002-NLR-NLR-V-80-MALCOM-PERERA-J.–Sirisena-and-Others-V.-Kobbekaduwa-Minister-of-Agriculture-.pdf
36
New Law Reports
(1978) Vol. 80 NLR.
Malcolm Perera, j.
At the outset I shall deal with the question as to whether this Bench ofnine Judges has the jurisdiction to hear and determine the matters that arebefore it. The question of jurisdiction has been raised by Mr. Jayewardeneand he contended that there have been certain irregularities in the manner inwhich these cases have come up before this Court by way of revision. Hesubmitted, therefore, that all subsequent steps that have been taken leadingup to the constitution of the present Bench were illegal.
An examination of the record shows that on the 14th of June, 1974, anapplication has been made by Mr. Jayewardene and Mr. Thiruchelvam beforeAlles, A.C.J., Vythialingam, J. and Gunasekera, J. for the exercise of thepowers of the Chief Justice under section 14(3) (c) of the Administration ofJustice Law No. 44 of 1973 in regard to S.C. Applications GEN/1 to 16 forthe constitution of a Bench of five or more Judges since the matters referredto therein are of public and general importance.
On the 18th of June, after hearing Mr. Jayewardene, Mr. Thiruchelvamand Mr. Siva Pasupathi, Acting Solicitor-General, Alles, A.C.J. directed thatthese cases be listed for hearing on the 8th July, 1974, before a Bench of nineJudges as the matters in dispute are of general and public importance.
Since the direction of the learned Acting Chief Justice is proper and valid,I hold that the jurisdiction of this Bench to hear and determine the mattersbefore it cannot be challenged.
In this situation, I think it is a fruitless exercise to examine the question ofthe alleged irregularities referred to by the learned Attorney. However in thecourse of his submissions, Mr. Jayewardene, amongst other matters, didadvert to section 7 of the Administration of Justice Law which reads asfollows:
“The sittings of every Court shall be held in public, and all persons shall
be entitled freely to attend such sittings. A Judge may, however, in his
discretion, whenever he considers it desirable –
in any proceedings relating to family relations,
in any proceedings relating to sexual offences, or
in the interests of order and security within the Court premisesexclude therefrom such persons as are not directly interested in theproceedings therein.”
It is the duty of Court that its sittings shall ordinarily be held in public andall persons shall freely have access to attend such sittings, except in cases
sc
MALCOLM PERERA, J. – Sirisena and Others v. Kobbekaduwa,
Minister of Agriculture and Lands
37
where the Court, for good reasons, exclude from it those persons who are notdirectly interested in the proceedings.
The calling for records and examining them are matters ancillary to theexercise of judicial power. They do not themselves constitute judicial actswhich ought to be performed at public sittings of Court.
The next question that I have to determine is whether, by virtue of theprovisions of section 24 of the Interpretation Ordinance Amendment Act,No. 18 of 1972, an injunction would not be available under all circumstancesagainst a Minister of State or an officer of State. It has been contended moststrenuously by learned Attorneys for the Plaintiffs/Petitioner in theseApplications that the preclusive provision does not apply to any act whichhas been done in bad faith. Mr. Jayewardene, who spearheaded thearguments submitted that the preclusion contained in section 24 is limited inits application to only such acts as are described in the words, "… in respectof any act done or intended or about to be done by any such person orauthority in the exercise of any power or authority vested by law in any suchperson or authority”, in section 24. He submitted that this “limitation clause”requires close examination.
On the other hand, the learned Acting Solicitor-General who appeared forthe Honourable Minister submitted that the language in section 24 precludesthe Court from granting an injunction, either permanent or interim, againstthe Minister whatever in law be the nature of his act.
. Section 24 reads as follows:
i
“24. (1) Nothing in any enactment, whether passed or made before orafter the commencement of this Ordinance, shall be construed toconfer on any Court, in any action or other civil proceedings, thepower to grant an injunction or make an order for specific performanceagainst the Crown, a Minister, a Parliamentary Secretary, the JudicialService Commission, the Public Service Commission, or any memberor officer of such Commission, in respect of any act done or intendedor about to be done by any such person or authority in the exercise ofany power or authority vested by law in any such person or authority.
Provided, however, that the preceding provisions of this subsectionshall not be deemed to affect the power of such Court to make, in lieuthereof, an order declaratory of rights of parties. 2
(2) No Court shall in any civil proceeding grant any injunction ormake an order against an officer of the Crown if the granting of theinjunction or the making of the order would be to give relief againstthe Crown which could not have been obtained in proceedings againstthe Crown.”
38
New Law Reports
(1978) VoL 80 N.L.R.
In interpreting an enactment, I think “the safer and the more correctcourse of dealing with a question of construction is to take the wordsthemselves and arrive, if possible, at their meaning without, in the first place,reference to cases” — vide Barrell v. Fordree, 22 per Warrington, L.J.
The rule of construction is “to intend the Legislature to have meant whatthey have actually expressed”. (Maxwell Interpretation of Statutes, 11thedition, page 4) Said Jervis, C.J. in Mattison v. Hart23 “We ought … give anAct of Parliament the plain, fair, literal meaning of its words. Where we donot see from its scope that such meaning would be inconsistent or would leadto manifest injustice.” (vide Maxwell page 6).
