1. CA/PHC/APN 52/2013
Decided on – 06/02/2017
Before – H.C.J. Madawala, J
L.T.B. Dehideniya, J
Section 380 of the Penal Code
Accused Petitioner pleaded guilty for the charge and the appeal is against the sentencing order.
Petitioner's contention is that the order to pay the compensation is excessive.
The Respondent raised two preliminary objections on the maintainability of the application on the grounds that there is an inordinate delay and no exceptional circumstances to exercise the discretionary remedy of revision,
Held that there is a delay of 11 months in filing this revision application. The only explanation given is that he was in jail and he could not filed the revision application. This explanation is not acceptable since the law provides for a convicted prisoner to submit an appeal while in the prison. The inordinate and unexplained delay in seeking relief itself disentitles the petitioner to it. Application dismissed.
- CA/PHC/41/2011
Decided on – 09/02/2017
Before – H.C.J. Madawala, J
L.T.B. Dehideniya, J
State Land (Recovery and Possession) Act; appeal against an order for ejectment.
Held that, the only defence available to a person summoned is to establish that she is in occupation of the said land upon a valid permit or other written authority of the state granted in accordance with any written law and such permit or written authority is in force and not revoked or rendered invalid.
Further held that the Appellant cannot challenge the opinion of the competent authority that it is a state land.
3. CA/PHC/207/2006
Decided on – 13/02/2017
Before – H.C.J. Madawala, J
L.T.B. Dehideniya, J
Section 66 application
Held that, although it is popularly stated that evidence in relation to title and right of possession of the land in dispute cannot be considered in a Section 66 action, still in a situation when the evidence as to possession is clearly balanced title is important as the presumption of possession will benefit the party who brings in evidence of title to the Section 66 action.
The judgment of the Learned High Court Judge is tenable in law. Appeal dismissed.
4. CA/PHC/122/2002
Decided on – 16/02/2017
Before – H.C.J. Madawala, J
L.T.B. Dehideniya, J
Dispute about a road way;
Learned magistrate made a scene visit disregarding the objections of the Respondent and without having the consent of all parties and made an order granting a roadway based on the said scene visit. The Learned High Court Judge dismissed the revision application preferred against the order of the learned Magistrate. Petitioner Appellant made an application to Court of Appeal by way of Revision and also preferred an appeal. The said Revision Application was decided by this court on the urged grounds.
Held, that the Appellants in the present appeal is estopped as in the revision application the merits of this case has already been considered. The order of the revision application is final and conclusive of all facts in this case. The present appeal cannot be maintained as the revision application had been decided on the merits of this case.
5. CA/PHC/88/2005
Decided on – 19/02/2017
Before – H.C.J. Madawala, J
L.T.B. Dehideniya, J
Section 23(5) and 28(a)(3) of Urban Development Authority Law No.41 of 1978; Construction of an unauthorized structure
An order had been made by the Magistrate to demolish the structure in question.
Held that the learned Magistrate has gone outside a limited powers and had considered all the grounds set out by the appellant and rejected them on being satisfied there are no merits in them. The appellant has been given an opportunity to show cause, but the appellant has failed to show any valid reasons.
Appeal dismissed.
6. CA/PHC/168/1997
Decided on – 20/02/2017
Before – H.C.J. Madawala, J
L.T.B. Dehideniya, J
Section 66 Application;
The land in dispute was in possession of a school which was used as a play ground and the appellants have started to construct a barbed wire fence across the school play ground.
Contention of the appellants was that the construction of the fence on the strength of their ownership.
Held that, In a case of a land dispute threatening a breach of the peace in the Primary Court under Primary Court Procedure Act section 66, the ownership of the land is not material but the possession of the land within two months prior to the filing of the information is the most relevant fact. The Respondents clearly established that the land was in the possession of the school.
Further held that there is no prayer to set aside the order of the learned Magistrate or to grant relief as prayed for in the petition filed in the High Court. Even if this Court set aside the order of the learned High Court Judge, the order of the learned Magistrate will remain in force. This Court cannot grant any relief which is not prayed for. Therefore granting relief prayed for in this petition of appeal will not serve any purpose.
