DOCUMENTARY EVIDENCE
Wickum A. Kaluarachchi
Judge of the
High Court (Civil Appeal)
As same as oral evidence, there is a procedure and
limitations in producing documentary evidence. Mainly, Evidence Ordinance
contains the provisions pertaining to the documentary evidence. As documentary
evidence is often used in civil cases, there are several provisions in the
Civil Procedure Code regarding the procedure in producing documentary evidence
and its limitations. In addition, several acts are embodied with the provisions
of how the specific documents pertaining to those acts could be produced as
documentary evidence. All those details could not be discussed in this article
because the topic subject to this article is very wide. Thus, this article
mainly focuses on how the documentary evidence could be adduced in judicial
proceedings, the relevant provisions, and the limitations therein.
1.0 INTRODUCTION 
1.1 The
provisions that govern the documentary evidence.
Section 59 of the Evidence Ordinance states, “All
facts, except the contents of documents, may be proved by oral evidence. That
means the document itself should be produced to prove the contents of the
document. Oral evidence has been excluded on those instances and only
admissible evidence is documentary evidence. In addition, documentary evidence
could be used to corroborate oral evidence. The principal piece of legislature
which deals with the documentary evidence, as same as the oral evidence, is the
Evidence Ordinance. Section 2(1) of the Evidence Ordinance states that this
ordinance shall apply to all judicial proceedings in or before any court other
than courts-martial and proceedings before an arbitrator. In addition, there
are provisions in the Criminal Procedure Code to govern the procedure in
adducing the documentary evidence in criminal proceedings and as same as in the
Civil Procedure Code to govern the civil proceedings.
[For convenience, hereinafter sometimes “EO” is used
to indicate “Evidence Ordinance” and “CPC” is used to indicate “Civil Procedure
Code”.]
1.2 Document
The interpretation given in section 3 of the Evidence Ordinance
to the “Document” is; "Document" means any matter expressed or
described upon any substance by means of letters, figures, or marks or by more
than one of those means, intended to be used, or which may be used, for the
purpose of recording that matter.
According to the illustrations
pertaining to the interpretation to the “Document”; Writing is a document.
Words printed, lithographed, or photographed are documents. A map or plan is a
document. An inscription on a metal plate or stone is a document. A caricature
is a document.
The question of whether a massage
received on the screen of a mobile phone could be considered as a document
according to the law was extensively discussed by the Hon. Chitrasiri J. in the
case of Marine Star (Pvt.) Ltd. V. Amanda
Foods Lanka (Pvt.) Ltd.H.C.Civil 181/2007 (MR).
It was held that the SMS was admissible under both the
provisions of the original Evidence Ordinance as well as in terms of the
provisions of the Electronic Transactions Act.
2.0 CRIMINAL CASES
In Criminal trials, the document mostly used is the first information
made by the witnesses. It is often used to contradict the witness. Thus, it is
an instance where the contents of a document are used to contradict oral
evidence. According to section 110(3) of the Criminal Procedure Code, “A
statement made by any person to a police officer in the course of any
investigation may be used in accordance with the provisions of the Evidence
Ordinance except for the purpose of corroborating the testimony of such person
in court”.
It has been held in The
King V. Haramanisa 45 NLR 532 that “a statement made to a Police Officer in
the course of an investigation under Chapter 12 of the Criminal Procedure Code
by a person (which expression includes an accused person) must be reduced to
writing. Oral evidence of such a statement is inadmissible.
The written record of such a
statement is admissible by virtue of section 122 (3) of the Criminal Procedure
Code [which corresponds to section 110(3) of the present code] to contradict, a
witness after such witness has given evidence.”
The reason for this decision is that
section 91 of the Evidence Ordinance does not permit to lead oral evidence when
any matter is required by law to be reduced to the form of a document.
The Queen V. R.P.D. Jayasena 68 NLR 369 - The question of law, which arises, is whether
this statement, alleged to have been made by the accused, was legally proved.
Counsel for the' accused submitted that the only admissible evidence of the
alleged statement is the record of it made by the Inspector. He further
submitted that the accused had been prejudiced by the Inspector giving oral
evidence of the contents of this statement. We uphold this submission. Without
going further back into the authorities, we would refer to The King v.
Haramanisa [(1944) 45 N.L.R. 532], where this Court held that by reason of
section 91 of the Evidence Ordinance only the written record of a statement
made to a Police Officer or Inquirer by any person in the course of any
investigation under Chapter 12 of the Criminal Procedure Code is admissible in
evidence and that oral evidence of such a statement is inadmissible. A contrary
view was taken in Rex v. Jinadasa [(1950) 51 N.L R. 529] which held that oral
evidence of the statement of an accused falling under s. 27 of the Evidence Ordinance
was admissible, and that section 122 (3) of the Criminal Procedure Code
prohibits only the production of the written record of such a statement.
In The Queen v. Murugan Ramasamy
[(1962) 64 N.L.R. 433] it was held that Jinadasa's case should not be followed
and that neither the oral statement nor the written record of it made in the
course of an inquiry under section 122 could be proved, even if it was a
statement falling under s. 27 of the Evidence Ordinance.
However, it is vital to be noted that
in Civil Proceedings, police statements (whether it is under section 109 or 110
of the Criminal Procedure Code) are admissible in evidence because the
limitations in section 110(3) of the criminal procedure code do not apply for
civil proceedings. In terms of section 157 of the Evidence Ordinance, such a
statement could be used to corroborate a witness and in terms of section 145(1)
and/or section 155, it could be used to contradict a witness.
2.1 Admissibility
of the Reports and other documents prepared by the Public Officers in Criminal Cases.
Section 414(1) of the Criminal Procedure Code permits to
produce the reports of certain government officers as evidence without calling
them to give evidence. The said Section states that “Any document purporting to
be a report under the land of the Government Analyst, the Government Examiner
of Questioned Documents, the Registrar of Finger Prints, Examiner of Motor
Vehicles or Government Medical Officer upon any person, matter or thing duly
submitted to him for examination or analysis and report, or the report of a
Government Medical Officer based upon any skiagraph purporting to have been
made by a Government Radiologist or such skiagraph itself and any document
purporting to be a report under the band of such Radiologist upon such
skiagraph, may be used as evidence in any inquiry, trial or other proceedings
under this Code although such officer is not called as a witness”.
Section 414(5a) states; 'The written statement of a public
officer other than a public officer referred to in subsection (1) verified by
affidavit, relating to any act done by such public officer in the performance
or discharge, of any duty or function of his office may be given in evidence in
any inquiry, trial or other proceedings under this Code, although such officer
is not called as a witness.".
Section 444(2) provides room to produce a certified copy of
any information or statement of every proceeding under the Criminal Procedure
Code without calling the inquirer or police officer by whom it was recorded,
notwithstanding the provisions of any other law. Such a certified copy shall be
prima facie evidence of the fact that such information was given or that such
statement was made. It shall not be necessary to call such inquirer or officer
as a witness solely for the purpose of producing such certified copy.
2.2 Video
Recording as Direct Evidence in Child Abuse Cases.By the Evidence (Special Provisions) Act No 32 of
1999, a new section to the evidence ordinance was introduced to adduce video
recording as direct evidence in proceedings for offenses relating to child
abuse. The said new section 163A states that; In any proceedings for an offense
relating to child abuse a video recording of a preliminary interview interview
which-
(a)
is
conducted between an adult and a child who is not the accused in such proceeding (hereinafter referred to in this
section as "a child witness"); and
(b)
relates
to any matter in issue in those proceedings, may notwithstanding the provisions
of any other law with the leave of the court, be given in evidence in so far as
it is not excluded by the court under subsection (2).
Where a video recording is tendered in evidence in any
proceedings referred to in subsection 163A(1) the court shall give leave under
that subsection subject to the conditions stipulated in 163A(2).
Such video recording is considered as direct oral testimony
of the child according to section 163A (4) of the said Evidence (special
provisions) act. This subsection reads as follows: Where a video recording is
given in evidence under this section any statement made by the child witness
which is disclosed by the video recording shall be treated as if given by that
child witness in direct oral testimony and accordingly, any such statement
shall be admissible evidence of any fact of which direct oral testimony from him
would be admissible.
