Bandaranaike v. Premadasa
Bandaranaikev.PremadasaCOURT OF APPEALSOZA, J„ AND RODRIGO, J.
A. (S.C.) 15/78 (INTY)
APPLICATION No. LA 52/78
C. COLOMBO 1/672 M
OCTOBER 4, 5,6, 11, 13, 17, 18, 19 AND20, 1978.
Evidence — Witnesses — Order of calling them in civil cases — If defendant iscalling witnesses and himself giving evidence should defendant give evidencefirst ? — Corroboration in advance — Prejudice — Evidence Ordinance S. 135,136(2) and 157— Hearsay — Practice — Adversary system.
Principles of Natural Justice —
Principles of Natural Justice — Audi Alteram partem.
The appellant complained of five orders of the District. Judge directingthat the defendant, if he was giving evidence, should give evidence before hecalls the evidence of the witnesses whom his counsel moved to call atdifferent stages and with reference to whom the five impugned orders weremade.
1. When the Judge in his first order held that the normal procedurethat is followed in courts should be observed in this case too and the defen-dant should give evidence prior to his witness being called, he was notpurporting to exercise any discretion but was rather following what he stated
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(though wrongly) was the practice of the court. The other four orders thoughnon-speaking orders, speak the language of the first order.
Section 135 of the Evidence Ordinance in effect lays down that incivil proceedings the order in which the witness should be called shall beregu lated
by the law relating to civil procedure and
by the practice relating to civil procedure
in the absence of any such law, by the discretion of the court.
The court can exercise its discretion only where there is no lawregulating the order of calling witnesses but where there is only a practice thecourt is not prohibited from departing from it and exercising its discretion.
Sections 136(2) and 157 of the Evidence Ordinance govern the order inwhich witnesses may be called on the basis of admissibility of evidence.Under 136(2) if proof of a fact is admissible only upon proof of ariothei factthe latter fact must be proved first unless an undertaking is given to prove thelatter fact later. Under S. 157 evidence of a former statement of a witnesscannot be adduced in anticipation of the evidence of the maker of the state-ment. In the instant case however none of the witnesses proposed to be calledwere to give evidence of a former statement of the defendant-appellant.
In Sri Lankan courts where sections 136(2) and 157 do not apply, thepractice is that the right to determine the order of calling witnesses is given toCounsel subject to the overridlirig discretion given to the Court by Section135 to direct the order in the interests of justice. This practice giving theCounsel the right to decide what witnesses he will call and in what order, islinked at one end with the adversary system and at the other end with theaudi alteram partem rule of natural justice: with the adversary system becausethe judge is cast in the role of an impartial umpire ruling on the case aspresented by the counsel and not descending into the area of combat; withthe audi alteram partem rule of natural justice because the judge has to givethe counsel an opportunity of being heard and presenting his case to the bestpossible advantage of which the corollary is that the Counsel is entitled tocall his witnesses in the order he chooses. The Court will interfere with thepractice in the exercise of its discretion only i*-; an exceptional case to avert amiscarriage of justice.
Cases referred to
Wilson v. Gotfrey (1972) 26 L.T. (N.S.) 481
King v. Majid  17 NLR 254
Kingv. Silva (1928) 30 NLR 193, 195
Dassee v. Bose  3 Cal. Weekly Notes XVI
Shwe Kin v. Emperor (1907) 5 C. L.J. 411
Bandaranaike v. Premadasa (Soza, J.)
Muthu Coundan v. Chinniah Coundan AIR 1937 Madras 861
Goonesekera v. Inspector of Police, Kiriella (1947) 49NLR 119
Subramaniam v. Public Prosecutor  1 WLR 965, 970
Nawaz Khan v. Regina [1967J 1 AUER 80, 82
R. v. Smith (Joan)  2 All ER 115
The Queen v. Tennakone Mudiyanselage Appuhamy  60 NLR313,328
Edwards v. Martyn L. J. Rep. [ 1852] 30 (N.S.) 21 Q.B.D. 87
Scales v. Cheese  12 M& W 685, 687
Jacobs v. Lay born  11 M <& W 685, 690
Poyser v. Minors  7 QBD 329, 333, 334
Lever Brothers, Limited v. Knea/e and Bagnall [ 1937] 2 KB 87
In re Shoesmith [ 1938J 2 KBD 637
State of SaraikeJIa v. Union of India (195 ]) SCR 474, 513
Yongev. Toynbee  1 KB 215,220
Hanifa v. de Mel [ 1952] 46 CLW97, 100
Attorney-General v. Rawther (1924) 25 NLR 385
The King v. Chandrasekera (1942) 44 NLR 97
Kedar Nadar Ghose v. Surendra Nath Boss and another (1900) 5 CalWeekly notes XV
Lakshmi Chand v. Mukta Parshad and Others (1926) 92 1C 1006, 1007
Jarat Kumari Dassi v. Bissessur Dutt (1912) 39 Cal. 245, 263
Briscoe v. Briscoe [ 1966] 1 ALL ER 465, 466
Barnes v. BPC (Business Forms) Ltd [ 1976] 1 All ER 237, 239
Evans v. Bart I am  AC 473
Sundaram v. Gonsalves (1948)- 51 NLR 15
Yapa Anthony v. Don Davith (1937) 10 CLW2b
Wijewardena v. Lenora (1958) 60 NLR 457, 463, 364
INTERLOCUTORY APPEAL from five orders of the District Judges ofColombo.
