UNION APPARELS (PVT) LTD.
v.DIRECTOR-GENERAL OF CUSTOMS AND OTHERS
SUPREME COURTAMERASINGHE. J.,
WIJETUNGA, J. ANDBANDARANAYAKE, J.
SC APPEAL NO. 490/99
20‘h AUGUST AND 6th SEPTEMBER, 1999
Fundamental rights – Failure to file written submissions in terms ofRule 45(7) of the Supreme Court Rules 1990 – Whether such non-compliance amounts to a failure to prosecute- the application -Application of Rule 34 – Difference between Rule 30 and Rule 45 (7) -Rule 45 (8).
The petitioner company filed its application on 3.6.1999. Leave toproceed was granted on 08.06.1999 and the hearing was fixed for
The written submissions were filed by the petitioner on
The petitioner thereby failed to comply with Rule 45(7)(contained in Part IV of the Rules) which requires written submissions tobe filed at least “one week before the date fixed for hearing". At thehearing on 20.8.1999 counsel for the 2nd respondent took a preliminaryobjection that the application must stand dismissed in terms of Rule 34(contained in Part 11 of the Rules) as the written submissions of thepetitioner, though filed on 19.8.1999, were not filed in terms of the Rules.Rule 45(8) provides that “the provisions of Part 11 of these Rules shallapply, mutatis mutandis, to applications under Article 126.” Rule 34provides inter alia that where a petitioner fails to show due diligence intaking all necessary steps for the purpose of prosecuting the applicationthe court may declare the application to stand dismissed for non-prosecution.
Having regard to the purpose of Rule 45(7) particularly when it iscompared with Rule 30 and the purpose of rule 34 and the circumstancesof the case, if cannot be said that the petitioner had failed to show due• diligence in taking all necessary steps for the purpose of prosecuting theapplication. As such the preliminary objection must be overruled.
Sri Lanka Law Reports
120001 l Sri L.R.
Cases referred to :
Mendis u. Abeysinghe (1989) 2 Sri LR 263 at 270
Housenxan v. Waterhouse 191, App Div 850. 182 N. Y. S. 249. 251
Coomasaru v. Leechamn and Company Sc Appl.
No. 27/73 SC Minutes 26 May 1976
Samarawickrama v. Attorney-General (1983) 1 SriskaiHha's LawReports 47
Mylvagnamv. ReckittandColman SC Appeal No. "154/87 SC Minutes8 July 1987
Jayasinghe u. Jayasinghe SC Appeal No. 53/87 SC Minutes 26 May1988
A(i Ceylon Match Workers' Union v. JauJJer Hassan and Others(1990)2 Sri LR 420
Jayasuriya v. Sri Lanka State Plantations Corporation (1995) 2 SriL R 379
Kiriwanthe and Another v. Navaratne and Another (1990) 2 Sri L R393 at 404
Priyani Soyza u. Arsecularatne (1999) 2 Sri L R 179
Piyadasa and Others u. Land Reform Commission SC (AP) No.30/97 SC Minutes 08 July 1998.
APPLICATION for relief for infringement of fundamental rights. Prelimi-nary objection.
Romesh de Silva P.C. with G.G. Amlpragasam, M. Illiyas and H. de AI misfor petitioner.
H.L. de Silva P. C. with Anil Tittawella, Avindra Rodrigo and Ms. SheharaVansa for 2nd respondent.
K.C. Kamalasabeyson P. C.. S. G. with S. Fernando. SSC. for 1st and 3rdrespondents.
Cur. adv. vult.
Union Apparels (Pvt) Ltd. v. Director-General of Customs and
Others (Amerasinghe, J.)
December 07, 1999.
AMERASINGHE, J.I have had the advantage of reading the draft of thejudgment of Bandaranayake, J. I am in agreement with theconclusion reached on the issue before the Court and the orderproposed.
However, I should like to add the following observations.In my view, the question whether an application should berejected for the failure to comply with a rule of the Courtdepends on whether, having regard to the words of therelevant rule, the Court has a discretion to entertain or rejectthe application, and whether having regard to the object of therule and the circumstances of the case the Court is justified inarriving at its decision.