An accepted rule of interpretation with regard to preclusive clauses andexclusionary provisions of which I am ever mindful is that they must be verystrictly construed. In the case of Hirdaramani v. Ratnavale 24 Silva, S.P.J. (ashe then was) stated: “It is a well established rule of construction that statutesas well as subsidiary legislation, which have the effect of infringing on theliberty of the subject must be very strictly construed. It behoves the Court,therefore, in interpreting the above provisions, to examine very carefullywhether, in the final form in which they appear, precluded inquiry by theCourt. It is beyond argument that the Courts can inquire into a complaint byan aggrieved party, in the first instance, that any particular rule, regulation orby-law is ultra vires, or that an enactment or rule has been misapplied in hiscase. It is also undoubtedly the duty of the Court, after such inquiry, either topronounce on the validity of the rule or regulation, or, where the validity isnot in doubt, to decide, inter alia, whether any power conferred on theexecutive by such rule or regulation has been exercised in terms of suchprovision strictly construed. In this case, Counsel for the appellant does noteven contend that the Permanent Secretary, in terms or regulation 18(1) hasno power to make an order of detention, nor does he contend that the Court’spowers to question an order are not taken away by regulation 18(10) andregulation 35. His only contention is that such an order should be validlymade, and when made, only then will the provisions contained in regulation18(10) and regulation 55 preclude a Court from calling such order inquestion. For such an order to be validly made, the Permanent Secretarymust, in my view, form an opinion on good faith, as he appears to have donein this case; and in forming such an opinion he may even take an incorrectdecision by reason of wrong judgment on his part; but such an incorrectdecision is not justiciable by reason of the provisions of section 8 ofthe Public Security Ordinance and regulation 18(10), and in the instant case,
(1932) A.C. 676 ai 682.(1854)23 L.J.C.P. 108.
(1971)75 N.L.R. 67 ai 104.
sc
MALCOLM PERERA, J. – Sirisena and Others v. Kobbekaduwa,
Minister of Agriculture and Lands
39
also by reason of regulation 55. If, of course, he acts in bad faith in makingan order under regulation 18(1), the provisions taking away the right of theCourt to call the order in question would not apply. On a very simpleanalysis of the language involved in this regulation, it seems to me that insuch an event the Court’s jurisdiction to interfere remains untouchedbecause, when the Permanent Secretary acts in bad faith, he has obviouslynot made the order for detention because he is of the opinion that the personin respect of whom the order is made is likely to act in a manner prejudicialto the public safety and that he should be prevented from so acting becausethe Permanent Secretary has some other obvious reason. Many such reasonscan be imagined, the simplest of which is that the officer is actuated by apersonal motive.” These words, I think, are apposite to the present case.
Further, in construing enactments which contain preclusive provisionslike the one found in section 24, there are certain implied exceptions whichmust be considered with great care by the Court. In the case of AnisminicLtd. v. Foreign Compensation Commission and Another, {supra) LordWilberforce said; “In every case whatever the character of a tribunal,however wide the range of questions remitted to it, however great thepermissible margin of mistake, the essential point remains that the tribunalhas a derived authority, derived, that is from statute, at some point, and to befound from a consideration of the legislation the field within which itoperates is marked out and limited. There is always an area narrow or widewhich is the tribunal’s area, a residual area wide or narrow in which thelegislature has previously expressed its will and into which the tribunal maynot enter. Equally, though this is not something that arises in the present case,there are certain fundamental assumptions which, without explicitrestatement in every case, necessarily underlie the remission of power todecide such as (I do not attempt more than a general reference, since thestrength and the shade of these matters will depend on the nature of thetribunal and the kind of question it has to decide) the requirement that adecision must be made in accordance with the principles of naturaljustice and good faith.
In the case of Hirdaramani v. Rainavale (supra at 106) Silva, S.P.J. stated:“It will thus be that mala fides be an implied exception to anyexclusionary provisions of this nature which, on the face of it, precludesa court from questioning the validity of an order made thereunder.
When the subject complains to Court of an order restraining his libertytherefore a court is obliged not merely to take a look at the face of the order,but to go behind it and satisfy itself whether it has been validly made. It willbe most uncharitable to the legislature of a country in any part of the world
40
New Law Reports
(1978) Vol. 80N.LR.
for a court to hold that, in enacting provision similar to those underconsideration, its intention was to preclude a court from examining an ordermade under circumstances such as those I have endeavoured to illustrate. Soto do would expose the courts to the criticism of interpreting the provisionnot in accordance with a reasonable intention of the legislature, but in theteeth of it.”
Thus, the Court will imply limitations into an ostensible unfettered grantof power. Corruption, fraud or absence of good faith, though they may not bespecifically stated in the enactment, are always deemed to be impliedexceptions. It is stated in Maxwell: “Enactments which confer powers areso construed as to meet all attempts to abuse them, either by exercisingthem in cases not intended by the statute or by refusing to exercise themwhen the occasion for their exercise has arisen. Though the act done wasostensibly in the execution of statutory power and within its letter, it wouldnevertheless be held not to come within the power if done otherwise thanhonestly and in the spirit of the enactment. (Pages 116-117).
It was submitted by the learned Solicitor-General that no statute can beinterpreted in the abstract without considering the surroundingcircumstances. He submitted that the intention of Parliament must beascertained, for which purpose he invited Court to examine the speech madeby the Honourable Felix R. Dias Bandaranaike, much of which he read out inCourt, and the speech of the Honourable Dr. Colvin R. de Silva.
I must confess that I am unwilling to embark on a hazardous voyage ofdiscovery on the tempestuous sea of Parliamentary speeches seeking toascertain the intention of the legislature. “Intention of the legislature is acommon but very slippery phrase which, popularly understood, may signifyanything from intention embodied in positive enactment to speculativeopinion as to what the legislature probably could have meant, although therehas been an omission to enact it. In a Court of Law or equity what thelegislature intended to be done or not to be done can only be legitimatelyascertained from what it has chosen to enact, either in express words or byreasonable and necessary implication.” Salomon v. A. Salomon & Co. Ltd. 25.
Says Caries: “The meaning which words ought to be understood to bear isnot to be ascertained by any process akin to speculation; the primary duty ofa court of law is to find a natural meaning of words used in the context inwhich they occur, that context including any other phrase in the Act whichmay throw light on the sense in which the makers of the Act used the wordsin dispute.” (Statute Law, 7th Edition, page 66).
“(1897) A.C. 22 al 38.
sc
MALCOLM PERERA, J. – Sirisena and Others v. Kobbekadima,
Minister of Agriculture and Lands
41
I think the duty of the Court is to interpret strictly the words thatParliament has used. Even if the words are ambiguous, Court’s power totravel outside those words on a voyage of discovery is strictly restricted. I donot think it is desirable for a court to attempt to ascertain what Parliamentintended by examining the Parliamentary speech of a Minister, for what aMinister intended may not always be what the Parliament intended. What theParliament intended should be gathered from the plain words of the Act. Inthe case of Magor and St. Mellons Rural District Council v. New PortCorporation,16 Lord Simonds said: "… nor should I have thought it necessaryto add any observation of my own were it not that the dissenting opinion ofDenning, L.J. appears to invite some comment.
