In re GOONESINHA

018-NLR-NLR-V-44-In-re-GOONESINHA.pdf


In re Goonesinha.
75
1942Present: Moseley S.P.J. and Soertsz J.
In re GOONESINHA.
In re Application for Conditional Leave to Appeal tothe Privy Council.
Privy Council—Application for conditional leave—Judgment of Supreme Courtrefusing to issue writ of certiorari against Election Judge—Question ofgreat general or public importance—Discretion of Supreme Court—Action—Appeals (Privy Council) Ordinance (Cap. 85), s. 3.
The petitioner applied to the Supreme Court for a writ of certiorarito quash the order of a judge of an Election Court reporting thepetitioner to the Governor in accordance with the provisions ofArticle 79 of the Ceylon (State Council Elections) Order-in-CouneiL Theapplication was refused on the ground that the Supreme Court hadno jurisdiction to issue a writ against an election Judge.
. Held (on an application for leave to appeal to the Privy Council fromthe order of the Supreme Court), that the question involved was onewhich by reason of its great general or public importance should besubmitted to His Majesty in Council and that the Supreme Court shoulduse the discretion vested in it by granting leave to appeal.
Held, further-, that an application for a writ of certiorari, being anapplication for relief or remedy obtainable through the Courts’ poweror authority, constitutes an action and comes within the ambit of section 3of the Appeals (Privy Council) Ordinance.
T
HIS was an application for conditional leave to appeal to the PrivyCouncil.
R. L. Pereira, K.C. (with him A. R. H. Oanekaratne, K.C., C. V.Ranawake, V. F. Gunaratne, and S. R. Wijayatilake).—This is an applica-tion under section 1 (b) of the Privy Council Appeals Ordinance (Chapter85, Legislative Enactments) for conditional leave to .appeal from theorder of the Chief Justice refusing an application for a writ of certiorarito quash the order made by the Election Judge against the presentapplicant. The granting of this application is within the discretion ofthis Court. The question involved in the appeal is one which ought tobe submitted to His Majesty in Council for decision as it is caught upby all the conditions contemplated by the section—namely, “ greatgeneral or public importance or otherwise ”.
There is no appeal to the Privy Council from a judgment or order .of anElection Judge. The present appeal is not from an order made by theElection Judge. It questioned the correctness of the decision made by the
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In re G oonesinha.
Chief Justice in refusing the application for a writ of certiorari on theground that he had no power to do so as the Election Court as at presentconstituted is not an inferior Court. The Chief Justice holds that theElection Court is a Branch of the Supreme Court and. therefore the writdoes not lie. The jurisdiction of an Election Court was referred to byGarvin J. in Tillekewardene v. Obeysekera1 when he observed that “ theanswer involves the consideration of questions of considerable difficulty ”.He was, howeyer, of the opinion that “ the jurisdiction exercised by theElection Judge created by the Order in Council is of a very special nature.Whether it is an extension of the ordinary jurisdiction of the SupremeCourt or a separate and distinct jurisdiction vested in the Chief Justiceand exercisable not by the Supreme Court or any Judge thereof but onlyby him or by a Judge of the Supreme Court specially appointed by himmust first be determined ”. Shortly after Garvin J’s judgment thisquestion came up again in Wijesekera v. Corea * and Drieberg J. held that“ The Ceylon (State Council) Order in Council, 1931, Art. 75, in dealingwith election petitions, did not bring them within the jurisdiction of theSupreme Court: it in no way extended the jurisdiction of the SupremeCourt. What it did was to create a special tribunal for the purpose,called the Election Judge, who is the Chief Justice, or any Judge of theSupreme Court nominated by him for the purpose ”. The Solicitor-General argued on similar lines in the course of an application made toinspect the marked registers in the election petition inquiry—Saravana-muttu v. De Silva3, when he pointed to the fact “ that under theParliamentary Election Act of 1868 the Court is expressly given thepowers, jurisdiction and authority at the trial as a Judge of the SuperiorCourts and as a Judge of Assize and Nisi Prius,—in Scotland the powersof a Judge of the Court of Session for the trial of a civil case without aJury,—whereas in Ceylon no such provision had been made, andArticle 75 (3) had conferred on an Election Judge the powers, jurisdictionand authority of a District Court, for the purpose of summoning orcompelling the attendance of witnesses ”.
