The Supreme Court recently dismissed a Petition of Appeal filed under a deceased petitioner’s name.
SC Dismisses Appeal for Naming Deceased Petitioner and Failing to Rectify Error
The Supreme Court recently dismissed a Petition of Appeal filed under a deceased petitioner’s name. The Court upheld a preliminary objection that the appeal, filed years after the petitioner’s death, was procedurally flawed and not remedied in good faith.
This case originated in the District Court as a property dispute, with a judgment delivered in 1998. The plaintiff appealed the decision to the Court of Appeal, where proceedings continued until it was revealed in 2006 that one of the defendants had passed away. The defendant’s legal representatives successfully moved to substitute a company in place of the deceased party.
Years later, in 2019, a Petition of Appeal was filed in the Supreme Court. However, the petition incorrectly identified the deceased individual as the appellant, despite the earlier substitution in the Court of Appeal. Counsel for the opposing party raised a preliminary objection, arguing that filing a petition in the name of a deceased individual rendered it invalid and that no steps had been taken to cure the defect.
“…..The Petition of Appeal before this Court was filed in the name of a deceased person. He had passed away in the early months of 2006. This Petition of Appeal was filed on 14th January 2019. Subsequent to the substitution of Palm Paradise Cabanas (Pvt) Limited of Goyambokke, Tangalle as the 2nd Defendant-Respondent—in fact, well over two years later—the 2 nd Defendant-Respondent, had given notice of cross-appeal on 31st July 2008. In spite of the active involvement of the said party in the proceedings before the Court of Appeal, the Petition of Appeal before this Court was filed in deceased Gunasekara’s name. Despite the error being such a patent one, no application was made to this Court by the said party to cure the defect. In fact, the 2nd Defendant-Respondent-Petitioner has covertly changed the caption in subsequent documents without seeking permission from the Court. In doing so, the said party has acted in bad faith…..” – Justice S. Thurairaja PC
CASE NO: S.C. (S.P.L.) L.A. 16/2019 [Decided on 29.11.2024]
BEFORE: S. THURAIRAJA, PC, J. KUMUDINI WICKREMASINGHE, J AND K. PRIYANTHA FERNANDO, J.