7. CA/PHC/11/2017
Decided on – 20/02/2017
Before – H.C.J. Madawala, J
L.T.B. Dehideniya, J
Dispute on the entitlement to possess a vehicle; lease agreement
At the vehicle inquiry, both registered owner and the absolute owner claimed the vehicle. The learned Magistrate satisfied on all the facts but did not release the vehicle to the Appellant on the basis that the Appellant was not a registered finance leasing company under the Finance Leasing Act.
Held that The learned Magistrate's finding that the appellant was not registered under Finance Leasing Act cannot have an impact on this case because there was no possibility to register since the operation of the Gazette has been suspended.
The vehicle involved in this case is under a finance leasing agreement and therefore the Appellant, as the absolute owner, is the person deemed to be entitle to possession of the vehicle.
Decided on – 27/02/2017
Before – Deepali Wijesundara, J
L.U. Jayasuriya, J
Section 300 of the Penal Code; Omissions; Dock statement; Section 283(1) of the Code of Criminal Procedure Act.
Even though the victim has given evidence to the effect that the accused had thrown acid at him by which he got injured, the Medico Legal report does not show any burn injuries. Also the victim had not revealed while being examined by the JMO that he was attacked by the accused.
Counsel for the accused appellant also contended that the Dock statement of the Accused Appellant had not been given due consideration by the learned trial judge.
Held that, the evidence of the victim does not pass the test of spontaneity. His evidence shows that he has made the first complaint in sign language. Hence, the question arises as to how the victim implicated the Appellant and the other accused.
The learned High Court Judge has not stated whether his statement has been accepted or rejected. The contradictions marked in the trial have not been analyzed in the judgment. Reasons have not been given for the conviction as stated in section 283(1) of the code of criminal procedure act.
We find that the judgment is devoid of reasons. Appeal allowed.
9. CA 108- 108A / 2015
Decided on – 27/02/2017
Before – P.R. Walgama, J
Devika de L. Tennakoon, J
Murder; Unlawful assembly; discrepancy of the statement given to the Police and at the Magisterial inquiry by the witness as to the identity of the accused who inflicted the fatal blow.
Held that, all the accused persons were known to the deceased family. Therefore evidence of the witness does not lack testimonial trustworthiness. According to the above witness the other accused persons except the 3rd accused had assaulted the deceased with the hands and legs . Prosecution has not been able to prove murderous intention of the other accused persons. Hence the homicidal intention as described in the Section 294 of the Penal Code can be attributed only to the 3rd Accused – Appellant.
Further held that the Accused - Appellants presence has not constituted an unlawful assembly to cause the death of the deceased. Accordingly appeal of the 3rd Accused-Appellant is dismissed, and appeals of the other Accused -Appellants are allowed.
10. CA/PHC/APN 15/2016
Decided on – 27/02/2017
Before – H.C.J. Madawala, J
L.T.B. Dehideniya, J
Section 54(a) and Section 83 (1) of the Poisons, Opium and Dangerous Drugs Ordinance as amended by Act No. 13 of 1984; Bail Application; Locus Standi
Held that, when considering a Locus Standi of the Petitioner we find that a person who calls herself as the wife of the suspect has made this application no document or other material has been tendered to court to prove that she is the legal wife. As such we are of the view as the
Petitioner has not proved that she is the wife of the Suspect. Therefore as the Petitioner has failed to prove her Locus Standi. We do not consider that we should go in to the merits of this application.
11. CA/PHC/208/2005
Decided on – 28/02/2017
Before – H.C.J. Madawala, J
L.T.B. Dehideniya, J
Appellant passed away while appeal is pending. The Counsel for the Appellant moved for permission to substitute the Petitioner on behalf of the deceased to prosecute the appeal. The Respondent objected to this application on the basis that the father's name appears in the birth certificates of the children is different from the name of the Appellant appears in the case record. The said four children have sworn affidavits and stated that the person referred to in different names in the said birth certificates is the one and the same person and is the father of them.
Held that, the name is only to identify the person, but what is necessary is whether the Appellant is the father of the persons named in the application for substitution. Even though there are slight differences in the name of the father, the children admit under oath that he is the father.
Objections are overruled.
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