2.3 Applicability of section 68 of the
Evidence Ordinance to a Criminal Case
The decision of The
Solicitor General V. Ahamadulebbe Ava Umma and 4 others - 71 NLR 512 is
that when the attesting witnesses are also accused in the case section 68 has
no application. The relevant portion of the decision is as follows:
Section 68 of the Evidence Ordinance had no application to a
criminal case where the prosecution had made the attesting witnesses also
accused in the case and, far from seeking to use the deed as evidence, was
impugning it as a forgery committed as a result of the abetment of the said
offence on the part of the witnesses and the vendee. In such a case, the
elements of the charges which have to be established by the prosecution may be
established in any of the ways permitted by law.
3.0 
In civil cases, a list of the documents relied upon by a
party to be produced at the trial shall be filed or cause to be filed in court
not less than fifteen days before the date fixed for the trial with notice to
the opposite party in terms of section 121(2) of the Civil Procedure Code.
Section 154(1) of the Civil Procedure Code states that Every
document or writing which a party intends to use as evidence against his
opponent must be formally tendered by him in the course of proving his case at
the time when its contents or purport are first immediately spoken to by a
witness.
3.1 Exclusion Of Oral By Documentary
Evidence
As stated above, there are instances
where oral evidence has been excluded and the documentary evidence must be
produced. Section 91 and 92 of the Evidence Ordinance deal with the instances
where documentary evidence has to be produced and the oral evidence has been
excluded.
The said sections read as follows:
91. When the terms of a contract, or of a
grant, or of any other disposition of property have been reduced by or by
consent of the parties to the form of a document, and in all cases in which any
matter is required by law to be reduced to the form of a document, no evidence
shall be given in proof of the terms of such contract. Grant, or other
disposition of property, or of such matter, except the document itself, or
secondary evidence of its contents in cases in which secondary evidence is admissible
under the provisions herein before contained.
92. When the terms of any such contract,
grant, or other disposition of property, or any matter required by law to be
reduced to the form of a document, have been proved according to the last
section, no evidence of any oral agreement or statement shall be admitted as
between the parties to any such instrument, or their representatives in
interest, for the purpose of contradicting, varying, adding to, or subtracting
from its terms.
According to the said section 91, the document itself has to
be produced as evidence when any matter is required by law to be reduced to the
form of a document and no oral evidence could be adduced about those documents
in terms of the said section 92. The following judicial authorities would make
it clear the ambit of the said two sections in respect of Civil Actions.
Wijesuriya V. Senaratne (1997) 2 Sri LR 323 - Any contract
relating to land or creating an interest in land ought to be Notarially
executed and oral and parol evidence cannot be led to alter and vary the terms
of the transaction so recorded in the Notarially executed document.
Marikar V. Sakeena Umma 65 NLR 230 - Under proviso (1) to
section 92 of the Evidence Ordinance, evidence is admissible to contradict, on
the basis of a mistake of fact, the terms of a mortgage bond in regard to the
amount of the loan.
It was held in Gunasekera
and another V. Uyangodage (1987) 1 Sri LR 242 that section 91 and 92 of the
Evidence Ordinance do not permit the receipt of evidence to vary the terms of a
notarially executed deed so as to superimpose on a simple transfer deed
characteristics such as mortgages or agreements to retransfer.
Jayakody V. Lilian Perera (1993) 2 Sri LR 74 - the order of
the rent board had not been considered as the order was not produced as
documentary evidence. It was held in the said case as follows;
Moreover, the order of the Rent Board was not produced,
despite the provisions of section 39 (13) of the Rent Act, which enacts that
“Every order made by the Board .............. shall be reduced to writing and
signed by the Chairman ". No oral evidence of the order could have been
led in view of section 91 of the Evidence Ordinance. I accordingly hold that
there was no basis upon which the defendant could have relied on the purported
order of the Rent Board.
Wickremaratne V. Thavendraraja (1982) 1 Sri LR 21 - Section 92 of the Evidence Ordinance
cannot exclude oral evidence where it is for the purpose of showing that the
document does not embody the real agreement between the parties thereto and
that there was in fact no agreement as set out therein, but that it was only a
sham to conceal the real agreement.
In Marimuththu Rasiah V. Imiyage Somapala CA. 786/98 F (Decided on
21.02.2008), it was decided that informal writing obnoxious to the evidential
rules becomes inadmissible even though the opposite party did not object.
3.2 The contents of documents may be proved either by Primary or
by Secondary Evidence. (Section 61 E.O.)
Although section 61 of the evidence ordinance states that the
contents of documents may be proved either by primary or by secondary evidence,
section 64 requires primary evidence in the first instance for the proof of
documents. The said section excludes secondary evidence of documents if the
originals are available. Hence, the rule is the contents of documents are
generally proved by primary evidence unless secondary evidence is permitted.
3.2.1 Secondary Evidence
Section 63 explains what the
secondary evidence is and Section 65 refers to the occasions where secondary
evidence could be given. Subsection (1) states;
When the original is shown or appears
to be in the possession or power-
(i) of the person
against whom the document is sought to be proved, or
(ii)
of any
person out of reach of, or not subject to, the process of the court, or
(iii)
of any
person legally bound to produce it; must give notice to the party in whose
possession or power the document is or to his proctor, to produce the document
in terms of section 66. If the original is not produced on the said notice,
secondary evidence may be given of the existence, condition, or contents of the
document.
It often seeks to produce secondary evidence when the
original is destroyed or lost. Section 65(3) provides room for that with the
restrictions stated therein. When a copy of the original is produced, section
162 of the Civil Procedure Code describes how such copy could be produced as
secondary evidence. The said section reads as follows:
When the document, the admission of
which is objected to, is put forward as the copy of an absent original, it is
not proved until both such evidence as is sufficient to prove the correctness
of the copy, and also such evidence as would be sufficient to prove the
original, had it been tendered instead of the copy, has been given.
Note. - The question whether a copy document is admissible in
evidence between the parties in the place of the original is quite distinct from
the question whether the document (original or copy) is admissible as evidence
relevant to the issue under trial.
In the case of Perera V. Disanayake – SC Appeal No.
126/2010, SC (HC) CALA application No. 142/10, decided on 07.12.2012, at the
stage of arguments, parties conceded that the substantial issue to be decided
by the Supreme Court was whether the documents P-1 and P-2 had been validly
proved in terms of the law. It was held that section 64 of the Evidence
Ordinance enables secondary evidence to be put forward where the primary
document is unavailable due to one of the exhaustive exceptions set out in
section 65. Further, it was held that section 65 (3) sets out an exception
enabling the use of secondary evidence where primary evidence has been destroyed
or lost for a reason, not of the respondent’s own fault. In this case, the
officer identified the signatures and handwriting of the persons who had issued
P-1 and prepared the ledger P-2. He confirmed the documents to be genuine. He
explained that during the J.V.P. insurrection the office had been burnt and
therefore the documents housed in the building had also been destroyed.
Accordingly, the finding that document P-1 was proved to be a valid document
was affirmed.
The Attorney General V. A. James 68 NLR 228 - A carbon copy of a
handwritten document is, for the purpose of the Evidence Ordinance, a duplicate
original and is primary evidence of its contents.
3.3 Proof of Documents
It is apparent that there is no general standard of proving
every kind of document. There are various modes in proving different kinds of
documents.
However, it is to be noted that it was held in Robins V. Grogan 43 NLR 269 - A document cannot be used in evidence
unless its genuineness has been either admitted or established by proof, which
should be given before the document is accepted by Court.
Section 66 of the Evidence Ordinance states; Secondary
evidence of the contents of the documents referred to in section 65(1), shall
not be given unless that party proposing to give such secondary evidence has
previously given to the party in whose possession or power the document is, or
to his proctor, such notice to produce it as is prescribed by law; and if no
notice is prescribed by law, then such notice as the court considers reasonable
under the circumstances of the case.
Provided that such notice shall not be required in order to
render secondary evidence admissible in any of the following cases, or in any
other case in which the court thinks fit to dispense with it:-
(1)
When
the document to be proved is itself a notice
(2)
When
from the nature of the case, the adverse party must know that he will be
required to produce it.
(3)
When it
appears or is proved that the adverse party has obtained possession of the original
by fraud or by force
(4)
When
the adverse party or his agent has the original in court
(5)
When
the adverse party or his agent has admitted the loss of the document
(6)
When
the person in possession of the document is out of reach of, or not subject to,
the process in the court.
However, the general rule is that the party possessing the
original has to be noticed to produce the original before giving secondary
evidence of that document.
