NICHOLAS v. O. L. M. MACAR LTD. AND OTHERS

001-SLLR-SLLR-1981-2-NICHOLAS-v.-O.-L.-M.-MACAR-LTD.-AND-OTHERS.pdf


CA
Nicholas v. Macan Marker Ltd. fRatwatte, PJ
1
NICHOLAS
v.
O.L.M. MACAN MARKAR LTD. AND OTHERS
COURT OF APPEAL.
RATWATTE, P. AND ATUKORALE, J.C. A. APPLICATION No. 97/80JANUARY 26,1981.
Supreme Court Rates. 1978. Rule 47—Requirement that petition and affidavit shallcontain the averment that iurisdictian of the Court of Appeal not previouslyinvoked—Whether mandatory—Consequences of non-compliance.
Held
Role 47 of the Supreme Court Rules. 1978, which requires the petition and affidavitfiled in the Court of Appeal to contain an averment that the jurisdiction of that Courthas not previously been invoked in respect of the same matter is mandatory.Non-compliance with the said Rule which is in imperative terms would render suchapplication liable to be rejected.
Casm referred to
{1) Nagalingam v. De Met and others. (1975) 78 NX R. 231.
(2) Coomassru v. Leechman 8 Co., Ltd. and others (S.C. Applications 217/72 and307/72—S. C. Minutes of 26.5.1976).
A.PPl ICATiON for a Writ of Certiorari
H. L. de Silva, with Bimat Rajapakse. for the petitioner.
S. /. Kadirgamar, Q.C., with O. S. Wijesinyhe. for the 1st respondent.
2nd to 7th respondents unrepresented.
Cur. adv. vult.
February 24, 1981.
Ratwatte, P.
The Petitioner, claiming to be the tenant of Flat No.. 47, GalleFace Court 2, Colombo, under the 1st Respondent, filed ahapplication in the Rent Board of Colombo, seeking a certificate oftenancy under Section 35 (2) of the Rent Act, No. 7 of 1972. Theposition taken up by the 1st Respondent was (a) that there was nocontract of tenancy with the Petitioner; (b) that the Rent Boardhad no jurisdiction to inquire into whether a contract of tenancyexisted for the purpose of issuing a certificate of tenancy underSection 35, where there was a genuine dispute as regards thePetitioner's claim to be the lawful tenant. After inquiry, the RentBoard held that the Board had jurisdiction to inquire into the
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dispute regarding the existence of the contract of tenancy andfurther held on the evidence placed before the Board that thePetitioner was entitled to a certificate of tenancy. The 1stRespondent appealed from the Order of the Rent Board to theRent Board of Review. After hearing the parties the board ofReview set aside the decision of the Rent Board and dismissed thePetitioner's application for a certificate of tenancy. The Petitionerfiled the present application seeking to quash the decision of theRent Board of Review for the reasons set out in the Petition. The2nd to 7th Respondents to this application are the members ofthe Rent Board of Review.
When this Application was taken up for hearing before uson 26.01.1981, learned Counsel for the 1st Respondent, Mr.Kadirgamar, raised a preliminary objection to the applicationbeing entertained. He referred us to paragraph 8 of the Statementof Objections filed by the 1st Respondent After hearing Counselfor the parties we reserved our Order regarding the preliminaryobjection.
Mr, Kadirgamar submitted that there has been a non-compliancewith Rule 47 of the Supreme Court Rules 1978, published inGovernment Gazette No. 9/10 dated 08.11.1978. These ruleshave been made by the Supreme court under Article 136 of theConstitution. Rule 47 reads as follows:
"The petition and affidavit except in the case an applicationfor the exercise of the powers conferred by Article 141 of theConstitution shall contain an averment that tha iurisdication ofthe Court of Appeal has not previously been invoked in respectof the same matter. Where such an averment is found to be falseand incorrect the application may be dismissed."
Rule 47 is in Part IV of the Rules under the heading "Writs andExamination of Records." Article 141 of the Constitution whichis referred to in Rule 47 relates to the power of the Court ofAppeal to issue writs of habeas corpus.
Mr. Kadirgamar submitted that Rule 47 is in imperative termsand must be regarded as mandatory. He contended thatnon-compliance with the Rule amounts to disobedience. Hefurther submitted that parties who invoke the jurisdiction of theCourts cannot ignore these Rules and then ask to be heard. Hereferred us to Rule 59 which reads as follows:
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Nicholas v. Macao Marker Ltd. (Ramatte. P.l
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"Where the parties fail to comply with the requirements set
out in the preceding rules, the Registrar.ofthe Court shall
without any. delay, list such application for an order of Court."
Mr. Kadirgamar submitted that if the Registrar had listed thisApplication for an order of Court the only order this Court couldhave made is one of dismissal. He argued that the failure on thepart of the Registrar does not mean that the Petitioner can beexcused.
Mr. H. L. de Silva for the Petitioner conceded that there hasbeen non-compliance with the requirements of Rule 47, buthe submitted that the non-compliance did not amount todisobedience. He argued that the non-compliance in this case wasmerely an inadvertence and that the Petitioner should be givenan opportunity to amend his petition, Mr. de Silva drew ourattention to the last sentence of Rule 47, particularly to the use ofthe word "may". He argued that if the Court has a discretion eventhough a false averment is made, then the penalty for not makingan averment at all, should not be a dismissal.
