Law-Report-part-5.pdf

Editor-in-Chief : L. K. WIMALACHANDRA
Additional Editor-in-Chief : ROHAN SAHABANDU
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D I G E S T
Page
CUSTOMS ORDINANCE – Section 47, Section 51, Section 52 – Willfully 113
failing to classify foods – Misdescription – Non declaration of
royalty – Is it undervaluation?
Utsch Lanka (Pvt) Ltd., And Another Vs. Deputy Director Of
Customs And Others
(Continue from Part 4)
DONATION OF IMMOVABLE PROPERTY – Revocation of gifts – Donation 124
given in contemplation of marriage – Impeaching the credit of a
witness, not cross – examined by the adverse party – Evidence
Ordinance – Section 164 – Using as evidence, of document,
production of which was refused on notice – Section 165 – Judges’
power to put questions or order production of any document or thing
Ariyawathie Meemaduma V. Jeewani Budhika Meemaduma
WRIT OF CERTIORARI – Constitution Article 140 – Court of Appeal 135
(Appellate Procedure) Rules of 1990-91- Affdavit mandatory –
Defective affdavit- Is there a valid application for writ?- Buddhist nor
affrming – Oaths and Affrmation Ordinance 9 of 1985 Civil Procedure
Code – Section 438 – Judicial review available – Fair hearing
Multi Purpose Co-operative Society, Madawachchiya vs. Kirimudi-
yanse and others
(Continued in Part 6)

Utsch Lanka (Pvt) Ltd., And Another Vs. Deputy Director Of Customs And Others
CA (Srisandarajah, J.) 113
As presented the plates already bear several “Lion” water-
marks, as well as pre-engraved secret numbers. The national
emblem of the country of use is printed in the corner of the
plates. After importation, this information is supplemented by
the national license number plate of the corresponding motor
vehicle and the plate is issued to the owner.”
And sought advice: whether the product should be
classifed in heading 83.10 or in heading 76.16.
The Secretariat’s opinion: The article in question is an
aluminium plate which already contains preprinted security
information which determines its future use. On the basis of
its content and presentation Secretariat conclude that this
is a licence number plate presented unfnished but already
displaying the essential characteristics of a motor vehicle
licence number plate. This interpretation is supported by the
second paragraph of the explanatory note to this heading
which stipulates that “some plates. . . designed for the
subsequent insertion of details” belong in heading 83.10.
The World Customs Organization has described the goods
in issue under heading 83.10 not because the blank plate
contains any letters, numbers or designs on them (Comments
made by the Sri Lanka Customs in advise No TC/99/177
dated 17.12.1999 that if the plates imported bear any letters,
Nos or designs they would fall under 8310.00) but because
the plate is designed for the subsequent insertion of details.
The above facts show that the Customs Department
itself had doubts as to whether the number plates containing
security features (such as lion water marks, pre-engraved
secret numbers and the national Emblem of Sri Lanka)
should be classifed in heading 83.10 or in heading 76.16. In

114 Sri Lanka Law Reports [2011] 1 SRI L.R.
these circumstances the Petitioners’ claim that they relied on
the advice bearing No TC/99/177 dated 17.12.1999 that the
aluminium plate they imported with security features falls
under HS code 7616.99 and declared accordingly in the
CUSDEC cannot be said to have been done with the intention
of defrauding the Revenue. The Supreme Court in Toyota
Lanka (Pvt) Limited v. Director General of Customs (supra) held
that in the absence of stealth, to evade payment of customs
duties or dues that the forfeiture provided for in Section 47
would not apply to a situation of a disputed classifcation of
goods or an under payment of short levy of dues or duties.
But now an opinion has been obtained from the World
Customs Organization that the aluminium plate with the
security features is a licence number plate presented
unfnished but already displaying the essential characteris-
tics of a motor vehicle licence number plate. This interpreta-
tion is supported by the second paragraph of the explanatory
note to this heading which stipulates that “some plates . . .
designed for the subsequent insertion of details” belong in
heading 83.10. In view of this opinion all the consignments
of aluminum plates imported by the 1st Petitioner falls within
the classifcation of Hs Code 8310.00 in the circumstances
the duties short levied in the imports of the said 22 consign-
ments of the 1st Petitioner could be recovered as provided for
under Section 18 of the Customs Ordinance.
Undervaluation by non declaration of royalty
The principal agreement dated 11th of October 1999
for the manufacture, supply and delivery of retro-refective
number plates with embossed number and security sticker
for windscreen was between Erich Utsch AG and the
Commissioner of Motor Traffc. The principal contractor by
his letter dated 13th January 200 informed the Commissioner

Utsch Lanka (Pvt) Ltd., And Another Vs. Deputy Director Of Customs And Others
CA (Srisandarajah, J.) 115
of Motor Traffc that for the purpose of having a local contract
with the Department of Motor Traffc and as it is easier for
the project implementation and monitoring with a local team,
the contractual obligation of Erich Utsch AG was assigned to
Utsch Lanka (Pvt) Ltd the 1st Petitioner, a Company incor-
porated in Sri Lanka under the terms and conditions agreed
upon between these two parties. One of the terms of the said
agreement is that the Licensor pay the Licensee a royalty fee
for the provision of technology, expertise and training for the
project by the Licensor. The payment related to the royal-
ty was embodied in an agreement between Erich Utsch AG
and the 1st Petitioner dated 21st March 2000 (P5). One of the
conditions of the said agreement is the payment of Royalty
Fee of ten per cent (10%) per annum of the total turnover of
the 1st Petitioner as per the audited accounts.
The charge against the Petitioner is that it has failed
in all the instances to declare the royalty payments to the
Customs in order to determine the value of the goods
imported. As such the Petitioner has undervalued the goods
imported and defrauded the revenue by not paying the
correct customs duty.
The above charge is in relation to the Customs valuation
of the goods imported by the 1st Petitioner. For the purpose
of customs duty the value of the goods has to be determined
at the time of importation. As provided by Section 51 of the
Customs Ordinance it is the duty of the importer or his agent
to state the value of the article imported in the ‘Sri Lanka
Customs – Value Declaration Form’ together with the descrip-
tion and quantity of the same. Such value shall be deter-
mined in accordance with the provisions of Schedule E, of
the Customs Ordinance and duties shall be paid on a value
so determined.

