027-SLLR-SLLR-2003-V-3-JATHIKA-SEVAKA-SANGAMAYA-v.-SRI-LANKA-PORTS-AUTHORITY-AND-ANOTHER.pdf
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JATHIKA SEVAKA SANGAMAYAvSRI LANKA PORTS AUTHORITY AND ANOTHERCOURT OF APPEALTHILAKAWARDENA, J.WIJERATNE, J.
CA 589/2002JUNE 3,2002SEPTEMBER 4, 2002NOVEMBER 26, 2002
Writ of Certiorari – Preliminary Objections – Meaning? – Sustainability –
Advantages – Disadvantages – Locus Standi – Public Law Remedy –
Busybody or a public benefactor.
Held:
A preliminary objection can be a pure question of law, it could be based
on a mixed question of law and facts and even on a question of factalone
Per Shiranee Thilakawardena, J.
“Preliminary points of law are too often treacherous short cuts the priceof which can be delay anxiety and expense.”
The purpose of raising preliminary objections is not to shut out or stiflelegitimate adjudication. Preliminary objections are particularly unhelpfuland are without basis in the context where facts and/or law are in dis-pute.
Writ of Certiorari is available even to strangers because of the element
of public interest.
“Every citizen has standing to invite the Court to prevent someabuse of power, and in doing so he may claim to be regarded notas a meddlesome busy body but as a public benefactor."
APPLICATION for a Writ of Certiorari.
Cases referred to:
AC v Nissan – 1969 1 All ER 629 (AL)
Tilling v Whiteman – 1979 All ER 739
CA
Jathika Sevaka Sangamaya v Sri Lanka Ports Authority and
another (Shiranee Thilakawardena, J.).
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Prabhakar Gerald Walter v Chief Secretary – 1953 Al R TC 286 at 291
Wijesiri v Siriwardena – 1982 1 Sri LR 171 at 175
K. Kanag-lswaran, P.C. with Daya Pelpola, S.J. Mohideen, M. Iqbal Mohamedand Nigel Bartholomusz for the appellant
Gamini Marapona, P.C. with Naveen Marapana for the 1st respondent.
Romesh de Silva, P.C. with N.R. Sivendran and Sugath Caldera for 2ndrespondent.
Cur.adv.vult.
January 30, 2003
SHIRANEE TILAKAWARDENA, J.This application has been preferred by the petitioner invoking 01the writ jurisdiction of this Court. The respondents have taken pre-liminary objections regarding the maintainability of this application.
The preliminary objections on behalf of the 2nd respondent were asfollows:
The petitioner is guilty of suppression and misrepresentationof material facts and as such, the petitioner is not entitled toinvoke the discretionary remedy in the form of an applicationfor Writ, of Your Lordships’ Court. There are severalinstances of suppression and misrepresentation of facts 10which will be dealt with hereunder.
. The petitioner is guilty of inordinate delay/laches and the peti-
tioner is not entitiled to have and maintain thisapplication.
The petitioner has no locus standi to have and maintain thisapplication for a writ of certiorari and/or Prohibition. This isnot a representative action and the public law remedy is notavailable to the petitioner.
The Board of Investment against which various allegationshave been levelled has not been made a party to this appli- 20cation and thus, the Petition ought to be dismissed in limine.
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The petitioner is not in any event entitled to Public Law rem-edy.
This matter comes up for an order on these preliminary objec-tions.
The gravermen of the argument of the petitioner was that thepreliminary objections purported to have been taken were based oncertain facts and merits which were disputed and that the determi-nation on these matters could not be done without preceding intothe inquiry.30
The first matter that has to be determined by this Court is thelimitation of matters that can be taken as “Preliminary Objections”without going into the merit of the pleadings filed in the case. A pre-liminary objection can be on a pure question of law, a determina-tion of which obviates or makes unnecessary, any consideration ofthe facts contained in the pleadings and/or the merits of the case.
As for instance, a matter of law which is canvassed relating to thepatent lack of jurisdiction. There is no dispute that such a mattercan be disposed of, on that question of law alone. Therefore mat-ters pertaining to jurisdiction would be canvassed by way of pre- 40liminary objection and be determined by the Court specially in thecircumstances where the matter of jurisdiction is placed on a purequestion of law. The patent lack of jurisdiction, matters relating to pre-scription etc. especially when they are based on facts that are notcontested and are matters that can be disposed of in this manner.
The advantage of a preliminary objection is the possibility todispose of a matter expeditiously which can lead to a resolution ofthe dispute between parties with a minimum amount of expense ordelay, for the convenience of all parties including the Court.
