FERNANDO. J. WIJETUNGA. J. AND
S.C. APPEAL No. 52/99S. C. SPL. L. A. NO. 231/98
A. NO. 819/94F
C. COLOMBO NO. 8032/RE5th MAY. 2000
Appeal – Error of court causing injustice to a party – Inherent power ofcourt to repair the injury – Jurisdiction of the court to correct the judgmentand decree entered by mistake – Actus curiae neminem gravabit.
The plaintiff instituted action in the District Court for arrears of rent andejectment of the defendant from the premises in suit. The District Judgeby his judgment dismissed the plaintiffs action. The plaintiff preferredan appeal from that judgment to the Court of Appeal. The Court of Appealdelivered its judgment on 28.05.1998. The reasoning in that judgmentshows that the Court of Appeal was of the view that the defendant shouldhave failed in the original court. However, the Court of Appeal mistakenlythought that the District Judge had entered judgment for the plaintiffand that the appeal was by the defendant. Consequently, the courtdismissed the appeal with costs and entered decree. Thereafter therecord was returned to the District Court, with the judgment and thedecree.
The plaintiff did not appeal to the Supreme Court from the judgment ofthe Court of Appeal but instead brought it to the notice of the Court ofAppeal that there was an error in the judgment. This was done after therecord had been returned to the District Court. Whereupon, after givingdue notice to the parties and counsel, the court had the record of theaction recalled and set aside its judgment on the ground that it had beendelivered per incuriam and re-fixed the matter for argument. Afterhearing submissions of parties the court delivered a second judgment on02.10.1998 allowing the appeal with costs and with consequentialamendments for rectifying the mistake made when the court hadregarded it as an appeal by the defendant. The decree on that judgmentwas signed on 12.11.1998.
The Court of Appeal had inherent power to set aside the judgment dated25.05.1998 and to repair the injuiy caused to the plaintiff by its ownmistake, notwithstanding the fact that the said judgment had passed thedecree of court. This could not have been done otherwise than by writinga fresh judgment.
Per Wijetunga, J.
"The authoritiesclearly indicate that a court has inherent
power to repair an injury caused to a party by its own mistake. Onceit is recognized that a court would not allow a party to suffer byreason of its own mistake, it must follow that corrective actionshould be taken as expeditiously as possible, within the frameworkof the law, to remedy the injury caused thereby. The modalities arebest left to such court, and would depend on the nature of the error."
Cases referred to :
Piyaratne Unnanse v. Wahareke Sonuttara Unnanse (1950) 51NLR313.
Sirirnivasa Them v. Sudassi Them (1960) 63 NLR 31.
Ranmenikhamy u. Tissera (1962) 65 NLR 214.
Seneviratne v. Abeykoon (1986) 2 SRI LR 1.
Mowjood v. Pussedeniya (1987) 2 SRI LR 287.
Sivapathalingam v. Siuasubramanian (1990) 1 SRI LR 378.
Jeyeraj Femandopulle v. de Silva and others (1996) 1 SRI LR 70.
APPEAL from the judgment of the Court of Appeal.
P. A. D. Samarasekara, P. C. with Kirthi Sri Gunawardena andMs. Kumudihi Wyetunga for appellant.
Faisz Musthapa, P. C. with M. S. M. Suhaid and Ms. Bandaralilleke forrespondent.
Cur. adv. uult.
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July 04, 2000WIJETUNGA, J.
The PlainUff-Appellant-Respondenl ('Plaintiff) hadinstituted this action in the District Court of Colomboseeking a declaration of title and ejectment of the Defendant-Respondent-Appellant ('Defendant') from the premisesdescribed in the schedule to the plaint.
TheleamedDistrictJudge.byhisjudgmentdated 16.12.94.dismissed the plaintiffs action with costs. The plaintiffappealed from that judgment to the Court of Appeal.
The appeal was heard by the Court of Appeal on 25.3.98and judgment was delivered on 22.5.98 in the presenceof the parties, dismissing the appeal with costs fixed atRs. 5250/-. The plaintiff did not seek leave to appeal to thisCourt from the said judgment, but instead brought to thenotice of the Judges of the Court of Appeal that there was anerror in the judgment. By then, decree had been entered by theCourt of Appeal and order had been made for the return of therecord to the District Court. The time limit for making anapplication under Rule 22 of the Supreme Court Rules forleave to appeal to this Court had also elapsed.
The parties were thereafter noticed to appear in Court on
On that day, the Court of Appeal set aside thejudgment already delivered on the ground that it hadbeen delivered per incuriam and refixed the matter forargument on 29.7.98. Counsel on both sides then tenderedwritten submissions.
On6.11.98theCourtofAppealdeliveredjudgment allowingthe appeal of the plaintiff with costs fixed at Rs. 5250/-. It isfrom this judgment that the defendant had sought specialleave to appeal to this Court. Special leave has been grantedon the question whether the Court of Appeal was in error in
Gunasena v. Bandaratilleke
writing a newjudgment after setting aside its own judgment inthe same matter.
