In re GOONESINHA

077-NLR-NLR-V-43-In-re-GOONESINHA.pdf


In re Coonesinha.
337
1042
Present: Howard C.J.
In re GOONESINHA.
In the Matter of an Application for a Writ of Certiorari underSection 42 of the Courts Ordinance.
Writ of certiorari—Election petition—Application to quash an order made byElection Judge—Report of applicant by Judge to the Governor—Powerof Supreme Court to issue writ.
The Supreme Court has no power to issue a writ of certiorari againstthe respondent, who is a Judge of the Supreme Court, and who wasnominated by the Chief Justice under the provisions of Article 75 (1)of the Ceylon (State Council Elections) Order in. Council, 1931, for thepurpose of trying an election petition.
HIS was an application for a writ of certiorari to quash an order
X made by the respondent, who i^ a Judge of the Supreme Court,and who was appointed by the Chief Justice to hear the Colombo NorthElection Petition.
The petitioner gave evidence at the trial of the election petition inwhich one Dr. R. Saravanamuttu claimed that the election of Mr. Josephde Silva, as member for the Electoral Division of Calombo North, bedeclared null and void.
After hearing evidence, the Election Judge declared the election of thesaid Joseph de Silva null and void, and certified his determination to-theGovernor.
On December 2, 1941, a notice was issued from the Supreme Courtand served on the petitioner to show cause why he should not be reportedto the Governor under Article 79 of the Ceylon (State Council Elections)Order in Council, in that he did, on or about April 21 and 22, 1941, useundue influence on Simon Rodrigo in connection with the said election.
On the 9th of March, 1942, the matter came up for inquiry when, afterhearing Counsel for the petitioner, the petitioner was refused an opportunityof calling witnesses. On the 18th of March, 1942, the Judge deliveredan order stating that the offences had been made out and that a reportwould be sent to the Governor.
R. L. Pereira, K.C. (with him A. R. H. Canekaratne, K.C., C. V.Ranawake, U. A. Jayasundera, V. F. Gunaratne and S. R. Wijayatilake).for the applicant.—On being asked to show cause under Article 79 (2) ofthe Order in Council the applicant desired to give evidence and call wit-nesses in order to show cause why he should, not be reported to the Governorunder Article 79. Article 79 (2) of the Order in Council makes expressprovision for this. But the Election Judge refused the applicant anopportunity of calling evidence on the ground that it would be futile to doso and that it would lead to the most awkward consequences if, after acandidate had been unseated, his agents were allowed to prove that nooffence had been committed. The learned Judge’s order, refusing to givethe petitioner an opportunity to call witnesses on his behalf, was not onlycontrary to the fundamental rule of al judicial proceedings, that a person
T
338
In re Gotmesinha.
charged with an offence should have an opportunity of calling evidenceto clear himself, but also contrary to the provisions laid down by theOrder in Council, Article 79 (2).
The learned Judge’s difficulty was that if he allowed the applicantto lead evidence he might have been persuaded to hold contrary tohis previous order. This anomalous situation was due to a significantirregularity in the procedure followed by him. He would not have been
'faced with this difficulty if he followed precisely the procedure contem-plated by the Order in Council. The certificate to the Governor underArticle 78, determining whether the election was void or not, shouldnot have been issued unless and until he had given the applicant anopportunity of showing cause. Having heard the petitioner and re-spondent he should have suspended his judgment in the election petitioninquiry till he had given an opportunity to the applicant to show cause.Then the judgment and the reports under Article 78 and Article 79 wouldbe simultaneous. This would have obviated the difficulty with whichthe Judge was faced and there would have been no occasion for theapplicant to canvass the Judge’s finding. The learned Judge has mis-construed the East Dorset Case' and the Cheltenham Case". In neithercase had a certificate been issued to the Speaker before the inquiry intothe conduct of those other than the candidate.