A preliminary objection could also be based on a mixed ques- 50tion of law and facts and even on a question of fact alone but, onlyin situations where there are ex facie either no dispute or a frivo-lous dispute on the fundamental facts that are being urged beforethe Court and contained in the pleadings that have been filed, suchmatters can be decided as a preliminary objection.
Preliminary issues, may be taken at the beginning in isolationof the merits of the case for convenience of all parties and may
Jathika Sevaka Sangamaya v Sri Lanka Ports Authority and
^another (Shiranee Thilakawardena. J.) ■1^9
even rule upon by the Court, but such issues may not decide theentirety of the dispute that is before the Court. It would assist in themanagement of the case through the appellate procedure, espe-cially in matters that need to be determined in isolation of the otherissues in the case and would prevent the unnecessary delays andinconvenience caused to parties as well as would prevent lengthyand prolonged litigation into matters before Court.
Preliminary objections are also particularly useful for actionswhich have no substance and where it is clear that such actioncould not possibly succeed.
The purpose of raising preliminary objections is not to shut outor stifle legitimate adjudication. Preliminary objections are particu-larly unhelpful and are without basis in the context where factsand/or law is in dispute. It is also important to distinguish a prelim-inary objection from an objection on any point of law, which can beraised at any part of the trial unlike the preliminary objectons, whichby its nature is expected to be raised at the beginning of the pro-ceedings prior to the beginning of the arguments in the case.
This has been referred to in Halsbury’s Laws of England – Vol.36 paragraph 35. “A party may by his pleading raise any point oflaw. A point of law so taken is called “ an objection in point of law”.It assumes as true the facts alleged by the other party and declar-es that those facts are not sufficient to raise the legal inference, orto afford the ground of relief, for which the other party contends. Itdiffers from a confession and avoidance in that it does not seek todraw from the facts alleged, or to prove additional facts in supportof, some fresh inference other than that on which the party whosepleading is objected to relies, but merely declares that that party’sown allegations are insufficient to support the contention which heputs forward.
Objection on a point of law replaces the old system of demur-rer. Such an objection is disposed at the trial unless otherwiseordered”.
In fact, in the case of A-C v Nissan(1) “the House of Lords haveemphasized the disadvantages of ordering the trial of a preliminarypoint of law on assumed facts”.
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It must be particularly remembered that preliminary points oflaw are “too often treacherous short cuts, the price of which can bedelay, anxiety and expense”. “The practice in lower courts of allow-ing preliminary points of law to be decided on hypothetical factsought to be confined to cases where the facts are not complicatedand the legal issues short and easily decided upon or exceptionalcircumstances”. (Tilling v Whiteman^).100
In this case, the preliminary objection goes to the very root ofthe pleadings and such objection cannot be decided without care-fully going into the pleadings and the documents relating to the cir-cumstances of this case.
A preliminary objection has been defined in Venkataramaiya’sLaw Lexicon Page 1875 as follows. “The epithet “preliminary” isinappropriate as regards this objection because a preliminaryobjection is one that is raised to the sustainability of an applicationor action on the basis of the assumption of the truth of all the aver-ments of fact made by the suitor, in the application or plaint and is notherefore, one that can be taken in argument though not raised inthe written defence. The objection here is obviously and entirely dif-ferent and is not one which can be taken in argument without rais-ing it in the written defence so as to given an opportunity to theopponent to state his answer or explanation – Prabhakar GeraldWalter v Chief Secretary
Even an objection raised regarding the locus standi speciallyin exercising the writ jurisdiction of this Court one has to considerthe development of law where even any public, interested personor a group of persons can invoke the writ jurisdiction of this Court 120specially in case of abuse of power by public authorities are con-cerned. It is relevant that “Every citizen has standing to invite theCourt to prevent some abuse of power, and in doing so he mayclaim to be regarded not as a meddlesome busybody but as a pub-lic benefactor”. (Administrative Law – Wade & Forsyth 8th Editionpage 673).
In Wijesiri v SiriwardeneW at 175 Wimalaratne, J. withRatwatte, J. agreeing held that writ of certiorari is available even tostrangers, as the Courts have often held, because of the elementof public interest.!30
CA
Perera and others v Hon. Tilak Marapona, Minister of Transport
,(Udalaaama. J.)
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In these circumstances, this Court overrules the preliminaryobjections and fix this case for argument.
WIJEYARATNE, J.I agree
Preliminary objection overruledMatter fixed for argument.