My Lords, the criticism which I venture to make of the judgment of thelearned Lord Justice is not directed at the conclusion that he reached. It isafter all a trite saying that on question of construction different minds maycome to different conclusions, and I am content to say that I agree with mynoble and learned friend. But, it is on the approach of the Lord Justice towhat is a question of construction and nothing else that I think it desirable tomake some comment, for, at a time when so large a proportion of the casesthat are brought before the Courts depend on the construction of modernstatutes, it would not be right for this house to pass unnoticed thepropositions which the learned Lord Justice lays down for the guidance ofhimself and, presumably, of others. He said:
“We sit here to find out the intention of Parliament and of Ministers andcarry it out, and we do this better by filling in the gaps and making senseof the enactment than by opening it up to destructive analysis.”2>a
The first part of this passage appears to be an echo of what was said inHeydon’s case three hundred years ago, and, so regarded, is notobjectionable. But, the way in which the learned Lord Justice summarises thebroad rules laid down by Sir Edward Coke in that case may well inducegraye misconception of the function of the Court. The part which is played inthe judicial interpretation of a statute by reference to the circumstances of itspassing is too well known to need restatement. It is sufficient to say that thegeneral proposition that it is the duty of the Court to find out the intention ofParliament – and not only of Parliament but of Ministers also – cannot byany means be supported. The duty of the Court is to interpret the wordsthat the legislature has used.”
26 (1951) 2 All E.R. 839 at 841.
(1950) 2 All E.R. 839 at 1236.
42
New Law Reports
(1978) Vol. 80N.L.R.
Mr. Jayewardene, on the other hand, requested Court to scrutinize thecorresponding provisions contained in the Interpretation (Amendment) Bill. Iam not inclined to follow this course either. I am not unmindful that in thecase of de Costa v. Bank of Ceylon 3 Court departed from the rule that resortto a Statement of “Objects and Reasons should not ordinarily be made wheninterpreting a statute. In that case Fernando, C.J. stated: “The legislature inenacting the Ordinance of 1927 stated in the long title its purpose ‘to declarethe law relating to bills of exchange, cheques, banker’s drafts and promissorynotes’. A statement of the same purpose was contained in the Statement ofObjects and Reasons which was appended to the draft Ordinance in theGazette No. 7539 of July 30, 1926 (Part II). This Statement included as areason for introducing the draft Ordinance the fact that Judges-of our Courtsdid not readily have available copies of the English Bills of Exchange Act,which, at that stage, was the law which those Judges had to apply. Sounusual a reason for the introduction of a draft Ordinance which professed todeclare the law would justify a departure from the rule that resort to aStatement of Objects and Reasons should not ordinarily be made whenconstructing a statute; but I reply on the Statement in this instance only forthe lesser purpose of underlining the legislature’s intention to declare thelaw”. But, in the present case, I think the language of the section is simple,plain and crystal clear. Hence, I prefer to be guided by the words of LordHalsbury: “I very heartily concur in the language of Fitz Gibbon, LJ. that wecannot interpret the Act by any reference to the Bill, nor can we determine itsconstruction by any reference to its original form” – (Herron v. RathminesCommissioners 2S) and Rathgar Improvement.
On an analysis of section 24, it appears to me that the key words in thelimitation clause are “in the exercise of any power or authority”. For thepreclusive clause to take effect the exercise of a power by the Minister mustbe real or genuine as opposed to a purported exercise of power.Mr. Pullenayagam, in his forceful though concise submissions, stated that theexercise of power by the Minister must be genuine and not mere ostensibleuse of power. It was his submission that an ostensible exercise of power hasovertones of mala fide. He contended that the Court must be vigilant toascertain whether the Minister’s exercise of power was real. He drewattention to section 22 where the words, “in the exercise of apparent exerciseof the power …”, occur. It was his contention that if the legislature intendedto cover purported exercise of power in section 24, the legislature wouldhave explicitly stated so as it has done in section 22. Neither the brevity ofhis submissions nor the frugal consumption of the time of Court by himlessened the force or the persuasiveness of Mr. Pullenayagam’s arguments.I am inclined to assent to his submission.
(1969) 72N.L.R. 457 ai 470.
(1892) A.C. 498 at 501.
sc
MALCOLM PERERA, J. – Sirisena and Others v. Kobbekaduwa,
Minister of Agriculture and Lands
43
“In the case of Anisminic Ltd. v. The Foreign Compensation Commissionand Another (supra), the following words of section 4 (iv) of the ForeignCompensation Act 1950 came up for consideration. “The determinationby the Commission of any application made to them under this Act shallnot be called in question in any Court of Law”. The Commissionmaintained that the above words are plain and capable of having only onemeaning. “Here is determination which is apparently valid; there isnothing on the face of the document to cast any doubts on its validity. If itis a nullity that could only be established by raising some kind ofproceedings in Court. But that would be calling the determination inquestion, and that is, expressly prohibited by the statute”. On the otherhand, it was the contention of the Appellants that ‘determination’ meant areal determination and did not include an apparent or, purporteddetermination which, in the eyes of the law, has no existence because it isa nullity. “Or, putting it in another way, if one seeks to show that thedetermination is a nullity, one is not questioning the purported determination- one is maintaining that it does not exist as a determination”. On an analysisof section 4(iv) of the Foreign Compensation Act, Lord Pearce had this tosay… “It has been argued that Your Lordships should construe‘determination’ as meaning anything which is on its face a determinationof the Commission including even a purported determination which hasno jurisdiction. It would seem that on such an argument, the Court mustaccept and could not even inquire whether a purported determination wasa forged or inaccurate order which did not represent that which theCommission had really decided. Moreover, it would mean that howeverfar the Commission ranged outside their jurisdiction, or that which theywere required to do, or however far they departed from natural justice,their determination could not be questioned. A more reasonable and logicalconstruction is that by ‘determination’, Parliament meant areal determination, not a purported determination. On theassumption, however, that either meaning is a possible construction andthat therefore the word ‘determination’ is ambiguous, the latter meaningwould accord with a long established line of cases which adopted thatconstruction. One must assume that Parliament in 1950 had cognizance ofthese in adopting the words used in section 4(iv)”.