116 Sri Lanka Law Reports [2011] 1 SRI L.R.
The said form in Column 16 requests the declaration of
the following particulars:
16. Declare any of the following costs & services and not included
in the invoice value in terms of Article 8(1) and 8 (2) of Schedule
E for the Customs Ordinance.
(a) Brokerage and Commission : N/A (b) Cost of Containers: N/A
(c) Packing Costs: N/A (d) Cost of goods and services
supplied by the buyer: N/A
(e) Royalities and license fees: N//A (f) Value of Proceeds which
accrue to sellers: N/A
(g) Loading, Unloading, Handing (h) Insurance EURO 606:12
Charges: N/A
(In the country of exportation)
(i) Feight N/A (j) Others payments, if any: N/A
The Petitioner in the said Value Declaration form declared
against the Column Royalties and license fees – N/A (not
applicable). On the value declared by the Petitioner in the
Value Declaration Form value was determined and the
customs duties were paid by the Petitioner.
The Respondents submitted that according to the license
agreement between Erich Utsch AG and the 1st Petitioner
dated 21st March 200 P5 a payment of 10% royalty for the
provision of technology, expertise and training for the
project has to be paid to Erich Utsch AG per annum of the
total turnover of the 1st Petitioner as per the audited accounts.
Hence the 1st Petitioner should have declared in the Value
Declaration Form the payment of royalty. Whether a payment
of royalty is applicable to customs valuation purpose or not
is a matter for customs to decide upon accurate informa-
tion in consultation with each other. Therefore the failure to

Utsch Lanka (Pvt) Ltd., And Another Vs. Deputy Director Of Customs And Others
CA (Srisandarajah, J.) 117
declare the royalty payments has clearly deprived customs of
that opportunity and has helped the Petitioner to evade due
payment of customs duty.
The question is whether the royalty payment of the
Petitioner for the provision of technology expertise and
training for the project has to be added to the value of the
goods imported? If not is it necessary to declare the payment
of royalty in the Value Declaration Form?
As observed above the determination of the value of
the goods imported is for the purpose of determining the
customs duty. According to Section 51 the value of the goods
imported has to be determined in accordance with Schedule
E of the Customs (Amendment) Act No. 2 of 2003. Article 1 of
Schedule E states: the customs value of any imported goods
shall be the transaction value, that is the price actually paid
or payable for the goods when sold for export to Sri Lanka as
adjusted with the provisions of Article 8. Article 8(1) of the
said schedule states;
In determining the customs value under the provisions
of Article 1, there shall be added to the price actually paid or
payable for the imported goods:
(a). .
(b)…
(c) Royalties and license fees related to the goods being
valued that the buyer must pay, either directly or
indirectly, as a condition of sale of the goods being
valued to the extent that such royalties and fees are
not included in the price actually paid or payable.
……

118 Sri Lanka Law Reports [2011] 1 SRI L.R.
There is no issue as to the declaration of the price
actually paid to the imported goods. It is admitted that the
royalty is not included in the price actually paid. The issue
is whether the royalty that has to be paid by the Petitioner
for the provision of technology, expertise and training for the
project be added to the prices actually paid for the imported
goods for the purpose of determining the customs value of the
goods in order to determine the customs duty.

It is important to note that the duties of customs shall
be levied and paid upon all goods and merchandise imported
into or exported from Sri Lanka under Section 10 of the
Customs Ordinance at the time of importation or exportation.
Therefore the price of the goods has to be determined at the
time of importation to facilitate the payment of customs duty
at the time of importation. Article 1 of Schedule E states: the
customs value of any imported goods shall be the transaction
value, that is the price actually paid or payable for the goods
when sold for export to Sri Lanka as adjusted with the
provisions of Article 8. The price of the goods at the time
of importation is :- price actually paid with royalty paid or
payable to the goods imported.
For example if the goods are imported under a foreign
trade mark, the value of the right to use the patent, pro-
tected design or trade mark, shall be added to the normal
price. It is admitted that the goods imported are rectangular
aluminum plates of various dimensions, with rounded
corners and raised edges, covered with a refective foil with
several lion water marks, pre-engraved secret numbers and the
national emblem of Sri Lanka. It is also admitted that no
royalty is paid or payable to the technology used in the
manufacture of the said blank aluminium plates or for the
inscription of lion water marks, pre-engraved secret numbers

