014-SLLR-SLLR-2005-V-3-EDMUND-PERERA-vs.-NIMALARATNE-AND-ANOTHER.pdf

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Edmund Perera v. Nimalaratne and Another (Somawansa. J. (P/CA))
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The counsel for the plaintiff-petitioner objected to the said issues beingraised and both parties having agreed to tender written submissions onthis matter tendered their written submissions and the learned DistrictJudge by her order dated 30.09.2004 over-ruled the objections of the plain-tiff-petitioner and accepted the aforesaid two issues. It is from the afore-said order that the plaintiff-petitioner has preferred this application for leaveto appeal.
It is submitted by counsel for the plaintiff-petitioner that the objection tojurisdiction in this case is one which was never properly pleaded withclarity and precision. At the stage of raising issues it was abandoned andthe trial commenced by the parties submitting themselves to the jurisdic-tion of the Court. Therefore there is no right in any party to re-agitate thequestion of jurisdiction. In any event, the objection to jurisdiction raised inthis case is not a valid objection as there is nothing in the Acts for theProtection of the Environment or any other Act which has ousted thejurisdiction which the District Court has always enjoyed to prohibit privatenuisance as part of the Roman Dutch Law. He further submits that for themoment all that we need to submit is that these issues could not havebeen permitted at this stage and in the vague terms in which they wereproposed. The case has to go to trial on the other issues as agreed at thecommencement of the trial where jurisdiction of the Court was not consid-ered as a matter in issue between the parties. I would say there is merit inthis argument.
It is to be seen that there was a conscious decision to drop the objec-tion to jurisdiction raised in paragraph 2 of the answer. It follows that at thecommencement of the trial the jurisdiction of Court was not a materialproposition of law on which the parties were at variance and in fact theparties were agreed as to the question of fact and law to be decidedbetween them as stated by them to Court in the form of issues in terms ofsub-section (1) of section 146 of the Civil Procedure Code and there wasno occasion for the learned District Judge to act under sub-section (2) ofsection 146 of the Civil Procedure Code. For sub-section (2) of section146 came into operation only in cases where the parties are not agreed asto the question of fact or law to be decided between them.
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At this point it would be useful to examine section 39 of the JudicatureAct which deals with 'objection to jurisdiction'. The section and the provisoreads as follows:
" Whenever any defendant or accused party shall have pleaded inany action, proceeding or matter brought in any Court of First Instanceneither party shall afterwards be entitled to object to the jurisdiction ofsuch court, but such court shall be taken and held to have jurisdictionover such action, proceeding or matter.
Provided that where it shall appear in the course of the proceedingsthat the action, proceeding or matter was brought in a court having nojurisdiction intentionally and with previous knowledge of the want ofjurisdiction of such court, the Judge shall be entitled at his discretionto refuse to proceed further with the same, and to declare the proceed-ings null and void."
Section 146 of the Civil Procedure Code reads as follows:
"146 (1) "On the day fixed for the hearing of the action, or on anyother day to which the hearing is adjourned, if the parties are agreed asto the question of fact or of law to be decided between them, they maystate the same in the form of an issue, and the court shall proceed todetermine the same.
(2) If the parties, however, are not so agreed, the court shall, uponthe allegations made in the plaint, or in answer to interrogatories deliv-ered in the action, or upon the contents of documents produced byeither party, and after such examination of the parties as may appearnecessary, ascertain upon what material propositions of fact or of lawthe parties are at variance, and shall threupon proceed to record theissues on which the right decision of the case appears to the court todepend..”
In the instant action as stated above in terms of section 146(1) partieswere agreed as to the question of fact or law to be decided between themand have stated the same to Court in the form of issues. Sub-section (2) ofsection 146 never came into operation as the parties were agreed on theissues. In the circumstances once a decision is made not to proceed with
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objection to jurisdiction though pleaded it is to be seen that in terms ofsection 39 of the Judicature Act such Court shall be taken and held tohave jurisdiction over such action, proceeding or matter. In any event, ifthe objection to jurisdiction had been raised at the commencement of the •trial then section 147 of the Civil Procedure Code would have come intooperation and that would have been an issue on which Court could haveproceeded to hear and dispose of this action without calling for evidence.In any event, the objection to jurisdiction embodied in the issues did notarise on the basis of any evidence given by the plaintiff-petitioner or hiswitnesses in the course of the trial, but is sought to canvas in the form ofan issue solely on the basis that they had a right to do so as it waspleaded in the answer. It is to be noted that when the plaintiff-petitionerobjected to the issue being raised at the trial stage the defendants-re-spondents did not offer any explanation as to why they did not raise thisissue at the time the issues were raised but relied on the fact that it waspleaded in the answer.'
Let us now consider the objection to jurisdiction taken in the answer.The defendants-respondents have pleaded in paragraph 2 of the answerthat the Court has no jurisdiction to hear the case under statutory law.What statute is referred to by the defendants-respondents is nowherestated in the answer. Counsel for the defendants-respondents submitsthat the defendants-respondents were entitled in law to take up the positionin their answer that there was a statutory bar to the maintainability of theaction and that there was no duty cast upon the defendants-respondentsto reveal their total defence to the plaintiff-petitioner in their pleadings.However in their written submissions the defendants-respondents haveexplained their position fully and the written submissions tendered to theoriginal Court is reproduced in paragraph 27 of the written submissions.However as neither the answer nor the issues raised by the defendants-respondents say what this statutory law that takes away the jurisdictionof the District Court how is the plaintiff-petitioner to meet such an objectionto jurisdiction? Is the plaintiff-petitioner expected to know the entire gamutof statutory laws in operation in this country? No doubt until the referencein the written submissions of the defendants-respondents to the NationalEnvironmental Act No. 47 of 1980 even the Court was kept in the dark.