The learned Solicitor-General submitted that section 22 removed thejurisdiction of the Court, whereas in section 24, there was only theremoval of one remedy. That being so, he submitted that when thelegislature used the words “in the exercise of any power or authority” insection 24, it also covered purported exercise of power. It was hissubmission that the word ‘purported’ is implied in section 24. I am of
44
New Law Reports
(1978) Vol. 80 N.LR.
the view that a literal reading of section 24 does produce an intelligibleresult and there can be no ground for reading any words or alteringwords or changing words according to what may be the supposedintention of Parliament. “It is but a corollary to the general rule ofliteral construction that nothing is to be added to or to be taken from astatute, unless there are similar adequate grounds to justify the inferencethat the legislature intended something which it omitted to express”.(Maxwell, page 12) “It is a wrong thing to read into an Act ofParliament words which are not there, and in the absence of clearnecessity it is wrong thing to do”. (Thompson v. Goold M) “We arenot entitled to read words into an Act of Parliament unless clear reasonfor it is to be found within the four corners of the Act itself’. (Vickersv. Evans 30) I do not see any good reason within the four corners of theAct, No. 18 of 1972 to read words into it. “Words plainly should not beadded by implication into statute unless it is necessary to do so to givethe language sense and meaning in its context.
To read in any word to the crystal clear language of section 24, “itappears to me a naked usurpation of the legislative function under thethin guise of interpretation”.
To assent to the submission of the learned Solicitor-General wouldinvolve me in the unhallowed task of usurping the function of the legislature.I must confess that I shrink from interposing my hand to fillin gaps that are supposed to exist in section 24. If, in fact, such a gap isdiscovered, the remedy is solely in the hands of the legislature by wayof an amending Act.
The learned Solicitor-General most strongly relied on the majoritydecision in the case of Smith v. East Elloe Rural District Council andOthers, (supra). In that case, “The appellant was the owner of land and adwelling-house in respect of which a compulsory purchase order wasmade and confirmed in 1948. In 1954 the appellant commenced anaction against the Rural District Council who made the order against P,the clerk to the Rural District Council, and against the Ministry ofHealth who confirmed the order, and, the Ministry’s successors, theMinistry of Housing and Local Government, claiming against theCouncil and the Ministry declarations that the compulsory purchaseorder was made or confirmed wrongfully and in bad faith, and againstP, a declaration that he wrongfully and in bad faith procuredcompulsory purchase order and its confirmation and damages. Thedefendants applied to have the writ and all subsequent proceedings setaside for lack of jurisdiction on the ground that under the Acquisitionof Land (Authorisation Procedure) Act, 1946, Sch. 1, Part 4, para 16
(1910) A.C. 409 at 420.
"(1910) A.C. 444.
sc
MALCOLM PERERA, L – Sirisena and Others v. Kobbekaduwa,
Minister of Agriculture and Lands
45
which reads: “Subject to the provisions of the last foregoing paragraph, acompulsory purchase order or a certificate under Part 3 of this Scheduleshall not, either before or after it has been confirmed, made or given bequestioned in any legal proceedings whatsoever, and shall becomeoperative on the date on which notice is first published as mentioned in thelast foregoing paragraph”.
Viscount Simonds said: “In this House a more serious argument wasdeveloped. It was that as the compulsory purchase order was challenged onthe ground that it had been made and conferred wrongfully and in badfaith, paragraph 16 had no application. It was said that that paragraph,however general its language, must be construed so as not to oust thejurisdiction of the Court where the good faith of the Local Authority or theMinistry was impugned and put in issue. Learned Counsel for the appellantmade his submission very clear. It was that where the words “compulsorypurchase order” occur in these paragraphs they are to be read as if the wordsmade in good faith” were added to them.
My Lords, I think that anyone bred in the tradition of the law is likely toregard with little sympathy legislative provisions for ousting jurisdictions ofthe courts whether in order that the subject may be deprived altogetherof remedy, or in order that his grievance may be remitted to some othertribunal. But, it is our plain duty, to give the words of an Act their propermeaning, and, for my part, I find it quite impossible to qualify the words ofthe paragraph in the manner suggested. It may be that the legislature hadnot in mind the possibility of an order made by a Local Authority in badfaith, or even the possibility of an order made in good faith beingmistakenly, capriciously or wantonly challenged. This is a matter ofspeculation. What is abundantly clear is that the words which are used arewide enough to cover any kind of challenge which any aggrieved person maythink fit to make. I cannot think of any wider words. Any additionwould be mere tautology. But, it is said, let those general words be giventheir full scope and effect, yet they are not applicable to an order made inbad faith. But, My Lords, no one can suppose that an order bears on itsface the evidence of bad faith. It cannot be predicated of any order that it hasbeen made in bad faith until it has been tested in legal proceedings, andit is just that test which para 16 bars. How, then, can it be said that anyqualification can be introduced to limit the meaning of the words? Whatelse can “compulsory purchase order” mean but an act apparently valid in thelaw, formally authorised, made and confirmed?
It was urged by learned Counsel for the appellant that there is a deep-rooted principle that the legislature cannot be assumed to oust thejurisdiction of the Court, particularly where fraud is alleged, exceptby clear words, and a number of cases were cited in which the Court has
46
New Law Reports
(I97S) Vol. 80N.LR.
asserted its jurisdiction to examine into an alleged abuse of statutory,power, and if necessary, correct it. Reference was made too to Maxwellon Interpretation of Statutes (10th Edition) to support the view, broadlystated, that a statute is, if possible, so to be construed as to avoidinjustice. My Lord, I do not refer in detail to these authorities onlybecause it appears to me that they do not override the first of allprinciples of construction that plain words must be given their plainmeaning. There is nothing ambiguous about para 16: there is noalternative construction that can be given to it; there is, in fact, nojustification for the introduction of limiting words such as “if madein good faith”, and there is the less reason for doing so when these wordswould have the effect of depriving the express words “in any legalproceedings whatsoever” of their full meaning and content.
