CEYLON ELECTRICITY BOARD AND OTHERS v. RANJITH FONSEKA

031-SLLR-SLLR-2008-V-1-CEYLON-ELECTRICITY-BOARD-AND-OTHERS-v.-RANJITH-FONSEKA.pdf


SCCeylon Electricity Board and Others v337
Ranjith Fonseka
CEYLON ELECTRICITY BOARD AND OTHERSv
RANJITH FONSEKASUPREME COURT.
DR. SHIRAN/ BANDARANAYAKE, J.
MARSOOF, J. ANDEKANAYAKE, J.
S.C. (SPL.) L.A. NO. 113/2008
C.A. WRIT APPLICATION NO. 51/2007
DECEMBER 01, 2008
Supreme Court Rules 1990 – Rule 2 – Rules 8(2) – Constitution – Article 136 -Special Leave to Appeal should be by way of petition together with affidavit andother supporting documents – Non-compliance of Supreme Court Rules -Substantial Compliance ?
The Respondents-Petitioners (Petitioners) had preferred an application forSpecial Leave to Appeal to the Supreme Court against an order of the Court ofAppeal, which stayed the decision of the petitioner to withhold the respondentspension until the next date of the case.
The Counsel for the petitioner-respondent, took up the following preliminaryobjections:
The petition and affidavit for Special Leave to Appeal is titled:
"in the Court of Appeal of the Democratic Socialists Republic of SriLanka".
the caption of the petition is titled:
"In the matter of an application underand in terms of Article I54(3)(b)of the Constitution of the Democratic Socialist Republic of Sri Lanka."
The written submissions of the petitioners have not been annexed,whereas in paragraph 4 of the petition and in paragraph 5 of the affidavitit is stated that written submissions have been annexed marked as 'P4‘.
The petitioners are described as 1st to 10th respondents-appetlantswhereas,
The 10th respondent-appellant so described is the Hon. Attorney-General.
Proxy has only been filed for the 1st respondent-appellant
338Sri Lanka Law Reports[2008] 1 Sri L.R
Held:
A petition with an incorrect title would not be acceptable for the purposeof making an application for Special Leave to Appeal in terms of Rule 2 ofthe Supreme Court Rules 1990. A defective petition would amount to non-compliance with the said rule.
Where there had been objections based on non-compliance with theSupreme Court rules, whilst due consideration should be given to removeany technical objections in order to meet out justice, it is also necessaryto ensure that the approach of Court in interpreting the applicability ofSupreme Court Rules, should not lead to serious erosion of wellestablished Court procedures, applied and maintained throughout severaldecades.
If there is no proper petition filed for the purpose of a Special Leave toAppeal application, then such application would amount to non-compliance with Rule 2 of the Supreme Court Rules 1990.
It is apparent that the default in question, including the non-compliancewith Rule 2 of the Supreme Court Rules 1990, had not been satisfactorilyexplained by the petitioners nor have they cured it to the satisfaction of theSupreme Court, thus giving no opportunity to use the judicial discretion.
per Dr. Shirani Bandaranayake, J.
"An application such as the present application which is teeming withirregularities and mistakes cannot, not cnly be tolerated, but also would bedifficult to maintain as each irregularity stated above is fatal to theacceptability and maintainability of the application".
Cases referred to:
Velupillai v Chairman, Urban District Council (1926) 29 NLR 464.
Kiriwanthe and Another v Navaratne and Another (1990) 2 SLR 393.
Priyani E. Soyza v Rienzie Arsecularatne (1999) 2 SLR 179.
S.C. (Spl.) L.A. No. 49/2007.
Samantha Niroshana and Another v Gunasekera (S.C. (Spl.)L.A.145/2006 S.C. Minutes of 2.8.2007.
Jones v Chennell {8 ch. D. 506).
Read/ Samsudin (1895) 1 NLR 292.
Annamalai Chettiar Muthappan Chettiar v Karunanayake and Another(S.C. Appeal 69/2003 S.C. Minutes of 06.06.2005.
Reaindran v K. Velusomasunderam (S.C. (Spl.) L.A. 298/99 S.C. Minutesof 07.02.2000.
A/.A Premadasa v the Peoples Bank S.C. (Spl.)L.A. 212/99 S.C. Minutesof 24.02.2000.
Hamed v Majbdeen and Others S.C. (Spl.) L.A. 38/2001 S.C. Minutes of23.07.2001.
SCCeylon Electricity Board and Others v33g
Ranjith Fonseka (Dr. Shirani Bandaranayake, J.)