I would say that pleadings and issues in such wide terms defeat theobject of pleadings and of raising issues when the object of pleadings and
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issues is to identify with precision the matters which have to be decided inthe case and to give notice of such matters to the opposing parties. Inrelation to the two issues raised on jurisdiction by the defendants-respondents, it is to be seen that it would be quite impossible for theplaintiff-petitioner or for that matter anyone even for the Court to understandthe basis on which the objection was taken therein by the defendants-respondents. In the original Court the objection was taken to these twoissues by the plaintiff-petitioner was not on the basis that they were notpleaded but on the basis that they were vague and framed in terms ofutmost generality.
In the case of Mariamma vs The Oriental Government Security and LifeAssurance Company Ltd. (l)Per Gratiaen, J at 149:
*The defendant's pleadings were defective, and the plaintiff (let it beconceded) had not been as vigilant as he should have been to protectherself against surprise. But it was still the Judge's duty to control thetrial. He should have ordered the defence to furnish full particulars ofits grounds for avoiding liability, and the issues for adjudication shouldonly have been framed after the Judge had ascertained for himself “thepropositions of fact or of law" upon which the parties were at variance".
Applying this proposition of law laid down in that case to the instantaction I would say the pleadings as well as the issues on jurisdiction isdefective. The submission of counsel for the defendants-respondents thatthere is no duty cast upon the defendants-respondents to reveal their totaldefence to the plaintiff-petitioner is unacceptable and should be rejectedin toto.
It is to be seen that the reference made in the written submissions ofthe defendants-respondents to the National Environmental Act No. 47 of1980 as amended find no mention in the answer, in any ot the issues or inthe evidence in the trial up to the time the new issues were sought to beraised. What the defendants-respondents are seeking to do in the writtensubmissions is to describe the plaintiff-petitioner's action as one based onsound pollution and thus coming under the Environmental Protection Act.The plaintiff-petitioner's case is a straight fon/vard case to prohibit a nuisance.Such actions are well known as part of our law of delict. It comesunder the wider subject of wrongs against property and nuisance
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are described under 2 heads : viz: public nuisance and private nuisance.The instant action is one of private nuisance which is a part of our law longbefore the Acts for the Protection of the Environment were enacted. Thereis nothing in any of these enactments which has taken away the jurisdictionof the District Court to deal with problems of nuisance.
It appears that counsel for the defendants-respondents as well as thelearned District Judge placed reliance on the decision in Metis vs.Adonisa (2) In fact the learned District Judge in his order refers to thatdecision and held that the failure of a party to raise an issue in the firstinstance is not a bar to the issue being raised at a later stage and haddecided to accept issue no. 24. Metis vs. Adonisa (supra) is no authorityto be followed in the instant action for in that case the main issue that wasconsidered was the awarding of costs in respect of additional issues raised.
In the case of Rodrigo vs. Raymond(3) the facts were as follows :
The plaintiff-respondent instituted action, inter alia, for the ejectmentof the defendant-petitioner from the premises in suit.
After the plaintiff-respondent's evidence the defendants-petitioner soughtto formulate three issues which were based on the value of the action andthe jurisdiction of the Court to entertain the respondent's case.
The District Court rejected the additional issues.
It was contended that the action cannot be maintained without firstobtaining a certificate of non-settlement from the Mediation Board.
It was held :
“The defendants-petitioner has failed to formulate an issue relatingto the jurisdiction of the Court at the commencement of the trial. Hisfailure to frame an issue on such a vital matter will amount to a waiverof objections in regard to lack of jurisdiction of Court to hear and deter-mine the respondent's action. The defendants-petitioner is deemed tohave consented and submitted to the jurisdiction of the court and hecannot now be permitted to challenge the jurisdiction".
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It was also observed in that decision at page 83 as follows:
" Moreover, it should be stated that when the admissions were re-corded at the commencement of the trial, the parties have in clearterms admitted the jurisdiction of the Court. Therefore, the defendantcannot be permitted at this late stage after several dates of trial todeny jurisdiction of the Court. The defendant had ample opportunity ofobjecting to the jurisdiction of the Court, if he has chosen or elected towaive such objections, he cannot subsequently be permitted to chal-lenge it. The defendant should not be allowed to blow hot and cold atthe same time, in this matter. The defendant is deemed to have sub-mitted to the jurisdiction of the Court".
In this respect the decision in Mrs. R. M. Jalaldeen vs. Dr. H.Rajaratnam(4) and Seneviratne vs. Francis Fonseka Abeykoon(5) is alsorelevant.
For the foregoing reasons leave to appeal is granted and the appeal isallowed. The order of the learned District Judge dated 30.09.2004 is setaside. I also make order rejecting issue no. 24 raised on behalf of thedefendants-respondents. The defendants-respondents will pay a sum ofRs. 15,000/- as costs of this application.
WIMALACHANDRA, J.,— I agree.Appeal allowed.