– JAYASINGHE v. THE NATIONAL INSTITUTE OF FISHERIES AND NAUTICAL ENG

030-SLLR-SLLR-2002-V-1-JAYASINGHE-v.-THE-NATIONAL-INSTITUTE-OF-FISHERIES-AND-NAUTICAL-ENG.pdf


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Jayasinghe v. The National Institute of Fisheries and
Nautical Engineering (NiFNE) and Others
277
JAYASINGHE
v.
THE NATIONAL INSTITUTE OF FISHERIES AND NAUTICALENGINEERING (NIFNE) AND OTHERS
SUPREME COURTGUNASEKERA, J.,
EDUSSURIYA, J. ANDYAPA, J.
SC APPLICATION NO. 692/2000NOVEMBER 23, 2001 ANDDECEMBER 11, 2001
Fundamental rights – Article 126 (2) of the Constitution – Time bar – Knowledgeof the wrong complained of may determine whether the claim is time-barred -Lack of uberrima tides a ground for rejecting a claim.
In his application filed on 15. 12. 2000 the petitioner complained that his rightto equality under Article 12 (1) of the Constitution had been infringed by theappointment of the 18th respondent as the Director-General of the National Instituteof Fisheries and Nautical Engineering (the NIFNE). The 2nd respondent (Ministerof Fisheries and Aquatic Resource Development) made the impunged appointmentby his letter dated 14. 01. 2000. The 18th respondent assumed duties and signedthe attendance register as Director-General NIFNE whilst the petitioner signed thesame register immediately next to the 18th respondent in the capacity of DirectorNiFNE. There was also a letter dated 10. 07. 2000 written by the petitioner tothe 2nd respondent (Minister) which shows that the petitioner was aware of the18th respondent's appointment as DGM; a letter dated 30. 10. 2000 addressedto the petitioner by the 18th respondent signing as DGM – NIFNE; and the replydated 01. 11. 2000 addressed to the 18th respondent as DGM – NIFNE by thepetitioner. The respondents also produced evidence of CA application No. 1569/2000 made to the Court of Appeal by the petitioner seeking relief in the samemotion. Except for the letter dated 01. 11. 2000 addressed by the petitioner tothe 18th respondent all the other documents were produced by the respondents.
Held:
(1) The documentary evidence showed that several months prior to15. 12. 2000 the date of the petitioner's application, he was aware of theappointment of the 18th respondent as the DGM of NIFNE. Hence, thepetitioner's application was time-barred.
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(2) Ait the documents on which the respondents relied to support their pre-liminary objection to the application, except one, were produced by therespondents. The petitioner suppressed those documents and the fact thathe had made an application to the Court of Appeal seeking relief in thesame matter and thereby misled the Court. The petitioner's conduct lackeduberrima tides. The application has to be rejected in limine on this groundas well. This is a principle which applies to cases coming up before theCourt in writ cases as well as in injunction applications and even in admiraltycases. In such cases relief will be refused in limine without hearing thecase on the merits even where the decision is alleged to have been madewithout jurisdiction. The same principle applies to applications under Article126 (2).
Cases referred to :
Gamaethige v. Siriwardena and Others – (1980) 1 Sri LR 384 at 397.
Blanca Diamonds (Pvt) Limited v. Wilfred Van Els and Two Others – (1997)
1 Sri LR 360.
Rex v. Kensington Income Tax Commissioners; Princess Edmond De PolignacEx Parte – (1917) 1 KB 486.
Castelli v. Cook – (1948) 7 HARE 89 at 94.
APPLICATION for relief for infringement of fundamental rights – Preliminary
objection.
Elmo Perera for petitioner.
D. S. Wijesinghe, PC for 1st, 4th and 18th respondents.
Rajaratnam, Senior State Counsel for 2nd, 3rd, 12th, 13th, 14th and 15th
respondents.
Cur. adv. vult.
March 20, 2002
HECTOR YAPA, J.
