009-SLLR-SLLR-2007-V-1-ASSEMBLES-OF-GOD-OF-CEYLON-v.-URBAN-COUNCILANURADHAPURA-AND-ANOTHER.pdf

CA
Assembles of God of Ceylon v
Urban Council, Anuradapura and another
89
ASSEMBLES OF GOD OF CEYLONv
URBAN COUNCIL, ANURADAPURA AND ANOTHER
COURT OF APPEALSRISKANDARAJAH, J.CA 325/2000OCTOBER 31, 2006NOVEMBER 17, 2006
Court of Appeal (Appellate Procedure) Rules 1990 Filing of objections – is anaffidavit necessary? Objections in the form of an a affidavit alone – Does itsuffice? Does it deprive the respondent’s right to appear in opposition ?
The petitioner raised a preliminary objection to the respondent being heard onthe basis that there is no statement of objections but only an affidavit.
Held:
Respondent when filing objections to an application has to file astatement of objections distinct from an affidavit of the respondent.An affidavit is necessary to support any averment of facts that areaverred in the statement of objections.
An affidavit alone cannot be construed as a statement of objectionseven if he has objected to the application in his affidavit.
There is no mandatory requirement in the Rules to file a statementof objections. Therefore a respondent who fails to file a statementof objections or files an objection not in compliance with the Rulescannot be deprived from appearing and objecting to the applicationon grounds of law or to submit to Court on the infirmities of thepetitioner's application.
Per Sriskandarajah, J.
‘The intention of the framers of the Rule is not to deprive a party to a fairhearing but to maintain the channel of procedure open for justice to flow freelyand smoothly and the need to maintain the discipline of the law".
APPLICATION for a Writ of Certiorari / Mandamus.
90
Sri Lanka Law Reports
[2007] 1 Sri L.R
Cases referred to
Gita Shirene Fonseka v Monetary Board of the Central Bank of Sri Lanka-2004-1 Sri LR-149.
1 (a).Kiriwanthe and another v Navaratne and others – 1990 – 2 Sri LR 393.
K. Shanmugavadiva v J. M. Kulatilake – SCM 50/2002 – SC Spl LA44/2002.
Ranaweera v Mahaweli Authority of Sri Lanka – 2004 -2 Sri LR 346(Distinguished).
Union Apparels (Pvt) Ltd v Director General of Customs and others – 2000- 1 Sri LR 38.
Piyadasa v Law Reform Commission. SC (AP) 30/97 – SCM 8.7.1998.
M. A. Sumanthiran for petitioner
Ms. B. Tilakaratne DSG for 2nd respondent
S. A. D. S. Suraweera for intervenient respondent.
Cur.adv.vult.
January 29, 2007SRISKANDARAJAH, J.
The petitioner raised a preliminary objection objecting to the2nd respondent being heard on the basis that there is no statementof objection filed by the 2nd respondent in this application.
It is an admitted fact that the 2nd respondent filed itsobjections by way of an affidavit on the 10th of September 2000.The questions that have to be determined by this court are whetheran objection in the form of an affidavit alone could be considered asa statement of objections in terms of Court of Appeal Rules? If itcannot be considered as a statement of objection whether the 2ndrespondent can be offered an opportunity to be heard?
The 2nd respondent submitted that nowhere in the Court ofAppeal (Appellate Procedure) Rules a format of a statement ofobjections which the respondent is required to adopt is given,whereas the Rules do specify various other forms that parties arerequired to adopt e.g. the Notice of Hearing, Form of Proxy, Noticeof Appeal, etc. The 2nd respondent filed its objections by way of anaffidavit on the 10th of September 2000 with a motion.
The motion states as follows:
01
10
Assembles of God of Ceylon v
CA Urban Council, Anuradapura and another (Sriskandarajah, J.)91
“ I file herewith the objections by way of an affidavit togetherwith the documents
A similar objection was raised in Gita Shirene Fonseka v TheMonetary Board of the Central Bank of Sri Lanka.m
Wijayaratne, J. with Ms. Shiranee Tilakawardana, J. (P/C.A)agreeing referring to the relevant Rules of the Court of Appeal held:
“Rule 3 (4) (b) (i) of the Court of Appeal Rules 1990 states,
‘A statement of objection shall be filed by each respondentwithin four weeks ..