It would be appropriate at this stage to set out in somedetail the sequence of events, (with reference to the JournalEntries of the case in the Court of Appeal), which culminatedin the deliveiy of the second judgment.
On 25.3.98 the appeal had been argued, both partiesbeing represented by counsel, and judgment was reserved for
on which date judgment was delivered in open Court.The appeal was dismised with costs fixed at Rs. 5250/-. Thedecree of the Court of Appeal had been signed on 27.5.98 andthe record had been returned to the District Court with thejudgment and decree of the Court of Appeal. The Journal Entryof 16.6.98 by the Judge who wrote the judgment states asfollows
‘The counsel have brought to my notice that there is anerror in the judgment in relation to the parties and thatconsequently the appellant had been referred to as therespondent and vice versa. 1 have perused the judgment andfound it to be so.
Issue notice on the appellant and the respondent and theirrespective Attomeys-at-Law and the Counsel for 15.7.98.
If the Record has been forwarded to the District Court,Registrar is to call for the Record and the Judgment and theDecree of this Court immediately and the District Judge to beinformed to stay further proceedings forthwith."
On 15.7.98 the case had been called pursuant to the orderof 16.6.98. Counsel for the appellant as well as for therespondent had been present in Court. The relevant part of thejournal entry reads as follows:-
"The judgment was delivered on 22.5.98 which isthe judgment entered per incuriam inasmuch as the Applt,
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had been mistaken for the Respdt.. on the reading of thejudgment. However it is quite clear in his favour the judgmentwas entered. Since the judgment is delivered per incuriarrL it isset aside and formally refixed for argument. Refix for argumenton 29.7.98.”
On that day it had again been refixed for argument on
On 25.9.98 counsel for the appellant as well as for therespondent had been present and the written submissionsof the respondent had been tendered to Court. Court hadmade order that the written submissions of the appellant betendered on 2.10.98.
On 2.10.98 counsel for both parties had once again beenpresent and the written submissions of the appellant had beentendered to Court and judgment had been reserved for 6.11.98on which date judgment had been delivered in open Court.The appeal had been allowed with costs fixed at Rs. 5250/-.Decree had been signed on 12.1 1.98.
The caption of the original judgment correctly showedthat the proceedings were an appeal by the “plaintiff-appellant” against the “defendant-respondent”.
It is clear from the reasoning in that judgment that theCourt of Appeal was firmly of the view that the defendant-tenant should have failed in the original Court because thearrears of rent tendered by him had not reached the plaintiff-landlord in due time. Accordingly, the “plaintiff-appellants”appeal should have been allowed. However, the Court ofAppeal mistakenly thought that the District Court had upheldthe plaintiffs claim:
‘The learned District Judge held that the defendant-appellant had failed tocomply with the requirements of section22(3)(c) and entered judgment for the plaintiff-respondent."
Cunasena l>. Bandaratilleke
In that belief, the Court of Appeal dismissed what itmistakenly thought to be the defendant-appellant's appeal.But for that mistake – which was no more than an inadvertentmis-description – the Court of Appeal would undoubtedlyhave allowed the plaintiffs appeal.
By the subsequent judgment dated 6.11.98 the Courtof Appeal had merely corrected that error made throughoversight, inadvertence or want of care and set aside thejudgment of the District Judge and entered judgment for theappellant as prayed for with costs fixed at Rs. 5250/-. Thereasoning in the two judgments is substantially the same,except that consequential amendments had been made inorder to rectify the error made in the judgment dated 22.5.98.What needs to be determined by this Court is whether theCourt of Appeal was competent to do so.
It was the position of the appellant that once judgmentwas delivered by the Court of Appeal and the decree signed,that Court was functus and had no jurisdiction to deal with thematter again. It was submitted that in those circumstances,the only course open to the plaintiff, if she was dissatisfied withthe judgment pronounced by the Court of Appeal on 22.5.98,was to have sought leave to appeal to this Court against thesaid judgment. Since there was no such application, thatjudgment had become final. The Court of Appeal, it wassubmitted, had no jurisdiction to set aside its own judgmentand to refix the matter for argument once again inasmuch asthe plaintiff had no right in law to seek a variation or settingaside of the judgment by the Court of Appeal itself.
