025-SLLR-SLLR-2010-V-1-GUNAWARDENA-v.-DERANIYAGALA-AND-OTHERS.pdf

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It is to be noted that this letter was sent to the original1st respondent. It refers to a declaration made by the 1strespondent, but the Administrative Assistant of the LandReform Commission, who gave evidence on the declarationsmade by the 1 respondent had stated in the cross-examinationthat the 1st respondent had not made a declaration in respectof the land in question either as an agricultural land or asa non-agricultural land. Accordingly, it is evident that thedocument marked PI8 is contradictory to the direct evidencegiven by the officer of the Land Reform Commission. It is alsoto be borne in mind that there had been no evidence thatthe land in question was agricultural land in terms of theprovisions of the Land Reform Law, No. 1 of 1972. Theobvious reason for the said lack of evidence as to the statusof the land was due to the fact that there was no issue raisedby the parties as part of the case in the District Court.
A careful perusal of the proceedings before the DistrictCourt and the judgment of the District Court of Negombo,clearly reveal that the question as to whether the land inissue was agricultural or not in 1972 was not raised as anissue before the District Court and therefore the said issuehad not been considered by the District Court.
In such circumstances it is clearly evident that thequestion whether the land in issue was vested in the LandReform Commission and/or whether the land in questionwas agricultural or not in 1972, was taken up for the firsttime by the appellant in the Court of Appeal.
In Talagla v. Gangodawila Co-operative Stores SocietyLtd.w, the question of considering a new ground for the firsttime in appeal was considered and Dias J., had clearly statedthat as a general rule it is not open to a party to put forward
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for the first time in appeal a new ground unless it might havebeen put forward in the trial Court under of the issues framedand the Court of Appeal has before it all the requisite materialfor deciding the question.
The same question as to whether a new point could beraised in appeal was again considered by Howard C. J., andDias, J. in Setha v. Weerakoon(2), where it was held that,
“a new point which was not raised in the issues or in thecourse of the trial cannot be raised for the first time inappeal, unless such point might have been raised at thetrial under one of the issues framed, and the Court ofAppeal has before it all the requisite material for decidingthe point, or the question is one of law and nothingmore.”
There are similarities in the facts in Setha v Weerakoon(supra) and the present appeal. In Setha (supra) learnedCounsel for the appellant had sought to raise a new point,which was neither covered by the issues framed at the trial,nor raised or argued at the trial. Learned Counsel for therespondent had objected either to this new contention beingraised or argued at that stage.
Examining the question at issue, Dias, J., referred to adecision of the House of Lords and a series of decisions of theSupreme Court.
In Tasmania13’ considering the question of raising a newpoint in appeal, Lord Herschell had stated that,
“It appears to me that under these circumstances, aCourt of Appeal ought only to decide in favour of anappellant on a ground there put forward for the first .
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time, if it is satisfied beyond doubt, first, that it hasbefore it all the facts bearing upon the new conten-tion, as completely as would have been the case if thecontroversy had arisen at the trial; and, next, that nosatisfactory explanation could have been offered bythose whose conduct is impugned, if an opportunity forexplanation had been afforded them when in the witnessbox.”
The decision in The Tasmania (supra) was followed inAppuhamy v. Nona(4), in deciding whether it could be allowedto raise a point in appeal for the first time. Examining thesaid question, Pereira, J., clearly held that,
“Under our procedure all the contentious matter betweenthe parties to a civil suit is, so as to say, focused in theissues of law and fact framed. Whatever is not involvedin the issues is to be taken as admitted by one party orthe other and I do not think that under our procedure itis open to a party to put forward a ground for the firsttime in appeal unless it might have been put forward inthe Court below under someone or other of the issuesframed and when such a ground that is to say, a groundthat might have been put forward in the Court below,is put forward in appeal for the first time, the cautionsindicated in the Tasmania may well be observed.”
