003-SLLR-SLLR-1984-2-HULANGAMUWA-AND-ANOTHER-v.-BALTHAZAR.pdf
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Hulangamuwa v. Balthazar
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HULANGAMUWA AND ANOTHERv.
BALTHAZAR
COURT OF APPEAL.
ATUKORALE. J. (PRESIDENT) AND MOONEMALLE. J.
C.A. (S.C.) 61/76 – D C. COLOMBO 79169/M.
JANUARY 23. 24. 25. 26 AND 27, 1984.
Army Act – Investigation by Court of inquiry into complaint against Army officer -Disciplinary action taken on findings of court of inquiry – Action filed in civil court fordamages – Whether action in tort in a civil court can be based on a complaint madeunder Army Act.
On 14.7.73 the 1st defendant-appellant, an Army officer, made a complaint (P9) to theArmy Commander alleging that the respondent who was the commanding officer of the1 st Battalion Gemunu Watch had attempted to rape his wife the 2nd defendant, in hisabsence. Acting under powers vested in him by virtue of the Army Act, the Commanderof the Army appointed a court of inquiry to investigate the complaint. The court ofinquiry after investigation reported to the Army Commander that the respondent wasguilty of scandalous conduct whereupon he was removed from the office ofcommanding officer. The respondent then filed action for damages in the District Courton the basis that the complaint (P9) was malicious and false and that as a result he wasgravely humiliated and brought into disrepute and contempt and was removed from theposition of commanding officer. The District Judge gave judgment in favour of theplaintiff and the defendants appealed.
Held –
The complaint (P9) is one which could have lawfully been made to and entertained bythe Commander of the Army. The court of inquiry assembled by the Army Commanderis one which exercises jurisdiction over persons subject to military law. The complaint(P9) is one made by one military officer against another military officer regarding amatter of military discipline. It relates to a matter which falls within the exclusivecognizance of a military tribunal. A civil court is not competent to inquire into the truthor falsity of such a complaint and no action in tort can be based thereon in a civil court.The present action is misconceived and cannot be maintained in law.
Cases referred to :
Sutton v. Johnstone, (1786) 1 Term Reports 493, 99 E R. 1215.
Dawkins v. Lord Paulet, (1869) L.R. 5 Q.B. 94.
Dawkins v. Rokeby, (1873) L.R. 8 Q.B. 255,270,271
In Re Mansergh, (1861) 1 B & S. 400.
Grant v. Gould. (1792) 2 Hy. Bl. 69.
Barwis v. Keppel, (1766) 2 Wits 314.
Keighly v. Bell. (1866) 4F&F763
Dawkins v. Rokeby (Lord) (1866) 4 F. & F. 806.
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APPEAL from the District Court, Colombo.
H W Jayewardene, Q C , with N Devendra for the defendant-appellantsH L. de Silva, S. A., with S. Mandeleswaran for the plaintiff-respondent.
Cur adv vult.
May 18, 1984.
ATUKORALE, J. (PRESIDENT)
At the relevant time, i.e., at the time the complaint P9 dated14 7.1973 was made by the 1st defendant against the plaintiff, theplaintiff (who is the respondent to this appeal) and the 1st defendantwere both army officers. The plaintiff was a Lieutenant-Colonel andwas the Commanding Officer of the1 st Battalion Gemunu Watch whilstthe 1st defendant was a Major. The 2nd defendant is the wife of the1 st defendant and they are the appellants. The plaintiff brought thisaction on 5.10.1 973 (at a time when he had ceased to be an armyofficer) to recover from the defendants a sum of Rs. 150.000 asdamages In his plaint he averred that on or about 14.7.1973 the 1 stdefendant maliciously and falsely complained to Major-GeneralAttygalle (who at the time was the Army Commander) that he had on6 7 1973 in the night at about 8.30 p.m. committed criminal force onthe 2nd defendant with intent to outrage her modesty and hadattempted to commit rape on her. He stated that this complaint wasmade by the 1 st defendant in pursuance of a conspiracy between thedefendants to have him removed from the office of commanding officerand thereby to secure a promotion for the 1 st defendant to a higherposition in the Army. He further pleaded that by reason of thiscomplaint he was gravely humiliated and brought into disrepute andcontempt and was removed from the position of commanding officer.He assessed the damages sustained by him at Rs. 1 50,000.
The defendants admitted that the 1st defendant did make acomplaint to the Army Commander on 14.7.1973 in relation to anincident which occurred on the night of 6.7.1973 but maintained thatthe complaint related to one of indecent assault on the 2nd defendantby the plaintiff in the absence of the 1st defendant. They furtherstated that upon this complaint the Army Commander convened acourt of inquiry in terms of the Army Act (Chap 357, Vol.XI, L.E.) toinvestigate the same. The court of inquiry after investigation, whichwas by way of hearing and recording of evidence, reported to the
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Hulangamuwa v Balthazar (Atukorale. J.)
