180

SIVAYANAMA AND ANOTHER
vs
PEOPLE'S BANK AND 7 OTHERS

SUPREME COURT
DR. SHlRANI BANDARANAYAKE, J.
N.G.AMARATUNGA,J.AND
SALEEM MARSOOF, J.
S.C. APPEAL NO. 71/2007
S. C. (SPL) L. A. NO. 218/2006
C.A.NO.592/2001
D.C. MATALE NO. 4349/L
MAY 16TH,2008

Fair hearing - A Court ought not to make an order without hearing and determination of the matter before Court - Auti alteram partem Rule.

The Plaintiff-Appellants-Appellants appealed against the order of the Additional District Judge of Matale dated 26.06.2001. By that order the learned Judge upheld the preliminary objections relating to jurisdiction raised by the 1st Respondent Bank and dismissed the action. The Plaintiffs-Appellants appealed against the aforesaid order of the Additional District Judge.

When the appeal came up for hearing in the Court of Appeal, the 1st Respondent Bank raised a preliminary objection on the ground that the impugned order of the Additional District Judge was not an appealable order.

The Court of Appeal having heard the submission only on the preliminary objection raised by the 1st Respondent-Bank dismissed same but went on to dismiss the appeal on its merits without hearing the Appellants on the main question raised in the petition of appeal. No opportunity had been given to either party to make their submissions on the merits of the appeal.

Held:

(1) A decision of a Court of Law should be based on a fair hearing of the matters before Court and cannot contain orders of issues where parties were not given an opportunity to be heard.

Per Dr. Shirani Bandaranayake, J.

"The decision of the Court of Appeal, which had decided on the merits of the appeal cannot be accepted, as it had not observed the rudimentary norms, which are applicable in hearing an appeal".

Cases referred to:-

1. Ranasinghe us. Ceylon State Mortgage Bank 1981 1 S.L.R. 121.

2. Siriwardena us. Air Ceylon Limited 1984 1 Sri L.R. 2.86.

3. White us. Brunton (1984) 2 All E.R. 606.

4. Ridge us. Baldwin (1964) A.C. 40

5. Anisminic Ltd. us. Foreign Compensation Commission (1969) 2 A.C.147

6. A.G us. Ryan [1980] A.C. 143

7. State Graphite Corporation us. Fernando 1982 2 Sri L.R. 590.

8. Board of Education us. Rice (1911) A.C. 179.

APPEAL from judgment of the Court of Appeal.

A. R. Surendran, PC with K. V. S. Ganesharajan, Nadarajah Kandeepan  and Ms. Dharshini for Plaintiffs-Appellants-Appellants.

Manohara de Silua, PC with D. Weeraratne for 1st Defendant- Respondent- Respondent.

Cur. adv.vult

May 13, 2009

DR. SHIRANI BANDARANAYAKE, J.

This is an appeal from the judgment of the Court of Appeal dated 31.07.2006. By that judgment, the Court of Appeal had held that the order made by the learned District Judge dated 20.06.2001 is a final order as it had disposed of the rights of the parties, and had dismissed the appeal filed by the plaintiffs-appellants-appellants (hereinafter referred to as "the appellants"). The appellants filed a special leave to appeal application before this Court against the order made by the Court of Appeal for which special leave to appeal was granted by this Court on the following question:

"Is the judgment of the Court of Appeal which proceeded to decide the appeal on its merits having directed the parties to file written submissions only on the preliminary objection raised by the 1st respondent Bank without giving the appellants an opportunity of being heard on the merits of their appeal, in violation of the principles of natural justice?"

The facts of this appeal, as submitted by the appellants, albeit brief, are as follows:

The 1st and 2nd appellants are two brothers, who are the owners of the land and premises, which is the subject matter of this appeal. The 1st defendant-respondent-respondent (hereinafter referred to as the 1st respondent) is the People's Bank and the 2nd defendant-respondent-respondent (hereinafter referred to as the 2nd respondent) had been the Authorized officer of the 1st respond

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