' After the learned Judge’s determination that the return of Joseph dcSilva was void he had no jurisdiction to order the issue of a notice on thrapplicant to show cause why he should not be reported, or to procee-to hear the matter of the said notice, or to make any order to the effecthat “the offence had been made out” against the applicant, or isend a report to the Governor. Once the Judge determines wheth"-t^e election is void and certifies such determination to . the Govern"he ceases to be Election Judge. He becomes functus officio. MarshallJames*. In Laleef v. Saravdnamultu4 Dalton J. observes: “I have •doubt that under the provisions of the Order in Council the certifies!■and report are required to issue at the same time, namely, at the ' ••elusion of the trial. .In practice in England in reported cases one fir ithe certificate and report contained in one document.”
The application for a writ of certiorari on the respondent is made undersection 42 of the Courts Ordinance. The Election Court has a limitedjurisdiction and the fact that a Judge of the Supreme Court is nominatedto preside over such Court is incidental. The privileges and powersof a Supreme Court Judge are not vested in an Election Judge. Fox-instance, the Courts Ordinance vests the powers and privileges of aPuisne Judge in a Commissioner of Assize, but it is silent with referenceto an Election Judge. It is apparent from the scheme of the Order inCouncil that an Election Judge is not on the same plane as that of aJudge of the Supreme Court. The jurisdiction of an Election Judgewas referred to but not decided by Garvin J. in Tillekewardene v. Obeye-sekere '■ Article 75 (3) of the Order in Council provides that for thesummoning or compelling the' attendance of witnesses and imposition
1 C O'M. Ss H. 22.3 (1874) L. R. 9 C. P. 702 at 110.
« 6 O'M. <£• H. 194.* 34 N. L. R. 374.
5 33 N. L. R. 193.
33S
HOWARD C.J.—In re Goones-iiliii
ol penalties for giving false evidence the Election Judge shall have the.-ame power, jurisdiction and authority as are possessed and exercised by•} .' Judge of a District Court in the trial of a civil action. Article 75 (4)sa»s that the Election Judge shall be attended in the same manneras a Judge of the Supreme Court sitting at Assizes. If the ElectionJudge is of the same status as a Puisne Judge the necessity for thisprovision does not arise. It may be argued on the contrary that electionpetitions are entitled “ In the Supreme Court of Ceylon ”. At the stagewhen the petition is filed there is no ^Election Court in existence—hencei> has to be addressed to the Supreme Court.
The words “ any Court ” in section 42 include an Election Court.The words “ other person or tribunal ” would -apply to an ElectionJudge. Moreover, once the Election Judge became functus officio hemerely purported to act as Election Judge and, therefore, he would bet au.’ht up by the words “ other person or tribunal ”.
In Queen v. Dudley & Stephens' the record was brought from theDevon and Cornwall Assizes to London by means of a writ of certiorari.This writ could issue Sm a High Court to a branch of the High. Courtwhere the latter ex< ises a limited jurisdiction. In James v. SouthWestern Railway Co. it was held that a writ of prohibition lay to theCourt of Admiralty.
In view of the grave consequences to the applicant, due to theirregularity in the procedure, there should be a remedy available inour law.Cur. adv. vult.
June 1, 1942- Howard C.J.—
This is an application made under section 42 of the Courts Ordinancefor a writ of certiorari to quash an order made on March 18, 1942, bythe Election Judge. The application is by petition and is supportedby an affidavit by the petitioner. In this affidavit the petitioner statesthat, on November 11, J941, he gave evidence at the trial of an electionpetition presented to the Supreme Court by one Dr. R. Saravanamuttu,claiming a declaration that the election of Mr. Joseph dc Silva, as memberfor the Electoral Division of Colombo North, at the election held onApril 26. 1941, be declared null and void and that the return of the saidJoseph de Silva was undue. The petitioner further alleges that afterhearing evidence and addresses by Counsel the Election Judge reservedhis order on November 19, 1941. On or about December 22, 1941,the said Judge declared the election of the said Joseph de Silva wasvoid and certified his determination to His Excellency the Governor.On December 22, 1941, a notice, according to the petitioner, was issuedfrom the Supreme Court and served on him on January 6, 1942, askinghim to show cause why he should not be reported to the Governor underArticle 79 of the Ceylon (State Council Elections) Order in Council, 1931,in that he did, on or about April 21 and 22, 1941, use undue influence onSimon Rodrigo in connection with the said election and intimatingthat if he desired to call evidence or to have a longer date he shouldinform the Registrar of the said Court On or before January 10, 1942.The petitioner in paragraph 9 of his affidavit states that on or about1 ilSSi) 14 Q. B. D. 273.5 7 Exchequer Caeca 287.
