046-SLLR-1984-V1-GANESHANANTHAM-v.-VIVIENNE-GOONEWARDENE-AND-THREE-OTHERS.pdf
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Ganeshanantham v. Goonewardene (Samarakoon. C.J.)
319
GANESHANANTHAM
v.
VIVIENNE GOONEWARDENE AND THREE OTHERS
SUPREME COURT.
SAMARAKOON, C. J., SHARVANANDA, J., WANASUNDERA, J . WIMALARATNE, J..COLIN THOME', J„ RANASINGHE, J. AND RODRIGO. J.
S.C. No. 6/83 SPECIAL – S.C. APPLICATION No. 20/83.
JANUARY 16, 17, 23, 24, 25, 26, 27 AND 31, 1984.
Pgr incuriaiff rate – Revisionary and inherent powers of the Supreme Court to review itsovtrfj judgment – Nattrai Justice – Audi alteram partem – Justice must te seen to padone – Articles 126 f 2) and {4} and 134 (3) of the Constitution – Rule 65 fl) and Buie65 (4) (iij of the Supreme Court Pules,
The petitioner-respondent (Mrs. Vivienne Goonewardene) made an application (S.C.20/83) to the Supreme Court alleging that the 1st -respondent (Hector Perera.Qfficer-in-Charge of the KoHupitiya Police Station) had illegally arrested her andsubjected her to cruel, inhuman and degrading treatment in violation other fundamentalrights set out in Article 11 and Article 13 (1) of the Constitution, She made parties toher application the Inspector-General of Police (2nd respondent) and'theAttorney-General (3rd respondent). The 1 St respondent denied the allegations againsthim. the 2nd respondent filed his affidavit along with two affidavits one of which was anaffidavit by the present petitioner (V. Ganeshanantham) who averred that it was he whohad arrested the petitioner-respondent but that his arrest was legal. The petitionerclaimed he attested the petitioner-respondent on the pavement of the Galle Road whenShe was going in a procession. Neither the petitioner-respondent nor any one else in
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the procession was able to produce a permit to go in the procession. As theprocession was being conducted ‘without the authority of a lawful permit' it becamethe petitioner's duty to prevent the procession.
A Bench of three Judges of the Supreme Court heard the case and held-
That the petitioner-respondent had not established that she had been subjected tocruel, inhuman and degrading treatment by the first respondent.
That the petitioner-respondent had been arrested by the petitioner and not by the1 st respondent.
That the said arrest was unlawful and therefore the State was liable in damagesfixed at Rs. 2,500
No order for damages or costs was made against the petitioner.
The petitioner sought relief from the Supreme Court complaining that another Bench ofthe Court had. to his detriment, acted per incuriam as set out below and claiming reliefin the exercise of the revisionary and inherent powers of the Court:
The Court had made a finding against the petitioner in respect of an infringementnot complained of by the petitioner-respondent and in fact disowned by her. Such orderwas in disregard of Article 126 (2) of the Constitution read with Rule 65 (t) (a) of theSupreme Court Rules.
, (2| The power to grant relief or give directions which the Supreme Court deems justand equitable under Article 126 (4) was restricted to the petitioner-respondent'sallegation and complaint to Court under Article 126 (2).
(3) In any event the Court acted in disregard of-
<i) Article 126 (2) read with Rule 65 (1) and Rule 65 (4) (ii) of the Supreme CourtRules
The rule of natural justice – audi alteram partem.
The rule of natural justice that justice must be seen to be done.
On the question of the non-observance of the rules of natural justice the petitioner'scomplaint is that the Court had found him guilty of unlawfully arresting thepetitioner-respondent and thereby violating her fundamental rights. These findings weremade against him without his being first informed that his conduct was being inquiredinto; no opportunity was given to him of defending himself; and he was not a party tothe proceedings nor added as a party.
Held-
(1) The Supreme Court has no jurisdiction to act in revision of cases decided by itself.None of the provisions of the Constitution expressly conferring jurisdiction confer such ajurisdiction on it. Nor has the Legislature conferred such a jurisdiction by law. TheSupreme Court is a court of last resort in appeal and there is finality in its judgmentwhether it is right or wrong. That is the policy of the law and the purpose of Chapter XVof the Constitution.
SCGaneshanantham v. Goonawardene (Samarakoon, C.J.f321
As a superior Court of record the Supreme Court has inherent powers to correct itserrors which are demonstrably and manifestly wrong and where it is necessary in theinterests of justice. Decisions made per incuriam can be corrected. These powers areadjuncts to existing jurisdiction to remedy injustice – they cannot be made the source ofnew jurisdictions to revise a judgment rendered by that court.
The jurisdiction granted to the Supreme Court by Article 126 of the Constitutionconcerns fundamental rights and language rights declared by Chapters III and IV of theConstitution. In exercising this jurisdiction the Court, has to make a dual determination,viz
that there is an infringement or threatened infringement of a fundamental rightand
that such infringement or threat is by executive or administrative action.
Held further: Ranasinghe J. and Rodrigo J. dissenting –
It may not always be possible for a petitioner to allege in his petition that the actcomplained of was that of a particular officer of State. Even where the infringement offundamental rights is found to have been committed by a State Officer other than theone named in the petition the Court would still have power to act in terms of Article126. The jurisdiction of the Court does not depend on the fact that a particular officer ismentioned by name nor is it confined to the person named. The unlawful act gives theCourt jurisdiction to entertain the petition and to make a declaration accordingly. Thefact that it was committed by an officer of State empowers the Court to grant aremedy. The provisions of Article 126 (2) (unlike Article 126 (3)) does not limit theinquiry to the person named in the petition There has been no disregard of theprovisions of Article 1 26 (2) read with Rule 65 (2) and (4) (h).
Per Samarakoon, C.J.-
-|t will be a travesty of justice if, having found as a fact that a fundamental right has beeninfringed or is threatened to be infringed, it (this Court) yet dismisses the petitionbecause u is established that the act was not that of the officer named in the petitionbut that of another State Officer, such as a subordinate of his. This Court has beengiven power to grant relief as it may deem just and equitable – a power stated in thewidest possible terms. It will neither be just nor equitable to deny relief in such a case."
Rule 65 merely slates that the petitioner shall name the person who he alleges hascommitted the unlawful act. This by no means exhausts the avenues available to apetitioner. It does not provide for a situation where the petitioner is unable to name theofficer of State who commits the act. Furthermore Rule 65 concerns procedure and kkemost rules cannot detract from the powers of Article 126.
Per Wanasundera, J.-
“ Article 126 of the Constitution shows that in an application under’that Article theaccusation is made agamst the State and the State through its principal Law Officer, theAttorney-General, is required to defend the action. It is a legal requirement that theAttorney-General should be heard."
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'The Rules cannot derogate from the substantive constitutional provisions and alter thenature and composition of a proceeding under Article 126A proceeding under
Article 126 is against the State and the State has to bear the liability for unlawfulexecutive or administrative action."
Although the petitioner-respondent denied she had been arrested by the petitioner,the arrest by the petitioner is one episode and the Court has treated it as onetransaction in which there was only one arrest – the arrest by the petitioner. Theimplication is that the arrest was mistakenly attributed to the first respondent. Thatfinding cannot now be questioned in these proceedings. Moreover it was based onfacts disclosed by the petitioner in his affidavit.
The petitioner's statement that had he been given an opportunity he would haveexplained what he mearit by permit suggests that when he used that word it did nothave its ordinary English meaning. He has only himself to blame for this. The Court wasentitled to take it to mean what it ordinarily means in the English language.
The parties to the case were heard by affidavit. Likewise the petitioner was heard -by affidavit and his affidavit was accepted by Court. The petitioner knew at the time heswore the affidavit that it was being filed to establish that the only arrest was by him andthat it was the legality of his arrest that would be in issue at the inquiry. The AdditionalSolicitor-General appearing for the 2nd and 3rd respondents addressed Court on thelegality of the arrest. In their written submissions the Inspector-General of Police (2ndrespondent} and the Attorney-General (3rd respondent) endorsed the petitioner'saction 'as being in accordance with procedures established by law*.
Per Wanasundera, J-
'The petitioner had gone out of his way to justify the arrest and sought cover for hisactions in certain legal provisions. This is a matter of law falling within the province of thejudge'.
The petitioner was given such hearing as the Court considered necessary asprovided in Article 134 (3).
The rule of natural justice audi alteram partem has been observed. In any eventthe provisions of Article 1,34 (3) have been satisfied.
. (11) The petitioner knew all along that it was the arrest by him and its validity that wasin issue in the case. Hence it cannot be said that justice has not been seen to be donebecause the petitioner was not told that his conduct was being impugned in the case.
( 12) No order for damages or costs was made against the petitioner and he hassuffered no prejudice as a result of his not being given an opportunity to enter into thefray and take part in the argument.
There is no justification for exercising any of the inherent powers of the Court inthis case.
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Per Wanasundera, J –
In the case that was filed by Mrs. Vivienne Goonewardena under Article 128 ofthe Constitution for a violation of fundamental rights the present petitioner came beforethe court in the capacity of a witness. In the course of arriving at its finding a court hasnecessarily to believe and disbelieve the evidence given by the witnesses for (Jterespective sides.
It is not a requirement of the law of this country that a witness who has givenevidence should be informed prior to the judgment of the proposed reasons fordisbelieving him and be afforded an opportunity of making representations.
When a punishment, penalty or liability has to be imposed on a person, whetherhe be a party or witness, the law would generally require that the person concerned beapprised of the charge, allegation or complaint against him, and he be afforded anopportunity of giving an explanation. The word'guilty" does not necessarily mean onlycriminality, it can also mean culpability, namely, blameworthiness. The use of the word"guilty'in the passage ‘Sub-Inspector Ganeshanantham was guilty of arresting thepetitioner in contravention of the constitutional prohibition* by no means imposes or isintended to impose any punishment, penalty or liability on the petitioner. It constituted anecessary step in the process of the judge's reasoning and without it he could not havecome to a proper determination of the case.
Per Wanasundera, X-
When a Judge passes strictures on a witness in the course of deciding a case *lt is onlyan episode in a single trial and constitutes part and parcel of one proceeding,conducted according to the known standards of fairness and where the principle ofnatural justice cannot be divided, apportioned and compartmentalised. If the rule is tobe applied in situations like the present case it would result in trials within trials and theprospect of interminable litigation. Surely that would be carrying the principle of audialteram partem to absurd lengths. *
Cases referred to
Re Exchange Street. Manchester. [1956] 3 All E.R. 490. 493.
Waterhouse & Co. v. Gilbert. 15 Q.B.D. 569.
|3) Lyon v. Morris, 19 Q.B.D. 139.
Mapalathan v. Elayavan, (1939)41 NLR 115.
Loku Banda v. Assqn, (1897) 2 NLR 311.
Elo Singho v. Joseph. (1949149 NLR 312.
Mohamedv. Annamalai Chettiar, (1932) 12C.L. Rec. 228
|8) Karuppannan v. Commissioner for Registration of Indian and PakistaniResidents. (1953} 54 NLR 481.
|9) In Revision. (1921)23 NLR 475.
Alasupillai v. Yavetpillai, f 1949) 39 CLW 107.
Ranmenikhamy v. Tissera (1962)65 NLR 214.
King v. Baron Silva, (1925) 4 Times of Ceylon Law Reports 3.
The Seistan, [1960] 1 All ER 32
Sheldon v. Bromfield Justices. [1964] 2 WLR 1066; [1964] 2 Q.8.
573.
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Sri Lanka Law Reports
11984) 1 SriL.R.
Appuhamy v. Regina. [1983] 1 AIIE.R. 762.
flex v. The Thames Magistrate's Court. [1974] 2 AIIE.R. 1219.
General Council of Medical Education and Registration of the United
Kingdom, v. Spackman – Spademan’s case. [1943] 2 AS E.R. 337. (1943)A C. 627.
(Tb) Mahon v. Air New Zealand Ltd. and Others reported in Newspaper (Privy Council)Law Report of October 21. 1983.
R. V. Deputy Industrial Injuries Commissioner: ex parte Moore, [1965] 1
Q.B. 456, 488. 490.
Cmnamortd v. British Airports Authority. [1980] 2ASE.R. 368. 377.
A. v. Woking Justices, ex parte Gossage, [1973] 2 W.L.R. 629.
fl. v. Hopkins, ex parte Harwatd. [1973] 1 W.L.R. 967.
Maharai v. The Attorney-General of Trinidad and Tobago (No. 2). [1979]
A C. 385. 399.
ReA. Solicitor. [1944] 2 ASE.R. 432. 434.
Guardians of Westham Union v. Churchwardens of Bethnal Green,
[1896] A C. 477.
Sirirmasa Thero v. Sudassi Them. (I960) 63NLR31. 33.
Setvadurai v. Rajah. (1940) 41 NLR 423.
Narayan Che tty v. Jusey Silva. (1903) 8 NLR 162.
Eswaralingam v. Sivagnanasunderam, (1962) 64 NLR 396. 398.
Andris Appu v. Kolande Asari (1916) 19 NLR 225. 229.
OlagappaChettiarv. Reith. (1941) 43 NLR 91.
Victor de Silva v. Jinadasa de Silva. (1964) 68 NLR 45.
Commissioner of Inland Revenue v. Ranaweera (1969) 72 NLR 294
296.
Edirisinghe v. District Judge of Matara, (1949)51 NLR 549.
Sirmathamby v. Yokammah (1958) 61 NLR 183, 185.
Oe Costa and Sons v. S. Gunaratne (1967) 71 NLR214.
Huddersfield Police Authority v. Watson [1947] AS E.R. 193.
MorreSe Ltd. v. Wakeimg. [1955] 1 AIIE.R. 708.
Billimoriav. Minister of Lands, [1978-79] 1 S.LR. 10. 12.
Menchinahamy v. Muniweera, (1950) 52 Nlfl 409, 414.415.
Ex parte Brown, Re TunstaS. [1966] I N. S. W. fl. 770. 775.
Ridge v. Baldwin, [1963] 2 All E.R. 66, 80.
Cooper v. The Board of Works tor Wandsworth District, (1863) 14
C.B. (N.S.) 180.
Franklin v. The Minister of Town and Country Planning-Stevenage
Case. [1948] A C. 87.
Nakkuda AS v. Jeyaratne. (1950) 51 NUi 457.
Board of Education v. Rice. [1911]A.C. 179.
Pearlberg v. Varty. [1972] 1 WLR 534. 547.
Ourayappah v. Fernando. (1966) 69 NLR 266.
Wiseman v. Bomeman. [1971] A C. 297. 308.
MaSockvt Aberdeen Corporation, [1971] 1 WLR 1578, 1599.
John v. Rees. [1970] Ch 345. 402.
R. v. Thames Magistrate's Court, Ex parte Polemis. [1974] 2 All E.R.
1219.(1974) 1 WLR 1371
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Ganeshanantham v. Goonewardene (Samarakoon. C.J.f
325
ft. v. Hendon Justices, Ex parte Gorchein. [1973] 1 WLR 1502.
Vadamardchy Hindu Educational Society Ltd. v. The Minister of
Education. (1961) 63 A/Iff 322.
Kapoor v. Jagmohan, (1980) 4 S.C.C. 379.
ft v. Sussex Justices, ex pane McCarthy, (1924) 1 KB 256. 259.
DeVerteuietv.Knaggs.[1918)AC559.
Vasudevan Pittai v. City Council of Singapore. (1968) 1 WLR 1278.
1286 (PC.)
Rosev. Humbles. (1972) 1 WLR33. /1972) 1 AUER314. 318.
Mariyadas Raj v. The Attorney-General and another S.C. Application
No 130/82: S.C. Minutes of 14.2.83.
(6t) Caldera v. Santiagopillai. (1920) 22NLR155.
Juan Perera v. Stephen Fernando. (1902) 2 Br. 5.
Thambiraja v. Sinnamma. (1935) 36 NLR 442.
Burford (Corporation of) v. Lenthall. 2 Atk. 551; 26 E.R. 731.
Craig v. Kanssen. (1943) K.B. 256: (1943) 1 All E.R. 108.
Young v. Bristol Aeroplane Co. Ltd. (1944) K.B. 718; (1944) 2 All. E.R. 293.
