COURT OF APPEALGRERO.J.
C.A. APPLICATIONNO. 18/91 ~
M.C. TANGAtLE NO. 3308526 NOVEMBER 1991
Revision – Application for revision by Attorney-General – Rule 46 of the SupremeCourt Rules.
Even the Attorney-General must comply with Rule 46 of the Supreme Court Rules.Non-compliance is fatal. The Attorney-General may not be able to file an affidavitand this may not be necessary where the question is one of law and not of fact.But he must file the documents and relevant proceeding in the absence of asatisfactory explanation for not doing it.
Cases referred to:
Kiriwanthe and Another v. Navaratne and Another (C. A. No. 16/90).
A. G. v. Chandrasena (C.A. No. 589/90).
APPLICATION to revise order- oMhe Magistrate of Tangalle.A. R. C. Perera, S.S.C. for Attorney-General..
P. Nawana for accused-respondent.
Cur adv vult.
21st January, 1992.
The Attorney-General had filed this application for the revision ofthe order made by the learned Magistrate of Tangalle on 9.11.90. Herequested to grant reliefs as stated in the prayer to the petition.
When this matter came up for inqulryfon 26.11.1991, the learnedCounsel for the accused-respondent raised a preliminary objection inthe form of an issue. It is as follows
“Whether non-compliance of the Suprerne Court Rules 46, 47and 49 in particular and in. general would be fatal to thisapplication? If so, can the ^etitiohiar..(the Attorney-General)proceed with this application?*;
This Court decided without going into the matters, raided in thepetition, to inquire into the question in view of the said isstkk whetherthe petitioner can proceed or not with his application.
The contention of the learned Counsel for the accused-respondentwas, that the petitioner has not filed an affidavit along with the petitionas required by the aforesaid Rule 46. He also submitted to Court thatthe petitioner has failed to comply with the said Rule 46, in that, thepetition was not accompanied by the documents material to the casein the form of exhibits. He further submitted that the compliance withRule 46 is mandatory and as such, even the Attorney-General who isthe petitioner to this application must comply with the requirements ofthe said Rule 46. As he has not complied with the said Rule 46, hecontended that he cannot proceed with this application. He cited anumber of decided cases to support his contention.
The learned Senior State Counsefin reply,-submitted to Court thatstrict compliance of rules is not necessary in a matter a revision. Hecited the decision of the Supreme Court,in Kiriwanthe and Another v.Navaratne and Another<1) (Appeal Case No. 16/90) to support hiscontention to the effect simply bSCause there had not been acompliance with the said rules the application should notautomatically be dismissed. He heavily relied 'upon the decision ofthe said case and submitted to Court that the Attorney-General madethis application to this Court as there had been a miscarriage ofjustice and therefore, this Court should consider the said applicationand make a suitable order.
The decision of the Supreme Court in the case of Kiriwanthe andAnother (cited by the learrted-Senjor State Counsel) is a veryimportant one and the Supreme Court had considered all the casespreviously decided in regard to the'question of the Supreme CourtRules, and had rrfede its decision. His Lordships have considered inparticular S.C. Rule 46 in their decision: In the said case Fernando, J.observed thus:
“The weight of authority thus favours the view that while all theserules rn^t be cdmpfiertwith, the law does not require or permitan autenriatic dismissal of the application or appeal of the partyin default. The consequence of non-compliance (by reason ofimpossibility or for any other reason) is a matter falling within thediscretion of the Court, to be exercised after considering thenature of the default, as well as the excuses or explanationthereof, in the context of the object of the particular Rule”,(page 9 of the decision).