340
HOWARD C.J.—In re Ggonesinha.
January 10, 1942, a motion was filed on his behalf, giving a list of witnesseshe wished to call at the hearing. In paragraph 10 of his affidavit thepetitioner states that, on March 9 and 12, 1942, the matter came up forinquiry before the Judge, when, after Counsel for the petitioner and CrownCounsel as amicus curiae had been heard,-he was refused an opportunityof calling witnesses on his behalf. On March 18, 1942, the Judgedelivered an order stating that the offences had been made out againsthim and a report would be sent to the Governor. The application for awrit of certiorari is based on the following grounds : —
That, as the trial of the election petition was concluded on Decem-ber 22, 1941, when the Judge pronounced his order determining that thereturn of the said Joseph de Silva was void, the Judge had no jurisdictionto order the issue of a notice on the petitioner to show cause why heshould not be reported or to proceed to hear the matter or to make anyorder to the effect that the offences had been made out against himor to send a report to His Excellency the Governor.
That if it was competent for the Court to issue a notice as aforesaidon the petitioner—
this order refusing the petitioner leave to call witnesses on his
behalf* was contrary to the fundamental rule of all judicialproceedings, that a person charged with an offence should havean opportunity of calling evidence to clear himself.
the learned Judge acted contrary to the provision laid down
by the Order in Council in refusing to allow petitioner to callwitnesses.
The petitioner also submitted that the Judge exceeded the authorityconferred on the Election Judge, that the said orders were contrary tolaw, and that the evidence given at the trial of the inquiry into thematter of the election petition did not disclose that the offence of undueinfluence was committed by him.
It will be observed that the petitioner’s application cites as respondentthe “ Honourable Mr. O. L. de Kretser of Colombo ” and prays for a writof certiorari under section 42 of the Courts Ordinance. The first pointfor consideration is whether this provision of the law gives any power tothis Court to issue a writ of certiorari against the respondent. Therespondent, who is a Judge of the Supreme Court, was nominated by theChief Justice under the provisions of Article 75 (1) of the Ceylon (StateCouncil Elections) Order in Council, 1931, for the purpose of tryingthe Colombo North Election Petition. By sub-Article (2) he is referred toas the Election Judge. By sub-Article (3) for the purpose of compellingthe attendance of witnesses the Election Judge is vested with the samepowers as those of a District Judge in a civil action. By sub-Article (4)it is provided that on the trial of an election petition the. Election Judgeshall be attended in the same manner as if he were a Judge of the SupremeCourt. Under sub-Article (5) all interlocutory matters in connectionwith an election petition may, unless otherwise ordered by the ChiefJustice, be decided by any Judge of the Supreme Court. Article 76provides for the presentation of election petitions to the Supreme Court.Article 80 (3) provides that an election petition may be amended with
HOWARD C.J.—In re Coonesittha.
341
the leave of a Judge of the Supreme Court. The Sixth Schedule of theOrder in Council sets out the Election (State Council) Petition Rules,1931. In Rule 2 it is stated that “ Registrar ” means the Registrar ofthe Supreme Court. Rule 3 refers to the receipt of the petition at the.“ Registry of the Supreme Court ”. In Rule 4 (4) it is stated that theform of an election petition shall be the following, or one to the likeeffect will be sufficient: —
“ In the Supreme Court of Ceylon.
The Cevlon (State Council Elections) Order inCouncil, 1931.”
Rule 10 allows a person returned as a member to appoint as an agenta person entitled to practise as a Proctor of the Supreme Court. Rule 28provides that, in the event of the Judge who begins the trial being disabledby illness or otherwise, it may be recommenced and concluded by anotherJudge. Again in Rule 31, in connection with the withdrawal of a petition,a reference is made to the Registrar of the Supreme Court. Rule 41provides that costs shall be taxed as in the District Court. I have setout in detail these provisions of the Order in Council because, in con-sidering this application, it is essential that there should be a correctappreciation of the status of the respondent. The jurisdiction of theElection Judge was considered in the case of Tillekewardene v. Obeysekere 1where it was held that there is no appeal from the determination of anElection Judge as to the validity of an election. In his judgment,Garvin J. stated as follows : —
“ The jurisdiction exercised by the Election Judge created by theOrder in Council is of a very special nature. Whether it is an extensionof the ordinary jurisdiction of the Supreme Court or a separate anddistinct jurisdiction vested in the Chief Justice and exercisable not bythe Supreme Court or any Judge thereof but only by him or a Judgeof the Supreme Court specially appointed by him must first be deter-mined. These are questions left to be determined when they arise.”