APPLICATION in revision and for the exercise of the inherent powers and jurisdiction ofthe Supreme Court.
K. N. Choksy, S. A., with D. H. M. Jayamaha, Ronald Perera. Lakshman Perera. Miss I.ft Rajepakse and Nihai Fernando for the petitioner.
Dr. Colvin ft de Silva with Betty Weerakoon, Miss M. Kanapathipillai and Miss Saumyade Silva for the petitioner-respondent.
Sunil de Silva. Additional Solicitor-General, with Priyantha Perera. DeputySolicitor-General and Upawansa Yapa, Deputy Solicitor-General for Attorney-General.
Cur. adv. vult.
March 2, 1984.
SAMARAKOON, C.J.
The application in this case is a direct consequence of the order madeby a Bench of three Judges of this court in case No. 20 of 1983. Inthat case the petitioner-respondent filed a petition in terms of Article120 of the Constitution (1978) alleging that she had been unlawfullyarrested on the 8th of March, 1983, at the Kollupitiya Police Stationby the first respondent who was at the time the Officer-m-Charge ofthe said station. The petitioner-respondent also alleged that she hadbeen subjected to cruel, inhuman and degrading treatment by the firstrespondent. Thereby, she alleged, the first respondent had acted incontravention and in violation of her fundamental rights set out in
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Article 11 and Article 13 (1) of the Constitution. She made theInspector-General of Police and the Attorney-General parties to thepetition as second and third respondents respectively. The firstrespondent denied all allegations made against him. The secondrespondent appears to have made independent investigations intothese allegations. He filed affidavit supporting the denial of the firstrespondent and set out the true state of facts as found by him.Together with his affidavit was filed an affidavit from VinayagamGaneshanantham, inspector of Police, Kollupitiya, the petitioner in thisapplication (hereinafter referred to as petitioner) and an affidavit fromPallage Ratnaseeli Perera, Reserve Woman Constable, attached to theKollupitiya Police Station. The second respondent swore inter alia thathe was "satisfied with the truth of the contents' of the two affidavitsabovementioned. The petitioner in his affidavit stated that it was hewho arrested the petitioner-respondent and four others and that thearrest was made by him on 8th March with the assistance of otherpoiicepnen on the Galte Road opposite the Police Station. He pleadsfurther facts seeking to justify the arrest. I will deal with this affidavit ingreater detail in the course of this judgment. The petition was inquiredinto by my brothers Ratwatte, J.r Colin-Thome, J. and Soza J. Theunanimous decision of the Court was delivered by Soza, J. Thejudgment discloses three salient facts. They are-
That the petitioner-respondent had not established to thesatisfaction of the Court that she had been subjected to cruet,inhuman and degrading treatment by the first respondent.
That the petitioner-respondent had been arrested on that dayin question by Inspector Garteshananiham, petitioner, and not bythe first respondent.
That the said arrest was unlawful and therefore the State wasliable in damages which was fixed at Rs. 2.500 by the Court.
It is relevant to note that the Court made no order as to damages orcosts against the petitioner. The petitioner was in no way prejudicedby the order of this Court.
The petitioner now complains that the Court had found him guilty ofunlawfully arresting" the petitioner-respondent, thereby violating herfundamental rights, that the findings were made against him withoutfirst informing him that his conduct was being inquired into, that he
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was given no opportunity of defending himself, that he was not a partyto the proceedings nor added as a party and that the Court in makingthe said finding acted in contravention of natural justice and perincuriam. He asks for relief from this Court.
Counsel for the petitioner contends that this Court has powers ofrevision which enable it to grant the relief prayed for by the petitioner.Counsel for the petitioner-respondent states that this Court has nopower to revise its own orders. He points to the caption of the petitionwhich reads-
"IN THE MATTER OF AN APPLICATION IN REVISION AND FOR THE EXERCISE
OF THE INHERENT POWERS AND JURISDICTION OF THE SUPREME COURT'.
He submits that this caption read with prayer (a) to the petition invokesa jurisdiction in revision which this Court does not have. One has tolook at the legislation which created this Court to find an answer to thisdispute. That legislation is to be found in the second RepublicanConstitution of 1978. The Supreme Court which existed up to thetime of the first Republican Constitution of 1972 and which continuedto exist under that Constitution ceased to exist when the 1978Constitution became operative. (Vide Article 105 (2) of theConstitution). Its place was taken by the Court of Appeal (Vide Article169 (2) of the 1978 Constitution). A new Supreme Court has beenconstituted which is the highest and final Superior Court of Record.(Article 118 of the Constitution). It has jurisdiction in constitutionalmatters which are spelled out in Articles 120. 121. 122, 123 and125 of the Constitution, A fetter has been placed on this jurisdictionby the provisions of Article 124. The exact nature and effect of itsconfines is not a matter that arises for discussion in this case. ThisCourt has a jurisdiction for the protection of fundamental rights (Article118 {£>)). The manner of its exercise is set out in Article 126 of theConstitution. It has a final appellate jurisdiction which is referred to rndetail in Article 127 of the Constitution. It has a consultativejurisdiction (Article 118 (d)) which is referred to in detail in Article129 of the Constitution and it has a jurisdiction in election petitions(Article 118 (e)) which is referred to in detail in Article 130 of theConstitution. Lastly it has a jurisdiction in respect of any breach of theprivileges of Parliament (Article 118 (ft ) which is referred to in Article131 of the Constitution. Other jurisdictions may be’vested in it by lawspassed by Parliament. (Article 118 (g)). None of the provisionsexpressly conferring jurisdiction which I have cited above give this
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Court a jurisdiction to revise its own decisions. Nor has the Legislatureacting in terms of Article 118 (g) conferred such a jurisdiction bylaw. On the other hand the language in certain of the Articles indicatestp my mind, not only that it is the Court of last resort in appeal, (Article118 (c)) but also that there is finality in its judgment whether it beright or wrong. Article 126 (5) stipulates that this Court shall ‘finallydispose of” the petition within three months. The use of the word'finally' indicates to my mind that the limitation is not confined to theperiod of time, viz., three months, but also refers to the effect of theorder made. I would take the same attitude which Harman. J. adoptedin a similar situation. 'The thing is over*. There is nothing more thatcan be done. There must be certainty in the law-fle Exchange Street,Manchester (1). Article 127 states that all judgments and orders ofthis Court in its appellate jurisdiction shall be 'final and conclusive*The use of these words primarily means that there can be no furtherappeal to a higher court or institution. Waterhouse & Co., v. Gilbert {2)and Lyon v. Morris (3). It might be said that such a phrase issuperfluous because the Supreme Court is the final Appellate Court.This is a plausible statement. But it appears to me that it was meant toemphasise the fact that as far as the matters.,which are the subject ofthe decision are concerned it is all over. There is an end to suchlitigation – as needs must be with all litigation. Ut sit finis litium. That isthe policy of the law. That is the purpose of Chapter XV of theConstitution. A like view was taken of the Supreme Court that existedup to the time of the Constitution of 1978. In the case of Mapoiathanv. Elayavan (4) an application was made to revise the earlier decisionof the Supreme Court in the same case. That decision was based onthe premise that the Deed of Transfer was signed by two transferors.It was later pointed out that there were in fact four transferors. It wasalleged that if the original Deed filed of record had been properlyscrutinized this fact would have been discovered, and the decision ofthe Court would have been in favour of the petitioner. It was held thatwhile the Courts Ordinance gave the Supreme Court power to deal byway of revision with cases tried or pending in original courts it had nopower to revise cases decided by the Supreme Court itself. See alsoLoku Banda v. Assen (5) and Elo Singho v. Joseph (6). I hold that thisSupreme Qourt has no jurisdiction to act in revision in cases decidedby itself.
Counsel for the petitioner submitted that this Court possessedinherent powers which were sufficient to enable it to grant the relief
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prayed for by the petitioner.He relied on the provision of Article 105
which reads as follows :
"(3) The Supreme Court of the Republic of Sri Lanka and theCourt of Appeal of the Republic of Sri Lanka shall each be a superiorcourt of record and shall have all the powers of such court includingthe power to punish for contempt of itself, whether committed inthe court itself or elsewhere, with imprisonment or fine or both asthe court may deem fit.'
Counsel contended that the powers of a Superior Court of record'included an inherent jurisdiction to correct its own decisions'. As aSuperior Court of record there is no doubt that it has inherent powersto make corrections to meet the ends of justice. In Mohamed v.Anrtamalai Chettiar{7) the Court used its inherent powers to free aninsolvent from arrest pending the decision of his appeal to the PrivyCouncil although there was no statutory authority for such an Order.Costs have been awarded to a successful party from the inception ofthe Supreme Court using its inherent power – Karuppannan v.Commissioner for Registration of Indian and Pakistani Residents (8).Inherent powers have been used to correct errors which weredemonstrably and manifestly wrong and it was necessary in theinterests of justice to put matters right. Decisions made per incuriamhave been corrected. Vide In Revision (9), Alasupillai v. Yavetpillai(10),Ranmenikhamy v. Tissera (11). In the case of King v. Baron Silva (12)the Supreme Court upheld the conviction of the accused in the caseon a charge of conspiracy to commit extortion. Sometime later it wasbrought .to the notice of the Supreme Court that such offence ofconspiracydid not exist at the time of the alleged commission. TheCourt held that its decision had been made per incuriam and alteredthe conviction. These powers are adjuncts to existing jurisdiction toremedy injustice-they cannot be made the source of new jurisdictionsto revise a judgment rendered by that Court. Can such powers availthe petitioner in this case ?
Counsel for the petitioner formulated two issues for considerationand decision by this Court. The first issue is as follows :
A The Supreme Court acted per incuriam in deciding Appeal No.
20/83 for the following reasons :
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It has made the finding against the Petitioner in respect ofan infringement not complained of to Court by Mrs. Gunawardena(petitioner-respondent) and in fact disowned by her. Such Orderwas in disregard of Article 126 (2) read with rule 65 {1) (a) of the
* Supreme Court Rules.
The power to grant relief or give directions which theSupreme Court deems just and equitable under Article 126 (4) isrestricted to the Petitioner's allegation and complaint to Courtunder Article 126 (2).
In any event the Court acted per incuriam in making itsfinding in that it disregarded-
Article 126 (2) read with Rule 65 < 1) and Rule 65 (4) (ii).
The rule of natural justice-aucf/ alteram partem.
The rule of natural justice that justice must be seen to bedone.
The second issue is as follows :
B. The Supreme Court has the jurisdiction to grant the Petitioner(Ganeshanantham) relief in respect of the aforesaid per incuriamfinding either in the exercise of its inherent jurisdiction or powers ofrevision.
The jurisdiction granted to this Court by Article 126 of theConstitution concerns fundamental rights and language rightsdeclared by Chapters III and IV of the Constitution. In exercising thisjurisdiction the Court has to make a dual finding, viz.,
Whether there is an infringement or threatened infringementof a fundamental right, and
Whether such infringement or threat is by executive or
administrative action.
tf-the answer to the first is in the negative the second does not arisefor consideration. If the answer to the first is in the affirmative then thequestion arises as to whether the act complained of constitutesexecutive or administrative action. It may not always be possible forthe petitioner to allege in his petition that the act was that of aparticular officer of State. His name may not be known to the
SCGaneshanantham v. Goonewardene (Samarakoon, C. J.)331
petitioner, and he may only be able to identify him by other means. Forexample in the course of the inquiry he may be able to establish that itwas a police officer of a named Police Station. This Court would thenhave jurisdiction to act in terms of Article 126. On the other hand itmay be that in the course of the inquiry it transpires (as happened i»the instant case), and it is established to the satisfaction of the Court,that the infringement was by a State Officer other than die one namedin the petition. This Court would still have the power to act in terms ofArticle 126. The jurisdiction of this Court does not depend on the factthat a particular officer is mentioned by name nor is it confined to theperson named. The unlawful act gives the Court jurisdiction toentertain the petition and to make a declaration accordingly. The factthat it was committed by an Officer of State empowers the Court togrant a remedy. The provisions of Article 126 (2) do not limit theinquiry to the person named in the petition. Such a limitation isapparent in the provisions of Article 126 (3) where the inquiry isconfined to the party named in the application for a writ in respect ofwhom the Court of Appeal makes the reference. Article 4 (d) of theConstitution enjoins all organs of Government to respect, secure andadvance the fundamental rights declared and recognized by theConstitution. This Court being a component part of the judiciary,which is one of the organs of Government, must necessarily obey suchcommand. It will be a travesty of justice if, having found as a fact thata fundamental right has been infringed or is threatened to be infringed,it yet dismisses the petition because it is established that the act wasnot that of the Officer of State named in the petition but that ofanother State Officer, such as a subordinate of his. The provisions ofArticle 126 (2) cannot be confined in that way. This Court has beengiven power to grant relief as it may deem just and equitable-a powerstated in the widest possible terms. It will be neither just nor equitableto deny relief in such a case. Counsel for the Petitioner referred to theprovisions of Rule 65 and called in aid its terms to buttress hisargument. Rule 65 merely states that the Petitioner shall name theperson who he alleges has commited the unlawful act. This by nomeans exhausts the avenues available to a petitioner. As I have statedearlier it does not provide for a situation where the petitioner is unableto name the Officer of State who commits the act. Furthermore Rule65 concerns procedure and like most rules cannot detract from thepowers of Article 126. I therefore reject the contention raised inissues A 1 and 2 by Counsel for the petitioner.
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I now turn to issue 3(1) (ii) and (iii). There has been no disregard ofthe provisions of Article 126 (2) read with Rule 65 (2) and (4) (ii).Before I deal with these issues I desire to dispose of another matterthat was raised by Counsel for the petitioner. In para 5 of his affidavitdated 9.5.1983 the petitioner stated that he “questioned the lady atthe head of the procession whether they ha<d a permit to go inprocession and no permit was produced by the said lady or any othermember of the procession". He states that when he became awarethat the procession was being conducted 'without the authority of alawful permit' it became his lawful duty to prevent the conduct of theprocession. The Court held that no permit or permission was requiredfor the procession. The petitioner now states that had he been givenan opportunity -to defend himself he would have explained what hemeant by the word 'permit', suggesting that when he used that wordit did not have its ordinary English meaning. If that be so he has onlyhimself to blame. The Court was entitled to take it to mean as theInspector-General of Police the 2nd respondent did what it ordinarilymeans in the English language and it is too late now to state that heused the word in a sense different to its ordinary connotation.
Another submission of Counsel was that the arrest complained of toCourt by the petitioner-respondent was not the arrest by the petitionerand the Court therefore had no jurisdiction to inquire into this latterarrest, more so because the petitioner-respondent denied this in hercounter affidavit. This arrest by the petitioner was one episode and theCourt has treated it as one transaction in which there was only onearrest and that was by the petitioner. The implication is that the arrestwas mistakenly attributed to the first respondent. That finding cannotnow be questioned in these proceedings. Moreover it was based onfacts disclosed by the petitioner in his affidavit.
Counsel for the petitioner next submitted that the petitioner was nota party to the proceedings in question and had not been told that hisconduct was being impugned and therefore would be the subject ofinquiry by the Court. Further, that a finding of guilt had been madeagainst his client without hearing him. This procedure, it is submitted,violated the principle of natural justice-audr alteram partem. "Justicemust be seen to be done', he said. 'Justice has not been seen to bedone'. In the result, he states, the finding that the arrest was madeunlawfully by the petitioner was made per incuriam and must beexpunged or declared invalid. When confronted with the position that
SC , Gmwshananthm v. Goonewardene'fSamarakoon. C. J.)* 333
the Court would be stultifying itself if it made such an order becausethe award of damages was based on such finding and therefore couldnot stand if such finding was expunged or declared invalid, Counselwent the whole hog and asked that the entire order be set aside.