Utsch Lanka (Pvt) Ltd., And Another Vs. Deputy Director Of Customs And Others
CA (Srisandarajah, J.) 119
and the national emblem of Sri Lanka. Therefore it is evident
that the royalty is not paid or payable to anything done or
contained in the said plate at the time of importation.
The royalty is paid for the provision of technology,
expertise and training for the embossing and printing of
motor vehicle number (with two letters, four numbers across
the plate separated by a dash with a provincial identifca-
tion (two) letters) on the aluminium plate imported. Number
of imported aluminium plates (goods) used for embossing
is independent of the quantity of the goods imported. The
payment of royalty is defned under Article 8 of Schedule E,
accordingly the royalty and license fees should be related to
the goods being valued, and royalty and license fees should
be a condition of sale of the goods being valued.
Is royalty related to the goods being valued? The
Petitioners’ contended that the goods imported are raw
materials and consumables required for the manufacture
and supply of number plates. The royalty paid under the said
license agreement does not relate to the said imported goods
as they are not imported pursuant to the license agreements
(P5). The royalty that is paid is not in respect of imported
goods but in relation to the necessary technology, expertise
and training used in the process of manufacturing of number
plates and the sale of number plate takes place in Sri Lanka
to the Department of Motor Vehicle. The contention of the
Respondents is that the technology cannot be used by the
importer on any product except the product imported from
the exporter. Thus the royalty is clearly related to the goods.
A similar position was taken by the Revenue of India in
Commissioner of Customs (Port), vs. M/S Toyata Kirloskar
Motor Pvt Appeal (Civil)(3) “The payments of royalty, according
to the Revenue, have a direct nexus to the imported goods

120 Sri Lanka Law Reports [2011] 1 SRI L.R.
as the same go into the manufacture of the licensed
vehicles and spare parts. The Court observed: “The basic
principle of levy of customs duty, in view of the aforementioned
provisions, is that the values of the imported goods has to be
determined at the time and place of importation. The value to be
determined for the imported goods would be the payment
required to be made as a condition of sale. Assessment of
customs duty must have a direct nexus with the value of
goods which was payable at the time of importation. If any
amount is to be paid after the importation of the goods is
completed, inter alia by way of transfer of license or technical
know how for the purpose of setting up of a plant from the
machinery imported or running thereof, the same would not
be computed for the said purpose. Any amount paid for post
importation service or activity, would not, therefore, come
within the purview of the determination of assessable value
of the imported goods so as to enable the authorities to levy
customs duty or otherwise.”
The goods valued are the ‘Rectangular Blank Aluminum
Plates’ (with rounded corners and raised edges, covered with
a refective foil with several lion water marks, pre-engraved
secret numbers and the national emblem of Sri Lanka) and
not the fnished number plates. There is no royalty payment
attached to the imported ‘Rectangular Blank Aluminum
Plates’ at the time of valuation or at any later stage. But the
royalty would accrue if and when the numbers are embossed
on the plates and sold. The royalty have a direct nexus to the
fnished product but it does not have a direct nexus to the
imported goods.
Is royalty payment a condition of sale? The Petitioner
contended that under the license agreement P5 the royalty
is paid on the total annual turnover as per the audited

Utsch Lanka (Pvt) Ltd., And Another Vs. Deputy Director Of Customs And Others
CA (Srisandarajah, J.) 121
accounts of the 1st Petitioner hence it cannot be said that
the royalty is paid as a condition of sale of the goods being
valued. The entire transaction between the parties establishes
that the payment of royalty is not a pre condition for the
sale of raw materials. The submission of the Respondents is
that the agreement between the Petitioner and Erich Utsch
AG is for the complete transaction as such the importation,
embossing and sale are linked together and the failure on the
part of the Petitioner to pay the royalty would amount to the
refusal of future sale of the aluminum plates. The Respondent
further contended that the ‘condition of sale’ should not be
read as ‘a condition of contract of sale’ Chief Executive Offcer
of the New Zealand Customs Service v. Nike New Zealand(4).
The Respondents submitted that in the given circumstances
the royalty payment is a condition of sale. In Commissioner
for the South African Revenue Service v. Delta Motors Corpo-
ration (Property) Limited(5) the Court considered the payment
of royalty in relation to the customs duty. The Respondent
Company was a motor vehicle manufacturer and distributor.
It imported vehicle parts completely knocked down (CKD)
from Opeal Germany. Four years it paid customs duty
calculated on the invoice amount per kit which invoiced
amount included not only the purchase price but also an
unspecifed charge by Opeal for engineering, styling and tool-
ing (EST). The company requested refund of customs duty on
the ground that the EST charge paid to Opal and included in
the invoiced amount was not part of the price payable for CKD
but instead a non-dutyable royalty. The court held “In the
present matter the sale of kits to the respondent is regulated by
the supply agreement. Nothing in that agreement makes
the charges now in dispute payable as a condition of sale.
The engineering and styling charges constitute the royalty

122 Sri Lanka Law Reports [2011] 1 SRI L.R.
payable, not in terms of the supply agreement but the A and D
agreement. As for the tooling charges (assuming they amount
to royalty or license fees) they too are not payable pursuant to
anything contained in the supply agreement. The ETS charg-
es are consequently not payable ‘as a condition of sale’. On
the contrary, in so far as the supply agreement does apply to
these charges it makes them payable even if no kits are sold
(so long, of course, as assembled vehicles are sold). It follows
further from what has been said already that the EST charges
are paid in respect of “assembled vehicles sold and not”
in respect of imported kits. The terms of Section 67(1) (c)
are accordingly inapplicable and in consequence the EST
“charges were not dutiable”.
Article 8 (C) of Schedule E of the Customs (Amendment)
Act No. 2 of 2003 contain similar provisions of that of
Section 67(1) (c) of the Customs and Excise Act 91 of 1964 of
the South African Act. In the instant case too, the royalty is
paid on the fnished product and not on the aluminum plate
imported. Even though the fnished products were made out
of the aluminum plates sold it does not mean that the sale of
the aluminum plates has a direct link to the manufacture of
the fnished product. As I have observed above the number of
aluminum plates sold to the licensor need not be equal to the
manufacture of the number plates, taking in to consideration
the stock in trade, waste and damages etc. The sale of the
aluminum plates with security features to the 1st Petitioner
was under the terms and conditions of the principal Agreement
dated 11th of October 1999 and by the assignment of the
contractual obligation of Erich Utsch AG to Utsch Lanka
(Pvt) Ltd the 1st Petitioner, by letter dated 13th January
2000. The payment of royalty is not included in any of these
agreements. The royalty is paid in relation to an agreement

