Sunday Times 2
Legally honest, Ben made it big
I was saddened when I learnt that my friend Ben Eliyatamby had passed away at Durdan’s Hospital on Friday August 1, 2014. He was 74. I knew that he was ailing for some time but many of us felt that he will make it and that we could enjoy his amiable and pleasant company for some more years.
My friendship with Ben was a long and enduring one. From about age 11 we were together at Royal College. I had also noticed Ben play at the Oval for Royal against S. Thomas’ at our annual cricket encounter in 1957.
Ben lived at a large house called “Mentmore”, No. 110, 5th Lane, Colombo. It was so close to Royal, that often, after school, I used to go to Ben’s until my father (N.E. Weerasooria) fetched me on his way home from the Law Court’s at Hulftsdorp. Ben’s home was owned by his uncle (mother’s brother), N.M. de Silva. Popularly called “N.M.”, he was also a lawyer with a good legal practice. “N.M.” also excelled in journalism and wrote a weekly column to the Sunday Observer entitled “Men and Matters”. Once his column was on my father. I enjoyed staying at Ben’s because I also enjoyed the refreshments provided by Ben’s mum, the lovely Sheila. I still have vivid memories of those days.
Quite interestingly in an appreciation that Ben Eliyatamby wrote about my father when he died in 1974 (which was published), Ben refers to these facts I mentioned above; how he became friends with me at Royal and his uncle’s friendship with my father and also how he (Ben) used to visit our home at Kotte and the legal anecdotes my father used to relate to all of us.
From Royal College, I was successful in admission to Peradeniya University in 1959 and studied for a law degree while Ben went to England and joined Grays Inn, London and qualified for the English Bar.
Then it so happened that about the same time Ben passed out in England, I passed out in Sri Lanka (after my LLB) from Law College. We then had to, as is customary, apprentice under a Sri Lankan lawyer of at least seven years standing. We were both fortunate that we were able to apprentice under H.W. Jayewardene Q.C. who had a wide and diverse Appellate Court practice. Later by 1970, he became the Leader of the Bar.
On our enrolment in 1963, we both began legal practice taking on any cases we could get, both civil and criminal. In a way both of us got somewhat of a head start. Ben’s uncle “N.M.” had known many proctors who “brief” advocates. They helped Ben, while I was helped by my father and my father’s juniors all of whom had a fair practice. However, in about 1970, I opted for an academic career in law which later took me to Monash University in Australia. Thereafter during the period 1977-1990 I worked again for Sri Lanka as a public servant and next as a diplomat and then reverted to Monash. I returned home finally in 2000.
On the other hand, Ben did not deviate from his legal practice and since 1963 he built up a steady and illustrious legal career. Basically, a civil lawyer, he specialised in commercial, banking, company and intellectual property areas. He also worked with distinguished legal luminaries of the time such as H.W. Jayewardene Q.C, Vernon Wijetunge Q.C. and Sam Kadiragamar Q.C.
Ben’s work with H.W. Jayewardene Q.C. brought him into close touch with President J.R. Jayewardene. I personally know that Mr. Jayewardene soon recognised Ben’s quiet dignity, competency and integrity and entrusted him with considerable legal work. However “being Ben” he never talked about his closeness to the President. He was made President’s Counsel in 1987.
In the private sector, Ben’s legal acumen was appreciated by business tycoons like N.U. Jayewardena and Harry Jayewardena. Ben also served as chairman of Merc Bank (later absorbed by Union Bank) and as a director of several leading organisations including the Bank of Ceylon, Ceylon Electricity Board and Ceylon Continental Hotel (now Kingsbury).
Like Virgil did in his Aeneid, rather than talk of the individual, I now prefer to talk about some of Ben’s signal successes as a lawyer. I refer to three interesting cases I am personally aware of.
The first was the famous case where Ben appeared for Sri Lanka’s screen idol Gamini Fonseka. This was a landmark case where a Sri Lankan bank was successfully sued for breach of secrecy. The action was filed by Mr. Fonseka the well-known film actor/director against the People’s Bank in D.C. Hambantota, Case No. 1907/M. He won the case but was awarded only Rs. 2.5 million as damages as against the Rs. 30 million he claimed. Ben was his lawyer. Mr. Fonseka’s action against the bank arose in unusual circumstances as follows:
Mr. Fonseka was at the time also a Parliamentarian and Deputy Speaker of Parliament. A hotel owned by him (Sanasuma Holiday Resort in Tissamaharamaya) had been destroyed by a fire caused by terrorists in the ethnic riots of June 1983. As a result he was unable to settle a loan (taken to develop the hotel) from the People’s Bank. After protracted negotiations he had arrived at a settlement with the bank which involved an insurance claim for the loss of the hotel as well.