Counsel contended that the rule of natural justice – audi alterampartem – applied not only to a party to a case but also to any personagainst whom findings are made or strictures passed without eitherbeing made a party to the proceedings or being informed that hisconduct is being impugned and would therefore be inquired into.Counsel has sought to establish this contention with the aid of somedecisions of the English Courts. I will now deal with these cases citedby him. The first of them is the case of The Seistan (13). The MotorVessel Seistan sank on 19th February, 1958, in the Persian Gulf offBahrain as a result of an explosion. A Court of format investigationconsisting of a Wreck Commissioner and three assessors was set up.The Chief Engineer of the Vessel, Mr. Robertson, was seriously ill andtherefore was unable to give evidence in person but did so by meansof three statements signed by him. The final report was signed by theCommissioner and the three Assessors. One of the Assessors,Captain Parfitt by name, added a rider in these words- /
'I concur in the above but in my opinion the advice given by thechief officer, Mr. Jones, as to flooding the lower hold offered thebetter chance of a quicker extinction of the fire. The conduct of thechief engineer in misinforming the chief officer regarding No. 5 bilgeline non-return valve was reprehensible."
The Minister of Transport and Civil Aviation ordered a re-hearingrestricted to so much of the case heard at the formal investigation asrelated to the conduct of the Chief Engineer. The real object of there-hearing was to inquire into the merits of the censure. The last ofquestions answered by the Commissioner and Assessors was-
*Was the loss of the Motor Vessel Seistan caused or contributedto by the wrongful act or default of any person or persons. ?’
All except Captain Parfitt answered 'No*. Merriman, J. expressed theopinion that there was no justification for the censure. He furtherstated that the question required the Court to pronounce on theculpability of a person or persons and the rider implied that the ChiefEngineer misinformed the Chief Officer regarding No. 5* bilge linenon-return valve and thereby caused retardation of the flooding of the
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hold. It then behoved the Assessor and the Court to give the officer anopportunity of exculpating himself. This was not done and Merriman,
J.stated that in the circumstances the censure was “wholly irregular".The Court did not expunge or set aside the rider. It merely stated thatihere was “no justification for censuring George Robertson”. Duringthe whole of the inquiry there does not appear to have been anysuggestion that the Chief Engineer had misinformed the Chief Officerregarding the cause of the explosion. There was no inkling of such asuggestion nor was such an allegation inquired into. The ChiefEngineer therefore had no occasion to explain or justify any conduct ofhis. Such a situation does not arise in the instant case. The next casecited is the case of Sheldon v. Bromfield Justices (14). The facts aresimple. One Charles Wilfred Marsh, was charged with assaulting hismother-in-law, Mary Elizabeth Sheldon. She and her husband, ThomasWilliam Sheldon, gave evidence for the prosecution. The charge was•dismissed but the justices bound over the accused and the twoSheldons to keep the peace for a period of 12 months. This order wasset aside as being contrary to natural justice. Lord Parker, the C. J. wasof the view that a mere witness who comes to testify against anaccused should at least be told that his conduct was also in questionand he must be given a reasonable opportunity of knowing the natureof the allegation and of making his answer to it. A similar situationarose in the case of Appuhamy v. Regina (15). The witness wassummarily punished for having given false evidence. TheCommissioner of Assize acted upon a rider to that effect brought bythe jury. This conviction was set aside. It was clearly wrong as theprovisions of section 440 (1) of the Criminal Procedure Codepermitted the Court to convict if in the Court's opinion he had givenfalse evidence in which event the witness should have been toldaccordingly and an indication given of the evidence alleged to be false.The Commissioner had no power to act summarily on the opinion ofthe jury that the witness had given false evidence. This decision wasbased on a statutory provision. The Privy Council held that the witnesshad not been told the “gist and substance’ of the accusation againsthim. The next case cited is the case of Rex v. The ThamesMagistrate's Court (16). The facts show that the prosecution and thelay justices were in an inordinate hurry. Summons was served on aCaptain of ji*Greek Vessel at 10.30 a.m. on the 17th July returnable atthe Magistrate’s Court at 2.00 p.m. that very day. The Greek Captainknew little or no English. His Solicitors found it impossible to prepare
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the defence before 2.00 p.m. and therefore applied for apostponement. They were granted an adjournment till 4.00 p.m. Itwas later taken up that day by a Stipendiary Magistrate. He heard thecase out that very day and found the case proved. The Captain wasfined £5,000. The Court held that there was a breach of naturaljustice. The facts showed clearly that the defendant had not beengiven a reasonable chance to prepare his defence. Lord Widgery, C.J.said-
"To start with, nothing is clearer today than that a breach of therules of natural justice is said to occur if a party to proceedings, andmore especially the defendant in a criminal case, is not given areasonable chance to present his case. It is so elementary and sobasic it hardly needs to be said. But of the versions of breach of therules of natural justice with which in this Court we are dealingconstantly, perhaps the most common today is the allegation thatthe defence were prejudiced because they were not given a fair andreasonable opportunity to present their case to the Court, and ofcourse the opportunity to present a case to the Court is not confinedto being given an opportunity to stand up and say what you want tosay ; it necessarily extends to a reasonable opportunity to prepareyour case before you are called on to present it. A mere allocation of'Court time is of no value if the party in question is deprived of theopportunity of getting his tackle in order and being able to presenthis case in the fullest sense.'
There is no complaint of this kind in the instant case and it is thereforenot applicable. The next case cited is the case of General Council ofMedical Education and Registration of. the United Kingdom v.Spackman (17). In-this case Dr. Spackman had been found guilty inthe Divorce Court of adultery with a female patient of his who wassuing her husband for divorce. The doctor was ordered to pay £ 1,000damages to the husband. He was charged before the General MedicalCouncil with infamous conduct in a professional respect. Before theCouncil the doctor sought to negative the Court's finding of adulteryby tendering evidence which, though available, was not called in thqdivorce proceedings. The Council refused to hear such evidence anddirected that the doctor be struck off the Medical Practitioners'Register. This order was challenged by Writ of Certiorari. The King'sBench Division issued the Writ which was affirmed by the House of
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Lords in appeal. The decision turned on the construction of the words''due inquiry' in section 29 of the Medical Act of 1858. The House ofLords held that it was incumbent on the Council to hold due inquiryand judge guilt. It cannot rely upon an inquiry by another Tribunal or ajudgment of guilt by another Tribunal. I cannot see how this decisionsupports the contention of the Counsel for the petitioner.
Mr. Choksy referred us to a decision of the Privy Council in the caseof Mahon v. Air New Zealand Ltd (18) reported in a newspaper datedOctober 21,1983. It is an abridged version and therefore not reliable.A Law Report containing the judgment is not available here in SriLanka. However as Mr. Choksy laid great stress on this decision Ipropose to refer to it (a photostat copy has been made available tome) mindful of the fact that a reading of the judgment itself later mightprove that the editor's summary of the judgment is either wrong orinaccurate. It appears that the Governor-General of New Zealand hadappointed a Royal Commission to inquire into the 'cause andcircumstances' of the crash of the DC 10 aircraft operated by Air NewZealand on a sight seeing trip of the Antarctic. The 237 passengersand the crew of 20 were killed. The appellant (a Judge) had beenappointed Commissioner. In his report he ordered Air New Zealand topay to the Ministry of Justice a sum of New Zealand $ 150,000 as acontribution to the costs of the inquiry. The reason he gave for thisorder is quoted as follows :
‘But in this case, the palpably false sections of evidence which Iheard could not have been the result of mistake, or faultyrecollection. They originated I am compelled to say, in apre-detemnined plan of deception. They were very clearly part of anattempt to conceal a series of disastrous administrative blundersand so, in regard to the particular items of evidence to which I havereferred, I am forced reluctantly to say that I had to listen to anorchestrated litany of lies.'
The parties to the deception and conspiracy were readily identifiablein the body of the report. Four flight operators also were identified asconspirators. The report states that the Privy Council disposed of theappeal on the ground that the Judge had inadvertently failed to applythe applicable rules of natural justice set out in the case of R. v.Deputy. Industrial ‘Injuries Commissioner: ex parte Moore (19). Theyare-
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{1) A finding must be based on evidence of probative value.
(2) The Judge must listen fairly to the relevant evidenceconflicting with the finding (sic.) the arguments placed by thosewhose interests are affected or would have so wished to place haghe been made aware of die risks of the findings being made.(Theemphasis is mine).
As regards the first proposition it is reported that the Privy Councilfound that on the facts it was not conceivable that individual witnessesfalsely disclaimed knowledge of low flying on previous trips in aconcerted attempt to deceive. Nor had there been evidence ofprobative value to base a finding of concealment of documents. Weare not concerned with the first proposition or the Privy Council'sdecision on it in the instant case. As regards the second propositionthe Privy Council is stated to have held that the Judge's finding ofconcerted concealment of Air New Zealand's adoption of a newSoutherly way point for Antarctic Sightseeing flights was rightlyrejected by the Court of Appeal because he had failed to hear bothsides and the inferences he drew were based on a logical fallacy.Either reason would have been sufficient to reject the finding. Hereagain I must point out that the editor's reporting may be inaccurate.Assuming that he is correct it means that Air New Zealand shouldhave been in some way or other made aware that there was a risk ofsuch a finding. Apparently the airline had no such knowledge up to thetime they were confronted with the finding against them. Once again Imust state that the position of the petitioner in the instant case isdifferent in that he had knowledge and was aware that his act inarresting the petitioner-respondent would be the basis of any findingagainst the State and that such arrest must be justified in law. He wasmore fortunate than the airline because he ran no risk of being mulctedin damages simply because he was not a party to the case.
In the instant case the Petitioner tendered to Court an affidavitwhich was filed by the head of his Department, the Inspector-Generalof Police (2nd respondent). In his affidavit he stated the fact that hearrested the petitioner-respondent on the pavement opposite thePolice Station and took her with others into the Police Station. He wasthereby representing to court that until such time as she was releasedfrom custody she was detained under arrest made by him and not byhe 1st respondent. It must have been clear to him and to all othprc
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involved in the case that there could not have been a second arrest inthe Police Station. It would have been equally clear that that was thearrest which was the subject of inquiry by Court, and therefore had tobe justified in law. The petitioner therefore pleaded as follows
'l state that I along with Police Constables 11085, 7634,12071and 5224 questioned the lady at the head of the processionwhether they had a permit to go in a procession and no permit wasproduced by the said lady or any other members of the procession. Istate that when I became aware that the said procession was beingconducted without the authority of a lawful permit and that theparticipants were committing offences under section 77 of thePolice Ordinance it became my lawful duty under section 56 of thePolice Ordinance to prevent the conduct of that procession."
Why was he seeking "to justify the arrest in law" ? If his purpose wasonly to absolve the 1 st respondent all he had to state was that hemade the arrest in question and stop there. The fact that heproceeded to justify the arrest establishes two important facts. Firstly,that he was aware that it was the arrest by him that was the real issuein the case and secondly, that the legality of the arrest had to beestablished. His affidavit was accepted by Court and we wereinformed by Counsel at the Bar that Counsel appearing for the 2nd and3rd respondents and the defence addressed the Court on the legalityof this arrest. The written submissions tendered on behalf of thesecond and third) respondents, i.e., the Inspector-General of Policeand the Attorney-General respectively, endorsed this action 'as beingin accordance with procedures established by law". The petitioner washeard by affidavit as is normally done in cases of this kind. Oralevidence is rarely led or permitted. In fact all evidence relevant to thematter was adduced by affidavit. The petitioner cannot state, as wasstated in the case of the Seistan, that he had no inkling of the fact thatthe arrest by him was to be called in question or was in fact in questionin the matter. Nor can he plead, as in the Sheldon case, that he, awitness to another's act, suddenly found himself being accused anddealt with for an offence. I have no doubt that the petitioner knew atthe time he swore the affidavit that it was filed for the purpose ofestablishing that there was only one arrest and that arrest was madeby him and not by anyone else, that it was that very arrest and itslegality that would be in issue in the inquiry and that it was necessaryto justify the arrest in law. His Counsel submitted that had the
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petitioner been heard he would have succeeded where the 2nd and3rd respondents tailed. The matter that was argued was the legality ofthe arrest. It was purely a legal argument based on statutoryprovisions. The Additional Solicitor-General argued for the 2nd and3rd respondents. The petitioner thinks he could have done better. Heis entitled to his opinion but I do not think he could have addedanything useful to the argument. The parties to the case were heardby affidavit. Likewise the petitioner was heard by affidavit. Counselcontends that “justice has not been seen to be done"- all because thepetitioner had not been told that his conduct was being impugned inthe case. Appearances are sometimes deceptive and it is so in thiscase. As I stated earlier the petitioner knew all along that it was thearrest by him and its validity that was in issue in the case. He hassuffered no prejudice as a result of not being given an opportunity toenter into the fray and take part in the legal argument. "No one cancomplain of not being given an opportunity to make representations ifsuch an opportunity would have availed him nothing*- per Brandon,L.J. in Cinnamond v. British Airports Authority (20). There is anothermatter to be taken into account. Article 134(1) states that in anapplication under Article 126 the Attorney-General shall be heardand parties to such proceedings have the right to be heard in personor by an Attorney-at-law. Any other person may be heard at theCourt's discretion. Article 134 (3) reads –
'The Supreme Court may in its discretion grant to any otherperson or his legal representative such hearing as may appear to theCourt to be necessary in the exercise of its jurisdiction under thisChapter."
The petitioner was given such hearing as the Court considerednecessary. It is not for this Court now to say that such hearing wasinsufficient. I hold that that the rule of natural justice – audi alterampartem – has been observed. In any event the provisions of Article134 (3) have been satisfied. I therefore reject the contentions raisedin issue 3 (ii) and (iii).
The only issue left is issue B. I have already held that that this Courthas no power to revise its own decisions. As for the exercise ofinherent powers I need only state that there is no justification forexercising any of the inherent powers of this Court.
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I dismiss the petitioner's application. The petitioner-respondent willbe entitled to costs.
SHARVANANDA, J. – I agree.
WIMALARATNE, J. -1 agree.
C0L1N-TH0ME . J.- I agree.
WANASUNDERA. J.
I am in complete agreement with the judgment of the Chief Justice onall the matters dealt with by him. But I would like to take thisopportunity of adding my own observations briefly on one or two ofthe legal issues before us.
The petitioner's complaint is that in the judgment of the SupremeCourt in S. C. Application No. 20/83, this court, without affording thepetitioner an opportunity of being heard, had made 'an adverse findingin respect of the petitioner's conduct as a Police Officer by holdingthat the petitioner was guilty of an unlawful arrest in contravention ofthe Constitutional prohibition of arrest.'
In that case, which was filed by Mrs. Viviene Gooneyvardena underArticle 126 of the Constitution for a violation of fundamental rights,the respondents to the application were Hector Perera, theOfficer-in-Charge of the Kollupitiya Police Station (1st respondent)Rudra Rajasingham, l.G.P. (2nd respondent) and the Attorney-General(3rd respondent). The order of the court was that the State should paya sum of Rs. 2,500 as compensation to the petitioner Mrs. VivieneGoonewardena. No punishment, fine, penalty or liability has beenimposed on the petitioner or anyone else.
In S. C. Application No. 20/83, the present petitioner came beforethe court in the capacity of a witness. In terms of the procedure laiddown, a petition under Article 126 has to be decided on affidavitevidence. The petitioner's affidavit was submitted to court by thel.G.P., in support of the I.G.P.’s own case. In disposing of thatapplication and in the course of coming to findings of fact and lawbefore court, the court made the following observations on thepresent petitioner's affidavit—
"On bfc own showing Sub-Inspector Ganeshanantham was guiltyof arresting the petitioner in contravention of the constitutionalprohibition of arrest, except according.to the procedure established
SCGaneshanantham v. Goonewardene (Wanasundera, J.)341
by law. The arrest constitutes an infringement of a fundamentalright. Sub-Inspector Ganeshanantham's action no doubt proceedsfrom a wrong appreciation of the law, but the infringementremains."•
Considering Mr. Choksy's submissions to us, three matters-allinterconnected-immediately arise for consideration. They are thefollowing : Is a court in the course of deciding a case entitled to makean adverse finding in respect of the conduct and evidence of awitness ? Second, is such a witness then entitled to a further hearing,that is to say an opportunity of explaining why such a finding shouldnot be made against him. Third, if the second question is to beanswered in the affirmative, should such a hearing be granted only incertain limited and special circumstances ?
