraph (a) of sub-section (1) of that
section;
(c) ……………….
(d) ……………….
(e) ……………….
shall be non-bailable and no person accused of such an
offence shall in any circumstances be admitted to bail.”
Supreme Court In A.G Vs Sumathipala (supra) held
thus:
“Section 47(1) Immigrants and Emigrants Act prohibited
bail pending trial to a person charged with an offence under
section 45 of that Act, and particularly in view of Article 80(3)
of the Constitution, even the Supreme Court had no power
to grant bail prohibited by the plain words of section 47(1) of
the Immigrants and Emigrants Act. It is for the Parliament
to amend the law, if it is too harsh.” After this judgment a
bench of three judges of the Supreme Court in a fundamen-

270 Sri Lanka Law Reports [2011] 1 SRI L.R.
tal rights case considered whether persons charged with or
accused of offences under the Immigrants and Emigrants Act
could be continuously detained in the custody of remand.
Petitioners in the said case alleged an infringement of
their fundamental rights guaranteed by article 13 (2) of the
Constitution resulting from continuous detention in custody
without any recourse to a remedy under any procedure
established by law. Lord Chief Justice held: “We accordingly
hold that the fundamental right of the petitioners guaranteed
by Article 13(2) of the Constitution have been infringed by
executive and administrative action, since the petitioners
have been detained in custody merely upon their being pro-
duced in Court and incarcerated without a remedy until the
conclusion of their trials. On the basis of the fndings stated
above the respective Magistrate Courts are directed to
decide on the continued detention of these persons in
accordance with the procedure applicable to persons
accused of non-bailable offences.” Vide V. Sumanadas Vs A.G(2)
decided on 19.6.2006.
It is therefore seen in the above case the Supreme Court
directed the Magistrate to decide on bail on the basis that the
fundamental rights of the petitioner have been violated. Under
Article 126 of the Constitution it is the Supreme Court which
has sole and exclusive jurisdiction to hear and determine any
question relating to the infringement of fundamental rights.
This Court has no jurisdiction to hear and determine whether
the fundamental rights of the suspects have been violated or
not. Considering all these matters I hold that this Court has
no jurisdiction to release a suspect charged with or accused
of an offence under the Antiquities Ordinance.
Learned P.C next contended that the petitioner had come
under Section 7 of the Bail Act no.30 of 1997. In my view if

Pannipitiya vs. Attorney General
CA (Sisira de Abrew J.) 271
the Court has no jurisdiction to grant bail such application
whether it comes under the Bail Act or not cannot be consid-
ered by Court. Although the learned P.C contended that the
petitioner’s application could be considered under Section 7
of the Bail Act, I am unable to agree with his contention for
the following reasons.
Section 3(1) of the Bail Act reads as follows:
Nothing in this Act shall apply to any person accused or
suspected of having committed, or convicted of, an offence
under, the Prevention of Terrorism (Temporary Provisions)
Act, No. 48 of 1979, Regulation made under the Public
Security Ordinance or any other written law which makes
express provision in respect of the release on bail of persons
accused or suspected of having committed, or convicted of,
offences under such other written law.”
On a careful consideration of section 3 of the Bail Act it is
clear that the Bail Act does not apply to any person accused
or suspected of having committed or convicted of an offence
under
1. The Prevention of Terrorism (Temporary Provisions) Act
no.48 of 1979.
2. regulations made under the Public Security Ordinance.
3. Any other written law which makes express provisions
in respect of the release on bail of persons accused or
suspected of having committed or convicted of offences
under such other written law.
Section 15C of t he Antiquities Ordinance makes express
provisions in respect of the release on bail of persons charged

272 Sri Lanka Law Reports [2011] 1 SRI L.R.
with or accused of offences under the said Ordinance. There-
fore persons charged with or accused of offences under the
Antiquities Ordinance are covered under the 3rd category
above. I therefore hold that the provisions of the Bail Act
do not apply to persons charged with or accused of offences
under the Antiquities Ordinance,
For the aforementioned reason, I dismiss the petition of
the petitioner and refuse to issue notice on the respondents.
aBeYRatHne J. – I agree.
Petition dismissed.

