CA overrules preliminary objections of respondents

Sarath MALALASEKERA

The Court of Appeal has overruled the Preliminary objections tendered by the respondents with regard to the Affidavit with costs, in an application for Revision of an Order of the High Court of Colombo.

Plaintiffs Wijsmuller Salvage B.V Sluisplein 34, 1975 AG Ijmuiden, The Netherlands and Sri Lanka Shipping Company Limited. Nawam Mawatha, Colombo 2 cited The Bangladesh Motor Vessel “MV JAMI” currently lying in the Port of Colombo and Midland Shipping Lines Limited, HBFC Building, Agrabad Commercial Area, Bangladesh as respondents.

Justice S. I. Imam in his lengthy judgement, Justice Sarath de Abrew agreeing stated- it would cause grave and irreparable loss to the Petitioner if he is shut out of his claim due to a misapprehension by the High Court Judge by claiming that there was “Accord and Satisfaction”as to the petitioner’s claim in Action in Rem 12/2005, when in reality this petitioner had returned the cheque given to him and is yet to be settled of his claim.

For the aforesaid reasons it is the Court view that the Affidavit of the Petitioner is in accordance with the law and the Court accept it. In the Court view it is this evidence that is sought to be placed before this Court by way of this affidavit in accordance with rule 3 (8).

It is also the Court view that the filing of this Affidavit would not cause any prejudice to the respondents, as they may be entitled to tender Counter Affidavits, if they desire, on September 18.

“Hence. the Court accept the Affidavit tendered by the Petitioner dated December 12, 2007 sought to be filed as part of his pleadings in accordance with rule 3 (8) of the Supreme Court Rules.

The judgement also stated the second Intervenient-Respondent hence contends that from the aforesaid Rules a party making an application under Article 138 of the Constitution is obliged to ensure that it’s petition and Affidavit shall be accompanied by the Originals of Documents material to such an application.

The second Intervenient-Respondent contends that the ‘Petitioner’ has failed to disclose in the petition any of the material now set out in the new affidavit.

The ‘Petitioner’ asserts that there is provision given in the Supreme Court Rules governing applications to the Court of Appeal regarding filing of Additional Pleading, affidavit or other Documents. The Petitioner seeks the indulgence of this Court to Supreme Court Rules part II on application, the Judgement also stated.

President’s Counsel Shibly Azeez with Senany Dayaratne instructed by Julius and Creasy appeared for the Plaintiffs-petitioner.

President’s Counsel K. Kanage-Isvaran with Chandaka Jayasundera and Nigel Bartholomeusz appeared for the first Intervenient defendant-respondent.

Chanaka de Silva with Damayanthi Francis instructed by K.P.Law Associates appeared for the second Intervenient-Defendant respondent.