K.M. Samarasinghe v R.M.D. Ratnayake and Others SC (Spl.) L.A.51/2001 S.C.Minutes of 27.07.2001.
Soong Che Foo v Harosha K. de Silva and Others S.C. (Spl.) 184/2002S.C. Minutes of 25.11.2003.
C.A. Haroon v S.K. Muzoorand Others S.C. (Spl.) L.A. 158/2006 S.C.Minutes of 24.11.2006.
APPLICATION for Special Leave to Appeal from the judgment of the Court ofAppeal.
Mohan Peiris, P.C. with Nuwanthi Dias for respondents-petitioners.
Romesh de Silva, P.C. with Sugath Caldera, S, Cooray and G.G. Arulpragasamfor petitioner-respondent.
Cur.adv. vult.
December 16, 2008
DR. SHIRANI BANDARANAYAKE, J.This is an application for Special Leave to Appeal filed by therespondents-petitioners (hereinafter referred to as the petitioners)from the judgment of the Court of Appeal dated 28.04.2008. By thatjudgment the Court of Appeal had confined itself to consider the soleissue of the grant of interim relief prayed for by the petitioner-respondent (hereinafter referred to as the respondent) directing thepayment of his pension, which was withheld by the petitioners and theCourt of Appeal had made order staying the decision of the petitionersto withhold the respondent's pension, until the next date of that case.
The petitioners had preferred an application for Special Leave toappeal to this Court against the said order of the Court of Appeal andwhen it came up for support, learned President's Counsel for therespondent took up the following as preliminary objections:
(1) The petition and affidavit for Special Leave to Appeal filedbefore this Court is titled in the Court of Appeal of theDemocratic Socialist Republic of Sri Lanka;
The caption is titled as follows:
"In the matter in the application under and in terms of Article154P(3)(b) of the Constitution of the Democratic SocialistRepublic of Sri Lanka".
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The written submissions of the petitioners have not beenannexed whereas in paragraph 4 of the petition as well as inparagraph 5 of the affidavit it is stated that the writtensubmissions have been annexed marked as P4.
The petitioners are described as 1 st to the 10th respondents-appellants whereas;
The 10th respondent-appellant so described is the Hon. TheAttorney-General; and
proxy has only been filed for the 1st respondent-appellant.
Learned President's Counsel for the respondent, accordinglysubmitted that the preliminary objections so raised are fatal to theacceptability and maintainability of this application and the objectionsbe upheld and the application for Special Leave to Appeal bedismissed in limine.
Learned President's Counsel for the petitioners contended that onthe day this application was first taken up for support, the President'sCounsel for the petitioner had sought for permission to amend thecaption, if necessary, and had apparently filed amended caption.Learned President's Counsel for the petitioners referred to the oftquoted words of Abrahams C.J. in Velupillai v Chairman, UrbanDistrict Council), where it was stated that,
"this is a Court of justice, it is not an academy of law."
Learned President's Counsel further submitted that he isrelying on the decisions of Kiriwanthe and another v Navaratne andanotheti2) and Priyani E. Soysa v Rienzie Arsecularatne<3).
Having stated the contention of both learned President's Counselfor the petitioners and respondent, let me now turn to refer to therelevant facts of this matter and to examine whether the objectionstaken by the learned President's Counsel for the respondent wouldamount to a dismissal in limine of the Special Leave to Appealapplication filed by the iearned President's Counsel for the petitioners.
The judgment of the Court of Appeal, as stated earlier, wasdelivered on 28.04.2008 and the Special Leave to Appeal applicationhad been filed in the Supreme Court on 15.05.2008. In that
SQCeylon Electricity Board and Others v341
Ranjith Fonseka (Dr. Shirani Bandaranayake, J.)
—
application the petition and the affidavit were titled as correctlysubmitted by the learned President’s Counsel for the respondent,referring to the Court of Appeal and not to the Supreme Court. Further,as submitted by the learned President's Counsel for the respondent,the caption referred to Article 154P(3)(b) of the Constitution. There isno dispute regarding the contention of the learned President'sCounsel for the respondent on the 2nd and 3rd preliminary objectionsthat the written submissions were not filed along with the petition andaffidavit and that the proxy filed was only of the 1st petitioner.However, the contention of the learned President's Counsel for thePetitioners was that notwithstanding the above, there was substantialcompliance with the Supreme Court Rules of 1990.
In such circumstances, let me examine the said preliminaryobjections raised by the learned President's Counsel for therespondent to ascertain whether there had been compliance with theSupreme Court Rules of 1990.
