The following case description is from an application in which the plaintiff appealed to have her case re-entered in the roll. The plaintiff had prayed for an order to have her District Court case restored to the trial roll, but the Judge had refused to do so. (Gnanawathie and Others V Wijesinghe - SLR - 132, Vol 1 of 2004 [2003] LKCA 10; (2004) 1 Sri LR 132 (May 23, 2003).
The District Judge had dismissed the case when the plaintiff (now Appellant) wanted the case re-entered in the trial roll. The plaintiff’s Attorney had on an earlier date submitted in Court that he did not have instructions from the plaintiff, his client. The plaintiff was also not in Court that day. The case was therefore dismissed with costs by the District Court (DC) judge.
However, in the appeal the plaintiff’s Counsel took up the position that the Attorney, a certain Jayawardena, had no standing — locus standi — to claim in court that he had no instructions because, as the plaintiff now claimed, he was not appearing for her — or at least under her instructions. Also, the plaintiff’s Counsel took up the position that there was no mention in the case record that the said Jayewardena was appearing on the instructions of the plaintiff’s Registered Attorney.
This was how the case was summarized in the Appeal Court judgement: “Briefly the relevant facts are when the case was taken up for trial on July 14, 1994 the Attorney-at-law for the defendant-respondent-respondent, hereinafter referred to as the respondent moved for a postponement and the trial was re-fixed for October 10, 1994.”
“On 10-10-1994 when the matter was taken up, Counsel was indisposed. On 25-07-1994 the case was called and trial was re-fixed for October 20, 1994. When the trial was taken
up on 20-10-1994 the appellants were absent and their attorney-at-law had intimated to court that as the attorney-at-law for the defendant had got the trial date altered before the Additional District Judge the appellants could not have been aware that the trial has been re-fixed for 20-10-1994. In the circumstances, the Court made an order that the respondent was not entitled to costs for the day and re-fixed the trial for February 13, 1995.”
However, on 13-02-1995 the said Jayewardena appeared on the instructions of the appellant’s registered Attorney-at-law S.A. Hemapala and informed Court that he has no instructions from the appellants to proceed with the trial. The Court of Appeal however, gave short shrift to the contention that the Counsel had not appeared on the instructions of the plaintiff’s instructing Attorney.
Justice Somawansa who wrote the Appeal Court judgement observed that in paragraph 9 of the petition and paragraph 10 of the affidavit filed by the appellants they had already admitted that on 13-02-1995 the said Jayawardena appeared on the instructions of the appellant’s registered attorney-at-law S.A. Hemapala and informed Court that he has no instructions from the appellants to proceed with the trial.
It appeared that the plaintiff had undermined her own contention by stating — perhaps almost by rote as these things are done in affidavits — that the Counsel had appeared on instructions of her Registered Attorney. Court held that she cannot state that under oath in her affidavit and contend the reverse, i.e., that the Counsel had no standing, and that he had not appeared on the instructions of the plaintiff’s registered Attorney.
The rule in Section 181 of the Civil Procedure Code which confines an affidavit to ‘a statement of facts as the declarant is able of his own knowledge and observation to testify to’ is intended to restrict the contents of affidavits to direct evidence as prescribed in Section 60 of the Evidence Ordinance. By necessary implication it excludes hearsay from such affidavits.
On certain other issues, the Court was sympathetic to the plaintiff’s position. Though the respondent’s Counsel submitted when the appeal was heard, that the plaintiff’s affidavit contained hearsay, the Court of Appeal judgement held that this type of affirmation to a belief in an affidavit was indeed permitted in interlocutory applications. An interlocutory application is for an order, sentence, decree, or judgement, given in an intermediate or transitional stage before the end of an action in court.
Court held: “The only exception is that in interlocutory applications a statement of what is believed, as to the relevant facts, may be included. This exception is subject to a proviso that reasonable grounds for such belief should also be set forth in the affidavit.”
Applying this principle to the affidavit tendered by the appellants, Court held that though the appellants were not present in Court they have submitted reasonable grounds for their belief as to what transpired on 13-02-1995. For the appellants themselves in paragraph 09 of their affidavit state that this information was given to them by their registered Attorney-at-law S.A. Hemapala when they met him in the first week of March 1995.
“I would say this is reasonable grounds for their belief as to what transpired in Court on 13-02-1995,” held Justice Somawansa in his judgement.
However, the Appeal itself was dismissed on the grounds that if a default was to be cured, the application should have been made within reasonable time. But it had taken eight months for the plaintiff to file the application and therefore Court contended that the plaintiff had been “sleeping on her rights” and dismissed the application on grounds of laches.
In matters of writs for instance, undue delay — or laches — could operate against a petitioner’s chance of obtaining redress. However, delay per se is not an issue on which a case can be dismissed. “But in every case, if an argument against relief, which otherwise would be unjust, is founded upon mere delay, that delay of course not amounting to a bar by any Statute of Limitation, the validity of that defence must be tried upon principles substantially equitable.”
The above is excerpted from a decision in Biso Menika vs. Cyril de Alwis and Others [1982] 1 Sri L R 368.
In other words, if the defence against relief for the petitioner is delayed, refusing relief can only be decided on the principles of equity, i.e.: mere delay alone would not suffice to dismiss a case.