C. Thiagalingam Q.C. with Anil Obeysekera, Nawaz Dawood, S.C.B.Walgampaya and P. Dayasri for defendant — appellant.
C. Ranganathan Q.C. with P. Navaratnarajah, Q.C. K. N. Choksy,S. Sunderalingam, K. Sivananthan, C. Ranadheera and Ikram Mohamed foiplaintiff —respondent.a
Cur. adv. vult.
November 22, 1978.
SOZA, J. read the following judgment of the Court.
This is an interlocutory appeal from five orders made by the learnedDistrict Judge of Colombo on the question of the order in which the defen
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dant-appellant should call his witnesses. The orders complained of were madeon 4th August 1978 at the commencement of the defence in this suit wherethe defendant-appellant is defending himself against a claim for damages in asum of Rs. 150,000/- for making certain statements defamatory of theplaintiff-respondent at two public meetings held on the 3rd and 4th April1976 in connection with the by-election for the Ja-eta seat then due to beheld on 23rd April 1976. The defendant-appellant (hereafter referred to asthe appellant) was the Chief Organiser of the Sri Lanka Freedom Party YouthLeague and the meetings referred to were held in support of the Party candi-date. The plaintiff-respondent (hereafter referred to as the respondent) wasthe Chief Organiser of the United National Party.
The appellant in the answer admitted uttering the defamatory wordscomplained of but pleaded qualified privilege as a defence and also putdamages in issue. Twelve issues were raised at the trial which began on the 4thAugust 1978 but, in view of the admissions,he Court had before it only twoimportant questions to resolve:
Were the words complained of uttered by the appellant on an occa-sion of qualified privilege on information honestly believed to betrue and made as fair comment and in the exercise of hts right as theChief Organiser of the S.L.F.P. and in the discharge of his duty to
What damages was the respondent entitled to?
After the issues were accepted, learned counsel tor the respondent closedhis case without leading any evidence.
Opening his case learned Counsel for the appellant submitted he wouldestablish that the words were uttered by the appellant in the honest beliefthat they were correct, on information he had the truth of which he believed.He then moved to call P.C. 3608 Jayamaha as his first witness. LearnedCounsel for the respondent objected and submitted that the appellant shouldgive evidence first. He assumed that the appellant will be called as a witnessfrom the averments in paragraph 4 of the answer. There were twogrounds ofobjection advanced:
This was an attempt to corroborate the appellant’s evidence inadvance.
No prejudice would be caused to the appellant if he gave evidencefirst.
Learned counsel for the defendant replied that he was not calling P.C. Jaya-maha to corroborate anything the appellant was going to say. He was only
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calling him to lay the foundation for the defence that the appellant honestlybelieved the truth of the information he received. Further he claimed that therespondent's Counsel had no right to dictate to him in what order he shouldcall his witnesses. During the argument before us it has been pointed outthat P.C. Jayamaha was merely going to say that the respondent had calledthe appellant a "pakis buruwa" and compared him to a frog between twolotuses in a pond, at a meeting held in support of the U.N.P. candidate on theafternoon of 4th April 1976 a few hours before the S.L.F.P. had theirmeeting of that day at which the appellant spoke. The respondent's counselhad a copy of the notes of P.C. Jayamaha. It was not the appellant's case thatP.C. Jayamaha communicated any information to the appellant. The Courthowever refused the application to call P. C. Jayamaha and made the first ofthe orders complained of. The full text of this order is as follows:
"I understand from Mr. Thiagalingam that he intends to call P. C. Jaya-maha in order to show that the plaintiff had abused the defendant andthat the defendant was possessed of that information that he had beenabused before he uttered the words complained of in this case. My viewis that the normal procedure that is followed in courts should beobserved in this case too and the defendant should give evidence prior tothis witness being called".
Following this order an application was made to call another constableP.C. 8943 Jayatilleke to show, as learned counsel for the appellant put it, thefilthy language which respondent used and how he abused the appellant andhis mother in foul language. This too was objected to on the same ground asbefore. The Court thereupon made the second order appealed against. It readsas follows:
"I am still of the opinion that the defendant should give his evidenceprior to P.C. Jayatilleke".
The next defence move was an application to call P.C. 6061 Hema-chandra, P.C. Fernando and P.C. Kumaradasa on the question of damagesonly, to say that the respondent is "not held in esteem". On this occasionlearned counsel for the appellant even stated he may not call the appellant asa witness. Here it must be observed that to prove that a defendant spokewords defamatory of a plaintiff honestly believing in the truth of the infor-mation he had, it is not always essential that such defendant should giveevidence. If the informant is creditworthy and the content of the informationsupports the necessary reference, the evidence of the informant alone maysuffice to establish the defence. Further the question of damages is anindependent issue and a party may content himself with getting damagesreduced to a nominal amount. The objection was however taken that thepurpose of calling these witnesses was to corroborate the evidence of theappellant. Here followed the third order of the Court:
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"Mr. Thiagaiingam states that witnesses Hemachandra, Fernando andKumaradasa will testify in regard to damages. I direct that thesewitnesses be called after the defendant if the defendant desires to giveevidence in this case".
