FERNANDO AND OTHERS v. FRANCIS FERNANDO AND ANOTHER

002-SLLR-SLLR-2010-V-1-FERNANDO-AND-OTHERS-v.-FRANCIS-FERNANDO-AND-ANOTHER.pdf


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Fernando and others v. Francis Fernando and Another
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FERNANDO AND OTHERSFRANCIS FERNANDO AND ANOTHERSUPREME COURTJ. A. N. DE SILVA C. J.
SRIPAVAN, J. ANDIMAM, J.,
S. C. APPEAL NO. 81/2009FEBRUARY 9™, 2010
Supreme Court Rules – Rule 30 (1) and Rule 30 (6) – Sling of writtensubmissions – Rule 34 – failure to serve the written submissions on theRespondents – non compliance – appeal is liable to be dismissed.
The Appellant duly filed five copies of written submissions in theRegistry, but failed to serve copies of written submissions on theRespondents as required on Rule 30 (6). Does it amount to a failure toexercise due diligence as provided in Rule 34?
Held
Rule 30 (1) mandates that no party to an appeal shall be entitled tobe heard unless he has previously lodged five copies of his writtensubmissions in terms of Rule 30(5).
“The use of the words “foregoing provisions'’ in Rule 30 (5) bynecessary implication shuts out imposition of any sanction in thesubsequent provisions to Rule 30(5). (emphasis added). In theevent of non-compliance of the said provisions of the Rules, theonly sanction imposed by Rule 30 (1) is that such party shall notbe entitled to be heard. However, in an appropriate case, the Courtmay consider the dismissal of an appeal or application under Rule34 for failure to show due diligence in prosecuting the appeal orapplication.”
One of the tests for determining the nature of a Rule is to seewhether it entails any penal consequences and in cases where thedisobedience of a Rule carries a sanction it could safely be saidthat the said rule is mandatory.
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“In the case of Rules framed by Court for regulating its ownprocedure, I am of the view that one should look for greater degreeof reasonableness and fairness.”
As the appellants in this appeal have tendered their writtensubmissions to the Respondents once the failure to tender writtensubmissions had been brought to their notice, it amounts to anappropriate case for the preliminary objection to be overruled andto fix the application for hearing.
Case referred to:
Muthxxppan Chettiar vs. Karunanayake and others (2005) 3 SLR327
Priyani de Soyza vs. Arsacularatne (1999) 2 SLR 179
Priyadasa and Others vs. Land Reform Commission, S. C. AppealNo. 30/97-SCM 8.7.1998.
Union Apparels (pvt) Ltd. v. Director General of Customs and Others(2000) 1 SLR 27
Special leave to appeal from a judgement of the Court of appeal – on a
preliminery objection raised.
Sanjeewa Jayawardane for the Defendants – Respondents – Appellants.
Ms. Chamanthe Weerakoon Unamboowe for the substituted Plaintiff-
Appellant – Respondent.
Cur.adv.vult.
April 30th 2010SRIPAVAN. J.
When this appeal was taken up for hearing on 9thFebruary 2010, Learned Counsel for the substituted-Plaintiff-Appellants-Respondents (hereinafter referred to as theRespondents) took up a preliminary objection to the effectthat the Defendants-Respondents-Appellants (hereinafterreferred to as the Appellants) had failed to serve a copy oftheir written submissions on the Respondents as required by
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Rule No. 30 (6) of the Supreme Court Rules 1990 and that theAppellants’ appeal should be dismissed in limine in terms ofRule 34 thereof.
It is not in dispute that five copies of the Appellants’written submissions were duly lodged in the Registry ofthis Court on 4th August 2009, in terms of Rule 30(1), readwith Rule 30(6). However, the only matter to be consideredis whether the Appellants’ failure to serve the said writtensubmissions on the Respondents would amount to a failureto exercise due diligence as provided in Rule 34.
It is a well known principle in the construction of theRules, that effect must be given to the language irrespectiveof the consequences. No doubt when the intention is clear itmust unquestionably be so construed in order to achieve theresult which has been manifested in express words. One ofthe tests for determining the nature of a Rule is to see whetherit entails any penal consequences and in cases where thedisobedience of a Rule carries a sanction it could safely besaid that said rule is mandatory. In the case of Rules framedby Court for regulating its own procedure, I am of the viewthat one should look for a greater degree of reasonablenessand fairness.
It should be borne in mind that Rule 30 (1) mandatesthat no party to an appeal shall be entitled to be heard unlesshe has previously lodges five copies of his written submis-sions complying with the provisions of this Rule. Rule 30(5)further provides that submissions not in substantial compli-ance with the “foregoing provisions” may be struck out bythe Court, whereupon such party shall not be entitled to beheard, (emphasis added)
The use of the words “foregoing provisions” in Rule 30(5)by necessary implication shuts out imposition of any sanction
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in the subsequent provisions to Rule 30(5). (emphasis added).In the event of non-compliance of the said provisions ofthe Rules, the only sanction imposed by Rule 30(1) is thatsuch party shall not be entitled to be heard. However, in anappropriate case, the Court may consider the dismissal of anappeal or application under Rule 34 for failure to show duediligence in prosecuting the appeal or application.