In a rent and ejectment case, Where receipts of notice to
quit is denied, it was decided that secondary evidence is permissible without
calling upon the defendant to produce the original under S. 66 of the Evidence
Ordinance. Joonoos V. Chandraratne
(1990) 2 Sri LR 337 -Court of appeal
In the same case, Joonoos
V. Chandraratne(1993) 1 Sri LR 86 it was the decision of the Supreme Court
that “the requirement of the notice to produce a document is not dispensed with
only in the six cases enumerated in section 66 but also, as the proviso states,
in any other case in which the court thinks fit to dispense with it.
In this case, by paragraph 12 of the plaint, the
plaintiff-respondent averred that by letter dated 15.1.1983, he gave one year's
notice in writing of the termination of the tenancy and that a copy of the
letter and a copy of the registered postal article in proof of posting that
letter were annexed to the plaint. By paragraphs 1 and 2 of the answer, the
defendant-appellant denied the plaintiff-respondent's averment. The direct
inference of that denial is that the plaintiff-respondent did not send such a
notice to the defendant-appellant and therefore the defendant-appellant did not
receive the same. In this context, it was held that it would be a sheer
pretense to give notice to the defendant-appellant to produce the original of
the notice. It was also held that It is difficult to imagine that the law
expects the plaintiff-respondent to indulge in such a meaningless charade.
Accordingly, the copy of the notice, in terms of section 66
(1) of the Evidence Ordinance, has been produced without giving notice to the
defendant to produce it.”
3.3.1 Proof of signature and
Handwriting of person alleged to have signed
or written document produced.
If a document is alleged to be signed or to have been written
wholly or in part by any person, the signature or the handwriting of so much of
the document as is alleged to be in that person's handwriting must be proved to
be in his handwriting. (Section 67 -
E.O.)
Section 73 stipulates the mode of proving a signature,
writing, or seal.
73(1) In order
to ascertain whether a signature writing or seal is that of the person by whom
it purports to have been written or made, any signature, writing, or seal admitted
or proved to the satisfaction of the Court to have been written or made by that
person may be compared with the one which is to be proved, although that
signature, writing, or seal has not been produced or proved for any other
purpose.
(2)
The
Court may direct any person present in Court to write any words or figures for
the purpose of enabling the Court to compare the words or figures so written
with any words or figures alleged to have been written by such person.
Under the powers of this section,
courts obtain samples of handwriting and signatures of the litigants or any
other person involved to send them to the Examiner of the questionable
documents (E.Q.D.) for comparison.
(3)
This
section applies also, with any necessary modification, to finger impressions,
palm impressions and foot impressions.
Signature by a mark how proved:
159(1) The signature
of a person, which purports or which appears by the evidence to have been
written by the pen of another, is not proved until both the fact of the writing
and the authority of the writer to write the name on the document as a
signature is proved.
159(2) Subsection (1) applies to the case where the signature
is a mark explained by the name written adjacent thereto.
3.3.2 Proof of execution of a document by calling an
attesting witness
If a document is required by law to be attested, it shall not
be used as evidence until one attesting witness at least has been called for
the purpose of proving its execution, if there be an attesting witness alive,
and subject to the process of the court and capable of giving evidence. (Section 68
E.O.)
Hilda Jayasinghe V. Francis Samarawickrema(1982) 1 Sri LR 349 - Defendant
Appellants alleged that through the machinations of the Attorney at Law and
Notary Public both Deeds Nos. 4879 and 4880 of 24.3.76 were fraudulently
executed by obtaining the signatures of the Defendant Appellants by
misrepresentation of facts and by obtaining their signatures and thumb
impression on blank sheets of paper. They also alleged that no consideration
passed and that the two attesting witnesses were not present at the time they
placed their signature and thumb impression.
Mr. Kahatapitige the Notary gave
evidence but no attesting witness was called.
Held: that the circumstances of this case
required that one of the two attesting witnesses be called to prove execution
of the deed.
Joseph Fernando V. Pearlin Fernando 61 NLR 177 - When an attesting
witness, who is called for the purpose of proving the execution of a document
required by law to be attested, denies the execution of the document. It was
held that proof of his signature is not sufficient to establish due execution.
Under section 69, read with section 71, of the Evidence Ordinance there must
be, in addition, proof of the executant's signature.
It is also held that whether, in the absence of other
evidence and without the benefit of the opinion of an expert, it is open to a
Court, on a mere comparison of two documents containing respectively an
admitted signature and a signature which is repudiated, to express the opinion
whether the two signatures are of one and the same person.
It was held in Pingamage V. Pingamage and others –
(2005) 2 Sri.L.R. 370, that there was no legal duty cast on the
plaintiff-respondent to have called the mother executed in evidence, as the two
attesting witnesses were called in evidence.
Citing E.R.S.R. Coomaraswamy; Law of Evidence (pages
103-104 of Vol. 11, Book 1, 2nd Edition), it is stated in the
case of Banumathy Puvirajakeerthy V. Nadarajah Indranee– C.A.
1222/2000(F), Decided on 22.07.2020, if one witness is called (according to the
section 68) and he speaks to attestation, the document is prima facie proved.
But it is open to the other side to rebut the proof by evidence that the
apparent attestor is not an attestor in the legal sense. Where only one of the
attesting witnesses is called and his evidence is not believed, the provisions
of section 68 would not have been complied with. The evidence of an attesting
witness is not necessarily conclusive and can be rebutted.
Wijewardena V. Ellawala(1991) 2 Sri LR 14 this is a judgment by the court of appeal and
it was held that When a deed has been admitted in evidence without objection or
protest and no issue was raised at the commencement of the trial or later
raising the question of due execution of the deed, section 68 of the Evidence
Ordinance does not require an attesting witness to be called.
Hemapala V. Abeyratne(1978-79) 2 Sri LR 222 Where a
defendant had put the plaintiff to proof of a deed (P1) in the answer but no
issue was framed at the trial as regards its due execution and the deed was
marked in evidence, and when the case for the plaintiff was closed his counsel
read the deed in evidence along with other documents. It was held that it is
too late to raise the plea in appeal that no evidence has been called to prove
due execution of the deed in terms of section 68 of Evidence Ordinance.
However, in the case of Muthubanda
and another V. Gunaratne (1999) 3 Sri LR 1, the execution of the deed of
revocation was not challenged and not put in issue at the trial. It was held
that S. 68 of the Evidence Ordinance prohibits the use as evidence of any
document required by law to be attested until one attesting witness at least
has been called for the purpose of proving its execution. Nevertheless, it is
to be noted that the court of appeal stated the above statement in deciding
that the District Judge's decision regarding the proof of a deed is erroneous
because the District Judge decided by observing some judicial authorities that the
deed was not proved as both witnesses were not given evidence for the purpose
of proving the deed. The court of appeal decided that section 68 of the E.O.
requires only one witness to be called. Therefore, what the Court of Appeal
stressed in this judgment was that both witnesses need not be called and only
one witness has to be called. The other matter to be considered is that the
said case of Wijewardena V. Ellawala was decided after considering 21 judicial
authorities.
3.3.3 Proof of Deeds
Requirements for the due execution of a deed are set out in
the case of Thiyagarasa V. Arunodayam – C.A. 642/76(F), Decided in May
18,19 and 20, 1987. It was held that the essential elements of due execution of
a deed as set out in section 2 of the Prevention of Frauds Ordinance are;
a. The deed must be signed by the party
making it
b. It must be signed in the presence of
a licensed notary public at the same time
c. The notary public and the witnesses
must be present at the same time.
d. The execution of the deed must be
duly attested by the notary and the witnesses. The notary is as much an
attesting witness as the two witnesses themselves.
The aforesaid section 68 of the Evidence Ordinance applies
when deeds are produced as evidence. Deeds should also be proved in the manner
set out in the said section.
It was held in Tilakeratne
V. Samsudeen 4 NLR 65 that where a deed is on the face of it regular, it
will be presumed that all the formalities required by law were complied with in
its execution.
In Arumugam V. Sanmugam – 4 NLR 314, it was held that
it is dangerous doctrine that a deed on the face of it regular, executed before
a Notary, who is a public officer and bearing his attestation that everything
was done in due form should be set aside on the statement of one of the
witnesses that the formalities were not observed, it is only by very cogent
evidence that the presumption of law that all requirements have been complied
with can be rebutted.
It was held in Wijeyaratne
and Another V. Somawathie ( 2002) 1 Sri LR 93 that a deed where a thumb
impression was placed without a mark by the executant was valid and the absence
of a mark by the executant at most would be non-observance by the Notary of the
Rules specified in section 31.
