042-SLLR-SLLR-1997-V3-JAYASINGHE-v.-GNANAWATHIE-MENIKE.pdf
410
Sri Lanka Law Reports
(1997) 3 Sri L.R.
JAYASINGHE
v.
GNANAWATHIE MENIKE
COURT OF APPEAL.
JAYASURIYA, J„
A. NO. 656/96 (F)
C. MARAWILA 714/LJULY 21, 1997.
Misdescription relating to the designation of the Plaintiff's Name in the caption -Jurisdiction and power of the District Judge to correct clerical error – Falsademonstrate Non Nocet Cum de Corpore vel persona constat – Nil facit – Errornominis cum de corpore vel persona constat – Praesentia corporis tollit erroneousnominis et veritas nominis tollit errorem demonstrationist – Civil Procedure Code -Sections 50, 93 – Evidence Ordinance – Section 90.
Held:
The District Judge is entitled to have effected a correction of themisdescription in one name in the caption of the plaint at the stage that heeffected the amendment in the exercise of his inherent powers without waiting forthe stage of the trial of the action to exercise powers that were available to him toeffect amendments in pleadings in terms of section 93 Civil Procedure Code.
It is an old and rational maxim of law that where the party to a transaction orthe subject of a transaction is actually and corporeally present, the calling ofeither by a wrong name is immaterial.
– Names are used only to designate persons and the suit is not against namesbut against persons designated thereby –
APPEAL from the District Court of Marawila.
Cases referred to:
Parsons v. Abdul Cader – 42 NLR 383
Odiris Silva and Sons Ltd., v. Jayawardene 55 NLR 335
Velupillai v. Chairman, Urban District Council – 39 NLR 464
Gabriel Perera v. Agnes Perera – 43 CLW 82
Yapa v. Dissanayake Sedera -1989 1 SLR 362
James v. Whitebread 11 CB 406
Rex v. Millor – 27 UMC 121
Rohan Sahabandu for defendant-appellant.
V. P. Tillekeratne for plaintiff-respondent.
Cur. adv. vult.
CA
Jayasinghe v. Gnanawathie Menike (Jayasuriya, J.)
411
July 21.1997.
JAYASURIYA, J.
In the instant action the plaintiff’s Attorney-at-law in the ca'ption(only) describes the plaintiff designating her name as AdikariMudiyanselage Gunawathie Menike of Mahawewa. The proxy wassigned by the plaintiff as A. M. Gnanawathie Menike. In paragraph 2of the plaint the plaintiff specifically pleaded that she entered into anindenture of lease with the defendant bearing No. 634 dated09.06.1984 which was attested by the Notary Public, W. A. B. OscarFernando and pleaded that lease bond as an integral part of the plaintand annexed a copy of that indenture of lease as a document suedupon in terms of section 50 of the Civil Procedure Code to the plaint. Itwas averred in paragraph 2 of that lease bond that the defendantsentered into a contract of lease with the plaintiff whose name wasdescribed as Adikari Mudiyanselage Gnanawathie Menike in respectof the property which was referred to in the prayer to the plaint and theschedule to the plaint for a period of 10 years from 09.06.1984 till08.06.1994, on payment of a lease rent of Rs. 20,000/-. The plaintiffaverred that the currency of the tease came to an end and a valid anddue notice was served on the defendant to vacate the leasedpremises but that the defendant was wrongfully and unlawfullycontinuing to further occupy the leased premises after the terminationof the lease and the plaintiff prayed for an order of ejectment ofthe defendant and all those holding under him, from the leasedpremises which was more fully described in the schedule to the plaintand for damages. In the proxy which was filed on behalf of theplaintiff, the plaintiff has signed the proxy as A. M. GnanawathieMenike.
At the trial, issue No. 10 was raised on behalf of the defendant.Issue 10 reads as follows: “In the summons and the copy of theplaint which was served on the defendant, has the plaintiff's namebeen designated as Adikari Mudiyanselage Gunawathie Menike".Issue 11 reads as follows: “If issue 10 is answered in the affirmative,is the plaintiff entitled to have and maintain the presently constitutedaction?" Considerable light is shed by the manner in which issue 10has been framed on behalf of the defendant at the trial. The issue
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does not raise the question whether in the original plaint that is filedin the record in D.C. Marawila 714/L that the name of the plaintiff isdesignated as Adikari Mudiyanseiage Gnanawathie Menike butraises such an issue only in reference to the summons and the copyof the plaint that was served on the defendant. There is apresumption known to the law that all legal and official acts arecorrectly and duly performed by the relevant parties concerned.Omnia praesumuntur rite et solemniter esse acta (all official acts arepresumed to have been done rightly and regularly) which maximwould extend to the acts of officers of court which role is effectivelyplayed by members of the legal profession. In the circumstances, thiscourt is entitled to presume that the registered attorney for thedefendant perused the original plaint filed of record in this case inaccordance with the customary practice and in terms of thereasonable diligence that would be exhibited by any prudent lawyerand thereafter he has advisedly framed issue 10 after suchinspection and referred specifically only to the summons and thecopy of the plaint that was served on the defendant.