The answer to the first question posed by me is decidedly 'yes'.People take their grievances to the courts for decision. It is the duty of acourt in deciding a case to consider all the evidence placed before it.determine the several issues of fact and law involved and then makean order in accordance with the law disposing of the matter. In thecourse of arriving at its finding a court has necessarily to believe anddisbelieve the evidence given by the witnesses for the respectivesides. A judge has a wide discretion in forming his judgment and isgiven a wide latitude in expressing his views. It is quite legitimate forhim to make his comments on the evidence and this can be expressedin 'language which he considers suitable though it may reflectfavourably or unfavourably on a witness.
It is not a requirement of the law of this country that a witness whohas given evidence should be informed prior to the judgment of theproposed reasons for disbelieving him and be afforded an opportunity ofmaking representations. The principle of audi alteram partem relied onby the petitioner has become an important legal topic in modern timesdue to its relevance in the field of administrative law. As far as thecourts are concerned, our courts are courts of law and justice and aremeant to be the embodiment of justice and fairness. This principle isinherent in the practice and structure of the courts.
Article 126 of the Constitution shows that in an application underthat Article the accusation is made against the State and the Statethrough its principal Law Officer, the Attorney-General is required todefend the action. It is a legal requirement that the Attorney-General
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should be heard. There are Rules providing for particulars to be givenregarding the acts and the persons concerned in respect of the allegedviolation of fundamental rights. Such persons, if disclosed are, nodoubt, given the status of respondents. But the Rules cannot derogatefrom the substantive constitutional provisions and alter the nature andcomposition of a proceeding under Article 126. As the Chief Justicehas pointed out, a proceeding under Article 126 is against the Stateand the State has to bear the liability for unlawful executive oradministrative action.
The case law cited however shows that when a punishment, penaltyor liability has to be imposed on a person, whether he be party orwitness, the law would generally require that that person concernedbe apprised of the charge, allegation or complaint against him, and hebe afforded an opportunity of giving an explanation. Now the questionis whether the observations made by the court in this case can amountto the imposition of a punishment, penalty or liability. Mr. Choksypointed to the following passage in the judgment-
" Sub-Inspector Ganeshanantham was guilty of arresting the
petitioner in contravention of the constitutional prohibition'
Seizing upon the use of the word 'guilty', he submitted that thislanguage indicates unlawful conduct and a finding of guilt as in thecase of an offence. The word 'guilty' does not necessarily mean onlycriminality, it can also mean culpability, namely blameworthiness. Wefind it often used in ordinary parlance in the latter sense. Theobservation made by the court in my opinion by no means imposes oris intended to impose any punishment, penalty or liability on thepetitioner. It constituted a necessary step in the process of the judge'sreasoning and without it he could not have come to a properdetermination of the case.
I have so far been considering the case of a witness who isdisbelieved by the court. That however is not the case here. On thecontrary, in the present case, the petitioner's statements on thefactual matters which would be equivalent to oral evidence in a normalcourt action, were accepted by the court in toto. It is in regard to theapplicable legal provisions that the court has chosen to differ from thewitness.
The petitioner had gone out of his way to justify the arrest andsought cover for his actions in certain legal provisions. This is a matterof law falling within the province of the judge.
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It is a common occurrence in our Courts to find a judge differingfrom a lay witness as to what the law is. Witnesses are often mistakenabout the law and their legal rights. When the views of a witness are notacceptable does such a witness have a right to ask that he beresummoned and be heard on the matter? This appears to be the r$alissue in this case. Incidentally the wrong conduct of a person,especially a public officer under a misapprehension of the law cannotamount to a finding of moral turpitude unless such action is malicious.The Air New-Zealand case cited by Mr: Choksy to which I shall nowturn deals with this aspect of the matter at some length.
The Air New Zealand case Mahon v. Air New Zealand Ltd. (18) ofwhich we have been furnished only with an abridged newspaper reportand the case of The Seistan (13) both deal with public inquiries held byCommissioners. Commissions, of Inquiry as we know, are generallygiven broad and vague terms of reference. It is the duty of aCommission to hold an inquiry and to make specific findings in respectof the matters referred to it and to identify any person or personsresponsible for any wrongful act and on whom liability should beimposed. Generally at the inception of the work of the Commission, allpersons summoned before the Commission, come before it as merewitnesses. When sufficient material is available the Commission maybe in a position to prefer charges against specific persons. From thatstage onwards such a person would be in the position of a party, incontradiction to that of a witness; if the language and the analogy ofCourt proceedings can be adopted in that context. Once the conductof a person is the subject of the inquiry, he must be afforded all therights and privileges of a party.
In the Air New Zealand case Mr. Mahon, a Judge of the High Court,was appointed to a Royal Commission as the sole Commissioner. TheCommission was required to inquire into an aircraft disaster involvingan aircraft of the New Zealand Air Lines. After inquiry the Commissionfound that the dominant cause of the disaster was the act of the NewZealand Air Lines changing the aircraft computer track withoutinforming the air crew. The Commissioner held that the air line officials, who had prepared the flight had made a mistake and this was due tothe incompetent administrative procedure in existence. Th§Commission exonerated the air crew but went on to'observe thatthere had been a concerted attempt oy certaih officers of ANZ toconceal a series of disastrous administrative blunders and this was a
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predetermined plan of deception. These persons could be identified inthe report. They were the senior officers employed in the flightoperation department and the four members of the. Navigationsection. The Commissioner followed this up with an order againstANZ, ordering it to pay to the Department of Justice as a punishment,3 sum of 150.000 New Zealand dollars, being the public cost of theinquiry.
Naturally ANZ filed papers in the Court of Appeal for quashing thefindings. It would appear, judging from the available report that notonly were these persons not before the Commission at all but thestrictures that were passed were based on a logical fallacy and couldnot be supported by the material before the Commission. Here wehave a case where a substantial penalty has been imposed andadverse findings made against persons who apparently took no partwhatsoever in the proceedings. That is very different from the case weare now considering.
It is somewhat ironical to observe that the CommissionerMr. Mahon who had erred on the law appears to have shown anundue sensitiveness to the criticism of his order by the Court ofAppeal. The appeal to the Privy Council seems to have been taken athis instance. To allay any misconception he may have entertained onthis score the Privy Council went out of its way to make apronouncement on this matter. These observations are pertinent tothe case before us since here too the petitioner's conduct has beencriticised for his wrong view of the law. I shall quote the relevantpassage in extenso-
"His Lordship added that to say of a person who holds judicialoffice that he had failed to observe a rule of natural justice mightsound to a lay ear as if it were a severe criticism of his conductwhich carries with it a moral overtone.
But that was far from being the case. It was a criticism whichmight be and in the instant case was certainly intended by TheirLordships in making it to be wholly dissociated from any moralovertones,
Earlier Their Lordships had set out the two rules of natural justicethat applied to the appeal.
It was easy enough to slip up over one or other of them in civillitigation, particularly when one was subject to pressure of time inpreparing’ a judgment after hearing masses of evidence in a long andhighly complex suit.
SCGaneshanantham v. Goonewareteifa (Wanasundera, J.)345
In the case of a judgment in ordinary civil litigation such failure toobserve rules of natural justice was simply one possible ground ofappeal among many others and attracted no particular attention.
All Their Lordships could remember highly respected colleagueswho as trial Judges had appeals against judgments they hdtidelivered allowed on that ground and no one thought any the worseof them for it.
So Their Lordships recommendation that the appeal ought to bedismissed could not have any adverse effect upon the reputation ofthe Judge among those-who understood the legal position and itshould not do so with anyone else."
In Appuhamy v. Regina (15) there was a finding against a witnessthat he had given false evidence. The Court however did not stop withthis pronouncement but proceeded to try him summarily and punishhim. Apart from this course of action being contrary to certain expressstatutory provisions that are applicable, as a matter of principle it wasonly just and fair that the witness facing a criminal charge should havebeen given a fair hearing.
In Sheldon v. Bromfield Justices (14) the prosecution witnesseswere bound over, which is a punishment without prior intimation of thecourse of action the Court intended taking. The binding over order wasreferable to the merits of the main case. This was held to violate theprinciple of natural justice. However in ft. v. Woking Justices, ex parteGossage (21), Sheldon's case has been explained. In this case anacquitted defendant was bound over to keep the peace. Here too thedefendant had no notice of such proposed action. The Court howeverheld that this did not constitute a breach of natural justice because thedefendant had every opportunity at the main trial of adverting to all therelevant matters. Both these cases have been distinguished in ft. v.Hopkins, ex parte. Harward (22). In this case the complainants whowere making counter complaints before the stipendiary Magistratewere immediately bound over for making a disturbance in Court. Theywere not given the opportunity of making representations. The Courtwas of the view that since there'was an imminent danger of a breechof the peace if the complainants left the Court premises the order waslawful and certiorari was refused. Widgery, C.J., said-
"We must keep in mind all the time that we are dealing withnatural justice and it is not desirable that natural justice should be
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(19841 1 SriLR.
divided up into rigid compartments. It is a matter which in its very
essence requires to be kept fluid and flexible to deal with the justice
of a particular case."
The rule of audi alteram partem should be applied only inappropriate circumstances. It should not be used mechanically in3very situation when an order reflecting on or affecting a person has tobe made by a court or tribunal. The Gossage case and the Hopkinscase show that when a disturbance is committed in the face of thecourt, the principle of the audi alteram partem rule will not apply, eventhough a punishment is imposed. By a parity of reasoning the principleought not to apply when a judge passes strictures on a witness in thecourse of deciding a case. It is only an episode in a single trial andconstitutes part and parcel of one proceeding, conducted accordingto the known standards of fairness and where the principle of naturaljustice cannot be divided, apportioned and compartmentalised. If therule is to be applied in situations like the present case it would result intrials within trials and the prospect of interminable litigation. Surelythat would be carrying the principle of audi alteram partem to absurdlengths.
There remains one final matter, Mr. Choksy stated to us quite franklythat the present application is being made by the petitioner because heanticipates that at some future time, a future government may takeaction prejudicial to the petitioner on the basis of the judgment in S.C.Application No. 20/83. If the impugned order properly interpreted canhave an adverse effect on the petitioner, then the petitioner wouldcertainly be running a risk of such consequences. But on the otherhand if the anticipated adverse consequences were to flow from someaction based on a misunderstanding of that order, then the petitionermust seek relief not against the order but against the person or'persons who perform such wrongful act and move in the matter at theappropriate time. It was admitted by counsel that the petitioner hadbeen promoted by the government subsequent to the court order.Hence it is apparent to everyone that the court order he is now seekingto canvass has not affected the petitioner as a Police Officer or stood*m the way of his promotions in the police force. In the face of thesedevelopments is not the petitioner trying to blow both hot and cold ?He cannot be allowed to say at one and the same time that theimpugned order affects him both adversely and pot adversely. To saythe least tha petitioner's present application is misconceived. In any .event his present application is premature, contingent and based onmere speculation.
SCGaneshanantham v. Goonewardeng (Ranasinghe, J.)^ 347
For the above reasons and the reasons given by the Chief Justice, Iam of the view that the court has neither the power to allow thisapplication nor is it one where we ought to grant relief. I agree tothe order made by the Chief Justice.
RANASINGHE, J.
The above named petitioner-respondent, who is a well-known figure inthe political life of this Island Republic, filed in this Court, on 8.4.83,Application bearing'No. 20/83, in terms of the provisions of Article126 (2) of the Constitution and the Rules of Court made by this Courtunder the said Constitution, against the aforementioned 1 st to the 3rd• respondents (who were also the 1 st to 3rd respondents respectivelyin the said application) on the ground : that, on 8.3.83 – which wasthe International Women's Day-when she went into the KollupitiyaPolice Station, she was illegally arrested and detained therein by the1 st respondent, the Officer-in-Charge of the said Police Station, whodid also, within the said Police Station, subject her to cruel, inhumanand degrading treatment: that such conduct on the part of the 1 strespondent constituted a violation of the fundamental rightsguaranteed to her by Articles 11 and 13 (1) of the Constitution : thatshe was, therefore, entitled to seek relief and redress in terms of theprovisions of Article 126 (2) of the Constitution.
The, 1st respondent filed an affidavit repudiating the allegationsmade by the petitioner-respondent against him. He denied that heeither arrested the petitioner-respondent or subjected her to any formof degrading treatment as alleged by her in her petition and affidavit.The 2nd respondent also filed an affidavit in which he too repudiatedthe allegations set out by the petitioner-respondent. The proxies of the2nd and 3rd respondents were both filed by an officer of theAttorney-General's Department. and the learned AdditionalSolicitor-General, who appeared for the 2nd and 3rd respondents atthis inquiry before this Court, appeared for both the 2nd and 3rdrespondents at the inquiry into the said Application No. 20/83. In thesaid earlier proceedings, an affidavit, dated 9.5.83 and marked 2R1 ,<from the petitioner. Inspector Ganeshanantham, was tendered toCourt by the Attorney-at-law appearing for the 2nd and 3rdrespondents. In that affidavit the petitioner-inspectorGaneshanantham – averred that :he arrested the
petitioner-respondent on the Galle Road close to the Kollupitiya PoliceStation : that she was, at that time, participating in a procession,
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which was being conducted without the authority of a lawful permit,along Galle Road from the direction of the Galle Face junction towardsthe Kollupitiya junction : that he directed the members of the saidprocession to disperse : that the petitioner-respondent thereuponpushed him aside and proceeded with the procession, disobeying hisdirections and did obstruct him in the discharge of his duties : that hethen, along with several police constables, arrested thepetitioner-respondent and four others, : that the said arrest was inaccordance with the law, and that they were informed of the reasonfor their arrest. A consideration of 2R1 makes it clear that thepetitioner was, in that affidavit, specifically answering the severalaverments set out in the petition and affidavit which had been filed bythe petitioner-respondent, and that the petitioner has expressly deniedany conduct which would amount to a violation of any of thefundamental rights pleaded by the petitioner-respondent.
In answer to the aforesaid affidavits of the 1 st and 2nd respondentsand also the said affidavit 2R1, the petitioner-respondent filed herfurther affidavit, dated 16.5.83. In the said affidavit thepetitioner-respondent specifically denied that she was arrestedoutside the Kollupitiya Police Station and reiterated her position thatshe went into the Kollupitiya Police Station of her own accord and thatshe was not taken into the said Police Station under arrest. Thus thepetitioner-respondent, far from accepting any arrest along the GalleRoad, not only categorically repudiated the petitioner's ^legations,but also flatly contradicted the petitioner. It is not as if she wasuncertain in her own mind as to what had happened outside thepremises of the said Police Station with the'resulting possibility thatthe version given by the petitioner could well have been the trueversion of what happened at the time in question. Far from it; for,there was not even a hint of uncertainty. As far as she was concernedher version was the truth, the whole truth , and nothing but the truth.The position taken up by her was quite clearly that what was averrednot only by the 1st respondent but also by the petitioner was a tissueof falsehood, unworthy of any consideration whatever.
It was in this state of the evidence that the Court came to make itsorder at the conclusion of the said earlier inquiry into the saidApplication No. 20/83, This Court, by its Order dated 8.6.83, held :that the allegation of degrading treatment, made by thepetitioner-respondent, has not been established by proof to the high
* sc
Ganeshananthem v. Goonewardenq (Ranasinghe, J.)
349
degree of probability required : that the petitioner-respondent has notaffirmatively proved, in the manner required, that she was firstarrested by the 1 st respondent inside the Police Station : that, on hisown showing, Sub-Inspector Ganeshanantham, the petitioner, wasguilty of arresting the petitioner-respondent in contravention of theConstitutional prohibition of arrest except according to procedure*established by law. The said findings of the Court make it clear that,although the Court did not accept and act upon the evidence of thepetitioner-respondent, and that which was led on her behalf, butaccepted the 1 st respondent's denial that he committed either of thewrongful acts alleged by the petitioner-respondent, yet, the Court hasproceeded to give relief to the petitioner-respondent upon a basiswhich was not only not accepted by the petitioner-respondent butwhich had also been categorically repudiated by her right up to the enoof the proceedings. A perusal of the said judgment also shows that,whilst the Court has considered the failure on the part of the petitionerto have disclosed in his affidavit 2R1 the reason which he had giventhe petitioner-respondent at the time he arrested her, as a grave lapse,the Court has, however, proceeded to test the validity of the saidarrest on the footing of a reason communicated to court by learnedCounsel who appeared for the respondents at the said inquiry.
