007-SLLR-SLLR-2004-V-1-DHARMARATNE-v.-SAMARAWEERA-AND-OTHERS.pdf
CA
Tennakoon v Director-General of Customs and Another
(Wiiavaratne, J.)
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DHARMARATNEv
SAMARAWEERA AND OTHERSSUPREME COURTFERNANDO, J.
ISMAIL, J. ANDJAYASINGHE, J.
SC APPEAL NO. 11/2003CAWRIT NO. 1202/98WITH SC APPEAL NO. 12/2003CA WRIT NO. 695/994 AUGUST, 2003
Writ of certiorari – Inquiry under Commissions of Inquiry Act, No. 17 of 1948 -Natural justice – Ultra vires – Rejection of the application on laches ex meremotu by Court of Appeal.
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The 1st respondent held an inquiry into certain incidents which occuredduring the local government elections in the East held on 01.03.1994, havingbeen appointed under the Commissions of Inquiry Act, No. 17 of 1948 (‘TheAct”) At the inquiry which commenced on 26.12.1995.141 witnesses gave evi-dence and the report was made in March 1988 and made available to the pub-lic after some delay.
The appellant in SC 11/2003 filed his application for a writ in November1988 whilst the appellant in SC 12/2003 filed his application in July 1988.
By their applications the appellants sought writs of certiorari to quash the1st respondent’s findings of guilt against them and the recommendation thattheir civic rights be deprived for seven years and that they be prosecuted incriminal proceedings.
The appellant in Appeal No. 11/2003 was summoned as a witness but'not informed that anybody testified against him. However, evidence of otherpersons had been recorded against him. This was in breach of section 16 ofthe Act which requires the Commission to give such notice and to grant anopportunity to appear through counsel at the whole of the inquiry.
The appellant in SC 12/2003 was noticed after one year from the com-mencement of the inquiry. He gave evidence and was present when some wit-nesses testified none of whom gave evidence against him. The findingsagainst him were based on the evidence of certain witnesses who gave evi-dence in his absence and without notice to him.
The Court of Appeal dismissed both applications. One of the grounds fordismissing Application No. 11/2003 was laches which point was not raised bythe respondents. The Court of Appeal ex mere motu dismissed the applicationon the ground of laches.
Held:
The proceedings taken against the appellants were in flagrant violationof the audi alteram partem rule and ultra vires the Act. In particular the1st respondent acted contrary to the warrant appointing him and thelaw in recommending the deprivation of civic rights of the petitionersand criminal prosecution. Hence the decision and recommendationwere made without any power or authority, and that in making the saidrecommendations the 1 st respondent stepped outside the powers con-tained in section 2 of the Act.
In dismissing the application of the appellant in SC 11/2003 on theground of laches the Court of Appeal itself acted in violation of the audialteram partem rule in that the point had not been raised by any respon-dent.
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Case referred to:
1. A.G. v Chanmugam 71 NLR 78
APPEALS from the judgment of the Court of Appeal
R.K.W. Goonesekera with J.C. Weliamuna for appellant.
S.S. Sahabandu, P.C. with Hemantha Situge and C. Pathmasekera for 1strespondent.
Y.J. W. Wijayatilake, Deputy Solicitor General for 4th respondent.
Cur.adv.vult
September 5, 2003JAYASINGHE, J.
S.C. Appeals 11 and 12/20021
These two appeals relate to a single judgment of the Court ofAppeal dismissing two separate applications filed by the two appel-lants for writs of certiorari to quash the adverse findings and rec-ommendations of the 1 st respondent, a one man Commission ofInquiry appointed under the Commissions of Inquiry Act, No. 17 of1948. The two appeals were taken up together as they eachinvolved three questions of law; whether the 1st respondent actedin breach of the principles of natural justice in making those find-ings, whether he acted ultra vires in making those recommenda- 10tions and whether the Court of Appeal erred in law in holding, exmero motu, that the appellants were guilty of laches although thosegrounds were never urged by the respondents in their pleadingsand submissions, thereby denying the appellants the opportunity ofmeeting that plea.