Learned Counsel for the appellant then moved to call the Clerk to theHouse of Representatives to say that even in Parliament the respondent usedto "talk without repsect". The objection again was that the witness was beingcalled to corroborate the appellant. On this objection the Court ruled asfollows:
"I indicate to Mr. Thiagaiingam that he should call the defendant prior tothe Clerk to the House of Representatives".
Finally iearned Counsel applied to call a string of witnesses, PeterMendis, P. B. G. Kalugalla, D. H. S. Jayawardena, S. A. Robert, Kalu Banda,Robert Perera, Ariyaratne and David Perera, all informants of the appellant.
The objection was on the same ground as before, and on this the Couitmade the last of the orders we are called upon to review:
“Witnesses D. H. S. Jayawardena, S. A. Robert, Kalu Banda, RobertPerera, Mr. P. B. G. Kalugalla, Ariyaratne, and David Perera are to giveevidence in regard to the information that the defendant received and/orin regard to the character of the plaintiff. As indicated by me earlier inregard to the other witnesses, if Mr. Thiagaiingam proposes to call thesewitnesses, my view is that all these witnesses should give their evidenceafter the defendant if the defendant proposes to give evidence in thiscase".
Thereafter there were some proceedings regarding the marking of somedocuments which need not detain us. Learned Counsel for the defendantthen moved Court to stay further proceedings as he wished to canvass theorders made on the calling of witnesses. Argument on the question wasdeferred for the next day of hearing namely 7th August 1978. Theproceedings of the 4th August ended with learned Counsel for the appellantassuring learned Counsel for the respondent that the case would be"conducted" and the appellant would get into the witness box.
On resumption of the trial on 7th August 1978 the Court after hearingcounsel on both sides made order refusing the application to stay proceedings.Thereupon the appellant was called into the witness box under protest. Theevidence so far elicited from him consists of introductory matter and, wemay add, presents no obstacle to the order we propose to make in this case.
The Question we have to decide concerns the order in which witnessesshould be called at the trial of a civil case. The order in which witnesses in
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both civil and criminal trials may be called is provided for in section 135 ofour Evidence Ordinance. This section reads as follows:
"The order in which witnesses are produced and examined shall be
regulated by the law and practice for the time being relating to civil and
criminal procedure respectively and, in the absence of any such law, by
the discretion of the court".
Section 135 in effect lays down that in civil proceedings the order inwhich witnesses should be called and examined shall be regulated —
by the law for the time being relating to civil procedure, and
by the practice for the time being relating to civil procedure, and
in the absence of a law applicable to civil procedure, by the discre-tion of the court.
Thus the court can exercise its discretion only in areas where there is nolaw regulating the order in which the witnesses should be called. Where thequestion is governed only by practice it is obvious that the court may, if thecircumstances demand it, depart from the practice and control the order of
calling the witnesses in the exercise of its discretion.
The law relating to civil procedure in civil courts is contained principallyin the Civil Procedure Code and in the Evidence Ordinance.
The Civil Procedure Code contains no direct provisions regulating the* order in which witnesses should be called. Such provisions as there are. likesection 178 relating to the recording of evidence de bene esse of a witnessbecause he is about to leave the jurisdiction or for other special reason, orsection 179 relating to the taking of evidence on a commission, may byinference be understood as limitedly controlling the order in which theevidence of particular witnesses may be led. It was submitted for the appellantthat section 151 of the Civil Procedure Code prescribes that witnesses shouldbe so presented as to ensure that they speak to events in their chronologicalorder. What section 151 and the explanation appended to it state is that theparty having the right to begin shall produce his evidence by calling hiswitnesses and by questioning them elicit, as nearly as may be in the chronolo-gical order, a narrative of all the facts relevant to the matter in issue betweenthe parties, which he has witnessed. The same direction applies to theopposing party when it comes to his turn to present evidence — see section163 of the Civil Procedure Code. These provisions apply to the content ofeach witness's evidence and not to the order in which the witnesses should becalled. Hence we do not agree with learned Counsel for the appellant inregard to his interpretation of section 151.
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We will now turn to the Evidence Ordinance. Here apart from thegeneral provisions in section 135 the only provisions which may be inter-preted as stipulating the order in which witnesses should be called are foundin sections 136 and 157 but these two sections too are limited in scope.Subsection (2) of section 136 states that if the fact proposed to be proved isone of which evidence is admissible only upon proof of some other fact thelatter fact must be proved first unless an undertaking is given to the satisfac-tion of the Court to prove the latter fact later. If the two facts involved arebeing spoken to by different witnesses then we would have an occasion wherethe law regulates the order in which the witnesses should be called.
Before we come to section 1b7 we may mention that section 156 of theEvidence Ordinance deals with the question of how a witness whom it isintended to corroborate may be questioned. The section provides for theadmission of evidence given not to prove a relevant fact but to test a witness'struthfulness. For the purpose of corroborating the testimony of a witness asto any relevant fact he may be asked about other surrounding circumstancesor events observed by him at or near to the time or place at which suchrelevant fact occurred. The principle of section 156 is consistent with the
principle laid down in the English case of Wilcox v. Gotfrey' ' where Martin
held that corroboration of a fact may be established not only by proof ofwhat has taken place afterwards but equally by what has taken place before.
