MENDIS v. ABEYSINGHE AND ANOTHER

028-SLLR-SLLR-1989-V-2-MENDIS-v.-ABEYSINGHE-AND-ANOTHER.pdf


262
Sri Lanka Law Reports
[1989) 2 Sri LR
MENDIS
v.ABEYSINGHE AND ANOTHER
SUPREME. COURTH. A. G. DE SILVA, J.
BANDARANAYAKE, J. AND FERNANDO, J.
S.C. APPEAL NO. 49/88 – CA (LA)
S.C. 24/88 – CA NO. 329/79 (F)
D.C. COLOMBO A/33/M:
4 AND 5 SEPTEMBER 1989.
Appeal – Leave to appeal – Grant of leave ex mero motu – Rules 35, 36(b) and 40of the Supreme Court Rules – Failure to comply with Rules 35(b) and 35(d) – Failureto show due diligence.
A reading of Article 128 of the Constitution shows that leave to appeal can be grantedby the Court of Appeal ex mero motu. Sometimes in the judgment itself, in anappropriate case, the Court of Appeal gives leave to appeal ex mero motu and it is forthe parties, if they so desire to avail themselves of such leave. In such a case theparties are not heard before leave ex mero motu is granted. An interpretation of Article128 taken with the Supreme Court Rules do not compel one to the view that oneshould read into them a procedure not provided for in them and make it obligatory, inall cases, whatever the circumstances, that the respondent should be heard beforeleave to appeal is granted by the Court of Appeal. There is not at this stage a finaldetermination affecting the rights of parties and the respondent would at a later stagebe heard and could then put forward all the material and arguments which he couldhave preferred at the hearing of the leave to appeal application. No injustice has beensuffered by him in not being heard at this stage. No doubt in an appropriate case theCourt would give-such an opportunity to the respondent if the circumstances warrantedsuch a step.
sc
Mendisv.Abeysinghe and Another '
263
In Rule 35(b) there is no provision for automatic dismissal of an appeal wherethere was a failure on the part of the respondent to serve the written submissions onthe respondent. The Rule provides only that no party to an appeal shall be entitled tobe heard if he has not previously lodged written submissions. Thus the penalty, andthe only penalty, for default has been prescribed. The Rule contemplates that thiscourt will proceed to hear the appeal. All that it does is to disentitle the party in defaultfrom claiming a right to be heard, but preserves the undoubted discretion of the Cpurtto give such party such hearing as it thinks appropriate. If that be the onlyconsequence of the failure to lodge written submissions, it is impossible to interpretthe Rules as requiring a more severe penalty for a far less default, namely the failureto give notice of the lodging of written submissions to the respondent together with acopy thereof in terms of Rule 35(e). That Rule omits even the penalty set out in Rule35(b).
Further as the Rules are not silent as to the consequence's of default, andtherefore it cannot be implied that non-compliance must result in dismissal. Secondly
'the real intention or the general object of the Rules is to restrict the right of a party indefault to be heard, but not to deny him a just determination of the appeal.
Though the penalty for default prescribed by Rule 35 is not dismissal, the appealmay be dismissed where an appellant fails to comply with Rule 35(b) or Rule 35(e)provided the conditions prescribed by Rule 40 are satisfied: however merenon-compliance is not sufficient and there must be a failure to show due diligence.Failure to show due diligence must refer, not to the initial default, but to asubsequent default after he has become aware he is in default. A mistake of factor law as to the correct procedure for lodging written submissions will not alwaysbe a failure to show due diligence.
Cases referred to:
State Graphite Corporation v. Fernando [1982] 2 Sri L.R. 590.
Pearlberg v. t/arty (Inspector of Taxes) [1972] 2 All E.R. 06, [1972] 1 W.L.R. 524.
Cooper v. Wandsworth Board of Works (1863) 14 CB (NS) 180, 190, 194.
Wiseman v. Borneman et al [1969] 3 All E.R. 275, 277.
Edward v. de Silva 46 NIR 342.
Wimalasekera v. Parakrama Samudra Co-operative APSS Society 58 NLR 298.
Mylvaganam v. Reckitt & Colman S.C. Appeal No. 154/87 with S.C. Appeal No.16A/87 – S.C. Minutes of 8.7.1987.
Samarawickrama v. Attorney GeneraI 1 Srikantha L.R, 27PRELIMINARY OBJECTIONS re grant of leave to appeal.