Fernando v. Gamlath
SC 273
FERNANDO v. GAMLATH
SUPrEME COUrT
J.A.N. DE SILVA, CJ.
EKANAyAKA, J. AND
SUrESH CHANDrA, J.
S.C. APPEAL NO. S.C.(CHC) 04/2001
C.H.C. NO. 12/96(3)
FEBrUAry 10TH, 2011
Code of Intellectual Property Act (No. 52 of 1979) – Section 10 –
The author of a protected work shall have the exclusive right to
do or authorize any person to reproduce the work, make transla-
tions, adaptation, arrangement or other transformation of work
or communicate the work to the public – Section 19(1) – The rights
referred to in Section 10 shall be protected during the life time of
the author and for ffty years after his death. – Law relating to
the trademarks and passing off
The Plaintiff was the widow of the late Mr. C.T. Fernando, who had
done musical compositions for the song “Pinsiduwanne” and was its
singer as well. The Defendant had included the said song in a teledrama
without the permission of the Plaintiff and had telecast it for commer-
cial purpose. The Plaintiff claimed intellectual property rights to the
tune of the said song and averred that the Defendant had breached the
Plaintiff’s intellectual property rights. The Defendant whilst denying the
breach of the Plaintiff’s rights had also stated that the Plaintiff did not
have rights to the said song as the Defendant had taken the said song
from a textbook published by the Educational Publishing Department
in 1993.
After trial the learned High Court Judge held that the composition
of the said song was that of late C.T. Fernando and the Plaintiff had
acquired such rights of the late C.T. Fernando. But went on to hold that
the Defendant had not infringed the rights of the Plaintiff and proceeded
to dismiss other claims of the Plaintiff.

274 Sri Lanka Law Reports [2011] 1 SRI L.R.
Held :
(1) When an Artiste has achieved a reputation, the rights acquired
which according to law can be inherited and the works of such
reputed Artiste, such as singers can be used by others only by
obtaining permission from the original artiste or from those who
inherit such rights which amounts to a recognition of the fame
and reputation of the original singer.
(2) Use of the said musical composition by the Defendant without the
permission from the Plaintiff was an infringement of the rights of
the Plaintiff regarding the composition, by the Defendant.
aPPeaL from the judgment of the Commercial High Court, of Colombo.
cases referred to:
(1) University of London Press V. University Tutorial Press – (1916) 2 Ch
601
(2) Sawkins V. Hyperian Records (2005) EWCA Civ 565
(3) Walter V. Cane – (1900) AC 539
(4) Designer’s Guild V. Russel Williams – (2000) uKHL 58
(5) Francis Day & Hunter V. Bron – (1963) Ch 587
(6) Competti Records v. Warner Music – (2003) E W C h 1274 (Ch)
Mahinda Ralapanawa with Chandima Gamage for the Plaintiff –
Appellant
Sumedha Mahawanniarachchi for the Defendant – respondent
Cur.adv.vult
May 06th 2011
SuReSH cHandRa J,
This is an appeal from the judgment of The Commercial
High Court, Colombo in respect of an appeal fled by the
Plaintiff.