The petitioner has now come before this Court complaining of thesaid Order of this Court, made on 8.6.83. in the aforementionedApplication No. 20/83. Learned Senior Attorney, appearing for thepetitioner, has formulated the grounds of complaint, and the basisupon which relief is being prayed for as follows :
A (1) That this Court has, in making the said Order, acted perincuriam for the reasons that:
it has made a finding against the petitioner, in respect of aninfringement not complained of to Court by thepetitioner-respondent, and which, in fact, was disowned byher in disregard of Article 126 (2) of the Constitution reacfwith Rule 65 (1) (a) of the Rules of this Court ;
the power to grant relief or make directions which theSupreme Court deems just and equitable under Article 126
was restricted to the petitioner-respondent % allegationsand complaint made to Court under Article 126 (2);
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[1984] 1 SriL.R.
in making the said finding it disregarded Article 126 (2) readwith Rule 65 (1) (b) and Rule 65 (4) (ii) of the Rules of thisCourt.
That the rule of natural justice, audi alteram partem, has beenviolated ;
That the rule of natural justice, that justice must not only bedone but must undoubtedly and manifestly be seen to be done,has been violated :
B This Court has jurisdiction to grant the petitioner relief in respectof the aforesaid per incuriam findings in the exercise ofeither its inherent jurisdiction or the powers of revision.
Chapter 3 of the Constitution sets out the fundamental rights whichare declared and recognised by the Constitution and which have, interms of Article 4 (of) of the Constitution to be respected, secured andadvanced by all organs of government and shall not be abridged,restricted or denied save in the manner and to the extent provided bythe Constitution itself thereinafter. Article 17 provides that everyperson shall be entitled to apply to the Supreme Court as provided byArticle 126 in respect of any infringement or imminent infringement,by executive or administrative action, of a fundamental right to whichsuch person is entitled under the provisions of the said Chapter 3,Article 126 (1) confers upon the Supreme Court sole and exclusivejurisdiction to hear and determine all such infringements offundamental rights ; and sub-article (2) of Article 126 requires allapplications for relief and redress in respect of such infringements tobe made within one month of the infringement so alleged inaccordance with such rules of Court as may be in force. Such anapplication so made can however be proceeded with only with leaveto proceed, first had and obtained from the Supreme Court. Article126 (4) empowers this Court to grant such relief or make suchdirections as it may deem just and equitable in the circumstances inrespect of a petition presented under Article 126 (1).
Rule 65 of the Rules of the Supreme Court, made under theprovisions of Article 136 of the Constitution, regulates the procedureto be followed by a person who desires to invoke the aforesaidjurisdiction Rested in the Supreme Court in terms of Article 126 of theConstitution. An applicant so desirous of obtaining relief or redresshas, inter alia.
SCGaneshanamham v. Goonewardene (Ranasihghe, J )351
(i) to file a petition setting out-
la) all relevant facts to show what particular fundamental righthe claims,
{b) all facts to show what infringement of such right has tak$nplace, and
details of the executive or administrative action which healleges has resulted in the infringement complained of;
<ii> name in his petition the Attorney-General and any person orpersons, who he alleges have infringed his fundamental right, asrespondents ;
(iit) support his petition by an affidavit and any other documentarymaterial; and
pray for leave of the Court in the first instance ; and
tender the specified number of copies of the petition and of thewritten submissions in support of his case.
It the petitioner obtains leave of court, then the Registrar of the Courtshall forthwith serve notice of the said application along with a copy ofthe written submissions on each of the respondents who then havethe right to file counter-affidavits and counter- submissions with noticeto the petitioner.
The nature of the liability incurred upon an infringement of afundamental right by a State officer and the real basis upon whichrelief or redress is granted has been set down by Lord Diplock, in thePrivy Council, in the case of Maharaj v. The Attorney-General ofTrinidad and Tobago (No, 2) (23) as :
"This is not vicarious liability, it is a liability of the State itself. It is
not a liability in tort at all, it is the liability in the public law of the
State'•
This view of the underlying principle has also been hitherto followedby this Court. Even though the liability arising upon an infringemenfbyexecutive or administrative action of a fundamental right guaranteedby the Constitution has been determined to be principally a liability ofthe State, yet, before such liability is brought home to the State, it isnecessary for the aggrieved person to establish that his fundamental
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[19841 1 SriLR.
right has been infringed by an executive or administrative act. Anysuch act has to be committed by a State Officer or by any other personwho could be held to be an organ of the State. It is only on account ofsuch an act by such an individual that the liability cast upon the Statewguld arise. It is in recognition of this position and of this principle thatRules 65 (1) (a) and {b) and 65 (4) (ii), in particular, have been framedin the way they have been framed. Not only the particulars set out inparagraphs (a) and (f>) of sub-rule (1) of Rule 65, but also the presenceof the alleged wrongdoer himself before Court is regarded as beingnecessary for the State to defend itself. Even after the requirementsset out in Rule 65 (1) (a) and (b) have been complied with, thepetitioner can proceed further only if and after he obtains the leave ofthis Court. Even a cursory examination of the contents of the said Rule65 shows the emphasis placed upon the necessity not only to identifythe particular individual against whom the wrongful conduct is allegedbut also to make him a party to the proceedings and give him notice ofthe proceedings and also to furnish him with all the informationrelating to the petitioner's claim so that not only he but also the Statecould have every reasonable opportunity of defending themselves.That this is the object of the said Rules there is and could be noquestion.
Although, on a consideration of the provisions of Article 126 (1)and (2) and also the provisions of Rule 65 of the aforesaid Rules of thisCourt, it does seem to me that the submissions A (1) (i), (ii) and (iii) setout above – in regard to the extent and the scope of the relief whichthis Court could grant to a petitioner upon a petition presented underArticle 126 of the Constitution – require serious consideration, yet,having regard to the peculiar circumstances in which the presentapplication has come to be made to this Court, I would prefer to foundmy consideration of the issues arising in this case on the muchbroader principles embodied in the learned Senior Attorney'saforementioned submissions A (2) and (3), on the assumption thatthis Court could have, in view of the provisions of Article 126 (4)of theConstitution, proceeded to consider whether thepetitioner-respondent should be granted relief on the basis of any acton the part 8f the petitioner even though it took the view that thepetitioner-respondent's claim based upon the 1 st respondent’s ownacts must fail.
sc
Ganeshanantham v. Goonewardene {Ranasinghe, J.)
353
Jurisdiction of this Court
The petitioner's application to this Court has been presented to thisCourt, inter alia, "in that most attractive form, an appeal to theinherent jurisdiction of the Court" – per Humphreys, J. in Re A Solicitor
. It has, however, been contended : that the judgment of thfeCourt pronounced on 8.6.83 in Application No. 20 of 1983 is finaland cannot now be interfered with by this Court in any way : that, evenif this Court has jurisdiction to intervene on the basis that an earlierdecision of this Court has been made per incuriam, such interferencemust be limited only to those cases where decisions are as a generalrule held to have been given per incuriam, viz, decision given inignorance or forgetfulness of some inconsistent statutory provision orof some authority binding on the court concerned : that this Courtconstituted as it is under the provisions of the 1978 Constitution hasno powers by way of Revision : that the petitioner, who does not, inhis prayer for relief, expressly pray that the earlier judgment be setaside, nevertheless makes a subtle attempt to render nugatory thesaid judgment by moving that the said finding, which constitutes thevery basis of the said judgment, be expunged.
.Article 105 of the Constitution which deals with the establishmentof Courts, provides, in sub-article (3). that the Supreme Court, and theCourt of Appeal shall each be a superior court of record and shall haveall the powers of such court including the power to punish forcontempt. What the powers of a 'Superior Court' are, are not set outin the Constitution or in any other statutory enactment. What they arewill therefore have to be gathered from earlier decisions, local andforeign.
In England the House of Lords has asserted the right to award costson the basis of an inherent jurisdiction vested in it. In 1896, in the caseof Guardians of Westham Union v. Churchwardens of Bethnal Green
, Lord Herschell said :
'Costs have been awarded for upwards of two centuries. I see nofoundation on which the power to order their payment can restexcept the inherent authority of this Court as the ultimate Court ofAppeal;' and
Lord MacNaghten observed that:
"The House of Lords, as the highest Court bf* Appeal has andnecessarily must have an inherent jurisdiction as regards costs.'
354 .
Sri Ubnka Law Reports
(1984] 1 SriLR.
The Supreme Court of Ceylon established under the now repealedCourts Ordinance (Chapter 6) too did not, prior to Act No. 39 of 1953which on 2.11.1953 introduced Sec. 51 A. possess statutoryauthority to award costs ; and Gratiaen, J. did, in the case ofKaruppannan v. Commissioner for Registration of Indian and PakistaniResidents, (8) invoke the inherent jurisdiction of the Supreme Court,as ' the only superior court of record ’ in the country, to make anappropriate order as to costs where there was no statutory authorityto make an order for costs. It must be noted that Gratiaen. J. did soresort to such inherent jurisdiction ‘especially as it is in aid of justice'.
Sec. 7 of the said Courts Ordinance No. 1 of 1889 (Chapter 6}established the Supreme Court of the Island of Ceylon to be “ the onlysuperior court of recordSec. 839 of the Civil Procedure Code(Chapter 101) – as it stood before December 1977 and now standsafter its revival in December 1977 – which said section was brought inby Ordinance 42 of 1921, provides that nothing in the said Code shallbe deemed to limit or otherwise affect the inherent power of the courtto make such orders as may be neccessary for the ends of justice or toprevent abuse of the process of court. The 'Court' referred to in thesaid section did, in view of the definition of the word 'Court' in section5 of the self-same Code, include the Supreme Court as.established bySec. 7 of the Courts Ordinance {supra). During the period theprovisions of both the said Courts Ordinance and the'said CivilProcedure Code were in operation at the same time the courts have byinvoking their inherent jurisdiction : undone a wrong done to a party byan act of the court itself (Sirinivasa Thero v. Sudassi Thero. (26)); laidby a case pending the decision of an action in another court betweenthe same parties (Seivadurai v. Rajah (27)); enforced obedience bywarrant, on a failure to appear without lawful excuse, when summoned‘to appear before it [Narayan Chettyv. Jusey Silva (28). Eswaralingamv. Sivagnanasunderam (29)); extended the time for the execution of itsown process (Andiris Appu v. Kolande Asari (30)); directed a case tobe laid by for a period of 3 months to enable the defendants in anaction to obtain a rectification of a deed (Olagappa Chettiar v. Reith,(31)); issued orders to the fiscal to stay a sale (Victor de Silva v.Jinadasa de Silva, (32)); stayed its own process of execution(Commissioner of Inland Revenue v. Ranaweera (33)), dealt withobstruction* to commissioners of Court in partition actions institutedunder the earlier *Partition Ordinance (Edirisinghe v. D. J. of Matara(34)); stayed proceedings conditionally in divorce proceedings
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Ganeshanan tham v. Goonewardefta (Ranasinghe, J.)
355
(Sinnathamby v. Yokammah, (35)); amended the decree (of theSupreme Court) to bring it into conformity with the judgment (DeCosta and Sons v. S. Gunaratne, (36)); granted an application of aninsolvent for protection from arrest pending an appeal to the PrivyCouncil in the case of Mohamad v. Annamalai Chettiar, (7), in whic^said case Garvin, S. P. J. also observed :
" I should be reluctant to subscribe to the proposition that thisCourt has no powers other than those derived from expresslegislation. Like other courts in the Empire and in particular SuperiorCourts, this Court has always been considered to possess a certainreserve of powers which are generally referred to as its inherentpowers It has been said that these powers are equal to its desire toorder that which it believes to be just. This is perhaps too wide andsomewhat misleading a statement. No court may disregard the lawof the land or purport in any case to ignore its provisions. Where amatter has been specifically dealt with or provided for by law therecan be no question that the law must prevail, for justice must bedone according to law. It is only when the law is silent that a casefor the exercise by a Court of its inherent powers can arise.'
> Although a decision per incuriam was said to be one given inignorance or forgetfulness of some inconsistent statutory provision orof some authority binding on the particular court – Huddersfield PoliceAuthority v. Watson (37)-yet. that definition was said to be notnecessarily exhaustive but that cases not strictly within it which canproperly be held to have been decided per incuriam should be of therarest occurrence – Morrelle Ltd. v. Wakeling (38). After a review ofthese English cases Samarakoon, C. J. in the case of Bilhmoria v.Minister of Lands (39) decided after the 1978 Constitution came intooperation, has taken the view that: where an interim order had beenmade by the court after consideration such order was not one madeper incuriam : that a stay order could be made as an interim measureby a court in the interests of Justice : that while tt is competent for oneBench to set aside an order made per incuriam by another Bench ofthe same Court, the practice, however, has been for the parties ortheir Counsel to bring the error to the notice of the Judge or Judgeswho made the error so that he or they can themselves correct theOrder. The Chief Justice was no doubt dealing with the powers of theCourt of Appeal. The powers of the Court of Appeal and (hose of theSupreme Court in regard to this matter, should, in View of Article 105(3), be identical.
356Sri tanka Law Reports(1984) 7 SriL.P.
The real basis upon which relief is given and the precise nature ofthe relief so given by the Supreme Court upon an application made toit for relief against an earlier Order made by the Supreme Court itselfwas very lucidly and very effectively expressed by Dias S.P.J. way backin the year 1951 in the pase of Menchinahamy v. Muniweera, (40). Inthat case, about six weeks after an appeal to the Supreme Court froman interlocutory decree in the District Court was dismissed by theSupreme Court, an application was made to the Supreme Court, on23.3.1949. "for revision or in the alternative forrestitutio-in-integrumT by the heirs of a party defendant, who haddied before the interlocutory decree was entered but whose heirs hadnot been substituted in his place before the interlocutory decree wasso entered. It was contended on behalf of the respondents : that therewas no merit in the application : that if the relief sought is granted thenthe Supreme Court would in effect be sitting in judgment on atwo-Judge decision of the Supreme Court which had passed the Sealof the Court: that the Supreme Court cannot interfere with the ordersof the Supreme Court itself. In rejecting these objections, Dias S.P.J.,placed this matter in its proper setting quite convincingly in thefollowing words :
" In giving relief to the petitioner we are not sitting in judgmenteither on the interlocutory decree or on the decree in appeal passedby this Court. We are merely declaring that, so far as the petitioneris concerned, there has been a violation of the principles of naturaljustice which makes it incumbent on this Court, despite technicalobjections to the contrary, to do justice."
The fundamental rights jurisdiction vested in this Court by Article126 of the Constitution is an original jurisdiction from the exercise of" which there is no appeal to any higher court. The words ' finallydispose ' appearing in Article 126 (5) were relied on as showing thatan order made by this Court in the exercise of the fundamental.jurisdiction vested in this Court is final and cannot be vacated, setaside, modified or in any way interfered with subsequently by thisCourt. It seems to me that the word ' finally' set out therein is notintended to impress the order with any particular characteristic, butrather that the matter must be fully and effectively concluded withoutanything fufther left to be done to bring the proceedings to an endThe finality is in reg’ard to the procedural aspect, and not in regard tothe character of the order that has to be pronounced at the
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357
conclusion of the proceedings. In any event any acceptance of theposition that an interference at least to a limited extent on the groundof a decision being made per incuriam would detract from theargument of ” untouchability" sought to be advocated.
On a consideration of the foregoing, I am of opinion that this courthas an inherent jurisdiction to grant, in appropriate circumstances,relief against or in respect of even previous judgments of this Courtitself in order * to do justiceThis Court shall exercise this jurisdictiononly in matters for which no express statutory provision has beenmade ; and. in exercising this jurisdiction, this Court shall not act in acapricious or arbitrary manner and shall be careful to see that itsdecision is in harmony with sound general legal principles and is motinconsistent with the intention of the Legislature – Seivadurai v. Rajah(supra).
The Supreme Court, as constituted under the 1978 Constitution, isnot vested with the revisionary powers as exercised by the SupremeCourt which was created by the aforesaid Courts Ordinance (Chapter6). The petitioner, in his application, seeks relief not only by way ofrevision but also, as already stated, in the exercise of the inherentjurisdiction of this Court.
