Kurunegala Merchants Ltd and Others v Gunawardenane
KURUNEGALA MERCHANTS LTD AND OTHERSv
GUNAWARDANECOURT OF APPEALDISSANAYAKE, J.
CA 181/80 F.
DC KURUNEGALA 6514/SPL.
OCTOBER 28, 2002.
Constitution, Article, 114(1), 114(4), 114(6)-Evidence Ordinance, sections 91and 114- Trial before the District Judge – Judgment not delivered – DistrictJudge assuming duties as High Court Judge in a different jurisdiction – Notgazetted to hear and conclude the case? – Is the judgment a nullity? -Presumption in relation to official and legal acts.
Action was instituted in the District Court of Kurunegala where Mr. Suwarisfunctioned as District Judge who heard the case. It was concluded on19.6.1976. He was transferred to Panadura. Mr Swans was thereafterpromoted as High Court Judge, Gampaha and the judgment was signed by MrSuwaris when he was functioning as a High Court Judge. Mr. Swaris was notgazetted or appointed as a District Judge of Kurunegala to write the judgment.When the appeal was taken up the respondent – appellant raised a preliminarypoint of law in that the learned District Judge who wrote the judgment did nothave jurisdiction to write this said judgment.
Held: Per Somawansa, J.
“It appears to me that if in fact Mr. Swaris was not appointed by the JSC to hearand determine this case as a District Judge of Kurunegala after his transfer toPanadura this fact would have been known in 1976 during the course of thehearing and an appropriate objection could have been taken. The absence ofany objection by the Counsel who appeared in the original court when furtherproceedings were taken up before Mr. Swaris upon his transfer to Panadurawould indicate that there was no basis for such an objection.
Sri Lanka Law Reports
 3 Sri LR
There is a presumption that official and legal acts are regularly andcorrectly performed. This objection has not been taken at the earlierpossible opportunity and not even in the petition of appeal. It is ratherlate in the day to take such an objection.
Article 114(1) read with Article 114(6) of the Constitution provides for theJSC to appoint a holder of the office of the Judge of the High Court asan additional District Judge to enable him or her to continue hearing acase commenced before him or her as a judicial officer and to deliverjudgment in that case,
In the circumstances of this case, it could be presumed that he was dulyappointed to hear and determine the instant case even after his transferout of the said station.
The fact that a person acts in a public capacity is prima facie evidenceof his having been duly authorized so to do, it is very unlikely that anyonewould usurp a public position.
The respondent-appellants have failed to show that their substantialrights have been prejudiced or occasioned a failure of justice Article 138.
APPEAL from the judgment of the District Court of Kurunegala on a
preliminary objection taken that the judgment is a nullity.
Cases referred to:
Jayasena v Assistant Commissioner of Agrarian Services 1996 2 Sri LR 70
Hebtulabhoy & Co. Ltd v D.C.M. Fernando, High Court Judge and others1988 1 Sri LR 91
Romesh de Silva, P.C. with Palitha Kumarasinghe for respondent-appellants
P.A.D. Samarasekera, P.C. with Harsha Soza for petitioner-respondent
August 29, 2003SOMAWANSA. J,
When this appeal was taken up for hearing counsel for the 01respondent-appellants raised a preliminary point of law in that thelearned District Judge who wrote the judgment did not havejurisdiction to write the said order. On this preliminary point of lawparties resolved to tender written submissions and accordingly bothparties have tendered their written submissions.
Kurunegala Merchants Ltd and Others v Gunawardene
The relevant facts pertaining to the preliminary point of lawraised are as follows: The instant action was instituted in the DistrictCourt of Kurunegala where Mr. J.B.S.Swaris functioned as DistrictJudge and the case proceeded to trial before him. According tojournal entry 26 dated 29.12.1975 there is the followingendorsement. “I am on transfer to Panadura as from 01.01.1976call case before District Judge on 09.01.1976 to fix a date forfurther trial”. Subsequently the case was fixed for trial on 06.