The Election Judge is a Judge of the Supreme Court, attended in thesame manner as a Judge of the Supreme Court, interlocutory mattersare decided by any Judge of the Supreme Court, election petitions arepresented to the Supreme Court, election petitions are intituled “ Inthe Supreme Coui „ of Ceylon ”, member’s agents must be Proctors of theSupreme Court of Ceylon and, if the Election Judge is disabled by illness,the trial can be recommenced before another Judge of the SupremeCourt. In these circumstances I have no hesitation in coming to theconclusion that the Election Court is a branch of the Supreme Court,exercising original jurisdiction. In coming to this conclusion, I have notbeen unmindful of the provisions with regard to the summoning ofwitnesses and the award of costs. The procedure of the District Courtis presumably called in aid with regard to these matters, in view of thefact that the Supreme Court does not ordinarily exercise original juris-diction in civil matters.
If the respondent is a Judge of the Supreme Court and exercising thejurisdiction of a branch of that Court, exercising original jurisdiction byvirtue of the Order in Council, does section 42 of the Courts Ordinance
> 33 X. L. H. 193.
342
HOWARD C.J.—In re Goanesinha.
vest me with power to issue a writ of certiorari to quash the order matby him on March 18, 1942 ? The first paragraph of section 42 is wordias follows : —
“The Supreme Court or any Judge thereof, at Colombo or elsewl.mshall have’ full power and authority to inspect and examine f.records of any Court, and to grant and issue, according to law, mandin the nature of writs of mandamus, quo warranto, certiorari, procedeiand prohibition, against any District Judge, Commissioner, Magisti *or other person-or tribunal.”
The first point for consideration is whether the words “ any Cuiin that section includes the Supreme Court. “ Court ” is definedsection 2 as follows : —
“‘Court’ shall denote a Judge empowered by law to act judiei..alone, or a body of Judges empowered by law to act judiciallya body, when such Judge or body of Judges is acting judicially."
Prim a facie then “ Court ” would include the Supreme Court, uni* .there is something in the subject or context repugnant thereto. TSupreme Court does not require a special provision of law for authoito inspect and examine its own records. Moreover, if “any Coin ■included the Supreme Court, the words “ Judge of the Supreme Coutwould be included in the latter half of the paragraph. In my opinimtherefore, “ any Court ” in this paragraph does not include the SupremeCourt. From the fact that a Judge of the Supreme Court is notspecifically mentioned in the paragraph the inference is of necessitydrawn that the writs mentioned can only be issued to inferior Courts.The words “ other person or tribunal ” in this context cannot, in accord-ance with the eiusdem generis rule, be understood to include a Judgeof the Supreme Court.
In connection with section 42 of the Courts Ordinance I agree withthe dictum of Soertsz J., in Dankoluwa Estates Co., Ltd. v. The TeaController,1 where he says that this section, which gives jurisdiction to theSupreme Court to issue mandates in the nature of writs of mandamus,quo warranto, certiorari, &c., expressly adopts the view expressed :n theEnglish cares. The same view with regard to the powers of the HighCourt in India was taken in the case of Lakshmanan Chettiar v. Com-missioner, Corporation of Madras, and Chief Judge, Court of Small Causes,Madras where it was stated in an application for a writ of certiorariroll*>u s : —
“ In such a matter we act not under Statute but. under the inherentpowers which devolve upon us from the old Supreme Court of Madras.Wo. 'herefore, stand with regard to prerogative writs in the same**{>si< :* u as the Court of King’s Bench in England and in our opinion■vo ought- to follow the rules laid down by that Court in the decidedEnglish cases as to the~scope and limitation of its jurisdiction.”
