THE QUEEN v. A. K. PETER

019-NLR-NLR-V-64-THE-QUEEN-v.-A.-K.-PETER.pdf


120
BASNAYAKE, C.J.—The Queen v. Peter
[In the Count of Criminal Appeal]
Present: Basnayake, C.J., Sansoni, J., and Tamblah, J.
THE QUEEN v. A. K. PETERAppeal No. 24 of 1961, with Application No. 23S. G. 11—M. C. Gamp aim, 50497) A
Trial before Supreme Court—Assigned Counsel—Requirement that he should be givenlime to prejmre his case.
When Counsel is assigned to defend an accused person in a trial before theSupremo Court, ho should bo allowed sufficient time for the preparation ofhis caso and for obtaining instructions from the accusod.
.^LPPEAL against a conviction in a trial before the Supreme Court.
M. M. Kumarakulasingham, with M. FI. Amit (Assigned), for Accused-Appellant.
J. G. T. Weeraratne, Crown Counsel, for Attorney-General.
May 8, 1961. Basnayake, C.J.—
Tho only ground urged by learned counsel for the appellant is tliatwhen the trial commenced on 20th January the accused’s counsel whohad been retained by him did not appear, and that at 11 a.m. on thatday counsel was assigned to defend the accused and the case was taken upfor trial at 12.30 p.m. It is submitted by learned counsel for the appellantthat the time allowed for assigned counsel to prepare the case was notsufficient. He has drawn our attention to the fact that the defence wasgravely prejudiced by the situation in which assigned counsel was placed.Wo agree that assigned counsel should be allowed sufficient time for thepreparation of liis case and for obtaining instructions from tho accused.In tho instant case sufficient time was not allowed. Learned counselfor the Crown agrees with the submission of learned counsel for theappellant.
Wo therefore quash the conviction and direct a fresh trial.
Sent back for fresh trial.
BAS^AYA^^6.J:^h^iJ^^T^MnaTn121
ir—. ..' '■ ff
Present: Basnayake, tfcJFf, Saosoni. J.. and TL l&fG. Fernando, J.
R.CHELLIAH, Appellant, and N. NAVARETNAM, Respondent*
S.G. 459A-Bj58—D. C. Jaffna, 349jM
Civil Procedure Code—Reference to arbitration—Procedure—Requirement of applicationin writing—Sections 676, 677, 691(2), 692, Form 108 of Schedule.
Held (Basnayake, C.J. dissenting), that a minute made by the Judge of anoral application of the parties or their lawyers that all matters in disputebetween the parties be referred to an arbitrator, coupled with the signatureof the minute by the parties to the action in token of their consent to thereference, is a valid application in terms of section 676 of the Civil ProcedureCode, which requires an application in writing.
Madasamy v. Amina (1951) 45 C. L. W. 40, not followed.
.A.PPEAL from a judgment of the District Court, Jaffna.
H. V. Perera, Q.G., with S. Sharvananda and S. T. Croos, forDefendant-Appel!ant in both Appeals.
Ranganathan, with E. B. Vannitamby, for Plaintiff-Respondent inboth Appeals.
Cur. adv. vult.
March 16, 1962. Basnayake, C.J.—
The question that arises for decision on this appeal is whether—
an application under section 676 of the Civil Procedure Code should
be made in writing by the parties themselves or by their speciallyauthorised Proctors and should contain a statement to theeffect that they desire that any matter or matters in. differencebetween them should be referred to the determination of thearbitrator.
it is open to a party to an action who has participated in an arbi-
tration to object to the award on the ground that the order ofreference has been made without the conditions precedent tosuch an order being satisfied.
Shortly the facts of the case are as follows :—Nagalingam Navaretnamthe plaintiff sued R. Chelliah for the recovery of the sum of Rs. 10,670and the return of certain implements, machinery, and other articles setout in Schedule A to the plaint. The defendant denied his liability andclaimed in reconvention a sum of Rs. 5,629*86. The plaintiff in hisreplication asked that the defendant’s claim in reconvention be
6—LXTV
SB. 4548—1883 (8/62)
122
BASNAYAKE, C.J.—Chdliah v. Navarclnam
dismissed. The trial of the action was postponed from time to time andeventually took place on 20th May 1957. On that day both parties wererepresented by counsel and the record reads as follows :—
“ At this stage learned counsel on both sides move that the matterin dispute between the parties in this case be referred- to the sole arbi-tration of Mr. S. ICulasingham, Managing Director, Jaffna Co-operativeStores Ltd., and that his award will be final and accepted by the parties.