Sometime later, the Ravaya newspaper carried a series of articles implying that Mr. Fonseka had used undue influence as the Deputy Speaker to obtain a settlement of his loan with the People’s Bank. The articles in Ravaya were clearly defamatory of Mr. Fonseka. On an inquiry conducted by the Criminal Investigation Department (CID) it appeared that Ravaya had obtained facts for its articles from “the files of the People’s Bank”.
On this evidence, Ben wisely advised Mr. Fonseka not to sue Ravaya but to sue the bank for damages alleging that the bank’s Manager of the Tissamaharamaya Branch (Cyril Lokuruge) had divulged information to Ravaya from the bank’s files relating to Mr. Fonseka’s bank account and thereby breached banker’s secrecy. The bank was sued as the first defendant and the manager of the branch (as second defendant) on the grounds that the bank was vicariously liable for the acts of its manager (employee). The manager died pending the action. After several days of trial, P.W.D. Jayatilake, the District Judge of Hambantota, (who later became Secretary of the Judicial Services Commission) and now a Judge of the Court of Appeal, gave judgment for Mr. Fonseka against the People’s Bank for Rs. 2.5 million on the grounds that the Bank had breached the duty of secrecy/confidentiality because its manager had given information to a newspaper about a bank’s customer.
This is the only case where a bank has been sued in Sri Lanka for breach of secrecy of a customer’s account and here the bank was held liable for the wrongful and deliberate act of its branch manager who had voluntarily leaked information about the customer to a newspaper.
From start to finish, this entire case was brilliantly handled by Ben Eliyatamby. An average lawyer would have advised Mr. Fonseka to sue the newspaper for defamation but it would have been a hollow victory because the newspapers could not satisfy the damages claim.
The second case was also a landmark case. Even today many consultancy firms handling World Bank and Asian Development Bank projects engage retired Sri Lankan professionals as “Consultants” to work in such projects. The question is are these consultants who are so engaged for large monthly salaries (2-3 lakhs a month) for periods of 3-5 years “employees” entitled to Employees Provident Fund / ETF and other benefits like gratuity.
In the case, which Ben won, such a “consultant”, a retired surveyor, complained to the Labour Department that he had not been paid those statutory benefits after serving for five years in a World Bank-funded road project. Appearing for the consultancy firm, Ben pre-empted the Labour Department inquiry by filing a Declaratory Action in the District Court to decide whether that “consultant” was an employee. After a protracted trial, the District Judge held he was not an “employee”. The surveyor’s appeal was also dismissed. This decision is a precedent for the proposition that such “consultants” are not “employees” and are not entitled to statutory benefits unless agreed upon. I wrote an article on this decision for the Bar Association Journal.
The last case of significance that Ben undertook as a lawyer was when he appeared for Lankpro Ceylon Ltd. which was the local agent for Indian Oil Corporation (IOC), against IOC. IOC – a Fortune 500 company had entered Sri Lanka in about 2003. It was not litigation but Arbitration. Under IOC’s Agreement with the Sri Lankan firm any dispute between them had to be first referred to a Sole Arbitrator in accordance with the Model Law of Arbitration adopted by the United Nations Commission on Industrial Trade Law (UNCITRAL Arbitration Rules) and the place of Arbitration was Calcutta.
The dispute was non-payment of fees by IOC to the Sri Lankan firm. Appearing for the Sri Lankan firm, Ben went to Calcutta over twelve times for nearly five years. The arbitration involved a meticulous study of documents and correspondence, carefully drafted pleadings and cross-examination of witnesses. With a retired Indian Supreme Court Judge as the Sole Arbitrator, at an Indian venue under Indian law, Ben won the arbitration and the Award was given against IOC.
Ben was saddened that Indian Oil has appealed against the arbitrator’s award. The appeal is now pending. Ben’s view was that everything was stacked in IOC’s favour. The choice and selection of the arbitrator, the venue and the law and yet the Award was in his client’s favour. The Sri Lankan firm for whom Ben appeared has said that the reason why it won its case was Ben’s meticulous study of the facts and the masterly presentation of the case. As a lawyer, the company said, he was “sincere”, thorough, fair and honest”. These are not words normally uttered by clients about lawyers!
I am sure I have said enough to show what a dignified human being Ben Eliyatamby was. Lastly, I must here mention that it was Ben who organised the annual “get-together dinner” of the Royal College Class of 51″ on the Friday of the Royal-Thomian match. Originally, I think, this get-together was begun by our mutual friend Lalith Rodrigo but later Ben took over and had the event at his home “Mentmore”. About three years ago, he handed that baton to another mutual friend. Dr. Narendra Wijemanne, the well-known plastic surgeon who now ably organises the event at the Golf Club. Every year when we meet, we sing the college song and then we stand in silence for our friends who have departed during the year. Next year Ben Eliyatamby will be so remembered.
Ben has now gone to his eternal rest but will live in the memory of his family and his friends. Sleep well my dear friend.