The petitioner in this application has sought a declaration that, his 1fundamental right to equality under Article 12 (1) of the Constitutionhas been infringed by some of the respondents, in appointing the 18threspondent as the Director-General of the National Institute of Fish-eries and Nautical Engineering (hereinafter referred to as the NIFNE).
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Jayasinghe v. The National Institute of Fisheries and
Nautical Engineering (NiFNE) and Others (Yapa, J.)
279
Hence, the petitioner has moved this Court to set aside the saidappointment of the 18th respondent, and further for a direction onthe respondents to appoint the petitioner to the post of Director-General of NIFNE. The petitioner presently is the Director of NIFNE.The 1st respondent to this application is the NIFNE established by 10Act, No. 36 of 1999. The 2nd and 3rd respondents are the Ministerand the Secretary respectively, of the Ministry of Fisheries and AquaticResources Development (hereinafter referred to as Ministry of Fish-eries). The 4th to 17th respondents are the Chairman and Membersrespectively, of the Council of NIFNE. The 18th respondent is theDirector-General of NIFNE, whose appointment has been challengedby the petitioner in this application.
At the commencement of the hearing, learned Senior State Counselraised two preliminary objections :
That this application was out of time in terms of article 20126 (2) of the Constitution, in that it had been filed morethan one month after the infringement complained of;
That the petitioner was guilty of suppressing material factsfrom Court.
Learned Senior State Counsel therefore contended that thepetitioner's application should be dismissed without going into themerits of the case. Learned President's Counsel who appeared forthe 01st, 04th and 18th respondents associated himself in supportingthe said preliminary objections. Accordingly, counsel were permittedto make oral and written submissions on the preliminary objections, 30and it is proposed to make a ruling on them in this judgment.
After hearing Counsel on both sides, it became clear that thequestion of compliance with Article 126 (2) depended on whether theinfringement complained of occurred within one month prior to15. 12. 2000, which is the date of filing this application or whetherthe infringement took place several months before 15. 12. 2000.
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As submitted by counsel for the respondents, on 14. 01. 2000 theGoverning Council of NIFNE decided to recommend to the 2ndrespondent (Minister of Fisheries) the appointment of the 18th respond-ent as Director-General of NIFNE. (vide 1 R5 and 1 R5A). By letter «odated 14. 01. 2000 the 2nd respondent acting in terms of section14 of the National Institute of Fisheries and Nautical Engineering Act,No. 36 of 1999, appointed the 18th respondent as the Director-Generalof NIFNE (vide 1 R6). As referred to above the petitioner's applicationto this Court was filed on 15. 12. 2000. In support of the contentionthat the petitioner was aware of the appointment of the18th respondentas Director-General NIFNE several months before this application wasfiled, learned Counsel for the respondents referred to the followingdocuments :
The document marked 1 R10 is a certificate issued by soNIFNE, to a candidate who had successfully completed acourse of training in Fibre Glass Technology during the period09. 08. 2000 to 22. 08. 2000. The petitioner had signedthis certificate in his capacity as the Director NIFNE, whilethe 18th respondent had signed it in his capacity as theDirector-General NIFNE. Assuming that this certificate came
to be signed shortly after the course of training, then it isvery likely that the petitioner was aware that the 18threspondent was functioning as the Director-General NIFNE,at least three months before the filing of this application, so
A page from the attendance register (copy) maintained atthe NIFNE had been produced marked 1R 10A. This docu-ment reveals the fact that the 18th respondent had signedthe attendance register in his capacity as the Director-General,whereas the petitioner had signed it immediately thereafterin his capacity as the Director NIFNE. Even though this pagefrom the attendance register does not disclose the date ofsigning, it would be useful to show that the 18th respondentand the petitioner had been functioning as Director-Generaland Director of NIFNE,’ respectively.
