RANMENIKA AND ANOTHER

Vs.

WALLIETHANA AND OTHERS

COURT OF APPEAL
J. DE SILVA, J.
CA/471/2000 (F)
DC ANURADHAPURA 15467/L
JANUARY 18, 2019

Declaration of right to possess-Doctrine of res judicata-Doctrine of issue estoppel-Evidence Ordinance, sections 40, 100-Possessory action-Prescription Ordinance, No. 22 of 1871, section 4.

The plaintifffiled action seeking a declaration that she as the lawful permit holder is entitled to possess the land in suit, ejectment of the defendant therefrom and damages. The District Court entered judgment for the plaintiff. The defendant appealed to the Court of Appeal mainly on the ground of resjudicata.

Held:

1. Section 40 of the Evidence Ordinance recognises the doctrine of res judicata and the following constituents must be present for it to apply:

(i) The former action must have been a regular action

(II) The two actions must have been between the same parties or their representatives in interest (privies)

(iii) The previous decision must be what in law is deemed such

(Iv) The particular judicial decision must have been in fact pronounced as alleged

(v) The previous judgment must be a final judgment

(vi) The same question or identical causes of action must have been involved in both actions

(vii) The judicial tribunal pronouncing the decision must have had competent jurisdiction in that behalf

(viii) The judgment should not have been obtained by fraud or collusion

(ix) If it is a foreign judgment, it should have been passed in accordance with the principles of natural justice

2. The doctrine of issue estoppel is part of the English Law of Evidence in civil cases and in view of section 100 of the Evidence Ordinance it is part of our law in civil cases.

3. In a possessory action under section 4 of the Prescription Ordinance the question of title is immaterial. The plaintiff must prove possession ut dominus with the intention of holding and dealing with the property as his own.

Cases referred to:

1. Thoday v. Thoday [(1964) 1 All ER 341, (1964) 2 WLR 371, (1964) P.181]
2. Arnold v. National Westminster Bank PLC (1991) 2 AC 93
3. Director of Public Prosecutions v. Humphrys (1976) 2 All ER 497
4. Mills v. Cooper (1967) 2 QB 459
5. Penner v. Niagara (Regional Police Authority Service Board) and others (2013) 2 SCR 125
6. Perera v. Perera 39 CLW 100 at 101
7. Fernando v. Fernando 13 NLR 164 at 165
8. Annamaly Chetty v. Thornhill 34 NLR 381
9. Scriven & Co v. Perera 19 NLR 503

APPEAL from the Judgment of the District Court of Anuradhapura.

C. Sooriyaarachchi with C. Ratnayake for the Substituted Defendant-Appellant.

Sunil Watagala with Manodya Galpayage for the Substituted Plaintiff-Respondent.

cur. adv. vult

September 23, 2019

J. DE SILVA, J.

This is an appeal against the judgment of the learned District Judge of Anuradhapura dated 06.07.2000.

The Plaintiff-Appellant filed the above styled action and sought a declaration that she is entitled to possess the land more fully described

in the schedule to the plaint as the lawful lessee, an order of eviction against the Defendant-Respondent and all those possessing under her, damages and costs.

The learned District Judge entered judgment as prayed for in the plaint and hence this appeal. The learned counsel for the Substituted Defendant-Appellant (Appellant) sought to assail the judgment on four main grounds.

Res Judicata

The Appellant submits that in view of the previous decisions in D.C. Anuradhapura case No. 10964/L, Court of Appeal case No. CA 58/96(F) and D.C. Anuradhapura case No. 14802/L the Plaintiff-Respondent (Respondent) cannot maintain the action on the doctrine of res judicata.

The learned District Judge held that this Issue was answered in favour of the Respondent by his predecessor by order dated 25.09.1996 and as such the Appellant is estopped from raising this issue again.

There is doubt expressed by some jurists as to whether the doctrine of issue estoppel is covered by Section 40 of the