In the case of L. Marian V. S. Jesuthasan – 56 NLR
348, it was held that where a deed executed before a Notary is sought to be
proved, the Notary can be regarded as an attesting witness within the meaning
of section 68 of the Evidence Ordinance provided only that he knew the
executant personally and can testify to the fact that the signature on the deed
is the signature of the executant.
In Jamaldeen Abdul Lathieef V. Abdul Majeed and another
– (2010) 2 Sri.L.R. 333, it was held that even the Notary Public before whom it
was executed is deemed to be an attesting witness if he knew executants
personally.
In Hemathilake V. Allina and others – (2003) 2 Sri
L.R. 144, it was held that even if in fact the notary has failed to comply with
any provision in section 31 of the Notaries Ordinance, it is well-settled law
that the validity of the deed is not thereby affected (section 33)
On page 109 of The Law of Evidence – Vol. 11 – Book 1 by
E.R.S.R. Coomaraswamy, it states that a notary is an attesting witness within
the meaning of sections 68 and 69. But this rule is subject to the important
qualification that a notary who did not know the executant and who merely
attested the document on the faith of the witnesses knowing the executant,
cannot be considered an attesting witness for the purpose of sections 68 and 69
of the Ordinance.
Sangarakkita Thero V. Buddarakkita Thero
is a case where
there was a dispute as to the incumbency of a temple. It was held that A deed
which on its face appears to be in order is presumed to have been duly
executed. The mere framing of an issue as to the due execution of the deed
followed in due course by a perfunctory question or two on the general matter
of execution, without specifying in detail the omissions or illegalities which
are relied upon, is insufficient to rebut that presumption.
However, Section 68 of
Partition Law permits to produce deeds in a Partition Action without formal
proof.
The said section states; It shall not be necessary in any
proceedings under this Law to adduce formal proof of the execution of any deed
which, on the face of it, purports to have been duly executed, unless the
genuineness of that deed is impeached by a party claiming adversely to the
party producing that deed, or unless the court requires such proof.
3.3.4 Proof of Public Documents
Certified copies may be produced in
proof of the contents of the public documents or parts of the public documents
of which they purport to be copies. (Section 77 E.O.) The Public
Documents are defined in section 74 of the Evidence Ordinance. All other documents
that do not come within the definition of public documents are Private
Documents.
Section 78 of the evidence ordinance stipulates the manner
some of the public documents may be proved. Accordingly acts, orders or
notifications of the Government of Sri Lanka or of any of its departments may
be proved by the records of the departments certified by the heads of those
departments respectively, or by the Permanent Secretary or a Deputy or an
Assistant Permanent Secretary, or by any document purporting to be printed by
order of the Government;
The proceedings of the Legislature
may be proved by the minutes of that body, or by published enactments or
abstracts, or by copies purporting to be printed by order of Government.
It was discussed in the case of Pieris V. Pieris (2005) 1 Sri LR 213 about the “Public Document”
stated in the above sections of the Evidence Ordinance. It was held:
(i)
In view
of the presumption to be drawn in respect of public documents in terms of the
provisions of the Evidence Ordinance, there is no requirement of evidence of
the executants of such document being placed before the court.
(ii)
Whether
a particular document is a public document is a matter to be determined by the court
and not on the evidence of the executant or an officer of the Department
concerned but on the nature of the document as explicit on the face of it.
(iii)
When
the rules of evidence require that the court should presume the genuineness of
the public document, the burden of rebutting such presumption is with the party
who challenges same.
Ukkuwa V. The Attorney General (2002) 3 Sri LR 279 - The Government
Analyst's report, is merely a document that bears a contemporaneous record that
is maintained in the ordinary course of business of the Government Analyst's
Department and there is a presumption which operates in favour of such records,
that is they are genuine and maintained by public officers, in the course of
their duty.
3.3.5 Proof of
Bankers Books
Section 90(C) of the Evidence Ordinance provides room to
accept a certified copy of any entry in a banker's book as prima facie evidence
in any legal proceeding. The said section reads as follows:
Subject to the provisions of this Chapter, a certified copy
of any entry in a banker's book shall in all legal proceedings be received as
prima facie evidence of the existence of such entry, and shall be admitted as evidence
of the matters, transactions, and accounts therein recorded in every case
where, and to the same extent as the original entry itself is now by law
admissible, but not further or otherwise.
3.3.6 Proof of Documents - Exceptions
According to section
18 of the Partition Law No.21 of 1977, the Preliminary Plan, Court
Commissioner's report, and his field notes could be used as evidence in a
Partition Action, without further proof. However, that the court shall, on the
application of any party to the action and on such terms as may be determined
by the court, order that the surveyor shall be summoned and examined orally on
any point or matter arising on, or in connection with, any such document or any
statement of fact therein or any relevant fact which is alleged by any party to
have been omitted therefrom.
3.4 Presumptions on documents
Section 79 of the evidence ordinance deals with the
presumptions as to the genuineness of certified copies. The section reads as
follows:
(1)
The Court shall presume every document purporting to be a certificate,
certified copy, or other documents, which is by law declared to be admissible
as evidence of any particular fact, and which purports to be duly certified by
any officer in Ceylon, to be genuine: Provided that, such document is
substantially in the form and purports to be executed in the manner directed by
law in that behalf.
(2) The Court shall also presume that any officer, by whom
any such a document purports to be signed or certified, held, when he signed
it, the official character which he claims in such paper.
Section 79 to 90 of the evidence ordinance deals with the
presumptions regarding various kinds of documents.
3.4.1 Presumption on the production of Record of
Evidence
Section 80 of the Evidence Ordinance - Whenever any document
is produced before any court purporting to be a record or memorandum of the
evidence or of any part of the evidence given by a witness in a judicial
proceeding or before any officer authorized by law to take such evidence or to
be a statement or confession by any prisoner or accused person taken in
accordance with law and purporting to be signed by any Judge or Magistrate or
by any such officer as aforesaid, the court shall presume-
(i)
that
the document is genuine;
(ii)
that any
statements, as to the circumstances under which it was taken, purporting to be
made by the persons signing it, are true; and
(iii)
that
such evidence, statement, or confession was duly taken.
The following judicial authorities deal with the presumption
on the production of the record of evidence in terms of section 80 of the
Evidence Ordinance.
The King V. Kadirgaman 41 NLR 534 - The deposition of a
witness cannot be used in evidence without formal proof.
The Queen V. Rev. H. Gunaseeha Thero
and 21 others 73 NLR 154 - section 134 of the Criminal Procedure Code can be acted upon by
Magistrates only after the commencement of proceedings in a Magistrate's Court
and persons who are suspected of conspiracy to overthrow the Government (a non-cognizable
offence) are taken into preventive detention under the Emergency Regulations, a
Magistrate has no power to record in terms of section 134 of the Criminal
Procedure Code.
Held further, that confessions, which a Magistrate purports
to record under section 134 of the Criminal Procedure Code at a time when no
proceedings have commenced before a Magistrate's Court are inadmissible in
evidence against the accused.
3.4.2 The other documents that
the genuineness is presumed.
Apart from the said judicial
proceedings;
The genuineness of the Gazettes of Sri Lanka is presumed. (Section
81 E.O.) The court shall presume
that maps, plans, or surveys purporting
to be signed by the Surveyor-General or officer acting on his behalf were
duly made by his authority and are accurate; but maps, plans, or surveys not so
signed must be proved to be accurate. (Section 83 E.O.)
It was held in The
Surveyor General V. Zylva- 12 NLR 53 that “The presumption created by
section 83 of the Evidence Ordinance (No. 14 of 1895) in favour of plans and
surveys purporting to be signed by or on behalf of the Surveyor-General,
extends to everything necessary to be done in order to make the survey or plan
a faithful drawing and measurement of the lands surveyed.
The above decision has been incorporated in the recent
judgment of Dehiwela-Mt.Lavinia
Municipal Council V. Fernando and others (2007) 1 Sri LR 293.
The Court shall presume the genuineness of every book
purporting to be printed or published under the authority of the Government of
any country and to contain any of the laws of that country, and of every book
purporting to contain reports of decisions of the Courts of such country. (Section
84 E.O.)
Due execution and
authentication of a Power of Attorney executed
before and authenticated by a notary public or duly authorized person by law,
is presumed. (Section 85 E.O.)
3.4.3 Thirty years old document.
In addition, where any document purporting or proved to be
thirty years old is produced from any custody which the court in the particular
case considers proper, the court may presume that the signature and every other
part of such document which purports to be in the handwriting of any particular
person is in that person's handwriting and in the case of a document executed
or attested, that it was duly executed and attested by the persons by whom it
purports to be executed and attested. (Section 90 E.O.)