Section 157 of the Evidence Ordinance deals with corroboration. Thissection permits the proof of a former statement of a witness, if made relatingto the same fact at or about the time when the fact took place or to anyauthority legally competent to investigate the fact, to corroborate the testi-mony of such witness. The section has been repeatedly interpreted to implythat evidence of a former statement cannot be adduced in anticipation of theevidence of the maker of the statement.The maker of the statement must giveevidence first and thereafter he can be corroborated by the witness to whomthe former statement was made. To do otherwise would result in theadmission of hearsay inadmissible at the stage at which it is led — see the caseof The King v. Majid^. Fisher C. J. in enunciating the same principle in thecase of King v. Silva ^ stated "a witness cannot be corroborated inadvance. . . .". The expression "corroboration in advance" appears thereafterto have gained a wholly unwarranted currency in our legal parlance. The factthat the expression was first used in the interpretation of section 157 and thereason given, namely inadmissibility because of the hearsay rule, tend to beoverlooked. Reasoning similar to that applied in the case of The King v. Majid(supra) and King v. Silva (supra) was applied in several Indian cases — see forinstance Dassee v. Bose^, Shwe Kin v. Emperor^ and Muthu Goundan v.Chinniah Goundan On the othef hand in the case of Goonesekere v. Ins-pector of Police, Kiriella^ Windham J. held that corroborative evidenceunder section 157 even though called in advance of the evidence to be corro-borated, will not vitiate the trial unless prejudice be caused to the accused.
Bandaranaike v. Premadasa fSoza, J.)
Sections 136(2) and 157 therefore govern the order in which witnessesshould be called on the-basis of admissibility of evidence. It should beobserved that in the instant case none of the witnesses were to give evidenceof any former statement of the appellant. The witnesses proposed to be calledfell into four classes:
Witnesses with whom the appeflant had no communication whowould speak to what they themselves saw and heard e.g. P.C. Jaya-maha.
Witnesses who communicated to the defendant what they them-selves saw and heard e.g. Ariyaratne.
Witnesses who informed the appellant of what they came to knowfrom others e.g. P. B. G. Kalugalla.
Witnesses regarding the character of the respondent — relevant onthe question of damages – e.g. P.C. Jayatilleke.
Some witnesses fall into more than one category. Of the witnesses proposedto be called only those in the third category were to give hearsay evidencebut even so, such evidence would have been admissible hearsay because whatwas being sought to be proved was not the truth of the information but thefact that it was given. The object of leading this evidence was to establishbefore the Court that the appellant received information and acted honestlybelieving the truth of this information. As has already been pointed out hecould stake his case on his informants' testimony and not give evidencehimself. It is not necessary that the appellant should establish the truth of hisinformation. It is adequate if he proves that he received information andhonestly believed it to be true. As is stated in the last paragraph of theexplanation to section 151 of the Civil Procedure Code a witness is not barredfrom stating hearsay if it is relevant to the case. Wigmore in his work onEvidence (3rd ed.) Vol. 6 p. 178 explains the rule that applies thus:
"The prohibition of the Hearsay rule, then, does not apply to all wordsor utterances merely as such. If this fundamental principle is clearlyrealised, its application is a comparatively simple matter. The Hearsayrule excludes extrajudicial utterances only when offered for a special
purpose, namely, as assertions to evidence the truth of the matterasserted".
The rule has been explained thus in the case of Subramaniam v. PublicProsecutor:^
"Evidence of a statement made to a witness by a person who is nothimself called as a witness may or may not be hearsay. It is hearsay andinadmissible when the object of the evidence is to establish the truth of
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what is contained in the statement. It is not hearsay and is admissiblewhen it is proposed to establish by the evidence, not the truth of thestatement, but the fact that it was made. The fact that the statement wasmade, quite apart from its truth, is frequently relevant in consideringthe mental state and conduct thereafter of the witness or of some otherperson in whose presence the statement was made".
The above principles were adopted by the Privy Council in the case of MawazKhan v. Regina.'9'Lord Hodson delivering the judgment of the Board said:
"Their Lordships agree with Hogan C.J. and Rigby A.J. in accepting thegenerality of the proportion maintained by the text writers and to befound in Subramaniam's case that a statement is not hearsay and isadmissible when it is proposed to establish by the evidence not the truthof the statement but the fact that it was made".
Therefore the evidence of the informants will, to put it in t,he language ofWigmore, "legally pass the gauntlet of the Hearsay rule because it does notapply to them".
It will be seen that none of the witnesses in the four groups were beingcalled (so far as could be judged at that stage) to give evidence repugnant toany provisions of law. This fact remains unaltered even if we bear in mindthe distinction between cumulative evidence and corroborative evidence.
By way of final comment on this matter we would like to add as ageneral observation that all witnesses whom a party calls would give evidencein one way or another corroborative of the case of the party who calls them.This does not mean that such party would invariably have to give evidencefirst. The whole question would depend on the nature and content of theevidence being called; for ordinarily corroborative evidence simply meansfortifying evidence whether it is evidence of different or similar facts oradditional evidence of the same fact. Accordingly it would be fallacious toadopt corroboration as a test in every case.