Rule 3 (7) states,
… A statement of objection containing any averment offacts shall be supported by an affidavit in support of suchaverments’
Gravity of the burden of court is no reason to dispense with orignore rules of Court. The discretion of court considered inKiriwanthe’d1a> case does not exist any longer after the promulgationof the Court of Appeal (Appellate Rules) 1990. This aspect of thediscretion is adequately dealt with by the Supreme Court in the Caseof K.Shanmugavadivu v J.M. Kulatillakd2> considering the ambit ofrule 3 of the Court of Appeal (Appellate Rule) 1990, observed that,
‘In such circumstances, the only kind of discretion that couldbe exercised by court is to see whether and how much time couldbe permitted for the filing of papers in due course’
Rule 3(4) (b)(i) read with rule 3(7) however leaves nodiscretion to the court in the case in filing of statement of objectionsto dispense with either the statement of objection or the affidavit insupport of averments of fact.”
The learned D.S.G. submitted that in Ranaweera v MahaweliAuthority of Sri Lanka<3> Marsoof, J. (P/C.A) with Sripavan, J.agreeing had taken a different view;
Marsoof, J. (P/C.A) in his Judgment observed;
“The 1st and 2nd respondent did not file a statement ofobjections but instead filed only the affidavit of the 2nd
20
30
40
50
92
Sri Lanka Law Reports
[2007] 1 SriL.R
respondent, who is the Director General of the 1st respondentMahaweli Authority of Sri Lanka by way of objections. It isnecessary to mention at the outset that the petitioner has inParagraph 3 of his counter affidavit pointed out that therespondents have failed to comply with Rule 3 (4)(b)(i) Courtof Appeal (Appellate Procedure) Rules 1990 and therefore theaffidavit filed by the 2nd respondent by way of objection 60should be rejected. I am inclined to the view that the petitionershould have in the 1st instance invited the attention of theCourt to the alleged non compliance with the rules and got thematter listed for an order of Court as contemplated by rule3(14) of the aforesaid Rules. The said rule is quoted below:
“Where the parties fail to comply with the requirements setout in the preceding rules the Registrar shall without anydelay, list such application for an order of court”.
The object of this Rule appears to be to give an opportunity to aparty in default to take steps to comply with the rules of court. In 70my view the petitioner should have objected to the alleged“Objections” filed by the respondents by way of a motion and hadthe matter referred for an order of court. Instead, the petitionerhas chosen to file counter affidavit wherein he has taken up thequestion of non compliance with Rules in the counter affidavit. Interms of Rules 3(4)(b)(i) counter affidavit have to be filed by thepetitioner within 4 weeks of the date of receipt of the Statementof objection, unless a different date is fixed by court which waswhat happened in this case. By filing counter affidavits thepetitioner has waived the right to take objection to the non socompliance of the rules by the respondent.
Having observed the above the court in the above casedecided not to rely on the objections filed in the said application.
The court when arriving at the final decision in the aboveapplication held:
“Having carefully considered the application made by thepetitioner to this court without taking into considerationany of the averments contained in the so called ‘objection’of the respondents I have come to the conclusion …"
Assembles of God of Ceylon v
CA Urban Council, Anuradapura and another (Sriskandarajah, J.)^3
In the above case even though the court had made severalobservations with regard to the objections filed in the form ofaffidavit finally in its judgment preferred not to consider theobjections filed and it named the objections as the “so calledobjection”. Therefore the above case cannot be considered asaccepting affidavits on the form of an objection.
Rule 3 (5) specifically provides that:
“Every respondent who lodges a statement of objections, andevery petitioner who lodges a counter affidavit, shall forthwithserve a copy thereof, together with any supporting affidavitand exhibits on every party.
Rule 3(7) A statement of objections containing any
averments of fact shall be supported an affidavit in support ofsuch averments.