In Priyani Soysa v. Arseculeratne, S. C. (Spl.) L. A. No.141/98, S. C. Minutes 04.05.1999, for the reasons given, I■was of the view that one of the preliminary objections wasentitled to succeed, because the exercise of the discretion ofthe Court was subject to the terms of the rule invoked and suchterms were not satisfied. There are no such limitationscontained in the rule invoked in the matter before me, namely,rule 34. Having regard to the purpose of that rule, namely todiscourage persons who do not prosecute their applications orappeals with activity and perseverance, in my view the filingof the written submissions by the petitioner on the lOth’ofAugust 1999 cannot per se be taken as evidence of a lack of duediligence. The journal entries show that the petitioner had notbeen negligent and had been assiduous and attentive. Learnedcounsel for the second respondent submitted that the purposeof requiring a party to file his or her written submissions beforea prescribed date was to enable the Court and the parties to beaware of the contentions of that party. In this case, the writtensubmissions of the petitioner were available when the mattercame on for argument and there was sufficient material toinform the Court and the respondents of what learned counsel
Sri Lanka Law Reports
120001 I Sri L.R.
for the second respondent described as "the rival contentionsof the parties” which, of course, would have to be supple-mented by oral argument, and. if necessary in the opinionof the Court, by further written submissions.
The objection of the second respondent must be overruledand the application shall be heard. The parties will bear theirown costs.
SHIRANI BAND ARAN AYAKE, J.The petitioner is an enterprise established under theGreater Colombo Economic Commission Law, No. 4 of 1978and is presently under the Board of Investment of Sri Lanka(PI). The petitioner submitted that under and in terms of theagreement entered into with the Board of Investment ofSri Lanka, (PI), the facilities of import/export clearanceand customs procedures were handled by the Boardof Investment. According to the petitioner, this facility waswithdrawn without prior notice and the petitioner becameaware of it by reading the notice which appeared in the DailyNews of 28.05.1999. (P7). The petitioner submitted that thewithdrawal of the said facilities was done arbitrarily and thusits fundamental rights under Article 12(1) were violated bythe respondents..
This matter was supported inter partes and the Courtgranted leave to proceed in respect of the alleged violationof Article 12(1) ofthe Constitution, on 08.06.1999. Itwas fixedfor argument on 20.08.1999. When the matter was taken upfor hearing on 20.08.1999, learned President's Counselfor the 2,ld respondent took a preliminary objection that theapplication of the petitioner must stand dismissed in terms ofrule 34, as the written submissions of the petitioner, thoughfiled on 19.08.1999, were not filed in terms of the Rules.
Rule 34 of the Supreme Court Rules 1990 reads as follows:
"Where an appellant, or a petitioner who has obtainedleave to appeal, fails to show due diligence in takingall necessary steps for the purpose of prosecuting
SCUnion Apparels (Pul) Ltd. u. Director-General of Customs and31
Others (Shirani Bandaranayalce. J.)
the appeal or application, the court may, on anapplication in that behalf by a respondent, or of its ownmotion, on such notice to the parties as it shall thinkreasonable in the circumstances, declare the appeal orapplication to stand dismissed for non prosecution,and the costs of the appeal or application and anysecurity entered into by the appellant shall be dealtwith in such manner as the Court may think fit.”
Learned President’s Counsel for the petitioner submittedthat his application should not stand dismissed in terms ofRule 34. for the following reasons
Firstly, learned President’s Counsel for the petitionersubmitted that Rule 34 has no application to the filing ofwritten submissions and the rule, if applicable, dealing withwritten submissions is Rule 30 and not Rule 34. His positionwas that, if written submissions were not tendered by the duedate, at most that party would not be entitled to be heard. Inany event, he submitted that, due to the non-filing of writtensubmissions, the application could not be dismissed in limine.Regardless of the non-filing of written submissions, learnedPresident's Counsel contended that "in appropriate instances”the Court would permit the petitioner to be heard. In supportof this submission, learned President's Counsel for thepetitioner referred to Mendisv. Abeysinghel1' where H. A. G. deSilva, J., had stated that,
“The Rule contemplates that this Court will proceed tohear the appeal: all that it does is to disentitle the partyin default from claiming a right to be heard, butpreserves the undoubted discretion of this Court to givesuch party such hearing as it thinks appropriate. Ifthat be the only consequence of the failure to lodgewritten submissions, it is impossible to interpret theRule as requiring a more severe penalty for a far lessserious default, namely the failure to give notice of thelodging of written submissions to the respondenttogether with a copy thereof in terms of Rule 35(e).”
