028-SLLR-SLLR-2004-V-1-KARIYAWASAM-v.-PRIYADARSHANI.pdf
CA
Kariawasam v Priyadharshani
(Dissanavake. J.)
189
KARIAWASAMv
PRIYADHARSHANICOURT OF APPEALDISSANAYAKE, J. ANDSOMAWANSA, J.
A.205/93
C.COLOMBO 15353/PFEBRUARY 25, 2004
Judgment per incuriam – Judgment of the Court of Appeal – Inherent powersto set aside or correct its own judgment.
The District Court held that “G" was not entitled to any shares. The plaintiffwhose predecessor in title was ‘G’ appealed.
ON APPEAL
Two judges of the Court of Appeal had confirmed that the said ‘G’ was not enti-tled to any shares and dismissed the appeal. Decree of court was entered andthe record sent back to the District Court.
After a period of 1 year and 8 months the plaintiff appellant sought to set asidethe said judgment on the basis that “G” was in fact allotted certain shares. Theappellant contended that the findings of the Court of Appeal has been madeby an oversight/inadvertance/per/ncuriam. The defendant-respondent, object-ed to the application on the ground that there is no provision in law whichenables the plaintiff-appellant to make the said application.
Held:
The per incuriam findings in the judgment of the Court of Appeal has, been as a result of court’s attention not being drawn to the second
page of the final decree where ‘G’ has been allotted shares.
Having regard to the definition of the per incuriam order the factsand circumstances of the instant case warrant the exercise of inher-ent powers of this Court to rectify the mistake made in the judgmentto prevent injustice to be caused to the plaintiff-appellant.
No man shall be put in jeopardy by a mistake made by a court.
AN APPLICATION to correct judgment.
190
Sri Lanka Law Reports
[2004] 1 Sri L.R
Cases referred to:
Gunasena v Bandaratilake – (2000) 1 Sri LR 292
Sivapathalingam v Sivasubramaniam – (1990) 1 Sri LR 378
Jeyaraj Femandopulle v de Silva and others (1996) 1 Sri LR 70
Farred v Alaxander – (1976) 1 All ER 129,145
Hudderspeld Police Authority v Wabon – (1947) 2 All ER 193,196Manohara de Silva for plaintiff-appellant-petitioner.
Nihal Jayamanne, PC. with Noorani Amarasinghe for 3rd defendant-respon-dent-respondent.
Cur.adv.vult
March 23, 2004DISSANAYAKE, J.
This is an application made by the plaintiff-appellant-petitionerseeking to correct the judgment delivered on 06.09.2000 byJustices Vigneswaran and Shiranee Tilekawardena when theywere sitting as Judges of this Court, on the basis that some of thefindings in respect of a crucial matter in the said judgment has beenmade per incurriam.
A preliminary objection has been taken by learned President’sCounsel appearing for the 3rd defendant-respondent-respondent,that the said application of the plaintiff-appellant-petitioner is mis-conceived. Further he has taken up the position that there was noprovision in law which enables the plaintiff-appellant-petitioner tomake the said application.
The facts relevant to this inquiry briefly are as follows:-
The plaintiff-appeilant-petitioner had filed a final appeal to thiscourt against the judgment of the District Judge in District CourtColombo case No.15353/P bearing DC Final appeal No.205/93(F).
The appeal was argued by counsel appearing for both parties
01
10
CA
Kariawasam v Priyadharshani
(Dissanavake. J.)
191
before Justices, Wigneswaran and Shiranee Tilakawardane whenthey were officiating as judges of this Court. After the conclusion ofarguments Justice Wigneswaran delivered judgment on06.09.2000, dismissing the appeal of the plaintiff-appellant andaffirming the judgment of the learned district judge. JusticeShiranee Tilakawardane agreed with him on the aforesaid judg-ment.
The plaintiff-appellant-petitioner did not make an application forspecial leave to appeal to the Supreme Court against the said judg-ment of this Court.
Decree of this court has been accordingly entered by this Courtand the record has been sent back to the Registrar, District Courtof Colombo.
After a period of nearly one year and eight months later theplaintiff-appellant-petitioner has presented this application on30.5.2002 to this Court, seeking to set aside the aforesaid judg-ment.
Learned counsel appearing for the plaintiff-appellant-petitioneradverted attention of this Court to the findings of Justice. Wigneswaran which are reproduced as follows:-
“The plaintiff, 2nd and 3rd defendants are brothers and sistersrespectively. The final decree in DC. Colombo case No. 34801/Pwas perused by us. We find that the predecessors in title, GirigorisPerera was not entitled to the lot in question as per the partitiondecree. Therefore it would have not been possible for GirigorisPerera to have devolved any share to the transferors of P1.”
