021-SLLR-SLLR-2004-V-1-GITA-FONSEKA-v.-THE-MONETARY-BOARD-OF-THE-CENTRAL-BANK-OF-SRI-LANKA.pdf
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Gita Fonseka v The Monetary Board of the Central Bank of
Sri Lanka (Wijayaratne. J.)
149
GITA FONSEKAvTHE MONETARY BOARD OFTHE CENTRAL BANK OF SRI LANKACOURT OF APPEALTILAKAWARDENA, J., (P/CA) ANDWIJAYARATNE, J.
JULY 22, 2003 ANDSEPTEMBER 23, 2003
Court of Appeal (Appellate Rules ) 1990 – Rules 3 (4) (b) (i), 3 (7), 3(8) and 3 (14)- Is filing of an affidavit only without a statement of objections sufficient compli-ance with the Rules of Court?
The Attorney-General appearing for the respondent filed “ objections ” of therespondent solely by way of affidavit of the Chairman of the respondent Board.
The petitioner raised a preliminary issue that the filing of an affidavit without astatement of objections is not sufficient compliance with the Rules of Court.
On the preliminary objection –
Held:
Gravity of the burden of court is no reason to dispense with or ignoreRules of Court. The discretion of court considered in Kiriwanthe's casedoes not exist any longer after the promulgamation of the Court of Appeal(Appellate Rules) 1990.
The court has no discretion to dispense with the requirement of a state-ment of objections to be filed by a respondent, in terms of the Rules ofCourt.
PerWijayaratne, J.
‘There is no cursus curiae or the practice of the court to permit non compli-ance by a respondent of Rules requiring him to file a statement of objections,and a practice specially of the Attorney-General's Department cannot over-ride or supercede the provisions of the Rules of Court which are held to bemandatory by the Supreme Court as well as this court.”
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Amendments can be considered or permitted only where there is a validpleading; when there is no valid pleading, there is nothing to amend; eventhe petitioner filing a counter affidavit cannot legitimize the act of the respon-dent when such is in conflict with the Rules.
APPLICATION for a writ of certiorari.
Cases referred to:
Attorney-General v Chandrasena- 19911 Sri LR 81
Kiriwanthe and another v Navarathne -1990 2 Sri LR 393 (SC) (distinguished)
Shanmugavadivu v J.M. Kulatilake – S.C. 50/2002 S.C. Spl. L.A. 44/2002
K. Kanag Iswaran, P.C., with M.A. Sumanthiran for petitioner.
Sathya Hettige, Deputy Solicitor-General with M. Gunatilake for respondent.
WIJAYARATNE, J.The petitioner filed this application invoking the writ jurisdiction of 01this court seeking the grant of a mandate in the nature of writ of cer-tiorari quashing the decision of the respondent to reject her applica-tion for voluntary retirement and a further mandate in the nature of awrit of mandamus compelling the respondent to permit the petitionerto retire under Voluntary Retirement Scheme Circular No. 6 dated
and be entitled to all benefits therein. •
Upon notice being served, the respondent represented by counselon 26. 11.2002 moved court for time to file objections. On 10.2.2003it was recorded that “OBJECTIONS” were tendered to the registry and 10a copy of the same handed over to the counsel for the petitioner. Thepetitioner filed her counter affidavit on 24.2.2003 and arguments wasfixed for 23.5.2003. When arguments commenced both parties gavenotice to each other of preliminary objections that were to be consid-ered as fresh issues in the case.
The petitioner raised the preliminary issue
a) that the failure of the respondent to have filed a statement ofobjections in terms of the mandatory applicable rules of court,deprives him of his right to appear in these proceedings in oppo-sition to the petition.20
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It is an admitted fact that the purported “ objections ” of the respon-dent was solely by way of affidavit of the Chairman of the respondentBoard dated 10.2.2003. Thus the issue that is before court for deter-mination is whether filing of an affidavit only without a statement ofobjection is sufficient compliance with the rules of court.
Rule 3 (4) (b) (i) of the COURT OF APPEAL (APPELLATERULES) 1990 states,
“ A statement of objections shall be filed by each respondent with-in four weeks”
Rule 3 (7) states,30
“A statement of objections containing any averment of facts
shall be supported by an affidavit in support of such averments.”
The learned Deputy Solicitor General in meeting the preliminaryobjection conceded that an affidavit only of the respondent is filed. Heargued that
It is the practice of the Attorney-General’s Department to fileonly an affidavit from the respondents it represent and that hasbeen accepted as a practice which has hardened into a ruleand should be followed as curiae,
That the registry has accepted the affidavit filed as objections 40of the respondent and the registrar has not acted in compli-ance with rule 3 (14) of the rule and the petitioner filed hercounter affidavit denoting her acceptance of the affidavit asobjections.
That the court should exercise its discretion and permit therespondent to oppose the petition on the strength of the affi-davit filed as its objection to the petition.