'fav – ; regard to the wording of- section 42, there would appear to be
ayhority to grant this application. It is, however, material toc :.anim the English cases to see whether any authority exists in Englishi-v to: i he issue of a writ of certiorari in circumstances such as these.'' v- v.-i it of certio- vri is an ancient writ, issuing out of a superior Court’• L. W. at p. 4S. .s (1927) I. L. R. 50 Mad. Series, 130.
HOWARD C.J.—In re Goonesinha.o43
and directed to the Judge or other officer of an inferior Court. A longline of English cases has established the principle that the writ of certiorariunless expressly withheld by Statute enables superior Courts to examineihe proceedings of all inferior Courts and of all Statutory authoritiesvested with judicial or quasi-judicial functions, and if upon such exami-nation it be found that they have, under pretence of an Act,proceeded to usurp a jurisdiction greater than they have in common law,or greater than the Act warrants, to direct them to have their proceedingsreturned to the superior Court to the end that it may see that theykeep themselves within their jurisdiction. It has been contended byMr. R. L. Pereira that the Election Court is an inferior Court and henceone to which a writ of certiorari can issue from the Supreme Courtbecause its jurisdiction is limited. It is true that a Court is an inferiorCourt for the purpose of prohibition whenever its jurisdiction is limited(vide Halsbury, Haiisham Ed., vol. 9, p. 831 and cases collected thereon),it is unnecessary to consider whether the jurisdiction of the ElectionJudge is such as to permit of the issue of a writ of prohibition. Differentconsiderations apply to the issue of a writ of certiorari. Such a writcan only’be issued in respect of matters which are within the jurisdictionof the High Court of Justice. Proceedings will not be removed intothe superior Court unless they are capable of being determined there.Therefore, the writ will not be directed to a.Court which is not one ofcivil jurisdiction, for example, a Court-Martial, unless it be shown thatcivil rights are affected. It has, moreover, been held in numerous casesthat the writ cannot be directed by the High Court to any tribunalwhich is a branch of the High Court for the purpose of quashing itsprc ceedings. One of the earliest cases on the subject is that of ex parteJose Luis Fernandez ', where the facts were as follows :Onthe trial at
ir.e Assizes of an information against one C for bribery, alleged to havebeen committed by him at the election for a member of Parliament, awitness was called on the part of the Crown, who had been examinedbefore s Royal Commission appointed to inquire into alleged corruptpractices at that election and who had received from the Commissionersa certificate indemnifying him against all penalties. On being asked aquestion he declined to answer on the ground that his answer mighttend to criminate himself. He persisted in his refusal and the Judge,thereupon, committed him to York Castle for six months for havingwilfully and in contempt of the said Court refused to answer the saidquestion and further imposed on him a fine of £500. It was heldthat the Court of Assize, being a " superior Court ”, the Judge had juris-diction to commit and was not bound to set out in his warrant the cause ofcommitment—his decision not being subject to review by the Courtabove. In the course of his judgment Willes J-, after considering the• "u’horities. said: —
“ It thus appears to me very clearly, whether I consider the origin,the history, the procedure, or the jurisdiction of the Court of Assizeor the estimation in which it has even been held, that I must class it asa superior Court of a high order. Mr. Bovill has not cited a singleauthority or even hint to the'contrary.”
1142 E. S. 349.
344HOWARD C.J.—In re Goonesinha.
A little later the learned Judge, speaking of Judges of Assize, said : —
“ They belonged to that superior class to which credit is given byother Courts for acting within their jurisdiction, and to whose pro-ceedings the presumption omnia rite esse act a applies equally as lothose of the Supreme Court of Parliament itself. ”
In the Queen v. The Judges and Justices of the Central Criminal Courtthe Recorder of London, upon the trial and conviction of a prisonercharged with larceny, having refused to order the person with whom thestolen property was pledged to restore it to the prosecutor, the Queen’sBench Division refused to grant a mandamus directed to “ the Judgesand Justices of the Central Criminal Court” to compel the Recorder toto make such order. In the concluding words of his judgment. Pollock B.stated as follows : —
“ It seems to me, therefore, that the Court, before whom the prisonerin the present case was tried, was sitting as a Superior Court, of atleast as high authority as Justices of Assize sitting under a commissionof oyer and terminer and gaol delivery on circuit. There being noprecedent to be found of this Court—the highest common law Courtof criminal jurisdiction—ever having issued a mandamus to a superiorCourt, which the Central Criminal Court clearly is, it is enough forme to say that this rule must be discharged.”