Fernando v. Gamlath
SC (Suresh Chandra J,) 275
The Plaintiff in her Plaint fled in the District Court of
Colombo which was later transferred to the Commercial
High Court, Colombo averred that her husband was the late
Mr. C.T. Fernando that the said Mr. C.T. Fernando, had done
a musical composition for the song “Pinsuduwanne” and was
its singer as well. The Defendant had included the said song
in a teledrama titled “Mal Kekulak” without the Plaintiffs
permission and had telecast it for a commercial purpose. The
Plaintiff claimed the intellectual property rights to the “tune”
of the said song as the widow of late Mr. C.T. Fernando in
terms of Section 19(1) of the Code of Intellectual Property Act
no. 52 of 1979 and averred that the Defendant had breached
the Plaintiffs rights under the Code of Intellectual Property.
She prayed for a declaration to the effect that the tune of
the said song was composed by her late husband Mr. C.T.
Fernando, for an order that the Defendant had breached the
Plaintiffs’ rights under the said code, and had also distorted
the tune of the said song and thereby breached section 11(b)
of the Code of Intellectual Property Act, for damages in the
sum of rs. 25,000/= for violating the Plaintiffs rights under
the said Code, for an order in the sum of rs. 25,000/= against
the Defendant for unjustly enriching himself by violating the
Plaintiffs rights under the said Code. The Defendant fled
answer denying the breach of the Plaintiffs rights and stated
further that the Plaintiff did not have rights to the said song
and that he had taken the song from the textbook published
by the Educational Publishing Department in 1993.
After trial the Learned High Court Judge held that the
composition of the said song was that of late Mr. C.T. Fernando
and that the Plaintiff acquired the rights of the late Mr. C.T.
Fernando in terms of the Code of Intellectual Property Act
and further that the Defendant included the said song in
the teledrama without the Plaintiffs permission. However the

276 Sri Lanka Law Reports [2011] 1 SRI L.R.
Learned High Court Judge went on to hold that the Defendant
had not infringed the rights of the Plaintiff and proceeded to
reject the other claims of the Plaintiff.
In the Appeal fled before this Court both parties had
fled written submissions but when the matter was taken
up for argument on 10th February 2011 the Defendant was
absent and unrepresented and the Court proceeded to hear the
appeal.
r.G. McKerron Q.C., in The Law of Delict referring to the
position relating to “passing off” under the roman Dutch Law
states that-
“A person may be restrained from selling his goods by the
same name as that of the Plaintiff, or any colourable imitation
thereof. But a restraint will not be imposed in respect of goods
which are not the same kind as those of the Plaintiff. Nor will
protection be afforded to a peregrines who is not carrying on
business, or whose goods are not sold on the market, within
the jurisdiction in which he seeks relief; for to entitle the
plaintiff to an interdict he must show that he has ‘a right of
property in regard to his name or goods within the jurisdic-
tion of the court”.
A parallel could be drawn to this instant case which deals
with the use of the composition of the song that the Plaintiff
has complained of. It certainly would be a case comparable to
a case of “passing off”.
The law relating to the trademarks and passing off was
governed by the Trademarks Ordinance No. 15 of 1925 which
used the above principles based on the law of Delict. The law
in relation to trademarks, passing off and copyright is now
governed by the Code of Intellectual Property Act No 52 of
1979.

Fernando v. Gamlath
SC (Suresh Chandra J,) 277
Section 19(1) of the Code of Intellectual Property Act No.
52 of 1979 states that –
“Unless expressly provided otherwise in this Part, the
rights referred to in section 10 shall be protected during the life
of the author and for ffty years after his death.”
Section 10 of the Code of Intellectual Property Act No. 52
of 1979 states that –
“Subject to the provisions of sections 12 to 16 the author
of a protected work shall have the exclusive right to do or
authorize any other person to do the following acts in relation
to the whole work or a part thereof-
(a) reproduce the work;
(b) make a translation, adaptation, arrangement, or other
transformation of the work;
(c) communicate the work to the public by performance, broad-
casting, television or any other means.”
In the English Law copyright protection will only subsist
for works which are considered to be ‘original’ works. The test
to consider whether a work is original was laid down in the
case of University of London Press v University Tutorial Press (1)
where Peterson J held that
“The word ‘original’ does not in this connection mean that
the work must be the expression of original or inventive
thought. Copyright Acts are not concerned with the origi-
nality of ideas, but with the expression of thought … But
the Act does not require that the expression must be in
an original or novel form, but that the work must not be
copied from another work – that it should originate from
the author.”

