The case of Bandaranaike v. Premadasa (1978-79) is an interlocutory appeal concerning the order of calling witnessesin a civil defamation trial. The defendant, Bandaranaike, was sued for Rs. 150,000 in damages for making defamatory statements at political meetings. The District Judge ruled that the defendant must testify before calling any witnesses, which led to an appeal.

The Court of Appeal reversed this decision, stating that counsel has the right to determine the order of calling witnesses, unless the judge exercises discretion to prevent injustice. The court found that the District Judge misapplied courtroom practice and failed to exercise discretion properly. Consequently, the appeal was allowed, and the case was remitted for continuation from the stage where the plaintiff had closed his case

Statutory References

• Evidence Ordinance, No. 14 of 1895
• Civil Procedure Code
  • Section 151 – Explains the process of presenting witness testimony.

Case Law References

Sri Lankan Cases

• Goonesekera v. Inspector of Police, Kiriella (1947) 49 NLR 119 – On corroboration rules.
• King v. Silva (1928) 30 NLR 193 – No “corroboration in advance” allowed.
• Wijewardena v. Lenora (1958) 60 NLR 457 – On appellate review of discretion.
• Attorney-General v. Rawther (1924) 25 NLR 385 – Applicability of English law under Section 100 of the Evidence Ordinance.

Indian Cases

• Kedar Nadar Ghose v. Surendra Nath Bose (1900) 5 Cal Weekly Notes XV – Counsel’s right to determine witness order.
• Lakshmi Chand v. Mukta Parshad (1926) 92 IC 1006 – Court should not dictate order of witnesses unless necessary.

English Cases

Evans v. Bartlam (1973) AC 473 – Appellate court’s power to intervene in the exercise of discretion.

Briscoe v. Briscoe (1966) 1 ALL ER 465 – Counsel has discretion to call witnesses in any order.

Barnes v. BPC (Business Forms) Ltd (1976) 1 All ER 237 – Impairment of counsel’s discretion is a breach of natural justice.

The trial was ordered to resume from the stage where the plaintiff had closed his case.

Courtroom Practice on Calling Witnesses

Section 135 of the Evidence Ordinance allows witness order to be regulated by:

(a) Law

(b) Courtroom practice

(c) Judge’s discretion (if no specific law exists).

In civil trials, counsel has the right to decide the order of calling witnesses.

The judge can intervene only in exceptional cases where justice demands it.

Misapplication of Judicial Discretion

The District Judge incorrectly ruled that the defendant must testify before calling witnesses.

The five orders issued by the District Judge were based on a misinterpretation of legal practice.

The appellate court ruled that there was no legal basis for imposing such a requirement.

Reinforcement of the Adversarial System

Sri Lanka follows the adversarial system, where the judge is an impartial umpire.

Judges should not interfere with the way counsel presents their case unless necessary to prevent injustice.

Natural Justice & Audi Alteram Partem Principle

The right to a fair hearing includes allowing a party to present their case in the most effective manner.

Preventing a party from calling witnesses in their preferred order violates natural justice.

Prejudice and Relevance of Witness Testimony

The plaintiff argued that allowing defense witnesses first would damage his character unfairly.

The appellate court rejected this argument, stating that prejudice is inherent in the adversarial system.

Outcome

The appeal was allowed, and the District Judge’s five orders were set aside.

vidence Ordinance, No. 14 of 1895

• Section 135 – Allows witness order to be regulated by law, practice, or judicial discretion.
• Section 136(2) – Requires foundational facts to be proven before related evidence.
• Section 157 – Governs admissibility of corroborative evidence and prevents hearsay.

Civil Procedure Code

• Section 151 – Discusses the presentation of witness testimony.

Principles of Natural Justice

• Audi Alteram Partem – Ensures that each party has a fair opportunity to present their case.
• Adversarial System of Justice – The judge should remain an impartial arbiter, not control the order of witnesses.

This case reaffirmed counsel’s authority in managing trials and restricted unnecessary judicial interference in witness order decisions.