Utsch Lanka (Pvt) Ltd., And Another Vs. Deputy Director Of Customs And Others
CA (Srisandarajah, J.) 123
entered between Erich Utsch AG and the 1st Petitioner on 21st
March 2000 (P5) and the royalty is paid not on a fxed rate or
based on the purchase price but on the sale of the completed
number plates. As such the royalty payment depends on
the rate of manufacture of the vehicle number plate. There
is nothing to prevent the 1st Petitioner to purchase large
quantities of aluminum plates from Erich Utsch AG and after
having a substantial stock with it, to start manufacture of
the number plates. There is no merit in the submission of the
Respondents that the sale of the aluminium plates depends
on the payment of royalty.
When considering all the facts and circumstances of this
case it is clear that the royalty payment is not related to the
imported goods or it is a condition of sale of the imported
goods (aluminium plates) therefore the royalty payment need
not be added to the price actually paid. Hence the failure to
enter the payment of royalty in the Custom Value Declara-
tion Form will not amount to a false declaration to charge the
Petitioners under Section 52 of the Customs Ordinance.
In the above circumstances this court issue a writ of
certiorari to quash the order of the 1st Respondent dated
16.01.2007 marked P18 (f). Application for a writ of certiorari
is allowed as prayed for in prayer (d) of the Petitioner without
costs.
Application partly allowed.

124 Sri Lanka Law Reports [2011] 1 SRI L.R.
ARIYAWATHIE MEEMADUMA V.
JEEWANI BUDHIKA MEEMADUMA
SUPREME COURT
AMARATHNGA, J.,
RATNAYAKE, J. AND
EKANAYAKE, J.
S.C.APPEAL NO. 68/2010
W.P./HCCA/COL. 98/2006
D.C. COLOMBO 7402/SPL
OCTOBER 21ST, 2010
Donation of immovable property – Revocation of gifts – Donation
given in contemplation of marriage – Impeaching the credit
of a witness, not cross – examined by the adverse party – Evi-
dence Ordinance – Section 164 – Using as evidence, of document,
production of which was refused on notice – Section 165 – Judges’
power to put questions or order production of any document or
thing
The District Judge dismissed the Plaintiff Appellant’s action on the basis
that the Appellant has failed to establish any ground on which donor is
entitled to in law to revoke a deed of gift. The appeal fled by the
Appellant against the judgment of the District Court too was dismissed
by the Civil Appellate High Court. The learned High Court Judge agreed
with the view of the learned District Judge that the deed of gift sought
to be revoked had been given in contemplation of the Defendant’s
Respondent's marriage, and had stated, that a donation given in con-
templation of the marriage is not revocable, if the contemplated mar-
riage had in fact taken place.
Held:
(1) A deed of gift is absolute and irrevocable. There are however
certain exceptions to the rule of irrevocability.
Per Gamini Amaratunga, J., –
“”A deed of gift is absolute and irrevocable”. That is the rule.
However, the law has recognized certain exceptions to the rule of

Ariyawathie Meemaduma V. Jeewani Budhika Meemaduma
SC (Gamini Amaratunga J.) 125
irrevocability. A party applying to Court to invoke the exceptions
in his favour has to satisfy Court, by cogent evidence, that the
Court would be justifed in invoking the exception in favour of the
party applying for the same.”
“A mere ipse dixit like, ‘he threatened to kill me’ is not suffcient to
discharge that burden.”
(2) On the evidence available, no reasonable Judge, properly directed
on the law relating to the burden of proof which rested on the
Appellant, could have given a decision in favour of the Appellant.
The conclusion of the trial Judge and the Civil Appellate Court
that the Appellant has failed to establish her case is therefore
correct in law.
(3) The Appellant’s case had been dismissed not on the basis that the
deed of gift is irrevocable but on the basis that the Appellant had
failed to prove the grounds relied upon by her to revoke the deed
of gift.
(4) Sections 164 and 165 of the Civil Procedure Code and Section 165
of the Evidence Ordinance do not require a Judge to step in to fll
the gaps of a case presented by a party.
Cases referred to:
1. Dona Podinona Ranaweera Menike V. Rohini Senanayake – (1992)
2 Sri L.R. 180
APPEAL from the High Court of the Western Province exercising Civil
Appellate Jurisdiction.
Nishantha Sirimanne for the Plaintiff-Appellant
Defendent-Respondent absent and unrepresented
Cur. adv. vult
July 26th 2011
GAmini AmArAtUnGA J.
This is an appeal, with leave granted by this Court,
against the judgment of the High Court of the Western Province
exercising civil appellate jurisdiction dismissing the plaintiff

