CANNOSA INVESTMENTS LIMITED V. EARNEST PERERA AND OHTERS

018-SLLR-SLLR-1991-V2-CANNOSA-INVESTMENTS-LIMITED-V.-EARNEST-PERERA-AND-OHTERS.pdf


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CANNOSA INVESTMENTS LIMITEDV.
EARNEST PERERA AND OTHERS
SUPREME COURT,
H. A. O. DE SILVA, J., DHfcERARATNE, J. AND RAMANATHAN, J.,S. C. APPLICATION 12/90,
MAY IS, 21, 23, JUNE 06, JULY. 02, 10, 27, AUOUST 29,
SEPTEMBER 07, 14, 18, 20 AND 21 1990.
Fundamental Rights – Executive and administrative action – Right to runcasino – Search Warrant – Section 5(1} of the Gaming Ordinance – Acting inpursuance of judicial order – Mala tides – Wrongful exercise of judicial dis-cretion.
Under Section 3(1) of the Gaming Ordinance a Magistrate has to be sat-isfied upon written information on oath and after such further inquiry asmay be necessary, that there is good reason to believe that the place to besearched is kept or used as a common gaming place. It is only then the mag-istrate can issue a search warrant.
SCCannota Investments Limited v. Earnest Perera and Others215
(H A G. De Silva, J.)
Even if a search warrant is improperly obtained from a magistrate for acollateral purpose and mala fide there is no infringement of a fundamentalright. Where the action complained of is in consequence of the wrongfulexercise of a judicial discretion even on false material furnished to a judgemaliciously, such action will not attract the provisions of Article 126 of theConstitution. The violation must be by administrative or executive action.
Cases referred to:
Leo Fernando v. Attorney-General [1985] 2 Sri LR 341.
Kumarasinghe v. Attorney-General SC Minutes of 06.09.1982.
Dayananda v. Weerasinghe 2 FRD 292.
Dharmatillake v. Abeyanayake and Others SC 156/86 – SC Minutes of15.12.1988.
Velmurugu v. Attorney-General IFRD 180.
Perera v. U.G.C. 1 FRD 103.
Wijetunga v. Insurance Corporation [1982] 1 Sri LR 374.
Saman v. Leeladasa and Another [1989] 1 Sri LR 1.
APPLICATION under Article 126 of the Constitution for violation offundamental rights.
H. L. de Silva PC with E. D. Wickramanayake, A. Tittawela and Kusbande AMs for petitioner.
Faiz Mustapha PC with S. Mahenthiran, S. Kongahagc and Mahanamade Silva for 4 and 5 respondents.
Upawansa Yapa, Deputy Solicitor General with Kolitha Dharmawar-dena, S.C. and Kalinga Indatissa S.C. for the other respondents.
Cur.adv.vult.
October 10, 1990.
A. G. DE SILVA, J. read the following judgment of theCourt:
This is an application by the petitioner for relief underArticle 126 of the Constitution.
The petitioner is a company registered in Hong Kong andclaims the right to run a casino styled “Le Casino” located atthe Galadari Meridien Hotel on the roof top floor.
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The petitioner alleges that on the 6th April, 1990 at about8.30 p.m. a party of Policemen which included the 4th and 5threspondents entered the said casino and took into custody sev-eral persons, equipment, furniture and money which were inthe premises. The petitioner made inquiries from the Magis-trate’s Court and was informed that the Police had obtained asearch warrant for the purpose of entering the premises. How-ever the Magistrate has since informed this Court that she hadissued the search warrant inadvertently without compliancewith Section 5(1) of the Gaming Ordinance/ (cap. 59) whichstipulates that a Magistrate has to be satisfied upon writteninformation on oath and after such further inquiry which maybe necessary that there is good reason to believe that the placeto be searched is kept or used as a common gaming place.