In Kirimenika V. Duraya – 17 NLR 11, it was held that
a duplicate of a deed over 30 years old produced from the office of the
Registrar-General is admissible in evidence without further proof, it must be
held to have been produced from proper custody within the meaning of section 90
of the Evidence Ordinance.
Now, the question arises as to what proper custody is. The
explanation to section 90 states that Documents are said to be in proper
custody if they are in the place in which, and under the care of the person
with whom they would naturally be; but no custody is improper, if it is proved
to have had a legitimate origin, or if the circumstances of the particular case
are such as to render such an origin probable.
Section 161 of the Civil Procedure
Code explains how an old document, whose execution need not be proved, is
proved. The said section reads as follows:
When the document purports on the
face of it to be so old that proof of the actual execution is not required by
law, it is not proved until sufficient evidence has been given to prove both
that it comes into court from the proper custody, and that it has continued to
be in proper custody throughout the period during which it can be reasonably
accounted for.
3.4.4 Proxy or a Power of Attorney
Cinemas Limited V. sounderarajan (1998) 2 Sri LR 16 - Once a Court
accepts and acts on a proxy or a power of attorney presumably because no defect
appears on the face of such document, any party who desires to question the
authority of that document has the onus of showing, the want of authority. This
rule is based on the presumption - omnia
praesumuntur rite et solemniteresse acta donecprobetur in contrarium.
3.5 Translations
of Documents.
Translation of any document is accepted as evidence only in
terms of section 118 of the CPC. It states that “No translation of any document
tendered in evidence in any court shall be permitted to be read as a
translation of such document unless the same shall be signed by an interpreter
of the Supreme Court, or the Court of Appeal, or by a Government sworn
translator, or by a sworn translator or interpreter of some District Court,
Family Court or Primary Court.”
Who shall be deemed a translator is
described in section 119 of the CPC.
119. No person other
than an interpreter of the Supreme Court, or the Court of Appeal, or a
Government sworn translator, or an interpreter of a District Court, or Family
Court or Primary Court, shall be deemed to be a translator of any court unless
he shall have received a certificate from the Judge of such court that he is
competent to fulfill the duties of a translator, and shall have taken an oath
before such Judge faithfully to perform the duties of his office.
3.6 How a
document is marked and produced in a Civil Action.
There is a procedure laid down in the civil procedure code
how a document could be produced as evidence of a case.
The parties or their registered attorneys shall bring
with them and have in readiness at the hearing of the action, to be produced
when called for by the court, all the documentary evidence of every description
in their possession or power, on which they intend to rely, and which has not
already been filed in court, and all documents which the court at any time
before such hearing has ordered to be produced. (Section 111 of C.P.C.)
A document called for and not produced shall not be received
afterward according to section 112 of the Civil Procedure Code. The said
section reads as follows:
“No documentary evidence in the possession or power of any
party which should have been, but has not been, produced in accordance with the
requirements of section 111, shall be received at any subsequent stage of the
proceedings, unless good cause be shown to the satisfaction of the court for
the non- production thereof. And the court on receiving any such evidence shall
record its reason for so doing.”
When it is needed to mark and produce a document through a
witness there is a procedure to be followed. Section 155 of C.P.C. describes
the said procedure in the following way. 155. Before a witness is allowed to,
in any way, identify a document, he should generally be made, by proper
questioning, to state the grounds of his knowledge with regard to it.
Illustration
If the witness is about to speak to the act, or factum, of
signature he should first be made to explain concisely the occurrences which
led to his being present on the occasion of the signing; and if he is about to
recognize a signature on the strength of his knowledge of the supposed signer's
handwriting, he should first be made to slate the mode in which this knowledge
was acquired.
154(3) The document or writing being admitted in evidence,
the court, after marking it with a distinguishing mark or letter by which it
should, when necessary, be ever after referred to throughout the trial, shall
cause it, or so much of it as the parties may desire, to be read aloud.
Explanation
If the opposing party does not, on the document being
tendered in evidence, object to its being received, and if the document is not
such as is forbidden by law to be received in evidence, the court should admit
it.
If, however, on the document being tendered the opposing
party objects to its being admitted in evidence, then commonly two questions
arise for the court:-
Firstly, whether the document is authentic- in other words,
is what the party tendering it represents it to be; and
Secondly, whether, supposing it to be authentic, it
constitutes legally admissible evidence as against the party who is sought to
be affected by it
The latter question in general is a matter of argument only,
but the first must be supported by such testimony as the party can adduce. If
the court is of opinion that the testimony adduced for this purpose, developed
and tested by cross-examination, makes out a prima facie case of authenticity
and is further of opinion that the authentic document is evidence admissible
against the opposing party, then it should admit the document as before.
If, however, the court is satisfied that either of those
questions must be answered in the negative, then it should refuse to admit the
document.
Whether the document is admitted or not it should be marked as soon as any witness makes a
statement with regard to it; and if not earlier marked on this account, it
must, at least, be marked when the court decides upon admitting it.
It is to be seen on some occasions, when a document is not
admitted, the opposite party objects to mark the document. However, this
section says although it is not admitted the document has to be marked.
The questioning for this purpose should be effected by the
party who is seeking to prove the document; and the opposing party, if he
desires to do so, should be allowed to interpose with cross examination on this
point before the document is shown to the witness. (Section.156 C.P.C.)
Court to examine the capacity and
knowledge of a witness to identify a writing
Section 157 of the CPC -It is the duty of the court, in the event of a
witness professing to be able to recognize or identify writing, always to take
care that his capacity to do so is thus tested, unless the opposite party
admits it.
In terms of section 158 of the CPC,
Court shall permit the witness to give evidence only when the court is
satisfied that the witness is competent to identify handwriting. The section
reads as follows: “If on the examination effected for this purpose it appears
to the court that the witness was not in fact present at the time of signing,
or is not reasonably competent to identify the handwriting, then the court
shall not permit him to give his testimony on the matter of the signature.”
The court may reserve questions as to the discovery or
inspection of a document in terms of section 108 of the civil procedure code.
What is important is that any document to be considered as
evidence in a case, it has to be proved because section 114(1) of the Civil
Procedure Code states that, “No document shall be placed on the record unless
it has been proved or admitted in accordance with the law of evidence for the
time being in force.”
Every document so proved or admitted
shall be endorsed with some number or letter sufficient to identify it. The Judge shall then make an entry
on the record to the effect that such document was proved against or admitted
by (as the case may be) the person against whom it is used, and shall in such
entry refer to such document by such number or letter in such a way as to
identify it with the document so proved or admitted. The document shall then be
filed as part of the record. (Section 114(2) C.P.C.)
It was stated previously that although a document could not
be admitted, it has to be marked. However, all those documents produced at the
hearing and not so proved or admitted shall be returned to the parties
respectively producing them. (Section 114(3) C.P.C.)
113.(1) The court shall receive the documents respectively
produced by the parties at the hearing, provided that the documents produced by
each party be accompanied by an accurate list thereof, Rejection of irrelevant
or inadmissible documents.
113(2) The court may at any stage of the action reject any
document, which it considers irrelevant or otherwise inadmissible, recording
the grounds of such rejection.
It is found in some instances that marked documents are not
tendered by parties at the conclusion of the trial. Then the trial judge faces
difficulty in determining the case. However, the blame could not be put on the
parties because there is a duty on the court to take the documents tendered and
marked at the trial to its custody and keep them filed of record as decided in Podiralahamy V. Ran Banda - (1993) 2
Sri LR 20. It was also stated in the said decision that the Documents marked in
evidence become part of the record. The same decision was made in Perera V. Caldera & Others
2007-1-165 also. It was also held in the said case that there seems to be a
serious lapse in this case where a judgment has been pronounced without
documents being considered by the original court and it would be no excuse for
a trial judge to observe on the judgment that the defendant had not tendered
the marked documents to the court. The District Judge should call for those
documents.
The practice of most civil courts is that marked documents
are kept with the counsel of the parties on the understanding that they are
produced with their written submissions at the end of the trial. However, in
the said decision of Podiralahamy V. Ran Banda, it is stated that there is a
duty cast on the Court once the document is admitted and endorsed with a letter
to identify it that the Court should have the custody of the documents so
marked and identified, though the original Courts for convenience return the
documents to Attorneys of the respective parties.
