SAMARAKOON V. GUNASEKERA AND ANOTHER

SAMARAKOON V. GUNASEKERA AND ANOTHER

SUPREME COURT
AMARATUNGA, J.,
RATNAYAKE, J. AND
EKANAYAKE, J.
S. C. APPEAL NO. 84/2010
S.C. (H.C) CALA APPLICATION NO. 75/2010
NCP/HCCA/ARP 303/2007
D. C. ANURADHAPURA 17234/L
MAY 26TH, 2011

Evidence Ordinance - Section 68 - Proof of execution of documents required by law to be attested - Manner of proving such documents - Prevention of Frauds Ordinance - Section 2 and Section 4 - Deeds affecting immovable property to be executed before a notary and two witnesses.

In order to prove t he Plaintiffs title to the property which is the subject matter of the action, he produced at the trial the notarially executed deeds marked P3 to Ph which were marked subject to proof. No witnesses were called at the trial on behalf of the Plaintiff to prove the said deeds. At the end of the Plaintiffs case, when the Plaintiffs Counsel read in evidence the deeds produced in evidence marked P3 to P6. the defence had made an application to Court to exclude those documents which were not properly proved. The learned District Judge held that the documents P3 to P6 had not been properly proved and accordingly, that the Plaintiff had failed to prove his title to the land in question.

The Plaintiff appeated against the decision of the District .Judge to the High Court. The High Court reversed the District Judge's finding on the basis that when a deed had been duly signed and executed it must be presumed that It had been properly executed.

Held:

(1) The High Court in total disregard of the specific and stringent provisions of Section 68 of the Evidence Ordinance had relied on

an obiter dictum made in a case where due execution was challenged, to reverse the decision of the District Judge.

(2) In terms of Section 2 of the Prevention of Frauds Ordinance a sale or transfer of land has to be in writing signed by two or more witnesses before a notary, duly attested by the notary and the witnesses. If this is not done the document and its contents cannot  be used in evidence.

Per Amaratunga , J.

(3) "When a document is admitted subject to proof, the party tendering it in evidence is obliged to formally prove it by calling the evidence necessary to prove the document according to law. If such evidence is not called and if No objection is taken to the document it is read in evidence at the time of closing the case of the party who tendered the document it becomes evidence in the case.

(4) On the other hand if the document is objected to at the time when it is read in evidence before closing the case of the party who tendered the document in evidence, the document cannot be used as evidence for the party tendering it."

Per Gamini Amaratunga, J. -

"This Court is not  inclined to order a re-trial in the absence of any miscarriage of justice resulting from a wrong decision made by a Court. The Plaintiff's plight is due lo the failure of his Attorney-at- Law to adduce evidence necessary t o prove the Plaintiffs title. This Court is not inclined to order a re-trial to facilitate an Attorney at -Law to rectify the mistake he had made in handling his client's case."

Cases referred to:

Sangarakkita Thero v. Buddarakkita Thero - (1951) 5.3 NLR 457

APPEAL against the judgment of the High Court of the North Central Province (exercising Civil Appellate jurisdiction)

M. Yoosuf Nassar for the Appellant

K. G Jinasena for the Respondent.

September 22nd 2011

GAMINI AMARATUNGA J.

    This is an appeal, with leave to appeal granted by this Court, against the judgment of the High Court of the North Central Province exercising Civil Appellate jurisdiction, allowing the appeal filed by the plaintiff-respondent (hereinafter called the plaintiff) in that Court against the judgment of the District Court of Anuradhapura, dated 24.6.2005, dismissing the plaintiffs action.

    The facts relevant to this appeal are briefly as follows: The plaintiff filed act

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