It was also submitted by counsel for the petitioner that the4th and 5th respondents had acted mala fide for a collateral' purpose in collusion with a business rival of the petitionercompany by the name of Leisure World. It was submitted thatthese respondents had concealed from the Magistrate the factthat the casino was located within the premises of GaladariMeridien and had obtained the search warrant by falsely des-cribing it as a social club. The case for the petitioner companywas that the application for a search warrant, the search itselfand the institution of criminal proceedings had been effected,not with the objective of enforcing the law, but to advance thebusiness interests of Leisure World.
Learned counsel for the petitioner states that no mala fidesor impropriety was imputed to the Magistrate. He submittedthat as the Magistrate had acted honestly and in the purportedexercise of a jurisdiction which she possesses, the order issuinga search warrant was a judicial act and therefore outside thescope of Article 126 of the Constitution. He went on to arguehowever that the execution of the search warrant by the 4thand 5th respondents was not so protected, inasmuch as it hadbeen secured and executed mala fide and therefore constituted“executive action” within the meaning of Article 126.
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Cannosa Investments Limited v. Earnest Penn and
Others 01. A. G. De Silva, J.)
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However, counsel for the respondents contended that as the4th and 5th respondents had entered upon the casino in obe-dience to a search warrant issued by the Magistrate, suchaction being in pursuance of judicial process did not constitute“executive or administrative” action within the meaning ofArticle 126 of the Constitution. Counsel contended that in anyevent mala tides did not convert such action into “executiveor administrative action” and that the question of mala fideswas irrelevant in so far as these proceedings were concerned.
The preliminary question for determination in this case iswhether the entry by the 4th and 5th respondents upon thecasino constitutes “executive or administrative action” withinthe meaning of Articles 17 and 126 of the Constitution. Theseread as follows:
Article 17— “Every person shall be entitled to apply tothe Supreme Court, as provided by Article126, in respect of the infringement or immi-nent infringement, by executive or adminis-trative action, of a fundamental right towhich such person is entitled under the pro-visions of this Chapter”.
Article 126 (1) —“The Supreme Court shall have sole andexclusive jurisdiction to hear and determineany question relating to the infringement orimminent infringement by executive oradministrative action of any fundamentalright or language right declared and recog-nized by Chapter III or Chapter IV”.
Learned counsel for the petitioner relied upon the judge-ment of this Court in Leo Fernando v. Attorney-General (1)and submitted that Police Officers who acted in pursuance of ajudicial order would be immune from liability for the violationof a fundamental right only if they acted in good faith, notknowing the Magistrate’s order to be invalid. His principal
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contention was that where there was mala tides on the part ofthe Police Officer, such acts would not be outside the reach ofArticle 126 of the Constitution.
We shall now consider some of the decisions of this Courtwhich have a bearing on this issue. In Kumarasinghe v.Attorney-General (2) reported in Fundamental Rights and theConstitution, (supra) Wimalaratne, J stated as follows:
“I am of the view that there has been a violation of thefundamental right guaranteed by Article 13(2) of theConstitution but this violation has been more in conse-quence of the wrongful exercise of judicial discretion asa result of a misleading police report. Although we areunable to grant the petitioner the relief prayed for, weaward him costs in a sum of Rs. 750/-, payable by therespondents”.
The approach of Justice Wimalaratne was followed in thecase of Dayananda v. Weerasinghe (3)Ratwatte, J stated :
“The question that arises for consideration is whether,though the remand orders were made by a judicialofficer, the petitioner is entitled to relief on the ground,as alleged by him that the remand orders were made asa result of the wrongful acts of the 1st and 2nd respon-dents”.
Justice Ratwatte went on to state that —
“I do not think it is necessary to consider the allegationsof the petitioner that the 1st and 2nd respondents wereactuated by malice and ill will towards him. The factremains that the remand orders were made by the Mag-istrate in the exercise of his judicial discretion. Even ifsuch orders were made on false or misleading reports itdoes not help the petitioner in this case because ordersmade by a Judge in the exercise of his judicial discre-tion do not come within the purview of the special
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Canoosa Investments Limited v. Earnest Ann and
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jurisdiction of the Supreme Court under Article 126 ofthe Constitution even though such orders may be theresult of a wrongful exercise of the Judge’s judicial dis-cretion”.