Lord Reid, in his dissentient judgment, quoted with approval thedictum of Lord Greene in the case of Associated Provincial PictureHouses Ltd. v. Wednesbury Corporation: 31 “The exercise of suchdiscretion must be a real exercise of discretion”.
Lord Reid went on to say: “In my judgment para 16 is clearlyintended to exclude, and does exclude, entirely all cases of misuse ofpower in bona fide. But, does it also exclude the small minority ofcases where deliberate dishonesty, corruption or malice is involved?In every class of case that I can think of the Courts have always heldthat the general words are not to be read as enabling a deliberatewrongdoer to take advantage of his own dishonesty. Are the principlesof statutory construction so rigid that these general words must be soread here? Of course, if there were any other indications in the statute ofsuch an intention beyond the mere generality of the words that would beconclusive; but I can find none.
In his dissentient judgment, Lord Somervell of Harrow said: Ultravires and mala fides are, prinia facie, matters for the courts. If thejurisdiction of the courts is to be ousted, it must be done by plain words.
'Mala fides' is a phrase often used in relation to the exercise ofstatutory powers. It has never been precisely defined as its effects havehappily remained mainly in the region of hypothetical cases. It coversfraud or corruption. As the respondents have moved before the badfaith has been particularised, one must assume the worst. It has beensaid that bad faith is an example of ultra vires and observations to thiseffect are relied on by the respondents in support of their submission31 (1947) 2 All E.R. 680.
sc
MALCOLM PERERA, J. -Sirisena and Others v. Kobbekaduwa,
Minister of Agriculture and Lands
47
that the words “not empowered to be granted” in para 15 of Schedule 1 tothe Act cover cases where fraud or corruption is relied on, although, onthe face of it, there is no irregularity. The following passages fromWarrington, L.J. in Short v. Poole Corporation32 is perhaps the mostfavourable to this argument:
“My view then is that the only case in which the Court caninterfere with an act of a public body which is, on the face of it,regular and within its powers, is when it is proved to be in fact ultravires, and that the references in the judgments in the several casescited in argument to bad faith, corruption, alien and irrelevantmotives, collateral and indirect objects and so forth are merelyintended when properly understood as examples of matters which, ifproved to exist, might establish the ultra vires character of the actin question”.
This way of describing the effect of bad faith should not be used to blurthe distinction between an ultra vires act done bona fide and an act onthe face of it regular but which will be held to be null and void if malafides is discovered and brought before the court. The division in law isclear and deep.
In the Anisminic case (supra) Lord Reid stated that the East Elloe case(supra) gave most difficulty. He, however, expressed the view that he “cannotregard it as a satisfactory case”. Lord Reid went on to say: “I would haveexpected to find something more specific than the bald statement that adetermination shall not be called in question in any court of law.Undoubtedly, such a provision protects every determination which is not anullity. But I do not think that it is necessary or even reasonable to construethe word ‘determination’ as including everything which purports to be adetermination but which is in fact no determination at all and there are nodegrees of nullity. There are a number of reasons why the law will hold apurported decision to be a nullity … I have come without hesitation to theconclusion that in this case we are not prevented from inquiring whether theorder of the Commission was a nullity.
Sometimes anterior to the House of Lords decision of the Anisminiccase, the Supreme Court of India in the case of Somawanti v. The Stateof Punjab 33, declined to be persuaded by the decision of the East Elloecase. The Indian case was one in regard to acquisition proceedings undertheir Land Acquisition Act. The question arose ujhether the declarationof the Government under section 6(1) of the Act that the land was required
)! (1926) 6 Ch. 66 at 91.
”(1963) A.I.R. S.C. 151.
48
New Law Reports
(1978) Vol. 80N.LR.
for a public purpose was final. It was pointed out that it was for theGovernment to be satisfied in a particular case that the purpose for which theland was needed was a public purpose and the declaration of the Governmentunder section 6(1) of the Act will be final, subject, however, to oneexception, namely – In the case of colourable exercise of the power, thedeclaration is open to challenge at the instance of the aggrieved party.The Power conferred on the Government by the Act is a limited power in thesense that it can be exercised only where it is for a public purpose … If itappears that what the Government is satisfied about is not a publicpurpose but a private purpose or no purpose at all, the action of theGovernment would be colourable as being outside the power conferredupon it by the Act and its declaration under section 6 of the Act will be anullity. “The question whether a particular action was the result of fraud ornot is always justiciable. The condition for the exercise of the power by theState Government is the exercise of a public purpose, and if the Governmentmakes a declaration under section 6(1) in fraud of the powers conferred uponit by that section, the satisfaction on which the declaration is made is notabout a matter with respect to which it is required to be satisfied by theprovision and therefore its declaration is open to challenge as beingwithout any legal effect”. (Vide also Raja Anand v. The State of UttarPradesh M).
I have quoted extensively from the East Elloe case and the Anisminic caseas Counsel on both sides have made repeated reference to those cases in thecourse of their arguments. I find myself unable to regard the East Elloe caseas a reliable solvent of the question that arises in the present case, nor is thatcase a very satisfactory one as stated by Lord Reid. S.
S. A. de Smith says: “If a discretionary power has been exercised for anunauthorised purpose, it is generally immaterial whether its repository wasacting in good faith or in bad faith. But, where the Courts have disclaimedjurisdiction to determine whether the prescribed purposes have in fact beenpursued, because the relationship between the subject-matter of the power tobe exercised and those purposes is placed within the sole discretion of thecompetent authority (as where a power is exercisable if it appears to thatauthority, or expedient for the furtherance of those purposes), they have stillasserted jurisdiction to determine whether the authority has in goodfaith endeavoured to act in accordance with the prescribedpurposes”. (Judicial Review of Administrative Action, 2nd Edition,page 315).