278 Sri Lanka Law Reports [2011] 1 SRI L.R.
He further pointed out the much used principle in
English Law which is that , “what is worth copying is prima
facie worth protecting”.
In the case of Sawkins v Hyperion Records(2) the claim-
ant a musicologist had prepared performing editions based
upon works of Lalande, a French composer at the courts
of King Louis XIV and King Louis XV. The existing sources
of Lalande’s music were not in a form that could be played
by an orchestra, and to make it possible to perform the
music the claimant had to transpose the source material
into conventional modern notation, make extensive correc-
tions, and complete several missing sections, all of which
involved a great level of skill, labour and judgment. However,
the claimant did not compose a single new note of music.
In the judgment of the Court of Appeal, Mummery LJ held
that on the application of the principle laid down in Walter
v Lane(3), the effort, skill and time which the claimant
had spent in making the performing editions were suffcient
to satisfy the requirement that they should be “original”
works in the copyright sense. Jacob LJ further held that
the required question that needed to be asked when con-
sidering originality was whether “what the copyist did went
beyond mere servile copying?” It was held in the Hyperion
records case that there was more than mere servile copying
as the Claimant’s work had the practical value of making the
original work playable and that the work of the Claimant had
suffcient aural and musical signifcance to attract copyright
protection.
When considering infringement of copyright the courts
would need to look at the similarities between the works.
In the case of Designers’ Guild v Russell Williams(4) which
considered an artistic work Lord Millett held that

Fernando v. Gamlath
SC (Suresh Chandra J,) 279
“An action for infringement of artistic copyright, however,
is very different. It is not concerned with the appearance
of the defendant’s work but with its derivation. The copy-
right owner does not complain that the defendant’s work
resembles his. His complaint is that the defendant has
copied all or a substantial part of the copyright work …
Even where the copying is exact the defendant may in-
corporate the copied features into a larger work much
and perhaps most of which is original or derived from
other sources. But while the copied features must be a
substantial part of the copyright work, they need not form
a substantial part of the defendant’s work … Thus the
overall appearance of the defendant’s work may be very
different from the copyright work. But it does not follow
that the defendant’s work does not infringe the plaintiff’s
copyright.”
“The frst step in an action for infringement of artistic
copyright is to identify those features of the defendant’s
design which the plaintiff alleges have been copied from
the copyright work.”
“… the inquiry is directed to the similarities rather than
the differences. This is not to say that the differences are
unimportant. They may indicate an independent source
and so rebut any inference of copying, but differences in
the overall appearance of the two works due to the pres-
ence of features of the defendant’s work about which no
complaint is made are not material”
In the case of Francis Day & Hunter v Bron(5) the
Claimant who was the composer of the musical work “In
a Little Spanish Town” claimed that the frst eight bars of
the claimant’s musical work had been copied in the frst
eight bars of the defendant’s musical work named “Why”.

280 Sri Lanka Law Reports [2011] 1 SRI L.R.
Willmer LJ held that the composer had used some of
“the commonest tricks of composition,” and which were
furthermore “exactly the sort to be expected from the
composer of a popular song.” Willmer LJ referred to the fact
that the opening bar of the claimant’s work was a common-
place series found in other previous musical compositions,
which had then been developed over the remainder of the
frst eight bars of the musical work.
When considering the moral rights such as the right
to object to the derogatory treatment of a work the main
issue would be to consider whether there has been evidence
put forward to the court to be able to consider whether a
distortion or a mutilation of the work has occurred which has
caused the author dishonor or disrepute.
In the case of Competti Records v Warner Music(6) the third
claimant composed a garage track entitled “Burnin,” which
consisted of an insistent instrumental beat accompanied
by the vocal repetition of the word “burning” or variants
of it. The defendant, a leading UK garage track, released a
version of the track “Burnin” with the addition of a rap line.
The claimant alleged that the rap was a derogatory treat-
ment of his work because it allegedly included reference to
drugs and violence. It was accepted by the Defendant that the
addition of the rap line was a “treatment” of the work, and the
issue was whether the treatment was “derogatory.”
The court held that according to the Copyright Act of
United Kingdom, distortion or mutilation is only derogatory
if it is prejudicial to the author’s honour or reputation. The
judge held that the fundamental weakness in the case was
that there was no evidence about the author’s honour or
reputation, or of any prejudice to either of them.