It is remarkable that although on every occasion the objections oflearned counsel for the respondent were based in a very large way on thecontention that corroborative evidence was being attempted to be led inadvance, the learned District Judge did not refer to it even once in a single ofthe five orders he made.
On the other hand the first order the learned District Judge made wasthat in his view the normal procedure that is followed in courts should beobserved on that occasion too and therefore the appellant should giveevidence before the witness proposed to be called. It was strenuouslycontended that what the Judge did here was to make an order in the exerciseof his discretion as is permissible under section 135 of the Evidence
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Ordinance. We cannot agree that the use of the words "my view" in the orderimplies the exercise of discretion. What the learned Judge did was to declarehis opinion that the case was one in which the practice of the courts shouldbe followed. There is, in section 135 every justification for such a step. But isthe practice of the courts what the Judge declared it to be? There is no judi-cial pronouncement in our law reports on this matter and learned counsel forthe respondent submitted that it is not open to this court to declare what thepractice is in the absence of the question being put in issue in appropriateproceedings and proved as a custom would be pioved.
A perusal of the decided cases shows however that time and again, whenthe occasion required it. Judges have declared the practice of the courtswithout the formalities which learned counsel for the respondent says shouldbe observed.
In criminal cases the practice of the courts in England was stated on thebasis of the experience of the Judges of the Court of Appeal (CriminalDivision) in R. v. Smith (Joanl^^ where the Court said as follows:
"It is certainly the general practice in the experience of all the membersof this court that where an accused person is to give evidence he givesevidence before the other witnesses who may be called on his behalf".
In the local case of The Queen v. Tennakone Mudiyanselage Appu-hamy^^ His Lordship Basnayake, C.J. expressed the view that the practicein criminal cases both in Sri Lanka and in England was to call the accusedfirst. This practice no doubt owed its origin to the fact that in a criminaltrial, unlike in civil proceedings, it was essential that the accused should bepresent in court when the evidence was being led unless of course the lawexpressly excused his absence. In this situation if the accused gave evidenceafter his witnesses he would be tempted to trim his own evidence.
Similarly in civil cases there are instances where Judges have madepronouncements on what the practice was when the need for it arose. In thecase of Edwards v. Martyn^^ Lord Campbell C.J., Patteson J. and ColeridgeJ. stated that the practice which prevailed of discharging from custody underan execution, a married woman who had no separate property out of whichthe judgment-debt could be satisfied, prevails equally whether the husband beor be not taken in execution with her. In Scales v. Cheese^"^ Trindal C.J.observed that—
"Every court is the guardian of its own records and master of its ownpractice".
In Jacobs v. Layborn^4* Lord Abinger C.B. ruled that the practice was toallow objection to be taken to the competency of a witness if theincompetence became manifest during the examination-in-chief and not
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necessarily on the voir dire. His Lordship based his pronouncement on theauthority of cases and of Judges of repute and on the “testimony'' of his"own experience".
It is therefore open to us, and indeed it is oui duty in this case, to statewhat the practice is drawing on our own knowledge and experience.
The word "practice” as used in our courts carries three shades of meaning:
"Practice in the larger sense. . . , denotes the mode of pioceedmg bywhich a legal right is enforced as distinguished from the law whichgives or defines the right, and which by means of the pioceeding theCourt is to administer the macnmery as distinguished from itsproduct.
'Practice' and 'procedute', … I take to be convertible terms — perLush L. J. in Poyer v. Minors.^*^This definition was approved
by Slesser L. J. in Lever Brothers, Limited v. Kneale and Bagnall^^
and In re Shoesmith.' 'A similar definition was given by VlahajanJ. in State of Saraikella v. Union of India.
"The 'practice' of a court, when that woid is used in its ordinary andcommon sense, denotes the rules that make or guide the cutsuscuriae, and regulate procedure within the walls oi limits of the courtitself, and does not involve or imply anything relating to the extentor nature of its jurisdiction" — see Stroud's Judicial Dictionary 4thed. 1975 p. 2077, The maxim cursus curiae est lex curiae emphasisesthis aspect of the meaning of the term.
"The expression 'practice and piocedure’ is not confined to steps inthe action itself, but covers also matters in connection with theaction” — per Buckley L.J. in Yonge v. Toynbee^1®*. This definitionwas approved by Slesser L.J. in the case of In re Shoesmith (supia).