Referring to the 1st preliminary objection raised by the learnedPresident's Counsel for the respondent, learned President's Counselfor the petitioners contended that although the captions in the petitionand affidavit had been defective, such defects are not fatal to themaintainability of this application. The contention was that in terms ofRule 2 of the Supreme Court Rules of 1990 an affidavit is merely usedas a supplementary source of evidence and therefore a defectivecaption in the affidavit will not reduce the evidentiary value of therelevant application.
It is common ground that the application for Special Leave toAppeal preferred by the petitioners contained incorrect titles. Rule 2 ofthe Supreme Court Rules, 1990, which is contained in Part I and dealswith applications for Special Leave to Appeal, clearly stipulates that,
"Every application for Special Leave to Appeal to the SupremeCourt shall be made by a petition in that behalf lodged at the’,Registry, together with affidavits and documents in supportthereof as prescribed by Rule 6" (emphasis added).
Rule 2 of the Supreme Court Rules, 1990 thus states quite clearlythat an application for Special Leave to Appeal should be made byway of a petition. A petition for the said purpose therefore is amandatory requirement and to fulfill such requirement, it is necessary
342Sri Lanka Law Reports[2008] 1 Sri L.R
for the petition to be a valid petition. A petition with an incorrect titletherefore would not be acceptable for the purpose of making anapplication for Special Leave to Appeal in terms of Rule 2 of theSupreme Court Rules 1990, and thereby it is apparent that there hadbeen non-compliance with the said Rule.
The question, which arises at this point is that in a situation, wherethere has been non-compliance with Rule 2 of Supreme Court Rules1990, whether it is possible for the petitioners to cure that defect by anamendment to the petition.
Learned President's Counsel for the petitioners, after filing theapplication for Special Leave to Appeal on 15.05.2008, had filed amotion on the same date, moving this Court to permit the learnedCounsel to support the application for interim relief. Accordingly, thismatter was fixed for support on 28.05.2008 and on that date, it wasre-fixed for support, since the respondents had not received thenecessary documents. In fact it is recorded that the learned Counselfor the petitioners had undertaken to handover a ’fresh set of papers'to the learned Counsel for the respondent. A careful perusal of therecord does not however reveal any other application made by thelearned President's Counsel for the petitioners as the Journal Entryreads thus:
"Court is informed that Mr. Romesh de Silva, PC, appears for therespondent. Mr. Arulpragasam submits that the Counsel for therespondent has not received papers filed in this application.Counsel for the petitioners undertakes to handover a fresh set ofpapers.
Support on 04.06.2008."
On 04.06.2008, the matter had been re-fixed for support as thepetitioners were exploring the possibility of a settlement. Only at thattime, learned President's Counsel for the petitioners had moved fortime to file papers to amend the caption, if it becomes necessary, andit had been recorded that,
"Learned President's Counsel for the petitioners informs Courtthat this matter be re-fixed for support since the petitioners areexploring the possibility of a settlement.
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Learned President's Counsel for the petitioners' also moves fortime to amend the caption, if necessary.
Of consent, support on 19.06.08" (emphasis added).
On 11.06.2008, petitioners had filed the amended caption, alongwith the written submissions, which was the annexure marked X4 inthe Court of Appeal and had moved this Court to accept same. Whenthis matter was taken up for support on 19.06.2008, learnedPresident's Counsel for the respondent took up the preliminaryobjections, stated earlier. It is therefore quite apparent that the motionfor the amendment had not been supported at the time the preliminaryobjections were taken and in the event, if the said motion was fixedfor support, the learned President's Counsel for the respondent, ashas been stated in his oral as well as in his written submissions, wouldhave objected to such an amendment.
Therefore it is apparent that at the time the objections were taken,although motions were filed to amend the petition, the said motionswere not supported; permission of Court was not sought to amendand therefore admittedly no amendment was permitted by this Court,Accordingly, in those circumstances, it cannot be disputed that thedefect in question was not cured by the petitioners within a reasonabletime.
Learned President's Counsel for the respondent, in support of hiscontention that this application must be dismissed in limine due to thedefects in the petition, referred to the decision in S.C. (Spl.) L.A. No.49.2007(4), where the petition, which was filed in the Supreme Courttitled 'In the Court of Appeal of the Democratic Socialist Republic ofSri Lanka', had to be withdrawn on the basis of the objections takenby the respondent.
As stated earlier, learned President's Counsel for the petitioners,relied on the decision in Kiriwanthe and Another v Navaratne andAnother (supra) and Priyani Soysa v Rienzie Arsecularatne (supra)stating that in those decisions the Court had held that the non-compliance with the Supreme Court Rules is not fatal and does notnecessitate a dismissal of the case.