SCJayasinghe v. The National Institute of Fisheries and
Nautical Engineering (NiFNE) and Others (Yapa, J.)281
The document marked 3 R5, was a letter dated 70
10. 2000, written by the 18 respondent to the petitioner.This letter had drawn the attention of the petitioner to the3rd respondent's letter of 23. 10. 2000, (vide 3 R4) sent tothe 18th respondent requesting the release of the petitionerto the Ministry of Fisheries with effect from 01. 11. 2000.
It is important to note that the 18th respondent had written3 R5 to the petitioner in his capacity as Director-GeneralNIFNE on 30. 10. 2000, which is about 45 days before thepetitioner filed this application.
(a) The document produced by the petitioner marked P33, was soa letter dated 01. 11. 2000 written by the petitioner in hiscapacity as Director, which had been sent to the 18threspondent in his capacity as Director-General NIFNE. InP33, the petitioner had expressed his unwillingness to beattached to the Ministry of Fisheries. It would appear thatP33 was in response to the earlier letter of the 18th respond-ent dated 30. 10. 2000 (3 R5). Mention must be made herethat the petitioner had addressed P33 to the 18th respondentin his capacity as Director-General NIFNE, one and a halfmonths before he filed this application challenging the 18th 90respondent's appointment as Director-General NIFNE.
Another important document that was referred to by counselwas a letter marked 1 R8. It was a letter dated 10. 07. 2000,written by the petitioner to the 2nd respondent, (Minister)requesting him to consider appointing him (petitioner) to apost of Director or any other suitable post in the Ministryof Fisheries. The petitioner had advisedly withheld this letterfrom Court as it would operate adversely to his interest. Assubmitted by learned counsel for the respondents, some ofthe matters referred to in this letter clearly showed that the 100petitioner was aware at the time he wrote 1 R8, that the18th respondent was functioning as the Director-General
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NIFNE. To explain this point counsel referred to the followingpassage from 1 R8, wherein he states,-inter alia : "It isevident from the fact that the present Director-General of thenew institute is held responsible for all the financial andadministrative duties that I carried out before . .(vide
1 R8 page 2 para 3). We now know, that the 18th respondenthad been functioning as the Director-General NIFNE since14. 01. 2000. Therefore, when the petitioner referred to the 11°"present Director-General of the new institute" in his letter1 R8, he was clearly referring to the 18th respondent andno other. Thus, it was a fact within the knowledge of thepetitioner, when he wrote 1 R8 on 10. 07. 2000, which isfive months prior to the filing of this application.
Therefore, several supporting dobditients referred to by counselfor the respondents, clearly establish the fact that the 18th respondenthad been appointed Director-General in terms of the National Instituteof Fisheries and Nautical Engineering Act, and that he had beenfunctioning in that capacity, ft would- appear that a large number of120official letters including some of the letters sent to the petitioner,had been signed by the 18th respondent in his capacity as Director-General NIFNE. It is difficultly believe as the petitioner tried to makeout, that the 18th respondent would have signed such letters asDirector-General NIFNE without a proper appointment. It is to beobserved that the 18th respondent had written the letter marked1 R9 to the petitioner, as the Director-General NIFNE, as far backas 17. 01. 2000. The two documents marked 1 R10 (certificate) and1 R 10A (Attendance Register) support the position that the petitionerand the 18th respondent had placed their signatures on them, asi3oDirector and Director-General NIFNE, respectively. Besides thepetitioner had admitted in his petition that he received the 18threspondent's letter of 30. 10. 2000, (3 R5) which he had marked asP32. (vide para 29 of his petition). He had also admitted writing theletter dated 01. 11. 2000 marked P33, addressed to the Director-General NIFNE who is the 18th respondent in this application. (vide
SCJayasinghe v. The National Institute of Fisheries and
Nautical Engineering (NIFNE) and Others (Yapa, J.)283
para 31 of his petition). Further, in para 27 of his petition, he hadstated that the 18th respondent purported to function as Director-General and he (petitioner) sought clarification from the 3rd respond-ent. Therefore, on his own admission, it would appear that the petitioner's 140cause of complaint arose several months prior to 15. 12. 2000.
