004-SLLR-SLLR-2010-V-2-STASSEN-EXPORTS-LIMITED-v.-BROOKE-BOND-GROUP-LTD.-AND-TWO-OTHERS.pdf

Sgd./-
HIGH COURT JUDGE (CIVIL)”
Objection was for the first time taken to these docu-ments only on 16th February 1998 as would appear from theproceedings of that date quoted below:-
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Stassen Exports Limited v. Brooke Bond Group Ltd., and Two others
(Saleem Marsoof, J.)
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It is clear from the above quoted proceedings of theCommercial High Court in this case that on 19th December1998, when after the conclusion of the cross-examinationand re-examination of witness Jayawardene, the case for theAppellant was closed by learned Counsel for the Appellantmarking in evidence A1 to A52, no objection was taken bySenior Counsel for Brooke Bond to the reception in evidence ofthe said documents, and on the next date when Brooke Bondwas expected to file its affidavit and/or call its witnesses,learned Senior Counsel for Brooke Bond had first informedCourt that it is not intended to lead any evidence on behalfof Brooke Bond, and that it does not object to any of thedocuments of the Appellant except the ones marked A5 to A8,A11 to A13, A15 to A28, A31 to A41 and A44 to A49. LearnedSenior Counsel for Brooke Bond also took the opportunity tocorrect the proceedings of the previous date, namely, that of19th December 1995, and learned President’s Counsel for theAppellant did not have any objections to these corrections,which fact was also recorded, after which learned SeniorCounsel for Brooke Bond had closed the case for theDefence. It is trite law that as Samarakoon, C.J. observedin Sri Lanka Ports Authority and Another v. Jugolinija – BoatEast8' at 23-24, “if no objection is taken when at the closeof a case documents are read in evidence, they are evidencefor all purposes of the law. ” This is the cursus curiae of theoriginal courts. See, Silva v. KinderslePAdaicappa Chettiarv. Thomas Cook and Sonfl0> Perera v. Seyed MohomedU);Balapitiya Cunananda Thero v. Talatte Methananda Theny,2);Cinemas Limited v. Sounderarajanll3). Since the documentsmarked A1 to A52 had been read in evidence on 19thDecember 1998 at the close of the Appellant’s case withoutany objection from Brooke Bond, they cannot legitimately
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12010] 2 SRI LR.
be objected to on the next date, particularly because seriousprejudice could thereby be caused to the Appellant by thebelated nature of the Objection. I therefore hold that thelearned High Court Judge erred in sustaining the saidobjection.
The learned High Court Judge has also inexplicably failedto consider the implication of the fact that the belated objectionto the admissibility of the Appellant’s documents being• confined to the documents marked A5 to A8, A11 to A13, A15to A28, A31 to A41 and A44 to A49 which means that therewere a large number of documents to which no-objectionat all had been taken by Brooke Bond. In fact, documentsmarked A1 to A4, A9, A10, A14, A29, A30, A42, A43 and A50to A52 were not objected to by. learned Counsel for BrookeBond even belatedly. It is noteworthy that when learnedPresident’s Counsel for the Appellant closed the case for theAppellant on 19th December 1997, no objection was takenon behalf of Brooke Bond to any of the documents markedA1 to A52 which were sought to be read in evidence. Assuch it was incumbent on the learned High Court Judge toconsider whether on the basis of the admissions recorded, thecontents of the affidavit of Jayawardene, and the aforesaidun-objected documents, it is possible to award one or more ofthe relief prayed for by the Appellant. The learned High CourtJudge, regrettably, has not undertaken such an evaluation,and the only reason adduced in his judgment for not taking toconsideration the affidavit of Jayawardene is that he “couldnot have had any personal knowledge relating to the severalmatters deposed to in the affidavit”. The learned High CourtJudge has formed this opinion on the basis of the very briefcross-examination of Jayawardene, in the course of which
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Stassen Exports Limited v. Brooke Bond Group Ltd., and Two others
(Saleem Marsoof, J.)
