034-SLLR-SLLR-2005-V-1-ROSALIN-vs.-SUNDARALINGAM-AND-OTHERS.pdf
260
Sri Lanka Law Repons
(2005) 1 Sri L. R.
ROSAUN
vs
SUNDARALINGAM AND OTHERS
COURT OF APPEALEKANAYAKE, J ANDSILVA, JCA 64-65/90MAY 2, 2005
Re-listing of writ of habeas corpus application – Court of Appeal (Appellate)Procedure Rules'1990, Rules 3 (1)(a), 3(1 )(b) and 15 – Constitution, Articles138 and 140(4) 141 – Available grounds – Lex non cogit ad impossibilia -Locus standi
HELD:
The petitioner cannot proceed with the two main cases for mandates in thenature of writs of habeas corpus when there is no corpus in existence (or haveceased to exist) to be brought before court to be dealt with according to law.
Re-listing should not be allowed as the application for re-listing has beenpreferred by a person who had no status to make such application – he has notbeen properly substituted – no locus standi.
There is no proper application, as the application has been made by way ofa motion and not by way of petition and affidavit.
PerSilva.J.,
"An order granting or refusing an application for re-listing is purely adiscretionary matter for the court; in fact it is not even necessary for this courtto give reasons when this court grants or refuses an application for re-listing".
APPLICATION for re-listing.
Case referred to :
1. Jiandasa and another vs Sam Silva and others (1994) 1 Sri LR 232R. S. Weerawickrema for appellant.
D. Thotawatte, State Counsel for 8th and 9th respondentsSapumal Bandara for 2nd respondent.
Cur.adv.vult.
CA
Rosalin vs
'Sundaralingam and others (Silva, J.)
261 •
June 01,2005
W.L. RANJITH.SILVA, J.This is an application for re-listing of C A.64-65/90 two applicationspreferred by the petitioner seeking madates in the nature of a Writ ofHabeas Corpus under Article 141 of the Constitution which two caseswere dismissed by this Court as the petitioner was absent andunrepresented on 04.10.2004, when the case was mentioned in open Courtfor the written submissions of the parties (The two main applications shallhereinafter be referred to as the “two cases" for convenience).
The original petitioner P. Rosalin preferred two applications that is 64/90 and 65/90 to the Court of Appeal under Article 141 of the Constitutionand prayed for mandates in the nature of Writs of Habeas Corpus in respectof two persons namely R. G. Sunil and Weragodage Jayaratne respectively.When this matter was supported in open Court, the Counsel for the petitionerrequested that this matter be referred to the Chief Magistrate’s Court ofColombo to inquire into and report to Court and the Court having heard theCounsel in support ordered the Chief Magistrate's Court of Colombo toinquire into the matters contained in the petition and affidavit filed in thosetwo applications. The Court of Appeal ordered the Magistrate to inquireinto and report to Court the following matters : –
The circumstances in which the two missing persons mentioned inthe two applications were arrested, how they escaped from custody,from where they escaped, the circumstances under which four peopleincluding the two persons in respect of whom these applicationswere filed escaped and to record the evidence of the officer whoissued the order for the disposal of the dead bodies in terms of theemergency regulations particularly with regard to the observationsmade as to injuries on the bodies and the means of identification ofthe bodies.
On a perusal of the record it is evident that both these cases have beenamalgamated and all proceedings have been conducted on that basisapparently with the consent of both parties.
When this matter was referred to the Chief Magistrate to inquire intoand report to this Court, the Magistrate having held an inquiry, informedthis Court by his report dated 21.01.2003 that it transpired, during thecourse of the inquiry that the corpus concerned in the two applicationsalong with two others were shot dead by the police in a shoot out that took
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place on 1.2.90 at a place called Rukmalgama, between the police and agroup of insurgents. The Magistrate in his report has also stated thataccording to the evidence before him, that no police officers could be heldresponsible for the death of the two persons concerned. This part of theevidence that was led in the Magistrate’s Court had virtually goneunchallenged; on that evidence it appears to this Court that the petitionercannot proceed with the two main cases for mandates in the nature ofWrits of Habeas Corpus as it would be redundant to proceed with the twocases, when there is no corpus in existence (or have ceased to exist) tobe brought before this Court to be dealt with according to law. On thatground alone,*it would be redundant to proceed with the two main casesand to allow this application for re-listing, of the two main cases wouldalso be a futile and unnecessary exercise.
