004-NLR-NLR-V-80-UDALAGAMA-J.–Sirisena-and-Others-V.-Kobbekaduwa-Minister-of-Agriculture-and-.pdf
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UDALAGAMA, J. – Sirisena and Others u Kobbekaduwa,
Minister of Agriculture and Lands
101
UDALAGAMA, J.
In terms of Section 354(1) of the Administration of Justice Law No. 44 of1973, Pathirana, J., Wijesundara, J., and I, having perused the records in theabove cases, in order to satisfy ourselves as to the legality or propriety of theorders made by the learned Judges of the High Court and the District Courtand having formed the opinion that the said orders on the face of the recordsappear to be illegal, issued notices on the petitioners-plaintiffs to show cause,as to why the said orders should not be set aside in the exercise of our powersof revision. On 14.6.74 when the matters came up before the three of us,Counsel appearing for the petitioners-plaintiffs informed us that as the mattersarising from these cases were of general and public importance, an applicationhad been made to the Honourable The Acting Chief Justice, that these casesbe heard by a Bench of five Judges. In view of this statement by Counsel, thehearing of these cases were adjourned. The Acting Chief Justice thereafter,nominated a Bench of nine judges and that is how these cases now come upbefore us.
Broadly, the matter in issue in these cases is whether section 24 of theInterpretation (Amendment) Act, No. 18 of 1972 took away the power ofCourt to issue injunctions “both interim and permanent,” against the personsor bodies mentioned therein “in respect of any act done or intended or aboutto be done by any such person or authority in the exercise of any power orauthority vested by law in any such person or authority.”
Section 24 of the Interpretation (Amendment) Act No. 18 of 1972 reads asfollows:
“Nothing in any enactment, whether passed or made before or after thecommencement of this Ordinance, shall be construed to confer on anycourt, in any action or other civil proceedings, power to grant an injunctionor make an order for specific performance against the Crown, a Minister, aParliamentary Secretary, the Judicial Service Commission, the PublicService Commission, or any member or officer of such Commission, inrespect of any act done by any such person or authority in the exercise ofany power or authority vested by law in any such person or authority.”
Mr. H. W. jayewardene, Counsel appearing for peitioners-plaintiffs in caseNos. S.C. APN/GEN 6/74 to 11/74, 13/74, 14/74, 19/74 and 20/74 in a verylong and exhaustive argument, submitted to us that where any act done orintended or about to be done, is tainted with mala fides an exclusion clause,would not be a bar and a Court would have jurisdiction to entertain such anapplication and to have the act of the person or body, examined: and for thispurpose, until the matter is finally disposed of, have the right to stayproceedings on the act of the person or body concerned, by way of interiminjunction. Mr. Jayewardene cited to us cases decided in various countries
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of the commonwealth for the proposition that, power conferred by a statuteshould be exercised bona fide and that where an allegation of mala fide orfraud is made, the Courts have acted despite exclusion clauses. The leadingenglish cases on the subject are Smith v. the East Elloe Rural DistrictCouncil (supra) and Anisminic Ltd., V. Foreign Compensation Commission(supra). In the East Elloe case, the House of Lords by a majority judgmentheld that the order (made under the Acquisition of Land (AuthorisationProcedure) Act of 1946) could not be questioned in a Court of law on anyground whatsoever. Viscount Simmonds taking the view that the languagein the statute covered every possible ground of challenge including badfaith. Lord Reid who took the minority view held that if mala fides wereprotected, then the subject who was given a legal remedy to be availed ofwithin 6 weeks would be deprived of any relief if fraud was discovered afterexpiry of such period. The preclusion clause in the Acquisition of Land(Authorisation Procedure) Act 1946 read that where an order is made underthe Act it “shall not either before or after it has been confirmed, made orgiven, be questioned in any legal proceedings whatsoever.” In theAnisminic case (supra) the preclusion clause stated “the determination bythe Commission, of any application made to them under this Act shall notbe called in question in any court of law.” The House of Lords by a majoritydecision took the view that these words did not preclude the examination ofa determination which had been arrived at on a consideration of a factorwhich the Commission had no right to take into consideration. It is pertinentto ncjte that both these cases deal with the ouster of jurisdiction of Courts inthe e!xercise of powers over tribunals and courts of inferior jurisdiction. Thequestion, therefore, arises whether the principle laid down in these caseswould equally apply to administrative and/or executive acts and orders.Clearly the acts contemplated in section 24 of the Interpretation(Amendment) Act No. 18 of 1972 are administrative acts or executiveorders. When a tribunal or court of inferior jurisdiction decides a mattersubmitted to it, it is expected to follow certain procedures and rules ofevidence. On the other hand when administrative acts and executive ordersare made they may not be based on strict procedures and rules of evidencesuch as are followed by tribunals and inferior judicial bodies. But still, theymay:be necessary and for the good of the State. If every administrative actand executive order has to be based on strictly legal procedures and rules ofevidence as known to the law the machinery of Government could neverfunction smoothly. It is my view that in interpreting section 24 of theInterpretation (Amendment) Act, the East Elloe case (supra) and theAnisminic case (supra) are of little or no help. One has to interpret section24 of the Interpretation (Amendment) Act as it appears in the enactment,following the normal rules of interpretation as found in textbooks anddecided cases. The best approach to my mind is to be found in the words of
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UDALAGAMA, J. – Sirisena and Others v. Kobbekaduwa,
Minister of Agriculture and Lands
103
Turner L.J. in Jawkings v. Gather Cole 6 de G. M. & G 20., cited in Craieson Statute Law & 7th Edition (supra) page 125 where he stated, “thedominant purpose in construing a statue is to ascertain the intent of thelegislature, to be collected from the cause and necessity of the Act beingmade, from a comparison of its several parts and from foreigncircumstances so far as they can justly be considered to throw light upon thesubject.” We must therefore, try to find out what was the purpose of thelegislature when section 24 of the Interpretation (Amendment) Act No. 18of 1972 was enacted, and whether it achieved that purpose.