P. A. D. Samarasekera, P.C. with Jayampathy A. Gunaratne and i.P. Wickremasinghefor 1st plaintiff-respondent-appellant.
Dr. H.W. Jayewardene, O.C. with Jacolyn Seneviratne, Harsha Amerasekera andHarsha Cabraal for defendant-respondent.
Cur. adv. vult.
264
Sri Lanka Law Reports
/1989/2Srit.fi
November 03, 1989
A. G. DE SILVA, J.
The Plaintiff-Appellant instituted this action in the District Court ofColombo in which he claimed that the Defendant-Respondent was inbreach of an agreement to sell and transfer to the Appellant and toone G. Speldwinde (deceased) a portion of a land called Galla Estateat Ekala. The Appellant had made the 2nd Respondent, who was theexecutrix of the Estate of the said G. Speldwinde a party defendant,but subsequently upon an application made by the 2nd Respondentshe was added as a Plaintiff in the said action. After trial, judgmentwas entered in favour of the Appellant in a sum of Rs. 163,296/-, andin favour of the 2nd Respondent in a sum of Rs. 107,500/-. The 1stRespondent appealed from the said judgment of the District Court tothe Court of Appeal. That Court set aside the judgment of the DistrictCourt but entered judgment in favour of the Appellant in a reducedsum viz: Rs. 28,296/-. The Appellant sought from the Court of Appealleave Jo appeal to this Court against the judgment of the Court ofAppeal, and it was allowed on the ground that there were substantialquestions of law involved in the appeal.
By a motion dated 30.6.89, the Respondent moved that the appealbe dismissed as no copy of the Appellant’s written submissions hadbeen served on the Respondent. This objection was amplified by afurther motion dated 25.8.89, which was the subject-matter of thehearing before us. These objections were as follows:-
that the leave to appeal purported to have been granted bythe Court of Appeal ex parte without the Respondent beingnoticed or informed of the grounds of appeal is void and isof no effect in law.
that there has been non-compliance with Rule 35 of theSupreme Court Rules in as much as the Appellant hasfailed to serve on the Respondent a copy of his writtensubmissions.
The judgment in this case was delivered by the Court of Appeal on5.8.1988 by Dheeraratne, J. with Palakidnar, J. agreeing. Theapplication for leave to appeal to the Supreme Court was takenbefore the same two judges on 7.10.88, on which date learnedPresident's Counsel appeared for the Petitioner and the Court madeorder granting leave to appeal to the Supreme Court on the grounds
SCMendisv.Abeysinghe and Another (H.A.GDe Silva, J.)265
set out in paragraph 17 of the petition. It is conceded that notice ofthat application had not been given to the Respondent either by theAppellant or by the Court, and on 7.10.88 the Respondent wasunrepresented. The fact that the leave to appeal to the SupremeCourt was granted by the same two Judges who heard the appeal isof some importance as they were fully conversant with the facts andit cannot be said that the exercise of the jurisdiction of the Court wasarbitrary. In State Graphite Corporation v. Fernando(1) it was heldthat:
“the Court of Appeal can dispense with a hearing in granting leaveex mero motu. In other cases where a party wishes to be heard orthe issues involved are such that the Court ought not to make anorder without hearing a party affected, a proper hearing anddetermination would generally require a hearing however summary orbrief that hearing may be….’’
It was further observed that the Bench which gave leave was thesame Bench which gave judgment and was fully conversant with thecase.
It was the contention of learned Queen’s Counsel that the fact thatRule 20 of the Supreme Court Rules dealing with all applications forleave to appeal to the Supreme Court made in the Court of Appealrequires that ->
“Every application for leave to appeal shall name as respondent
in the case of a civil cause or matter, the party or parties in whosefavour the judgment complained against has been delivered oradversely to whom the application is preferred or whose interest maybe adversely affected by the success of the appeal and shall set outin full the address Of such respondents.’’,
inferentially meant that the Respondents must be given notice ofsuch application so that they may oppose it or make submission toCourt to assist the Court in coming to' a correct decision as towhether such application should be allowed or not. He submitted thatnatural justice which is really "fairplay in action” requires such noticeto be given and a decision made behind the back of a Respondent isa denial of natural justice.