3.6.1 Records of Judicial Proceedings
How to mark, Inspect.
As stated in section 80 of the E.O.,
the genuineness of the judicial proceedings is presumed.
According to section 154(1) of CPC an original document
already filed in the record of some action, or the deposition of a witness made
therein, it must previously be procured from that record by means of, and under
an order from, the court. If it is a portion of the pleadings or a decree or
order of court made in another action, it shall not generally be removed there
from, but a certified copy thereof shall be used in evidence instead.
Section 154(2) of the CPC specifically states that “Records of other actions not to be admitted
in bulk”.
It is stated in subsection (2) that It shall not be competent
to the court to admit in evidence the entire body of proceedings and papers of
another action indiscriminately. Each of the constituent documents, pleadings,
or processes of the former action, which may be required in the pending action,
must be dealt with separately as directed above. Documents admitted to be read
aloud in court.
How a portion of a record of another action has to be marked
is explained in Kandiah V. Saraswathy
54 NLR 137. It was held that the requirement of section 154 of the civil
procedure code should be strictly observed. When relevant portions of the
record of another action are admitted in evidence each of them must be
separately marked and stamped.
Section 110 of the Civil Procedure
Code provides room for the Court to inspect records of other courts. The said
section states;
110(1) The court may of its own accord, or in its discretion
upon the application of any of the parties to an action, send for, either from
its own records or from any other court, the record of any 'other action or
proceeding, and inspect the same.
110(2) Every application made under this section shall
(unless the court otherwise directs) be supported by an affidavit of the
applicant or his registered attorney, showing how the record is material to the
action in which the application is made, and that the applicant cannot, without
unreasonable delay or expense, obtain a duly authenticated copy of the record
or of such portion thereof as the applicant requires, or that the production
of- the original is necessary for the purposes of justice.
110(3) Nothing in this section shall be deemed to enable the
court to use in evidence any document, which by the law of evidence in force in
Sri Lanka would be inadmissible in the action.
3.6.2 Documents being admitted
in evidence.
154(3) of the C.P.C. states that The
document or writing being admitted in evidence, the court, after marking it
with a distinguishing mark or letter by which it should, when necessary, be
ever after referred to throughout the trial, shall cause it, or so much of it as
the parties may desire, to be read aloud.
It is often to be seen in Civil
Actions that as a practice opposing party objects almost for all the documents
marked by the other party. However, if no objection is taken when a document,
which had been marked subject to proof, is read in evidence at the closure of
the case, such a document has to be considered as evidence for all purposes of
the law according to the following decisions.
Sri Lanka Ports Authority & Another V. Jugolinija Boal East (1981) 1 Sri LR 18 - If no objection
is taken, when at the close of case documents are read in evidence, they are
evidence for all purposes of the law.
Wanigaratne & another V.
Wanigaratne (1997) 2
Sri LR 267 - where no objection is taken when a document is read in evidence at
the closure of the case to a document which had been marked subject to proof,
the earlier objection is deemed to have been waived.
Balapitiya Gunananda Thero
V. Talalle Methananda Thero (1997) 2 Sri LR 101 - Where a document is admitted
subject to proof but when tendered and read in evidence at the close of the
case is accepted without objection, it becomes evidence in the case. This is
the cursus curiae.
Cinemas Ltd. V.
Sounderarajan (1998)
2 Sri LR 16 - In a civil case when a
document is tendered the opposing party should immediately object to the
document. Where the opposing party fails to object, the trial judge has to
admit the document unless the document is forbidden by law to be received and
no objection can be taken in appeal - S. 154 CPC (explanation).
In view of the above judicial authorities, it appears that
the law is almost settled in respect of the said issue. However, I am of the
view that there are some other aspects to be looked into, in admitting the
documents that have not been proved, as evidence of a case. Undoubtedly, the
above decisions are perfectly correct for the documents that the opposing party
needs proof of. However, what would happen to the documents that the court also
needs proof of. According to the above judicial authorities, if no objection is
taken at the closure of the case, all those documents marked subject to proof,
have to be considered as evidence for all purposes of the law even though the
court thinks that it is necessary to prove the document. Certainly, there could
be very vital documents that need proof for the proper adjudication of the
case. Even then, the court has to consider them as evidence, if the other party
does not object. Sometimes, it could happen this way. When a forged document is
produced, the opposing party objects. However, the party who objected realizes
later that the said document is favorable for them as well to establish their
rights and therefore does not object at the closure of the case of the other
party. There is no doubt that the proving of the genuineness of such a document
is essential for the court to come to the correct conclusion of the case.
Anyhow, the decisions of the above judicial authorities would prevail as an
obstacle in ascertaining the genuineness of such a document.
On the other hand, when a party objects to a document
tendered by the opposing party, the court accepts the document subject to
proof. So, the decision to accept the document subject to proof is a decision of
the court. The meaning of that decision is if the document is proved, it would
be accepted as evidence and if it is not proved, it would not be accepted as
evidence. However, what happens is that the court accepts the document as
evidence without proof if the opposing party does not make an objection at the
closure of the plaintiff’s or defendant’s case.
In the circumstances, it is my view that there should be a
distinction between the documents that the opposing party needs proof of and
the documents that the court needs proof of. The decisions of the aforesaid
judicial authorities have to be followed only for the documents that the
opposing party needs proof. Irrespective of the fact, whether an objection is
taken by the opposing party at the closure of the case or not, the documents
that the court needs proof of must be proved to accept them as evidence,
according to my view.
* I wish to state that I wrote this article in 2013 to the
“Galle Law Journal”. In 2020, the Supreme Court takes a similar view to the
aforesaid view regarding the procedure to be adopted in proving a deed. I
thought it is vital to update this article by citing that important judicial
authority.
In Dadallage Anil Shantha
Samarasinghe V. Dadallage Mervin Silva and another – SC Appeal 45/2010 –
Decided on 11.06.2019, it was observed that if the principle enunciated in the
case of Jugolinja Boal-East (supra) is accepted in respect of deeds, even a
fraudulent deed marked subject to proof can be used as evidence, if it is not
objected by the opposing party at the close of the case of the party which
produced it. In the said Supreme Court case, it was held that when a document
which is required to be proved in accordance with the procedure laid down in
section 68 of the Evidence Ordinance is produced in evidence subject to proof
but not objected to at the close of the case of the party which produced it,
such a document cannot be used as evidence by courts, if it is not proved.
The said judgment is perfectly
correct, otherwise, there is no purpose in section 68 of the Evidence Ordinance
which stated that “If a document
is required by law to
be attested, it
shall not be used
as evidence until
one attesting witness at
least has been
called for the
purpose of proving
its execution, if there
be an attesting
witness alive and subject
to the process
of court and
capable of giving evidence.”
In Samarakoon v. Gunasekera and
Another (2011) 1 Sri L.R.149, it was held that the High Court in total
disregard of the specific and stringent provisions of Section 68 of the
Evidence Ordinance had relied on an obiter dictum made in a case where due
execution was challenged, to reverse the decision of the District Judge.
Further, it was held that in terms of Section 2 of the Prevention of Frauds
Ordinance, a sale or transfer of land has to be in writing signed by two or more
witnesses before a notary, duly attested by the notary and the witnesses. If this is not done, the document and its
contents cannot be used in evidence.
In this Judgement at page 154, it has
been held further that “A deed for the sale or transfer of land, being a
document which is required by law to be attested, has to be proved in the
manner set out in section 68 of the Evidence Ordinance by proof that the maker
(the vendor) of that document signed it in the presence of witnesses and the
notary. If this is not done, the document and its contents cannot be used in
evidence.
Now, a vital matter to be considered
is that by the aforesaid SC Appeal No. 45/2010, Jugolinja Boal decision has not
been overruled. What the Hon. Justice Sisira de Abrew states is “I do not think
that the principle enunciated in the case of Jugolinja Boal (supra) extends to
such a situation”. The reason is obvious. The documents produced in the Jugolinja Boal case were pertaining to carrying
cargo because the case was filed for loss of cargo during transshipment in the
port of Colombo. There is no specific requirement in law to prove such
documents unless there is an objection. However, when it comes to prove a deed,
there is a specific requirement in law, that is section 68 of the Evidence
Ordinance to prove a deed. On such occasions, it has to be proved in the manner
set out by law even though there was no objection by the opposing party at the
close of the case.
