025-SLLR-SLLR-2010-V-1-GUNAWARDENA-v.-DERANIYAGALA-AND-OTHERS.pdf
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Gunawardena v. Deraniyagala and Others
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GUNAWARDENA V. DERANIYAGALA AND OTHERSSUPREME COURT
DR. SHIRANI A. BANDARANAYAKE, J.,
MARSOOF, J. ANDP.A. RATNAYAKE, J.
S.C. APPEAL NO. 44/2006S.C. (SPL) L.A. NO. 252/2005
A. APPEAL NO. 455/99(F)
C. NEGOMBO NO. 3576/LMARCH 23rd, 2009
Issue raised for the first time in appeal – Can it be entertained?Pure question of Law – Mixed question of fact and Law?
The Court of Appeal held that a new matter had been raised for the firsttime in appeal and such mixed question of fact and law cannot be raisedfor the first time in appeal. The Appellant preferred an application forSpecial Leave to Appeal, which was granted by the Supreme Court.
Held:
(1) It is not open to a party to put forward a ground for the first time inappeal, if the said point has not been raised at the trial under theissues so framed.
The Appellate Court may consider a point raised for the first time inappeal, where the point might have been put forward in the Courtbelow under one of the issues raised and where the Court hasbefore it all the material that is required to decide the question.
Accordingly the Court of Appeal had correctly refrained fromconsidering an issue that was raised for the first time in appeal,which was at most a question of mixed law and fact.
Cases referred to:
Talagala v. Gangodawila Co-operative Stores Society Ltd. – (1947)48 N.L.R. 472
Setha v. Weerakoon- (1948) 49 N.L.R. 225
The Tasmania – (1980) 15 A.C. 223
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Appuhamy v. Nona – (1912) 15 N.L.R. 311
Manian v. Sanmugam – (1920) 22 N.L.R. 249
Arulampikai v. Thambu- (1944) 45 N.L.R. 457
APPEAL from the Judgment of the Court of Appeal.
Gamini Marapana, P.C., with Keerthi Sri Gunawaradena and NavinMarapana for Defendant-Appellant-Appellant
D.S. Wijesinghe, P.C., with Kaushalya Molligoda for Plaintiffs-Respondents-Respondents.
Cur.adv.xmlt.
June 03rd 2010
DR. SHIRANI BANDARANAYAKE, J.This is an appeal from the judgment of the Court ofAppeal dated 13.10.2005. By that judgment the Court ofAppeal had affirmed the judgment of the District Court ofNegombo dated 30.03.1999, which had decided in favour ofthe plaintiffs-respondents-respondents (hereinafter referred toas the respondents) and had dismissed the appeal institutedby defendant-appellant-appellant (hereinafter referred to asthe appellant).
The appellant preferred an application for Special Leaveto Appeal, which was granted by this Court.
When this matter was taken up for hearing, learnedPresident’s Counsel for the appellant submitted that themain issue in this appeal was founded on the question asto whether on the basis of the documentary evidence placedbefore the District Court by the respondents, it is clear thatthe land, which was the subject matter of the action, hadvested in the Land Reform Commission and whether the
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Land Reform Commission could have by their letter dated
(P18) divested itself of its title in favour of therespondents, by stating that the said land had been excludedfrom the category of ‘agricultural land’. Accordingly, learnedPresident’s Counsel for the appellant contended that themain point of law on which the Supreme Court had grantedspecial leave to appeal was on the following:
“Whether the Land Reform Commission could divest
itself of title to property vested in it, in the manner it had
purported to do by the letter P18.”
Learned President’s Counsel for the appellant alsocontended that this question was raised in the same form inthe Court of Appeal, but the Court of Appeal had held thatit was a new matter that had been raised for the first time inappeal and such mixed question of fact and law cannot beraised for the first time in appeal.
Learned President’s Counsel for the respondentsstrenuously contended that the said question was a new pointraised for the first time in the Court of Appeal, which was nota pure question of law.
The facts of this appeal as submitted by the appellant,albeit brief, are as follows:
The respondents had instituted action in October1987, in the District Court of Negombo, claiming inter alia aDeclaration of title to the land morefully described inSchedule 2 to the Plaint. The respondents’ position was thatat one point of time, Justin Ferdinand Peiris Deraniyagalaowned the said land and that upon his death in 1967, hisEstate was vested in his brother and sister, namely the 1stand 2nd respondents and one P.E.P. Deraniyagala. The
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respondents had also stated that the interests of the saidP.E.P. Deraniyagala had devolved on the 3rd respondent. Theyhad produced the Inventory filed in Justin Deraniyagala’sTestamentary case bearing D.C. Gampaha No. 948/T at thetrial marked P4. The said Inventory had revealed that the saidJustin Deraniyagala had possessed agricultural land well inexcess of 500 Acres (P4). The respondents’ position had beenthat they had made a request to the Land Reform Commissionto have this land released to them as it was not agriculturalland. In June 1978 the respondents by their letter dated22.06.1978 (P28) had requested the Land Reform Commissionto exempt the land in question from the operation of LandReform Law on the basis that it was a marshy land. The LandReform Commission had, by its letter dated 15.10.1979 (P29)refused the request of the respondents. The respondents, bytheir letter dated November 1979 (P24) appealed against thesaid decision and the Land Reform Commission had decidedto exclude the land from the definition of ‘agricultural land’.
