044-SLLR-SLLR-2005-V-1-COLGATE-PALMOLIVE-COMPANY-vs.-HEMAS-DRUGS-LIMITED-AND-ANOTHER.pdf
SCColgate Palmolive Company i/s ..309
Hemas (Drugs) Limited and Another
COLGATE PALMOLIVE COMPANYvsHEMAS (DRUGS) LIMITED AND ANOTHERSUPREME COURT,
S. N. SILVA, CJ,
WEERASURIYA, J ANDUDALAGAMA, J,
S. C (CHC) APPEAL No. 6/98(H. C. CIVIL) CASE NO. 21/96(3),
D. C. COLOMBO CASE NO. 4569/SPL25TH OCTOBER, 2004
Civil Procedure – Refusal of postponement of trial – Code of Intellectual PropertyAct – Action for nullity of registration of trade mark – Circumstances justifyingpostponement of trial.
In the above action which was filed by the plaintiff-appellant on 29.09.1997, thetrial was fixed for 10th, 11th and 12th of December, 1997 before the High Courtin terms of the High Court of the Provinces (Special Provisions) Act, No. 10 of1996.
On 5th December 1997 a motion was filed applying for a postponement ofthe trial due to concerns expressed by 5th witness, a foreigner that he wasunable to attend court due to the security situation in the country in view of abomb blast which had occurred on 15.10.1997. The 5th witness has soinformed the registered attorney-at-law. There was no affidavit filed in the matter.In all there were 20 witnesses. The High Court Judge refused the postponementwith liberty to the plaintiff to call the other witnesses.
Later on in an affifavit dated 29.01.98, the 5th witness stated that he had noinvitation to attend the trial on the date fixed or at any other time. It was notclaimed that the witness was ill.
Held:.
There was no defect of law or fact in the order of the High Court Judge.The judge has exercised his discretion according to law and justice ofthe case.
The plaintiff’s appeal was without merit.
310Sri Lanka Law Reports(2005) 1 Sri L. R.
Cases referred to :
Meiyappan Thevar v Arumugam Chetliar and Others 57 CLW 69
Weerakoon v Hewa Mallika (1978-79) 2 Sri LR 97
Gardner v Jay 29 Chancery Division 50
Maxwell v. Kenn (1928) 1KB 645, at 653
Dick v Piilar (1934) (1) AER 627
K.Kang Iswaran, P . C. with N. Bartholameos for plaintiff-appellantRomesh de Silva, P. C. with N. R. Sivendran for defendant-respondents
Cur.adv. vult
February 09, 2005UDALAGAMA, J.
This appeal arises from the impugned order of the learned High CourtJudge of Colombo in H. C. case No. 21/96(3) which case had been Tiled bythe plaintiff-appellant under the provisions of section 130 of the Code ofIntellectual Property Act. No. 52 of 1979 seeking inter alia a declarationthat the purported registration in the name of the respondent of certaintrade marks morefully described in the plaint are null and void. The plaintiff-appellant having filed the action originally in the District Court, the actionstood transferred to the High Court (Civil) Colombo by virtue of the provisionsof section 2 of the High Court of the Provinces (Special Provisions) Act,No. 10 of 1996.
Admittedly on the 29th of July 1997 the action was specially fixed fortrial for 3 consecutive dates, namely the 10th, 11th and 12th of December,1997 probably to accommodate the 20 witnesses listed by the plaintiff-appellant including the alleged foreign witness to testify on behalf of theplaintiff-appellant. However, by a motion dated 5th December just 5 daysbefore the scheduled 1 st date of trial the attorney-at-law appearing for theplaintiff-appellant moved for a postponement which motion appears to havebeen supported on the aforesaid 1st trial date which had been as statedabove, fixed as far back as 29th of July 1997. The basis of the applicationappears to be the concern expressed by the alleged principal foreignwitness, (No. 5 on the list filed on 15.07.1997) for his personal safety inColombo following a bomb blast admittedly which had occurred on 15th ofOctober, 1997. The learned High Court Judge, however, does not appear
SCColgate Palmolive Company vs311
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to have been satisfied with the reasons for an adjournment and by hisimpugned order had subsequent to offering an opportunity to the counselfor the plaintiff-appellant to lead the evidence of any other witness in theabsence of the purported principal witness and the offer not been heededto, proceeded inter alia to refuse an adjournment.