Each party to deposit a sum of Rs. 73*50 as preliminary fees of thearbitrator.
Parties consent to the above terms and sign the record.
Reference and arbitration fees on 22. 5. 57.”
The document which represents the application of the parties undersection 676 is a shorthand note signed by them without more. It wasassumed at the hearing of this appeal that the transcript of the shorthandnotes is contained in the minute I have quoted above. Now section 676is in the following terms :—
“ (1) If all the parties to an action desire that any matter in differencebetween them in the action be referred to arbitration, they may at anytime before judgment is pronounced apply, in person or by their res-pective proctors, specially authorised in writing in this behalf, to thecourt for an order of reference.'
Every such application shall be in writing, and shall state theparticular matters sought to be referred, and the written authorityof the proctor to make it shall refer to it, and shall be filed in court atthe time when the application is made, and shall be distinct from anypower to compromise or to refer to arbitration which may appear inthe proxy constituting the proctor’s general authority to representliis client in the action.
The arbitrator shall be nominated by the parties in such manneras may be agreed upon between them.
If the parties cannot9 agree with respect to such nomination,or if the person whom they nominate refuses to accept the arbitration,and the parties desire that the nomination shall be made by the court,the court shall nominate the arbitrator. ”
On the reading of the section it is clear to me that it contemplates awriting signed by both the parties or by their Proctors specially authorisedin that behalf in which they ask that any particular matter of differencein the action specified therein be referred to the decision of an arbi-trator.
But some of the decisions of this Court take the view that a documentwhich the District Judge has composed for the parties on statementsmade by counsel constitutes sufficient compliance with the sectionwhether the parties sign the record or not. In the case of W. H. Bus
BASNAYAJKE, C.J.—GheUiah v. Navaretnam
123
Co. Ltd. v. S. M. Heen Banda1 my brother H. N. G. Fernando examinedthe reported decisions of this Court and formed the view that aminute made by a Judge to the effect that all the parties to the actiondesired that all matters in difference be referred to an arbitrator wassufficient compliance with section 676. I find myself unable to agreewith that view as it does not give effect to the plain words of the enact-ment. The decision of the Collective Court in D. C. Galle No. 42400 2as I read it contains the true statement of the law and is binding on thisbench. Dias J. stated—
“ This case differs from that of Ramasami Kangani v. Agahutti Kangani(2 S. C. C. 59) in the fact that here the formal minute of the referenceto arbitration having been made with the consent of the parties issigned by the district judge, while there it was not so. But thebare record to this effect, however authenticated, is not sufficient.The Legislature, by clause 12 of Ordinance No. 15 of 1866, has madea particular procedure necessary in order to ensure that the referenceto arbitration (one effect of which will be to deprive the parties ofthe right of appeal against the final judgment) should certainly be theact of the parties themselves ; the application to the court forthe order of reference must be in writing, signed either by the partiesor by their proctors or agents immediately authorised by them bymeans of a written instrument which itself must be filed, to signthat particular written application. The award, therefore, is withoutany foundation, and must be set aside.”
There the Court was dealing with a minute to the following effect signedby the District Judge :—
“ …. parties present with their proctors ; referred to arbi-
tration by consent of parties to Cornells Goonewardene Mohandiramof Mahamodara ; P. P. 1st August. ”
This Court held that the reference was wholly irregular, as it has notconformed with the provisions of the 12th clause of the Ordinance No. 15of 1866. That decision was later approved by the Full Bench decisionof Bimbarahami v. Kiribanda Muhandiram 3 in which Fleming A.C.J.after referring to the previous decisions stated—
“ But nothing can be clearer than the decision in D. C. Galle No.42400, which was moreover a decision not by one or two Judges only,but by the fully constituted Collective Court. In that case it wasdistinctly held that the absence of an application in writing to referthe matters to arbitration as required by the Ordinance was not curedby a minute of the District Judge that an arbitration had been agreedto. Presuming that I was inclined to favour the later decisions givenon the points in question in preference to that delivered in the case Ihave last mentioned, I should almost feel bound to follow such decision,
M7955) 57 N. L. R. 337.