At the conclusion of oral arguments on 04.08.03 both appealswere allowed, the judgement of the Court of Appeal was set asideand mandates in the nature of writs of certiorari were issued,quashing the 1st respondent’s findings (contained in his reportmarked A3) of involvement/guilt as against the two appellants, and 20his recommendations therein that the two appellants be deprivedof their civic rights for seven years and that criminal proceedings beinstituted against them.
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I now formulate our reasons for allowing those appeals andgranting the appellants the relief prayed for.
The 1 st respondent was appointed by warrant dated 27.09.95.After a protracted inquiry at which 141 witnesses testified, with over4000 pages of proceedings, the first respondent found the appel-lants guilty of certain malpractices and accordingly recommendedthe imposition of civic disability and the institution of criminal pro-ceedings. The two appellants made applications, in July andNovember 1998, to the Court of Appeal for mandates in the natureof writs of certiorari to quash the findings and recommendations ofthe 1st respondent contained in his report dated 27.08.97 pub-lished in March 1998.
In the Court of Appeal it was agreed on 21.02.02, that in asmuch as questions of law were concerned, one order would bebinding in both cases, and accordingly “Court of Appeal applicationNo. 695/98 was taken up along with CA application No. 1202/98”.On 21.08.02 the Court of Appeal dismissed the latter application,and consequently the former as well without regard to factual dif-ferences.
S.C. Appeal 12/2003
The appellant states that the Commission of Inquiry com-menced its sittings on 26.12.1995 and that 141 persons testified atthe said inquiry; appellant complains that he was not noticed toappear before the said Commission at the commencement of theinquiry and that after a lapse of about one year the appellant wasinformed by letter dated 01.01.1997 (marked P3) that three per-sons whose names listed in the said letter have been summoned totestify before the Commission and that the Commission believedthat the appellant is likely to be implicated by the said personsbefore the Tribunal. The said letter further informed the appellantthat the appellant is entitled to appear before the Commission inperson or through counsel and that he would also be entitled tocross examine the said witnesses, if necessary. The appellantaccordingly submitted himself on the date specified in ‘P3’ and allother dates on which the said witnesses testified. He states thatnone of the witnesses implicated the appellant in their evidence.This position is not contradicted by the respondents. Some time
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thereafter the appellant had information that one M.R. Noordeen,Senior Superintendent of Police was to testify before theCommission and the appellant immediately appeared before theCommission. However, the evidence of Noordeen also did notimplicate the appellant. Appellant thereafter apprehended thatthere was an attempt to implicate the appellant with certain inci-dents which occurred during the local government election in theEast held on 01.03.1994 (the subject matter under inquiry) andaccordingly obtained from the Commission a list of witnesses whowere expected to testify before it. The said letter is marked *P7The appellant claims that none of the witnesses who testifiedbefore the Commission (vide P7) implicated the appellant in theirevidence. There is no evidence as to whether ‘P6’ and ‘P7’ werewritten in response to an inquiry made by the appellant or whetherthe Commission had written to the appellant on its own initiative.However, it appears from ‘P3’, ‘P6; and ‘P7’ that the appellant isbeing summoned in terms of section 16, even though there is noreference to section 16.
After the inquiry was concluded the report dated 25.08.97(marked A3) containing the findings and recommendations of theCommission was published on 27.03.1998. The said report wasavailable to the public in May 1998. The Commission havingarrived at certain adverse findings against the appellant recom-mended that civic disability be imposed on the appellant and alsorecommended the institution of criminal proceedings.
The main contention of the appellant before this Court wasthat there has been a serious violation of rules of natural justice inthat the appellant has not been given an opportunity to present hisdefence before the Commission. The appellant states that sincethe persons mentioned in ‘P3’, P6 and ‘P7’ dis not implicate himand in the absence of any intimation regarding any involvement ofthe appellant in any offence or wrong doing by the Commission, theappellant was entitled to assume that there is no incriminatorymaterial placed before the Commission against the appellant. Theappellant further contends that he is also entitled to assume thatthe witnesses who testified before ‘P3’ was communicated to himhad also not implicated the appellant. The evidence of I.T.Kanagaratnam, N.A. Jayashantha, S.B. Upali Hewage, T.P.F. de
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Silva and Ali Maulana who testified before the Commission prior to1st January 1997 relied upon by the Commission to come to an iooadverse finding against the appellant was therefore led in hisabsence and without notice (even subsequently) to the appellant.