This Court is also mindful of the maxim ‘lex non cogit ad impossibilia'that is, the law does not expect a person to do what is impossible. Thisapplies with equal force to the courts of law as well. On the same reasoningCourt will not issue an order which cannot be implemented or would beredundant. When it had been proved to the satisfaction of the Magistrateon the material available in the Magistrate’s Court, that the two personswere dead, it would be futile to inquire into the matter any further. Thepurpose of issuing a Writ of Habeas Corpus is to compel the body of aperson who is held in unlawful custody or detention to be brought beforeCourt to be dealt with according to law. When the person who was illegallyconfined becomes non existent or ceases to exist then the matter endsthere and it would be utterly futile to issue a Writ of Habeas Corpus tocompel a party to produce the corpus in Court.
The 2nd reason why re-listing of the said two cases should not beallowed is because the application for re-listing has been preferred by aperson who had no status to make such application. The person whomade this application is not a person who has been properly substitutedin the room of the petitioner ; in fact there was no such application forsubstitution ever made to this Court. Therefore the person who made thisapplication had no “locus-standi’ to make this application as he was not aperson substituted in the room of the original petitioner.
CA
Rosalin vs
Sundaralingam and others (Silva, J.)
263 '
The 2nd respondent in his petition of objections referred to the affidavitmarked X4 filed by one R. G. Chandrasakera, which is found bound in therecord, who in his affidavit urged this Court to proceed with the two maincases. He has mentioned in his affidavit (Vide para 4) that his mother, theoriginal petitioner, expired on 06.02.1999, that is long before the two maincases were dismissed for the first time on 12.11.2003, therefore it couldbe seen that an application for re-listing could not have been made by thepetitioner on 05.03.2004 when the case was dismissed for the first timeon 12.11.2003, since the petitioner was already dead, it is obvious that thepetitioner could not have made that application for re-listing on 05.03.2004and who ever who made that application was not the petitioner; thereforethe initial application for re-listing was made by a person who was noteven properly substituted in the room of the deceased petitioner. Even atthat stage, no application for substitution was made and therefore thisCourt could not have entertained an application for re-listing made by aperson who was not properly substituted in the room of the petitioner.When the two main applications were dismissed for the 2nd time on04.10.2004, the original petitioner was already dead and the petitionercould not have made the present applications for re-listing of the two maincases which were dismissed on 04.10.2004 and up to date no applicationhas been made to this Court seeking substitution in the room of thedeceased petitioner. Therefore the situation is still worse with regard tothe application for re-listing after the 2nd dismissal of the two mainapplications after the death of the petitioner. The interested parties havefailed or neglected to get themselves or himself substituted in the room ofthe petitioner and to prosecute their case diligently. They have neglectedfor a considerable period of time to make an application for substitution.The law will not help those who sleep over their rights. At this stage itmust be recorded that even the counsel for the applicant Mr. R. S.Weerawickrama has stated to Court that the petitioner was dead and thathe did not know for whom he appeared (as per journal entry dated02.05.2005).
The third reason is that there is no proper application for re-listing beforethis Court as the application has been made by way of a motion and notby way of petition and affidavit as required by the Supreme Court Rules.
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The present petitioner has failed to comply with the imperative provisionsof the Supreme Court Rules.
The relevant Supreme Court Rules are the Court of Appeal (Appellate)Procedure Rules 1990. According to Rule 3 sub section 1(a) and Rule 3sub section 1(b), any application under Article 140 and 141 of theConstitution and Article 138 of the Constitution should be made by way of• petition and affidavit. Although applications for re-listing do not come under3(1 )(a) and 3(1 )(b) such an application has to be made in accordance withRule 15. Rule 15 reads thus “this rule also shall apply “mutatis mutandis"to applications made to Court under any provisions of law other than Articles138, 140, and 141 of the Constitution, subject to any directions as may begiven by the Court in any particular case.
Therefore it is seen that an application for re-listing should have beenpresented by way of petition and affidavit which is not the case with regardto the present application for re-listing before us. Further the Court has notgiven any direction authorising a deviation from the normal practice at anystage of the proceedings.
An order granting or refusing an application for re-listing is purely adiscretionary matter for the Court. In fact it is not even necessary for thisCourt to give reasons when this Court grants or refuses an application forre-listing, although I have thought it fit to give my reasons, on this occasion.(Vide Jinadasa and others vs. Sam Silva and othersf" judgment by A. R.B. Amarasinghe, J.) For the aforesaid reasons this application for re-listingof H. C. A. 64-65/90 is refused and the same is dismissed without costs.
EKANAYAKE, J. — I agree.
Application dismissed.