( 89 )
Present : Bertram C.J, and De Sampayo J.
WIJEKOON v. PANDITA et al.
211—D. G. GaUe, 15,249.
Onus of proof—English low to supplement the Evidence Act.
Where a plaintiff comes before a Court, alleging that a wrong hasbeen committed and claiming damages in respect of the wrong, heshould pnt his case before the Court and prove his damages beforethe defendant is called upon, even though the defendant puts ina plea which it is for him to substantiate.
1facts appear from the judgment.
A. St. 7. Jayawardene and Samardwickreme, for the appellants.
Bawa, K.C., for the respondent.
November 1, 1918. Bebtbam C.J.—
This is a case in which the present position is extremely unsatis-factory. A judgment has been given upon imperfect material, andidle merits of the case have not really been inquired into. Thereason of this is that in the Court below a dispute arose as to the1onus of proof. The claim was a claim of what used to be calledtrespass. It was made in respect of the unlawful extraction ofplumbago. The defendants pleaded, in effect, leave and license.There was also in the nature of the case a claim for damages, andthe question as to the amount of these damages. In the plaint theplaintiff expressly alleged a forcible possession. When the casecame on for hearing, the plaintiff claimed that it was for thedefendants, as they had alleged leave and license, to begin. Thedefendants, on the other side, urged that, as the essence of the caseof the plaintiff was forcible and wrongful possession, it was for himto show the force and the wrong complained of.
The learned District Judge came to the conclusion that it wasfor the defendants, as they alleged leave and license, to make outtheir plea, and called upon them to begin. He appears to haveappreciated the difficulty of his ruling, and its application to the
question of damages. He apparently anticipated that the defend-ants would observe his ruling, and would call evidence of the leaveand license; that, having their witnesses in the box, and beingpeculiarly in possession of information aS to the real amount of thedamages, if any, would lead evidence on that point also, and thatit would only be necessary for the plaintiff to lead evidence on thequestion of damages, if the evidence led by the defendants wasfound to be inadequate or unsatisfactory. Events, however, didnot take this turn. Instead of observing the ruling of the DistrictJudge, the defendants contested its validity and desired to appeal,but the Judge thought it better that the case should proceed. Thedifficulty of the matter then became apparent, because the questionof damages had to be determined, and it was necessary to haveevidence on the question of damages. Evidence was given by theplaintiff, and this evidence was not cross-examined, and, finally,the District Judge entered up judgment for the plaintiff on thebasis of the plaintiff's evidence.
It appears that the substantial ground on which the order of theDistrict Judge was contested, both here and in the Court below, wasnot the fact_ that it was necessary to decide the issue as to damagesas well as the issue as to leave and license, but that the plaintiffhaving alleged forcible possession was bound to prove it. I do notthink myself that this was a sound objection. It was the onlyobjection the District Judge had before him, and I think that onthat. particular point his decision was right. On looking into theauthorities here to-day, however, a line of cases has been observedin which the question was discussed as to what should be theprocedure where a plaintiff brought a claim in trespass, and thedefendant pleaded such a plea as the present—leave and license—but where it was also necessary for the plaintiff to substantiatethe amount of his damages. That question was very fully discussedin the case of Mercer v. Whall.1 That case has always been takenas laying down the rule' of practice in the matter, and I think itindicates a convenient rule, which should be observed in this Colony.It may be taken to be a point in which we are entitled to look atthe English law of evidence for the purpose of supplementing theprovisions of the Evidence Act. There, however, the questionarose, not – where two counsel were each endeavouring to shiftthe onus of proof on to the other,, but where each was contending forthe' right to begin so as to be in a position to address the jury onthe facts of the case. It is very difficult to apply this decision to acase like the present, where both counsel were strenuously endeavour-ing to impose the burden of beginning on to the, other. Nevertheless,I think it is practically impossible to draw any distinction betweenthe considerations which govern the onus of proof and the consider-ations which govern the right to. begin. It clearly is desirable that
1 (1845) E, R. 5 Q. B. 477.
( M )
where a plaintiff comes before a Court alleging that a wrong hasbeen committed and claiming damages in respect of the wrong,he should put his case before the Court and prove his damagesbefore the defendant is called upon, even though the defendant putsin a plea which it is for him to substantiate.
I do not think, however, that that principle has ever beenenunciated expressly in this Colony before, and under all thecircumstances of the case, the present position being unsatisfactory,and the merits of the case not having been fully inquired into, I amof opinion that the right order would be that the judgment of theDistrict Judge should be set aside, and the case sent back for a newtrial. The costs both here and below should be costs in the cause.
Db Sampayo J.—I agree.
WIJEKOON v. PANDITA et al