035-SLLR-SLLR-2006-V-1-METTHANANDA-vs.-KUSHAN-FERNANDO.pdf
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METTHANANDAVS
KUSHANFERNANDOCOURT OF APPEALBALAPATABENDI, J ANDIMAM, J,
CA 570/2003 (CONTEMPT),
D. C. HOMAGAMA 533/SPL,
DECEMBER 19,2003,
JANUARY 30,2004 ANDAUGUST 2 AND 4 2004.
Contempt of Court – Affirmant not told that the affidavit would be tendered tocourt – Does the District Court have jurisdiction to charge those who obtainedthe signatures to the affidavit? – Signatures obtained in the absence of theJustice of Peace-Contempt of Court – Constitution Article, 105(3) – JudicatureAct, section 55(1)- Civil Procedure Code, sections 183 and 183 (B) – In faclaecuriae and ex facie curiae.
The plaintiff-petitioner alleging that the 1 st and 5th defendant -respondentshave obtained the signature of 3 persons to an affidavit in the absence of theJustice of Peace and without explaining or disclosing that the said affidavit isto be tendered to court, filed an application in the Court of Appeal for contemptof court.
The 1st and 5th respondents contended that the application cannot bemaintained taking into consideration Article 105(3) of the Constitution readwith section 55 of the Judicature Act and section 183 (B) of the Civil ProcedureCode.
HELD:
Article 105(3) of the Constitution gives the Supreme Court/Court ofAppeal the power to punish for contempt of itself whether committedin the Court or elsewhere ; the power would include the power topunish for contempt of any Court, Tribunal or Institution whethercommitted in the presence of such court or otherwise.
It is provided that the provisions of Article 105(3) would not affect orprejudice the rights now or hereinafter vested by any law in such courtetc., to punish for contemp of court.
CA
Metthananda Vs
Kushan Fernando (Imam J.)
291
Section 55(1) confers specific jurisdiction on every District Court,Magistrate's Court and Primary Court to deal with every offence ofcontempt of court committed in the presence of the court or committedin the proceedings in the said court.
Section 183 (B) of the Civil Procedure Code utilizes the said powerconferred by section 55(1) and lays down the procedure to deal withthe contempt of court arising out of giving false statements by way ofan affidavit or otherwise.
Per Imam, J„
"When the legislature has laid down a specific provision to deal with thecontempt of court arising out of giving false evidence in the course of any ofits proceedings, the petitioner should proceed under section 55(1) of theJudicature Act read with section 183 of the Code rather than seek redressfrom this court.
APPLICATION under Article 105(3) of the Constitution on a preliminary objection
raised.
Cases referred to :
A. M. E. Fernando vs Attorney General (2003) 2 Sri LR at 53
Regent International Hotels Ltd., vs Cyril Gardiner and 8 others (1978*79-80) 1 Sri LR 278 (SC)
Mansoor and another vs OIC Avissawella Police and another -(1991)2 SriLR 75.
Edward Ahangama for plaintiff petitioner.
Manohara, R. de Silva with Govinda Jayasinghe for 1st and 5th defendants
respondent.
Cur. adv. vult.
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July 25,2005,
IMAM, J.,This is an application filed by the Plaintiff-Petitioner (hereinafter referredto as the Petitioner) seeking that the 1 st and 5th Defendant-Respondents(hereinafter referred to as the Respondents) be dealt with appropriately forContempt of Court committed by them. On counsel for the Plaintiff-Petitioner making oral submissions to Court on 19.12.2003, counsel forthe 1st and 5th Defendant-Respondents took up a preliminary objectionon 30.01.2004.
The facts of the case are briefly as follows. The Plaintiff-Petitioner allegesthat the 1st Defendant-Respondent and the 5th Defendant-Respondentobtained signatures for the affidavit marked XI from K. D. M. M. Bandara,Arachchige Don Wijeratne and Latha Gamage without explaining ordisclosing that the aforesaid document marked XI is an affidavit which is tobe tendered to Court. Furthermore it is alleged by the Plaintiff-Petitionerthat when the aforesaid signatures were obtained a Justice of the Peacewas not present.
The preliminary objections taken up by counsel for the 1st and 5thRespondents was that this application cannot be maintained, taking intoconsideration Article 105(3) of the Constitution read with section 55(1) ofthe Judicature Act and section 183(b) of the Civil Procedure Code. Counselfurther submitted that the 5th Defendant-Respondent does not intend toavoid facing trial, with regard to the complaint of the Petitioner, but contendsthat the District Court in which this case was tried would be the best forumto adjudicate the complaint made by the Petitioner. The position of thePetitioner is that the 1 st and 5th Rtespondents obtained the signatures ofthe aforementioned Bandara, Don Wijeratne, and Latha Gamage between8.00-9.00 p.m. without disclosing the fact that XI was to be construed asan Affidavit to be tendered to the District Court of Homagama in the absenceof a Justice of the Peace to attest X1, which act amounted to a Contemptof Court, and sought that the Respondents be dealt with accordingly. TheRespondents referred to a judgment of His Lordship Chief Justice G. P. S.De Silva in A. M. E. Fernando vs Attorney General™ where His Lordshipheld that "Article 105(3) of the Constitution vests the Supreme Court,which is a Superior Court of record, in addition to the powers of suchCourt, the power to punish for contempt itself whether committed in the
CA
Metthananda Vs
Kushan Fernando (Imam J.)