With these variants of the meaning of the term 'practice' before us, we willnow address ourselves to determining the practice of our courts. In doing socould we look to the practice of other jurisdictions? Learned counsel for therespondent submitted that the practice of England cannot be regarded as thepractice its Sri Lanka, for a correct appreciation of the question some noticeof the historical background of our Evidence Ordinance would be apposite.Despite the Proclamation of 23rd September 1799 retaining Roman-DutchLaw, English rules of evidence had infiltrated into our courts although notexpressly through positive enactments. This was no doubt because our judgeswere all men trained in the English tradition. Then came a series ofOrdinances — Nos. 6 of 1834, 3 of 1846 and 9 of 1852 — whereby a greatmany English principles of evidence became firmly entrenched in Sri Lanka.Finally on the recommendation of Chief Justice Budd Phear the Indian
Bandaranaike v. Premadasa (Soza, J. j
Evidence Act No. 1 of 1872, with slight adaptations, was adopted and passedas our Evidence Ordinance No. 14 of 1895. The Indian Evidence Act itselfis a codification with modifications of the principles of the law of evidencedeveloped by the English courts. Our Evidence Ordinance closely follows theIndian Act but the two statutes are not identical. Section 100 of ourOrdinance, for instance, which provides for recourse to English law in theevent of a casus omissus is not found in the Indian Act. Further, our section2 is not found in the Indian Act. By subsection (2) of this section all rules ofevidence not contained in any written law, so far as such rules are inconsis-tent with any of the provisions of the Ordinance, were repealed — seeNadaraja: The Legal System of Ceylon in its Historical Setting (1972) pp.259,260 and Hanifa v. De MeL^^
After the Evidence Ordinance came into force its provisions along withany other statutory provisions enacted relating to evidence, constitute ourlaw of Evidence and take precedence over all other sources. On matteisprovided for by the Evidence Ordinance the language of its sections becomesthe primary source of our law and should be supplied. No doubt Englishjudicial decisions may legitimately be teferred to in the interpretation of suchof our sections as are based on English law'; yet they are at most of persuasiveauthority. English decisons however will be absolutely binding if resorted to
under section 100 of the Evidence Ordinance — see Attorney-General v.
Rawther. The King v. Chandrasekera. and Dr. Mark Cooray's article inthe Colombo Law Review 1969 p. 105.
The order in which witnesses may be called being provided for by section135 of our Evidence Ordinance, the decisions of English and Indian Couitson this subject can be no more than of persuasive value in Sri Lanka. Yetreference can be made to them with profit.
Monir in his Principles and Digest of the Law of Evidence 4th ed. 1958Vol. 11 p. 854 has this observation to make on the Indian Section 135 whichis identical with ours:
"… there is no definite rule of law or definite rule of practice as to theorder in which the witnesses of a party are to be produced and examined;and, therefore, it is generally left to the discretion of the party or hiscounsel to lead his evidence in the order he considers proper, and the
Court is very slow to interfere with this discretion Under the
present section however, the Court has the power to interfere and todirect the order in which the witnesses of a party shall be examined".
Similar views have been expressed by several other commentators on theIndian Evidence Act. In the Indian case of Kedar Nadar Ghose v. BurendraNath Bose and another^ counsel for the defendant at the close of theexamination-in-chief of the plaintiff's first witness moved that the cross-examination be deferred until after the examination-in-chief of the plaintiff.
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He submitted that the order of examination, in the absence of any lawrelating to civil procedure, should be regulated by the discretion of the Court.The plaintiff should have been called first to give his account of the transac-tion. Stanley, J. held as follows:
"The Court is very slow to interfere with the discretion of counsel as tothe order in which-witnesses should be examined. I think in the presentcase the ordinary practice should regulate the order of examination andthat the witnesses should be cross-examined at the conclusion of theexamination-in-chief "
In the case of Lakstuni Chand v. Mukta Parshad and others^4 the
defendants had examined the plaintiff before putting one of themselves intothe witness-box and, on an objection taken by the plaintiff, the District Judgehad disallowed the statement of the defendant on the ground that the defen-dants should, if they wished to take a statement of the defendant, have takenit before the statement of the plaintiff was recorded. The District Judgeseemed, as was said when the matter was being reviewed, to have beeninfluenced by an announcement of the defendant that he would be givingevidence. In appeal the Court said:
"I do not see that it was the duty of the Court to direct the party as tothe order in which he was to lead his witnesses".
On the other hand there have been occasions when the Court has in its d iscre-tion interposed its own directions in regard to the order in which witnessesshould be called. In this connection reference should be made to whatWoodroffe, J. stated in Jerat Kumari Dassi v. Bissessur Dutt :
"As regards Bissessur, the learned Judge points out that he abstainedfrom going to the witness-box until all his witnesses other than theexperts and formal witnesses had given evidence. The Court might, andI venture to say under the circumstances of the case, should havedirected that the caveator be examined earlier, if not (as would havebeen proper) in the first place. The Court has always the power to do thisunder Section 135 of the Evidence Act".
This was a case where a last will was being challenged by the caveator as notbeing the act and deed of the deceased testator.
Turning to the English cases we have Briscoe v. Bricoe. Here theMagistrate had in a civil matrimonial proceeding directed that the husbandwho was the party in the case should be called first before any other witness.Karminski J. held in this case that the discretion lay with the Counsel to callwhat witnesses he chose, in what sequence he chose whatever the practice wasin criminal cases. He said:
Bandaranaike v. Premadasa (Soza, J.)
"What we are concerned with here in a matrimonial suit is the duty ofthe court and the duty of counsel respectively to decide what evidence iscalled and in what order it is called. Speaking for the mQment entirelyfor myself I have always thought, that the duty of deciding whatwitnesses should be called and in what order they could be called issolely a matter for Counsel, It is a grave responsibility and, it rests onhim and on him alone, and I think, that point of view was also acceptedby counsel who appears for the wife in this appeal. There is nothing sofar as I can see in the Magistrate's Courts Act, 1952, or in any rules madeunder it, which seeks to dictate the order in which witnesses shall becalled".