The learned DSG representing the respondent however has ten-dered a motion on 4.9.2003, along with an affidavit and statement ofobjections and further moved to amend the same. This is contrary to sothe so-called practice the counsel stated that had hardened into arule. However it amounts to his conceding that even the respondentsrepresented by the Attorney-General need file a statement of objec-
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tions and not an affidavit only. The learned counsel for the respondentrelying on many a decision of the Supreme Court as well as this courthas not referred this court to a single decision that makes exceptionto the rules where Attorney-General is representing a respondent. Thedecision of Attorney-General v ChandrasenaW is distinct and has norelevance to the facts of this case. In the said case Attorney-Generalmade application to court on a pure question of law and hence therequirement of an affidavit was dispensed with. However the facts ofthe present case related to the filing of statement of objections andthere was not a single instance where the requirement of a statementof objection was dispensed with, referred to by the counsel; nor isthere any authority to say that an affidavit alone is sufficient to meetthe requirement of the rule. Especially in view of the provisions of rule3 (7) it is abundantly clear that the rules envisaged the filing of a state-ment of objection and an affidavit supporting averments of fact, as twodistinct documents.
The practice however, may be of the Department of the AttorneyGeneral and certainly not of the court. A practice of the departmentand not of the court cannot amount to or considered as cursus curiae.Besides the very fact that the learned Deputy Silicitor General movedto file an affidavit and a statement of objections on 4.9.2003 itself failshis argument and contrary to such practice which he says was hard-ened to a rule.
On the question of the registry accepting the affidavit and not com-plying with rule 3 (14) even if considered a non-compliance with therule, cannot rectify the fault that occurred when the respondent failedto comply with the rules. Even the petitioner filing counter affidavitcannot legitimize the act of the respondent when such is in conflictwith the rules.The so-called practice that has hardened in to a rule asthe learned Deputy Solicitor General argue nor the acts on the part ofthe registrar or the petitioner which are not in harmony with the provi-sions of the rules cannot override or supercede the provisions of therules of court which are held to be mandatory by almost all the deci-sions cited by the respondent.
The last ground upon which the learned Deputy Solicitor Generalhas sought to support his case is that the court should exercise its dis-cretion in allowing the affidavit of the respondent in place of a state-ment of objection, specially considering the fact that when the respon-
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dent is not permitted to oppose the application the court has a greaterburden on it.
Gravity of the burden of court is no reason to dispense with orignore rules of court. The discretion of court considered in Kiriwanthe'scasd2) does not exist any longer after the promulgation of the Courtof Appeal (Apellate Rules) 1990. This aspect of the discretion is ade-quately dealt with by the Supreme Court in the case of K.Shanmugavadivu v J. M. KulatilakeW considering the ambit of rule 3of the Court of Appeal (Appellate Rule) 1990, observed that,100
“ In such cricumstances, the only kind of discretion that could beexercised by court is to see whether and how much time could be per-mitted for the filing of papers in due course.”
The several cases cited by the learned Deputy Solicitor Generalwere on matters related to the rules that were repealed and as com-mented by the Supreme Court in the aforesaid case ofShanmugavadivu, “ The new rules (of 1990) indicate that the objec-tivity of exercising judicial discretion, as intended in Kiriwanthe's casehas been incorporated as it enables an applicant to submit to court therelevant documents at a later stage,…”110
Rule 3 (4) (b) (i) read with rule 3 (7) however leaves no discretionto the court in the case of filing of statement of objections to dispensewith either the statement of objections or the affidavit in support ofaverments of fact.
Accordingly this court has no discretion to dispense with therequirement of a statement of objection to be filed by a respondent interms of the rules of the court. There is no cursus curiae or the prac-tice of the court to permit non-compliance by a respondent of rulesrequiring him to file statement of objection and a practice specially ofthe Attorney General's Department cannot override or supercede the 120provisions of the Rules of Court which are held to be mandatory bythe Supreme Court as well as this court as referred to by the learnedDeputy Solicitor General in all the cases cited in his written submis-sions.
Finally the learned Deputy Solicitor General argued that in terms ofhis motion, the amendment of the pleading in terms of rule 3 (8)should be permitted. Amendment can be considered or permitted only
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where there is a valid pleading. When there is no valid pleading, thereis nothing to amend. There does not arise the question of applicationof rule 3 (8) to permit any amendment of pleadings that is not beforethe court.
Accordingly the preliminary objection of the petitioner is upheldand this court rules that the respondent which failed to comply withmandatory applicable rules 3 (4) (b) (i) read with rule 3 (7) is deprivedof its right to appear in these proceedings in opposition to the petition.
Consequently the matter of the application of the petitioner is to befixed for inquiry on a date appointed by the court.
SHIRANEE TILAKAWARDENA, J. (P/CA)I agree.
Preliminary objection upheld; main matter fixed for inquiry.