WICKRAMASINGHE AND OTHERS V. CORNEL PERERA AND OTHERS

019-SLLR-SLLR-1996-1-WICKRAMASINGHE-AND-OTHERS-V.-CORNEL-PERERA-AND-OTHERS.pdf


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WICKREMASINGHE AND OTHERSV.
CORNEL PERERA AND OTHERS
SUPREME COURT.
FERNANDO, J.
DHEERARATNE, J. ANDWIJETUNGA, J.
S.C. (S.L.A.) NO. 49/96.
A. REVISION APPLICATION NO. 889/95.
C. COLOMBO NO. 4413/Spl.
15 JULY, 1996.
Application for review of order made by the Supreme Court by the courtmaking order or by reference to a fuller bench-Difference between jurisdic-tion to grant special leave to appeal and appellate jurisdiction.
Leave to appeal to the Supreme Court can be granted either by the Court ofAppeal under Article 128(1) or by the Supreme Court under Article 128(2) ofthe Constitution. When the Court of Appeal grants leave to appeal it doesnot purport to correct errors either of inferior Courts or of its own. Obtainingleave is a condition precedent to invoking the appellate jurisdiction of thisCourt, and the grant of leave only involves considering whether the matteris fit for review. It is thus distinct from the appellate jurisdiction of the Courtof Appeal.
In the same way, when the Supreme Court grants leave under Article 128(2),it exercises a jurisdiction which is anterior to and distinct from its appellatejurisdiction. The proceedings in respect of leave, are thus distinct from theappeal itself.
In any event, even if in a broader sense they can loosely be regarded asbeing part of the appellate jurisdiction, yet it has two distinct stages, involv-ing two distinct issues, the first is whether leave ought to be granted, andthat depends on whether the question is important enough to merit adjudi-cation by the highest court, and the second is, at the appeal stage, to findthe right answer to that question. Thus it may happen that even if this Courtthinks that probably the question raised must be answered adversely to thePetitioner, yet the Court may grant leave because it is in the public interestthat that question should be finally and authoritatively decided by the Su-preme Court.
The Petitioners' application for special leave to appeal was concluded on
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and hence could not be referred under Article 132 (of the Constitu-tion) to a ‘fuller bench*.
The first part of the order which the petitioners seek to review for the secondtime, permits and requires the District Court to decide (and not to delay) theimportant questions of law which all parties concede are involved in theaction. The second part of the order, review of which the petitioners nowseek (although they did not in March 1996) merely permits the status quoto prevail until the interim injunction inquiry is over. Although asserting thatthat order was wrong, Counsel made no effort to show in what respect theCourt's reasoning was faulty. Thus there was no ground for the secondapplication for review.
The application for special leave was finally concluded when the order of
was made, and it cannot now be re-opened before another benchor be referred by His Lordship the Chief Justice to a "fuller bench*. It wasduly listed before the present bench of the Supreme Court and no groundfor review has been established.
Cases referred to :
De Silva v. Fernandopulle S.C. Nos. 66 & 67/95 S.C. Minutes of 9.7.96.
Moosajees v. Fernando (1966) 68 NLR 414.
Liyanage v. The Queen (1965) 68 NLR 265.
APPLICATION for review by the Supreme Court of its own order or by refer-ence to a fuller bench.
M.A. Sumanthiran for the Defendant Respondent-Petitioners.
S. Sivarasa P.C. with S.L. Gunasekera, S. Mahenthiran, Nihal Fernandoand N.R. Sivendran for the Plaintiff-Petitioner-Respondent.
Cur.adv.vult.
July 26, 1996.
FERNANDO, J.
This is an application, filed on 7.5.96, to 'constitute a fuller benchto review the orders dated 21 st March and 28th February 1996', and toset aside those orders.
His Lordship the Chief Justice said that he did not think that hehad the power to refer this matter to a fuller bench and directed that it
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be listed before the same bench which made those orders, and ac-cordingly it came up before this bench on 15.7.96.
The facts are fully set out in our order dated 21.3.96. The Plaintiffinstituted action in the District Court challenging his purported removalfrom the office of Chairman and Managing Director (but not Director) ofthe 12th Defendant Company. An enjoining order was made, and sub-sequently extended; Counsel for the 1 st to 6th and 12th Defendants -the present Petitioners – stated that the last extension of that enjoiningorder was operative up to 2nd February, 1996. The present Petitionersmade an application in revision, asking the Court of Appeal to revisethe order of 30.11.95 (in respect of the enjoining order), to vacate theenjoining order issued, to uphold a preliminary objection and dismissthe Plaintiff's action, and to stay the proceedings in the District Courtpending the hearing and determination of the revision application. On30.1.96 the Court Of Appeal issued notice and made order staying allfurther proceedings in the District Court; the Court made no referencewhatever to the enjoining order, although it was still in force.
