033-NLR-NLR-V-46-WICKREMESINGHE-v.-TAMBIAH.pdf
BOSE J.—Wick'remasinghe v. Tambiah.
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4945Present: Rose J.
WICKREMESINGHE v. TAMBIAH.
In the Matter of an Application for a Writ of Mandamus.
.Mandamus—Respondentappointed Commissionerof Inquiry bytheGovernor—
No reference toCommissionsof InquiryOrdinance—Exerciseofpowers
by Commissioner under Ordinance—Right of petitioner to appear byCounsel—Commissions of Inquiry Ordinance {Cap. 276), ss. 2,3,4
and 7.
The respondent was appointedbyHisExcellency the Governor,in
pursuance of the powers containedinArticle VH. of the BettersPatent
constituting the office of Governor and Comm&nder-in-Chief of theIsland, to inquire into certain matters relating to the Ealatuwawa leasesin which the petitioner wasimplicatedor concerned.Inthenotice
giving the terms of inquiry therewaBno specific mentionofthe
Commissions of Inquiry Ordinance (Cap. 276).
Held, that therespondentcould notavail himselfofthepowers
contained in sections 2, 3 and 4oftheOrdinance which relatetothe
issueof summonses to personsto appear aswitnesses ortoproduce
documents, &c., without at the same time being bound by the obligationscontained in section 7, viz., that any person who is in any way implicatedor concerned inthe matter underinquiryshall beentitled to berepresented
by anAdvocateduring the wholeof theinquiry.
Held, further, as the specific matters complained of viz., the questioningof Mr. A—by the respondent and the private perusal by the respondentof adocumenthanded to himat aformalsitting, disclosedno fact
material to the inquiry, the petitioner .was -not entitled to the reliefclaimed.
rjl HIS was an application for a writ of mandamus.
H. V. Perera, It.C. (with him N. Nadarajuh,and E. B. Wiltre-
rnarmyake), in support.
N. E. Weerasooria, K.C. (with him C. S. Barr Kumarakulasinghamand H. W. Jay award ene), for respondent.
Cur. adv. vult.
February 15, 1945. Rose J.—
This is the return to a rule directed to the respondent to show causawhy he should not disclose to the petitioner all the evidence both oraland documentary which he obtained in the petitioner’s absence, andgive the petitioner due and sufficient notice of any inquiry that he mayhold in the future. The respondent was appointed by the Governoras sole Commissioner to inquire into certain matters relating to theKalatuwawa leases. His appointment was made in pursuance ofArticle VII. of the Letters Patent constituting the office of Governorand Commander-in-Chief of the Island of Ceylon, and the requisitenotice was published in the Ceylon Government Gazette dated September 25,1944. For the purpose of the present proceedings, the material termof inquiry is as follows:—“ Whether any person hac been guilty of any
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BOSE J.—Wickremasinghe v. Tambiah.
impropriety, negligence, omission or misconduct in regard to the receiptcustody, scrutiny or disposal of tenders received in respect of the Kala-tuwawa leases, or in regard to any other matter anyway relating to orarising out of the grant of those leases
It is to be noted, as Counsel for the Respondent points out, that thereis no specific mention in the above notice of the commissions of InquiryOrdinance (Chapter 276). It is therefore contended that the respondentis not bound by the terms of section 7 of the Ordinance which providesinter alia that any person who is in any way implicated or concerned inthe matter under inquiry shall be entitled to be represented by an Advocateduring the whole of the inquiry. I may add that it is common groundthat the petitioner is a person who is so implicated or concerned. Itseems to me, however, that, without the powers provided by sections 2, 3-and 4 of the Ordinance which relate to the issuing of summonses topersons to appear as witnesses or to produce documents, the powers ofthe Commissioner in enforcing such summonses and the provision ofpenalties for any person giving false evidence, it would be impossiblefor the Commission to function efficiently. In fact in the present matterI am informed that the Commissioner, quite properly, has made use ofthe powers provided by these sections. I am of opinion, therefore, thatthe only reasonable interpretation of the Ordinance as a whole is thatif a Commissioner is to avail himself of the powers contained in sections2, 3 and 4 he must also be liable to the corresponding obligationscontained in section 7.
The complaint of the petitioner, shortly stated, is that the respondenthad declared on more than one occasion that it was his intention notonly to hold formal sittings of the Commission which may of course beheld either in public or in camera but concurrently to hold privatesittings for the purpose either of interviewing witnesses or of examiningdocuments; at which private sittings the petitioner and his Counselwould not be permitted to be present. Mr. Perera, Counsel for thepetitioner, concedes that there can be no reasonable objection to theCommissioner interviewing witnesses or reading documents in privatewith a view to ascertaining whether the material so elicited is of sufficientmateriality to be adduced at a formal sitting. What he does object tois the use of facts so elicited for the guidance of the Commissioner incompiling his report, without having such matters tested at a formalsitting.
Now it is true that form a persual of the various statements made bythe respondent from time to time at the formal sittings (copies of whichare attached to the papers), the petitioner might not unreasonably havefeared that it was the intention of the respondent to hold such concurrentinquiries, and it may be that at- an earlier stage of this matter therespondent himself held the view that he was entitled to do so. At thepresent hearing, however, Counsel for the respondent has in the finalresort taken up the position that his client proposes to make privateinvestigations only for the purpose of eliciting material to be adduced,sifted, and tested at a subsequent formal sitting. So stated, his attitudeseem to me to be unexceptionable and it is to be noted that on an earlieroccasion—I refer to a passage appearing in exhibit A 2—the respondent
LORD GODDARD—Goonesinha and The Honourable O. L. de Kretser. 107
himself said, " The object of these public sessions is that relevant mattersmust be brought up in the way of evidence to enable the evidence to.be tested by those who may consider themselves affected”.
Even assuming that the petitioner is right in his opinion that therespondent at one time took too wide a view of his powers it seems tome that that of itself would not ehtitle the petitioner to succeed unlesshe can show that the respondent acted on such a view. Mere appre-hension on the part of the petitioner that the respondent might in thefuture fall into error does not in my view entitle him to the reliefclaimed. The' only matters specifically complained of were the privatequestioning of a Mr. Attygalle by the respondent and the privateperusal by the respondent of a document handed to him at a formalsitting by a Mr. Fernando. It is now admitted that neither thisquestioning of Mr. Attygalle nor the document handed in by Mr. Fernando •disclosed any fact material to the inquiry. That being so, and for thereasons that I have stated, I am of opinion that the petitioner fails andthat the rule must be discharged. I would add that these proceedingsmay well have served a useful purpose in that they have demonstratedthat, whatever may have been the position at an earlier stage, therenow exists an identity of views between the petitioner and the respondentas to the proper procedure to be followed.
The petitioner must pay the costs of these proceedings.
Rule discharged.