The Judge added:
"The discretion which must lie with counsel to call his witnesses as hepleases, and in the order he pleases, was overborne by the Court".
In the same case Lane J. stated her opinion as follows:
"It seems to me to be a matter of quite fundamental importance thatcounsel should retain the right, which I have always understood them tohave, to choose what witnesses to call and in what order".
In another English case Barnes and another v. BPC (Business Forms) Ltd^
Phillips, J. quoted Counsel as saying that the appellants had been deprived ofa fundamental right which belonged to their legal representative, that is tosay, the right to call witnesses in the order that he thought best and that therehad been a breach of natural jusitice. Phillips, J. referred to Briscoe v. Briscoe(supra) and added:
"So one can see at once that there was a substantial practical impairmentof his (counsel's) right to conduct the case as he thought fit".
In England in civil proceedings the discretion of counsel to decide on theselection of witnesses and the sequence in which they should be called isrecognised, as a fundamental right. Learned Counsel for the appellantsubmitted that though in the English judgments the statement of theprinciple is so phrased, still it js necessarily subject to the residual right of aCourt to interfere where necessary.
The decided cases establish that both in England and in India thepractice is that counsel enjoys the right to decide in what order he will callhis witnesses. In England possibly, and in India certainly the Court has thepower in its discretion to interfere with this right if the interests of justicedemand it.
Sri Lanka Law Reports
(1978-79) 2 Sri L. R.
Our own experience and knowledge of the practice in our Courts (wheresection 136(2) and 157 do not apply) is that the right to determine the orderof calling witnesses is given to Counsel. It is true that this practice is subjectto an overriding discretion given to the Court by section 135 of our EvidenceOrdinance just as much as it is given to the Courts in India under thecorresponding section of their Act. But it does not make it the less a practiceor make it non-existent. It exists and takes its course until the Court inter-feres. When Counsel calls his witnesses in the order determined by him, we donot agree that it must be inferred that he does so because the Court in itsdiscretion has impliedly given him permission. The Court no •doubt is incontrol of all proceedings before it but its power to interfere cannot alwaysbe equated with the concept of implied permission. Till the court interferesthe practice takes its course on its own mome'ntum so to speak. In fact thevery word "interfere" as the commentators say, connotes meddling in some-body else's business, and in this context, the business of Counsel. Exceptwhere the law prescribes otherwise and subject to the overriding discretion ofthe Judge, the practice of our Courts in Sri Lanka is tp give the right tocounsel to decide what witnesses he will call and in what order. This practiceis linked at one end with the adversary system of trial in civil cases and at theother end with the audi alteram partem rule of natural justice.
When we speak of the adversary or accusatorial system as distinguishedfrom the continental inquisitorial system, we refer to a particular philosophyof adjudication whereby the function of the counsel is kept distinct from thatof the Judge. It is the function of counsel to fight out his case while theJudge keeps aloof from the thrust and parry of the conflict. He acts merely asan impartial umpire to pass upon objections, hold counsel to the rules of thegame and finally to select the victor. This common law contentious procedurehas its defects and has been criticised by jurists like Roscoe Pound (see Land-marks of Law ed. Hensen — Beacon series pp. 186, 187) but it is the Anglo-American system and prevails in India and Sri Lanka too. In fact the FosterAdyisory Committee in its Report on the English Civil Procedure (1974)recommends the retention of the adversary system of procedure — see theStevens publication of the report — chapter 5 paragraph 102 pp. 28, 29. Thissystem is built on the English notion of fairplay and justice where the Judgedoes not descend into the arena and so jeopardise his impartiality. Under thissystem it is counsel's duty to prove the facts essential to his case with theother party striving to disprove these facts <?r to establish an affirmativedefence. It is logical therefore, subject to the strict rules of evidence, to leavethe choice of witnesses and the order of calling them to counsel as it is hisbusiness so to present his case as would best advance bis client's cause. TheCourt will interfere in the exercise of its discretion only in an exceptionalcase to avert a miscarriage of justice.
The practice we have mentioned is also linked to the audi alterm partemrule of natural justice which is one of the fundamental tenets of our law. Thisrule enjoins on the adjudicator the duty of giving every party to a lawsuit an
Bandaranaike v. Premadasa (Soza, J.)
opportunity of being heard and therefore of presenting his case, so far as thelaw permits, to the best possible advantage. Such a right carries the corollarythat his counsel is entitled to call his witnesses in the order he chooses.
In the instant case we do not agree with what the learned District Judgestated in his first order that the normal procedure in our Courts is to callthe defendant first. This view of the learned District Judge, it is reasonable toinfer, influenced him in every one of the remaining four orders he made onthe question of the order of calling witnesses, although he did not expresslysay so in every one of them. This inference is supported by the learnedDistrict Judge's reference to his earlier orders in the fifth order he made. Itwas submitted by learned Counsel for the respondent that some of the ordersare non-speaking orders. True enough; but we think thaL in the circumstancesand the context they speak the language of the first order. Everything pointsto the fact that the learned District Judge applied what he thought to be thepractice in every one of his five orders. He obviously did not consider that heshould depart from the 'normal procedure' or practice and elect to issuedirections in the exercise of his discretion. The learned District Judge in ourview was in error on every occasion when he insisted that the appellantshould be called first if at all and before any of his witnesses. The five orderscomplained of therefore cannot stand.