Their could be no doubt that section 24 was brought in with specialreference to land acquisition matters, although the section itself does not sayso, it was contended by the petitioners and it was common ground that inland acquisition matters when the Minister in charge of the subject movedto acquire a land for a public purpose and the owner was against it, it took anumber of years to have the dispute settled and finality reached. In theresulting position, the inconvenience to the State and a fortiori to the publicwas so very great that it completely outweighed the rights of the individual.Furthermore it was also common ground that in a large majority of thesecases the owners had dismally failed to establish mala fides for theacquisition. In the result the people of a particular locality or town whowere urgently in need of a hospital, an agrarian centre, a dispensary or aroad, had to be deprived of it for a number of years causing social andeconomic distress. It has sometimes even happened that the money voted bythe legislature for the purpose, had lapsed by the time the case was over. Soone cannot escape the conclusion that a formula had to be evolved to getover this inordinate delay. In 1969 by Act No. 20 of 1969 an attempt wasmade to get over this by requiring courts to give priority to the disposal ofland acquisition cases. It is common knowledge what a failure this provisionturned out to be. It was submitted to us that the problem of delay could beovercome by State Counsel insisting on strict compliance with section 2 ofOrdinance 20 of 1969. However much State Counsel may insist on a strictcompliance of section 2 and however much the intention of a particularJudge may be, there are certain procedural steps and matters beyond thecontrol of a Court which could stall and prevent the final determination, asexpeditiously, as one would like it to be. Hence something more effectivehad to be found by the legislature. The solution the legislature evolved wasthe enactment of section 24 of the Interpretation (Amendment) Act No. 18of 1972. What has section 24 attempted to achieve? A paraphrase of thesection would read as follows: “Where in any enactment a power isconferred on a Court prior to or after the enactment of section 24, to grantan injunction or make an order for specific performance against the Crown,a Minister, a Parliamentary Secretary, the Judicial Service Commission, the
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Public Service Commission, or any member or officer of suchCommission, that power is taken away, by the section and a right to ask fora declaration given in lieu thereof. In simpler language, section 24 hasstripped the courts of the power it possessed under the Courts Ordinanceand the Civil Procedure Code to grant injunctions or make orders forspecific performance in respect of any act done or intended or about to bedone by the Crown, a Minister, a Parliamentary Secretary, the JudicialService Commission, the Public Service Commission or any member orofficer of such Commission, in the exercise of any power or authorityvested in such person or body. The words “any act” are very wide andshould be read as “every act.” It will be seen that the section deals withpurely administrative acts and executive orders of the persons and bodiesreferred to therein. It is my view therefore, that the question of mala fidesand bona fides really do not enter into the discussion at all. As ViscountSimmonds said in Smith v. East Elloe Rural District Council (supra) “therewas no justification for the introduction of limiting words such as ‘if madein good faith’ in the relevant provision.” The argument that a declaratoryact is useless if the status quo is not maintained, is not tenable, because,one must presume and presume confidently that if a declaration is madeagainst the Crown, a Minister, a Parliamentary Secretary, the JudicialService Commission, the Public Service Commission or any member orofficer of such Commission, for any acts of such persons or bodies, ampleamends will be made by the State, if action had already been taken on suchacts and it is not possible to restore the status quo. One must also not forgetthat these persons and bodies are highly responsible ones and it would onlybe in a rare case that one could expect acts of such persons and bodies tobe tainted with fraud or malice. Under the present constitution the judicialpower of the people is exercised by the National State Assembly throughthe courts and if the State proceeds to ignore a solemn declaration by aCourt of competent jurisdiction, it will only stultify itself and bring itselfto ridicule. Moreover, as contended by the Acting Solicitor-General,immediately notice of a declaratory action is given to the Attorney-General, as it must, the law officers of the State would advise the Ministeror body concerned, the course of action that should be taken in regard tothe act of the Minister or body. From experience, one cannot dismiss thestatement of the Acting Solicitor-General as an empty one or a poorconsolation for a person who is to be deprived of his home and hearth. Tointerpret section 24 in any other way, to my mind, would result in the Courtpassing into the role of a legislator. The Great Francis Bacon, LordVerulam, in his Verba Legis wrote "non est interpretatio divinatio, quaerecedil a litora. Cum receditur a litera, iudex transit in legislatorem” – it isnot interpretation but speculation when it departs from the text. When thereis a departure from the text, the judge passes inLo the role of a legislator.