The views expressed by Fernando, J. reveal, that non-complianceof the rules is not a matter calling for automatic dismissal of anapplication, but a discretion lies in the hands of the Court to considerthe reasons for such non-compliance; along with the object of theparticular rule and thereafter to make an appropriate order whetherthe application is to be dismissed or not. In other words, simplybecause there had been a non-compliance of a Rule it does notpermit dismissal of an application without considering the reasons for
such, non-coitfplianpe. Well-fa the petitioner could adduce areasonable explanation or satisfy Court for example that he wasprevented by reason of impossibility to comply with the required Rule;then the Court may excuse sucfi non-compliance, and proceed withthe petitioner’s application. The- burden is on the petitioner to satisfyCourt as to why he coujd not cbmply with the provisions of theparticular Rule. •••■'
This Court considered as to why the petitioner had not filed anaffidavit along with the petition. The learned Senior State Counselsubmitted to Court that an affidavit has to be filed on facts personallyknown to declarant, and in a matter of this nature when the Attorney-General comes before this Court with agrievance that a miscarriageof justice has taken place, it .is: not /possible like any other declarant(who is personally aware of the facts) to file a proper affidavit. But thelearned Counsel for the accused-respondent submitted to Court thateven the Attorney-General when b# is a petitioner must strictlycomply with Rule 46.
•V i‘ w
In the case of Attorney-General v, M. L. ChUndrasenal2) JusticeA. De Z. Gunawardana held as foliows;r.
"It is appropriate to note that an affidavit should;be confined tothe statement of such facts as the declarant is able to his ownknowledge and observation to testify to. The Attorhby-Generalbeing a State Officer, acting in his official capacity wouldgenerally be not able to testify to facts of a given case of hisown personal knowledge. Hence, he would not be able tosubmit an affidavit relating to the facts through his personalknowledge, although he is the petitioner. However, in a casewhere he is inviting the Court to decide on questions of facts, hewill be required to file affidavits through persons who havepersonal knowledge of the relevant facts”, (page 4 of thejudgment).- „
This Court perused of the petition of the petitioner. It shows thatparagraphs 9 to 15 are based on questions of law and not onquestions of facts, and on the basis of the averments contained in thesaid paragraphs he is inviting Court to go into the question whetherthere had been a miscarriage of justice and if so, grant reliefs asprayed for in the petition.
Following the decision of the said case® and the circumstancesupon which the Attorney-General has come to this Court, this Court isof the view that the absence of an affidavit has not violated theprovisions of the said Rule 46.
The next question is whether, the petitioner has complied with thelatter part of the said Rule 46; to wit, that the “petition shall beaccompanied by originals of documents material to the case orduly certified copies thereof, in the form of exhibits?”
The petitioner in his petition states that the order made by thelearned Magistrate cannot be tenable in law. He gives reasons inparagraphs 9 to 15. He has hot filed at least a duly certified copy ofthe learned Magistrate’s order for this Court to consider whether whatis stated by the petitioner is correct or not. He further states that thelearned Magistrate had acted contrary to law and the weight of theevidence led at the trial. Has he filed certified copies of the evidenceof the witnesses in this case? No. This Court is of the view, that beforegranting any relief asked by the petitioner, this Court has to gothrough such evidence given by the witnesses before the learnedMagistrate. Then only this Court can consider whether the learnedMagistrate had acted contrary to such evidence and made adecision contrary to both law and facts of the case.
The petitioner in his petition has not given any reason as to why hewas not able to submit to this Court, the original or certified copies ofthe said order and the evidence given by the witnesses in this caseas exhibits in this application. The petitioner has not satisfied thisCourt with a reasonable explanation regarding the impossibility ofobtaining such copies in order to submit to this Court along with thisapplication.
At least no attempt has been made by him to tender them to thisCourt even subsequently. This Court is of the view that the saiddocuments are very essential and.they must be before this Courtwhen this Court goes into the rnerits of the application. Non-compliance of the requirement regarding the tendering of suchdocuments has not been satisfactorily explained by the petitionerand therefore, this Court is of the view that there is a violation of theprovisions of Rule 46, which is fataf'to this application.
In view of the fact that the petitioner-has violated the provisions ofRule 46, (in regard to the failure to submit the- relevant documents inthe form of exhibits) this Court upholds the preliminary objectionraised by the Counsel for the accused-respondent and thepetitioner’s application is hereby dismissed.
The learned Counsel for the accUSed-respopdent raised someother matter that the petitioner has not complied with Rule 49. As thisCourt has dismissed the petitioner’s application for the above statedreasons, this Court is of the view that it is not necessary to go into thesaid matter raised by the Counsel.
THE ATTORNEY-GENERAL v. WILSON SILVA