It was submitted that the writ could issue from a High Court to abranch of the High Court where the' latter exercises limited jurisdiction.Hailsham Vol. 9, page 830-381. James v. South Western Raihvay Co:'.But it was rejected on the ground that the case referred to dealtwith .a writ of prohibition and, therefore, has no bearing on the factsof this case. The principles governing these, writs are the same andthere can be no such distinction.
The Chief Justice’s judgment is at variance with both the judgment ofDrieberg J. and the observation of the Solicitor-General. This matter,therefore, being in a state of doubt, should be submitted to the PrivyCouncil for its decision.
The Election Judge’s order in refusing to give the petitioner anopportunity to call witnesses oh his behalf was not only contrary to theprinciples of natural justice but also contrary to the provisions laid downby the Order-in-Council, Article 79 (2). Moreover, after- the learned
1 33 N. L. S. 193.* 33 N. L. It. 349.
3 43 N. L. R. 77 at 79.
‘ 7 Exchequer Cases 237.
In re Goonesinha.
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Judge’s determination that the return of Joseph Silva was void he hadno jurisdiction to make any order against the applicant. He, therefore,became functus officio.
The Privy Council has given special leave in cases where the defendanthas not been given a hearing ; In re Pollard1 the appellant had beensummarily punished for a contempt and in the case of Chang Han Kiu et al.v. Sir Francis T. Piggott and Another2, where the appellants had noopportunity of showing cause before sentence, special leave to appeal wasgranted.
It is a matter of importance not only to the applicant personallybut also to the public generally in that an important point of constitutionallaw is in question which has a bearing on their civic rights.
It is submitted that an appeal lies to the Privy Council from an orderrefusing to grant an application for • a writ of certiorari. In EshugbayiEleko v. Officer Administering the Government of Nigeria and Another ‘there was an appeal to the Privy Council from an order of. the Full Courtaffirming the report of a Judge of the Supreme Court refusing to entertainan application for a writ of habeas corpus.
H. Basnayake, C.C., on notice, as amicus curiae:—Section 3of- the Privy Council Appeals Ordinance governs the Rules under whichthis application is sought to be made. The Rules made under thisOrdinance apply only to litigation between parties. There is neither a“ civil suit ” nor an “ action ”. The word “ action ” does not includeproceedings in connection with mandates. Settlement Officer v. VanderPoorten et al.' is in point. There, an application for leave to appeal to thePrivy Council was refused, on-«the ground that the order from whichleave to appeal is asked was not made in a civil suit or action in theSupreme .Court, within the meaning of these words in section 3.
R.L. Pereira, K.C., in reply :—Settlement Officer v. Vander Poorten et al,{supra) and other cases referred to in that judgment have no application.In ail those cases the Court concerned was .sitting as a special tribunaland not exercising jurisdiction conferred on it by the Courts Ordinance,Moreover, no appeal to the Supreme Court was provided by the WasteLands Ordinance or the Land Settlement Ordinance. In those circum-stances there was no “ civil action or suit in the Supreme Court ”.In the present case the application for leave to appeal is from the orderof the Supreme Court exercising the jurisdiction conferred on it by theCourts Ordinance.
The word “ action ” in this Ordinance must be given the same meaning;,given to it in the Civil Procedure Code, section,5, which defines “action”as “ a proceeding for the prevention or redress of a wrong An, applica-tion for a writ of certiorari will be covered by this definition. Thedefinition of “ action ” in section 6 as “ every application to a Court forrelief or remedy . . . . . ” is still wider., In Subramaniam Chettyv. Soysa0 Bertram C.J. observed that it would be highly ihconyenientif the word “action” in this Ordinance were given a different meaningfrom that which is given to it in the Civil Procedure Code.
