BLANCA DIAMONDS (PVT) LTD.v.
WILFRED VAN ELS AND TWO OTHERS
COURT OF APPEAL.
ETF BOARD INQUIRY EN/12/2/4/32MARCH 19, 27, 1997.
Employees Trust Fund – Contributions – Enforcement Inquiry – Writ of Certiorari -Uberrima tides – Contractual obligation to Court.
In an application for a Writ of Certiorari to quash the decision and directions of the2nd respondent Board (ETF) contained in certain letters.
When a party is seeking discretionary relief from court upon an application tor aWrit of Certiorari, he enters into a contractual obligation with the court when hefiles an application in the Registry and in terms of that contractual obligation he isrequired to disclose uberrima tides and disclose all material facts fully and franklyto Court."
The petitioner company has been remiss in its duty/obligation to court and has*failed to comply with that contractual obligation to court.
APPLICATION for a writ of Certiorari.
Cases referred to:
Alphonso Appuhamy v. Hettiaratchi – 77 NLR 121.
Castelli v. Cook – 1848 7 HARE 89 at 94.
King v. General Commissioner for Income Tax. Kensington – 1971 KBD 486.
Moosagees v. Eksath Kamkaru Samitiya – 1979 1 NLR 285 at 289
In re Vasso – 1984 1 Lloyds Report 235.
R. K. W. Goonesekera with Sidath Sri Nandalochana and J.C. Weliamuna forpetitioner.
Chula Bandara with D.K. Dhanapala for first respondent.
Adrian Perera S.S.C., for 2nd and 3rd respondents.
Cur. adv. vult.
April 04, 1997.
The petitioner company, which is a Board of Investment approvedincorporated body carrying on the business of gem cutting and
polishing, for export to Belgium, has filed this application inter alia forthe issue of a mandate in the nature of a writ of certiorari, which is aclaim for discretionary relief from this Court, seeking an order quashingthe decisions and directions of the second respondent contained incertain letters marked P6, P8, P15 and P16. At the close of theargument on this application, the issue arose whether the petitioner,who is claiming discretionary relief from this Court has discloseduberrima tides and has frankly and fully disclosed to this Court materialfacts lor the purpose of this Court arriving at an effectual and completeadjudication of all the issues that arise upon this application.
The petitioner company has received a series of letters written bythe Manager (Enforcement) of the Employees' Trust Fund Board onissues relevant to the petitioner company's alleged liability to makeEmployees’ Trust Fund contributions in respect of the claim of the firstrespondent. These documents, inter alia, are marked as P10 and P13.In those letters the reference number to the file maintained at the.Employees' Trust Fund Board on the complaint made by the firstrespondent has been clearly set forth as EN/12/2/4/32. In fact, in letterswritten by Messrs, Julius & Creasy, Attorneys-at-Law, appearingOriginally for the petitioner company, this reference numberEN/12/2/4/32 is prominently spotlighted in such letters (Videdocuments P11 and P14). Thus, the petitioner company and its agentswere fully conversant with the particular reference number in regard tothe file maintained at the Employees' Trust Fund Board on this subject.If the petitioner company or its Attorney-at-Law or its agents did makean application to inspect the aforesaid file, then the petitioner companywould have become aware that, after holding the inquiry on 10.4.96, onthe basis of material which was placed both orally and by adduction ofdocuments, a decision and determination was arrived at by the thirdrespondent on the 30th of April, 1996. The petitioner company hasfailed in its duty to produce before this Court the aforesaiddetermination or decision arrived at on 30.4.96 on the proceedingsheld between the parties who were represented by counsel on 10.4.96.
Without the benefit of perusing the aforesaid copy of thedetermination and decision made on 30.4.96, this Court is unable toexercise its supervisory jurisdiction and judicially review the order, thelfhdings and determinations made by the third respondent which a*esought to be quashed, in the present proceedings filed by the,petitioner company. In the course of the argument the relevant file
bearing this reference number was produced and it became manifestthat at the inquiry held on 10.4.96, the petitioner company wasrepresented by senior Attorney-at-Law Mr. Sidath Sri Nandalochanaand that the first respondent was represented by Attorney-at-LawMr. Chula Bandara. Both counsel have made statements andsubmissions on behalf of their respective clients and produceddocuments before the Board. It transpired that Mr. Sidath SriNandalochana, on behalf of the present petitioner Company, hadmade a statement at the inquiry that Blanca Diamonds (Private)Limited had paid a part of the remuneration paid out to the firstrespondent. Without the benefit of the record, this Court is unable toascertain whether it was a part payment of salary or a part paymentof the cost of living allowance. A consideration and evaluation of theadmissions made on that occasion in regard to the payments madeto the first respondent would be highly relevant to determine the issuethat was agitated between the parties and also to judicially reviewwhether the findings of the third respondent set forth in P15 and P16are legal or illegal, upon this application for the exercise of powers ofcertiorari by this Court. I hold that the petitioner company has beenremiss in its contractual duty in filing this application in the Court ofAppeal Registry, in failing to produce the findings, determinationsand decision dated 30.4.96 made by the third respondent. In filingthe present application for discretionary relief in the Court of AppealRegistry, the petitioner company was under a duty to discloseuberrima tides and disclose all material facts to this Court for thepurpose of this Court arriving at a correct adjudication on the issuesarising upon this application. In the decision in Alphonso Appuhamyv. Hettiaratchi° Justice Pathirana, in an erudite judgment,considered the landmark decisions on this province in English Lawand cited the decisions which laid down the principle that when aparty is seeking discretionary relief from this Court upon anapplication for a writ of certiorari, he enters into a contractualobligation with the Court when he files an application in the Registryand in terms of that contractual obligation he is required to discloseuberrima tides and disclose all material facts fully and frankly to thisCourt. Wdealso the decision in Castelli v. Cook™ at p. 94.