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it was elicited that the said Jayawardene had never beenemployed or had and any dealings with Brooke Bond or EasternBrokers Ltd. However, the said cross-examination clearlyclearly reveals that Jayawardene was the Managing Direc-tor of the Appellant Company since its incorporation in1977, and was in the tea trade. Jayawardene has in para-graph 1 of his affidavit expressly declared that he deposedto the facts contained therein from his personal knowledgeand from documents available to him, copies of which he hasprocduced marked A1 to A52. In his brief cross-examinationof Jayawardene, leaned Senior Counsel for Brooke Bond madeno endeavor to probe the extent of the witnesses personalknowledge of matters deposed to by him in the affidavit, andthe strange proposition that he had absolutely no personalknowledge of any of such matters was never put to him incross-examination. In these circumstances, I am of theopinion that it is not reasonable to conclude from this cross-examination that Jayawardene had no personal knowledge ofthe matters he had deposed to in the affidavit, and to refuseto consider the contents thereof in deciding the case at hand.I hold that the learned Commercial High Court Judge had nojustification for the rejection of the affidavit of the affidavit inthis manner.
I have at the commencement of this judgment summarizedthe facts admitted by the parties at the trial, and also sum-marized the primary issues regarding which the parties wereat variance, and in view of my finding that the CommercialHigh Court had no justification in law for rejecting the affidavitof Jayawardene or any of the documents tendered with thesaid affidavit, the question arises as to whether if the rejectedevidence had been received, the ultimate decision of theCommercial High Court would have been different. This is a
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[2010] 2 SRIL.R.
very material consideration particularly in the light of Section167 of the Evidence Ordinance, which provides that –
“The improper admission or rejection of evidence shallnot be ground of itself for a new trial or reversal of anydecisions in any case, if it shall appear to the court beforewhich such objection is raised that, independently of theevidence objected to and admitted, there was sufficientevidence to justify the decision, or that, if the rejectedevidence had been received, it ought not to have variedthe decision.”
Having examined the recorded admissions, the issues, aswell as the documents marked A1 to A52, I am clearly of theopinion that had the learned Commercial High Court Judgetaken the said documents into consideration, there was astrong likelihood that the Court would not have dismissedthe application of the Appellant and would have granted oneor more of the relief prayed for by the Appellant. I hastento add that this is a view formed by me without the benefitof submissions of Counsel on the questions of intellectualproperty rights that arise in this case, and that therefore theCommercial High Court is free to arrive at its findings on theissues already raised, if they are adopted without objection,or on fresh issues that may be formulated by Court, at a freshtrial, For the aforesaid reasons, I am of the opinion that thiscase should be remitted to the commercial High Court forfresh trial.
Before parting with this judgment, I wish to add thatalthough Notice of Appeal and Petition of Appeal in this casewere issued respectively on 5th November 1999 and 17thDecember 1999, and the matter was first fixed for hearing
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Stassen Exports Limited v. Brooke Bond Group Ltd., and Turn others
(Saleem Mdrsoof, J.)
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in the Supreme Court on 1st August 2003, argument hasthereafter been repeatedly postponed in view of the submissionmade by learned President’s Counsel for the Appellant,without any objection from the learned Counsel for BrookBonds, that the outcome of the appeal then pending in theCourt of Appeal in C.A. Appeal No. 961/91 (F), which arosefrom Brooke Bond’s action against Akbar Brothers Exporters(Pvt) Ltd., would have a bearing on this appeal. However, therehas been no intimation to this Court of the outcome of thesaid case, and the findings of the Court of Appeal in the saidcase could not be taken into consideration in determiningthis appeal.
Accordingly, I make order setting aside the judgement ofthe Commercial High Court of Colombo dated 22nd October1999 and remitting the case back for fresh trial. I awardto the Appellant a sum of Rs. 15,000 as the costs of thisappeal.
BANDARANAYAKA, J. – I agree.
BALAPATABENDI, J. – I agree.
appeal allowed.
Trial de Novo ordered.