A similar legal position was
enunciated in the case of Mohamed Naleem Mohomed Ismail V. Samsulebbe Hamithu–
SC Appeal 04/2016 – Decided on 02.04.2018. This is a case filed seeking an
order of declaration of title. The plaintiff relied on his title on the deed
produced marked P7. When the plaintiff closed its case without calling any
witnesses to prove P7 before the District Court, the defendant did not raise
any specific objection to the failure by the plaintiff. The Supreme Court held
that the decision of the District Court to dismiss the action was correct as
the plaintiff had failed to establish his title as required by law. Considering
section 68 of the Evidence Ordinance and section 31 of the Notaries Ordinance
together with the settled law in respect of Rei Vindicatio action, that the
burden is clearly on the plaintiff to establish his title. The Supreme Court
held that the plaintiff’s title has to be proved as required by law even though
no objection was taken by the defendant.
In the above case also the decision
of Sri Lanka Ports Authority and another V. Jugolinja Boat-East and in the case
of Balapitiya Gunananda Thero V. Talalle Methananda Thero were considered and
held that none of these cases referred to a document which required by law to
be attested.
So, it is apparent that when the law
requires a deed or some other document to be proved in a certain manner, it has
to be proved although an objection is not taken by the opposing party. However,
the Jugolinja Boal decision still applies for the documents where no specific
provision in law stipulating how the document has to be proved.
3.7 Refreshing memory by referring to a
document
Section 159 of the Evidence Ordinance permits a witness to
refresh his memory by referring to writing made by him as well as writing made
by any other person and section 160 permits to testify to facts mentioned in
those documents in the following way:
3.7.1 Refreshing memory
159(1) A witness may, while under examination, refresh his memory
by referring to any writing made by himself at the time of the transaction
concerning which he is questioned or so soon afterward that the court considers
it likely that the transaction was at that time fresh in his memory.
M.S. Abu Bakar V. The Queen 54 NLR 566 - The
prosecution adduced evidence to the effect that the speech in question was
electrically recorded, and subsequently reproduced, by means of an instrument
called the Webster wire recorder, and that when it was reproduced it was taken down
in writing by a witness.
It was held that it was open to witness W. to give oral
evidence of the words that were reproduced in his hearing by means of the
instrument, using the writing that he made at the time of the reproduction to
refresh his memory (Section 159
E.O.).
3.7.2 By writing made by another
159(2) - The witness may also refer to any such writing made
by any other person, and read by the witness within the time aforesaid, if when
he read it he knew it to be correct.
3.7.3 When witness may use a copy of a document to refresh
memory
159(3) - Whenever a witness may refresh his memory by
reference to any document, he may, with the permission of the court, refer to a
copy of such document. Provided the court be satisfied that there is sufficient
reason for the non-production of the original.
3.7.4
By professional treaties.
159 (4) - An expert may refresh his memory by reference to
professional treaties.
Section 160 E.O. - A witness may also testify to facts
mentioned in any such document as is mentioned in section 159, although he has
no specific recollection of the facts themselves, if he is sure that the facts
were correctly recorded in the document.
It was decided in The
King V. Mohottihamy 42 NLR 121, that “even if a witness may refresh his memory
by referring to his deposition, the deposition cannot be read out to him nor
can it be made evidence at the trial.
It was held further; A deposition taken under section 407 of
the Criminal Procedure Code cannot be read in evidence at the trial unless
proper proof was forthcoming that the accused was absconding at the time.”
T.B.M. Herath V. W.M. Senaviratne 70 NLR 145 was a case where the appellant was elected Member
of Parliament and his election was held to be void following an election
petition on the ground that the appellant and three other persons, being agents
of the appellant, had committed corrupt practices in connection with the
election. The corrupt practice in each case consisted of the making of false
statements of fact in relation to the personal character or conduct of the
unsuccessful candidate.
A
police officer took down at an election meeting rough notes of the speeches
made at the meeting and subsequently prepared from those notes a report for
transmission to the Officer-in-Charge of the Station. After the report was
prepared, the rough notes were destroyed.
It was held,
that the Police report was not admissible in evidence under Section 35 of the
Evidence Ordinance in proof of statements made by the speakers at the meeting.
Such a report is not a “book, register or record” within the meaning of that
Section.
4.0 EVIDENCE (SPECIAL PROVISIONS) ACT
NO.14 OF 1995
As stated at the commencement, the documentary evidence is
not confined to papers. With the rapid development of technology in the world,
new sort of documentary evidence has been developed. Evidence (Special
Provisions) Act provided new avenues in producing that documentary evidence. Section
4 of the said act permits to admit contemporaneous recording or reproduction
thereof as evidence. According to the said section, in any proceeding where
direct oral evidence of a fact would be admissible, any contemporaneous
recording or reproduction thereof, tending to establish that fact shall be
admissible as evidence of that fact, if the conditions set out in the said
section are fulfilled.
Section 5 of the said act permits to accept Computer evidence
in the following way. In any proceeding where direct oral evidence of a fact
would be admissible, any information contained in any statement produced by a
computer and tending to establish that fact shall be admissible as evidence of
that fact, if the conditions set out in the said section are fulfilled.
Where any party proposes to tender any evidence under section
4 or 5 of this Act in any proceeding, an affidavit dealing with any of the
matters stated in the said section and purporting to be made by a person
occupying a responsible position in relation to the operation of the relevant
machine, device or computer or the management of the relevant activity,
whichever, is the case, shall be admissible in evidence without calling such
person as a witness and shall be evidence of the matters stated therein.
(Section 6 of the Evidence (Special Provisions) Act)
Section 6(2) - For the purpose of this section it shall be
sufficient for a matter to be stated to the best of the knowledge and belief of
the person stating it;
However, the
court may on application by the opposing party or of its own motion, examine
the maker of the affidavit, and or any other person said to be acquainted with
any of the matters set out in the affidavit. in open court touching, any of the
matters set out in the affidavit or any other relevant matter that may be
connected with, or incidental thereto.
4.1 Notice, Access and Inspection
However, there is a procedure laid down in section 7 of the
said act in producing evidence under sections 4, and 5.
The party proposing to tender such evidence shall, not later
than forty-five days before the date fixed for inquiry or trial file, or cause
to be filed, in court, after notice to the opposing party, a list of such
evidence as is proposed to be tendered by that party, together with a copy of
such evidence or such particulars thereof as is sufficient to enable the party
to understand the nature of the evidence;
7(b) Any party to whom a notice has been given under the
preceding provision may, within fifteen days of the receipt or such notice
apply to the party giving such notice, to be permitted access to, and to
(i)
the
evidence ought to be produced;
(ii)
the
machine, device or computer, as the case may be, used to produce the evidence;
(iii)
any
records relating to the production of the evidence or the system used in
such production;
7(c) Upon receipt of the application to be permitted access
to, and to inspect such evidence, machine, device, computer, records or system,
the party proposing to tender such evidence shall, within reasonable time, bat
not later than fifteen days after the receipt of the application, comply with
the request and provide a reasonable opportunity to the party applying or his
agents or nominees, to have access to, and inspect, such evidence, machine,
device, computer, records or systems, as is mentioned in the application;
7(d) Where the party proposing to tender such evidence is
unable to comply, or does not comply with, the application for access and inspection,
or where the parties are unable to agree on any matter relating to the notice
or the application for access and inspection or the manner and extent of the
inspection, the court may on application made by either party, make such order
or give such direction, as the interests of justice may require.
7(2) Save as provided for in sections 8 and 9 where any party
proposing to tender any evidence under the provisions of this Act, fails to
give notice as aforesaid, or upon application being made for access and
inspection, fails to provide a reasonable opportunity therefor, or fails to
comply with any order or direction given, by court under paragraph (a), such party shall not be permitted to tender
such evidence in respect of which the failure was occasioned.
When I was in the Criminal High Court Colombo, in a case
tried before me, the prosecution tendered the notice of computer-generated
evidence on 02.11.2016 with the intention of leading such evidence in terms of
Evidence (Special Provisions Act) No. 14 of 1995. On 10.11.2016, complying with
section 7(1) (b), the accused sought permission to access and inspect the
evidence sought to be produced. The prosecution was unable to respond to the
said request made on behalf of the accused within the stipulated period of 15
days in terms of section 7 (1) (c). However, the prosecution informed after 15
days permitting the accused to access and inspect computer evidence. At that
point, the learned counsel for the 1st accused refused to inspect
computer evidence and took up a preliminary objection on the basis that the
prosecution has failed to comply with section 7 (1) (c) by providing access and
inspection within 15 days. The learned President’s Counsel for the 1st
accused made an application not to accept the computer-generated evidence, as
the prosecution failed to give access within the stipulated mandatory period of
15 days under section 7(1) (c) of the Act.