The next case is Reg. v. Boaler ', where it was held that the HighCourt has no jurisdiction to issue a writ of certiorari, directed to theCentral Criminal Court, to remove a conviction obtained in the CentralCriminal Court for the purpose of having the same quashed. In hisjudgment, Lord Coleridge C.J. stated as follows : —
“ There is no authority for saying that this writ- can go at all to theCentral Criminal Court, which is a Superior Court. It is a court atleast as high as the assizes, as the criminal court on the circuit ; and ithas been held, expressly with regard to those courts, that no certiorariwill go to bring up a conviction obtained at the Assizes, for the purposeof being quashed here. ”
In connection with the authority of this Court to’ issue a writ ofcertiorari the case of Skinner v. The North-Allerton County Court Judge& others * is most instructive. In this case a warrant of arrest wasissued by the County Court Judge against the appellant, against whom abankruptcy petition had been presented. An order nisi for a certiorarito remove into the Queen’s Bench Division and quash., the order andwarrant on the ground of want of jurisdiction was discharged by Wrightand Darling JJ., and this decision was affirmed by the Court of Appeal.The House of Lords, on appeal, held that certiorari does not lie to bringup an order of a County Court Judge made when exercising bankruptcyjurisdiction. In his judgment, Lord Halsbury stated as follows : —
“ Now, this County Court Judge was sitting in bankruptcy, and theconfusion which is imported into it is that because, as I will assumefor the moment, the Judge issued a warrant which in form was wrong,
> It Q. B. D. 470.- 07 L. T. 331.
(1899) A. C. 439.
HOWARD C.J.—In re Goonesinha.
345
but could have been put right, therefore it could have been put right,not in the Court in which it was issued, but in the High Court. Theabsurdity of that is that the statute itself has made the County Courtthe High Court for this purpose. You might just as well argue that awarrant, defective in form, issued by the Court of Queen’s Bench, couldbe set right by certiorari. Of course that is absurd. This is theHigh Court for this purpose. If the warrant was ever so bad, it wasissued by a bankruptcy judge in respect of bankruptcy proceedingswhich were before him, of which he was seized—a warrant which hehad perfect jurisdiction to issue. If there was any irregularity orinaccuracy in point of form in the warrant that did issue, that couldbe put right by proper proceedings, but the proper proceedings wouldbe in that Court itself, and not proceedings by certiorari in the Court ofQueen’s Bench.”
The only case that lends any support to the contention that the HighCourt in England could quash an order made by one of its branches isthat of the Queen v. Lee ’. In this case, a highway authority pleadedguilty to an indictment presented at York Assizes in respect of the non-repair of a highway. After the trial, Field. J. made an order for thepayment of the prosecutor’s costs. A rule, making the prosecutorrespondent, to -the King’s Bench Division to quash the order wasobtained on behalf of the authority. Field J. was one of the Judgesconstituting the Court which made the rule absolute. The variouscases I have cited were reviewed in the judgment of Hewart L.C.J., inthe King v. Justices of the Central Criminal Court ex parte London CountyCouncil where it was held that the King’s Bench Division of the HighCourt of Justice has no jurisdiction to issue a writ of certiorari for thepurpose of removing into that Court an order of the Central CriminalCourt with a view to its being quashed. Lord Hewart, in his judgment,distinguished the case of Reg. v. Lee (supra) on the ground that fromthe beginning to the end of that case not one word was said upon oneside or the other as to the jurisdiction of the Court to issue a writ ofceitiorari in such circumstances. Also that Field J. was satisfied thathe made a slip in making the order as to costs and was nothing loththat a writ: of certiorari should issue, the writ being directed not to theJudge himself who made the order but to Robert Lee, the prosecutor.^In the course of his judgment, the learned Lord Chief Justice said asfollows : —
“I think it right, however, to remark that a clear distinction is tobe drawn between two matters, on the one hand the removal, bymeans of certiorari, of indictments or presentments in order to bringabout what may be called the domestic or internal arrangement orrearrangement of business, and on the other hand the removal for thepurpose of quashing it of an order which has been made by a SuperiorCourt. In other words, in my opinion, the statutes and decisions inregard to mere change of venue are not upon the same plane with aproposal to bring from a Superior Court an order which has been madeby that Court for the purpose of quashing it. In the one case the1 11 Q. B. D. 19S.* (1925) 1 Q. B. D. 43.
