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SRI CO - OPERATIVE INDUSTRIES FEDERATION LTD

V. KOTALAWALA

SUPREME COURT
TILAKAWARDANE. J.
AMARATUNGA. J
MARSOOF. PC. J.
SC 2/2005
CA 1173/2002
DC COLOMBO 24742/MR
OCTOBER 23, 2008

Burden of proof- Hearsay evidence- Findings of fact by trial Court Overruling decision of trial Court on a question of fact-Should not be lightly interfered with? Right of a party to challenge a finding if no appeal is taken- Res Judicata

The appellant called for tenders for the installation of the electrical system for its factory. The plaintiff-respondent's tender was accepted as it was the lowest. The appellant withheld a certain sum claimed on the basis that the transformer was supplied and installed by a third party company and that the respondent had no part to play in the installation of the transformer. The respondent instituted action claiming a certain sum with interest from the date on which the work was completed to the date of filing action. The District Court held that the transformer was supplied and affixed to the ground by the third party company, but the installation was by the respondent, and awarded part of the sum claimed. The Court of Appeal affirmed the decision. The question arose whether there was sufficient evidence for the appellant to disclaim liability for the payment and whether the appellant was liable to pay the sum decreed.

Held

(1) The Appeal Court will not depart from the rule that it has laid down that, it will not overrule the decision of the Court below on a question of fact in which the Judge has had the advantage of seeing the witnesses and observing their demean our unless they find some governing fact which in relation to others has created wrong impression.

(2) Relying on the truth of the contents in documents P5 and P6 is clearly contrary to the hearsay rule, but it is legitimate for the respondent to rely on P5 and P6 to show that the engineer had in fact recommended payment without relying on the truth of any assertion made by him in either of their documents. Such use would not offend the hearsay rule.

The burden is always on the plaintiff to prove his case and the reception in evidence of the letters P5 and P6 would not per se relieve the respondent from establishing that he had in fact  performed his work, contemplated.

Per Saleem Marsoof, P.C. J.

" As the respondent has not appealed against the decision of the trial Judge with respect to one item, it is not possible to reagitate this matter in the course of this appeal as the doctrine of res judicata would clearly preclude such a course."

APPEAL from a judgment of the Court of Appeal.

Cases referred to:

1. Eliyatamby v. Eliyatamby 27 NLR396

2. Sheila Seneviratne v. Shereen Dharmaraine- 1997- 1 Sri LR76

3. Subramaniam v. Public Prosecutor- 1956 I WLR965 at 970

4. Powell and Wife v. Streatham. Manor Nurshing Home - 1935 AI 243 at 248

5. The Sri Robert Peel- 4 Asp. M.L.C. at 321

6. Munasinghe v. Widanage - 69 NLR 97

7. Watt v. Thomas -1947- 1 All ER 582 at 513

8. Attorney General v. Gnanapragasam 68 NLR49

9. Ben Max v. Austin Motor Co. Ltd 1955 - AI 370

T. M. S. Nanayakkara for Appellant

Champaka Ladduwahetty for Respondent.

Cur. adv. vult

April 03, 2009

SALEEM MARSOOF, PC. J.

    This Court has granted the Defendant-Appellant-Appellant (hereinafter referred to as the "Appellant") special leave to appeal on the questions of law stated in paragraph 16 of his Petition dated 17th November2004. Which are set out below:

(a) Is there sufficient evidence for the Appellant to disclaim liability for the payment under item No.Ol.0l.of P4?

(b) In all the circumstances, is the Appellant not liable to pay the sum decreed by the District Court and the Court of Appeal?

    It appears from the Appeal Brief that in 1997, the Appellant a society registered under the Co-operative Societies Law No.5 of 1972, called for tenders for the installation of the electrical system for its new Ceyesta factory in Navinna,  Maharaga

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