Another technical argument that was advanced may be disposed ofat this stage. It was contended that the petitioner has not, in his prayerto the petition, prayed expressly that the judgment of this Court,delivered on 8.6.83 in the aforesaid Application No. 20 of 1983. beset aside, and that, therefore, he cannot obtain any relief which wouldhave the effect of even indirectly rendering the said judgment nugatoryor inoperative. It, however, seems to me that the averments ofparagraph 31 of the> petition read with paragraph (c) of the prayerwould be sufficient for a court, in an application invoking the inherentjurisdiction of the court, to grant an aggrieved party, who the coirt,is of opinion should be granted relief, whatever relief which the courtconsiders fit and proper to grant. Where the court is of opinion that itshould intervene, technical objections such as these should not standin the way of the court doing justice.
For these reasons l am of opinion that this Court has jurisdiction toentertain and determine the petitioner’s application.
358Sriianka Law Reports[1984} 1 SriL.R.
Rule of Audi Alteram Partem :
Natural justice has been defined as 'the basic of Justice which inany particular day and age offend the sensibilities of the'judges* -Ex p. Brown, Re Tunstall (41) referred to by Paul Jackson on NaturalJustice (2 edt.), – and as "only fair play in action' – per Harman, L. J.in Ridge v. Baldwin (42). The two principles which are pre-eminentlyconnoted by the phrase natural justice are embodied in the Latinmaxims audi alteram partem and nemo judex in re sua. and have beenconsidered to be 'so vital and essential to the due performance of theoffice of the judge that without them the judge is no judge at all'(Jackson, p. 7). Of these two rules the rule of audi alteram partemhas been said to be the more far-reaching; and it could embracealmost every question of fair procedure.
Although the literal meaning of this Latin maxim is "hear the otherparty", the essence of it is that 'no one should be condemnedunheard". This rule has been recognized as an obvious principle ofjustice sprung from its native judicial soil, and which the courts havealso succeeded in enforcing widely in cases where legal rights orstatus of the members of the public are affected by the exercise ofadministrative power. Courts of law had taken up the position severalcenturies ago on the very broad principle that any person or body ofpersons entrusted with legal power should not and could not validlyexercise such power, be it judicial or administrative, without firsthearing the person who was going to suffer by the exercise of suchpower, and that it was just as much a canon of good administrationas it was of good legal procedure. (Wade – 4 edt – AdministrativeLaw, pp. 421-2). It has also been judicially accepted that it is aprinciple not limited to judicial proceedings, and is a rule 'of universalapplication and founded on the plainest principles of justice’ and that,even if there are no express words in a statute requiring that a party beheard, before a decision affecting him is made, yet, 'the justice of thecgmmon law will supply the omission of the legislature" – Cooper v.The Board of Works for Wandsworth District (43). This judgment hassince been approved, in the year 1964, by the House of Lords in thecase of Ridge v. Baldwin (42), in a judgment, which has been hailed asa*'landmark decision' and which put an end to 'judicial backsliding’arising froni a retreat from the principles of natural justice during aperiod of about fifteen years prior to 1963 – during which such casesas the Stevenage case, Franklin v The Minister of Town and CountryPlanning (44), and Nakkuda Ali v. Jayaratne (45) were decided. The
SCGaneshananiham v. Goonewardefle {Ranasinghe, J.)-. 359
duty to comply with the principle of audi alteram partem in makingdecisions which affect the rights of others has been epitomised in thewords of Lord Loreburn, that "they must act in good faith and listenfairly to both sides, for that is a duty lying upon every one who decidesanything", in the'case of Board of Education v. Rice (46). It§
undeniable importance has been stressed in the words :"The
body with the power to decide cannot lawfully proceed to make adecision until it has afforded to the person affected a properopportunity to state his case'-per Lord Reid in Ridge v Baldwin(supra).
Judicial decisions, since Ridge v. Baldwin (supra), have "advancedits frontiers considerably and natural justice now connotes also 'acting^fairly', 'common fairness', 'fairness of procedure', and a 'fair crack ofthe whip'. The principles of natural justice have, since 1963, beenonce again firmly ensconced both in the established courts of law andin the area of decision-making process in the executive andadministrative spheres. Lord Pearson in 1972 stated in the case ofPearlberg. v Varty (47):
"A tribunal to whom judicial or quasi-judicial functions areentrusted is held to be required to apply those principles (i.e. therules of natural justice) in performing those functions-unless there isprovision to the contrary."
The rule that no man shall be condemned unless he has been givenprior notice of the allegation against him and a fair opportunity to beheard is how a cardinal principle of justice.
It has. however, been emphasised that it is not possible to lay downrules as to when the principles of natural justice are to apply, nor as totheir scope and extent, and that everything depends on thesubject-matter {Wade: p. 457): and that, outside the well knownclasses of cases such as dismissal from office, deprivation of propertyand expulsion from clubs, no general rule can be laid down as to theapplication of the principle in addition to the language of the provision- Durayappah v. Fernando (48): and that the right to a fair hearing is1in no way confined to cases of the taking of property and cases basedon personal conduct {Wade : p. 452): that the courts generally apdthe House of Lords in particular have rightly advanced the frontiers ofnatural justice considerably, but have, at the same tirge, taken anincreasingly sophisticated view of what it requires in individualcases – (Lord Hailsham, L.C. in Pearlberg v. Varty (supra)) and that.
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though the Courts have, without objection from Parliament,supplemented procedure laid down in legislation where they havefound that to be necessary, yet. such unusual kind of power must beexercised only where the statutory procedure is clearly insufficient toachieve justice and the taking of any additional steps would notfrustrate the apparent purpose of the legislation-Lord Reid inWiseman v. Borneman (49). Among the interests in respect of whichprocedural protection may be accorded, De Smith : Judicial Review ofAdministrative Action – 4 edt- sets out, at page 177, interests inpreserving one’s livelihood and reputation; (vide also Jackson:Natural Justice – p. 211). Smith further states, at page 196 that it isnot easy except at a high level of generality, to state what kinds ofinterests are entitled to the protection of the rules of natural justice.Charges of inefficiency or failing to be diligent or to set a good examplehave been subject to the principle of audi alteram partem – videDurayappah's case (supra) at page 271, per Lord Upjohn. The viewhas also been expressed that it ought to operate in the case of loss oflivelihood, and that, before being expelled for failure in examinations orfor misconduct, students are entitled to be treated fairly and given ahearing, that in preliminary steps, even though in themselves they maynot involve immediate legal consequences, but could lead to acts ororders which do so, the protection of fair procedure may be neededthroughout; that even in the making of preliminary investigations andreports which may lead to serious legal consequences the tendencynow is for the Courts to favour the observance of natural justice.(Wade (supra) ~ pages 452, 479, 480-1). Statutory provisionscannot be made to cover every possibility of unfairness being causedto a person who would be affected by an order made by adecision-making authority. In order to avoid any such unfair procedure,4 any gaps in the statutory procedure would have to be filled by calling inaid 'the justice of the common law.'
The Privy Council has stated that, in considering whether the saidprinciple of audi alteram partem should be applied or not. the Courtshave to bear in mind three matters : the first being the nature of theproperty, the office held, status enjoyed or services to be performedby the person who complains of injustice ; the second being thecircumstances in which or the occasion upon which the person,claiming to b£ entitled to exercise the measure of control, is entitled tointervene ; and finally what sanctions in fact the person, entitled tointervene, is entitled to impose upon the complaint of
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361
injustice – Durayappah's case – (supra). On an application of theseconsiderations to the facts and circumstances of the case now beforethis court it becomes clear; that the petitioner, who now complains tothis Court of injustice, holds a responsible post in the Sri Lanka PoliceForce ; that the person exercising the measure of control – in thifcase the Supreme Court itself – could do so upon it being establishedthat the petitioner had illegally arrested the petitioner-respondent andthus violated a fundamental right which has been guaranteed to her bythe Constitution ; that the sanction, which the Court could, upon itbeing established that the Court can and must intervene, impose, is'such relief or make such directions as it (the Court) may deem justand equitable in the circumstances'. It is indeed a serious matter tohold that a citizen of a country has been guiity of such conduct aswould amount to a violation of a fundamental right which theConstitution of the land has guaranteed to another person within suchland. Where, however, such a finding is against a person, who notonly holds an extremely responsible position in a unit of the executivearm of the state, which is itself responsible for the maintenance of lawand. order and the protection of the citizens against any unlawfulinvasion of their rights and liberties as free citizens of an independentcountry, but who is also a person who is under an express obligation,imposed by the Constitution itself, to "respect, secure and advance
i . andnot deny" the very right which he is found
to have violated, it is needless to say that such a finding becomes evenmore serious. It becomes still more serious, where such a findingcould also not only entail consequences such as orders for thepayment of damages, but could also put in motion steps which couldhave serious repercussions upon his employment as well, if notimmediately at some later point in his career. That the Court has not ina particular case followed up a finding of guilt with an order decreeingthe payment of damages does not affect the seriousness of thepossible consequences. The possibility of the imposition of an order,which would cause financial loss, and the likelihood of otherconsequences are ever present. In any event the mere finding by acqurt of law of such wrongful conduct, without more, against anofficer of the State, such as the petitioner, can and must expose himto serious perils which it would not. under modern principles,formulated and advanced by the Courts themselves? be 'fair' toexpose him to without giving him an opportunity to show that he doesnot deserve to be so condemned.
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A contention, which has been very often put forward to meet a pleaof violation of the rule of audi alteram partem, is that a fair hearingwould have made no difference to the result, or that ‘such hearingcould only be a useless formality' – per Lord Simon in Malloch v.Aberdeen Corporation (50) Jackson (supra) at page 137 sets downthree justifications for requiring a hearing even where there appears tobe no answer to a charge : “First, experience shows thatunanswerable charges may, if the opportunity be given, be answered ;inexplicable conduct be explained : Secondly, the party condemnedunheard will feel a sense of injustice, Thirdly, suspicion is inevitablethat a body which refuses a hearing before acting does so because ofthe lack of evidence, not because of its strength’. Wade at page 454states that, in principle, it is vital that the procedure and the meritsshould be kept strictly apart, since otherwise the merits may beprejudged unfairly. A vivid and extremely effective disposal of thecontention, that "the result is obvious from the start’, has been madeby Megarry, J., in the case of John v. Rees (51) in the words :
"As everybody who has anything to do with the law well knows,the path of the law is strewn with examples of open and shut caseswhich, somehow, were not; of unanswerable charges which, in theevent, were completely answered ; of inexplicable conduct whichwas fully explained , of fixed and unalterable determination that bydiscussions suffered a change*.
This contention had also appealed to the trial judge in the case ofRidge v. Baldwin (supra); but the House of Lords rejected thisreasoning decisively.
Although the argument that a fair hearing would make no differencewas decisively rejected by the House of Lords in Ridge v. Baldwin yet,the contention in the form that such a fair hearing would in any eventjpe a ‘useless formality' has made a reappearance in several latercases. These deviations have been viewed with disfavour on the basisthat it is important that they should not be allowed to weaken the basicprinciple that fair procedure comes first, and<hat it is only after hearingboth sides that the merits can be properly considered (Wade: p.455): and tljat such cases will be rgre (Jackson: p. 137): or that suchdecisions could perhaps be explained on the ground that the reliefsought was discretionary (De Smith : p. 244).
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Gangshanantham v. Goonewardihe (Ranasinghe, J.)
363
The contention that in any event when one looks at the matter as awhole that it is obvious that the applicant has no merit in his case wasalso strongly rejected by Lord Widgery. Chief Justice, in the year1974 in the case of R. vs. Thames Magistrate's Court, Ex. partePolemis (52) in the following words :
i
T reject the submission. It is basic to our system that justice mustnot only be done but must manifestly be seen to be done. If justice
was so clearly not seen to be doneit seems to me that it is
no answer to the applicant to say 'well even if the case had beenproperly conducted the result would have been the same'. That ismixing up doing justice with seeing that justice is done, so I rejectthat argument'.
The right to be heard and defend oneself will be illusory andmeaningless without knowledge of the case to be met, of the chargeor the subject matter of dispute to be decided by the court or tribunal)and also without an adequate opportunity, of placing that which has tobe put forward in defence, either in person or through Counsel ofone's own choice.
It has been stated that in this case the petitioner has 'on his ownshowing', been guilty of illegally arresting the 1 st respondent and that,as the Court has based its findings upon the very facts andcircumstances set out in the Petitioner's affidavit, 2R1, affirmed to ofhis own accord on behalf of the 2nd respondent, and in which hesought to justify his conduct and which said conduct was also soughtto be vindicated in Court during the hearing by eminent Counselappearing on behalf of both the 2nd respondent and the 3rdrespondent who is the Attorney-General, the requirements of the ruleaudi alteram partem have in any event been satisfied in this case, andthat, therefore, there is no room for complaint by the petitioner on thisscore.
In 2R1 the petitioner's position, as indicated earlier is : that thepetitioner-respondent, who was the petitioner in the earlier inquiry*was arrested by him : the petitioner-respondent was so arrested byhim on the Galle Road itself and then brought by him, under arrest; tothe Kollupitiya Police Station : that, as the petitioner-respondent wasparticipating in a procession which was being conducted without theauthority of a lawful 'permit', she and the other participants weredirected by him to discontinue the said procession and to disperse :
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that the petitioner-respondent then pushed the petitioner aside,disobeyed his directions and obstructed him in the performance of hislawful duty : that thereupon he, with the assistance of several policeconstables, arrested the petitioner-respondent and four others underthe provisions of sec. 32 of the Criminal Procedure Code 15 of 1979 :tfiat the petitioner-respondent was arrested in accordance with theprocedure established by law: that the petitioner-respondent wasinformed of the reason for her arrest.
Learned Additional Solicitor-General, who had appeared for the 2ndand 3rd respondents at the earlier inquiry, in which the presentpetitioner-respondent was the petitioner, informed this Court at thisinquiry that the 2nd respondent had produced the petitioner's affidavitat that inquiry, marked 2R1 as "Counsel for the State proceeded onthe basis that Ganeshanantham's arrest was relevant to meet thecharge of an arrest by Inspector Hector Perera (who was also the 1 strespondent in the earlier inquiry) within the station", and that the"State sought to justify Ganeshanantham's conduct in order to meetany consequential impact of Hector Perera's conduct. Not on thebasis that Ganeshanantham's conduct was to be the subject-matter ofinquiry for granting of relief".
Mr. Choksy S. A., appearing for the petitioner contended that,when the affidavit 2R1 was tendered the petitioner became, on thebasis of the said affidavit a witness at the earlier inquiry: that thepetitioner swore the said affidavit in order to answer expressly thespecific case put forward by the 1st respondent, viz., that she hadbeen arrested and harassed by Inspector Hector Perera within theKollupitiya Police Station, after she had voluntarily entered the saidPolice Station premises along with several others, to find out what had.happened to a press photographer who, she had been informed, hadbeen taken into the said Police Station by some Polipe officers : that itwas not meant to be an answer to a charge laid against him of havingillegally arrested the 1st respondent: that, had it been intended to bein answer to a specific allegation of wrong conduct on his part, theaffidavit would have given far more details, inter alia, in regard to the
document referred to as a "permit", which would have had to befurnished by one. whose own conduct and culpability was underinquiry, in ordgr to justify the legality of one's own conduct: that thepetitioner, who camp before Court only as a witness in support ofInspector Hector Perera’s defence had himself been found guilty of
sc
Ganeshanantham f. Goonewardqne {Ranasinghe. J.l
365-
the conduct alleged against Inspector Hector Perera himself by thepetitioner-respondent, without the petitioner being informed that theCourt was inquiring into the legality of the arrest, which he thepetitioner himself has stated was effected by him and without thepetitioner being afforded an opportunity of satisfying the Court thatsuch arrest was legal, even though the petitioner-respondent did nfltonly not. accept any arrest made by the petitioner but also expresslyand categorically repudiated, right to the end, the petitioner'sassertion of an arrest of her by him outside the Police Station along theGalle Road.