*{1835) 7 S. C. O. 99.
* (1879) 2 S. G. G. 85.
124BASNAYAKE, C.J.-—Chdliah v. Navarelnam
in as much as it is a decision, of the Full Court, whereas the others arenotIt may be that these somewhat stringent provi-
sions were enacted to guard against the very danger alluded to by
Chief Justice Cayley, but whether this was so or not it appears to me -that an application such as is. required by the Ordinance is the veryfoundation of the matter being referred to arbitration, and that nosubsequent conduct of the parties can render an appointment valid
which, as a matter of fact, was never validly madeI am
of opinion that in this case there was no valid appointment of anarbitrator, and that this is an objection which no subsequent conductof tho parties can waive or cure.
The order of the learned commissioner must therefore, I think, besot aside ; ”
In Casim Lebbe Marilcar v. Sa-mal Bias1 Bonser C. J. held that althoughthe Full Bench decisions above referred to were decisions under theArbitration Ordinance they were equally applicable to the correspondingprovision of the later Civil Procedure Code. He said—
“It is true that these decisions were prior to the enactment of theCivil Procedure Code ; but the provisions of Ordinance No. 15 of 1866have been substantially re-enactcd in Chapter LI of the Code ; and it is .admitted by Counsel that no distinction could be drawn between thetwo enactments. That being so, the provisions of Ordinance No. 15of 1866 will apply to Chapter LI of the Code. ”
The ratio decidendi of these two Full Bench decisions, as I understandit, is that enactments which provide for a reference to arbitration ofmatters in dispute in an action pending in a Court of law must be strictlyconstrued and that any substitute for what is prescribed however closeto the procedure laid down will not do. But in the case of MeniJce v.TJkku Amma 2 Wood Benton C. J. took the view that a minute made bythe Judge and signed by the parties to the effect that all the parties agreedto refer all matters in difference between them to arbitration satisfiedthe requirements of section 676. He went on to state that the recordmade by tho Commissioner of Bequests of the agreement of the parties,and the authentication of that agreement, not merely by his signaturebut by the marks of the parties themselves, seemed to him to constitutegood evidence that there was an application to the Court that wouldsatisfy even the letter and the spirit of section 676 of the Civil ProcedureCode. But he added—
“ I would desire to call the attention of the Courts of first instanceto the importance of seeing that there is on the face of the recordaffirmative evidence of the assent of both sides to a proposed referenceto arbitration, which it is the main object of the provisions of section676 of the Civil Procedure Code to secure. **
*(1806) 2 N. L. R. 310.
*(1916) 18 N.L.R.413. .
BASNAYAJECE, C.J.—CheUiah v. Navaretnam
125
That case fails to take into account the ratio decidendi of the previousdecisions which are binding on us. The rule of interpretation is thatwords should be given their plain meaning where there is no ambiguity.As I have explained earlier and as indicated in the judgment of theCollective Court, an application in writing by the parties means an instru-ment which they tender as their document signed by them and requiringthe Court to refer a particular matter of difference to an arbitrator. Itwould be strange indeed to permit the parties to make use of the minutesheet of the record for the purpose of making such applications as thelaw allows them to make and to make the Judge the person recordingtheir application.
Now I come to the next point whether the matters in difference shouldbe specifically stated in the order under section 677. Subsection (1) ofthat section reads—
“ The Court shall, by order, refer to the arbitrator the matter indifference which he is required to determine, and shall fix such timeas it thinks reasonable for the delivery of the award and specify suchtime in the order. **
Having regard to the language of section 676, which requires theparties to. state in the application the particular matters sought to bereferred, and the words “refer to the arbitrator the matter in difference ”,I am of opinion that the particular matters in difference which thearbitrator is required to determine should be stated in the order. Itwas pointed out in the course of the argument that the present referenceis in accordance with Form 108 to the Schedule to the Code. That formspeaks of all matters in dispute. The forms in the Schedule cannotoverride the provisions of the main enactment. A reference in terms ofthe form may satisfy a case in which the Court has determined thematters in difference in the form of issues ; but not a case in which therehas been no such determination.