The Additional District Judge of Marawila, in the course of hisjudgment, has stated that the District Judge, after the plaint was filedin the District Court, has corrected and amended the misdescriptionrelating to the designation of the plaintiff's name in the caption to theplaint and has initialled it. By such correction and amendment he hassubstituted the name Gnanawathie for the designated name ofGunawathie. There was no misdescription or error in regard to theWasagama the 'ge' name and the address of the plaintiff. As JusticeKeuneman remarked in Parsons v. Abdul Cader01 “Names in thecaption of a plaint are used only to designate persons but an actionis not instituted against names but against persons designatedthereby." When the District Judge amended the caption of the plaintsubstituting the name Gnanawathie for the name Gunawathie, theDistrict Judge had before him the contents of the entire plaintincluding the averments in paragraph 2, the contents of the leasebond sued upon which was filed as an annexe to the plaint in termsof the provisions of section 50 of the Civil Procedure Code andsignature of the plaintiff on the proxy. It is highly probable that thesaid District Judge corrected this misdescription and clerical error in
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Jayasinghe v. Gnanawathie Menike (Jayasuriya, J.)
413
regard to the name of the plaintiff when this record was put up to himfor the exercise of judicial mind prior to the making of the order forissue of summons and in terms of the practice that prevails in theDistrict Court with regard to the allocation of work between theDistrict Judge and the Additional District Judge. Thereafter therecord has been forwarded to the Additional District Judge's Court forfurther action. This is the practice that prevails in the several DistrictCourts (in which I have functioned) right through out the Island. Inview of this practice, it appears that the District Judge has made thisamendment and initialled the amendment before he forwarded thecase record to the Additional District Court for further action and trialof the suit. Unfortunately, the District Judge has not inserted the dateon which he made the amendment and initialled the amendment. Ifthe amendment was effected at such a point of time the amendmenthad been effected before the defendant entered an appearance onthe service of the summons.
What is the character of the amendment which has been effectedby the District Judge of Marawila? It is amendment consisting of thecorrection of a clerical error appearing only in the caption to theplaint. The plaintiffs Wasagama and address have been correctlystated in the plaint, the averments in paragraph 2 of the plaint andthe contents of the annexure to the plaint and the proxy signed by theplaintiff, clearly disclose that the plaintiff in the action is AdikariMudiyanselage Gnanawathie Menike of Mahawewa. Did the DistrictJudge have power and jurisdiction at that stage to correct the clericalerror appearing in the caption? At all other points in the plaint and inthe proxy the correct name has been disclosed as AdikariMudiyanselage Gnanawathie. Did he in such attendantcircumstances have the power and jurisdiction to correct this clericalerror at the stage that he effected the amendment? The answer tothat question is obviously in the affirmative. I
I wish to refer to certain decisions of the Supreme Court wheremore serious and graver misdescriptions and errors in regard to theenumeration of names of parties have been effected lawfully by thecourts. In the decision in Odiris Silva and Sons Limited v.Jayawardene,2) a misdescription in the plaint and a continuing erroras to the name of the defendant was held to have been lawfully
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rectified. The plaintiff in that action mistakenly named in the captionthe defendant as Odiris Silva and Sons when in fact, the defendantwas an incorporated body designated as Odiris Silva and Sons Ltd.The amendment which was effected in the lower court, amidststrenuous objections, was upheld as a correct and lawful order bythe Supreme Court which proceeded to hold that for the purpose ofreckoning the period of prescription, the action against theincorporated Company must be taken to have been instituted on thedate of the original plaint and not upon amendment of the caption ofthe plaint. Thus, in the teeth of objections founded on prejudiceasserted by the incorporated Company, the amendment wassanctioned by the Supreme Court. In the present case there is nooccasion whatsoever for the defendant-appellant to complain ofeither surprise or prejudice inasmuch as a copy of the lease bondwas annexed to the plaint as the document sued upon.
In Veiupillai v. Chairman, Urban District Council™ Chief JusticeAbrahams, in upholding the amendment in that case, stressed thatthe Supreme Court is a court of law which should not betrammelled by technical objections and that it is not an academy
of law. In that suit, the plaintiff, who had a righteous cause of actionagainst the Urban District Council, by mistake had designated theChairman of the Council as the defendant and at the trial the issuewas raised that the action had not been properly constituted. ChiefJustice Abrahams held that the plaintiff should be allowed to amendthe caption by substituting the council in place of the Chairman.When it was argued that such an amendment would have the effectof defeating a plea of prescription on the part of the newly substituteddefendant, Chief Justice Abraham remarked that the plaintiff alwaysintended to sue the Urban District Council but due to amisconception on the part of the plaintiff's lawyer that the councilcould not be sued, that the Chairman was made a party defendant.The learned Judge emphasised; “If we do not allow the amendmentin this case we would be doing a very grave injustice to the plaintiffbecause of the shortcoming of his legal advisor, the peculiarities oflaw and procedure and the congestion of the courts. These factorshave all combined to deprive him of his cause of action and I for onerefuse to be a party to such an outrage upon justice".