In this appeal, both Counsel agreed that the Appellantshave lodged their written submissions within six weeks of thegrant of Special Leave to Appeal as provided in Rule 30(6).However, inadvertently or otherwise, a copy of the Appellants’written submissions had not been served on the Respon-dents prior to the first date of hearing. On the first date of thehearing of the appeal, namely, on 08th October 2009, anapplication was made on behalf of the Counsel for theAppellants to have the appeal re-fixed for hearing as the learnedCounsel for the Appellants was indisposed. Accordingly,the hearing of the appeal was postponed for 9th February2010. The learned Counsel for the Respondents in the writtensubmissions, have taken up the position that the writtensubmissions of the Appellant was served on the Respondentsby registered post after the first date of hearing. Counsel forthe Respondents also submitted that under Rule 34, the Courthas discretion to proceed with the hearing of the appeal afterconsidering the circumstances of non-compliance and whetherthe Appellants have rectified any omission as soon as theybecame aware of it. Counsel for the Respondents reliedon the case of Muthappan Chettiar vs. KarunanayakeandOthers,(1>. It may be relevant to reproduce below the observa-tions made by Shirani Bandaranayake, J. (at 334) in the saidapplication –
“According to the aforementioned Rules, the appellant
should have filed his written submission on or before
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05.11.2003. Although the matter was fixed for argumenton 29.01.2004, on a motion filed by the learned President’sCounsel for the respondents dated 10.10.2003, this matterwas re-fixed for hearing on 03.03.2004. On 03.03.2004, onan application made on behalf of the learned President’sCounsel for the appellant, the hearing was again re-fixedfor 01.07.2004. On 01.07.2004, it was not possible for theappeal to be taken up for hearing as the Bench comprisedof a judge who had heard this matter in the Court of Appealand this was re-fixed for hearing on 01.11.2004. On thatday it was once again re-fixed for hearing for 17.02.2005.By that time one uear and four months had lapsed from thedate special leave to appeal was granted. It is not disputedthat even on the dau this appeal was Rnallu taken up forhearing, viz, on 17.02.2005. the appellant had neither filedhis written submissions nor had he given an explanationas to whu it was not possible to file such written submis-sions in accordance with the Rules.” (emphasis added)
It is observed that in Muthappan Chettiar’s case (supra),the delay in filing written submissions ran to several months.Notwithstanding such delay, even thereafter the appellanthad not taken any interest to comply with the Rules relatingto filing of written submissions. On 17.02.05 when the matterwas taken up for hearing, the written submissions were notbefore Court. When the learned President’ Counsel for therespondents took up the preliminary objection, appellantmoved to file written submissions on the question of the saidpreliminary objection. The Court directed the respondents tofile their written submissions on or before 07.03.2005 andthe appellant to file their written submissions on the saidpreliminary objections on or before 01.04.2005. The respon-dents however filed their written submissions on 04.03.2005.and the appellant failed to file his written submissions on
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or before 01.04.2005. The appellant finally filed his writtensubmissions only on 10.05.2005.
All the abovementioned events, clearly indicate that theappellant had been consistent in not showing due diligencein prosecuting his appeal. I am therefore of the view thatMuthappan Chettiar’s case is easily distinguishable from theinstant appeal.
In the case of Priyani de Soyza vs. ArsacularatneP*,at 202, Wijethunga, J. referred to the case of Piyadasa andOthers vs. Land Reform Commission131, where a preliminaryobjection was taken by the learned Counsel for the Petitionersthat the Respondents had filed their written submissions197 days after the date of which they were requiredby Rule 30(7) to be filed, and it was contended that theRespondents belated submissions should not be acceptedand that the Respondents should not be heard even thoughthere was no explanation tendered regarding the delay.Amerasinghe, J. overruled the preliminary objection statingthat “In my view, Rule 30 is meant to assist the Court in itswork and not to obstruct the discovery of the truth. There werenumerous documents that had to be considered; and in ourview, we needed the assistance of learned Counsel for thePetitioner as well as the Respondents, including their writtensubmissions to properly evaluate the information that wehad before us. It was therefore, decided that the preliminaryobjection should be overruled. ”
It may be relevant to consider the observations madeby Court in the case of Union Apparels (Pvt) Ltd. vs. DirectorGeneral of Customs and Others. The petitioner Companyin this case filed its application on 03.06.1999. Hearing wasfixed for 20.08.1999, and the written submissions of thepetitioner were filed on 19.08.1999. The objection of the
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respondents was that the petitioner had failed to comply withRule 45(7) which required the written submissions to be filedat least one week before the date of hearing. The respon-dents therefore moved Court that the application must standdismissed in terms of the Supreme Court Rules of 1990.The Court having considered the purpose of Rule 45(7) incomparison with Rule 30, the object of Rule 34 and speciallythe surrounding circumstances of the case decided that itcould not be said that the petitioner had failed to show duediligence in taking all necessary steps for the purpose ofprosecuting the application and overruled the preliminaryobjection. Amerasinghe, J. commented that the questionwhether an application should be rejected for the failure tocomply with a rule of the Court depends on whether, hairingregard to the words of the relevant rule, the Court has a discre-tion to entertain or reject the application, and whether havingregard to the object of the rule and the circumstances of thecase the Court is justified in arriving at its decision. ”
Considering the above cases, I am of the view thatthe Appellants in this appeal have tendered their writtensubmissions to the Respondents once the failure to tenderwritten submissions had been brought to their notice. I am ofthe view that this is an appropriate case for the preliminaryobjection to be overruled and the application for special leaveto appeal to be set down for hearing in due course. I thereforemake order accordingly. There will be no costs.
J. A. N. DE SILVA C. J. – I agreeIMAM, J. -1 agree.
Preliminary objection over ruled.
Special Leave to appeal application set down for Support.