(1967) A.I.R. Vol. 54.
sc
MALCOLM PERERA, J. – Sirisena and Others v. Kobbekaduwa,
Minister of Agriculture and Lands
49
In the case of Carltona Ltd. v. Commissioners of Works and Others 35,Regulation 51(1) of the Defence (General) Regulations came up forconsideration. The said Regulation reads as follows: “A CompetentAuthority, if it appears to that Authority to be necessary or expedient so to doin the interests of public safety, the defence of the realm, or the efficientprosecution of the war, or for maintaining supplies and services essential tothe life of the community, may take possession of any land and may givesuch directions as appear to the Competent Authority to be necessary orexpedient in connection with the taking of possession of land”. The court ofAppeal held that Parliament has committed to the executive discretion ofdeciding when an order for the requisition of premises should be made underthe regulation, and with the discretion , if bona fide exercised, no Court couldinterfere. Lord Greene M. R. stated: “It has been decided as clearly asanything can be decided that where a regulation of this kind commits to anexecutive authority the decision of what is necessary or expedient and thatauthority makes that decision, it is incompetent to the Courts to investigatethe grounds or the reasonableness of the decision in the absence of anallegation of bad faith. If it were not so it would mean that the Courtswould be made responsible for carrying the executive government of thiscountry on these important matters, Parliament, which authorises theseregulations, commits to the executive the discretion to decide, and with thatdiscretion, if bona fide exercised, no Court can interfere. All that the Courtdoes is to see that the power which it is claimed to exercise is one which fallswithin the four corners of the powers given by the legislature and to see thatthose powers are exercised in good faith”.
In the case of David v. Abdul Cader 36, the Privy Council held that anapplicant for a statutory licence is entitled to damages if there has beena malicious misuse of the statutory power to grant the licence. ViscountRadcliffe stated: “In Their Lordships’ opinion, it would not be correcttoday to treat it as establishing any wide general principle in this field;certainly it would not be correct to treat it as sufficient to found theproposition, as asserted here, that an applicant for a statutory'licencecan in no circumstances have a right to damages if there has been a maliciousmisuse of the statutory power to grant the licence, muchmust turn in such cases on what may prove to be the facts of the allegedmisuse and in what the malice is found to consist. The presence of spiteor ill-will may be insufficient in itself to render actionable a decisionwhich has been based on unexceptionable grounds of consideration andhas not been vitiated by the badness of the motive. But a ‘malicious’
(1943)2 All E.R. 560.
(1965) 65 N.L.R. 253 at 257.
50
New Law Reports
(1978) Vol. 80 N.L.R.
misuse of authority, such as is pleaded by the appellant in his plaint, maycover a set of circumstances which go beyond the presence of ill-will, and inTheir Lordships’ view it is only after the facts of malice relied upon by aplaintiff have been properly ascertained that it is possible to say in a case ofthis sort whether or not there has been any actionable breach of duty.
In Canadian case of Roncarelli v. Duplessis, (supra) Rand J. said: “Thefield of licensed occcupations and business of this nature is steadilybecoming of greater concern to citizens generally. It is a matter of vitalimportance that a public administration that can refuse to allow a person toenter or continue a calling which, in the absence of regulation, would be freeand legitimate, should be conducted with complete impartiality and integrity;and that the grounds for refusing or cancelling a permit shouldunquestionably be such and such only as are incompatible with the purposesenvisaged by the statute; the duty of a Commission is to serve those purposesand those only. A decision to deny or cancel such a privilege lies within the‘discretion’ of the Commission; but, that means that decision is to be basedupon a weighing of considerations pertinent to the object of theadministration.
In public regulation of this sort there is no such thing as absolute anduntrammelled ‘discretion’, that is, that action can be taken on any ground orfor any reason that can be suggested to the mind of the administrator; noLegislative Act can, without express language, be taken to contemplate anunlimited arbitrary power exercisable for any purpose, however capricious orirrelevant, regardless of the nature or purpose of the statute. Fraud andcorruption in the Commission may not be mentioned in such statutes, butthey are always implied as exceptions. ‘Discretion’ necessarily implies goodfaith in public duty; there is always a perspective within which a statute isintended to operate; and any clear departure from its lines or objects is just asobjectionable as fraud or corruption”.
In the case of Hirdaramani v. Ratnavale (supra), Samarawickrema, J.considered regulation 5 of the Emergency Regulations which reads thus:
“Section 45 of the Courts Ordinance shall not apply in regard to any
person detained or held in custody under any Emergency Regulation”.
*He said “Clause 55 refers to a ‘person detained in custody’; it does not state‘purported to be detained’ or ‘detained in custody under colour of anyEmergency Regulation’ ”. This takes away the right to habeas corpus. This isa valuable right for safeguarding individual liberty. A provision whichrestricts rights of this kind must be given no greater effect than the plain
sc
MALCOLM PERERA, J. – Sirisena and Others v. Kobbekaduwa,
Minister of Agriculture and Lands
51
meaning of the words require. In A.G. for Canada v. Mallei & Carey Ltd?the Privy Council construed a provision and held that it did empower thetalcing away of a right, but at page 450 Lord Radcliff stated the generalprinciples thus; “It is fair to say that there is a well-known general principlethat statutes which encroach upon the rights of the subject, whether asregards person or property, are subject to a strict construction; Most statutescan be shown to achieve such an encroachment in some form or another, andthe general principle means no more than that; where the import of someenactment is inconclusive or ambiguous, the Court may properly lean infavour of an interpretation that leaves private rights undisturbed ..
“I am, therefore, of the view that Regulation 55 will not apply to the caseof a person unlawfully detained under an invalid detention order made inabuse of the powers conferred by Regulation 18(1)”.
In the case of Gunasekera v. Ratnavale38, Wijayatilake, J. stated . . . Forinstance, if the Permanent Secretary has been misled by some subordinateofficer and in the result he makes an order which is clearly not in the publicinterest but to satisfy some private grudge, could it be said that the Court
has no jurisdiction to even look into an allegation of mala fide? I do not
jthink the East Elloe case stands in the way of arriving at the conclusion thatthis Court is not precluded from entertaining an application of this nature”.