From the above rules and from the line of judgments it is clearthat the respondent when filing objections to an application has tofile a statement of objection distinct from an affidavit of therespondent. An affidavit is necessary to support any averments offacts that are averred in the statement of objections.
Therefore an affidavit of the respondent alone cannot beconstrued as a statement of objection even if he has objected to theapplication in his affidavit. Therefore this Court upholds thepreliminary objection that the affidavits filed by the 2nd respondentcannot be considered as a statement of objection.
This court now proceeds to consider the consequence of thefailure to file a statement of objection. The learned counsel for thepetitioner submitted that the failure to comply with the mandatoryapplicable rules 3(4)(b)(i) read with rule 3(7) deprives the respondentsright to appear in these proceedings in opposition to the petition.
Rules 3 (4)(b) provides:
“the court shall fix dates for the filing of statements ofobjections by the respondents, for the filing of counteraffidavits by the petitioner and for the hearing of theapplication; if any of such dates is not fixed by the court, thefollowing provisions shall apply:
90
100
110
120
94
Sri Lanka Law Reports
[2007} 1 Sri L.R
A statement of objection shall be filed by the respondentwithin four weeks of the date of service of notice;
(Emphasis added)
00 . . .The above rules only provide the mandatory time frame withinwhich the statement of objection has to be filed.130
Rule 3(7) A statement of objections containing any
averments of fact shall be supported by an affidavit in
support of such averments. (Emphasis added)
The above rule only provides that if a statement of objection isfiled and if that statement of objection contains any averments offacts it shall be supported by an affidavit.
There is no mandatory requirement in the above rules to file astatement of objections. Therefore a respondent who fails to file astatement objection or files an objection not in compliance with therules cannot be deprived from appearing and objecting to the noapplication on grounds of law or to submit to court on the infirmitiesof the petitioners application.
Even in situations where the rules have specifically stated thata party Is not entitled to be heard has exemptions and the court hasinterpreted that a party should not be deprived from affording anopportunity of being heard.
The Court of Appeal (Appellate Procedure) Rules 4(2) whichdeals with Appeal provides:
“No party to an appeal shall be entitled to be heard unless hehas previously lodged three copies of his written submissions iso(herein after referred to as “submissions”) Complying with theprovisions of this rule.”
But Rule 4(6) provides
“Where a party fails to lodge submissions, or lodges submissionswhich are not in substantial compliance with the foregoingprovisions, the Court may restrict the duration of the oralsubmissions of such party at the hearing of the appeal orapplication to 45 minutes.”
Assembles of God of Ceylon v
CA Urban Council, Anuradapura and another (Sriskandarajah, J.)95
It could be seen from the above rules that the intention of theframers of theses rules is not to deprive a party to a fair hearing but to 160maintain the channel of procedure open for justice to flow freely andsmoothly and the need to maintain the discipline of the law.
Unlike in The Court of Appeal (Appellate Procedure) RulesSupreme Court Rules have not provided any exemptions to Rule 30:Supreme Court Rules, Rule 30 provides:
“No party to an appeal shall be entitled to be heard unless he haspreviously lodged five copies of his written submission(hereinafter referred to as “submissions”, complying with theprovisions of this Rule.”
In Union Apparels (Pvt) Limited v Director-General of Customs 170and Others<4> at 38 Shirani Bandaranayake, J„ quoted with approvalthe observation of Amerasinghe J., in Piyadasa and others v LandReform Commission<5>:
“In my view Rule 30 is meant to assist the court in its work andnot to obstruct the discovery of the truth. There were numerousdocuments that had to be considered; and, in order, we neededthe assistance of the learned counsel for the petitioner as well asthe respondents, including their written submissions to properlyevaluate the information that we had before us. It was therefore,decided that the preliminary objection should be over ruled." 180Even though I uphold the preliminary objection of the petitionerthat the 2nd respondent’s affidavit could not be entertained as astatement of objection, the 2nd respondent is entitled to appear andon its behalf the counsel could make any submission to court onquestions of law or in relation to the material available before court forthe purpose of this court to arrive at a decision.
Preliminary objection upheld. The respondent/Counsel could makesubmissions on questions of law or in relation to material before Court.