In the case of Dharmatilleke v. Abeyanayake and others (4)the petitioner complained of violations of the fundamentalrights guaranteed by Articles 13(1) and 13(2) of the Constitu-tion. The petitioner had gone to the police station in responseto a message from the O.I.C. and was arrested by a Sergeantunder a warrant issued by the High Court. The petitioner wasa senior public servant and the warrant had been issued for afailure to attend the High Court as a prosecution witness.There had been an exchange of words between the petitionerand the Police sergeant prior to the arrest. The petitioneralleged she had not been informed of the reason for her arrest.The petitioner had been remanded on the application of thePolice for 15 days whereas she could have been producedbefore the High Court the very next day. The Court held thatthis had been deliberately done by the 1st respondent PoliceOfficer. She was granted relief under Article 13(1) as she hadnot been informed of the reason for her arrest. The petitionerhowever did not obtain any relief for wrongful detention andremand as this was in consequence of a judicial order.
On a consideration of the above cases it would appear tobe well established that where an action complained of is inconsequence of the wrongful exercise of a judicial discretioneven on false material furnished to a Judge maliciously, suchaction will not attract the provisions of Article 126 of theConstitution.
Finally, we shall examine the decision in the case of LeoFernando vs. Attorney-General (1). The petitioner was seatedin the well of the Magistrate’s Court witnessing a case involv-ing two other parties but pertaining to the estate of which thepetitioner was the Superintendent. The Attomey-at-Lawappearing for one of the parties had informed Court that the
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petitioner had intimidated his client’s wife. The Magistrate hadthereupon ordered the detention of the petitioner in the Courtcell. The petitioner complained of the violations of fundamen-tal rights guaranteed under the Constitution.
Colin Thome, J.having made an exhaustive analysis of theliability of Judges in respect of delict and under the CriminalLaw, referred to the interpretation given by this Court to the-term ’executive or administrative’ action in the cases of Vel-murugu v. Attorney-General (5), Perera vs. U.G.C. (6) andWijetunga v. Insurance Corporation (7). He cited with appro-val the observation of Sharvananda, J. (as he then was) inWijetunga’s case to the following effect:—
“The question whether the Insurance Corporation is oris not virtually a department of the State or servant ofthe Government would depend on the provisions of theInsurance Corporation Act, No. 2 of 1961. Hence, wehave to analyse this to determine the nature of its func-tion, precise degree of control by the government andwhether the amount of control establishes the identityof the Corporation as a part of the Government”.
His Lordship concluded that —
“The principle emerging from the judgements is that thetest is the nature of the function and degree of con-trol”. (vide page 357)
Applying therefore the function and control test, ColinThome, J- held that as the Magistrate was not subject toGovernment or Ministerial control his judicial order was notsubject to review under Article 126 of the Constitution. His^ordship did not consider the liability of the other respondentsindependent of that of the Magistrate and dismissed the appli-cation against all respondents.
Justice Ranasinghe (as he then was) while agreeing that theorder of the Magistrate was a judicial order and that the Mag-
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istrate was immune from liability went on to consider the lia-bility of the Prisons Officer. His Lordship pointed out that thePrison Officer had acted entirely in obedience to a directiongiven by the Magistrate and that it had not been urged that hewas influenced by any improper motive. Referring to the deci-sion in Kumarasinghe v. Attorney-General (2), Ranasinghe, Jnoted that the Court had not granted relief in that case for aviolation as it had been more the consequence of a wrongfulexercise of judicial discretion as a result of a misleading report(page 374) and held that the petitioner’s claim must fail. ButRanasinghe, J went on to make the following observation;
“The position of an officer of the State, who in thecourse of carrying out an order made by a Judge in theexercise of his judicial functions violates the fundamen-tal right of a person, is that he would be free from lia-bility if in doing so, he has acted in good faith, notknowing that the said order is invalid”, (vide page374).