126 Sri Lanka Law Reports [2011] 1 SRI L.R.
appellant’s appeal to the High Court against the judgment of
the District Court dismissing the plaintiff appellant’s action
fled against the defendant respondent.
The defendant-respondent is the youngest daughter of
the Plaintiff-appellant (hereinafter called the appellant). On
11.3.1999, by a Deed of Gift the appellant gifted premises No.
11A, Mahasen Mawatha, Thimbirigasyaya Road, Colombo 5
to the defendant. That is the house where the appellant lived
with her husband and the defendant. This gift is subject to
the life interest of the appellant and her husband to that
property. On 12.3.1999, the day after the execution of the
deed of gift, the defendant married one Sanjeewa Perera.
Thereafter the appellant, her husband and the couple
continued to live in that house.
On 28.09.2005, the appellant fled action bearing
No. 7402/Spl in the District Court of Colombo to revoke the
Deed of Gift execution in favour of the defendant on the basis
of gross ingratitude on the part of the donee, the defendant.
According to the plaint fled in the District Court, some
time after the marriage, the defendant’s conduct gradually
changed and she began to request the appellant to relinquish
the appellant’s and her husband’s life interest in the prop-
erty and demand that they should vacate the property giving
possession thereof to the defendant, The appellant, among
other reliefs, has prayed for judgment and decree revoking
the said Deed of Gift No. 2603 dated 11.3.1999.
The defendant who appeared in the District Court on
summons has obtained two dates to fle answer. When an
application was made for a further date to fle answer, the
learned District Judge has refused to grant further time for

Ariyawathie Meemaduma V. Jeewani Budhika Meemaduma
SC (Gamini Amaratunga J.) 127
the answer and fxed the case for ex parte trial, which took
place later on 20.02.2006. The appellant testifed at the trial
and marked and produced, among other documents, the Deed
of Gift P2, and certifed copies of two complaints made by her
husband to the Narahenpita Police, P4A and P4B. With her
evidence the plaintiff has closed her case.
The learned District Judge, after considering the evi-
dence given by the appellant and the documents produced by
her has come to the conclusion that the appellant has failed
to establish any ground on which a donor is entitled in law
to revoke a Deed of Gift. Accordingly he has dismissed the
appellant’s action.
A perusal of the judgment of the learned District Judge
indicates that he was aware of the grounds on which a
deed of gift could be revoked and that he had taken into
consideration the contents of the documents P4A and P4B
(certifed copies of complaints made to the Narahenpita
police by the appellant’s husband) in assessing the evidence
of the appellant. The learned trial Judge has also expressed
the view that the deed of gift had been given to the defendant
in contemplation of her marriage, but this was not a ground
upon which he has based his decision to dismiss the action
of the appellant.
The appeal fled by the plaintiff appellant against the
judgment of the District Court was dismissed by the Civil
Appellate High Court. The judgment of the High Court indicates
that it agreed with the view expressed by the trial judge that
the appellant had failed to establish any ground on which it
is permissible in law to revoke a deed of gift. The High Court
referring to the view expressed by the trial Judge that
the deed of gift sought to be revoked had been given in

128 Sri Lanka Law Reports [2011] 1 SRI L.R.
contemplation of the defendant’s marriage, has stated, that a
donation given in contemplation of the marriage is not
revocable if the contemplated marriage had in fact taken
place.
After considering the application fled by the appellant
seeking leave to appeal against the judgment of the High
Court, this Court has granted leave to appeal to the appellant
on the following questions of law except question No. (b).
(a) Did the High Court err by failing to consider/appreciate
that the petitioner’s oral testimony in the District Court
of Colombo remained uncontroverted and undisputed?
(c) Did the High Court err by completely failing to consider/
appreciate that the reservation of the life interest of the
petitioner and her husband in the said property was a
condition attached to the gift and the breach or inter-
ference with the said condition was tantamount to gross
ingratitude?
(d) Did the High Court err by failing to appreciate that there
was suffcient documentary and oral evidence to substan-
tiate the petitioner’s claim of gross ingratitude on the part
of the respondent?
(e) Did the High Court err by failing to appreciate/consider
that when the life interest in a property is reserved, the
donation of that property cannot be in consideration of
marriage (donation propter nuptias)?
(f) Did the High Court err by misdirecting itself and/or
misconstruing and/or completely failing to consider
the judgment of Your Lordships’ Court in Dona Podi-

Ariyawathie Meemaduma V. Jeewani Budhika Meemaduma
SC (Gamini Amaratunga J.) 129
nona Ranaweera Menike v. Rohini Senanayake (1) which
judgment the appellant relied on in support of her case?
(g) Did the Court err by failing to properly construe the
statements made by the petitioner’s husband to the
police and marked in evidence at the trial?
(h) Did the High Court err by failing to consider that the
respondent and her husband attempted on several
occasions to force the petitioner against her will to
renounce her life interest in the said property?
(i) Did the High Court err by failing to appreciate that the
conduct of the respondent (and her husband) towards the
petitioner, as demonstrated by the petitioner’s evidence,
constituted gross ingratitude?
(j) Did the High Court err by failing to appreciate/consider
that, if the learned trial Judge had any doubts with
regard to the truth or veracity of the testimony of the
petitioner, he could have clarifed the same from the
petitioner under and in terms of sections 164 and 165
of the Civil Procedure Code as well as under section
165 of the Evidence Ordinance, but chose not to do so
and therefore, cannot subsequently fnd fault with her
testimony?
(k) Did the High Court err by holding that the petitioner has
not demonstrated even a single act of gross ingratitude
on the part of the respondent?
The learned counsel for the appellant has submitted
written submissions in support of the appeal with copies of
several judgments dealing with the subject of revocation of
deeds of gift.

