Sri Lanka Law Reports
(1980) 2 Sri L.R.
ANDRADI v. WIJEYERATNECOURT OF APPEALSOZA J. & ABDUL CADER, J.
S.C. (C.A.) 12/73 (INTY) D.C. COLOMBO 25999/TJANUARY 23 AND 24 1980
Evidence Ordinance, Sections 126 and 162 – Document claimed to be aprivileged professional communication by a notary who was asked to produce it- Refusal of court to examine the document.
In a testamentary action where a last will was sought to be proved by producinga copy, some respondents took objection to the grant of probate to the petitioneron the ground that the testatrix had destroyed the will with the intention ofrevoking the same. In the course of examination-in-chief, the notary who attestedthe will was asked to produce a letter written by the testatrix which was in hiscustody. He claimed privilege and counsel for the respondents invited court toinspect the document in order to ascertain whether the document fell within theambit of section 126 of the Evidence Ordinance. Counsel for the petitionerobjected to the court so inspecting the document and the court made orderrefusing to inspect. The notary had attested seven wills executed by the testatrixand revocation of six of them. There was a controversy as to whether (1) thenotary had a continuous relationship of a professional nature with the testatrixwhen he received the letter and (2) the letter was personal.
In the circumstances the learned district Judge was not justified in refusing toexamine the letter and it is only after inspection that the court should decide thequestion of privilege. It must not be understood that in every case a judge iscompelled to inspect a document in order to decide the claim of privilege. Thesection makes it clear that the court may inspect a document if it sees fit so thatthe matter is one within the discretion of the District Judge.
Cases referred to:
Keerthiratne v. Gunawardena 58 NLR 62.
Robinson v. State of Australia (1931) AC 704.
APPEAL from the Order of the District Court of Colombo.
C. Ranganathan, Q.C. with N. S. A. Gunetilleke, N. Mahendran and M. M. Deenfor the 2nd respondent-appellant.
Mark Fernando for petitioner-respondent.
H. L. de Silva for 4th, 5th and 6th original respondents.
E. A. G. de Silva for the 7th respondent.
Cur adv vult.
Andradi v. Wijeratne and Others (Abdul Cader, J.)
6th March, 1980ABDUL CADER, J.
It is common ground that the deceased Mrs. Rose Charlotte Helende Silva Wijeyeratne nee Fernando died after making Will No. 861dated 31st March, 1967. The petitioner filed papers seeking to provethe Will a copy of which was marked P, stating that the executrix ofthe Will died on 6th December, 1970 without revoking the said Willwhich named the petitioner as the executor. Nine heirs, of thedeceased died intestate, were disclosed in paragraph 2 andparticulars of the assets and liabilities of the deceased were given inparagraph 3. In paragraph 4, it was stated that the original Will wasnot traceable and to the best of the petitioner’s belief it had been lostsince the testator’s death and the copy of the last Will was annexedto the petition. The 2nd and 3rd respondents took objection to thegrant of probate and denied the correctness of the list of propertiesand their values given by the petitioner. They both pleaded that thedeceased destroyed the last Will on or about 15th June, 1970 withthe intention of revoking the same.
At the inquiry, five issues were framed all based on the questionwhether the last Will in question had been destroyed by thedeceased. After the evidence of one Margaret Fernando had beenrecorded, there was an argument as regards the burden of proof andthe Court held that there was “no burden cast on the petitioner tosatisfy Court any further on the fact that the original of the Will wasnot now available to the parties and that the onus of the issuesframed was on the 2nd and 3rd respondents and that they shouldbegin.
Accordingly, counsel for the 2nd respondent called Rienzie JohnRodrigo, Proctor and Notary who attested the Will in question. In thecourse of the examination-in-chief, counsel drew the attention of thewitness to 2R7 and the witness stated that in 2R7 there is a referenceto a letter written by “aunt Rose.” Witness admitted that he had thatletter with him and when he was asked to produce that letter, heclaimed privilege. When the witness was asked to look at the letter2R7 and state whether he had in that letter set out a correct summaryof the letter that the aunt wrote, Counsel for the petitioner objected tothe question unless aunt Rose’s letter was itself tendered inevidence. Counsel further stated if the privilege claimed by thewitness was upheld, any oral evidence on that document would beinadmissible.
Sri Lanka Law Reports
(1980) 2 Sri L.R.
Counsel for the respondent then referred to section 126 of theEvidence Ordinance and submitted that the document should beinspected by the Court in order to ascertain whether it falls within theambit of section 126. Counsel for the petitioner objected stating thatthe Court was not entitled to look into the document, cited authoritiesand contended that if the witness claimed that it was made within thecourse of his professional work, it was conclusive. After some furtherquestions from the witness, a long and protracted argument ensured.It went on for several dates and ultimately the learned District Judgemade order as follows:-
“The framers of the Evidence Ordinance have provided for onlytwo exceptions where protection was not attached. The Court isnot entitled to go beyond this and look for other situations inwhich it could hold that no protection is available”-
and, therefore, refused to inspect the document.
At the hearing before us, all the matters that were discussedbefore the learned District Judge were argued but we have come tothe conclusion that in the circumstances of this case, the learnedDistrict Judge was not justified in refusing to examine the letter inquestion and it is only after an inspection that the Court shoulddecide the question of privilege.
In Keerthiratne v. Gunawardena™ H. N. G. Fernando, J. quotedwith approval a rule of Court set down in Robinson v. State of SouthAustralia,™-
“Where on an application for an order of inspection privilege isclaimed for any document, it shall be lawful for the Court or ajudge to inspect the document for the purpose of deciding as tothe validity of the claim of privilege.”
Fernando J. was dealing with a case where it was alleged that somecommunication was made to a public officer in official confidenceand he went on to say-
"… there seems to be no reason why effect cannot be given tothe plain terms of section 162 which confer on the Court a rightof inspection in order to determine the question of admissibility.The right of inspection so conferred would in my opinion bequite without meaning unless the Legislature also intended thatthe Court will have jurisdiction to decide the first question to
Andradi v. Wijeralne and Others (Abdul Cader, J.)
which I have referred, namely whether the communication wasmade in official confidence.” (at pages 66 & 67)
Applying the same principle, it would appear that in this case, too,it would be necessary to inspect the letter in the possession of thewitness for the Court to decide whether the claim of privilege isjustified. It must not be understood that we are making an order thatin every case, a Judge is compelled to inspect a document inrespect of a claim of privilege. The section makes it clear that theCourt may inspect a document if it sees fit, so that the matter is onewithin the discretion of the District Judge; but in this case thecircumstances are such that, in our opinion, the learned DistrictJudge should have exercised his discretion in favour of looking at thedocument to decide the question of privilege.
It is common ground that the witness attested 7 Wills executed bythe testatrix and the revocation of 6 of them. But there wascontroversy whether the witness had a continuing relationship of aprofessional nature with the deceased when he received the letter inquestion. There was also a controversy as regards the interpretationof the description of the letter in question as “a personal letter” by thewitness himself in 3R4/2R8. To decide these controversies, a perusalof the letter in question would be essential and would render greatassistance.
We, therefore, direct the District Judge to inspect the document inquestion and after such further inquiry as may be necessary to makeorder whether the claim of privilege is entitled to succeed andthereafter to continue with the inquiry into the main dispute.
The petitioner will pay the costs of the 2nd respondent and legalrepresentative for 3rd respondent in both courts.
SOZA, J. -1 agree.
Case sent back for further inquiry.