The question of raising a matter for the first time inappeal came up for consideration again in Manian v.Sanmugam[5). In that case, for the first time in appeal,learned Counsel for the appellant, in scrutinizing therecord had found that the evidence was formallyinsufficient to justify the finding of the lower Court onthat particular item. In that matter, at the hearing, the
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plaintiff swore that he gave defendant some jewellery.Defendant’s Counsel stated that he could not cross-examineon this point, but that he would call the defendant to denyit and leave it to the Court to decide on the credibility of theparties. The defendant, however, was not called as a witness.The Judge decided for the plaintiff on that matter. On appealCounsel urged that the evidence was formally insufficientto justify the finding, as the plaintiff did not say in expressterms that he supplied the jewellery.
Considering the matter in question, Bertrem, C.J., hadheld that as the point was not taken in the lower Court, thatpoint could not be taken in appeal. It was further held that,
“The point is, in effect, a point of law. . . The case seemsto me to come within the principles enunciated in thecase of The Tasmania (supra).”
The same question as to a point raised for the first time inappeal came up for consideration in Arulampikai v. Thambu{6),where Soertsz. J., had held that the Supreme Court maydecide a case upon a point raised for the first time in appeal,where the point might have been put forward in the Courtbelow under one of the issues raised and where the Courthas before it all the material upon which the question couldbe decided.
On an examination of all these decisions, it is abundantlyclear that according to our procedure, it is not open to a partyto put forward a ground for the first time in appeal, if thesaid point has not been raised at the trial under the issues soframed. The appellate Courts may consider a point raised forthe first time in appeal, where the point might have been putforward in the Court below under one of the issues raised and
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where the Court has before it all the material that is requiredto decide the question.
The contention of the learned President’s Counsel forthe appellant was that the Court of appeal should haveconsidered the question as to whether the Land ReformCommission could divest itself of title to property vested in itin terms of PI 8. As has been described in detail earlier, exceptfor the declaration made by the 1st respondent, there is noevidence as to whether the land in question had beendeclared in a section 18 declaration by the 2nd and 3rd respon-dents. Further as stated by the officer from the Land ReformCommission, the 1st respondent had not made a declarationin respect of the said land either as an agricultural land oras a non-agricultural land. The document marked P18 refersto a declaration made by the 1st respondent, which is contra-dictory to the direct evidence led through the officer of theLand Reform Commission. The Committee of Experts, whichhad been appointed to inspect the land and to report to theLand Reform Commission, had informed that the said landwas a non-agricultural land. The Land Reform Commissionhad taken into consideration the fact that the said land was anon-agricultural land in 1982 and on that basis had writtenPI8 stating that it could not have been an agricultural landeven in 1972. However, it is to be borne in mind that noevidence had been led to ascertain whether the land was infact an agricultural land in terms of the provisions of theLand Reform Law in 1972.
Accordingly, it is not disputed that there has been noevidence to establish as to whether the land was agriculturalor not in 1972 and whether it was vested or not in the LandReform Commission in 1972.
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Learned District Judge had not come to any of suchfindings since there were no issues framed by the appel-lant and/or reported in the District Court regarding the saidaspects. An issue should have been raised on the basis as towhether the land in question was agricultural land in 1972,before the District Court for both parties to adduce evidenceand for the learned District Judge to arrive at a finding in theDistrict Court.
Considering all these circumstances of the appeal it isabundantly clear that the question of vesting of the landwith the Land Reform Commission was not urged before theDistrict Court and therefore the Court of Appeal did nothave before it all the material that is required to decide thequestion. Accordingly the Court of Appeal had correctlyrefrained from considering an issue that was raised for thefirst time in appeal, which was at most a question of mixedlaw and fact.
For the reasons aforesaid, the judgment of the Courtof Appeal dated 13.10.2005 is affirmed. This appeal isaccordingly dismissed.
I make no order as to costs.
MARSOOF, J. – I agree.
RATNAYAKE, J. – I agree.
Appeal dismissed.