. . In my opinion, the rules of interpretation in that case should not beextended to a case such as this where the right to question the order ischallenged and there is no question of prescription. On the other hand, theAnisminic case appears to be more in point although they were dealing withthe determination of a tribunal”.
In the Indian case of Pratap Singh v. State of Punjab™, the Supreme Courtremarked: “The two grounds of ultra vires and mala fides are thus mostinextricably mixed. To regard it as a question of ultra vires, the question is.what is the nature of the power which has been granted to achieve a definiteobject? in which case it would be conditioned by the purpose for which itis vested. . . The nature of the power thus discloses the purpose. In thiscontext, the use of that power for achieving an alien purpose — wreaking theMinister’s vengeance on the officer would be mala fide and a colourableexercise of that power and would therefore be struck down by the Courts”.
(1952) A.C. 427.
(1972) 76 N.L.R. 316 at 345.
(1964)51 A.I.R. 72.
52
New Law Reports
(1978) Vol. 80 N.LR.
In the South African case of the Minister of Justice and Law and Orderand Attorney-General v. Masarunva and Others^0, Quenet, J.P. said: “In aword in exercising the first power the 1st respondent was not influencedsimply by a desire to give effect to the purposes of section 50, subsection1 (b). The desire was to achieve a result not contemplated by that section.
The only limitation upon the power which section 51 confers upon theMinister is that he will exercise it honestly and bona fide and without regardto any ulterior motive … In the present case it is conceded that the 1stappellant acted in good faith. Nor is it alleged that there was a want ofserious and honest consideration of the matter, but it is said, and I thinkrightly, that there was an ulterior motive which substantially afTects hisposition — a desire to bring about a result not contemplated by section 50 ofthe Act”. In the case of the African Reality Trust Ltd. v. JohannesburgMunicipality'", the following words quoted by Wessels, J. in his judgmentare very helpful: “If a public body or an individual exceeds its powers, thecourt will exercise a restraining influence. And if, while ostensibly confiningitself within the scope of its powers, it nevertheless acts mala fide ordishonestly, or for ulterior reasons which ought not to influnce its judgment,or with an unreasonableness so gross as to be inexplicable, except on theassumption of mala fides or ulterior motive, then again the court willinterfere. But, once a decision has been honestly and fairly arrived at upon apoint which lies within the discretions of the body or person who has decidedit, then the court has no functions whatever. It has more power than a privateindividual would have to interfere with the decision merely because it is notone at which would have itself arrived.
Mr. Jayewardene submitted that the language used in section 88 of thePolice Ordinance is almost identical with the limitation clause in section24(1). Section 88 of Cap. 53 reads as follows:
“88. All actions and prosecutions against any person which may belawfully brought for anything done or intended to be done under theprovisions of this Ordinance, or under the general police powers herebygiven, shall be commenced within three months after the act complainedof shall have been committed, and not otherwise; and notice in writingof such action and of the cause thereof shall be given to the defendant,or to the principal officer of the district in which the act was committed,one month at least before the commencement of the action; and noplaintiff shall recover in any such action if tender of sufficient amendsshall have been made before such action brought or if a sufficient sum ofmoney shall have been paid into court after such action brought, by oron behalf of the defendant”.
" (1964) 4 S.A.L.R. 209 at 224.
41 (1906) T.L.R. 908 ai913.
sc
MALCOLM PERERA, J. – Sirisena and Others v. Kobbekaduwa,
Minister of Agriculture and Lands
53
In the case of Perera v. Hansard, (supra), page 1, it was held that as thedefendant did not act bona fide in obtaining a warrant, therefore his act wasnot anything done or intended to be done under the provisions of theOrdinance, and in the result the defendant was not entitled to notice. Asimilar view was taken in the cases reported in 4 C.W.R. 258, 23 N.L.R. 192,and 29 N.L.R. 139. Mr. Jayewardene further submitted that section 461 ofthe Civil Procedure Code gives protection to the State as well as publicofficers in respect of acts done by them in their official capacity, as the CivilProcedure Code insists that notice of action must be given. Section 461 readsas follows:
“461. No action shall be instituted against the Attorney-General asrepresenting the Crown, or against a Minister, Parliamentary Secretary,or public officer in respect of an act purporting to be done by him in hisofficial capacity, until the expiration of one month next after notice inwriting has been delivered to such Attorney-General, Minister,Parliamentary Secretary, or officer (as the case may be), or left at hisoffice, stating the cause of action and the name and place of abode of theperson intending to institute the action and the relief which he claims;and the plaint in such action must contain a statement that such noticehas been delivered or left”.
It was the submission of Mr. Jayewardene that the Supreme Court hasinterpreted the qualifying words, “in respect of an act purported to be doneby him in his official capacity”, in the same manner as section 88 of thePolice Ordinance which excluded malicious acts. The cases of Appu Singhov. D. Aaron (supra); Abraham Appu v. Bandai2 Saranankara v. KapuralaAratchi 43, were cited in support of his contention. However, I find that in deSilva v. Ilangakoon, (supra) Basnayake, C.J. held that the section, in using theword ‘purport’ was made applicable to malicious acts as well. This view wasfollowed by Basnayake, C.J. in Ediriweera v. Wijesuriya14. In the case ofRatnaweera v. The Superintendent of Police45 , Wijewardena, C.J. stated(Obiter): “I wish to place on record my opinion that Appu Singho v. DonAaron (supra), 138, and Abraham Appu v Banda, (supra) have taken toorestricted a view of the scope of 461 when they laid down that the section didnot apply to a public officer acting mala fide”.
The learned Solicitor-General submitted that in construing a w.ord in anAct, caution is necessary in adopting the meaning ascribed to the word inother Acts. He relied on a passage from Craies on Statute Law, 7th Edition,page 164, which reads as follows: “It would be a new terror in theconstruction of Acts of Parliament if we were required to limit a word to anunnatural sense because in some Act, which is not incorporated or referredto, such an interpretation is given to it for the purposes of the Act alone”.
n 60 N.L.R 49.‘“(1958) 59 N.L.R. 447.
• « 3 C.W.R. 121.45 (1949) 51 N.L.R. 217.
54
New Law Reports
(1978) Vol. 80N.L.R.