Now I come to the third point whether it is open to a party who hasparticipated in an arbitration held on an application and order of referencewhich do not satisfy the requirements of sections 676 and 677 of theCivil Procedure Code to object to the award on the ground that therequirements of the Code have not been observed and ask that it be setaside. The grounds on which an award may be set aside are in section691 (2). That provision reads—
“ No award shall be set aside except on one of the following grounds,namely :
(а)corruption or misconduct of the arbitrator or umpire ;
(б)either party having been guilty of fraudulent concealment of
any matter which he ought to have disclosed, or of wilfullymisleading or deceiving the arbitrator or umpire ;
the award having been made .after the issue of an order by thecourt superseding the arbitration and restoring the action2*B, 4548 (8/62)
120
JBASNAYAKR, G.J.—GhelLvah v. Navarelnam
The same provision goes on to declare that no award shall be validunless made within the period allowed by the Court. In the contextthe word “ award ” can only mean an award made on a properapplication and reference.
It would appear from the provision I have quoted that the power ofthe Court under section 691(2) to set aside an award in the sense indicatedabove is limited to the cases prescribed therein. Where an award isnot made within the period allowed by the Court it is declared to be not. valid and need not therefore be acted on. Now non-compliance withsection 670 or 677 or both of them does not fall within the grounds sj>eci-fied. A Judge of first instance would have no power under section 691(2)to set aside an award on any ground not specified therein. The wordsof the section are—
“ No award shall be set aside except on one of the following grounds,namely :
corruption or misconduct of the arbitrator or umpire ;
either party having been guilty of fraudulent concealment of any
matter which he ought to have disclosed, or of wilfullymisleading or deceiving the arbitrator or umpire ;
the award having been made after the issue of an order by the
court superseding the arbitration and restoring the action.”
But iu view of the decisions in 2 S-C.C S5, 7 S.C.C. 99 and 2 N.L.R. 319,in all which the awards were set aside on the ground that the applicationsfor reference were bad and the cases were sent back for proceeding withthe trial, I am not free to act according to the view I have formed asl am bound by the decisions above cited.
. Learned counsel contended that where there is no compliance withsection 676 or 677 or both a condition precedent to a valid reference islacking and that an award made in a ease in which these conditionsprecedent have not been observed is not valid. I am in agreement withthe submission of learned counsel but my difficulty is that there is noprovision of the Code under which an award can be set aside on the groundthat application or order of reference or both are not in conformity withit. Nevertheless there arc binding precedents of this Court whichsupport the view that a judgment entered according to an award madeon an order of reference or application which is not in accordance withtlic statute may be set aside in appeal as void or without foundation.
My own view is that a party who states that there are defects in thereference should in the absence of provision in the Code for settingaside an award on that ground seek remedies outside the Code ; but as Iam bound by the Full Bench decisions I have cited, I have no othercourse open to me but to set aside the judgment and send the case backfor proceedings in due course. I would allow costs both here and below.
SANS ONI, J.—CheUiah v. Navaretnam
127
SaNSONI, J.—
When this case was taken up for trial, Counsel for the respectiveparties moved that the matter in dispute be referred to an arbitrator,whose award would be final and accepted by the parties. The DistrictJudge recorded this application, the parties consented to these terms,and signed the record. At that stage they had only the shorthand notesof the proceedings before them, but I do not think that the signing ofthese notes is in any way less valid than the signing of the typescript ofwhat those notes contained.
If there was no valid application for arbitration, there can be no validreference or award. An appeal raising an objection to the validity ofthese proceedings would lie, and would not be covered by section 692of the Code.
The main point on which this appeal turns is whether there was anapplication in writing made to the Court as required by section 676 (2)of the Code.