130 Sri Lanka Law Reports [2011] 1 SRI L.R.
The frst question of law on which leave to appeal was
granted is “Did the High Court err by failing to consider/
appreciate that the petitioner’s oral testimony in the District
Court of Colombo remained uncontroverted and undisputed?”
At the ex parte trial, there was no cross-examination of the
appellant. There was no other witness testifying at the trial
on behalf of the appellant. However it has to be borne in mind
that contradictions of the oral testimony of a single witness,
not cross examined by the adverse party can emerge even
from the contents of the documents produced by the sole
witness himself at the trial. In this case this Court has to
consider whether the appellant’s oral evidence in the District
Court remains uncontradicted when one considers the
contents of documents 4A and 4B produced by the appellant
herself when she gave evidence at the trial. In order to
consider that question I shall briefy set out the oral evidence
given by the appellant in the District Court.
In her oral testimony the appellant has stated that after
marriage her daughter’s (the defendant’s) conduct gradually
changed. The defendant very often troubled the appellant and
her husband requesting them to relinquish their life interest in
the property and vacate the house and hand over possession
of the property to her. The defendant neglected to look after
appellant and she (the appellant) sustained herself with her
own pension.
Thereafter the appellant was threatened through the
defendant’s husband. Even death threats were made to the
appellant by the defendant and her husband. The daugh-
ter and the son in law made such threats and asked them
to relinquish their rights to the property and hand it over
to the defendant. On 17.08.2005, the appellant’s husband
complained of this to the Narahenpita police. (A certifed copy
of that complaint was produced marked 4A)

Ariyawathie Meemaduma V. Jeewani Budhika Meemaduma
SC (Gamini Amaratunga J.) 131
The appellant has further stated that even thereafter
there were death threats to her and to her husband from the
defendant and her husband. Regarding those threats a
complaint had been made to the Narahenpita police on
28.08.2005. (a copy of the complaint was produced marked
4B) The appellant has concluded her evidence by saying
that her daughter did not look after them and had brought
pressure on them to relinquish their life interest and that
accordingly the defendant was guilty of gross ingratitude.
What is stated above was the evidence on which the
appellant claimed a decree revoking the deed of gift. In the
back ground of the evidence given by the appellant it is now
opportune to examine the contents of P4A and P4B, the
police complaints made by her husband.
In that statement, the husband of the appellant has
stated that in order to admit a son of their son to a school
they inquired from their daughter (the defendant) whether
she could re-convey the property (donated to her by the deed
of gift) and the daughter agreed to re-convey the property
to the appellant. However the daughter’s husband objected
to this and attempted to assault them. They said that the
house belonged to them and that they would not give it back.
The son in law threatened that he would kill the son of the
appellant and serve six years in jail and come out. They
demanded Rs. Five million to re-convey the property. After
this incident the daughter and the son in law left the house
on the following day. (i.e. 17.08.2005)
According to this statement of the appellant’s husband
the trouble commenced when they requested the daughter
to re-convey the property to them to enable them to facilitate
their son to admit his child to a school. In document 4A there

132 Sri Lanka Law Reports [2011] 1 SRI L.R.
is no allegation whatsoever that the defendant on her own
initiative asked the parents to relinquish their life interest
in the property. Their alleged demand for Rs. fve million to
re-convey the property had been made only when the
appellant and her husband requested the daughter to
re-convey the property to the appellant. In the whole of the
statement P4A there is no allegation that the defendant
daughter ever threatened to kill her parents if the life interest
was not relinquished.
The contents of P4A completely cuts across the evidence
of the appellant who, in her evidence had tried to make out
that the troubles between her and her daughter arose as a
result of the daughter’s persistent requests that the parents
should relinquish their life interest in the property gifted to
her.
According to the police complaint marked P4B, on the
night of 25.8.2005 the appellant and her husband had
received three anonymous telephone calls threatening that
their son would be killed. The caller was not identifed. In
any event the death threat made by the phone was that the
appellant’s son would be killed. No threat was made regard-
ing the lives of the appellant and her husband.
The contents of document P4A completely cuts across
the appellant’s evidence given in the District Court and it
contradicts her evidence to the fullest possible extent. I do
not know why the appellant has produced document P4A
in evidence, but by producing it, the appellant has, perhaps
unconsciously, let the cat out of the bag!
In the light of the contents of P4A, no one can say
that the appellant’s evidence in the District Court stands
uncontradicted and uncontroverted. The learned District

Ariyawathie Meemaduma V. Jeewani Budhika Meemaduma
SC (Gamini Amaratunga J.) 133
Judge in his judgment has specifcally referred to the
different version given in document P4A with regard to the
manner in which the dispute between the parties arose. The
learned Judges of the Civil Appellate High Court have quoted
with approval the learned District Judge’s observations with
regard to the different version given in document P4A.
A deed of gift is absolute and irrevocable. That is the rule.
However the law has recognized certain exceptions to the
rule of irrevocability. A party applying to Court to invoke the
exceptions in his favour has to satisfy court, by cogent
evidence, that the court would be justifed in invoking the
exception in favour of the party applying for the same. In
this case even if the appellant’s evidence in the District Court
is considered alone (without any reference to the contents
of documents P4A and P4B) her evidence falls short of the
standard of proof required to invoke any recognized excep-
tion to defeat the rule of irrevocability. A mere ipse dixit like
“he threatened to kill me” is not suffcient to discharge that
burden.
When the appellant’s evidence given in the District Court
is viewed in the light of the contents of P4A, the position
is worse. The contents of P4A casts serious doubts on the
truthfulness of the evidence given by the appellant. On the
evidence available in this case, no reasonable judge, properly
directed on the law relating to the burden of proof which
rested on the appellant, could have given a decision in favour
of the appellant. The conclusion of the learned trial Judge and
the Civil Appellate High Court that the appellant has failed to
establish her case is therefore correct in law.
It appears to me that questions of law (a),(c),(d),(g),(h)
and (k) on which leave to appeal has been granted have

