RANJANI

Vs.

ANANDA

COURT OF APPEAL
GOONERATNE, J.
SAMAYAWARDHENA, J.
CN/PHC/85/2015
HC COLOMBO 167/2011 (Rev)
MC COLOMBO 53023/5
AUGUST 2, 2019

Res judicata-Urban Development Authority Act, No. 41 of 1978, sections 8A-8H, 8J, 23(5) and 28A(3)-Delegation of power-Demolition of unauthorised construction

The respondent filed action against the appellant in the Magistrate's Court under section 28(A)(3) of the Urban Development Authority Law seeking an order for demolition of an unauthorised construction by the appellant. The Magistrata's Court dismissed the application directing that the case be reinstituted against the present owner of the building, the husband of the appellant. In revision, the High Court set aside the order of the Magistrate's Court on the basis that the appellant is estopped from denying her ownership to the building. The appellant invoked the jurisdiction of the Court of Appeal to set aside the said order of the High Court. The appellant's main contention before the Court of Appeal was that the matter is res judicata.

Held:

1. The thrust of the doctrine of res judicata is to prevent a party from re-litigating an issue or taking up a defence which has already been determined or which could have previously been litigated in order to confer finality to the dispute. However, res judicata will not apply in this instance as the earlier action was not disposed of on the merits.

2. Six principles which make up the doctrine of res judicata are identified in the case of Virgin Atlantic Airways Ltd. v. Zodiac Seats UK Ltd (2013) UKSC 46:

(i) A party is prevented from bringing subsequent proceedings to challenge an outcome that has already been decided (cause of action estoppel).

(ii) If a claimant succeeds in the first action and does not appeal the outcome, he may not bring a subsequent action on the same cause of action.

(iii) The doctrine of merger treats a cause of action as having been extinguished once judgment has been provided and, accordingly, the claimant's only right is the judgment itself.

(iv) A party may not bring subsequent proceedings on an issue that has already been determined (issue estoppel).

(v) A party may not bring subsequent proceedings which should and could have been dealt with in earlier proceedings.

(vi) There is a general procedural rule against abusive proceedings.

3. In terms of section 28A(3)(a) of the UDA Law, any person who fails to comply with any requirement contained in any written notice issued under subsection (1) of section 28A of the Act can be brought before court.

4. The provisions contained in section 28A(3) fall within the scope of the term "planning" and therefore the powers, duties and functions referred to therein could be delegated by the UDA to any officer of a local authority under section 23(5) of the UDA Act.

5. Part IIA of the Act provides that in terms of section 8J of the Act, development activity in any development area can be undertaken only under and in terms of a permit issued by the UDA. The appellant has failed to produce a valid permit issued by the UDA.

Cases referred to:

1. Virgin Atlantic Airways Ltd v. Zodiac Seats UK Ltd (2013) UKSC 46
2. Stassen Exports Ltd v. Lipton Ltd and another [2009) 2 Sri LR 172 at 186
3. Sivapragasam and others v. Perimpanayagam (CA/PHC/2/97)
4. Piyasena v. Wijesooriya (CA/APPEAL/119/90, CA Minutes of 04.11.1994)

5. M.P. Selvam v. K.H. Perera (SC/APPEAL/123/09)
6. Urban Development Authority v. S.W. Kulasiri (CA No. 2226/2003)

APPEAL from the Judgment of the High Court of Colombo.

P.K. Prince Perera with lshani Gunatilake for the Respondent-Respondent-Appellant.

Neville Abeyratne, P.C., with Kaushalya Abeyratne Dias for the Applicant-Petitioner-Respondent.

cur. adv. vult.

September 23, 2019

GOONERATNE, J.

The Applicant-Petitioner-Respondent (hereinafter referred to as the Respondent) filed action against t