Sri Lanka Law Reports
1200011 Sri LR.
Secondly, he contended that Rule 34 has’no application tofundamental rights applications. Referring to the wording ofRule 34, it was submitted that this Rule only applies to caseswhere a party has obtained leave to appeal and not leave toproceed. The position of learned President's Counsel for thepetitioner was that, according to Article 126(2) of the Consti-tution, in a fundamental rights application leave to proceedhas to be obtained from the Supreme Court. In terms of Article128(i) of the Constitution, the Court of Appeal may grant leaveto appeal to the Supreme Court and under Article 128(ii), theSupreme Court may grant special leave to appeal. In thesecircumstances, learned President’s Counsel submitted thatthere is a clear distinction between leave to appeal and leaveto proceed. In a fundamental rights application, there is noquestion of leave to appeal but leave to proceed has to beobtained. Rule 34 only deals with leave to appeal and thereforethis Rule cannot be applied to fundamental rights applica-tions.
Thirdly, it was submitted that in any event the petitionerhas not failed to show due diligence in terms of Rule 34.Fourthly, it was contended that under Rule 34, there is anunfettered discretion vested in the Supreme Court.
Learned President's Counsel for the 2nd respondent,however, submitted that these Rules are equally applicable toapplications made under Article 126 of the Constitution. Hereferred to Rule 45(8) which states that “the provisions of PartII of these Rules shall apply, mutatis mutandis, to applicationsunder Article 126.” He further submitted that, "the expression‘mutatis mutandis’ is commonly used in legal drafting indicat-ing the power to adapt statutory language applied in onecontext to a wholly different situation which necessitates themaking of changes where necessary." His position was thatthe whole of Part II of the Rules, which comprises Rules 29 to41, applies “in so far as they are capable of being applied."Therefore, his contention was that Part II of the Rules wouldbe applicable to applications made under Article 126 of theConstitution too.
Union Apparels (Put) Ltd. o. Director-General of Customs and
Others (Shirani Bandaranayake, J.)
Learned President’s Counsel for the 2nd respondent alsosubmitted that compliance with the Rules relating to the filingof written submissions is imperative. Referring to Rules 30(5)and 30(6) it was submitted that the Rules have laid down whatthe written submissions should contain and the time withinwhich the submissions must be filed in Court. Accordingly thewritten submissions of the petitioner must be filed within 6weeks of the grant of leave to proceed and the petitioner mustgive the respondent notice of it by serving a copy on therespondent. This in his view is to enable the respondent toprepare his reply before the hearing commences, so that theCourt may be apprised of the contentions of the respondent.He conceded that in the event of default there is provision forthe defaulting party to make an application for extension oftime. In such an event, a judge would have the discretion toconsider the reasons as to why he was unable to comply withthe rule and may grant an extension. However, counseldisagreed with the contention that the filing of written submis-sions is not an imperative requirement.
Learned President’s Counsel for the 2nd respondent reliedon Maxwell, Interpretation of Statutes, 12th edition, pg. 321,where it is stated that.
“Notwithstanding that the Rules of the Supreme Courtprovide that non-compliance with the Rules shall notrender proceedings void unless the Court so directs, inseveral cases it has been held that a defect in followingthe procedure laid down by the Rules may be so gravethat it renders the entire proceedings, a nullity, notcurable by any order of the Court.”
Learned President’s Counsel for the petitioner contendedthat Rule 34 has no application to fundamental rightsapplications as the very wording of Rule 34 refers to “anappellant or a petitioner who obtains leave to appeal” andthere is no reference to a petitioner who obtains “leave toproceed." Therefore, learned President’s Counsel for the
Sri Lanka Law Reports
12000J J Sri LR.
petitioner expressed the view that Rule 34 applied only to caseswhere a person has obtained leave to appeal and referred toArticle 126(2) of the Constitution which states that.
“Such applications may be proceeded with only withleave to proceed first had and obtained from the Su-preme Court . .
Article 128 (1) and (2) on the other hand refers to the Cou rtof Appeal granting leave to appeal to the Supreme Court andthe Supreme Court granting special leave to appeal, respec-tively. In an application under Article 126, there is no leave toappeal but, leave to proceed and therefore his position was thatRule 34 does not apply to fundamental rights applications.Rule 34 is in Part II of the Rules of the Supreme Court, whichrefers to “general provisions regarding appeals and applica-tions.” Rule 45(8) states that,
"the provisions of Part II of these Rules shall apply.mutatis mutandis, to applications under Article 126."
