In what should have been a pedestrian application in the District Court, which should have been decided on the bare facts, a District Judge made a wrong decision about the jurisdiction of the court with regard to a certain defendant, and made order accordingly dismissing the case on grounds of jurisdiction. The plaintiff came before the Court of Appeal to challenge the order. (Jayamaha v. Shabra Unico Finance Ltd. – SLR – 321, Vol 3 of 2001 [2000] LKCA 6; (2001) 3 Sri LR 321 (January 19, 2000)).
The Appeal Court made a curt observation about the District Judge’s decision on jurisdiction, in judgement: “It is relevant to note that the learned District Judge, Mount Lavinia had taken it for granted that the defendant was resident at New Bullers Road, Colombo 3 (vide Page 109 of the Brief).”
The complication was that this limited liability company had moved from the original premises to new premises at Buller’s Road, but at the time the case was filed the company was situated at R.A. de Mel Mawatha which used to be called Duplication Road. But the District Judge oblivious to the fact that when the plaint and answer were filed, the company was situated at R. A. de Mel Mawatha, proceeded to make an order that the company was not situated within the jurisdiction of the Court because it was in fact located at Buller’s Road.
The Appeal Court discussed the matter in judgement: “According to the petition dated 01. 11. 1991 filed under the provisions of Chapter 51 of the Civil Procedure Code the Respondent – respondent was a limited liability company having its registered office at No. 2, R.A. de Mel Mawatha, Colombo 3. The relevant time of residence and jurisdiction were to be ascertained as at the time of filing action. The fact that the respondent-respondent had changed its office to premises No. 61, New Bullers Road, Colombo 3, subsequent to the filing of this action should not have been taken into consideration. Jurisdiction of a court to hear a case depended on its territorial jurisdiction as at the time of filing action.”
To the laymen it may appear that any premises at R.A. de Mel Mawatha could not have come within the jurisdiction of the Mount Lavinia Court at least considering the geography of the location, but court jurisdictions are dependent on the relevant gazette notifications.
The Appeal Court was at pains to explain: “It must also be noted that R.A. de Mel Mawatha had been extended from Colombo 3 to Colombo 4 and therefore part of R.A. de Mel Mawatha fell within the territorial limits of the District Court of Mt. Lavinia while part fell within the limits of the District Court of Colombo. It is in this background that the territorial jurisdiction pertaining to this case should have been gone into.”
The curious factor was the District Judge had not made any kind of explanation about why he determined that the correct address of the defendant company was Buller’s Road. Was the defendant guilty of citing the wrong address just so he would come within the jurisdiction of the Mount Lavinia Court? That does not appear to have been the case as the Judge had made no investigation on such matters – and had peremptorily made the decision that the company address was Buller’s Road as it seemed so on the face of it, as Buller’s Road was the company’s current address.
Here is the explanation by Court: “No evidence seems to have been called by Court to find out whether at the time of filing action the defendant’s place of business was at No. 2, R.A. de Mel Mawatha, Colombo, or not. If it was so, the relevant Gazette Notification should have been examined and proper evidence led in Court to come to the conclusion as to whether premises No. 2, R.A. de Mel Mawatha fell within the territorial limits of the District Court of Mt. Lavinia or not. There was nothing ‘obvious’ about the defendant’s residence being situated outside the limits of the District Court of Mt. Lavinia. Clearly if the address was at premises No.2, R.A. de Mel Mawatha, then there was doubt as to whether these premises situated at the boundary between the two jurisdictions fell within the limits of the District Court of Mt. Lavinia or Colombo. Premises No. 61, New Bullers Road, Colombo 3, did not come into the equation at all.”
In a rather abstrusely explained dicta, jurisdiction issues had been perused, and it had been determined that jurisdiction depends on a certain set of facts placed before court and not on “the facts that might actually exist,” i.e., where a person is living now.
The case was cited in the Appeal Court judgement by Justice C.V. Wigneshwaran with Thilakawardene J agreeing: “In this connection, it is useful to remember the dictum of Justice Samarawickrama in W. Robison Fernando v. S. Henrietta Fernando (1) at 58 with regard to burden of proof. where it was stated as follows:
“The position however appears to be different where the want of jurisdiction is not apparent on the face of the record but depends upon the proof of facts. In such a case, it is for a party who asserts that the Court had no jurisdiction to raise the matter and prove the necessary facts. A Court had to proceed upon the facts placed before it and its jurisdiction must therefore depend upon them and not upon the facts that may actually exist.”
In a separate application that came before the Supreme Court (Kekul Kotuwage Don Aruna Chaminda vs Janashakthi General Insurance Limited, SC/ Appeal No: 134/2018 CHC/ 275/13 MR), which also dwells on matters dealing with jurisdiction, etc., it was decided that once issues of jurisdiction have been admitted, the defendant without reasonable cause cannot retract those admissions to his own advantage:
“The facts related above show that the defendant admitted the jurisdiction several times on his own or did not object to jurisdiction when it had the opportunity to do so. Thus, there was no reasonable ground to allow the defendant to withdraw the admissions made in respect of the jurisdiction. The delay in withdrawing the admission, at a much later stage, indicates that it may be due to an afterthought.”
On issues of jurisdiction it seems, the ‘virtual facts’, viz., what’s acceptable to court as per interpretation of law, are more important than the hard facts that meets the eye regarding the address and its relevance to where the court is in fact situated.
– Daily News Sri Lanka
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