It was further submitted that the mistake referred to inrelation to the first judgment was not one which the Court wascompetent to correct, after deliveiy of judgment in open Courtin the presence of the parties. The only remedy thus availableto the plaintiff was to canvass the correctness of the saidjudgment by way of an application for special leave to appealto this Court. The matter in issue, it was submitted, was
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whether it was open to a party to invite the same Court tocorrect a wrong judgment and deliver a new judgment andwhether the Court itself had jurisdiction to set aside its ownjudgment which had passed the decree of Court, even in a casewhere the Court had made a mistake in the judgment whichit had delivered. In any event, it was contended that themistake made in this case was not one which comes within the'principles of per incuriam, in that it was not an order made inignorance of or in forgetfulness of a statutory provision or abinding authority. It was further submitted that the procedurefollowed in our Courts does not permit the setting aside of awhole judgment and rehearing of a case even if the Court hadacted per incuriam. If the mistake was one made per incuriam.then the right procedure would have been to correct it at onceand bring it to the notice of the parties.
It was, therefore, submitted that all proceedings taken bythe Court of Appeal after delivery of judgment on 22.5.98 andentering of decree thereon are acts done without jurisdictionand should be set aside by this Court. The relief claimed by theappellant was that this Court should restore the judgmentdated 22.5.98 and the decree entered thereon.
The position of the plaintiff on the other hand was that thejudgment dated 22.5.98 contained a manifest error in that theappellant was referred to as the respondent and vice versa.Where there is an accidental slip or omission in the judgmentor where the judgment is made per incuriam, it was submittedthat the Court which delivered the judgment has inherentpower to correct such error.
What had to be corrected in this instance was not only thereference to the appellant as respondent and vice verscc butthe consequential error too, viz. the dismissal of the appealon the assumption that the appellant was the defendant. Inorder to correct this error, the Court of Appeal had to make anorder allowing the appeal instead of dismissing it. In thesecircumstances, it was submitted that the most appropriate
Gunasena v. Etandaratilleke
way to correct the mistake was by writing a newjudgment aftersetting aside the earlier judgment. The Court of Appeal, inexercising its inherent power to correct such a mistake oraccidental slip, had adopted the procedure which it thoughtwas best. It was done in the presence of the parties as counselwere present throughout the proceedings and no objectionwas taken to the said proceedings in open Court. It wassubmitted that the Court would not permit an erroneous acton its part to prejudice a party and that in these circumstancesthe defendant should not be permitted to take advantage of anerror arising from an accidental slip made by Court, especiallywhere the Court has taken steps to rectify such error.
It is common ground that in the judgment dated 22.5.98the defendant who was the respondent had been referred to asthe appellant, whereas in fact the plaintiff was the appellant.By reason of this mistake, the appeal, which for the reasons setout in the judgment should have been allowed, had beendismissed.
In Piyaratana Unnanse u. Wahareke Sonuttara Unnanse.1'1an application was made under Section 189 (1) of the CivilProcedure Code to a District Judge to amend a decree enteredby his predecessor on the basis of an alleged variance betweenthe judgment of the Court.and the decree based upon it. Thecontention of the petitioners, who were the plaintiffs, was thatthe decree omitted to give them the right to certain land edgedgreen on a plan produced in the case, whereas, according totheir contention, the judgment on which such decree wasbased, if it was read as a whole, had conceded such right.
The Privy Council held that unless the variance betweenthe judgment and the decree appeal ed upon a perusal ofthe judgment and the decree, the District Court had no powerto amend its own decree and that a matter involving theconstruction of the judgment could not fall within Section 189of the Civil Procedure Code. It was, however, stated at page 316with reference to section 189 inter alia that “it merely provides
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a simple and expeditious means of rectifying an obviouserror.”
In Sirinivasa Thero u. Sudassi TheroJ21 where the Courtacted without jurisdiction in issuing a writ, it was held thatinasmuch as the Court acted without jurisdiction in issuingthe writ, the person who was dispossessed of property inconsequence of the execution of the writ was entitled to berestored to possession. In such a case a Court of Justice hasinherent power to repair the injury done to a party by its act.
In Ranmenikhamy v. TissercL(3> where an appeal which waspreferred to the Supreme Court was rejected on the applicationof counsel for certain respondents, on the ground that noticeof appeal had not been served on one of the other respondentsand it was later proved to the Court that the respondent inquestion was a minor who was represented in the action by aduly appointed guardian-ad-litem on whom notice of appealhad been duly served, it was held that, inasmuch as the orderrejecting the appeal was made per incuriam, the Court hadinherent jurisdiction to set aside its own order.
In SeneviraLne v. Abeykoon,141 where the question waswhether in the absence of a decree restoring possession of thepremises to the defendant-tenant, the Court still had thepower to make an order that possession be restored to thedefendant, it was held that since the plaintiff had taken the lawinto his hands and forcibly evicted the defendant, tine Courtcould in the interests of justice resort to its inherent powerssaved under Section 839 of the Civil Procedure Code and makeorder of restoration of possession, even though the CivilProcedure Code provided for such restoration to possessiononly on a decree to that end entered under Section 217 (c) ofthe Civil Procedure Code.