This issue has never been determined by an Appellate Court
previously. Having heard both parties, I made an order allowing to access and
inspect the computer-generated evidence and thereafter to accept the same as
evidence. The basis of my decision was that the legislature has given
discretion to the court under section 7(1) (d) to consider the circumstances
and to make an order as the interest of justice may require.
My order was challenged in the Court of Appeal. In Tiran
Alles V. Hon. Attorney General and others – CA (PHC) (APN) 35/2018, High
Court of Colombo Case No: HC 8377/16, decided on 14.01.2020, it was held by the
Court of Appeal that section itself states that when there is a non-compliance
or disagreement by the parties relating to the notice of the application for
inspection, the court may make an order or give direction in the interest of
justice. Hence, it is evident that the intention of legislature is to provide
the judge with the discretionary power and the judge has a discretion to permit
the applicant to lead such evidence.
Hon. K. Priyantha Fernando, J. stating his Lordships
reasoning separately in addition to the reasoning of Hon. K.K. Wickremasinghe,
J., stated as follows;
·
The
evidence (Special Provisions) Act No. 14 of 1995 was in acted to provide for
the admissibility of audiovisual recordings, the information contained in
statements produced by computers, and to provide for matters connected
therewith.
·
The
prohibition under section 7(2) operates subject to any order or direction made
by the court in terms of section 7(1)(d).
·
The
requirement of the time limit appears to be directory because, although it lays
down a time limit the court is also vested with an express power under section
7(1)(d) to vary the time limits for compliance, the manner and extent of the
inspection upon an application by either party.
·
It
is incumbent upon the court to act in the interest of justice and to give
effect to the intention of the legislature.
Having made the above observations,
the Court of Appeal affirmed the order made by me in the High Court. Hence, the
legal position in respect of section 7(1)(a) to 7(1)(d) is now settled.
5.0 ELECTRONIC TRANSACTIONS ACT NO.19 OF
2006
Long before the Evidence (Special Provisions) Act No.14 of
1995 and Electronic Transactions Act came into operation, subsequent reproductions
of electric recordings were admitted as evidence in our country. Such an
instance is found in the case of In Re
Wickremasinghe 55 NLR 511. Briefly, the facts of this case are as follows:
In the course of a speech at a public meeting, the respondent
criticized judges in such a manner that no person who may have been persuaded
by the speech to accept the views expressed in it about the judiciary could
continue to have confidence in the impartiality of the courts of justice, and
in particular of the courts in the city of Galle.
A Rule issued by the Court on December 9, 1953, called upon
the respondent to " show cause" why he should not be punished for an
offence of contempt against and in disrespect of the authority of the Courts of
this Island and in particular of the District Court and the Magistrate's Court
of Galle " committed by the uttering of certain words in the course of a
speech made by him at a public meeting held at the Galle Esplanade on October
4, 1953. The speech was made in Sinhalese, and the passage that was alleged to
constitute a contempt was set out in the Rule together with a translation of it
in these terms:-
The words imputed to him in the Rule
are quoted from a report which, according to some of these affidavits, is based
on an electrical recording of his speech made on a " Grundig " tape
recorder.
It was held that it is no less an offence of contempt of court
to scandalise the judiciary generally than to scandalise the Judge or Judges of
a particular court.
In the case of M.S. Abu
Bakar V. The Queen 54 NLR 566 also, it was held that it was open to the
witness to give oral evidence of the words of an electrically recorded speech
that were reproduced in his hearing by means of an instrument.
Hon. Chitrasiri J. has observed both these decisions when he
came to the conclusion that SMS was admissible under both the provisions of the
original Evidence Ordinance as well as in terms of the provisions of the Electronic
Transactions Act, in the case of Marine Star (Pvt.) Ltd. V. Amanda Foods Lanka
(Pvt.) Ltd.
However, the Electronic Transactions Act was introduced in
2006 and section 21(2) states that any information contained in a data message,
or any electronic document, electronic record, or other communication
(a)
touching
any fact in issue or relevant fact; and
(b)
compiled,
received or obtained during the course of any business, trade or profession or
other regularly conducted activity,
shall be admissible in any proceedings:
Provided that, direct oral evidence of such fact in issue or
relevant fact if available, shall be admissible ; and there is no reason to
believe that the information contained in a data message, or any electronic
document, electronic record or other communication is unreliable or inaccurate.
Now, the question arises as to whether the forty-five days
prior notice to the opposing party, access and inspect the evidence or the
machine, device, computer to be produced or other requirements set out in the
Evidence (Special Provisions) Act should be complied with, in producing such
evidence. It is correct that the evidence (special Provision) act was not
repealed or abolished when the Electronic Transactions Act was introduced.
However, it is stated in section 21(1) of the Electronic Transactions Act that
notwithstanding anything to the contrary in the Evidence Ordinance or any other
written law, the following provisions of this section shall be applicable for the
purposes of this Act. It is also stated in section 22 of the said act that
Nothing contained in the Evidence (Special Provisions) Act, No. 14 of 1995
shall apply to and in relation to any data message, electronic document,
electronic record, or other documents to which the provisions of this Act apply.
Hence, it is apparent that this section clearly shut out the applicability of
the provisions of the Evidence (Special Provisions) act.
Hence, it could be argued that the procedure set out in
section 7 of the Evidence (Special Provisions) Act need not be followed when
data message, electronic document, electronic record or other documents to
which the provisions of the Electronic Transactions Act is applied, are
produced as evidence. Section 21(2) of the Electronic Transactions Act states
that any information contained in a data message, or any electronic document,
electronic record or other communication shall be admissible in any proceedings
subject to the two requirements stated therein and two qualifications set out
in the proviso to the said section. That is; Electronic Evidence is admissible
only in circumstances when direct oral evidence of such fact in issue or
relevant fact, if available, would have been in law admissible and if there is
no reason to believe that the information contained in the data message, or the
electronic document, electronic record or other communication is unreliable or
inaccurate. Thus, it is apparent that this electronic evidence is also
admissible as other documentary evidence in Civil Cases. If Nothing contained
in the Evidence (Special Provisions) Act, No. 14 of 1995 shall apply to and in
relation to any data message, electronic document, electronic record, or other
documents to which the provisions of this Act apply, the provisions of the
civil procedure code pertaining to the documentary evidence should apply to this
documentary evidence as well.
However, it is to be noted that section 21(2) of the
Electronic Transactions Act permits to adduce any information contained in a
data message, or any electronic record or other communication as evidence, if
that information compiled, received or obtained during the course of any business, trade, or profession or other
regularly conducted activity (Emphasis added). Therefore any information
contained in a data message, or any electronic record or other communication;
received, compiled or obtained other than the course of any business, trade, or
profession or other regularly conducted activity has to be admitted in terms of
the Evidence (Special Provisions) Act, as the said act is also still in force.
Whether a certain activity is conducted regularly or not is a matter to be
decided on the facts of each case. In view of the aforesaid provisions of law,
it is apparent that the Electronic Transactions Act provides room to bring
electronic evidence pertaining to any business, trade, or profession, or other
regularly conducted activity in a liberal way.
6.0 CONCLUSION
It is apparent that with the rapid development of technology
in the World, the sources of advancing documentary evidence have been expanded.
Fax machines, Computers, mobile phones were not heard to be in Sri Lanka those
days. Therefore, there were no issues in admitting computer evidence, Fax
messages, e-mails, SMS, etc. Advanced documentary evidence that came in new
forms brought more complications to the Law of Evidence. A simple example is
section 21(3) of the Electronic Transactions Act. It states that the Courts
shall unless the contrary is proved, presume the truth of the information
contained in a data message, or in any electronic document or electronic
record. This presumption totally contravenes the “Hearsay Rule” that was
followed all the time. However, on the other hand, provisions of this nature
are needed to consider the contents of electronic documents, records, or other
communication as evidence. Thus, it is obvious that the law relating to the
documentary evidence has to be changed and improved with these developments.
However, what is important is that whatever new form of documentary evidence
comes, that evidence must comply with the fundamental principles of the law of
evidence to be accepted.
It is needless to say that Documentary Evidence is a very
wide subject to be discussed. Hence, all aspects pertaining to the documentary
evidence could not be discussed in length by this article. However, I believe
that this article would be benefitted as a guideline for a deep study of the
subject.
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