The application for special leave to appeal against the order madeon 30.1.96 was considered on several dates, and on 28.2.96 (1) spe-cial leave was granted by this bench upon the question whether theCourt of Appeal had the jurisdiction and /or the discretion to makeinterim orders having the effect of staying all proceedings in the Dis-trict Court, and in particular the Plaintiff's application for interim in-junction and the Plaintiff's action itself; (2) pending the final hearingand determination of the appeal, the operation of the interim order madeby the Court of Appeal was stayed, and the District Court enjoiningorder was varied; and (3) the Court also made the following order:
"Notwithstanding any order already made by the Court of Appeal,the District Court of Colombo is directed to proceed to hear anddetermine the Plaintiff's application for interim injunction and theaction as expeditiously as possible, giving precedence to thatcase; the District Court is directed to call this case on 8.3.96, forthe purpose of fixing dates in respect of the interim injunctioninquiry, which Counsel agree can be disposed of without oral evi-dence, and to conclude that inquiry on or before 10.6.96;
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and the enjoining order granted by the District Court will standextended and be operative [subject to certain modifications] upto 10.6.96, or the conclusion of that inquiry, whichever is earlier."
In their petition filed on 13.3.96 (the first application for review) thePetitioners did not seek review of the order granting special leave, thestay of the Court of Appeal's interim order, and the variation of theDistrict Court's enjoining order. (Learned Counsel now appearing forthe Petitioners also stated that he did not seek review in respect ofthat part of the order.)
In the first application, the Petitioners prayed for the deletion ofthe above-quoted paragraph from the order of 28.2.96, and asked thata larger bench be constituted to hear their application. However, at thehearing, learned Counsel then appearing for the Petitioners stated thathe had no complaint in respect of the last part of that order, but soughtreview of the first part of that order, namely the direction to the DistrictCourt to proceed with the hearing.
But learned Counsel now appearing for the Petitioners states thatthey now seek review of the whole of the above-quoted paragraph ofthe order of 28.2.96.
Counsel submitted that we should recommend to His Lordship the ChiefJustice that the second application for review be referred to a "fullerbench", or to a differently constituted bench. He contends that:
despite the recent decision of a bench of five Judges of thisCourt in de Silva v Fernandopulle(1) an order made by one benchcan be reviewed by a differently constituted bench or by a fullerbench;
Moosajees v Fernando,(2> is authority for the proposition thata matter which has not been finally disposed of; can be re-exam-ined by another, differently constituted bench; in the present in-stance this Court commenced exercising its appellate jurisdic-tion, when granting special leave, and the exercise of that appel-late jurisdiction has not yet been concluded;
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the Plaintiff-Respondent is not entitled to the substantiverelief which he sought in the District Court, and the impugnedportion of our order of 28.2.96 gives him, by way of interim relief,that which he cannot get ultimately; and
in the course of the submissions in February, the bench hadsuggested that the parties might consider certain agreements orundertakings on the basis of which the litigation then pending inthe District Court (namely, the interim injunction inquiry and thetrial) might continue, during the pendency of the appeal in thisCourt, and that upon the Petitioners not agreeing to any suchadjustment, the order made on 28.2.96 incorporated all thosesuggestions; and thereby that order caused vexation to the Peti-tioners.
Learned Counsel for the Petitioners tried to brush aside the unani-mous decision of a bench of five Judges in de Silva v Femandopulle,with the single sweeping submission that the Court having held that anapplication for review must be considered by the same bench, never-theless went on to review, at great length, the impugned judgment onthe merits, and then dismissed that application. It is unfortunate thatthe following observations of Amerasinghe, J., in the course of a care-ful and comprehensive judgment, seem to have escaped Counsel'sattention:
"the course of action we take in the extraordinary circumstancesof this case should not be regarded as a precedent for departingfrom the rule established by practice. An exception confirms therule."
Amerasinghe, J. found that there were no grounds for holding thatthere were circumstances which brought the impugned decision withinthe scope of the inherent powers of this Court. It was in these circum-stances that the matter was not referred to the original bench. It iswholly unjustifiable now to ask that the exception be treated as beingthe rule, particularly where the circumstances are anything but ex-traordinary. Indeed, what is extraordinary in this case is the way inwhich the circumstances have somehow conspired to delay the deci-sion of the substantive questions.