The Commission also relied on the evidence of one Benjemin.However, the name of said Benjemin was not disclosed either in‘P3 P6 or ‘P7’. The appellant states that he had no notice thatSirisena Cooray was also due to testify before the Commission.
It has been contended on behalf of the respondents that theprocedure to be followed in respect of an inquiry before theCommission is laid down in section 16 of the Commissions of InquiryAct. The learned President’s Counsel submitted that the Supreme noCourt in A.G. v M. ChanmugarrP) has held that –
“A Commission appointed unddr the Commissions ofinquiry Act is the master of its own procedure and aslong as the procedure adopted by it does not offendagainst one’s sense of justice and fair play it cannot besaid that there has been a violation of the principles ofnatural justice. Nor is a Commission bound to adherestrictly to the provisions of the Evidence Ordinance.”
The counsel submitted that,
‘The Commission had laid down the procedure at the com- 120mencement of the inquiry as found in Chapter II of theCommission Report which embodied broad principles of nat-ural justice.”
Section 16 provides that –
“Every person whose conduct is the subject of inquiryunder this Act, or who is in any way implicated or con-cerned in the matter under inquiry, shall be entitled to berepresented by one or more attomeys-at-law at thewhole of the inquiry; and any other person who may con-sider it desirable that he should be so represented may,130
by leave of the Commission, be represented in the man-ner aforesaid.”
However the respondents concede that when the appellant tes-tified on 18.04.1997 he did so on summons as a witness and not as
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a person whose conduct was the subject of the inquiry or who was inany way implicated or concerned in the matter under inquiry. He wasnot informed of the content of the evidence that has been placedbefore the Commission by witnesses who testified before ‘P3’. Theappellant’s consistent position had been that since the witnesseswho testified on ‘P3’ and ‘P7’ did not implicate him and therefore enti-tled to assume that the other witnesses who testified before theCommission had not implicated him. To expect the appellant to sitthrough the entire proceedings in anticipation of any incriminatingmaterial against him in the absence of any warning in terms of sec-tion 16 or to stay vigil to encapsulate any incriminating evidence tomy mind would defy all norms of common sense and reasonable-ness. If however the Commission felt that there was any materialagainst the appellant which the appellant ought to explain then it wasincumbent upon the Commission to disclose that fact especially inview of the procedure the Commission had proclaimed to follow asembodied in chapter II of ‘A3’. Non compliance of the requirementsof section 16 would no doubt vitiate the findings made by theCommission.
The Court of Appeal in its judgement had observed that –
“at the commencement of the proceedings the Commissionhad with the consensus of parties set out the broad parame-ters of the procedure to be followed. The procedure laid downwas that, parties would be noticed to appear before theCommission at the commencement of the proceedings andwould be afforded an opportunity to cross examine the wit-nesses or to call witnesses or to give evidence before theCommission as and when such evidence was placed beforethe Commission. In other word notice to the petitioner wouldonly be issued at the commencement of the proceedings■and thereafter it was incumbent upon the petitioner to appearbefore the Commission on the following dates and avail him-self of that opportunity to hear evidenceand make an
application in terms of section 14 if he wishes to make repre-sentations.”
“No objection has been taken by the petitioner when this pro-cedure was laid down at the commencement of the inquiry asset out in page 2 of ‘the Report.”
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It is pertinent to note that the appellant was never noticed to bepresent at the commencement of the inquiry. The appellant hadnotice of the inquiry only upon receipt of ‘P3’ limited to the witnessesspecified therein.