Black’s Law dictionary, (4lh edition, 1951. pg. 1172) refersto the meaning of the word. “mutatis mutandis” in the followingterms:
“with the necessary changes in points of detail, mean-ing that matters or things are generally the same, butto be altered when necessary, as to names, offices, andthe like. Housman v. Waterhousenl"
I shall now consider the matter before us in the light ofthese submissions. Rule 45(8) is in Part IV of the Rules of theSupreme Court, which deals with applications under Article126 of the Constitution. Certain Rules in Part II referspecifically to applications made under Article 126 of theConstitution (eg. Rule 37). If we are to restrict the applicationof Rule 45(8) only to such Rules which appear in Part II. thenin my view it would render the whole of Rule 45(8) meaningless.The purpose of Rule 45(8) is to provide for the application
Union Apparels (Put) Ltd. u. Director-General of Customs and
Others (Shirani Bandaranayake. J.)
of the general provision regarding appeals and applications inPart II of the Rules to applications made under Article 126 ofthe Constitution.
There is no doubt that the tendering of written submis-sions is a mandatory requirement in respect of appeals underRule 30 of the Supreme Court Rules. However, it is necessaryto consider whether the provisions applicable to appeals underArticle 128 must be applied to applications under Article 126of the Constitution as well. Rule 45(7) states that the petitionerand respondents must file their written submissions at least“one week before the date fixed for hearing” with notice to everyother party. Rule 30. which deals with appeals states that :
“No party to an appeal shall be entitled to be heardunless he has previously lodged five copies of hiswritten submissions . .. complying with the provisionsof this Rule.”
In respect of appeals, the appellant is required to tenderwritten submissions within six weeks of the grant of specialleave to appeal or leave to appeal. On the other hand, in anapplication under Article 126, written submissions have to befiled at least one week before the date fixed for hearing.Accordingly, in the case of an appeal, the period commencesfrom the date on which leave is granted and the date fixed forhearing is not a relevant consideration. Moreover, Rule 30provides a penalty for non-tendering of written submissions,whereas there is no such provision made under Rule 45(7) withregard to the failure to file written submissions in applicationsunder Article 126 of the Constitution. Furthermore, in anapplication under Article 126, written submissions have to befiled by each of the parties having regard to the date of hearing.
Preliminary objections taken in several cases of non-compliance with the Rules have been the subject of decisionsof this Court. In Coomasaru v. Leechman and Compani/3)it was held by the majority (Tennekoon, C.J., Vythialingam,
Sri Lanka Law Reports
120001 1 Sri LR.
Sharvananda and Colin Thome. JJ., Rajaratnam. J. dissent-ing) that where an appellant had failed to comply with the Rulewithout excuse, the appeal should be dismissed. InSamarawickrame v. Attorney General4* and in Mylvagnam v.Reckitt and Colman151 and the appeals were dismissed forfailure to comply with Rule 35 of the Rules of 1978. InJayasinghe v. Jayasinghe?6', no written submissions weretendered “at all” by the appellant after he obtained specialleave to appeal to this Court. In fact, even on the day the matterwas taken up for hearing, no written submissions weretendered by the appellant. In view of the provisions of Rule35(b) of Supreme Court Rules of 1978, Ranasinghe.C.J. upheld the preliminary objections taken by the respond-ent and dismissed the appeal. In All Ceylon Match Worker'sUnion v. Jaujfer Hassan and others<7), a preliminary objectionwas taken that the petitioner had not filed any written submis-sions and there was therefore a failure on the part of theappellant to comply with Rule 35(b) of the Supreme CourtRules. Amerasinghe, J. upheld the objection and dismissedthe appeal with costs. In Jayasuriya v. Sri Lanka StatePlantations Corporation181, the written submissions of therespondent which were required to be filed within 30 days byRule 35 were delayed and the excuse for the delay in lodgingthem was that learned Counsel to whom a draft of thesubmissions was given “generally practices in the outstationsand has periodically fallen ill in the last few months.” It washeld by Amerasinghe, J., that the respondents delay to filewritten submissions in compliance with Rule 35 was inexcus-able and he could not be heard.
In Kiriwanthe and another v. Navaratne and another^9I thequestion of failure to comply with the Rules of the SupremeCourt was considered comprehensively. Fernando, J., was ofthe view that,
“The weight of authority thus favours the view thatwhile all these Rules must be complied with the lawdoes not require or permit an automatic dismissal
Union Apparels (Put) Ltd. o. Director-General of Customs and
Others (Shirani Bandaranayake, J.)
of the application or appeal of the party in default.The consequence of non-compliance (by reason ofimpossibility or for any other reason) is a matterfalling within the discretion of the Court, to be exercisedafter considering the nature of the default, as well asthe excuse or explanation therefor, in the context of theobject of the particular Rule.”