Army Commander that in their opinion the plamtitt was guiltyscandalous conduct; that the Army Commander acting in terms ofthe Army Act and the regulations made thereunder removed theplaintiff from the office of commanding officer; and that the plaintiffcould not maintain this action as (1) the complaint was made by the1 st defendant in the discharge of his duties as an officer of the Armyto the Army Commander who had a right or interest to receive it and aduty to take action thereon and that therefore the complaint wasprivileged as it was made on a privileged occasion and as (2) theplaintiff had failed to give notice in conformity with the provisions ots 80 of the Armv Act. The defendants also claimed in reconvention asum of Rs. 200,000 from the plaintiff which it is not necessary for usto consider as it was not pursued by learned Queen's Counsel at thehearing before us.
After hearing the evidence the learned District Judge enteredludgment for the plaintiff as prayed for tn the plaint against bothdefendants. He dismissed the defendants' claim in reconvention. Thelearned Judge reached the following findings of tact
that the 1st defendant made a complaint on 14.7.1973 to theArmy Commander that the plaintiff had on 6.7.1973 attemptedto rape the 2nd defendant with intent to outrage her modesty ;
that the complaint made by the 1st defendant against the plaintiffof attempting to commit rape and/or of committing criminal forceon the 2nd defendant was false and made maliciously and withoutreasonable or probable cause ;
that the complaint was made by the 1 st defendant in pursuance ofa conspiracy between himself and the 2nd defendant ;
that the complaint was not made by the 1st defendant in thedischarge of his duties but that the Army Commander had a rightor interest to receive it ;
that upon receipt of the complaint the Army Commanderconvened a court of inquiry in terms of the provisions of the ArmyAct for the purpose of investigating the same ;
(/) that the court of inquiry after investigation reported to the ArmyCommander that the plaintiff was guilty of scandalous conduct;
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that in pursuance of this verdict of the court of inquiry the plaintiffwas removed from the office of Commanding Officer in terms ofthe provisions of the Army Act ;
that the plaintiff suffered humiliation and was brought intodisrepute and was removed from the office of CommandingOfficer in consequence of this complaint;
(/) that the plaintiff had suffered damages as a result thereof and wasentitled to recover the sum of Rs. 150,000 jointly and severallyfrom the defendants ;
(/) that in view of the fact that the defendants had acted with malice itis not necessary for the plaintiff to give the notice contemplated bys. 80(c) of the Army Act;
(k) that the plaintiff did not have sexual intercourse with the 2nddefendant on 6.7.1973 ;
(/) that there were numerous infirmities in the evidence before thecourt of inquiry and that it was unworthy of credit and that thecourt of inquiry should have rejected the evidence of the 2nddefendant in toto when the court of inquiry found that the evidenceof the 2nd defendant failed to establish the charge of rape ;
(m)that the verdict of the court of inquiry that 'an act of sex’ hadtaken place between the plaintiff and the 2nd defendant isunwarranted ;
(n)that the manner in which the inquiry had been conducted by thecourt of inquiry was unimpeachable ; and
(o)that the final decision to withdraw the plaintiff's commission wasa necessary consequence of the verdict of the court of inquiry.