293
Court itself or elsewhere, with imprisonment or fine or both as the Courtmay deem fit." This provision it was pointed out by the Petitioner is basedon the common law, which draws a distinction in which is described ascriminal contempt between those acts committed in the face of the Court“ in faciae curiae" and those committed outside Court "ex facie curiae".The inherent jurisdiction of the Supreme Court of England to imposepunishment summarily in respect of contempt 'in facie curiae’ is mentionedin Oswald's Contempt of Court 3rd Edition as follows. "It is now theundoubted right of the Supreme Court to commit for contempts"
It was further averred on behalf of the Petitioner that in RegentInternational Hotels Ltd. Vs Cyril Gardiner and 8 others <Z) the BarAssociation Law Journal that His Lordship Chief Justice Nevile Samarakoonheld that the Court of Appeal has all the powers under Article 105(3) of theConstitution of punishing for contempt whenever it is committed 'in faciecuriae' (within the well of the Court) or 'ex-facie curiae' (those committedoutside the Court). It was further held by Basnayake, CJ in SC 559/62which dealt with an Application for a Rule Nisi for Contempt of Court on S.M. A. Cader and Assanar Lebbe Hameed Umma, that where an injunctiongranted by a District Court was disobeyed the Supreme Court had powerto punish the offender for Contempt of Court. On hearing counsel for bothsides, documents tendered and related matters, I have come to followingconclusion.
Article 105(3) of the Constitution reads as follows:
"The Supreme Court of the Republic of Sri Lanka and the Court ofAppeal of the Republic of Sri Lanka shall each be a Superior Court ofrecord and shall have all the powers of such Court including the power topunish for contempt of itself whether committed in the Court or elsewherewith imprisonment or fine or both as the Court may deem fit. The power ofthe Court of Appeal shall include the power to punish for Contempt of anyCourt, Tribunal or Institution referred to in paragraph 1(c) of this Article,whether committed in the presence of such Court or otherwise.
Provided that the preceding provisions of this Article shall not prejudiceor affect the rights now or hereinafter vested by any law in such otherCourt, Tribunal or Institution to punish for Contempt of Court."
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However section 55(1) of the Judicature Act confers specific jurisdictionto every District Court, Magistrate's Court and Primary Court to deal withevery offence of Contempt of Court committed in the presence of theCourt or committed in the proceeding in the said Court.
Section 55(1) of the Judicature Act states as follows.
“Every District Court, Family Court, Magistrate's Court and PrimaryCourt shall, for the purpose of maintaining its proper authority and efficiency,have a special jurisdiction to take cognizance of, and to punish with thepenalties in that behalf as hereinafter provided, every offence of contemptof Court committed in the presence of the Court itself and all offenceswhich are committed in the course of any Act or proceeding in the saidCourts respectively, and which are declared by any law for the time beingin force to be punishable as Contempts of Court."
Section 183(B) of the Civil Procedure Code utilizes the said powerconferred by section 55(1) on the District Court and lays down the procedureto deal with the Contempt of Court arising out of giving false statements byway of an affidavit or otherwise.
Section 183(B) of the Civil Procedure Code specifically states that whereany person wilfully makes any false statement by affidavit or otherwise, inthe course of any of the proceedings aforesaid he may be punished as fora contempt of Court, besides his liability to be tried and punished underthe Penal Code for the offence of giving false evidence, where suchstatement is on oath or affirmation.
Furthermore on examination of a true photocopy of X1, there is noapparent signature of a JP nor a seal affixed.
Thus when the legislature has laid dovm a specific provision to dealwith Contempt of Court arising out of giving false evidence in the course ofany of its proceedings, the Petitioner should proceed under section 55(1)of the Judicature Act read with section 183 of the Civil Procedure Code,rather than seek redress from this Court.
It is manifestly clear that by taking up this preliminary objection the 1 stand 5th Defendant-Respondents do not intend to avoid facing trial, but
CA
Kata Traders (Pvt.) Ltd. and Another Vs.
Director General of Customs and Others
295
only seek the indulgence of this Court to direct the Petitioner to institutethis action in the proper forum for it to be concluded expeditiously. Henceas the evidence of the witnesses is incomplete, the District Court wouldbe the best forum to decide whether the evidence of the witnesses is trueor false, and hence the District Court would be the appropriate forum toadjudicate upon the complaint made by the Petitioner.
With this regard the case of Mansoorand anothervs OIC AvissawellaPolice and another(3) is relevant. In this case it was held that where astatute creates a specific right and gives a specific remedy or appoints aspecific Tribunal for its enforcement, a party seeking to enforce must resortto that Tribunal.
For the aforesaid reasons we dismiss the Petitioner's application, anddirect the Petitioner to institute this action in the District Court, where thealleged complaint is said to have been committed.
BALAPATABENDI, J. — I agree.
Preliminary objection upheld. Petitioner directed to institute action in theDistrict Court, where the alleged complaint is said to have been committed.