The District Court had held in favour of the respondentsand the Court of Appeal had affirmed the said order of thelearned District Judge.
Learned President’s Counsel for the respondentscontended that the respondents, being the plaintiffs in theDistrict Court of Negombo case, had instituted action againstthe appellant seeking inter alia a declaration of title to the landdescribed in Schedule II to the Plaint and for ejectment of thedefendant, who is the appellant in this appeal from the saidland. The respondents had traced their title to the land de-scribed in Schedule II to the Plaint, known as Muthurajawela,from 1938 onwards through a series of deeds. The respon-dents had also made a claim for title based on prescriptivepossession. The appellant had filed answer and had taken
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up inter alia the position that he had prescriptive title to theland and that he had the right to execute his deed of declara-tion. The appellant had taken up the position that his fatherhad obtained a lease of the land in question from JustinDeraniyagala, who was the respondents’ predecessor in title,which lease expired on 01.07.1967. The appellant had furtherclaimed that his father and the appellant had overstayedafter the expiry of the lease adversely to the title of therespondents and he had further stated that he had rentedout part of the land to the added respondents.
Learned President’s Counsel for the respondents referredto the issues framed both by the appellant and the respondentsbefore the District Court and stated that on a consideration ofthe totality of the evidence of the case and having rejected theevidence of the appellant as ‘untruthful evidence’; the learnedDistrict Judge had proceeded to answer all the issues framedat the trial in favour of the respondents.
It was the contention of the learned President’s Counselfor the respondents that although the appellant had preferredan appeal to the Court of Appeal, the appellant had noturged any of the grounds stated in the Petition of Appeal, butinstead informed Court that he will confine his submissionsto the question with regard to the maintainability of theaction on the ground that title to the land in suit remainsvested in the Land Reform Commission and that therespondents are not entitled to succeed in that action.
The contention of the learned President’s Counsel forthe respondents was that, the submission of the learnedPresident’s Counsel for the appellant on the basis of thequestion, which was referred to at the outset, was not takenup in the District Court as there was no issues to that effect
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nor was it referred to in the Petition of Appeal to the Court ofAppeal. Therefore the learned Counsel for the respondents hadobjected to that matter being taken up in the Court of Appeal,as it was not a pure question of law, which could have beenraised for the first time in appeal.
Learned President’s Counsel for the appellant strenu-ously contended that the main point on which the SupremeCourt had granted special leave to appeal was based on as towhether the Land Reform Commission could divest itself oftitle to property vested in it in the manner it had purportedto by the letter marked as P8 and the said matter was takenup in the same form in the Court of Appeal. Learned Presi-dent’s Counsel for the appellant contended that although theCourt of Appeal had held that the said question was a newmatter, which was raised for the first time in appeal and thatmixed questions of fact and law cannot be so raised for thefirst time in appeal, that not only the appellant, but also therespondents had taken up the issue in question in theDistrict Court.
Accordingly it is evident that the main issue in questionis to consider whether the question of vesting of the landwith the Land Reform Commission was urged before theDistrict Court, and it would be necessary to consider the saidquestion in the light of the decision of the Court of Appeal.
Learned President’s Counsel for the appellant referred tothe documents marked as P18, P24, P28, P29 and P36 andstated that the main issue in this appeal, which is raised on thebasis as to whether the Land Reform Commission coulddivest itself of title to property vested in it in terms of letterPI8 was taken up before the District Court, although learnedDistrict Judge had misunderstood the question.
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The trial had commenced in June 1989 and in the
absence of any admissions, issues 1-6 were raised on behalf
of the respondents and issues 7-9 were raised on behalf of
the appellant. The said issues were as follows:
Does the ownership of the land described in ScheduleII to the amended Plaint vest with the plaintiffs[respondents in this appeal] as stated in the amendedPlaint?
Has the defendant [appellant in this appeal] claimed titleto the said land by making a false and illegal declarationby deed No. 897 as stated in paragraph 9 of the amendedplaint?
Has the defendant [appellant in this appeal] interruptedthe possession of the plaintiffs [respondents in thisappeal] on or about November 1985, as stated inparagraph 10 of the Plaint?