HOWARD C.J.—In re Gooitesinha.
superior Court is making for good reason a useful redisposition of it?nusiness : in the other case the Superior Court is in iteti to quashthat which itself has done, and the process involves the ratherudicrous position that it calls upon Judges to show cause to themselves■vhy they should not be directed to remove, so that it may be quashed,•omething which they themselves have determined in my opinion,the beginning of the truth about this matter is to distinguish thethings which ought to be distinguished. There is no authority forthe proposition with which those who seek to support this order nisimust begin—namely, that' in a case of this kind there is jurisdictionin this Court to issue a writ of certiorari."
In this case Reg. v. Brooke' was cited as an authority by Sir LeslieScott, who appeared in support of the rule. Avory J., in his judgment,pointed out that the observation > of Wills J., when he said ‘‘We havejurisdiction to grant a certiorari ionly referred to the jurisdiction togrant the writ for bringing up a recognizance for enforcement and hac^nobearing on the question whether, a Superior Coupt of record can issue acertiorari to another Superior Court of record to quash an order- whichhas been made by that Court.
I need only refer to two other cases. In the Queen v. Dudley &Stephens a trial at the Devon & Cornwall Assizes ended in a specialverdict. The consideration of this verdict was held in London beforefive Judges. It was objected that the record should have been broughtinto the Court by certiorari. It was held that since the Judicature Act,1873 (36 & 37QVict. c. 66), the Courts of over and terminer and gaoldelivery are now part of the High Court and their jurisdiction is vestedin it. An order of the' Court had been made to bring this record from onepart of the Court into the chamber which was another part of the sameCourt.
Mr. Pereira relied on the case of James v. South Western RailwayCoJ for authority for the proposition- that a writ of certiorari could issue.This case was decided in 1372, that is to say before the passing of theJudicature Act, 1873. It decided that a writ of prohibition lies to theCourt of Admiralty, although it possesses by Statute some of the powersof a Superior Court. This case was one of the issue of a writ of prohibitionand not of certiorari and hence has no bearing on the facts of the presentcase, even if after the Judicature Act, IS"# it is still good law.
In my opinion, a branch of the Supreme Court in Ceylon is in exactlythe same position as regards the issue of a writ of certiorari as a branchof the High Court of Justice in England. The Election Court or Judgewas, therefore, in this matter in the same position as the Central CriminalCourt in England. To hold otru • wise vl’ould lead to the absurd positionreferred to by Lord Hewart in tk ' ' up v. Justices of the Central CriminalCourt ex parte London County C. .•’ (supra), when he says : —
“ in the other case the Superior Court is invited to quash that whichitself has done, and the process involves the rather ludicrous position V
V h chequer Co*/’* *?'T.
2 II Q. B. D. 273.
The King v. Pitchoris Appu.
347
Jiat it calls upon Judges to show cause to themselves why they shouldnot be directed to remove, so that it may be quashed, something whichthey themselves have determined.”
In view of what I have already stated there is no jurisdiction in thisr ourt to issue a writ of certiorari directed to the respondent and thepplication must be dismissed.
In coming to this conclusion I have not been unmindful of the factt* at the action taken against the petitioner under Article 79 of the Order• Council involved the latter in grave consequences in regard to his.. l- ical career. It was suggested by Mr. Pereira that there must bein the procedure of the Courts a remedy for the righting of an.ice. With regard to this piea I can only refer to the phraseologynv Wilies J-, in ex parte Fernandez (supra), when speaking of Judges^>size : —
—hey belonged to that superior class to which credit is'given by■ i Courts for acting within their jurisdiction and to whose pro*mgs the presumption omnia rite esse acta applies equally as toise of the Supreme Court of Parliament itself.”
v opinion these words apply with equal force to the proceedings ofvtion Court.
Application dismissed.