KULASIRIWARDENA VS. JAYASINGHE AND OTHERS

KULASIRIWARDENA
VS.
JAYASINGHE AND OTHERS

SUPREME COURT
WANASUNDARA, PC.J
BUWANEKA ALUVIHARE, PC J
CHITRASIRI, J
SC APPEAL 146/2012
SCHCLA 89/2012
WP/HCCA/LA 89/2012
DC GAMPAHA CASE NO. 1457/L
FEBRUARY 03, 2016

Civil Procedure Code Section 154 - Section 154(3) - Evidence Ordinance Section 11 - Sections 17, 27, Section 58, Section 91. Section 32 -Admissibility - Procedure - Admissions under Section 17 Evidence Ordinance and admissions recorded by contesting parties - of long established practice - Difference.

The Plaintiff Petitioner Petitioner Appellant instituted action seeking declaration of title and ejectment of the Defendants. At the trial, in the course of Appellant's testimony a listed document, a statement purported to have been made by the 1st Respondent to the Police was sought to be marked - this was objected to by the Respondents, as the witness not being the author could not testify as to the contents and that the document is not a listed document. The trial Judge upheld the objection - holding that(1) the witness not being the author could not testify and(2) the document is not-listed, which was affirmed in appeal by the High Court.

On appeal,

Held:

(1) The document in fact was a listed document.

(2) The order of the Trial Judge has not received the close attention of Section 154 of the Code - the reasoning of the Trial Judge that the document could not be permitted to be marked and produced through the witness for the reason that he cannot comment on the contents is not the correct legal position.

Held further:

(3) There is a difference between admissions as defined In Section 17 Evidence Ordinance and admissions recorded by the contesting parties in a case. Where a case is taken up for trial and before the issues are framed, if there are admissions in the pleadings of the parties, those admissions must be recorded as 'admissions'. The recording of the admitted facts is not in accordance with any provisions of the Code, recording of admissions has become a long established practice in civil trials.

(4) Admissions recorded by the parties in any proceeding are not the same as admissions recorded under Section 17 Evidence Ordinance,

but are admitted facts within the meaning of Section 58 Evidence Ordinance. Section 17 Evidence Ordinance defines admissions and confessions and is a provision governing relevancy Section 17(1) read with Section 21 Evidence Ordinance merely permits a statement to be admitted as evidence if that statement falls within the definition of admission in terms of Section 17 Evidence Ordinance.

(5) Trial Judge is required to evaluate the item of evidence so adduced under Section 21 and consider the probative value that should be attached to it. It is entirely at the discretion of the Judge to decide whether or not to act upon the Admission as an item of evidence, having given due consideration to the statement. On the other hand, admissions recorded by contesting parties to any proceeding fall within the ambit of Section 58 of the Evidence Ordinance, a provision governing proof and has no bearing on the issue of relevancy.

(6) The statement purported to have been made by the 1st Respondent to the Police was admissible if the statement is relevant and admissible then the Court has no discretion but to admit it - Section 91 Evidence Ordinance - Court is at liberty to consider the probative value of the contents upon evaluation and decide to act on this or reject it.

Per Buwaneka Aluvihare, PC J ,

"Section 154 of the Code stipulate that whether the document is admitted or not, it should he marked as soon as any witness makes a statement with regard to it. As the Respondents have objected to the admission of the impugned statement, the court is then required to address the issue of authenticity and whether the contents would constitute legally admissible evidenc

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