The principal contentions of learned Queen's Counsel for thedefendants before us were firstly that even on the assumption that thecomplaint contained allegations of rape and the use of criminal force,the complaint and all proceedings taken in pursuance thereof beforethe court of inquiry were absolutely privileged and could not form thebasis of an action in tort. Secondly he maintained that the complaint,being by one army officer against another relating to a matterconcerning discipline in the army was cognizable only by a militarytribunal constituted under and by virtue of the provisions of the Army
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Act or the regulations made thereunder and the plaintiff thus could notin law maintain any form of action in a civil court based upon thecomplaint. No local decisions in support or against these propositionswere cited at the hearing before us. We were, however, referred toseveral English authorities. It is not necessary for me to refer to all theauthorities that were cited since most of the earlier cases have beenconsidered in the later decisions. An examination of the relevantauthorities leads me to the conclusion that the second contention oflearned Queen's Counsel is entitled to succeed. In Sutton v.Johnstone (1) Lord Mansfield and Lord Loughborough expressed theview that no action for malicious prosecution of a naval officer by thecommander-in-chief of a naval squadron before a naval court martialwould lie in a court of law. They observed thus : "If this action beadmitted, every acquittal before a court-martial will produceone. … If every trial that is by court-martial is to be followed by anaction, it is easy to see how endless the confusion, how infinite themischief will be." In the instant case the plaintiff was found by thecourt of inquiry to be guilty of scandalous conduct and as such theabove observations would appear to me to apply with greater force. InDawkins v. Lord Paulet (2) the plaintiff sued the defendant in libel forfalsely and maliciously publishing certain defamatory words in reportsmade by the defendant for the information of the commander-in-chiefwhilst forwarding, at the plaintiff's request, certain letters written bythe plaintiff to the adjutant-general. As a result of the reports theplaintiff lost the value of his commission as a captain and wascompelled to leave his regiment and was deprived of emoluments.The defendant was the superior military officer of the plaintiff and itwas his duty to forward to the adjutant-general the letters sent by theplaintiff to him and to make, for the information of thecommander-in-chief, reports to the adjutant-general on the subject ofsuch letters. The court by a majority decision (with Cockburn, C. J.dissenting) held that no action would lie against a military officer for anact done in the ordinary course of his duty as such officer, even if donemaliciously and without reasonable or probable cause. Meller, J. in thecourse of his judgment made the following observations which appearto me to have much relevance to the facts of the instant case :
"There was another ground of great importance upon which theAttorney-General insisted, and which strongly supports the opinionsexpressed above. He argued that the plaintiff, being at the time ofthe printing and publishing of the letters and reports an officer of the
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army, and the defendant being his commanding officer, and theletters and reports in question being matters simply relating tomilitary duties and discipline, and to the administration of the army,the plaintiff, if he had ground of complaint in respect of them, wasbound to make it to the tribunal specially provided by the Mutiny Actand articles of war relating thereto ; and that it was the only tribunalto which a military officer could appeal in respect of such matters
It would seem to follow from the provisions thus made by
the articles of war for a special mode of redress for every officerwho may think himself wronged by his commanding officer, that itwas intended that every officer aggrieved by any order or reportmade in the course of the administration of the army must follow thespecial mode of redress pointed out in the articles of war, and thatin respect of any grievances or complaint arising out of suchadministration, he can have no redress in any other way. Certainlythis view of the law is supported by the opinions of Lords Mansfipldand Loughborough, expressed in the case of Johnstone v. Sutton
I think that these considerations tend strongly to snow that
the legislature, in providing special means of redress for officersfeeling themselves aggrieved by any exercise of ordinary militaryauthority or duty, by establishing special tribunals for the purpose bythe articles of war, did intend to preclude "such officers fromappealing to the ordinary tribunals in respect of such matters. Thisview is confirmed by the opinion of Willes. J. in Dawkins v. LordRokeby upon which he nonsuited the plaintiff in an analogous action,and which, so far as I am aware, was not afterwards questioned Heis reported to have said as follows 'With respect to military men, Ibeg to say that I cannot conceive anything more fatal to themselves,anything more fatal to the discipline or subordination of the army, ifevery officer who considers himself to have been slighted by hisinferiors, or every officer aggrieved by his superiors, whom, havingbecome a soldier, he has consented to submit to, should seek toundo their judgment before a tribunal which must necessarily havebut slight acquaintance with those matters upon which it is called topronounce an opinion. I have no doubt that this is the law, and that itis that which is most beneficial to the community.'”
In Dawkins v. Lord Rokeby (3) the facts were as follows : The plaintiffand the defendant were army officers. A court of inquiry wasconstituted under the "Queen's Regulations and Orders for the Army"
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to investigate an assertion made by the plaintiff that certain superiorofficers had made false statements of facts to his injury and toascertain whether the plaintiff could substantiate his charges againstthem. At the inquiry the defendant gave certain oral evidence and afterhis evidence was over he handed over to court a written papercontaining in substance a repetition of his oral evidence with someadditions. After investigation the court made a report to theCommander-in-chief resulting in certain consequences flowing fromthe report. The plaintiff then applied to the proper military authority for
a court martial on the defendant which was refused. The plaintiff thenfiled the present action for libel and verbal slander against thedefendant. At the hearing into the motion the plaintiff offered to provethat the defendant in handing over the written statement and givingoral evidence acted mala fide and with actual malice, that they weremade without reasonable or probable cause and with the knowledgeon the part of the defendant that they were false. It was held that evenif the allegations of malice and wilful falsehood were probable and truethe action was not maintainable. In the course of his judgment Kelly,C B. said :
"But there is another and a higher ground upon which we are ofthe opinion that the defendant is entitled to the judgment of theCourt. The whole question involved in this cause is a militaryquestion, to be determined, as we think, by a military tribunal, andnot cognizable in a court of law. The attendance of the defendantas a witness, the duty to give evidence when called upon, thevalidity of the order to hold a court of inquiry, the effect of theevidence upon the military character and upon the military rights andliabilities of the plaintiff, and indeed of the defendant likewise, arepurely questions of a military nature. The evidence itself was givenby the defendant, a military officer in his military capacity upon amilitary subject, at the command of his military superior, andconcerning the military conduct of another military officer. It maywell be that the truth or falsity of the evidence given is also a militaryquestion, although apparently in terms a question of fact; and thatwhich the plaintiff might allege, and a court of law or a jury mighthold, to be false, a military tribunal might hold, and rightly hold, to
be true ;With reference, therefore, to such questions,
which are purely of a military character the reasons of LordMansfield and the other judges in Sutton v. Johnstone, and the
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cases In re Mansergh (4) and Grant v. Gould (5) Barwis v. Keppel(6) Keighly v. Bell (7) Dawkins v. Lord Rokeby (8) and Dawkins v.Lord F. Paulet (2) are all authorities to show that a case involvingquestions of military discipline and military duty alone are cognizableonly by a military tribunal, and not by a court of law."
