CHAMINDA

Vs.

JANASHAKTHI GENERAL INSURANCE LTD

SUPREME COURT
JAYAWARDENA, J.
DEHIDENIYA, J.
AMARASEKARA, J.
SC/APPEAU134/2018
CHC/275/13/MR
APRIL 29, 2019

Jurisdictional objection-Judicature Act, section 39-Civil Procedure Code, sections 75(d), 76, 146, 150-Evidence Ordinance, section 58- Arbitration Act, No. 11 of 1995, section 5-Jurisdiction of the Commercial High Court-Withdrawal of an admission-Waiver of the objection to jurisdiction-Patent and latent want of jurisdiction

The plaintiff instituted action in the Commercial High Court on the refusal of the defendant to make payment on an insurance policy. The defendant in its answer and at the point of raising issues, admitted the jurisdiction of the court. During cross-examination, the defendant having marked the arbitration clause contained in the insurance policy, moved to raise a jurisdictional issue. The High Court decided it as a preliminary issue and dismissed the plaintiff's action. The plaintiff appealed to the Supreme Court.

Held:

1. When there is a total or patent lack of jurisdiction, parties cannot confer jurisdiction on the court. When it is a contingent or latent lack of jurisdiction, the objection to jurisdiction must be taken at the earliest opportunity.

2. Latent lack of jurisdiction can be cured by conduct indicative of the parties' intention to subject themselves to the authority of the relevant court. Once the latent lack of jurisdiction is cured, a party is estopped from denying jurisdiction at a later stage.

3. The limitation imposed by section 5 of the Arbitration Act is contingent upon whether or not there is an objection to the jurisdiction of the court. When there is no total want of jurisdiction and with the admission of jurisdiction, the trial court was fully clothed with jurisdiction.

4. Admissions in law may be withdrawn but admissions of facts cannot be withdrawn except at the discretion of the court for good reason. The admission of jurisdiction by the defendant was an admission of the factual position that the defendant did not object to the jurisdiction of the court and therefore could not be withdrawn at a later stage.

Cases referred to:

1. P. Beatrice Perera v. Commissioner of National Housing 77 NLR 361 at 366
2. Lily Fernando v. Ronald (alias R. A. Vanlangenberg) 75 NLR 231
3. Jaladeen v. Rajaratnam [1986] 2 Sri LR 201
4. David Appuhamy v. Yassassi thero [1987] 1 Sri LR 253
5. Paramasothy v. Nagalingam [1980] 2 Sri LR 34
6. Navaratnasingham v. Arumugam and another [1980] 2 Sri LR 1
7. Edmund Perera v. Nimalaratne and others [2005] 3 Sri LR 68

8. Don Tilakaratne v. Indra Priyadarshanie Mandawala [2011] 2 Sri LR260
9. Mariammai v. Pethrupillai 21 NLR 200
10. Solomon Ranaweera v. Solomon Singho 79 NLR 136
11. Uvais v. Punyawathie [1993] 2 Sri LR 46
12. Padmini v. Jayaseeli [2004] 3 Sri LR 13
13. Hemawathie Sahabandu v. Gunasekara [2006] 2 Sri LR 208
14. Kandasamy v. Gnanasekaran (1983) 2 SPLR 1 (SC)
15. Ranasinghe v. Premawardena [1985] 1 Sri LR 63
16. Farquharson v. Morgan (1984) 63 L.J.K. B 474
17. Baby v. Banda [1999] 3 Sri LR 416

APPEAL from the Judgment of the Commercial High Court of Colombo.

J.M. Wijebandera with Shalani Chandrasena and Sharin Shehani for the Plaintiff-Appellant.

Rajindra Jayasinghe for the Defendant-Respondent.

cur. adv. vult.

October 9, 2019

AMARASEKARA, J.

The Plaintiff-Appellant (hereinafter referred to as the Plaintiff) instituted an action in the Commercial High Court of the Western Province against the Defendant Respondent (hereinafter referred to as the Defendant) seeking relief as prayed for in the plaint dated 23rd August 2013. The cause of action was based on the refusal of payment on a demand made upon an insurance policy that existed between the parties. Even though there was no objection but instead an admission with regard to the jurisdiction of the Commercial High Court in the answer as well as at the commence