134 Sri Lanka Law Reports [2011] 1 SRI L.R.
been framed on a misapprehension of the strength of the
appellant’s case presented to the District Court. I answer all
those questions in the negative.
With regard to questions No. (e) and (f) it is suffcient to
state that the appellant’s case had been dismissed not on the
basis that the deed of gift is irrevocable but on the basis that
the appellant has failed to prove the ground relied upon by
her to revoke the deed of gift.
With regard to question No(j), it is suffcient to state that
sections 164 and 165 of the Civil Procedure Code and section
165 of the Evidence Ordinance do not require a judge to step
in to fll the gaps of a case presented by a party. I accordingly
answer that question in the negative. In the result I dismiss
the appeal.
rAtnAyAkE J. – I agree.
EkAnAyAkE J. – I agree.
Appeal dismissed.

Multi Purpose Co-operative Society, Madawachchiya vs. Kirimudiyanse and others
CA 135
MULTI PURPOSE CO-OPERATIVE SOCIETY,
MADAWACHCHIYA VS. KIRIMUDIYANSE AND OTHERS
COURT OF APPEAL
RANJIT SILvA.J
LECAMWASAM.J
CA (PHC) 189/04
H.C. ANURADHAPURA 55/2002
NOVEMBER 4, 2010
DECEMBER 10, 2010
Writ of Certiorari – Constitution Article 140 – Court of Appeal
(Appellate Procedure) Rules of 1990-91- Affdavit mandatory –
Defective affdavit – Is there a valid application for writ?-
Buddhist not affrming – Oaths and Affrmation Ordinance No. 9
of 1985 Civil Procedure Code – Section 438 – Judicial review
available – Fair hearing
The Respondent-Petitioner fled a writ application in the High Court
seeking mandates in the nature of Certiorari/Mandamus to quash the
disciplinary fndings of the Co-operative Employees Commission and
the Society. The High Court granted the reliefs prayed for. The respon-
dents appealed to the Court of Appeal.
The appellant contended that there was no valid writ application before
the High Court as the deponent had not ‘affrmed’- (this was not raised
before the High Court). The appellant further contended that there was
undue delay in presenting the writ application to the High Court. It was
also contended that in any event no writ lies as it is a simple master
and servant contract.
Held:
Per Ranjith Silva.J
“On a consideration of the impugned affdavit I fnd that the provi-
sions of Section 438 of the Civil Procedure Code have been complied
with. The jurat expressly sets out the place and the date on which the
affdavit was signed. The affdavit has been signed before a Justice
of the Peace. There is specifc reference in the jurat that the affdavit

136 Sri Lanka Law Reports [2011] 1 SRI L.R.
was duly signed by the deponent after having read and understood the
contents.”
(1) There is no magic in the word “affrm”. A particular word should
not be allowed to vitiate or invalidate an affdavit which is other-
wise regular on the face of it. The words solemnly sincerely and
truly connote that the deponent is publicly admitting the truth of
the contents in the most responsible manner. The absence of a
particular word “affrm” referred to in the statute cannot and
should not be allowed to stand in the way of justice. The words
must be given a purposive and meaningful construction instead of
trying to split hairs on technicalities.
Per Ranjith Silva. J:
“The rationale is that the fundamental obligation of a deponent
is to tell the truth and the purpose of an oath or affrmation is to
enforce that obligation”.
(2) Delay/laches of a party does not bestow a right or privilege on the
other to indulge in delay/laches but it is not ethical, proper, just
or fair to allow the appellant to rely on the delay on the part of
the petitioner in fling the writ application, when they themselves
delayed for more that 21 years in framing charges and proceeding
against the respondent.
(3) Remedy of judicial review is available where an issue of public
law is involved. It is not correct to assume that there is no pub-
lic law element in an ordinary relationship of master and servant
and that accordingly in such a case judicial review would not be
available.
(4) Parliament can underpin the position of public authority employees
by directly restricting the freedom of the public authority to
dismiss, thus giving the employee public law rights at least
making him a potential candidate for administrative law remedies.
(5) The investigation team determined that it was not necessary for
the respondent to lead evidence and thereafter had prevented
him from leading any evidence – this is a blatant violation of the
Petitioner’s right to a fair hearing.