The rationale of the decision in Kiriwanthe and Another vNavaratne and Another (supra) as clearly stated in Samantha
344Sri Lanka Law Reports[2008] 1 Sri L.R
Niroshana and Another v Gunasekerat5> was that in certain instances,taking into consideration the surrounding circumstances, the Courtcould exercise its discretion either to excuse the non-compliance or toimpose a sanction. The majority decision in Priyani Soysa v RienzieArsecularatne (supra) had followed that dictum and had used itsdiscretion in coming to its conclusion.
A careful examination of the decision in Kiriwanthe (supra),clearly indicates that it does not suggest that there ought to be anautomatic exercise of Courts discretion to excuse the non-compliance with regard to Supreme Court Rules. It is not disputedthat in Kiriwanthe (supra) Mark Fernando, J. had stated thatalthough the requirements of Rule 46, (as was the case in thatapplication) must be complied with, strict or absolute compliance isnot essential. In Mark Fernando, J.'s words,
"…. I am content to hold that the requirements of Rule 46must be complied with, but that strict or absolutecompliance is not essential; it is sufficient if there iscompliance which is 'substantial' – this being judged inthe light of the object and purpose of the Rule."
However, Kiriwanthe (supra) cannot be considered as adecision, which had expressed the view that the Court wouldalways exercise its discretion to excuse non-compliance with theRules. A close scrutiny of the said decision in Kiriwanthe andanother v Navaratne and Another (supra) clearly emphasizes thefact that, what the Court had stated was that it would be necessaryfor the Court to first determine whether such non-compliance couldbe excused or impose a sanction on the basis of the circumstancesof each instance. As has been stated by Mark Fernando, J., in thesaid decision,
"It is not to be mechanically applied, as in the case nowbefore us; the Court should first have determined whetherthe default had been satisfactorily explained, or curedsubsequently without unreasonable delay, and then haveexercised a judicial discretion either to excuse the non-compliance, or to impose a sanction …"
SCCeylon Electricity Board and Others v345
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The Rules of the Supreme Court, it is to be noted, is for the solepurpose of regulating generally the practice and procedure of theCourt. Article 136, which deals with the Rules of the Supreme Courtstates that the Rules made to so regulate the practice andprocedure would include,
"a) rules as to the procedure for hearing appeals and othermatters pertaining to appeals including the terms underwhich appeals to the Supreme Court and the Court ofAppeal are to be entertained and provision for thedismissal of such appeals for non-compliance yvith suchrules;
b) rules as to the proceedings in the Supreme Court andCourt of Appeal in the exercise of the severaljurisdictions conferred on such Courts by theConstitution or by any law, including the time withinwhich such matters may be instituted or brought beforesuch Courts and the dismissal of such matters for non-compliance with such rules;
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The said Articles of the Constitution therefore clearly specifiesthe fact that subject to the terms stipulated in the specific Rules,there are instances, where an application could be dismissed fornon-compliance with relevant Rules.
I am certainly mindful of the observations of Sir George Jessel,Master of the Rolls, made in the case of Jones v Chennelf6) citedwith approval by Bonser, C.J. over a century ago in Read vSamsudinR) and has been referred to in Annamalai ChettiarMuthappan Chettiar v Karunanayake and anotheka where it wasstated that,
"It is not the duty of a Judge to throw technical difficultiesin the way of the administration of justice, but where hesees that he is prevented from receiving materia! oravailable evidence merely by reason of a technicalobjection, he ought to remove the technical objection outof the way upon proper terms as to costs and otherwise."
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This position was carefully considered in Annamalai ChettiarMuthappan Chettiar (supra), where it was held that objectionsraised on the basis of non-compliance with a mandatory Rulecannot be taken as a mere technical objection and where there hasbeen non-compliance with such mandatory Rules at the time thematter was taken for hearing, serious consideration should begiven to the effects of such non-compliance.
It is therefore quite apparent that, this Court had given carefulconsideration to matters, where there had been objections basedon non-compliance with Supreme Court Rules. Whilst dueconsideration should be given to remove any technical objectionsin order to meet out justice, it is also necessary to ensure that theapproach of Court in interpreting the applicability of Supreme CourtRules, should not lead to serious erosion of well establishedCourt procedures, applied and maintained throughout severaldecades.