The question that arises for consideration is what is theconsequence of a Petitioner failing to comply with Rule 47. Underthe Administration of Justice Law too, there was a similar Rulewhich was identical to Rule 47. It was not disputed that theobject of this Rule was to prevent the invoking of the jurisdictionof this Court more than once and to ensure that no second orderwould be made on a second application regarding the samematter. Mr. Kadirgamar referred us to the case of Nayaiingamvs. Lakshman de Mel, Commissioner of Labour and twoothers (1). That was an application, for a Writ of Certiorarito quash an order made in terms of Section 2 of the Terminationof Employment of Workmen (Special Provisions) Act, No. 45of 1971, whereby the Commissioner of Labour had grantedwritten approval to an employer to terminate -the employmentof a workman. Section 2 (2) (c) of Act No. 45 of 1971 statesthat when an application is made by an employer for the approvalof the Commissioner of Labour, for the termination of theemployment of a workman, the Commissioner shall grant orrefuse such approval within three months from the date of receiptof the application made by the employer. In that case theCommissioner admittedly made the. order after the expiry ofthree months from the date of the receipt of the applicationmade by the employer. It was argued on behalf of the workman
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(1981) 2 S.LR.
that the order was in breach of the provisions of Section2 (2) (c) of the Act and hence was ultra vires the powers of theCommissioner and was null and void. Sharvananda, J. in the courseof his judgment at page 236 referred to the fact that there was noexpress provision in the Act "indicative of the Legislature'sintention regarding the effect of any non-compliance". Then afterquoting a passage from Maxwell's Interpretation of Statutes,Sharvananda, J. stated as follows:
"it is trite law that it is the duty of the Court, in construinga statute, to ascertain and implement the intention ofParliament as can be gathered therein. When Parliamentprescribes the manner or form in which a duty is to beperformed, or a power exercised, it seldom lays down what willbe the legal consequences of failure to observe its prescriptions.The Courts must therefore formulate their own criteria fordetermining whether the procedural rules arc to be regardedas mandatory, in which case disobedience will render void orvoidable what has been done, or as directory, in which casedisobedience will treated as an irregularity not affecting thevalidity of what has been dono. Judges have often stressed theimpracticability of specifying exact ruins for the assignment ofa procedural provision to the appropriate category The wholescope and purpose of the enactment must be considered, and onemust assess 'the importance of the provision that has beendisregarded and the relation of that provision to the generalobject intended to be secured by the Act'— Smith JudicialReview of Administrative Action (2nd Ed. at page 126}."
In the circumstances of that case Sharvananda, J. came to theconclusion that a failure to comply literally with the time limitstipulated in Section 2 (2) (c) does not affect the validity of theCommissioner's order. The reasoning seems to have been that tohold otherwise would be to cause grave hardship to innocentparties. He was further of the view that the object of the timelimit in Section 2 (2) (c) is to discourage bureaucratic delay.
The question arises whether the procedural Rule No. 47 can beregarded as mandatory or merely as directory. In order to decidethis question one has to consider the whole set of Rules. They arecomprehensive and elaborate Rules made by the Supreme Courtfor regulating inter alia the form and manner of applications forSpecial leave to appeal to the Supreme Court, of applications forleave to appeal to the Supreme Court made in the Court of Appeal,
CANicholas k Macau Markar Ltd. (Ratwatte, P.l5
the mode of prosecuting appeals, and applications for Writs, etc.When one examines the entire scope of these Rules and theirobjects, it is clear that many of the Rules are mandatory. Rule 47itself is in. imperative terms and as stated earlier the object ofRule 47 was to ensure that that no second order would be madeon a second application regarding an identical matter.
In the case of C. Coomasaru vs. M/s Leechman and Co. Ltd.,and 3 others (2), Tennekoon, C. J. stated as follows :
" Rules of Procedure must not always be regarded as meretechnicalities which parties can ignore at their whim andpleasure."
That was an appeal made to the Court of Appeal established underthe Court of Appeal Act of 1971, from a judgment of the thenSupreme Court. When the Court of Appeal was abolished in termsof Section 3 of the Administration of Justice Law, the appealwas transferred to the Supreme Court in terms of Section 5311)of the A.J.L. The appeal was subsequently heard by five judgesof the Supreme Court. In terms of certain Rules of the AppealProcedure Rules (1972) made by the Court of Appeal, anAppellant had to file written submissions within a prescribed time.The Appellant in that case did not file written submissions. Thequestion that arose for consideration by the Supreme Court waswhat was the consequence of an Appellant failing, in compliancewith the Rules, to lodge his written submissions within the timeprescribed by the Rules. Tennekoon, C. J. with whom the otherfour judges agreed, was of the view that the Appellant, by notcomplying with the Rules regarding written submissions, had notproperly asserted the right which he had, to appeal to the Court ofAppeal. Tennekoon, C. J. also took into consideration the factthat the appellant had not submitted any excuse for his failure tocomply with the Rules. The Supreme Court accordingly dismissedthat appeal. Applying the principal enunciated by Tennekoon,C. J. I am of the view that the Petitioner in the instant case hasbeen guilty of non-compliance with a rule which is in imperativeterms. I do not think that the Petitioner should be given anopportunity at this stage to amend his petition and affidavit. ThePetitioner filed this application on 05.02.1980. The firstrespondent's Statement of Objections was filed on 25.03.1980. Inparagraph 8 of the Statement the 1st Respondent has specificallytaken up this objection, but the Petitioner has not thought it fit
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(198112 SLR.
to seek to amend his petition or to explain the non-compliance byfiling a counter affidavit
For these reasons I am of the view that the preliminaryobjections raised on behalf of the 1st Respondent should beupheld. I would accordingly reject the application of the Petitionerwith costs.
ATUKORALE, J.-i agree.
Application rejected.