Multi Purpose Co-operative Society, Madawachchiya vs. Kirimudiyanse and others
CA (Ranjith Silva, J.) 137
APPEAL from the judgment of the High Court of Anuradhapura.
Case referred to:-
1. Chandrawathie vs. Dharmaratne and others 2001 BLR
2. Ratwatte vs. Thilanga Sumathipala and others 2001 1 Sri LR 55
3. Imaya vs. Orix Leasing Co. Ltd 1999 3 Sri LR 197
4. Gamage Palitha Wickramasiri vs. Pathirannahalage Nandawathie
and another CA 312/91 (F)
5. De Silva vs. L.B. Finance Ltd 1993 1 Sri LR 371 (distinguished)
6. Rustomjee vs. Khan – (1914) 18 NLR 120 at 123
7. Mohamed vs. Jayaratne and others 2002 3 Sri LR 181
8. Kaluthanthrige Don John Patric vs. Kaluthanthrige Dona Mercy
CALA 290/2002
9. Issadeen vs. Commissioner of National Housing and others 2003 2
Sri LR 10
10. Lanka Diamond (Pvt.) Ltd vs.Wilfred Vanell and two others 1997 1
Sri LR 360
11. Malloch vs. Aberdeen Corporation 1971 1 WLR 1578
12. Koralagamage vs. Commander of the Army 2003 3 Sri LR 169
13. Ratnayake vs. Ekanayake, Commissioner General of Excise and
others 2002 2 Sri LR 299
14. Lanka Loha Holdings (Pvt.) Ltd vs. Attorney General 2002 3 Sri LR
29
Pubudu Alwis for 2nd respondent-appellant
P.K. Prince Perera for Petitioner-respondent
January 27th 2011
rAnJitH SiLvA, J.
The Petitioner Respondent hereinafter referred to as the
Petitioner fled a writ application in the Provincial High Court
of Anuradhapura seeking mandates in the nature of a Writ
of Certiorari and a Writ of Mandamus to quash the disci-

138 Sri Lanka Law Reports [2011] 1 SRI L.R.
plinary fndings of the 1st Respondent and 2nd Respondent
Appellant, who shall hereinafter be referred to as the Appellant
and to compel the Appellant to pay his entitlements including
arrears of salary.
After arguments the Learned High Court Judge by his
Judgment dated 24th of March 2004 granted relief to the
Petitioner as prayed for in the petition. Being aggrieved by
the said judgment the Appellant has preferred this appeal to
this Court.
At the stage of arguments and in their written submis-
sions as well, the Appellant relied on several grounds of
appeal. Some of them are;
(1) that there was no valid writ application before the
Provincial High Court of Anuradhapura,
(2) that there was undue delay in fling the writ application
in the High Court,
(3) that there was suppression of facts,
(4) that the Petitioner had not acted with uberima fdes,
(5) that the Petitioner had no capacity to invoke writ jurisdic-
tion.
no valid writ application before the Provincial High
Court
This objection was not urged in the High Court when
the matter was argued in that court. For the frst time the
Appellant has put forward this argument in this court. In
their written submissions as well as oral submission the
Appellant contended that the Petitioner Respondent did
not comply with rule 3 (1) of the Court of Appeal (Appellate

Multi Purpose Co-operative Society, Madawachchiya vs. Kirimudiyanse and others
CA (Ranjith Silva, J.) 139
Procedure) Rules of 1990 made by the Supreme Court and
published in the government gazette number 645/4 dated
15th January 1991 wherein it is laid down that in order to
invoke the writ jurisdiction of the Court of Appeal granted
to it under article 140 and 141 of the Constitution the
application shall be by way of petition supported by an
affdavit.
Respondent contended that fling of an affdavit was
mandatory but the affdavit fled by the Respondent is
defective and therefore there was no valid affdavit in the eye
of the law and thus there was no valid application for writ in
the High Court. The contention of the Appellant is that the
Respondent being a Buddhist has not affrmed to, either in
the head/ recital of the affdavit or in the jurat, in other words
the affdavit fled of record has not been properly affrmed to
by the deponent (Petitioner) as required in terms of section
5 of the Oaths and Affrmations Ordinance No. 09 of 1895
according to which a Buddhist has to affrm to the contents
of an affdavit. In support of his contention the Appellant has
cited the following authorities.
In Chandrawathie Vs Dharmaratne and Others(1) the
Supreme Court held that if the affrmation is not in the head
of the affdavit or the jurat clause it is defective and is fatal.
In Clifford Ratwatte Vs Thilanga Sumathipala and Others(2)
it was held that if the deponent states that he is a Christian
and affrms the affdavit instead of swearing, the affdavit is
defective.
In Inaya Vs Orix Leasing Co. Ltd(3) in the affdavit before
court the defendant being a Muslim had failed to solemnly
and sincerely and truly declare and affrm the specifc
averments set out in the affdavit. The recital merely states

140 Sri Lanka Law Reports [2011] 1 SRI L.R.
that they make a declaration and in the jurat there is no
reference as to whether the purported affdavit was sworn to
or affrmed. It was held that although technicalities should
not be allowed to stand in the way of justice the basic require-
ments of the law must be fulflled.
It appears that the Counsel for the petitioner has
either been oblivious to this argument of the Appellant or had
conveniently avoided responding to the same. Of all the
grounds of appeal taken by the Appellant I am of the view that
this is the only substantial argument that has been taken by
the Appellant which deserves the attention of this court. The
rest of the grounds of appeal urged by the Appellant pose no
problem as they could be disposed of comfortably as I fnd no
merit in any of them. Yet I would be dealing with every one of
them succinctly in chapters to follow.
In Gamage Palitha Wickramasiri Vs Pathirannahelage
Nandawathie and another(4) Weerasuriya, J. having referred
to and discussed fully the relevant sections of the Civil
Procedure Code namely SS 168, 181, 182, 437 and 438 with
regard to the reception of evidence of witnesses professing
different religions held that the same shall apply to evidence
on affdavits as well. Further having referred to several
authorities including De Silva vs L.B.Finance Ltd(5) held that
there was a failure on the part of the deponent to comply
with the requirement in terms of section 168 of the Civil
Procedure Code as the deponent, being a Christian, had
affrmed to the matters in the affdavit. It is to be observed
that, in De Silva vs L.B.Finance Ltd (supra), referred to
above, the affdavit was somewhat in line with the impugned
affdavit in the instant matter before us. With great respect
to those eminent judges I’m reluctantly compelled to disagree
with them for the following reasons.