Learned Counsel for the respondent submitted that in any event it is ourduty by way of review to exercise the discretion vested in the Court bysection 135 even where the trial Judge has failed to exercise it. We werereferred to several cases and the dicta of Lord Atkin and Lord Wright in the
House of Lords decision in Evans v. Bartlam. ° Lord Atkin in his speech inthis case said as follows at pages 480, 481:
“. while the appellate Court in the exercise of its appellate power is
no doubt entirely justified in saying that normally.it will not interferewith the exercise of the Judge's discretion except on grounds of law, yetif it sees that on other grounds the decision will result in injustice beingdone it Las both the power and the duty to remedy it".
Lord Wright voiced a similar opinion at page 486:
"It is clear that the Court o^ Appeal should not interfere with the discre-tion of a Judge acting within his jurisdiction unless the Court is clearlysatisfied that he was wrong. But the Court is not entitled simply to saythat if the Judge had the discretion and had all the facts before him, theCourt of Appeal cannot review his order unless he is shown to haveapplied a wrong principle. The Court must if necessary examine all therelevant facts and circumstances in order to exercise a discretion by wayof review which may reverse or vary the order. Otherwise in interlocu-tory matters the Judge might be regarded as independent of supervision".
Sri Lanka Law Reports
(1978-79) 2 Sri L. R.
In the case of Sundaram v. Gonsalves Basnayake C. J. approving the deci-sion of Hearne, J. in Yapa Appuhamy v. Don Davith^ held that where theCourt of trial has exercised no discretion at all in a matter where it shouldhave acted in its discretion and had instead acted arbitrarily, the appellatecourt will interfere. The same Judge said as follows in the case of Wijewar-dene v. Lenora^:
“The mode of approach of an appellate Court to an appeal against anexercise of discretion is regulated by well established principles. It is notenough that the Judge composing the appellate Court consider that, ifthey had been in the position of the trial Judge, they would have taken adifferent course. It must appear that some error has been made in exei ■cising the discretion. It must appear that the Judge has acted illegally,arbitrarily or upon a wrong principle of law or allowed extraneous orirrelevant considerations to guide or affect him, or that he has mistakenthe facts, or not taken into account some material considertion. Thenonly can his determination be reviewed by the appallate Court.
Now where such a wide discretion has been given to a sub-ordinate Courtthe appellate Court should be careful not to restrict it by laying downrules which the Legislature has not prescribed".
We are in respectful agreement with the principle enunciated in these cases onthe question of the exercise of discretion. But in the instant case we are notreviewing the exercise by the learned District Judge of his discretion nor anarbitrary order made by him where he should have acted in the exercise of hisdiscretion. This is not a case where he was bound to exercise his discretion.He has chosen to follow what he declared was the practice of our courts andthat is what we are here reviewing. In any event we do not see adequatereason to warrant the court departing from the practice and acting in theexercise of the discretion vested in it. Therefore we are unable to accede tothe invitation to us to exercise our discretion under section 135 of theEvidence Ordinance.
Learned Counsel for the respondent argued that great prejudice would becaused to his client if the appellant is not called first while no prejudicewould be caused to the appellant. He submitted that if the appellant'switnesses give evidence first it would merely have the effect of "slingingmud" on the character of the respondent. The causing of prejudice howeveris inevitable in our adversary system and we do not see that that alone willdefeat the ends of justice. Further if the evidence of the appellant's witnesseswill amount only to "mud-slinging" we cannot see how this can be avoidedby calling them into the witness-box at the end rather than at the beginning.The Court on the other hand has the power and the duty to forbidquestioning which is intended to insult or annoy or which is needlesslyoffensive and to prevent the witness-box from being used merely to indulgein scurrility and scandal.
CA Thalayasingham and Others v. Nagaratnam and Another 387
Our attention was drawn to Article 138 of the Constitution. This Articlecarries a proviso that no judgment, decree or order of any court shall bereversed or varied on account of any error, defect or irregularity which hasnot prejudiced the substantial rights of the parties or occasioned a failure ofjustice. In our view the orders made in the District Court which are before usfor review are in contravention of the right of the appellant's Counsel whichthe practice of the courts has given him to decide what witnesses he will calland in what order so long as there is no infringment of any rule of law and solong as the circumstances do not justify the interposing of the discretionvested in the Judge.
For the reasons as have given we allow this appeal and set aside the fiveorders which are the subject of the appeal. The proceedings from the stage ofCounsel opening nis case for the appellant including the incomplete evidenceof the appellant are all set aside. We direct the trial to be continued from thestage at which respondent's case was closed. The trial may be continued bythe same District Judge who made the orders we have set aside or by anyother Judge of the District Court of Colombo. We may add that no prejudicewill be caused by a different Judge continuing the trial as no evidence hasbeen led on behalf of the respondent. During the argument before us, wewere informed that this appeal was filed mainly to vindicate the rights ofCounsel in the conduct of civil trials. This we believe has been achieved.Hence so far as the costs of this appeal are concerned let the parties bear theirown costs.
Appeal allowed and case sent for trial to be continued.