In these circumstances, the contention of learned Counsel for thepetitioner, that he (petitioner) was not aware of the appointment ofthe 18th respondent as Director-General NIFNE is untenable. Further,his submission that in any event, 18th respondent's appointment asDirector-General could not have been made, since cadre provisions(P29) and salary scales (P30) for NIFNE were approved very muchlater is not an acceptable proposition, for the reason that suchapproval can always be obtained later. Besides, petitioner's ownconduct supports the position that he knew or should have known, 150that the 18th respondent had been functioning as Director-GeneralNIFNE since 14. 01. 2000.
Article 126 (1) of the Constitution makes provision for a personto obtain redress from the Supreme Court not only when there is aninfringement but also when there is an imminent infringement of anyfundamental right. As Fernando, J. stated in the case of Gamaethigev. Siriwardena and Othersm . . ." the remedy under Article 126 mustbe availed of at the earliest possible opportunity, within the prescribedtime, and if not so availed of, the remedy ceases to be available".Besides, it has been held in several cases that the provisions of Article 160126 (2) are mandatory. Vide Gamaethige v. Siriwardena and Others(supra). In the same case Fernando, J. further expressed the viewthat . . ." While the time is mandatory, in exceptional cases, onthe application of the principle lex non cogit ad impossibilia, if thereis no lapse, fault or delay on the part of the petitioner, this Courthas a discretion to entertain an application made out of time". However,in the present case, the petitioner had no such reasons for any delay.
In fact, when the petitioner wrote 1 R8 to the 2nd respondent on10. 07. 2000, he knew that 18th respondent was functioning as
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Director-General NIFNE. Further, he knew very well that he could not 170make a claim to be the Director-General NIFNE. It is made clear fromhis letter 1 R8, when he stated as follows : . . . "The cadre proposedfor the new institute does not include a post corresponding to myservices as the Director of the National Institute of Fisheries Training"
. . . Hence, it is abundantly clear that the petitioner's application isout of time.
The preliminary objection must therefore be upheld, and thepetition has to be dismissed on this ground.
The allegation that the petitioner was guilty of suppressing materialfacts from Court is two-fold. Firstly, the petitioner had withheld from isoCourt the letter written by him to the 2nd respondent on 10. 07. 2000marked 1 R8, seeking a post of Director in the Ministry of Fisheries.Secondly, the petitioner had withheld from Court the fact that he hadfiled an application in the Court of Appeal seeking identical relief.Some of the contents in the letter 1 R8, explain very clearly that thepetitioner had no intention of making a claim to be the Director-GeneralNIFNE. He also knew that the Director-General (18th respondent)was functioning. It was, therefore, understandable, why the petitionerin his letter 1 R8 had stated as follows :
.. If not for the fact that I had to go on compulsory retirement190on 20th December, 1999, as a result of establishing the NationalInstitute of Fisheries and Nautical Engineering. I would havecontinued in a senior management position in the Governmentservices for a further period of 16 years prior to my legitimateretirement age.
The Act No. 36 of 1999 provides to obtain a post in the newlyestablished Institute and it also emphasizes that the post in theInstitute should not be at a lower level to the then incumbentpost. Unfortunately, such a vacant post is not available in the newinstitute where the institute can appoint me to perform such duties 200
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which I carried out earlier. The cadre proposed for the new institutedoes not include a post corresponding to my services as theDirector of the National Institute of Fisheries Training. It is evidentfrom the fact that the present Director-General of the new instituteis held responsible for all the financial and administrative dutiesthat I carried out before … As mentioned previously, had I beenable to function as a Director in the Ministry, my chances to carryon for another 18 years until my retirement would have contributedmuch to my professional and personal life. This would have helpedme much in economic terms in addition to my privilege to buy the 210official vehicle that I had been using. … I kindly request youto consider appointing me to your Ministry as a Director relevantto my field of study or any other suitable post to provide for myseniority and job satisfaction."