Therefore the Court of Appeal erred in stating that at thecommencement a consensus was reached between the appellantand the Commission regarding the procedure to be followed in theensuing inquiry. The failure to take objection to the procedure was 180therefore irrelevant, for the appellant was not given an opportunityof doing so. In any event non compliance with the audi alterampartem rule cannot be excused on the basis of a failure to object. Itis also relevant to advert to submissions made by counsel assistingthe Commission at the commencement of the inquiry regarding theprocedure to be followed by the Commission. The counsel in hisopening address has stated before the Commission on 26.12.1995that when a witness gives evidence in public or otherwise and ifnames of other persons transpire in the course of such evidence,the Commission is under a duty to call those whose names have 190transpired before the Commission. (T R2’). That was totally incon-sistent with any duty on the part of such other persons to apply tothe Commission for permission to intervene or to cross-examinewitnesses.
Mr. Goonesekera submitted that the failure of theCommission to inform the appellant the names of witnesses whotestified prior to 01.01.1997, (P3) where the appellant was impli-cated in itself is a breach of the procedure which it had laid downfor itself. The appellant’s complaint that there has been a failure tofollow rules of natural justice is well founded.200
The principle which the 1st respondent actually followed wasexplained by him thus in his affidavit in the Court of Appeal.
“it was up to the petitioner to be alert and follow the pro-
ceedings. He was entitled to come before the Commission andrequest that any witness be recalled for cross-examination if hefound that such witness had given evidence concerning him"
The basic standard of fairness implicit in the rules of naturaljustice required the 1st respondent himself, at some stage of hisinquiry, to identify the allegation against the appellant, to inform him
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thereof, and to give him the opportunity of meeting those allega-tions, by cross-examining witnesses or otherwise. The 1 st respon-dent failed to do so and what he did instead was to cast this bur-den on the appellant – namely to attend the Commission or obtaincopies of the proceedings, to analyse the entire evidence to ascer-tain whether there were allegations against him, to assume that thecommission wished to pursue those allegations, and on that basisto request the Commission to allow him to defend himself. Section16 of the Act does not impose any such burden.
The adverse findings against the appellant were thereforereached in flagrant violation of the audi alteram partem rule, andmust be quashed on that ground.
The appellant also complains that the 1st respondent hasacted ultra vires in terms of reference set out in the warrant and/orthe provisions of the Commissions of Inquiry Act and therefore thefindings and the recommendations of the Commissioner are void.Mr. Goonesekera submitted that the Act does not authorise theCommissioner to make recommendations in any form except forcosts and expenses as referred to in section 7(f) of the Act. He sub-mitted that the Court of Appeal erred in holding that –
“there does not seem to be anything to prevent theCommissioner from making recommendations unless suchrecommendations are inconsistent or adverse to the findingsarrived at on an evaluation of the evidence placed before the
Commissionbut recommendations of the Commission
are not bound within the ambit of paragraph 7(f) of the saidAct. This merely deals with the recovery of costs and expens-es. This provision does not exclude the right of theCommission to reach other recommendations outside therecommendations referred to in paragraph 7(f) of theAct.”
Since the findings against the appellant are flawed recom-mendations based on those findings are equally flawed and mustbe quashed. In any event the Commission has only the powers andjurisdiction conferred by the statute, which does not include recom-mendations for deprivation of civic rights and institution of criminalproceedings.
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Mr. Goonesekera submitted that the Commissioner hasacted without any power or authority in making the recommenda-tions affecting the appellant and that the Commission has actedbeyond the warrant in the findings and conclusions. The learned 250President’s Counsel during the hearing conceded that theCommissioner stepped out of the ambit of section 2.
The submission of Mr. Goonesekera that section 2 of theCommissions of Inquiry Act postulates only an inquiry and reportand nothing more is also valid.
S.C. Appeal No. 11/2003
Having dismissed CA Application No. 695/98 the Court ofAppeal dismissed CA Application No. 1202/98 without consideringthe factual differences.
The appellant states that his statement was first recorded by 260officers attached to the Commission and then the appellant wassummoned as a witness to give evidence on 13.01.1997. Theappellant gave evidence with regard to one incident namely, anincident that took place at Kattankudi on 01.03.1994 where a can-didate and his security were shot at by the guards at a pollingbooth. The respondents concede that he gave evidence as a wit-ness and at no stage was he informed that he was implicated in anyirregularities. The appellant was present at the Commission only on13.01.1997 for about an hour and was not summoned thereafter.