A reading of Article 128 of the Constitution which gives a right ofappeal to the Supreme Court –
“From any final order, judgment, decree or sentence of the Court of
266
Sri Lanka Law Reports
1198912 SnLR
Appeal in any matter or proceedings, whether civil or criminal, whichinvolves a substantial question of law, if the Court of Appeal grantsleave to appeal to the Supreme Court ex mero motu or at theinstance of any aggrieved party to such matter or proceedings,"
shows that the Court of Appeal can in the appropriate case grantleave ex mero motu. In fact, sometimes the Court of Appeal judgesin their judgment itself, in an appropriate case, give leave to appealex mero motu and it is for the parties, if they so desire, to availthemselves of such leave. In such a case, the parties are not heardbefore leave ex mero motu is granted. (State Graphite Corporationvs. Fernando, supra) In Pearlberg vs. Vart)' (Inspector of Taxes)(2)where,
“in 1957 the Revenue, on finding that the tax payer had made noreturn at all on his income between 1937 and 1957, made anassessment on him for the year 1951-52 (‘the normal year' within themeaning of Section 51(1) of the Finance Act 1960). In 1967 theRevenue decided to make an assessment under Section 51(1 )(3) ofthe 1960 Act for each of the five years preceding the normal year’ torecover tax allegedly lost due to the 'wilful default or neglect' of thetax payer. Prior to 1965 such late assessments were made by theCommissioner but where the assessment was for a year endingearlier than six years before the end of the normal year, Section51(4) provided that it could only be made with the leave of theSpecial or General Commissioner, and under Section 51(7), theperson to be assessed was entitled to appear and be heard when theapplication for leave was made. The Income Tax Management Act1964 .however relieved the Commissioner of the function of makingassessments …. but Section 6(1) provided that such assessmentscould only be made with the leave of a Commissioner given onbeing satisfied by an Inspector or other officer of the Board that thereare reasonable grounds for believing that tax has or may have beenlost to the Crown owing to the fraud or wilful default or neglect of anyperson’. In accordance with Section 6(1) the Revenue applied to aCommissioner for leave to make assessments on the taxpayer for theyears in question and the Commissioner granted leave without givingthe taxpayer an opportunity to be heard …. The taxpayer claimed thatthose assessments were invalid on the ground that the Commissionerhad acted ultra vires in granting leave without giving him anopportunity to appear and be heard. It was held (i) that Section 6(1)to Section 51(7) which specifically gave the tax payer a right to
sc
Mendis v. Abeysinghe and Another (H.A. G. De Silva, J.)
267
appear and be heard….the wording of Section 6(1) describing -theprocedure whereby the Commissioner must be satisfied by amInspector or other officer of the Board was more naturally to beunderstood as meaning that the application was to be ex parte andthat the tax payer therefore had no right to be heard: (ii) the functionof the Commissioner in granting leave under Section 6(1) wasadministrative and not judicial …. (iii) the decision of theCommissioner to give leave did not make any final determination ofthe right of the taxpayer; where the person affected by the decisioncould be heard and could then put forward all the objection which hecould have preferred on making of the application, it by no meansfollowed that he suffered an injustice in not being heard on thatapplication".
Learned Queen’s Counsel contended that though Article 128 didnot state specifically, the procedure to be followed and whether itwould involve giving the Respondent an opportunity of being heardbefore leave to appeal was granted, the dictum of Byles J. in Coopervs. Wandsworth Board of Works(3) that –
‘‘although there are no positive words in a statute requiring that .theparties .shall be heard, the justice of the common law will supply theomission of the legislature"
would apply; but in Wiseman vs. Borneman et al (4) Lord Reid atpage 277 says that –
‘‘Natural justice requires that the procedure before any Tribunalwhich is acting judicially shall be fair in all the circumstances, and Iwould be sorry to see this fundamental general principle degenerateinto a series of hard and fast rules. For a long time the Courts havewithout objection from Parliament supplemented procedure laid downin legislation where they have found that to be necessary for thispurpose. But before this unusual kind of power is exercised it mustbe clear that the statutory procedure is insufficient to achieve justiceand that to require additional steps would not frustrate the apparentpurpose of legislation".