Has the. defendant [appellant in this appeal] causeddamage /losses to the said land as stated in paragraph 4of the Plaint?
If the issues 1, 2 and/or 3 and/or 4 above are answeredin favour of the plaintiffs [respondents in this appeal] arethe plaintiffs [respondents in this appeal] entitled to therelief claimed in the prayer to the Plaint?
If so, what are the damages that the plaintiffs [respon-dents in this appeal] are entitled to?
Has the defendant [appellant in this appeal] acquired aprescriptive title to the land described in Schedule II tothe amended Plaint?
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If issue No. 7 is answered in the affirmative, should theaction of the plaintiffs [respondents in this appeal] berejected?
If the issues of the plaintiffs [respondents in this appeal]are decided in favour of the plaintiffs [respondents in thisappeal] is he [the defendant] [appellant in this appeal]entitled to the sum claimed by him in respect of improve-ments – what is that amount?
As stated earlier, learned District Judge has answered allthese issues in favour of the respondents.
A careful examination of the issues clearly reveals thatthe issue as to whether the land in question, being vestedin the Land Reform Commission, had not been raisedbefore the District Court. It is also to be noted that when thematter was before the District Court, the appellant had failedto plead that the property in question was vested in the LandReform Commission. Instead, the appellant had denied thetitle of the respondents and had pleaded title upon prescrip-tive possession.
This position could be clearly seen, when one examinesthe proceedings before the District Court.
The appellant took up the position in the District Courtthat although the respondents had declared both agriculturaland non-agricultural land to the Land Reform Commission,they had not made a declaration regarding the land inquestion as the said land did not belong to them. Therespondents at that time had taken the position that, they hadnot taken steps to declare the land in question to the LandReform Commission, as it was not agricultural land within the
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meaning of Land Reform Law. Considering the title of therespondents, learned District Judge had clearly stated that,
“Another attack on title of the plaintiffs was launchedon the basis that the 1M plaintiff had not declared thisland as another land belonging to them under the LandReform Law of 1972. To substantiate this, the defendantproduced D1 of 1st November 1972 and D2 of same dateand D8 to D11 of 19th September 1973. These documentsshow that the plaintiffs have not declared this land aspart and parcel of their property under the Land ReformLaw.
But the 1st plaintiff by letters addressed to the Chairmanof the Land Reform Commission in November 1976(P24) and letter of 22nd June 1978 (P28) informed theCommission.
P28 discloses all the circumstances why this land has notbeen declared and why it should be regarded as a non-agricultural land. They also submitted the plan andreport made by A.F. Sameer dated 03.11.1977,03.04.1979, respectively.
In response to these the Commission has taken varioussteps as evidenced by their documents P36 datedNovember 1981, P37 dated 6th November 1981 and P39dated 17th August 1981, respectively.
By P29 dated15.10.1979 the Commission originallyrejected the plea of the plaintiffs.
Thereafter the Commission has decided that this land isa non-agricultural land by their documents PI8 dated
and P38 dated 27th November 1981.”
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After considering all the aforementioned documents forthe purpose of ascertaining as to the ownership of the land inquestion, learned District Judge clearly had stated that,
“It is abundantly clear from these documents listed abovethat the plaintiffs and their predecessors-in-title werethe owners of this land for a long period of time.”
Except for the aforementioned paragraphs, the DistrictCourt had not considered as to whether the land in questionwas vested in the Land Reform Commission by operation ofthe provisions of the Land Reform Law. Learned President’sCounsel for the respondents, correctly submitted that, forthe Court to determine whether any land had been vestedin the Land Reform Commission by operation of the provi-sions of the Land Reform Law, the Court has to decide twopreliminary issues in terms of section 3(2) of the Reform Law,No. 1 of 1972, viz.,
Whether the land was agricultural land under theprovisions of Land Reform Law of 1972;
If so, whether the land in question had vested in the LandReform Commission by operation of law.
It is to be borne in mind that the respondents hadinstituted action in the District Court against the appellantand had prayed for a declaration of title and for ejectmentof the appellant and in his answer dated 02.09.1986 theappellant took up the position that he had prescriptive titleto the land and that he had the right to execute his deed ofdeclaration. The documents referred to by learned President’sCounsel for the appeal (P18, P24, P28, P29 and P36) all weredocuments filed by the respondents in the District Court. Out
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of them the appellant had made specific reference to PI8 toshow the decision taken by the Land Reform Commission.
All the aforementioned letters referred to by the appellant,deal with correspondence regarding the exemption of theland in question from the operation of the land Reform Lawon the basis that the said land being a non-agriculturalland.
The document marked P18 is dated 19.01.1982, whichwas addressed to the 1st respondent and reads as follows:
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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.