Significantly when the issues were settled and the case specially fixedfor trial, it is observed that in addition to the list of witnesses filed on15.07.1997, listing therein 13 witnesses of which the purported principalwitness was the 5th witness, a second list appears to have been filed on10.02.1997 listing therein 4 witnesses altogether totalling 20 witnesses.
It is also observed vide paragraph 12 of the written submissions of theplaintiff-appellant that on or about 02.12.1997 the purported principal witnessinformed the registered attorney-at-law by telephone that the former wouldnot be attending the trial of the action set for either 10th, 11th and 12th ofDecember in view of the unsatisfactory security situation prevalent inColombo subsequent to a bomb blast which admittedly happened as statedabove on or about 15.10.1997. There appears to be no intimation to courtuntil less than a week before the trial date that the said witness wasunable to attend court due to the aforesaid reason nor had he given anyreason as to why he was unable to intimate to court well in time of hisinability to attend court on the date the case was specially fixed for trial.There is also no evidence forthcoming even by way of an affidavit of thefact that the witness was forewarned not to attend court in order to justifyand support his apprehension not to attend court on the dates fixed fortrial. There is no evidence of any incident of a security lapse after the 15thof October up to the trial date.
Apart from the fact that the application for a postponement on the basisof the absence of one witness was belated considering in addition thefailure on the part of the plaintiff-appellant to be ready for trial and consideringalso the failure on the part of the counsel for the plaintiff-appellant to calleven some of the other remaining 19 witnesses as required by the learnedHigh Court Judge, I am inclined to hold that in all the aforesaid facts andcircumstances of the application, the trial judge exercised his discretionjudicially and properly and refused a postponement.
I would also agree with the learned High Court Judge as adverted to byhim in his impugned order that calling of witnesses is entirely a matter for
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(2005) 1 Sri L. R.
the plaintiff or his counsel conducting the case. I would also hold that bythe failure to lead any other witness out of the list of 20 witnesses so listedto testify on behalf of the plaintiff-appellant, that the trial judge havingconsidered all the attendant circumstances correctly exercised hisdiscretion to disallow an application fora postponement of the trial.
Importantly this court needs also to consider the averments in paragraph4 of the affidavit filed by the absent witness dated 29.01.1998 subsequentto the impugned order which adverts to the fact that the witness never hadan intention to testify in this action on the 10th, 11 th and 12th of December1997 or any other time, (emphasis mine)
The submission made on behalf of the appellant that the aforesaid words“or any other time’’ was a typographical error was not established even bya subsequent affidavit. In the respondent’s written submissions videparagraph 39, the latter specifically refuses to admit that the said wordscould have been typographical error.
The assertion of the learned President's Counsel for the plaintiff-appellantvide his written submission that the counsel for the defendant did not atthe trial court object to a postponement is also resisted and in factvehemently denied by the President's Counsel for the respondent as perparagraph 13 of the respondent's written submission filed on 17.04.1998.In any event the granting of postponements is within the discretion of thetrial court judge and considering the facts and circumstances of theapplication I would reiterate that the learned High Court Judge exercisedhis discretion within reason and according to law.
The learned President's Counsel for the appellant has referred this courtto the case of Meiyappan Thevar vs. Arunasalam Chettiar and Others mwherein Basnayaka, C. J. had stated, that
“this court does not interfere in appeal in a case where a court offirst instance had exercised its discretion unless it is shown that someerror had been made in exercising the discretion. A person invoking theappellate jurisdiction must satisfy that the court of first instance hadcommitted an error in fact or law.”