1 P.C. Appeal Cases 106.3 (192S) A. C. 459;
3 (1909) A. C. 312.*'43 N.. L. R. 436.
3 25 N. L. R. 344.
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MOSELEY S.P.J.—In re Goonesinha
H. H. Basnayake, C.C., in reply—Under Section 5, Civil ProcedureCode, an “ action ” contemplates a “ wrong The order of a judgecannot be a “wrong”. His judgment must be presumed to be correct.The proceedings of an action must be either “ summary ” or “ regular ”—Section 7. An application for a writ of certiorari is neither.
Cur. adv. vult.
November 19, 1942. Moseley S.P.J.—
This application for leave to appeal to the Privy Council is a sequelto circumstances arising in connection with the hearing of an electionpetition by a Judge of this Court. At the conclusion of the hearing theElection Judge reserved his order and subsequently declared the electionto be null and void and, in accordance with the provisions of Article 78of The Ceylon (State Council Elections) Order-in-Council, 1931, certifiedhis determination to the Governor. On the same date the presentpetitioner, who had given evidence at the hearing of the election petition,was served with a notice issued out of this Court calling upon him toshow cause why he should not be reported to the Governor in accordancewith the provisions of Article 79 of the Order-in-Council. The mattercame up for inquiry before the Election Judge, at which the petitionerwas refused an opportunity of calling evidence. On March 18, 1942,the learned Judge delivered an order stating that the offences allegedagainst the petitioner had been made out and that a' report would be sentto the Governor. .The petitioner then applied to the Supreme Courtfor a writ of certiorari to quash the order made by the Election Judgeon March 18, 1942. For reasons set out in his judgment (43 N. L. R. 337)the learned Chief Justice held that the Supreme Court has no power toissue such a writ against a Judge of the Court who has been nominatedunder the provisions of Article 75 (1) of the Order-in-Council to try anelection petition. It is against this judgment, dated June 1, 1942, thatthe petitioner now prays for leave to appeal.
It is not contended that an appeal lies as of right. The petitioner,however, asks us to grant leave to appeal, using the discretion whichis vested in us, on the ground that the question involved is one which,by reason of its great general or 'public importance or otherwise, oughtto be submitted to His Majesty in Council for decision. It cannot becontroverted that, to quote from the judgment of the learned Chief Justice(43 N. L. R. at 347), “ the action taken against the petitioner underArticle 79 of the Order-in-Council has involed him in grave consequencesin regard to his political career.” Nor does it seem to me that the matteris lacking in general and public importance. There is certainly animportant question of procedure for decision. It has, however,to be considered whether or not the matter comes within the ambit ofsection 3 of the Appeal (Privy Council) Ordinance. That section dealswith the regulation of “ the right of parties to civil suits or actions in theSupreme Court to appeal to His Majesty in Council against the judgmentsand orders of such Court . . . . ”
Mr. Basnayake, who appeared as amicus curiae, contended that theAppeals (Privy Council) Ordinance (Cap. 85) and the rules made there-under apply only to litigation between ■parties. It does not seem to me
MOSELEY S.P.J.—In re Goonesinha.
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that the mere use of the plural, as it appears from the extract from sec?tion 3 which I have quoted above, effectively rules out the possibility thatthe word “ action ” may embrace the proceedings in connection withthe various mandates, of which a writ of certiorari is one which may beissued by this Court. Counsel further drew our attention to the use ofthe words “ matter- in dispute ” which appear in rule I (a) of the rulesmade under the Ordinance and contended that in the present case thereis no matter in dispute. But those words do not appear in rule I (b)under which this application is made, although they might well havebeen employed had that been the intention of the legislature, whereasin their place appear the words “ question involved in the appeal ”.The mere fact that there is a change of phraseology would seem to supportthe view that rule I .(b) contemplates a class of case wider than a disputebetween parties. It does not seem to me that the authority cited byMr. Basnayake, viz. Settlement Officer v. Vander Poorten et al. (supra) hasany bearing on the present case. There the application was made underrule I (a) and the authorities there considered seem to me equally inappli-cable. Similarly I do not see that the authorities cited by Counsel forthe petitioner are particularly helpful.