Therefore the case record revealed that the trial 10proceeded before Mr. Swaris on several dates apparently in theDistrict Court of Kurunegala and the inquiry was concluded on
After the addresses were made by counsel and
documents filed on 28.02.1976 directions had been given by thethen District Judge of Kurunegala to forward the case record to Mr.Swaris, District Judge of Colombo forthwith. It appears that theorder written and signed by Mr. Swaris dated 30.04.80 had beenreturned to the District Court of Kurunegala from the High Court ofGampaha where Mr. Swaris was functioning as the High CourtJudge.20
It is contended by the counsel for the respondents-appellantsthat it is only the District Judge of the District who can hear and orjudge a case instituted in that district. In the instant case themoment Mr. Swaris who was the District Judge of Kurunegala wastransferred as District Judge of Panadura he lost jurisdiction to hearand determine the cases as District Judge of Kurunegala and in thecircumstances Mr. Swaris had to be appointed as a District Judgeof Kurunegala by the Judicial Service Commission if he were tohave jurisdiction to hear and determine the case. In the instant caseit is alleged by the respondents-appellants that Mr. Swaris was not 30appointed or gazetted as a District Judge of Kurunegala after histransfer to Panadura and therefore he had no jurisdiction to act asDistrict Judge of Kurunegala to hear and conclude the instantaction. Furthermore, it is alleged that the record was sent to Mr.Swaris as District Judge of Colombo to write the judgment. Mr.Swaris was then appointed as a High Court Judge by the President.However Mr. Swaris was not gazetted or appointed as a DistrictJudge of Kurunegala to write the judgment. In the circumstances itis contended by the counsel for the respondents-appellants that the
Sri Lanka Law Reports
12004] 3 Sri L.R
said order prepared and written by Mr. Swaris is in fact a nullity andshould be set aside.
It may be noted here that the solitary objection to jurisdictiontaken in paragraph 9(ii) of the petition of appeal is as follows:
“though the case was concluded on 28th
February 1979 the order was delivered only on the 2nd May1980 when he did not have jurisdiction to deliver the saidorder'’.
Hence it could be seen that in the petition of appeal there is noobjection raised on the basis that the learned District Judge was notappointed or gazetted to hear and determine the case but theobjection is purely with regard to the learned District Judge’sjurisdiction to deliver the judgment on 2nd May 1980. However atthe hearing of this appeal, it was also argued by the counsel for therespondents-appellants that Mr. Swaris has not been appointed orgazetted as District Judge of Kurunegala to hear and deliverjudgment after he was transferred from the District Court ofKurunegala. On a perusal of the record while conceding the factthat the record does not contain any entry remark or document toshow that Mr. Swaris has been appointed or gazetted as anAdditional District Judge of Kurunegala, appears to me that if in,fact Mr. Swaris was not appointed by the Judicial ServiceCommission to hear and determine this case as a District Judge ofKurunegala after his transfer to Panadura this fact would have beenknown in 1976 during the course of the hearing and an appropriateobjection would have been taken. In any event, Mr. Swaris who wasfunctioning as District Judge of Panadura would not have left hisstation on a working day and come all the way to the District CourtKurunegala to hear the instant case unless he was instructed to doso by the Judicial Service Commission. Certainly he would havehad to obtain permission from the Judicial Service Commission toleave his station and function as a District Judge in Kurunegala.The absence of any objection by the counsel who appeared in theoriginal Court when further proceedings were taken up before Mr.Swaris after his transfer to Panadura would indicate that there wasno basis for such an objection.
Kurunegala Merchants Ltd and Others v Gunawardene
Indeed as counsel for the petitioner-respondent submits ifsuch an objection to jurisdiction had been taken at the earliestpossible opportunity it would have been possible for the petitioner-respondent to have effectively met it rather than over 20 years later
when the Judicial Service Commission is also not in a position togive a definite reply on this question of appointment and gazettingMr. Swaris to function as a District Judge of Kurunegala. In thecase Jayaweera v. Assistant Commissioner of Agrarian Services 0)it was held that there is a presumption that official and legal acts areregularly and correctly performed.
I am of the view that objections to the learned District Judge’sjurisdiction to hear and determine the instant case not having beentaken at the earliest possible opportunity and not even in thepetition of appeal, it is rather late in the day to take up such anobjection. It is also pertinent to consider at this point the provisionsof section 114(d) and explanation 01 to section 91 of the EvidenceOrdinance.
Section 114 and Illustration (d) of the said sectionreads as follows:
‘The court may presume the existence of any fact which itthinks likely to have happened, regard being had to thecommon course of natural events, human conduct, andpublic and private business in their relation to the facts ofthe particular case”.
“that judicial and official acts have been regularlyperformed:
E.R.S.R. Coomaraswamy on Law of Evidence – First Editionat page 250 states:
“The Court may presume that judicial and official actshave been regularly performed: But the Court mustalso have regard to such facts as that a judicial act, theregularity of which is in question, was performed underexceptional circumstances.
Sri Lanka Law Reports
 3 Sri L.R
This presumption is based on the maxim, Omniapraesumuntur rite solemniter esse act, that is all thingsare presumed to have been done in the due and wantedmanner. The maxim acquires great force when it isapplied to public or official acts. Best says that the trueprinciple, intended to be conveyed by this maxim,seems to be that there is a general disposition in courtsof justice to uphold official, judicial and other acts, ratherthan to render them inoperative. Therefore, where thereis general evidence of acts having been legally and120
regularly done, courts tend to dispense with proof ofcircumstances, strictly speaking essential to the validityof those acts, and by which they were probablyaccompanied in most cases, although in others theassumption rests solely on grounds of public policy.