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UDALAGAMA, J. – Sirisena and Others u Kobbekaduwa,
Minister of Agriculture and Lands
105
Again in his essay on Judicature he wrote “Judges ought to remember thattheir office is iun dicere and not ius dere” – to interpret law, and not tomake law or give law. These views of Bacon is part of the GOLDENRULE of interpretation enunciated in the judgments of the Courts ofEngland. It is not the duty of a Judge to modify the plain meaning ofwords. His duty is to expound the law. On the interpretation I have soughtto give, section 24 has, to my mind, achieved the purpose the legislaturehad intended.
I would therefore, hold that section 24 of the Interpretation(Amendment) Act No. 18 of 1972 took away from the courts the power togrant injunctions (both interim and permanent) or make orders for specificperformance against the persons or bodies referred to therein, irrespectiveof whether such acts or orders were motivated by mala fides or bonafides,or other ground whatsoever.
Mr. Thiruchelvam for the petitioners in case Nos. S.C. APN/GEN/12/74and 16/74 while concurring with the submissions of Mr. H. W.Jayewardene raised two matters which called for our consideration. Firstlyit was contended that what section 24 of the Interpretation (Amendment)Act took away was the power of the courts to issue injunction under “anenactment” and the inherent power of the court to issue an injunction toprevent any mischief or irreparable damage, remained. The answer to thissubmission is found in the case of Mohammadu v. Ibrahim (supra) where itwas held that there is no inherent power in the Supreme Court to issueinjunctions. Section 839 of the Civil Procedure Code or section 40 of theAdministration of Justice Law has not altered the ratio decidendi laid downin this case. The Supreme Court has no inherent power to issue injunctions.If so, could it be said that the High Courts and the District Courts have gotthis power? The obvious answer is “no.”
The other point taken up by Mr. Thiruchelvam is that section 24 appliesonly to permanent injunctions and not to interim injunctions and thereforethe remedy by way of interim injunctions was available to the subjectdespite section 24 of the Interpretation (Amendment) Act. If thisconstruction is to bfe put on section 24, the whole intention of thelegislature would be brought to nought and section 24 would have nomeaning. In Nokes v. Doncaster Collieries (supra) Viscount Simondsobserved “if the choice is between two interpretations the narrower ofwhich would fail to achieve the manifest purpose of the legislation, weshould avoid a construction which would reduce the legislation to futility,and should rather accept the bolder construction based on the view thatParliament would legislate only for the purpose of bringing about aneffective result.”
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In Rambukpota v. Jayakody126 and Thambypillai v. Thainbypillai127 ourcourts have held that the term injunction in sections 86 and 87 of theCourts Ordinance and sections 662 and 663 of the Civil Procedure Codereferred to interim injunctions, so when section 24 speaks of “anyenactment” it must of necessity refer to sections 86 and 87 of the CourtsOrdinance and sections 662 and 663 of the Civil Procedure Code. In myview section 24 applies both in interim injunctions as well as permanentinjunctions.
In regard to the objections taken by Mr. H. W. Jayewardene as to thelegality of the proceedings that were adopted to bring this matter beforethis bench, I regret I am unable to see any merit in the arguments placedbefore us. Under section 14(1) of the Administration of Justice LawNo. 44 of 1973 the jurisdiction of the Supreme Court can be exercisedby several Judges sitting separately. It is therefore, patent, that anysingle Judge of the Supreme Court could exercise the jurisdiction of theSupreme Court subject to the proviso to section 14 (1). In the presentcase when my brothers Pathirana, J. and Wijesundera, J. called for therecord now under review, they were acting within section 14(1) of theAdministration of Justice Law and when order was made under section354(1) of the same law noticing the petitioners-plaintiffs to appear andshow cause as to why the said orders should not be set aside in theexercise of our powers of revision, we were doing so still under section14(1). In regard to the submission that orders under section 14(1) andsection 354(1) should have been made at sittings of the Court held inpublic, we are unable to agree. Section 7 of the Administration of JusticeLaw applies to actual hearings of parties and arguments and not to actsancillary to the exercise of judicial power. The calling for and examininga record for the purpose of making of an order to issue notice on a partygiving him an opportunity of being heard on his behalf, do not involvethe exercise of judicial power. In regard to the comment that the presentcases have come up before this bench not as a result of any applicationby the aggrieved parties, all I wish to state is that the Supreme Court isnot governed in the exercise of revisionary powers by the wishes ofparties. The object at which the court aims is the due administration ofjustice-vide in the matter of the insolvency of Haymen Thornhill™ at106.
I hold that the interim injunctions issued in the above cases are illegaland are of no force or avail. In the circumstances of these cases I make
no order as to costs.
'“(1929) 29 N.L R. 383.
"■(1895)2 N.L R. 105.
117 (1974) 77 N.L.R. 97.