It was consequent to the request made in 1 R8, that steps weretaken to release the petitioner from NIFNE to the Ministry of Fisheries.
The two letters marked 3 R4 and 3 R5 were written to accommodatethe request made in 1 R8. In fact, the 2nd respondent (Minister)in his affidavit had confirmed the position that on receiving such arequest from the petitioner, arrangements were made to have him 220released to the Ministry of Fisheries. It would appear that some timelater, the petitioner had changed his mind and refused to be attachedto the Ministry of Fisheries by writing his letter dated 01. 11. 2000(P33). As submitted by counsel for the respondents. It would appearthat the petitioner sought to suppress 1 R8 to mislead Court. Firstly,by withholding 1 R8 from Court, the petitioner had tried to show thathis transfer to the Ministry of Fisheries was the work of some ofthe respondents to harass him and to keep him out of NIFNE.Secondly, by withholding 1 R8 from Court, the petitioner hadattempted to avoid his application to this Court being declared out 230of time.
Similarly, the petitioner's failure to disclose to this Court, the factthat he had filed an application in the Court of Appeal seeking identical
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relief (a fact known to him when he supported this application in theSupreme Court) is a serious suppression of a material fact. The 4threspondent had annexed to his affidavit a copy of the objections filedin the Court of Appeal case No. CA 1569/2000 to prove this point.Thus, it is manifestly clear that the petitioner had failed to carry outan imperative legal duty and obligation to Court.
Therefore, the conduct of the petitioner in withholding these material 240facts from Court shows a lack of uberrima tides on the part of thepetitioner. When a litigant makes an application to this Court seekingrelief, he enters into a contractual obligation with the Court. Thiscontractual relationship requires the petitioner to disclose all materialfacts correctly and frankly. This is a duty cast on any litigant seekingrelief from Court. In the case of Blanca Diamonds (Pvt) Limited v.Wilfred Van Els and Two Others the Court highlighted this contractualobligation which a party enters into with the Court, requiring the needto disclose uberrima tides and disclose all material facts fully andfrankly to Court. Any party who misleads Court, misrepresents facts 250to Court or utters falsehood in Court will not be entitled to obtainredress from Court. It is a well-established proposition of law, sinceCourts expect a party seeking relief to be frank and open with theCourt. This principle has been applied even in an application that hasbeen made to challenge a decision made without jurisdiction. Further,Court will not go into the merits of the case in such situations. VideRex v. Kensington Income Tax Commissioners; Princess Edmond DePolignac. This principle of uberrima tides has been applied not onlyin writ cases where discretionary relief is sought from Court, but evenin Admiralty cases involving the grant of injunctions. In the case of260Castelli v. Cook, the Vice-Chancellor Sir James Wigram consideredthis proposition and stated as follows :
"The rule, as I understand it, is this : that a plaintiff applyingex parte comes under a contract with the Court. He will state thewhole case fully and fairly to the Court. If he fails to do that, andthe Court finds, when the other party applies to dissolve the
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injunction that any material fact has been suppressed or notproperly brought forward, the plaintiff is told that the Court willnot decide bn the merits, and that, as he has broken faith withthe Court, the injunction must go.11271
It would appear, therefore, that the petitioner in this application hadwilfully suppressed material facts from Court by withholding his ownletter 1 R8 datbd 10. 07. 2000 and by non-disclosure of his applicationto the Court of Appeal seeking identical relief.
In the result,' on both these aforesaid points, I hold that the petitionerhas failed to make a full and frank disclosure of all material facts.Hence, by this conduct the petitioner had violated his contractualobligation to Court to disclose uberrima tides.
In the circumstances, I uphold the two preliminary objections raisedin this application. Accordingly, I proceed to dismiss and reject the 280application in limine with costs fixed at Rs. 10,000.
GUNASEKERA, J. – I agree.EDUSSURIYA, J. – I agree.
Application rejected.