An interpretation of Article 128 taken with the Supreme Court Rulesdo not compel one to the view that one should read into them aprocedure not provided for in them and make it obligatory, in allcases, whatever the circumstances, that the Respondent should beheard before leave to appeal is granted by the Court of Appeal. As
268
Sri Lanka Law Repons
11989/ 2 Sri LR
was stated in Pearlberge vs. Varty (2) there is not at this stage a finaldetermination affecting the rights of parties and the Respondentwould at a later stage be heard and could then put forward all thematerial and arguments which he could have preferred at the hearingof the leave to appeal application. No injustice has been suffered byhim in not being heard at this stage. No doubt in the appropriate casethe Court would give such an opportunity to the Respondent, if thecircumstances of the case warranted such a step.
Learned Queen’s Counsel cited Edward vs. de Silva{5) andWimalasekera vs. Parakrama Samudra Co-operative A.P.S.S.Society{Q) in support of his contention that the Respondent shouldhave been noticed before leave to appeal was granted. The principleinvolved in those decisions was that, upon an appeal being filed in ahigher Court, the inferior Court ceases to have jurisdiction over theaction, and can take no further proceedings in the action, save asexpressly permitted by law. That principle has no application here,because the jurisdiction of this Court had not yet been invoked at thetime the Court of Appeal granted leave, and that Court undoubtedlycontinued to have jurisdiction: a jurisdiction expressly granted byArticle 128. Further, in those cases writs of execution were issued exparte, after appeals had been filed: orders for the issue of writs ofexecution directly and immediately affect the proprietory rights ofparties with a degree of finality which the grant of leave to appealdoes not have. The fact that the Respondent was not noticed doesnot affect the jurisdiction of the Court of Appeal to grant leave toappeal. I am of the view that no prejudice has resulted to theRespondent and I accordingly over-rule this objection.
The second matter raised by the learned Counsel for theRespondent is that the written submissions have not been served onthe Respondent by the Appellant as required by Rule 35(e) of theSupreme Court Rules which states that –
“The appellant shall, as soon as may be, and in any case withinfourteen days of the grant of special leave to appeal or the filing ofan appeal lodge his submissions, and forthwith give notice thereof toeach Respondent serving on him a copy of submissions’’.
The' Appellant filed his petition of appeal in the Supreme Court on3rd November 1988 and on 17th November 1988 his writtensubrnissions were filed in the Supreme Court Registry with a copythereof to be served on the Respondent. This copy was withdrawn by
sc
Mendis v. Abeysinghe and Another (H.A.G. De Silva. J.)
269
the Appellant on a date prior to the 8th August 1989 after theRespondent had filed a motion on 30th June 1989 stating that theAppellant s written submissions had not been served1 on theRespondents in terms of Rule 35. These written submissions hadbeen subsequently sent to the Respondent by registered post on7.8.1989.
Learned Queen's Counsel for the Appellant submitted that therewas a failure on the part of the Respondent to serve the writtensubmissions on the Respondent in compliance with Rule 35 which ismandatory and hence he could not be heard in terms of Rule 36(b).He cited in support the unreported judgment of this Court in V.Mylvaganam vs. Reckitt & Colrrian(7) where admittedly writtensubmissions were filed well out of time and in contravention of Rule35 of the S.C. rules. Apart from that, no excuse had been tenderedfor the delay. It was held that this Court has consistently taken theview that in circumstances such as this, the appeal should bedismissed for non-compliance with the rule which is imperative.