The question of failure to comply with the Rules ofthe Supreme Court was considered by this Court in PriyaniSoysav. Arsecularatnd101, where the petitioner as well as therespondent took preliminary objections in regard to non-compliance with the Rules of the Supreme Court. Thepetitioner submitted that the respondent had not compliedwith Rule 8(6) whereas the respondent raised an objection thatthe petitioner had not complied with Rule 2 read with Rule6 of the Rules of the Supreme Court. It was held by themajority (Wijetunga and Bandaranayake JJ., Amerasinghe,J. dissenting) that it was an appropriate case for both prelimi-nary objections to be overruled. Wijetunga, J., stated therethat.
“Kiriwanthe’s case, to my mind, is a watershed injudicial thinking in regard to the question of non-compliance with the Rules of the Supreme Court.”
I am in complete agreement with this view.
Moreover, there are other instances where this Court hasoverruled such preliminary objections. In Piyadasa andothers v. Land Reform Commission11 n, a preliminary objectionwas taken by learned counsel for the petitioner that therespondents had filed theirwritten submissions 197 days afterthe date on.which they were required by Rule 30(7) to be filed.It was submitted that the respondents’ belated submissionsshould not be accepted and that the respondents shouldnot be heard. Although there was no explanation offeredregarding the delay, Amerasinghe, J., overruled the prelimi-nary objection and stated that,
Sri Lanka Law Reports
120001 I Sri LR.
“In my view Rule 30 is meant to assist the Court in itswork and not to obstruct the discovery of the truth.There were numerous documents that had to be con-sidered: and, in our view, we needed the assistance oflearned counsel for the petitioner as well as the re-spondents, including their written submissions to prop-erly evaluate the information that we had before us. Itwas. therefore, decided that the preliminary objectionshould be overruled.'
In the instant case, the petition was filed on 03.06.1999.It was supported for interim relief on 04.06.1999 and orderwas made in terms of paragraph “c" of the prayer to thepetition, valid only up to 09.06.1999. When the matter wassupported on 08.06.1999, leave to proceed was granted andthe interim order was extended until the final hearing anddetermination of the application. An early date was given forthe hearing, considering the gravity of the violation com-plained of: the hearing was thus fixed for 20.08.1999. Amotion was filed by the Attorney-at-law for the 2n“ respondentseeking to support an application to vacate or set aside theinterim order issued against him. This was supported on
On that day when learned President's Counsel forthe 2nd respondent moved to make submissions with regardto the interim order, on the ground that the 2nd respondentwas absent and unrepresented, learned President’s Counselfor the petitioner objected on the ground that notice hadbeen issued on the parties and the Solicitor-General hadrepresented all the respondents. The learned Solicitor-General submitted that he had represented only the 1 st andthe 3rd respondents as stated in the record. The objectiontaken by learned President’s Counsel for the petitioner wasoverruled and learned President’s Counsel for the 2mlrespondent was heard. This Court made order on that day thatno variation of the order in relation to the interim order, in anyrespect, should be made. The petitioner was given two weeks'time to file counter affidavit, if any. On 23.07.1999, thepetitioner moved for one week's time to file the counter affidavitand this was allowed. The counter affidavit of the Director/
Union Apparels (Pvt) Ltd. u. Director-General of Customs and
Others (Shirani Bandaranayake, J.)
General Manager of the petitioner Company was filed on
The written submissions were filed by thepetitioner on 19.08.1999. The written submissions had beenforwarded to the judges along with the briefs and therefore thewritten submissions were available with the judges when thismatter was taken up for argument on 20.08.1999. LearnedPresident’s Counsel for the 2nd respondent submitted that therequirement that the petitioner should file written submis-sions within a prescribed time was to "enable the respondentto make reply before the hearing commences, so that the Courtmay be apprised of the rival contentions. ” If this is the purposeof having the written submissions well before the hearingcommences, it is my view that there was sufficient materialprovided by the petitioner for the 2nd respondent to know theposition of the petitioner well before the date of hearing. It isto be noted that, in addition to the documents already filed, thepetitioner had filed his counter affidavit on 30.07.1999.Furthermore, if and when the need arose, this Court hasallowed parties to file written submissions as well as furtherwritten submissions, even after a full hearing has beenafforded to both parties.
1 therefore find it difficult to agree with learned President’sCounsel for the 2nd respondent that this matter must standdismissed for “non-prosecution". Taking into consideration allthe circumstances of this case, it cannot be said that thepetitioner had “failed to show due diligence in taking allnecessary steps for the purpose of prosecuting the appeal orapplication."
For the reasons aforesaid, I am of the view that thepreliminary objection must be overruled and the applicationset down for hearing. There will be no costs.
WIJETUNGA, J. – I agree.
Preliminary objection overruled; Application set down forhearing.