In Samantha Niroshana v Gunasekera (supra) this Court hadnoted that a long line of cases had decided that non-compliance withRule 8(3) of the Supreme Court Rules of 1990 would result in thedismissal of the application (Reaindran v K. Velusomasunderani9),N.A. Premadasa v The People's Ban^°), Hamed v Majbdeen andOthers^11), K.M. Samarasinghe v R.M.D. Ratnayake and Others<12>,Soong Che Foo v Harosha K. De Silva and Others3), C.A. Haroon vS.K. Muzoor and Others 4).
The preliminary objection taken in this matter does not dealwith Rule 8(3) of the Rules, but relates to Rule 2 of the SupremeCourt Rules 2 and 8 are contained in Part I of the Supreme CourtRules 1990 and deal with Special Leave to Appeal applications.Rule 2 clearly states that it is a mandatory requirement that anyapplication for Special Leave to Appeal to the Supreme Court bemade by a petition in that behalf. Accordingly, if there is noproper petition filed for the purpose of a Special Leave to Appealapplication, then such would amount to non-compliance withRule 2 of the Supreme Court Rules 1990.
In such circumstances, the question, which arises at this point is tosee whether the said non-compliance with Rule 2 of the SupremeCourt Rules of 1990 would result in the dismissal of this application
SCCeylon Electricity Board and Others v347
Ranjith Fonseka (Dr. Shirani Bandaranayake, J.)
or whether the discretion of this Court could be used to over rule thepreliminary objection.
It is pertinent to note at this juncture that the aforesaid non-compliance with Rule 2 was not the only objection raised by thelearned President's Counsel for the respondent.
Along with the objection of not having a proper petition in terms ofthe Supreme Court Rules 1990 before this Court, learned President'sCounsel for the respondent had contended that the affidavit is not inorder as the affidavit is titled 'in the Court of Appeal of the DemocraticSocialist Republic of Sri Lanka' and that the written submissions filedin the Court of Appeal although had been referred to in the paragraph4 of the petition that it has been attached to the petition as P4, has notbeen annexed. Learned President's Counsel for the respondent, alsoreferred to the fact that although this is an application filed apparentlyfor the purpose of obtaining Special Leave to Appeal from thejudgment of the Court of Appeal, in the application, the petitioners arereferred to as appellants. It is an obvious fact that aggrieved personswould become appellants before this Court, only if and when SpecialLeave to Appeal is granted for the application made by the petitioners,by this Court.
The caption of the application was also erroneous as it was titledas follows:
"In the matter in the application under and in terms of Article154P(3)b of the Constitution of the Democratic SocialistRepublic of Sri Lanka."
As correctly submitted by learned President's Counsel for therespondent that the said Article 154P(3)(b) does not in any way referto an application for Special Leave to Appeal to the Supreme Court,and clearly refers to an application to High Court. It is also to be bornein mind that even in the amended petition the petitioners had referredto Article 154P(3)(b) in its title. Considering the aforementionedcircumstances, along with the defective title to the petition andaffidavit; the petitioners being referred to as appellants, which includethe Hon. the Attorney-General; the proxy being filed only for the 1stpetitioner, it is quite evident that the petition filed before this Court isteeming with mistakes and irregularities.
348Sri Lanka Law Reports[2008] 1 Sri L.R
As correctly submitted by the learned President's Counsel for therespondent the application for Special Leave to Appeal filed by thepetitioners before the apex Court of the Republic, should have beendrafted with 'care and due diligence' in order to maintain the statureand dignity of this Court. An application such as the presentapplication, which is teeming with irregularities and mistakes cannot,not only be tolerated, but also would be difficult to maintain as eachirregularity stated above is fatal to the acceptability and maintainabilityof the application. Even if the objection may be technical in nature,such irregularities clearly demonstrate the fact that the applicationmade by the petitioners has not complied with the Supreme CourtRules of 1990.
As has been stated earlier, if I am to apply the test stated by MarkFernando, J., in Kiriwanthe's case (supra), it is apparent that thedefault in question, including the non-compliance with Rule 2 of theSupreme Court Rules 1990, had not been satisfactorily explained bythe petitioners nor have they cured it to the satisfaction of this Court,without undue delay, thus giving no opportunity to use the judicialdiscretion.
In the circumstances, on a consideration of all the material placedbefore this Court and for the reasons aforementioned, I hold that thepreliminary objections raised by the learned President’s Counsel forthe respondent must be sustained. The petitioners' application forSpecial Leave to Appeal is accordingly dismissed.
I make no order as to costs.
MARSOOF, J.-I agree.
EKANAYAKE, J.-I agree.
Application dismissed.