The appellant was not present at the Commission at any time when 270the other witnesses gave evidence. The appellant was not given alist of witnesses nor was he informed that there has been anyadverse evidence given by any witness against him. The appellantwas not given any show cause letter nor was he issued with acharge sheet by the Commission. As a matter of fact the appellantappeared on 13.01.1997, (vide ‘P3’), according to which theCommission believed that his evidence was likely to implicate theappellant in 695/99, D.IG.Fernando. Having summoned the appel-lant as a witness against the appellant, D.I.G.Fernando for theCommission to thereafter to draw inferences on the conduct of the 280appellant without affording him an opportunity to meet the caseagainst him would not only be a violation of the rules of natural jus-tice but a corruption of all rules of procedure to be followed at any
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conceivable inquiry. This procedure to my mind is taking the rea-soning of A.G. v Chanmugam that “the Commission is the masterof its own procedure” to the realm of absurdity.
It is also to be noted that the appellant in 695/98 wasinformed by ‘P3’ and ‘P7’ that there might be evidence placedbefore the Commission that might be adverse to the appellant.However the appellant in CA 1202/98 appeared before the 290Commission on summons on 13.01.1997 and did not appearbefore the Commission thereafter. The findings against the appel-lant in 1202/98 has been arrived at on the evidence that has beenplaced without the appellant ever being informed. To this extentthere has been a misappreciation of the contents of the cases inrespect of each of the appellants. Findings and recommendationsagainst the appellant must be quashed for breach of natural justiceand excess of jurisdiction.
Plea of laches
The judgement of the Court of Appeal states that the parties 300agreed that CA Application 695/98 should be taken along withApplication No. 1202/98, and “that they would be bound by oneorder in both cases.” What counsel has actually agreed upon wasonly in respect of questions of law. Accordingly, both applicationscould not have been fully disposed of by one order because someissues of fact were different. The plea of laches was one example.
The Court of Appeal held that the appellant in CA ApplicationNo. 1202/98 was not entitled to maintain the application as he wasguilty of “unexplained and undue delay in invoking the writ jurisdic-tion of the Court.” In coming to that finding the Court of Appeal 31cobserved in its judgment that the Report had been published inMarch 1997, whereas it has actually been published in March 1998;that appellant had filed his application in the Court of Appeal inNovember 1998, averring that copies of the report were availableonly in May 1998 and that the public could only purchase copies inAugust 1998. The Court of Appeal observed that the appellant hasplaced no evidence of those matters to explain his delay of almost“a period of one year”. The actual delay reckoned from the actualdate of publication was only about eight months.
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The Court of Appeal denied the appellant the benefit of the 320audi alteram partem rule on this point, because it is admitted thatthe question of delay was not raised either by the respondent or bythe court at any stage. Delay cannot be characterized as ‘unex-plained’ or ‘undue’ unless an opportunity to explain is first given.
Such an opportunity would have allowed the appellant to placematerial as to the difficulty in obtaining copies of the report and ofthe proceedings and documents produced; the time taken toanalyse the material with legal assistance; and the time needed toprepare pleadings, taking into consideration the duties of accuracyand disclosure applicable to writ applications and supporting affi- 330davits.
The failure to consider those matters is particularly serious inthe other application, which was filed just four months after thereport was published – a period which can seldom be consideredunreasonable, as learned President’s Counsel fairly conceded.
The Court of Appeal erred in denying the appellants relief onthe ground of laches.
It was for those reasons that at the conclusion of the hearingI allowed the appeals, set aside the judgement of the Court ofAppeal, and issued mandates in the nature of writs of certiorari to 340quash the 1st respondent’s findings (contained in his Reportmarked A3) of involvement/guilt as against the two appellants, andhis recommendations therein that the two appellants be deprived oftheir civic rights for seven years and that criminal proceedings beinstituted against them. Each of the appellant will be entitled tocosts in a sum of Rs. 5000 payable by the State.
The findings and the recommendations of the 1st respondentagainst the petitioner in the above applications are accordingly setaside. The appeals against the judgement of the Court of Appealare also allowed.350
FERNANDO, J.I agree
ISMAIL, J.- I agree
Appeal allowed.