It is no doubt true to say that a witness, who gives testimony beforea Court – either orally or by way of an affidavit – runs the risk of beingdisbelieved and of having his evidence rejected by court as beinguntrue. The disbelief of a witness is not a circumstance which is notinherent in the process of deciding whether such evidence is true ornot; and an adverse finding in regard to his credibility, is not, ordinarilyan altogether unexpected or unforeseen turn of events. The position,however, is altogether different where a witness, who furnishesevidence in writing merely to support a defendant to repudiate a claimmade against the defendant, finds that, whilst the defendant isexonerated from responsibility in respect of the claim so put forwardagainst the defendant he himself, without any indication being given tohim, is held to be responsible for the wrong, in respect of which theclaim against the defendant was put forward and that relief is given onthat basis. Such situations, though rare, have occurred even in theregular courts of law.
In the year .1964 in the case of Sheldon v. Bromfield J.J. (14),proceedings were held before the justices against M. on a charge ofassaulting the female appellant. At the end of the proceedings thecharge of assault framed against M. was dismissed ; but the justicesproceeded to bind over M: and two prosecution witnesses, one ofwhom was the female appellant, to keep the peace. The witnesseshad not being warned of the possibility that they might be bound over.They were not heard in defence. In delivering the order of the*Divisional Court setting aside the binding over order of the appellant onthe ground that the justices had acted contrary to natural justice. LordParker observed:
‘It has been argued here on behalf of the justices thafrprovided. as
in this case, the person whom it is proposed to bind over had, in
effect, their say by being examined, cross-examined and
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re-examined, there is no need at all that they should know what ispassing through the Court's mind, and indeed that the justices canbind them over without giving them any advance notice or anyopportunity of dealing with it. I must say that I shudder at any ideathat that can be done although it is said that it is done quite^generally. It seems to me to be elementary justice that, in particular,a mere witness before justices should, at any rate, be told what ispassing through the justices' minds and should have an Opportunityof dealing with it'
This principle was once again upheld in the case of ft v. HendonJustices, ex p. Gorchein {53) where G who had instituted a privateprosecution against P. was bound over, along with P. who wasconvicted. G. and P. had both been asked, at an early stage of theproceedings, by the magistrates whether they were prepared to bebound over and both had refused. G. successfully claimed that thebinding over order made against him was in violation of the principlesof natural justice. Similar views were also expressed in the case of TheSeistan, (13); and by the Privy Council in the case of Mahon v. AirNew Zealand Ltd. (18).
Even though the material upon which the impugned order has beenmade is material which has been furnished by the person whocomplains of the injustice, yet, it is not a justification for the failure toobserve the rule of audi alteram partem. In Ridge v. Baldwin (supra] itwas contended that the material upon which the order was made hadbeen evidence which the chief constable himself had given, and thathe had convicted himself out of his own mouth. This contention didnot find favour with the House of Lords ; and the House of Lords finally.decided that the chief constable had not had a proper hearing. Theprinciple that a fair opportunity should be given to a person to corrector contradict any relevant statement to his prejudice even thoughthere existed, as in Spademan's case (17), a judgment of a civil Courtfolding that the fact has been proved, found favour with Chief Justice(H.N.G.) Fernando in the case of V. Hindu Educational Society Ltd., v.Minister of Education (54). The principle, that information which hasbeen supplied by a person for a particular purpose should not beutilised against him for another purpose without first informing him ofsuch an intention and affording him an opportunity to be heard, hasbeen upheld in the Indian case of Kapoor v. Jagmohan. (55).
SCGaneshanantham wGoonewardene (Ranasingbe, J.)367
— — — ■*1a—a
In 2R1 the petitioner has not made an unqualified admission ofliability on his part in respect of the claim put forward by thepetitioner-respondent in her petition to Court. Even in regard to the'lawful permit*, referred to in 2R1„ learned Senior Attorney for thepetitioner submitted certain factual matters, which, if established,would have been relevant to the consideration of the legality of thearrest admittedly made by the petitioner. Furthermore : in thejudgment delivered on 8.6.83, the Court has, as earlier indicated,observed that, although the petitioner in 2R1 states that he informedthe petitioner-respondent of the reason for her arrest he has not,however, disclosed therein what the said reason was. The judgment,having thereafter stated that the omission to mention the reason givenat the time of the arrest is no doubt a grave lapse, then proceeds toconsider the legality of the said arrest on the footing of a reasoncommunicated to Court by learned Counsel for the respondents as thereason which the petitioner had given to the petitioner-respondent.The counsel, who so communicated the reason to Court, would havebeen the Additional Solicitor-General, who appeared before us too forthe 2nd and 3rd respondents. He, it must be noted, held no proxyfrom the petitioner-respondent at any stage of the proceedings. Whatis more, judging from the statement made by him from the Bar, it isnot even certain whether either he (the Additional Solicitor-General)or any other officer of the Attorney-General's department would, haveappeared for the petitioner had the petitioner-respondent's petition toCourt based her claim against the 3rd respondent upon the arrestreferred to in 2R1, and the petitioner himself had been named, insteadof Inspector Hector Perera, the 1st respondent to her application. In ‘any event where a person is entitled to be heard by Counsel it must bethrough Counsel of his choice.
The petitioner had averred that the arrest he made was lawful. The ’legality of an arrest is not always a pure question of law. It is veryoften-as the arrest referred to in 2Rl-a mixed question of fact andlaw. Even, if in a particular case it becomes a pure question of law,,yet, the person defending the legality of such arrest should be heardbefore a decision is made-vide Jackson (supra) p. 63.
The position accorded to a wrong-doer named in the petitioner'sown application at the very commencement of the proceedings hasalready been discussed earlier. That being so. the position of a person,whose conduct is picked out, after the proceedings had commenced
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against the person named by the petitioner as the wrong-doer, andsuch cpnduct is thereafter probed as a possible basis on which reliefcould actually be granted to the petitioner against the State, cannot beany the weaker or less favoured-in regard to the requirement of beinginformed of the inquiry to be held against him, and also in regard tobfmg afforded a reasonable opportunity to defend himself ifnecessary by Counsel of his own choice. There is no express rule inthe aforesaid Rules of this Court in regard to any service of notice on,
• and the affording of an opportunity to defend himself to such a person..Such a lacuna can and must, in my opinion, be filled by the court byresorting to "the justice of the common law". A person in the positionof the petitioner in this case would not, even though he filed theaffidavit 2R1. have had any reasonable grounds to anticipate that thearrest referred to by him therein would be made the subject-matter ofgranting the petitioner-respondent relief against the State without anynotice to him. Leave had been granted by Court m thepetitioner-respondent to proceed with a complaint of wrongfulconduct on the part of the first respondent. The affidavit 2RI wasfiled by him specifically in answer to the averments set out in thepetitioner-respondent's petition. After he filed his affidavit 2R1 thepetitioner-respondent even filed a further affidavit repudiating andcontradicting what the petitioner himself had averred in 2R1. Therewere also express provisions in the Rules of this Court, referred toearlier, requiring the service of notice and of certain documents uponthe wrong-doer whose conduct is sought to be made the basis of theliability of the State. Against this background. I do not think itreasonable to take the view that, at the time the petitioner affirmed tothe contents of the affidavit 2R1, he had reasonable grounds toanticipate that the court would, having dismissed thepetitioner-respondent's own allegations against the 1st respondent,.then initiate a probe into his own conduct as set but by him in hisaffidavit 2R1-even though what he averred had subsequently beenclearly and categorically repudiated by the petitioner-respondent-andrelief given to the petitioner-respondent on that basis, without hehimself being made aware of what was passing through the mind ofthe'Court, and without being given an opportunity to show the courtthat the court's thinking was not correct.
It cannot now be contended that the failure to hear the petitionerbefore the ©filer was made was due to the fact that the Court waspressed for time a*s the matter of the petitioner-respondent's
SCGaneshananthamf. Goonewardgpe (Ranasinghe, J.f369
application had to be concluded within the period of two monthsspecified in Article 126 (5); for, this Court has now held that the saidperiod is only directory. In any event, if one or the other of the twoparties must be penalised for such a situation being brought about,then it should be the petitioner-respondent and not the petitioner-forfailing to bring before court in time the person, who, in the opinion dfthe Court, was the real wrong-doer.
The maxim that 'justice should not only be done but shouldmanifestly and undoubtedly be seen to be done’ (per Lord Hewart,C, J. in R. v. Sussex Justices, exp. McCarthy (56)), is also a principlewhich must always be adhered to. This principle becomes applicablenot so much when the court is concerned with a case of actualinjustice as with the appearance of injustice or possible injustice.Dealing with this principle, Lord Widgery, C.J., in /?. v. ThamesMagistrate's Court case (supra) stressed the importance of both limbsof this principle. The need for the appearance that justice is being tdone is as important as the requirement that justice should actually bedone. The requirement that justice must also be seen to be done isalso one of the best ways of winning for the Court public confidenceand respect. The fundamental principle at stake here is that publicconfidence in the fairness of adjudication or hearing procedures mustnot be allowed to be undermined (De Smith, p 246).
. Having regard to the principles set out above it seems to me that,had the situation, which arose at the inquiry into the application(bearing No. 20 of 1983) made by the petitioner-respondent,.arisenbefore a decision making body in the field of administrative law, therewbuld then have been no question but that the principle of audialteram partem, of "fair-play" and also the maxim that justice shouldalso be seen to be done (this principle being applicable both to courtsof law and other statutory tribunals-Jackson (supra) pages 87, 91/92. 96) would have rendered it obligatory On such tribunal to havenoticed the petitioner, informed him of what they intended to do, andthen to have given him a reasonable opportunity of stating what, if any.he1, the petitioner, had to state. If that were the obligation cast on astatutory tribunal, how much greater and how much more solemnwould be the duty cast on a court of law, had such a situation arisenbefore it.
On a consideration of all that has been stated above, IVn of opinionthat the moment the Court took thfe view that thepetitioner-respondent's version of the incidents of the day in question
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has not been established, but that the Court should neverthelessconsider granting relief to the petitioner-respondent on the basis of anact, which the petitioner himself had set out in his affidavit 2R1, a dutywas then cast on the Court to give the petitioner 'a reasonableopportunity of knowing what was passing through the Court's mindand being able to answer to it'.
The relief to be granted
The question, which now arises for consideration, is the relief whichthe petitioner should be granted. I have already indicated earlier thatthis is an application in which the appeal has been to the inherentjurisdiction of this Court and that the exact nature and the form of therelief to be granted to the petitioner is a matter entirely jn thediscretion of the Court. The Court intervenes on the footing that thepetitioner has been prejudiced by an act – or, as in this case, anomission – of the Court itself and that it is necessary for. the Court’togrant relief in order' to do justice'. Technical objections should not tiethe hands of the Court. In any event, as set out earlier, the avermentsin paragraph 31 of the petition read with paragraph (c) of the prayerthereof would justify the grant of relief which would affect even theprincipal relief which has been granted by the judgment. In doing so noinjustice would be caused to the petitioner-respondent herself; for,she is one who not only never accepted at any stage what thepetitioner averred in 2R1, but also categorically repudiated, right up tothe conclusion of the proceedings, the petitioner’s version. Theexpunging of the findings set out in the aforesaid judgment would byitself operate to remove the very foundation of the judgment enteredin favour of the petitioner-respondent, and thereby bring about asomewhat incongruous position. The question whether a decision,. which has been arrived at in proceedings in which the principles ofnatural justice have been violated, is void or voidable, becomes, in thecircumstances of a case such as this where the aggrieved partyhimself has come forward to obtain relief, academic. Having regard to«ll the circumstances in which the petitioner has come before thisCourt, it seems to me that the fairest order to be made in order toremove the 'real sense of grievance" which the petitioner cfearlyharbours-and which would also not, as set out above, cause anyinjustice to Jhe petitioner-respondent herself,-is to set aside theaforesaid judgment, and to grant the petitioner an opportunity ofestablishing the. legality of his act, and thereafter have judgment
SCGaneshandntham v. Goonewardene (RanaSinghe, J.)371
entered accordingly as he, the petitioner, succeeds or not in defendinghis conduct. If authority is necessary to support the order which Ipropose to make, it is supplied by Halsbury (4 edt) Laws of England,Vol. 1. page 97, paragraph?7, where it is stated that the effect offailure to accord an adequate hearing or opportunity to be heard prio*to a decision may be repaired by rescission or suspension of theoriginal decision followed by a full and fair hearing or rehearing ; andthe following decisions are cited : De Verteuil v. Knaggs, (57) ; Ridgev. Baldwin (42); Vasudevan Pillai v. City Council of Singapore,(58); Rose v. Humbles, (59).
therefore, make order:
setting aside, pro forma, the judgment of this Courtpronounced on 8.6.83 in Application No. 20 of 1983 ;
fii) that the petitioner be noticed and given an opportunity toestablish the legality of his arrest of the petitioner-respondent,which he has, in his affidavit 2R1. averred he did make on
;
that, if the petitioner succeeds in establishing the legality of thesaid arrest, the petitioner-respondent's said application No. 20of 1983 shall stand dismissed ;
that, if the petitioner fails to establish the legality of the saidarrest, then the aforesaid judgment, entered in favour of thepetitioner-respondent shall stand affirmed ;
that, at the further inquiry to be held in terms of this Order, thepetitioner may, if he so desires, file a further affidavit, and ifsuch further affidavit is so filed, the petitioner-respondent is tobe permitted to file, if she so desires, a counter-affidavit.
– that the 2nd and 3rd respondents may be heard at such further
inquiry at the discretion of the Court;
that the parties do bear their own costs of this application . andthe costs of the further proceedings are to abide the final 'decision.
♦
In view of the opinion I have now formed in regard to the issuesarising in this case, it has become necessary to refer to the case ofiMariyadas Raj v. The Attorney-General and another J60) whfere I was amember of the three-judge Bench of this Court which decided thatcase. Even though there are two significant circumstances which
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distinguish that case from the facts of this case viz; that the specificarrest, which was said to .constitute the infringement in that case, wasnot in dispute between the parties, and that there was nocounter-affidavit from the petitioner in that case expresslycontradicting the averments in the affidavit of the police-officer, whoaverred that it was in fact he, and not the officer named in the petition,who made the arrest testified to by the petitioner-yet, if the principles,which I have referred to earlier in this judgment, had then been pjaced,as was done at this inquiry, in their proper perspective in relation to theissues that arise in a matter of this nature, the relevant issues wouldundoubtedly have appeared to me then as they appear to me now ; andI would even then have certainly taken the same view as I have set outin this judgment.
I would like to conclude this judgment with the words, which LordDiplock himself had, according to the report tendered to us of the PrivyCouncil decision in the case of Mahon v. Air New Zealand{supra),used on a similar occasion :
‘It was easy enough to slip up over one or the other of them in civillitigation, particularly when one was subject to pressure of time inpreparing a judgment after hearing masses of evidence in a long andhighly complex suit.
In the case of a judgment in ordinary civil litigation such failure toobserve rules of natural justice was simply one possible ground ofappeal among many others and attracted no particular attention.
All their Lordships could remember highly respected colleagueswho. as trial judges, had appeals against judgments they haddelivered allowed on that ground : and no one thought any theworse of them for it,'
So their Lordship's recommendation that the appeal ought to be'dismissed could not have any adverse effect upon the reputation ofthe judge among those who understood the legal position and itshould not do so with anyone else'.
The petitioner is accordingly granted relief as set out above.
sc
Ganeshanantham v. Goonewardene (Rodrigo, J.)
373
RODRIGO, J.
These proceedings relate to an application by an Inspector of Police tothis Court to have us revise or vacate in the exercise of our allegedinherent jurisdiction, a finding reached in a judgment delivered by thisCourt on June 8th, 1983. said by him to concern him and harm him*He was not a party-respondent to the application in which thatjudgment was given or otherwise noticed. He says this Court violatedthe audi alteram partem rule in respect of him.
The judgment mentioned was given in an application to this Court byMrs. Vivienne Goonewardene, a veteran Marxist politician and whodoes not need an introduction in this country, for relief in respect of analleged unlawful arrest, among other complaints, by an Inspector ofPolice (not the petitioner in these proceedings) at the Kollupitiya PoliceStation. Unlawful arrest is a breach of a fundamental right guaranteedby the Constitution to every person. A person unlawfully arrested isentitled to petition this Court for relief in the form of a just andequitable order and directions – Art. 13 (1); and Art 126 (4).