I shall briefly refer to some judgments which deal with the question.It was considered as far back as 1879 by the Collective Court, althoughthe statute in force then was the Arbitration Ordinance No. 15 of 1866.That section required the application to be made by an instrument inwriting. It was held that the consent of parties, evidenced by a minuteof the application made and signed by the District Judge in the recordwas insufficient, and that the application must be signed by the partiesor their proctors or agents This judgment was followed by anotherCourt of three judges in Gonsales v. Holsinger2. There too,-the DistrictJudge had made a minute that the matter in dispute was referred toarbitration by consent of parties and he had signed the minute. “ But ”,proceeds the judgment, “ it is not pretended that it was signed by theparties The judgment then refers to earlier decisions which held that“ such a minute made by the court, and unsigned by the parties to thesuit, was not a sufficient compliance with the requirements of section12 of the Arbitration Ordinance ”. In my view, the court impliedlyheld that if a minute, such as we have to deal with here, was made by thejudge and signed by the parties, there would be a sufficient compliancewith the terms of the section which required that the application shouldbe in writing. And it was, in fact, so held in Menike v. Ukbuamma? andagain in Appxthamy v. Dingiri Mahatmaya 4. The practice has alwaysbeen to get the signatures of the parties, as required by these decisions.The contrary has been held only in Madasamy v. Amina 5.
Mr. H. V. Perera submitted that since the section deals, with themanner of divesting the court of jurisdiction already vested in it, andconferring that jurisdiction upon another person, it must be strictly
1 (1879) 2 S. G. C. 85.* (1915) 18 N. L. R. 413.
* (1SS5) 7 S. C. G. 101.1 (1928) 30 N. L. R~ 254.
* (1951) 45 C. L. W. 40.
128
SANSONI, J.—Chelliah v. Navarelnam
followed ; and that although it is only a requirement of form that isenacted, it cannot be disobeyed. I think the argument raises twoquestions :
aa to what is an “ application in writing ** and
as to whether the requirement of an application in writing is
obligatory or merely directory.
On the first point, I would hold that a record in writing made by the Judge,of an oral application of the parties or their lawyers, is the equivalentof an application in writing ; for, as it has been said, “ the personality ofthe writer makes no difference The local cases which I have referredto have insisted on the signature of the parties as an essential requirement,on the view that an application cannot be said to be in writing by anybodyunless it is signed by him. That seems to me a reasonable view to take,although the Privy Council decided in Singh v. Mel Dhadha1that there can be an application in writing which is unsigned. I do notthink that we are free now to take a different view from that which thiscourt, with one exception, has held for over 80 years. That view, as Iunderstand it, is that a minute made by the Judge in the record that theparties wished to refer their dispute to arbitration becomes an applicationin writing (even though the parties or their lawyers applied orally)once the record is signed by the parties. “ In a matter where certaintyand uniformity of practice is more important than theoretical unassaila-bility, we do not feel justified in dissenting from the view which has beenexpressed or assumed in the several cases referred to ”, said Varadachariar,J. and with respect X think there is much to be said for this attitude.
On the next question, as to whether the requirement in section 676 (2)is directory or obligatory, Mr. Perera’s argument, even if we were dis-posed to reconsider the view so long held, can only succeed if the require-ment is held to be obligatory, with an implied nullification for disobedi-ence. It is not always easy to decide such a question. The test laiddown by Lord Penzance in Howard v. Bodinglon 2 has often been cited.“ In each case you must look to the subject matter; consider the impor-tance of the provision that has been disregarded and the relation of thatprovision to the general object intended to be secured by the Act; andupon a review of the case in that aspect decide whether the matter iswhat is called imperative or only directory. ”
My own view is that, as has been held by the Indian Courts, the re-quirement in section 676 (2) is only directory as to the form in which theapplication is made, and a non-compliance with it is a mere irregularitywhich will not affect the validity of the reference. The essentials ofthe jurisdiction to refer are contained, in my view, in subsection (1)while subsection (2) deals with a mere matter of form. AlthoughI express that view for what it is worth, I do so merely in deferenceto the interesting arguments which were addressed to us. I only addthat the interpretation of the particular provision which is being con-sidered cannot be affected by the consideration whether substantialinjury has resulted or not by reason of non-compliance with its terms.