There is, for example, a presumption that any person,who acts in a public office was duly appointed orauthorised to do so. The presumption holds good inproceedings of every description, civil and criminal. Butthe presumption does not apply to private offices. With 130regard to public offices, there is a further presumptionthat the duties of those who fill them are performedwith regularity. A presumption also arises under thissection as to the legality and correctness of theproceedings of a Court”.
Explanation 1 to section 91 of the Evidence Ordinancereads as follows:
“When a public officer is required by law to beappointed in writing, and when it is shown that anyparticular person has acted as such officer, the writing140
by which he is appointed need not be proved”.
Again E.R.S.R. Coomaraswamy on Law of Evidence – FirstEdition at page 265 states:
This exception is in accordance with the English rule on thepoint. The fact that a person acts in a public capacity is prima facieevidence of his having been duly authorised so to do. It is veryunlikely that anyone would usurp a public position, or would be
Kurunegala Merchants Ltd and Others v Gunawardene
permitted to fill, even if he were so disposed. Consequently, it is notnecessary, at least in the first instance, to produce the documentappointing him, or account for its non-production. Thus, in a chargeof obstructing a public servant in the discharge of his public duties,if the public servant states that he holds the appointment inquestion and his assertion is not contradicted, there is no need forhim to produce his letter of appointment”.
Article 114(1) read with Article 114(6) of the Constitutionprovides for the Judicial Service Commission to appoint a holder ofthe office of the Judge of the High Court as ah Additional DistrictJudge to enable him or her to continue hearing a case commencedbefore him or her as a judicial officer and to deliver judgment in thatcase.
The said provisions of the Constitution were considered in thecase of Hebtulabhoy & Co. Ltd v A.L.M. Fernando High CourtJudge and Others. The facts were:
“The 1st respondent as District Judge heard and reservedorder in a case where the petitioner was plaintiff. Before the orderwas delivered the 1st respondent was appointed as a High CourtJudge by His Excellency the President. Subsequently, the JudicialService Commission appointed the 1st respondent as an AdditionalDistrict Judge to deliver judgment in certain cases heard by him asDistrict Judge. The petitioner’s case was that when the 1strespondent was already functioning as a High Court Judge, theSecretary to the Commission (5th respondent) communicated thedecision to the 1st respondent stating “I hereby appoint you asAdditional District Judge, Colombo to deliver judgment in cases
Noin addition to your other duties as pleased by the Judicial
Service Commission”. The 1st respondent subsequently deliveredjudgment in the petitioner’s case making an order against him. Heapplied to the Court of Appeal to quash the order on the ground thatthe appointment by the J.S.C. was invalid.”
“(1) The Judicial Service Commission was vested withpower under Article 114 (1) read with Article 114(6) of theConstitution to appoint the 1 st respondent who at the timehad been appointed and was holding the office of a Judgeof the High Court, as Additional District Judge of Colombo
Sri Lanka Law Reports
(2004] 3 Sri L.R
in order to deliver judgment in case No. 2319/Spl of theDistrict Court of Colombo.
The 5th respondent has no such power under Article114(4) of the Constitution in the instant case, however theappointment of the 1 st respondent was made not by him but 190the Judicial Service Commission which appointment wascommunicated by him to the 1st respondent by letter XI.
It is legally competent for the holder of the office ofJudge of the High Court to function as a ‘judicial officer’upon being appointed as such by the Judicial ServiceCommission to enable him to deliver judgment and/or tocontinue and conclude a case commenced by himpreviously as a ‘judicial officer’
In the instant case there is no material to ascertain as to when 200Mr. Swaris was appointed a Judge of the High Court. The ordermade by Mr. Swaris in this case has been signed by Mr. Swaris on30.04.80.The said order had been delivered in the District Court ofKurunegala on 2nd May 1980. As to whether Mr. Swaris wasappointed a Judge of the High Court on or prior to 30.04.80 has notbeen established. If he was appointed a Judge of the High Court on01.05.80 then there was no need for another appointment to granthim jurisdiction to write the said order for as stated above it couldbe presumed that he was duly appointed to hear and determine theinstant case as a District Judge of Kurunegala even after his 210transfer out of the said station.
I might also mention here the provisions contained in provisoto Article 138 of the Constitution of the Republic which providesthat:
“Provided that no judgment, decree or order of any courtshall be reversed or varied on account of any error, defector irregularity, which has not prejudiced the substantialrights of the parties or occasioned a failure of justice”.
In the instant appeal the respondents-appellants have failed toshow that their substantial rights have been prejudiced or 220occasioned a failure of justice.
CA Leelawathie and Another v Commissioner of National Housing 175
For the above reasons, I would reject the preliminary point oflaw raised by the respondents-appellants and hold the mainappeal should be listed for hearing.
DISSANAYAKE, J.I agree.
Preliminary point of law rejected.Main appeal to be listed for hearing.