Learned Queen’s Counsel also relied on Samarawickreme vs.Attorney-General(8) in support of his contention that Rule 35(e) wasimperative, and that upon the Appellant's failure to prove that duenotice had been given to the Respondent of the lodging of theAppellant's submissions, the appeal has to be dismissed. In thatcase, the order of dismissal was made after “considering all thecircumstances of (the) case"; the circumstances; however, are notset out in the judgment. In regard to this decision, as well asMylvaganam vs. Reckitt & Colman, it would appear that the expressprovisions of Rule 35(b) have not been sufficiently considered. Article136(1 )(a) of the Constitution authorised the making of Rules providingfor the dismissal of appeals for non-compliance with such Rules.However, in making Rule 35(b), no provision was made for automaticdismissal of an appeal upon such non-compliance; instead that Ruleprovided only that “no party to an appeal shall be entitled to beheard" if he had not previously lodged his written submissions. Thusthe penalty, and the only penalty, for default has been prescribed.This must be regarded as deliberate, and one can well understandthe reason: where either the Court of Appeal (upon an application tothat Court for leave to appeal) or this Court (upon an application forspecial leave) has considered that a question fit for adjudication bythis Court does arise- the failure to take a subsequent step will notinevitably or automatically, prevent this Court from determining a
270
Sri Lanka Law Reports
[l98Sj 2 Sri LR
serious question of that nature. The Rule contemplates that this Courtwill proceed to hear the appeal: all that it does is to disentitle theparty in default from claiming a right to be heard, but preserves theundoubted discretion of this Court to give such party such hearing asit thinks appropriate. If that be the only consequence of the failure tolodge written submissions, it is impossible to interpret the Rules asrequiring a more severe penalty for a far less serious default, namelythe failure to give notice of the lodging of written submissions to theRespondent together with a copy thereof in terms of Rule 35(e). ThatRule omits even the penalty provided in Rule 35(b), and it is not openby a process of interpretation to read into Rule 35(e) an impliedpenalty, either that the right to be heard is to be denied or that theappeal is to be dismissed. In coming to this conclusion, it isnecessary to bear in mind that Rules 36(b), (e) and (f) apply to theRespondent as well: it would be a discriminatory interpretation to holdthat where the Appellant is in default, the appeal must be dismissed,but where the Respondent is in default, there is no correspondingrequirement that the appeal be allowed. On the other hand, to holdthat upon the Respondent's default, the appeal must be allowedwould be both arbitrary and absurd, for the questions of law involvedmust be answered by this Court correctly, on the merits, and not byreference to the failure of one party or the other to comply with theRules. While it is an established rule of construction that enactmentsregulating the procedure in courts are usually construed asimperative, this is a principle based upon the assumed intention ofParliament on questions necessarily arising out of an enactment onwhich Parliament has remained silent: and even then “it is the dutyof Courts of Justice to try to get at the real intention of the Legislatureby carefully attending to the whole scope of the statute to beconstrued” “to look to the subject-matter, consider the importance ofthe provision that has been disregarded, and the relation of thatprovision to the general object intended to be secured….and (then)decide whether the matter is what is called imperative or onlydirectory". Maxwell, Interpretation of Statutes, 12th edition, pages314, 315 and 320. The object of Rule 35(e) appears from Rule 35(f)namely to identify the date of receipt of notice of the lodging of theAppellant’s written submissions as the date from which the time forlodging the Respondent's submissions is to be reckoned. Thus,applying these principles oi interpretation of statutes to the Rules, itis seen, firstly, that the Rules are not silent.as to the consequence ofdefault, and therefore it cannot be implied that non-compliance must
SCMendis v. Abeysinghe and Another (H.A.G. De Silva, J.)271
result in dismissal, and secondly, that the real intention or the general,object of the Rules is to restrict the right of a party in default to beheard, but not to deny him a just determination of the appeal.
Learned Queen's Counsel also relied on Rule 40, contending thatthe Appellant had failed "to show due diligence in taking allnecessary steps for the purpose of prosecuting the appeal and thatthis Court should "declare the appeal to stand dismissed' fornon-prosecution" in terms of that Rule. Though the penalty for defaultprescribed by Rule 35 is not dismissal, I agree, that an appeal may bedismissed, where an Appellant fails to comply with Rule 35(b) or Rule35(e), provided the conditions prescribed by Rule 40 are satisfied:however, mere non-compliance is not sufficient, and there must be afailure to show due diligence. In the context of Rule 35(b) and (e) andin relation to a default thereunder, “failure to show due diligence"must refer, not to the initial default, but to a subsequent default afterhe has become aware that he is in default. Clearly, a mistake of factor law, as to the correct procedure in lodging written submissions, willnot always be a "failure to show due diligence”. In the present case,the Appellant intended'to give notice, but by an error tendered to theRegistrar the notice intended for the Respondent; within about onemonth of his becoming aware of this mistake, he took steps to rectifyhis error. I doubt whether, in the context of the Law's delays today,such a delay can be regarded as a "failure to show due diligence”;.even otherwise, this Court has a discretion under Rule 40, and I amof the view that this is not an appropriate case for the dismissal ofthe appeal as no prejudice whatsoever has been caused to theRespondent.
I would therefore hold that the default on the part of theRespondent is not of such a nature as to disentitle him from beingheard. I accordingly over-rule this objection too. The main appealshould now be listed for argument before any Bench. Costs of thishearing would be costs in the cause.
FJANDARANAYAKE, J. – I agreeFERNANDO, J. – I agree
Preliminary objections overruled.