This decision was affirmed in the House of Lords – vide 33 L.T. Rep.196 ; (1875) L. R. 7 H. L. 744.
In the instant case the 1 st defendant made the complaint P 9 to theCommander of the Army seeking redress against 'the offence andinjustice’ that had been committed on him and his family by theplaintiff, a superior officer. Regulation 13(1) of the Army DisciplineRegulations, 1950 framed under and by virtue of the powers vested inthe Minister by s. 155 of the Army Act – vide Vol. VI, SubsidiaryLegislation, p. 1 57 – stipulates that no officer shall seek to obtain theredress of a grievance except in accordance with the provisions of s.32of the Army Act. At the hearing before us a doubt arose as to whetherthe complaint could have been made under s. 32 which seems tocontemplate the situation where an officer is aggrieved by any actionof his commanding officer, which is not the case here, the plaintiffbeing a superior officer but not the commanding officer of the 1 stdefendant. However this point is of no significance as the partieshave accepted and acted on the footing that the complaint was onethat could be lawfully received by the Commander of the Army andinquired into by a court of inquiry. The right to make the complaint andthe proceedings held thereon have not been challenged at any stageby the plaintiff although it was open for him to do so by way of a writunder s. 79 of the Army Act. Further regulation 2 of the aboveregulations vests the Commander of the Army with the generalresponsibility for discipline in the army. Hence I am of the opinion thatthe complaint is one that could have lawfully been made to andentertained by the Commander of the Army. Regulation 3 of the ArmyCourts of Inquiry Regulations, 1952, provides for the convening of acourt of inquiry in respect of the matters enumerated therein.Sub-regulation (9) authorises a court of inquiry to be convened incases other than those enumerated in the earlier sub-regulations wherein the opinion of the officer authorised to do so the holding of a courtappears to him to be necessary or expedient. Regulation (4)
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empowers the Commander of the Army to assemble a court of inquiry.Regulation 15 enacts that where an inquiry affects the character ormilitary reputation of 'an officer or soldier, he shall be afforded anopportunity of being present throughout the inquiry. He couldparticipate at the inquiry, give evidence and cross-examine anywitness. Regulation 16 obliges the court of inquiry to receive evidenceand record its findings in regard to the matter or matters into which itwas assembled to inquire. The record of the proceedings has to beforwarded by the President of the court of inquiry to the authority whoassembled the court. A consideration of these regulations, inparticular the procedure prescribed therein and the duties andfunctions of the court of inquiry, reveals that it possesses all theattributes of a judicial tribunal. It bears a judicial character. In my viewa court of inquiry is a tribunal that is sanctioned and recognised by lawand is clothed with all the attributes and incidents of a court of justice.It is one which exercises jurisdiction over persons subject to themilitary law. The complaint is one made by a military officer againstanother military officer regarding a matter of military discipline. Itrelates to a matter which, in my opinion, falls within the exclusivecognizance of a military tribunal. I hold that a civil court is notcompetent to inquire into the truth or falsity of such a complaint andthat no action in tort can be based thereon in a civil court. I amtherefore of the view that the present action is misconceived andcannot be maintained in law. In view of this finding it is not necessaryfor me to consider the further objection raised by learned Queen'sCounsel as to whether the present action could be maintained withouta written notice being given to the defendants in terms of s. 80 of theArmy Act.
For the above reasons the appeal is allowed, the judgment of thelearned District Judge is set aside and the plaintiff's action isdismissed. The plaintiff will pay the costs of the lower court and a sumof Rs. 1,050 as costs of this appeal.
MOONEMALLE, J.-l agree.
Appeal allowed.