Although in that case the judge of the court of first instance was held tohave been mistaken in thinking that he was bound to refuse an applicationfor adjournment when opposed and resisted, in the instant case the learned
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Hemas (Drugs) Limited and Another (Udalagama, J.)
High Court Judge does not even referto any objection to the application fora postponement but in fact proceeded to dismiss the application inter aliaon the basis that the application for a postponement was not to suit theconvenience of a party but a mere witness. The learned High Court Judgefurther reasoned out the insufficient cause shown to consider the applicationon behalf of a witness said to be resident in India.
The learned President’s Counsel for the plaintiff-appellant has also referredto this court the case of Weerakoon vs. Hewa Mallika, (2) wherein thelearned Counsel submitted that Soza, J. in that'case following Gardnervs. Jay(3) and Maxwel vs. Kenn{4) held that the exercise of discretion by atrial judge must be on relevant considerations and according to law andjustice of the case. It is my considered view that the learned High CourtJudge in the instant application did in fact consider relevant facts accordingto law and justice of the case. An order fixing the date of trial or refusing agrant of an adjournment is a typical exercise of purely a discretionarypower and would be interfered with by a court sitting in appeal only inexceptional circumstances and I see no exceptional circumstances tointerfere with the order of the learned High Court Judge.
Judicial discretion is the exercise of judgment by a judge of a casebased on what is fair under the circumstances and guided by the rules ofprinciples of law.
In another English case of Dick vs. Pillar,(5) also cited by the learnedPresident’s Counsel for the plaintiff-appellant, Scott L. J. did pose thequestion that “if an important witness – a fortiori if he is a party (emphasismine) is prevented by illness from attending the court for an adjournedhearing at which his evidence is directly and seriously material what is thelegal duty of the judge when an adjournment is asked for ?
Scott L. J. proceeded to answer the question as follows
“ In my view if the judge is satisfied of the medical fact and that theevidence is relevant and important it is his duty to give.and adjournment— it may be on terms but he ought to give it unless on the other handhe is satisfied that an injustice would thereby be done to the other sidewhich cannot be reduced by costs."
314Sri Lanka Law Repons(2C05) 1 Sri L. R.
The facts in that case show the refusal to grant an adjournment beingdue inter alia to the absence of an affidavit to establish the inability of theparty to attend court due to illness. However the facts in the instant casebefore this court significantly differ in as much as the postponement wassought on the basis of the non presence of a witness and not a partywhich fact the learned High Court Judge also reiterates in his impugnedorder. Besides the belatedness of the application without even anexplanation and importantly the additional evidence before this court byway of the averments in paragraph 4 of the affidavit of the absent witnessdated 29.01.1998 where in no uncertain terms the witness had stated thathe had “no intention to come and give evidence on the 10th, 11 th or 12thDecember 1997 or any other time" which averment by itself would renderthe submission on behalf of the appellant, that the refusal for an adjournmentand the subsequent dismissal of the action resulted in injustice, to beclearly untenable.
Then again it is apparent that the learned High Court Judge was notsatisfied with the excuse put forward by the aforesaid witness, to supportthe latter's absence, was a true one leading to the conclusion that thiscourt ought not to interfere with the decision of the learned High CourtJudge which was undoubtedly one based purely on facts and it cannot bean authority for the proposition that an appeal will lie from the decision ofa court of first instance on a question of fact and would not justify thiscourt in ignoring a statutory limitation upon its powers which it is anelementary duty to obseive.
For the aforesaid reasons I am of the view that the only order which thiscourt in the circumstances could pronounce is that the appeal should bedismissed.
The appeal is dismissed with costs fixed at Rs. 5,000.
S. N. SILVA, C.J.-1 agree
WEERASURIYA, J. -1 agree
Appeal dismissed.