In Mowjood v. Pussadeniya,151 where before execution wasissued the Court should have issued notice on the tenant-judgment-debtor as provided for by Section 347 of the Civil
Cunasena v. BandaratiUeke
Procedure Code and the Court had acted without jurisdictionin issuing the writ of execution, it was held that the evictedtenants should be restored to possession.
In SivapathaLingam v. Sivasubramaniam,161 where aninjunction issued by the Court of Appeal brought about thedispossession of the respondent and the placing in possessionof the appellant, it was held that a Court whose act has causedinjury to a suitor has an inherent power to make restitution.This power is exercisable by a Court of original jurisdiction aswell as by a Superior Court. It was further stated at page 392that “if an order of the Court, which ultimately has standingbehind it the coercive power of the State, causes damagewithout justification, it becomes the duty of the Court itself toundo that damage, iffor no other reason, atleastinthe interestof credibility of the Courts as an institution."
In Jeyaraj Femandopulle v. de Silva and others,,7> it wasrecognized inter alia that all Courts have inherent power incertain circumstances to revise orders made by them such aswhere a clerical mistake in a judgment or order or some errorarising in a judgment or order from an accidental slip oromission may be corrected; or to vary its own orders in sucha way as to carry out its own meaning and where the languageis doubtful, to make it plain, or to amend it where a party hasbeen wrongly named or described, but not if it would changethe substance of thejudgment; the attainment ofjustice beinga guiding factor.
Dealing with the meaning of per incuriam, it was statedthere at page 113 et seq. that “Earl Jowitt in his Dictionaryof English Law, (2nd Ed, 1977, Vol. 2 p. 1347) translates thephrase to mean through want of care’. He goes on to explainthat ‘a decision or dictum of a judge which clearly is the resultof some oversight is said to have been given per incuriam.' InFarrell v. Alexander [(1976) 1 ALL ER 129, 145] Lord JusticeScarman in the Court of Appeal translated ‘per incuriam’ as
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‘Homer nodded.’ Others, however, have given the phrase amore restricted meaning. Lord Chief Justice Goddard inHuddersjiledPolice Authority v. Watson, |( 1947) 2 ALL ER 193.196| said ‘What is meant by giving a decision 'per incuriam’ isgiving a decision when a case or statute has not been broughtto the attention of the court and they have given the decisionin ignorance or forgetfulness of the existence of that case or
that statute. ' The definition of the phrase per
incuriamin Lord Goddard's terms has been regarded as beingtoo restrictive There are several instances of
the Court acknowledging that it had acted per incuriam incircumstances which might not have been accommodatedwithin Lord Goddard's definition. ”
The phrase per incuriam has been defined in Wharton'sLaw Lexicon, 13lh Edition at page 645 as "through want of care.An order of the Court obviously made through some mistakeor under some misapprehension is said to be made perincuriam." Classen’s Dictionary of Legal Words and Phrases,1976 Edition defines per incuriam at page 137 as "by mistakeor carelessness, therefore not purposely or intentionally."Having regard to the above definitions and the many instanceswhere the Court has held that it has acted per incuriamin situations which do not come within Lord Goddard'sdefinition, I think the facts and circumstances of the instantcase may well be regarded as coming within the broaderparameters of the concept of per incuriam. Even otherwise, asthe earlier judgment contained a manifest error, the Court ofAppeal had inherent power to correct the same, in order thata party did not suffer by reason of a lapse on the part of theCourt. The procedure adopted by the Court of Appeal was whatit considered most appropriate in the circumstances. 1 seenothing objectionable in that procedure.
The steps taken by the Court of Appeal were for thepurpose of correcting the obvious error in referring to theappellant as the respondent and vice versa, in consequence of
Gunasena u. Bandaratilleke
which Lhe Court dismissed the appeal, when in fact the appealshould have been allowed. This could not have been doneotherwise than by writing a fresh judgment, though thereasoning and substance of both judgments were necessarilythe same.
If the judgment of the Court of Appeal dated 22.5.98 is tobe restored as prayed for by the defendant, this Court wouldthen be perpetuating an obvious and manifest error which theCourt of Appeal itself has corrected and would thereby causea grave injustice to the plaintiff. The authorities referred toabove clearly indicate that a Court has inherent power torepair an injury caused to a party by its own mistake. Once itis recognized that a Court would not allow a party to suffer byreason of its own mistake, it must then follow that correctiveaction should be taken as expeditiously as possible, within theframework of the law, to remedy the injuiy caused thereby. Themodalities are best left to such Court, and would depend on thenature of the error.
For the reasons aforesaid, I hold that the Court ofAppeal was not in error in writing a new judgment in thosecircumstances, after setting aside its previousjudgment whichcontained the mistake.
The appeal is dismissed, but without costs.
FERNANDO, J.- 1 agree.
GUNASEKERA, J.- 1 agree.
GUNASENA v. BANDARATILLEKE