CA
Jayasinghe v. Gnanawalhie Menike (Jayasuriya, J.)
415
The amendment in the instant case is much more venial incharacter. It does not have the effect of substituting one party plaintifffor another. The contents of the plaint, the contents of the documentsued upon which was annexed to the plaint and the signature 8n theproxy disclose that the party plaintiff was always AdikariMudiyanselage Gnanawathle Menike of Mahawewa. What the DistrictJudge has done is to correct a misdescription and error in one word inthe caption and to substitute the name Gnanawalhie for the nameGunawathie. As Justice Keuneman has remarked: “Names onlydesignate persons but a suit is not against names but against personsdesignated thereby". The learned District Judge has effected a merecorrection in one name in the caption acting on the often quoted legalmaxinrv-Fa/sa demonstratio non nocet cum de corpora vel personaconstat. (A false description does not harm if there be sufficientcertainty as to the object-corpus or person.) A latent ambiguity of thisnature can always be corrected by a trial Judge in the exercise of hisinherent power to secure the ends of justice. Vide the followingdecisions where this principle has been applied by the SupremeCourt: Gabriel Perera v. Agnes Pereraw; Yapa v. DissanayakeSedera(S> and vide the provisions of section 95 of the EvidenceOrdinance which relates to latent ambiguities and is based on themaxim Falsa demonstratio non nocet cum de corpore vel personaconstat (Any inaccuracy in description is to be over-looked if thesubject-matter or person is well known). This maxim has often arisenfor consideration in connection with the interpretation of wills anddevises. But the expression cum de persona constat in this maximsignifies that it can arise for application not only in relation to propertybut equally in regard to persons. In the decision in James vs.Whitebread,6) the court emphasised this aspect by using a slightlydifferent Latin maxim- Nil facit error nominis cum de corpore velpersona constat. The fact that this maxim arises for application andconsideration not only in civil disputes but even in criminal procedurewas well illustrated in the decision in Rex v. Miilor<7). In this case thefalsa demonstratio was clearly in regard to a person. Justice Bylesadverted to another principle praesentia corporis tollit erroneousnominis. In this case, in taking preparatory steps for a trial to be heldfor the offence of murder the name of a juror A on the panel wascalled; and B another juror on the same panel appeared and by
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mistake answered to the name of A and was sworn as a juror. Theaccused was convicted, The majority of the judges of the Court ofCrown Cases Reserved held that the conviction ought not to be setasideT Justice Byles rested his judgment on the principle – Falsademonstratio non nocet cum de corpore vel persona constat. HisLordship observed that this mistake is not a mistake of the man butonly of his name. The very man who, having being duty qualifiedlooked upon the prisoner and was corporeally presented and shownto the prisoner for challenge, was sworn and acted as juryman. At thebottom the objection is but this, that the officer of the court, thejuryman being present called and addressed him by a wrong name.Now it is an old and rational maxim of law that where the party to atransaction or the subject of a transaction, is actually and corporeallypresent, the calling of either by a wrong name is immaterial, forpraesentia corporis toilit erroneous nominis, et veritas nominis tolliterrorem demonstrationist. The presence of the parties’ before thecourt. Justice Kenueman in Parsons v. Abdul Cader (Supra) at 384was in effect giving expression to the alternative reasoning andrational expressed by Justice Byles, namely, that “names are usedonly to designate persons and the suit is not against names butagainst persons designated thereby.”
For the aforesaid reasons I hold that the Additional District Judge ofMarawila has correctly answered the issues which were framed in thiscase. He was entitled to answer issue 10 to the effect that it does notarise, for, even if it was answered in the affirmative, it is wholly irrelevantin view of the reasons which I have adumbrated in this judgment. It isto be noted that under issue 9, two issues have been wronglycombined to render them compound issues and he has answered oneof them in the affirmative – the first issue. He has answered issue 11correctly that the plaintiff is entitled to have and maintain the presentlyconstituted action. I hold that the District Judge was perfectly entitledto have effected a correction of the misdescription in one name in thecaption of the plaint at the stage that he effected the amendment in theexercise of his inherent powers without waiting for the stage of the trialof the action to exercise powers that were available to him to effectamendments in pleading in terms of section 93 of this Civil ProcedureCode. The amendment effected does not fall within the category of the
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Jayasinghe v. Gnanawalhie Menike (Jayasuriya, J.)
417
amendments contemplated in section 93 of the Civil Procedure Codeand he was entitled to effect the particular amendment and thereaftertransmit the record to the Additional District Judge for the holding ofthe trial. I hold that there is no merit in this appeal and the solitarymatter that was argued before me was the issue which is raised in thisjudgment. I proceed to dismiss the appeal with costs in a sum ofRs. 2100/- payable by the defendant-appellant to the plaintiff-respondent.
Appeal dismissed.