On an analysis of the above cases it would appear that theliability for violation of fundamental rights in consequence ofjudicial orders had been settled by the decisions of this Court,in Kumarasinghe v. Attorney-General (2), Dayananda v. Wee-rasinghe (3), and Dharmatilleke v. Abeyanayake and Others
.
This Court, in all these cases has not severed the liability ofMinisterial officers as distinct from the judicial order to whichthe act complained of was referrable. Ranasinghe J, hasapproved the test adopted in Kumarasinghe v. Attorney-General (2), and as siich his views expressed in regard to theliability of a Ministerial Officer who acts mala fide in execu-tion of a judicial order appear to be obiter.0
We therefore prefer to rest our decision on, the viewhithertofore expressed by this Court that a violation arising inconsequence of a judicial order even if maliciously obtained,would not attract liability under Article 126 of the Constitu-
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tion. The obiter dicta of Ranasinghe, J. would merit considera-tion by a Fuller Bench.
In the case of Saman v. Leeladasa and another (8) Amera-singhe, J (with His Lordship Ranasinghe, C. J. agreeing) fol-lowed the opinions hitherto expressed by this Court and heldthat the basis of the liability of the State for violations of fun-damental rights by its officers was sui generis and not delic-tual. Seizing upon this, learned counsel for the petitioneradvanced the argument that the fact that a ministerial officeracts in carrying out the order of a Court is relevant only whendetermining the liability of the State Officer in the sphere oftortious liability of the State for the act of the officer inrespect of the violation of a fundamental right.
In Saman’s case the petitioner stated that when he was inprison, he had occasion to bathe at a water tank situatedclose to his cell. He was assaulted by a Prisons Officer statingthat he had no right to bathe there at that time. He com-plained that the fundamental right guaranteed to him underArticle 11 of the Constitution had been violated on the groundthat the assault constituted torture or cruel inhuman ordegrading treatment. State Counsel who represented the Statesought to argue that the act of assault was an unauthorised actand that therefore the State was not liable. Hence, the ques-tion arose as to the principles upon which the State could beheld liable for the acts of an officer where such acts had notbeen expressly authorised. Amerasingbe, J followed the viewspreviously expressed by this Court and held that it was a suigeneris liability and that therefore the issue could not beresolved by the application of the principle of master and ser-vant liability in the law of torts. He held that, on that basis ofliability, the act complained of was sufficiently connected withthe performance of the lawful functions of the Prison Officerconcerned and as such the State was liable. Fernando, J whilstdiffering as to the basis of the liability of the State, neverthe-less held that the State was liable on the facts of that case.
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Caanosa lnvauneau Limited v. Eam«*t Penra andOften (H. A. O. De Stint, J)
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Hence, it would appear that the question which arose in thatcase did not relate to the distinction between executive oradministrative action and a judicial act but as to whether theact complained of was sufficiently proximate to the perfor-mance of the Officer’s functions and the views expressed inregard to the basis of State liability related to that particularquestion. We are confronted with a different issue in this caseand there is no reason to depart from the view hitherto takenby this Court on this issue.
In view of the opinion we have already formed that thequestion of malice is irrelevant, we do not propose to commenton the facts relied upon by the petitioner in inviting us to drawany inference that the conduct of the 4th and Sth respondentshave been motivated by malice.
We wish to observe however that Magistrates and PoliceOfficers alike should pay scrupulous attention to the obser-vance of the statutory pre- condition for the issue of processconferring investigative powers on the Police. For the abovereasons we dismiss the application. We make no order forCosts.
H. A. G. DE SILVA, J. — I agree.DHEERARATNE, J. — I agree.RAMANATHAN, J. — I agree.
Application dismissed.