A review of all the above-mentioned authorities clearly support theproposition that the powers conferred on the executive by statute must beexercised bona fide and for the public purpose for which the power wasconferred. The learned Solicitor-General did not seek to contend against it. Itwas his position that the legislature, far from rejecting this proposition,recognized when it provided the aggrieved party the right to have adeclaration in lieu of an injunction. It was his contention that any exercise ofpowers by the executive, be it bona fide or be it mala fide, was covered bysection 24 of the Interpretation (Amendment) Act. He strenuously arguedthat this was the intention of Parliament as there was no explicit limitation ofthe exercise of power. He went on to submit that during the past years a largenumber of acquisition proceedings were brought to a halt by the issue ofinterim injunctions obtained from our Courts on the ground that suchproceedings have been initiated by the mala fide exercise of power in thehope of delaying them. He stated that it was the intention of Parliament toput a stop to unfounded and frivolous applications for injunctions. Helamented that there were at the moment some sixty applications forinjunction awaiting disposal by the respective Courts. Our Courts generallydo not grant injunctions merely because a party has made an application. Asfar back as 1929 our Supreme Court held: “A party must have very' stronggrounds and put all necessary facts before the Court to obtain an interiminjunction on an ex parte application, and, even if granted, it should as ageneral rule only be to a certain date to allow notice to the other side.”(Jinadasa v. Weerasinghe,46 per Dalton, J.)
In Ceylon, an injunction has been a cherished remedy available to acitizen. It is a remedy sought when a perpetration of wrong resulting inirreparable damage or mischief is imminent. This remedy is obviouslyefficacious because the threatened wrong is prevented from taking place. TheCivil Courts of our land, in the exercise of their ordinary jurisdiction, havethe power to grant the remedy of an injunction (interim or permanent) incases where there is sufficient material before them to arrest a wrong that isthreatened. In the case of Buddadasa v. Nadarajah (supra) it was held that aninjunction was available to a petitioner “to restrain a public officer fromthreatening to do a wrongful act which purports to be within his statutorypowers, but is in fact outside them”. (Vide also Government Agent, NorthernProvince v. Kanagas unde ram." Thus, an injunction is a valuable remedyavailable to a citizen to prevent the abuse of power by the executive. In thecase of Ratwatte v. Minister of Lands, (supra) Samarawickreme, J. said: “Uponthe matters placed before this Court by the petitioners, the question ariseswhether in giving directions for these acquisitions, the 1st respondent,
“(1929)31 N.L.R. 33 at 34.
-’(1928)31 N.L.R. 115.
sc
MALCOLM PERERA, J. – Sirisena and Others v. Kobbekaduwa,
Minister of Agriculture and Lands
55
wittingly or unwittingly, gave effect to a design or plan by a politicalopponent of the petitioners which was calculated to protect the interests ofhimself and his relatives and cause loss and detriment to the petitioners; andif the 1st respondent did so, but acted unwittingly, whether the petitioners areentitled to relief. In order that an interim injunction may issue it is notnecessary that the Court should find a case which would entitle the plaintiffto relief at all events: it is quite sufficient if the Court finds a case whichshows that there is a substantial question to be investigated, and that mattersshould be preserved in status quo until that question can be finally disposedof.”
There is a strong leaning that exists against construing statutes so as tooust or restrict jurisdiction of Courts. Very clear words will be required tooust altogether or restrict the jurisdiction of Courts in matters concerning therights of citizens. A distinct, unequivocal and positive LegislativeEnactment is necessary for the purpose of taking away the jurisdiction ofCourts. One of the vital functions of our Courts is to safeguard the citizensfrom any abuse of power by the executive under the colour of official acts.“Vide Clinch v. Inland Revenue Commissioner**”. Enactments are notpresumed to interfere with the Court’s jurisdiction unless the Act expresslydeclares so. Acts of Parliament ought to be interpreted so as in no manner tointerfere with or prejudice the clear righj; of the citizen unless such right istaken away by explicit language.1
In my view such language is not found in section 24 of the Interpretation(Amendment) Act.
I like to remind myself of the words of Dias, A.C.J. in re Agnes Nona,49
“It is a characteristic feature of modern democratic government in theCommonwealth that unless a statute provides to the contrary,officials or others are not exempted from the jurisdiction of theordinary tribunals . . . Behind Parliamentary responsibility lies legalliability and the acts of ministers no less than the acts of subOrdianteofficials are made subject to the Rule of Law . .. and the ordinary Courtshave themselves jurisdiction to determine what is the extent of his legalpower and whether the order under which he acted were legal andvalid”.
In view of my findings I hold that section 24 of the Interpretation(Amendment) Act does not clothe the executive with a garment ofimmunity from being restrained in appropriate cases by injunction
(1973) 1 AIIE.R. 977.
" (1952) 53 N.L.R. 106 at 111.'
56
New Law Reports
(1978) Vol. 80 N.UR.
from interfering with the rights of the individuals. I think that theacquisition orders made by the Hon. Minister if they have not been doneby him in due and proper exercise of power and in good faith in terms ofthe Land Acquisition Act are not orders made in the real or genuineexercise of authority vested in him by law. In such circumstances section24 does not apply and the Courts are not precluded in any way fromprotecting the individual’s rights from being invaded by the executive. Insuch a situation the citizen is entitled to the remedy by way of aninjunction.
Mr. Jayewardene submitted that the restrictions placed in subsection 2of section 24 is subject to the limitations contained in subjection 1. I agreewith this submission. A public officer can be restrained by an injunctionwhen he acts outside the scope of the limitations contemplated insubsection 1 of section 24.
Mr. Tiruchelvam submitted that on an examination of section 24 itwould be seen that only a permanent injunction is contemplated as theproviso in section 24 deals with the granting of a declaratory order in lieuof the award of an injunction. In view of the above conclusions that I havearrived at I do not think it necessary to consider the submissions ofMr. Tiruchelvam. I
I hold that the orders made by the subordinate Courts are valid. Thenotices issued on the plaintiff-petitioners must be discharged and theRecords should be sent back to the respective Courts for inquiry or trial asthe case may be.