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Moosajees v Fernando does not assist the Petitioners at all. Therea bench of five judges made an order upon a preliminary question ofjurisdiction in certain writ applications; that order did not result in afinal order (allowing or dismissing the applications); at a later stage inthose applications, a differently constituted bench (one of the originalfive Judges not being conveniently available) reviewed the earlier or-der, in view of the "unique circumstance" that in the meantime theerror of the former order was manifested by an intervening decision ofthe Privy Council (in Liyanage v The Queen.(3)) The proceedings hadnot attained finality • because a decree disposing of the applicationshad not been entered. Here the proceedings in the special leave appli-cation had attained finality on 28.2.96; the only matter which arose inthat proceeding had been finally determined; and nothing more wasrequired to give that order finality. Learned Counsel argued, however,that the appellate jurisdiction of this Court also extended to the con-sideration of the application for leave, and that until the appeal is fi-nally determined, the order granting leave can be reviewed. Leave toappeal to the Supreme Court can be granted either by the Court ofAppeal under Article 128(1) or by this Court under Article 128(2). Coun-sel argued that when the Court of Appeal granted leave, it did so in theexercise of its appellate jurisdiction. But that seems misconceived.Under Article 138 the appellate jurisdiction of the Court of Appeal is tocorrect errors by inferior Courts. When it grants leave, it does not pur-port to correct errors either of inferior Courts or of its own. Obtainingleave is a condition precedent to invoking the appellate jurisdiction ofthis Court, and the grant of leave only involves considering whetherthe matter is fit for review. It is thus distinct from the appellate jurisdic-tion of the Court of Appeal. In the same way, when the Supreme Courtgrants leave under Article 128(2), it exercises a jurisdiction which isanterior to and distinct from its appellate jurisdiction.The proceedingsin respect of leave are thus distinct from the appeal itself. In any event,even if in a broader sense they can loosely be regarded as being partof the appellate jurisdiction, yet it has two distinct stages, involvingtwo distinct issues: the first is whether leave ought to be granted, andthat depends on whether the question is important enough to meritadjudication by the highest Court, and the second is, at the appealstage, to find the right answer to that question. Thus it may happenthat even if this Court thinks that probably the question raised must beanswered adversely to the petitioner, yet the Court may grant leave
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because it is in the public interest that that question should be finallyand authoritatively decided by this Court. The Petitioners' applicationfor special leave to appeal was concluded on 28.2.96, and hence couldnot be referred under Article 132 to a "fuller bench".
In elaborating the Petitioner's third contention, learned Counselseized the opportunity to attack the Plaintiff, calling him a self-con-fessed fraud and a wrongdoer in control of the company. He may beright or wrong, but the only issue before the Court was whether therewas a substantive question of law involved; whether the Court of Ap-peal had the power to stay all further proceedings in the District Court,including the interim injunction inquiry and the trial. Obviously, therewas; neither in the first application for review nor in the second didCounsel dispute that. Having granted special leave to appeal on thatquestion, the Court had then to decide what was to happen in themeantime should the District Court proceedings be stalled. Should thestatus quo immediately prior to the institution of the District Court ac-tion be maintained ? On 21.3.96 we set down at length our reasons formaking our order of 28.2.96, and learned Counsel had not said a wordabout those reasons. Not only are his allegations against the Plaintiffirrelevant but if they wererelevant, reference must have been made tothem in the board minutes relating to his removal. When we pointedout that these had not been produced, Counsel insisted that they had.However, after taking time to peruse the voluminous brief, he had toconfess that they had not been made available to any of the threeCourts which dealt with this case. In any event, by allowing the Dis-trict Court proceedings to continue this Court ensured that the seriousquestions which arose (some of which we mentioned in our order of21.3.96) would receive a speedy determination, instead of being de-layed interminably, pending proceedings in this Court and in the Courtof Appeal. Further the interim order which we made was to be of shortduration, and would cease to be operative when the District Court madeorder in the interim injunction inquiry.
As for Counsel's complaint about suggestions for settlement, thosewere not in respect of the grant of special leave. They were made inorder to ascertain whether, if special leave was granted, whether theparties could agree on how best to ensure the expeditious disposal ofthe inquiry and the trial, and to minimise the possible prejudice to allparties in the meantime. Our suggestions to consider whether inquiry
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and trial could be taken up together (in order to avoid duplication ofproceedings), and possibly dealt with wholly or mainly on documents,were not accepted. Our order neither required such consolidation norexcluded oral proceedings. Further, our order modified the District Courtenjoining order by excluding restraints on the removal of the Plaintifffrom the post of Chairman and on the 2nd Defendant functioning as adirector. Thus it is quite incorrect to say that those suggestions werewholly incorporated in the order. In any event, making those sugges-tions did not in any way prejudice the Petitioners, and learned Counselconceded that if the other ground on which review was sought failed,this ground did not suffice.
To sum up, the first part of the order which the Petitioners seek toreview for the second time, permits and requires the District Court todecide (and not to delay) the important questions of law which all par-ties concede are involved in the action. The second part of the order,review of which the Petitioners now seek (although they did not in March1996) merely permits the status quo to prevail until the interim injunc-tion inquiry is over. Although asserting that that order was wrong, Coun-sel made no effort to show in what respect our reasoning was faulty.Thus there was no ground for the second application for review. Theapplication for special leave was finally concluded when the order of
was made, and it cannot now be reopened before another benchor be referred by his Lordship the Chief Justice to a "fuller bench". Ithas been duly listed before this bench, and no ground for review hasbeen established. Indeed, the present application for review is whollywithout merit. The change in position after the first application, and theattempt to bring in extraneous and irrelevant matters, lead to the con-clusion that it was also a misuse of the process of this Court, andthere is cause for the complaint of learned President's Counsel onbehalf of the Plaintiff, that his client has been unduly and unfairly vexedthereby.
The application is dismissed, with costs in a sum of Rs. 20,000/-payable by the Petitioners to the Plaintiff.
DHEERARATNE, J. -1 agree.
WIJETUNGA, J. -1 agree.
Application dismissed.