To Mrs. Goonewardene's petition the inspector of Police inquestion who was also the Officer-in-Charge (O.I.C.), theInspector-General of Police (I.G.P.) and the Attorney-General weremade respondents. In the course of the proceedings an affidavitwas filed from the present petitioner. Inspector Ganeshanantham,by the I.G.P. to the effect that it was he who lawfully arrestedMrs. Qoonewardene on the day in question and that too not at theKollupitiya Police Station as alleged but on Galle Road between theAmerican Embassy and the Police Station. This affidavit was intendedto contradict Mrs. Goonewardena and by implication to lend supportto the O.I.C. that he did not arrest Mrs. Goonewardena. It isnoteworthy, however, that Mrs. Goonewardena promptly filed acounter-affidavit contradicting the affidavit of InspectorGaneshanantham and re-asserted that it was the O.I.C. and no otherthat arrested her and that in fact she was not arrested anywhere elsebefore her arrest at the Police Station. She further affirmed that shevoluntarily reached the Kollupitiya Police Station of her own accordand free will.
With these affidavits filed, the hearing had commenced before athree-Judge Bench of this Court. In the course of that hearing it is nowsaid by Counsel appearing for Mrs. Goonewardena in these
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proceedings (the same Counsel who appeared for her in herapplication) and not contradicted by the Deputy Solicitor-Generalappearing for the State (who also appeared at the other hearing) thespotlight was kept focussed for a whole day on the question ofwhether the arrest if any by I.P. Ganeshanantham was lawful.
Eventually judgment was delivered. Relief was granted to Mrs.Goonewardena holding that she had been unlawfully arrested on theday in question but not by the O.l.C. as alleged and asserted by Mrs.Goonewardena but by Sub-Inspector Ganeshanantham as he thenwas.
This. Inspector Ganeshanantham says, is unfair. He had filed alimited affidavit for a limited purpose – the argument runs as Iunderstand it as follows. Though he said in his affidavit that the arrestmade by him was lawful it was an affirmation made incidental tocontradicting an alleged arrest by the 0.1.C. He had not given all thefacts and circumstances relating to the arrest. It was not necessary. Itwas not called for. His conduct was not in issue. To say in a judgmentthat he has made an unlawful arrest adversely affects him in his officeas a Police Officer and causes prejudice to his career and he is entitledto claim relief from such a finding because he had not been put onnotice that the lawfulness of the arrest made by him was beinginquired into, as required by the Constitution and by the common lawas expressed in the audi alteram partem rule.
Objection even to the entertainment of this application by InspectorGaneshanantham and still less to the grant of relief to him is taken byCounsel for Mrs. Goonewardena. Inasmuch as inherent jurisdiction is.invoked by the petitioner. Counsel for Mrs. Goonewardena says, thereis no such thing as inherent jurisdiction of the Court. He continues.' weare a creation of a statute (Constitution) unlike English common lawCourts and we must see within the four comers of the statute for ourfUrisdiction, and equally we have no power to revise our ownjudgments : that once a judgment is given by this Court, right orwrpng, even if it contains slip-ups or evidence of forgetfulness orfailure to follow leading precedents still this finding, becomes an act ofa final supegor Court. Grant of relief is also objected to in any formeven to a limited extent as claimed by Inspector Ganeshananthamsuch as expunging the adverse finding only or by simply declaring thatthe finding was reached without hearing him, on the ground that such
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a claim if granted would cut the heart out of the matter and indirectlyrender the substantial order in the judgment given ineffective and thejudgment itself meaningless.
Counsel for Inspector Ganeshanantham. however, insistentlyargued that we have inherent power to look into his complaint. J*ledraws our attention to Art. 118 which enacts that the Supreme Court“shall be the highest and final superior Court of record in the Republic*and to Art. 105 (3) which gives the Supreme Court all the powers of asuperior Court of record including the power to punish for contempt ofitself. This phrase ' Superior Court of Record' is not defined. Itappears, however, in die Courts Ordinance – s. 7 – * The SupremeCourt shall continue to be the only superior Court of Record.' Counselfor Mrs. Goonewardena cited Stroud’s Judicial Dictionary to showthat this phrase is not helpful to determine the powers of the Court.However, there are a fair number of instances when the SupremeCourt at the time governed by the Court's Ordinance before its repeal in1972 claimed for itself and enforced an inherent jurisdiction. InMenchinahamy v. Muniweera (40) an interlocutory decree had beenentered in a partition case without the heirs of a party-defendant whohad died in the meantime being noticed or substituted in place of thedeceased defendant. On an application made by the widow andchildren of the deceased defendant after the interlocutory decree hadbeen upheld by the Supreme Court in the appeal, for restitutio inintegrum. Dias, S.P.J. observed at page 414
'We now come to the substantial point which has been urged inthis case, namely, that not only are there no merits in the presentapplication of the petitioner, but also that if we grant her the reliefshe seeks we will in effect be sitting in judgment on a two-Judgedecision of this Court in the earlier appeal and which is nowembodied in a decree of the Supreme Court which has passed theSeal of the Court. It was argued that the Supreme Court by meansof restitutio in integrum cannot vary its own decrees, especially afterthey have passed the Seal of the Supreme Court. It is pointed outthat the powers of this Court are not unlimited. It is urged that s. 36of the Courts Ordinance (Chapter W) defines the jurisdiction of*thisCourt, while s. 37 only permits this Court to interfere with thejudgments of an original Court and it cannot interfere with the ordersof the Supreme Court. It is pointed out tha! s. 776 of the CivilProcedure Code deals with the sealing of decrees of the Supreme
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Court, and that once a decree has been sealed, such decree, if it is ajudgment of two Judges of this Court, cannpt be varied by anotherBench of two Judges.'
In the instant case the present Bench is comprised of seven Judges asagainst the three Judges who delivered the judgment. Dias, S. P. J.continues
'It is everyday practice in a case like that (where no service ofsummons had been effected-the interpolation is mine) for thisCourt to hold that all the earlier proceedings are abortive and of noeffect. If authority is needed this is supplied by the followingcases Caldera v. Santiagopillai (61) Juan Pererav. StephenFernando (62) and Thambiraja v. Sinnamma (63). … We aremerely declaring that, so far as the petitioner is concerned, therehas been a violation of the principles of natural justice which makesit incumbent on this Court, despite technical objections to the
contrary to do justiceI would go further and say that in view
of the irregularity in not joining Saineris heirs, in my opinion both theinterlocutory decree in this action and the subsequent judgment ofthis Court in appeal are 01 no effect, because by reason of thenon-observance of the steps in procedure no proper interlocutorydecree was, in fact, entered in this case.”
This judgment was followed in Ranmenikhamy v. Tissera (11) byT. S. Fernando, J. wherein an appeal that had been preferred to theSupreme Court had been rejected on the ground that notice of appealhad not been served but subsequently it was proved to the Court thatnotice in fact had been duly served on the party who was a minorrepresented by a duly appointed guardian ad litem. It was concededthat the rejection of the appeal was a mistake. T. S. Fernando, J. heldtfjat:
“Inasmuch as the order rejecting the appeal was made perincuriam the Court had inherent jurisdiction to set aside its ownorder.”
*Then in Karuppannan v. Commissioner for Registration of Indian andPakistani Residents (8) the Supreme Court consisting of Gratiaen, J.and-Gunasekera, J. awarded costs holding :
'Subject to such statutory limitation as may be prescribed in''' particular instances, the Supreme Court possesses inherent powerto award costs when exercising either its original or appellatejurisdiction."
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Ganeshejnanthgitl v. Goonewartfene (Rodrigo, J.)
The Court in this case (Karuppannan's (8}} cited the case ofGuardians of Westham Union v. Churchwardens of Bethnal Green (25)where Lord Herschell said :
“Costs have been awarded for upwards of two centuries, f see nofoundation on which the power to order their payment can restexcept the inherent authority of this Court as the ultimate Court ofappeal."
Also Lord Macnaghten is quoted as having observed that,-
“The House of Lords, as the highest Court of Appeal, has andnecessarily must have an inherent jurisdiction as regards costs."
It was observed by Court in Karuppannan's case (8) that,
' “The unbroken line of precedents which have been brought to ournotice is by itself sufficient proof that the jurisdiction does exist, andeven if it be 'difficult to maintain it upon a nice foundation' we arecontent to say, as Lord Hardwicke did in Burford (Corporation of) v.Lenthall (64) that we ought to be bound by those precedents,especially as it is in aid of Justice,'
In Craig v. Kanssen (65) the Court of Appeal upheld an order by theKing's Bench Division which is a superior Court of Record setting asideits own, order in the exercise of its inherent jurisdiction on the groundthat the applicant, not having being served with summons was entitledto have it set aside ex debito justitiae.
It is thus seen that this Court has an inherent jurisdiction insituations, –
where decisions have been made per incuriam
vyhere the Court has violated a principle of natural justice.
where the Court is required fo act in aid of justice.
where a claim is made for costs and,
where a party is entitled to move the Court ex debito justitiae
Counsellor Inspector Ganeshanantham submits that the decision inquestion had been made per incuriam. The categories of decisions perincuriam have been stated in a decision of this Court by the ChiefJustice in the case of Billimoria v. Minister of Lands (39)^as follows“In Young v. Bristol Aeroplane Co. Ltd. (66)-Greene M R. pointedparticularly to the classes of decisions per incuriam
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a decision in ignorance of a previous decision of its own Court orof a Court of co-ordinate jurisdiction covering the case, and,
a decision in ignorance of a decision of a higher Court coveringthe case which binds the tower Court.
Lord Denning, M. R. was inclined to add another category ofdecisions-one where a long standing rule of the common law hasbeen disregarded because the Court did not have the benefit of a fullargument before it rejected the common law."
Then again in Morrelle Ltd v. Wakeling (38) the Court observed
“As a general rule the only cases in which decisions should be heldto have been given per incuriam are those of decisions given inignorance or forgetfulness of some, inconsistent statutory provisionor of some authority binding on the Court concerned ; so that insuch cases some part of the decision or some step in the reasoningon which it is based is found, on that account, to be demonstrablywrong. This definition is not necessarily exhaustive'
I am not too sure whether >he grievance complained of in the instantcase can strictly fall within me definition of decisions per incuriammentioned above, unless this grievance could be brought within thecategory given by Lord Denning, M. R. as stated earlier. The grievancehere would appear to be, if at all, more in line with the Privy Counciljudgment in Mahon v. Air New Zealand Ltd. (18): In that case a New'Zealand judge holding an inquiry in his capacity as a RoyalCommissioner into the causes of a crash of an airliner operated by AirNew Zealand Ltd. observed :
“No judicial officer ever wishes to be compelled to say that he haslistened to evidence which is false. He alvyays prefers to say as
hundreds of judgments which I have written illustrate that
he cannot accept the relevant explanation or that he prefers acontrary version set out in the evidence. But in this case, thepalpably false sections of evidence which I heard could not havebe#enthe resultof a mistake or faulty recollection. They originated, Iam compelled to say, in a pre-determined plan of deception."
Lord Diplock delivering the Privy Council judgment said :
"The partes to the plan of deception and conspiracy to commitperjury there referred to were readily identifiable in the body of therecord. They were Security Officers employed in the Flight
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Operations Department of Air New Zealand. The report alsoidentifies as conspirators all four members of the Navigation Sectionof Flight Operations."
Lord Diplock held that this Commissioner failed to adhere to the tworules of natural justice that a finding has to be based on material whichtended logically to reveal the facts to be determined and that any. person represented at the inquiry who would be adversely affected bya finding should be made aware of the risk of that finding being made.Lord Diplock continues :
' The relevant rules of natural justice referred to in R. v. DeputyIndustrial Injuries Commissioner (19) which dealt with the exerciseof investigative jurisdiction were (1) a person making a finding hadto base his decision on evidence that has some probative value, (2)he had to listen fairly to any relevant evidence conflicting with thefinding and to any rational argument against the finding that aperson represented at the inquiry whose interests might beadversely affected by it might wish to place before.it or would haveso wished, had he been made aware of the risks of the finding beingmade.'
The case of The. Seistan (13), also has a close resemblance to thecomplaint of the petitioner in the instant case. There a motor vesselcarrying a crew of sixty-six with two supernumeraries sank off Bahrainin the Persian Gulf as a result of an explosion with the loss of fiftyseven lives. A Court of formal investigation consisting of a WreckCommissioner and three assessors held an inquiry into thecircumstances attending the sinking of the vessel. One of theassessors added a rider to the finding of the Court that the loss of themotor vessel was not the result of the wrongful act or default of anyperson. The rider was as follows
"I concur in the above ….. but, in my opinion, the advice givenby the chief officer, Mr. Jones, as to the flooding of the lower holdoffered a better chance of a quicker extinction of the fire. Th%conduct of the chief engineer in misinforming the chief officerregarding No. 5 bilge line non-return valve was reprehensible'
The Chief Engineer appealed to the Minister of Transport and CivilAviation against the finding in the rider.and, on a re-tearing beingordered. Lord Merriman, P. observed with regard to the passagequoted in the rider as follows
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"Having regard to the absence of any charge against the chief,engineer, and the consequent lack of any opportunity to meet any• such charge, this expression of censure by one assessor in the riderwas wholly irregular whatever view may be taken of the merits. ’
In considering the approach to the determination of this matter onehSs to bear in mind that this Court is exercising an original jurisdictionwhen disposing of complaints of breaches of fundamental rights. Theinquiry is investigative and more in the nature of an inquest than a Jisinter partes – see R. v. Deputy Industrial Injuries Commissioner(above). This Court is given powers "to grant to any other person orhis legal representative such hearing as may appear to the Court to benecessary in the exercise of his jurisdiction under this Chapter.’- Art.
134 (3). The inquiry required is whether the alleged infringment of afundamental right is by executive or administrative action. It wouldthus appear to me to be not restricted to ascertaining whether it is theState Officer against whom the specific allegation made in the petitionin terms of the Rules of the Court that committed the infiringment. Ifthat were so whether the inquiry is regarded as a lis inter partes or asan inquest, I think any witness as in the case of Mahon v. Air NewZealand (above) who would be adversely affected by a finding shouldbe made aware of the risk of that finding being made against him.
The problem here is that the Deputy Solicitor-General had madesubmissions on behalf of the State and the I.G.P. on the basis ofInspector Ganeshanantham's affidavit. It is now submitted that thisapplication is therefore without merit. But in the case ofMenchinahamy v. Muniweera (supra) Dias. S.P.J. was also confrontedwith the submissions that the application before him for restitutio inintegrum was not sustainable on its merits. Likewise in the case of TheSeistan (supra) Lord Merriman. P. observed that the * expression ofdbnsure by one assessor in the rider was wholly irregular whateverview may be taken on the merits.'
Dias. S.P.J. was not prepared to look into the application on itsmerits. He said at page 415:
~ In so far as the petitioner is concerned there has been a violationof the principles of natural justice which makes it incumbent on thisCourt, despite technical objections to the contrary, to do justice."
As I iMve aljpady said the affidavit filed by the petitioner was notintended to disclose Jacts justifying the alleged arrest by him of Mrs.Goonewardene. Though arguments had been advanced by the Deputy
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Solicitor^General, it must necessarily have been against thebackground of the counter affidavit of Mrs. Goonewardenacategorically contradicting Inspector Ganeshanantham on the matter ofthe arrest. He was drawn in as a witness (on an affidavit) and not as anaccused. He was not present in Court. Having tendered his affidavit hehad no further personal interest in the proceedings. It must have beenfarthest from his mind that the focus of prosecution had turned onhim.
On a consideration therefore of both principle and authority I reachthe view that the petitioner is at least entitled to a declaration as in thecase of the judgment referred to by Dias, S.P. J. that there has been a-violation of the principles of natural justice in so far as the petitioner isconcerned. But it is not fair by the State to leave our determination inthe air with a mere declaration that the finding in the judgment that thepresent petitioner is guilty of unlawful arrest is contrary to the audialteram partem rule. This vice will affect the order itself granting reliefin the judgment as it is umbilically connected to this finding of guilt. Itherefore, as Dias, S.P.J. did in the case cited above, would go furtherand say that in view of this irregularity in violating the audi alterampartem rule the petitioner is entitled to move this Court ex debitojustitiae and, that in my opinion; both the order granting relief to Mrs.Goonewardena and the finding of guilt against the petitioner in thejudgment in question are of no effect.
Application dismissed.