1 {1915) A. I. R. {P.G.) 79.a (1876) L. R. 2 Prob. 203. •
H. N. G. FERNANDO, J.—Chellxah v. Navaretnam
129
The Indian Courts have, in dealing with this question, often referredto the Privy Council decision in Pestonjee v. Khan Bahadoor1. That casedealt with a regulation which enacted, among other things, that thedeed of reference must contain “ the time within which the award is tobe given The Privy Council held that a deed which contained no pro-vision regarding the time was bad, and an award made under it was bad;but it must be noted that the Privy Council held also that if it could havebeen satisfied that the provision as to time was merely directory thecase might have been very different. The decision in each case mustnecessarily turn on the terms of the particular statute when consideredin the light of the test laid down by Lord Penzance.
But whatever views I may hold on these matters seem to me to be oflittle consequence in this connection. The matter is not res Integra.
I do not therefore wish to add to these obiter dicta by touching on thequestion of estoppel which was referred to in the argument. We aredealing with the construction of a statute upon which a certain interpre-tation had been placed a long time ago. It is well settled that “ theconstruction of a statute of doubtful meaning once laid down and acceptedfor a long period of time, ought not to be altered ” unless it could besaid positively that it was wrong and productive of inconvenience :see Bourne v. Keane 2. A practice based upon the long-accepted inter-pretation has existed for a long time, and has been approved and recog-nised by this court time and again. Our duty in the circumstancesis to uphold that practice. The Privy Council held in Migneault v.Malo 3 that where, for a long period of years, the local courts had actedon an incorrect construction of a law relating to the effect of a grant ofprobate, it should not put a different construction on it. It follows thatwe should not now—even if we agree that it is correct, which I personallydo not—accept the argument put forward by Mr. Perera that a separatewritten application that the matter in dispute be referred to arbitration,prepared by the parties or their lawyers, is necessary. The main sub-mission on which the appeal was based must therefore be decided againstthe appellant.
The other matter urged by Mr. Perera was that a reference of all mattersin dispute or of “ the matter in dispute ” is bad, because section 676 (2)provides that the application “ shall state the particular matters soughtto be referred ”. I do not think that the argument has any force in viewof the terms of form No. 108 to be found in the second Schedule to theCode. According to that form, an order of reference of “ all matters indifference ” is justified, and this objection also fails. I would dismissthe appeal with costs.
H. N. G. Fernando, J.—
The principal question which arises in this case is whether a recordby the Judge of an oral application to the court that matters in disputebetween parties to an action be referred to an arbitrator, coupled with
1 (1855) G M. I. A. 134.2 (1919) A. C. 815.
8 (1872) L. R. 4 P. C. 123.
130
Hayleya, Ltd. v. de Silva
the signature of the record by. all parties to the action in token of theirconsent to the reference, is a valid application in terms of section 676of the Civil Procedure Code, which requires an application in writing.This question was answered in the affirmative by Wood Renton andde Sampayo, JJ. in Menilce v. TJkkuamma 1 in the year 1915, and againreceived full consideration by Gratiaen, J. and myself in W. H. Bus Co.,Ltd. v. Heen Banda 2 in 1955. In the course of my previous judgment,several early authorities were considered, which in my opinion fullyjustified the 1915 decision. Counsel for the appellant in the presentcase has not adduced any argument which might persuade me of theerror of my former opinion. On the contrary, the new matters nowbrought to our notice, namely the decisions in Indian cases (construingsimilar statutory provisions in the Indian law) to the effect that therequirement of an application in writing is not mandatory, serve toconfirm me in that opinion.
The practice approved in 1915, of a record signed by the Judge andthe signature of the record by the parties to an action, has regularlybeen followed in our courts in connection with references to arbitration.Indeed, the validity of the procedure adopted in the District Court ofJaffna in this very case was not questioned even in the petition of appeal.Counsel has not persuaded me that any benefit is to be gained, or anydisadvantage to be avoided, by the adoption after these many yearsof a more strict view of the requirements of section 676. I
I would dismiss the appeal with costs.
Appeal dismissed.