In Eshugbayi Eleko v. Officer Administering the Government of Nigeriaand Another (supra) the point as to whether an appeal lay does not appearto have been considered. Moreover, the appeal was against a judgmentof a Full Court affirming the refusal of a Judge of the Supreme Courtto entertain an application for a writ of habeas corpus, a writ which seemsto be in a class apart from the other prerogative writs. There is, further,no indication in the report as to the manner in which the appeal reachedthe Privy Council, whether by leave of the Supreme Court of Nigeriaor by special' leave of the Privy Council. In the case of In re EdwardHutchinson Pollard, one of Her Majesty’s Counsel at the Colony of HongKong v. The Chief Justice of the Supreme Court of Hong Kong (supra) theappellant had been summarily punished for contempt. It was thereforea criminal matter and the case seems to have no application. The sameobservation applies to the case of Chang Hang Kiu and others v. SirFrancis T. Piggott and Another (supra) in which the appellant had beensummarily committed to prison for perjury. J
It may be argued .that the wo~d “ suit ” implies the existence of twoparties. Can the, same be said of “ action ? ” The word is not defined inCap. 85, but as Bertram C.J. observed in Subramaniam Chetty v. Soysa ’it would be highly inconvenient if the word “action” in this Ordinancewere given a different meaning from that which is given Jto it in ourCode of Civil Procedure. “ But ”, the learned Chief Justice went onto say, “ there is a further reason. The principal sections of thisOrdinance replaced and re-enacted certain repealed sections of our Codeof Civil Procedure, and there is a very strong inference that the wordsused in nn enactment so passed should have the same meaning as theybore in the sections which the enactment replaced ”.
So, in section 5 of the Civil Procedure Code (Cap. 86), we find “ action”defined as “ a proceeding for the prevention- or redress of a wrong ”.Learned Crown Counsel’s observation in regard to this aspect of the matter44/101 25 N. L. R. 344.
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■ The King v. G. Punchimahatmaya.
was that the judgment of the learned Election Judge could not be consi-dered as a “ wrong It seems to me unnecessary to pursue that argumentin view of the further definition which occurs in section 6 of the CivilProcedure Code, viz. : '* Every application to a Court for relief or remedyobtainable through the exercise of the Court’s power or authority, orotherwise to invite its interference, constitutes an action”. Crown Coun-sel’s argument was that section 6 is qualified by section 7, which providesthat “ the procedure of an action may be either regular or summary,”and contended that the procedure upon an application for a writ ofcertiorari is neither regular nor summary. A somewhat similar argumenthad been advanced in Subramaniam Chetty v. Soysa (supra) in whichthe question for decision was whether proceedings to set aside a saleconstituted an action. That view was rejected by Bertram C.J., whoconceived, for the purposes of the case before him, the possibility of “ anaction within an action ”. That, of course, is not the case here, but, atall events, Bertram C.J. does not appear to have considered that theclassification of actions in section 7 as regular or summary is exhaustive.With that view I would, with respect, associate myself. Sharing thatview I have little difficulty in arriving at the conclusion that an applicationfor a writ of certiorari, being an application for relief or remedy obtainablethrough the Court’s power or authority, constitutes an action, and there-fore comes within the' compass of- section 3 of Cap. 85.
In view of the opinion which I have already expressed as to the impor-tance, general, public and otherwise, of the matter I would grant leave toappeal on the – usual conditions.
Soertsz J.—I agree.Appeal allowed.
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