It is manifestly clear that the petitioner company has been remissim its duty and has failed to carry out its imperative legal duty an&.obligation to Court. In such circumstances, Justice Pathirana ruledthat the Court is entitled to raise this matter in limine and to dismiss
the application without investigating into the merits of the application.Vide alio King v. Genera! Commissioner for Income Tax,Kensington(3). The aforesaid judgment of Justice Pathirana appearsto have been followed, after making a pointed reference to theaforesaid landmark English decisions, by Justice Rajaratnam in aLabour and Industrial Law litigation in Moosagees v. Eksath KamkaruSamitiyaw at p. 289. The House of Lords in an Admiralty Court Casein Vasso&> has again re-affirmed this same principle that the petitionerupon that application was obliged to make a full and frank disclosureof all material facts to Court. I hold that the petitioner company hasbeen remiss and has failed to comply with that contractual obligationto Court and in the circumstances this Court is entitled to dismiss andreject the application of the petitioner company with costs payable tothe respondents.
The first respondent, in paragraph 8 of his affidavit inter alia, statesthat he was paid by the petitioner company his salary in BelgiumFranks by making payment to the first respondent’s bank account inLuxembourg through the petitioner company’s bank account inSwitzerland and that his cost of living allowance was paid inSri Lanka by the petitioner company in both Sri Lanka, Rupees andAmerican Dollars as set out in the schedule to his letter ofappointment marked 1R1. The first respondent further states that thepetitioner company has failed to file the schedule of payments whichis an integral part of the letter of appointment which has been markedby the petitioner company as P2. It is not open to Mr. Patrick Van DenEynde, who is both the Chairman of Blanca Diamond (Private)Limited, the petitioner company and of the Belgian company namedFr. Van Den Eynde and Zonen B.V.B.A. to disclaim all knowledge inregard to the schedule of payments which has been producedmarked 1R1. Since this individual acted in a dual capacity asChairman of the Belgian company and as Chairman of the Sri Lankancompany, he ought to be aware of the document 1R1, which is theschedule of payment and which is expressly referred to in the letterof appointment P2 under the column relating to remuneration inclause 4 of P2. Clause 2, inter alia, states this “allowance ismentioned in enclosure for the period starting …” In thecircumstances, due to the fact that Patrick Van Den Eynde was theChairman, of the Belgian company as well as the Sri Lankancompany, it becomes apparent that the petitioner company, despitethe dual role of its chairman, has failed to file the schedule ofpayment marked 1R1 and which is an integral part of the letter ofappointment P2, as an exhibit to his application and in this respecttoo it has failed to discharge his duty to disclose uberrima tides andmake a full and complete disclosure of all material facts to this Court.The contents of the schedule of payments disclosed that certainpayments are to be made in Rupees in Sri Lanka and that paymentsfor the children’s expenses and school fees in sums of US$ 870 andUS$ 645 are to be paid in Dollars in Sri Lanka. Thus the contents of1R1 seem to substantiate the admission alleged to have been madeby Mr. Sidath Sri Nandalochana appearing for the petitioner companybefore the aforesaid Board on the 10th of April, 1996, whichadmission is specifically referred to in the findings, determination anddecision of the third respondent dated 30.4.96.
In the result, on both the aforesaid points I hold that the petitionercompany has failed to make a full and frank disclosure of all materialsto Court and the petitioner company has been remiss in complyingwith the aforesaid contractual obligation to Court and to discloseuberrima tides. In the circumstances, I proceed to dismiss and rejectthe application in limine with costs in a sum of Rs. 5250/- payable toeach of the first and the third respondents. I dismiss the presentapplication with costs in a sum of Rs. 10,500/- payable by thepetitioner to the first and third respondents.
There has been a change of registered attorneys who have beenappearing for the petitioner company and this change of registeredAttorneys may have contributed to the failure on the part of theinstructing Attorneys of the petitioner company in applying forinspection of the record in Application No. EN/12/2/4/32 and forobtaining certified copies of all relevant proceedings and orders whichare germane to this application. The correspondence which have beenproduced only disclose that the petitioner company asked for acertified copy of the proceedings of 10.4.96 but did not ask for acertified copy of the findings, determination and decisions and thereasons which are set out in the document filed of record dated30.4.96. In fact, the petitioner company has further failed to apply for orto ask for a copy of the reasons pronounced by the third respondent.
BLANA DIAMONDS (PVT) LTD. v. WILFRED VAN ELS AND TWO OTHERS