Learned counsel adverted the attention of this Court to the finaldecree in DC. Colombo case N. 34801/P which has been producedmarked X7 and annexed to the present application made by theplaintiff-appellant-petitioner.
This document has not been part of the record at the hearing ofthe arguments of the appeal.
However on being submitted by counsel during the course of thearguments of the appeal, Justices Wigneswaran and ShiraneeTilakawardena appear to have perused the said document.
20
30
40
50
192
Sri Lanka Law Reports
[2004] 1 Sri L.R
It is interesting to note that the predecessor in title of the plain-tiff-appellant-petitioner, the 2nd and 3rd defendant-respondent isM.A.Girigoris Perera who had been the 6th defendant in caseNo.34801/P. On a perusal of page one of the final decreeM.A.Girigoris Perera the 6th defendant is not allotted any share.However on page 2 of the final decree it is stated that the appli-cation made by Girigoris Perera to allot to him the shares to the1st and 2nd defendants and the plaintiff, by an order made by 60Court dated 20.11.1935 has been allowed by court by way of thedecree.
Therefore it is manifest that Girigoris Perera has been allottedthe shares allotted to the plaintiff, 2nd and 3rd defendants in caseNo. 34801/P.
Thus it appears that the finding made by Justice Vigneswaranhas been made without his attention being drawn to page 2 of thesaid final decree in case No. 34801 IP.
It is to be observed that Justice Wigneswaran’s findings in thesaid judgment has been made by an oversight and/or by inadver- 70tence. The error in the Judgment has been made per incurriam.
Learned counsel appearing for the plaintiff-appellant-petitionercited to me the decisions of the Supreme Court in Gunasena vBandaratilake(1> and Sivapathalingam v Sivasubramaniami2) andurged that this Court was vested with inherent power to set aside/orcorrect the aforesaid judgment delivered by Justice Vigneswaran.
In Jeyaraj Fernandopulle v de Silva and others<3) it was recog-nized inter alia that all courts have inherent power in certain cir-cumstances to revise orders made by them such as where a cleri-cal mistake in a judgment or order from an accidental slip or omis- sosion may be corrected; or to vary its own orders in such a way asto carry out its own meaning and. where the language is doubtful, tomake it plain or to amend it where a party has been wrongly namedor described, but not if it would change the substance of the judg-ment, the attainment of. justice being a guiding factor.
Dealing with the meaning of per incurriam, it was stated there atpage 113, et seq:- that ‘Earl Jowitt in his Dictionary of English law(2nd Ed, 1997, Vol 2 p 1347) translates the phrase to mean
CA
Kariawasam v Priyadharshani
(Dissanavake, J.)
193
“through want of care”. He goes on to explain that a decision or dic-
tum of a judge which clearly is the result of some oversight is saidto have been given per incurriam. In Farell v AlaxanderW. LordJustice Scarman in the Court of Appeal translated “Per Incurriam"as Homgr nodded,” Others, however have given the phrase a morerestricted meaning. Lord Chief Justice Goddard in HuddersfieldPolice Authority v WabonW said “what is meant by giving decisionper incurriam is giving a decision when a case or statute has notbeen brought to the attention of the court and they have given thedecision in ignorance or forgetfulness of the existence of that case
or that statuteThe definition of the phrase per incurriam
in Lord Goddard’s terms has been regarded as being too restrictiveThere are several instances of the court acknowledg-ment that it had acted per incurriam in circumstances which mightnot have been accommodated within Lord Goddard's definition."
In Gunasena v Bandaratillake (supra) at page 302 Wijetunga, J.observed:
‘The phrase, per incurriam has been defined in Whertons’ LawLexicon. 13th edition at page 645, as thorough want of care. Anorder of the court obviously made through some mistake or undersome misapprehension is said to be made per incurriam. Classen’sDictionary of Legal Words and Phrases, 1976 edition defines perincurriam at page 137 as by mistake or carelessness, therefore notpurposely or intentionally.”
Having regard to the above definitions and the many instanceswhere the court has held that it has stated per incurriam in situa-tions which do not come within Lord Goddard’s definition, I think thefacts and circumstances of the instant case may well be regardedas coming within the broader parameters of the concept of perincurriam. Even otherwise, as the earlier Judgment contained amanifest error, the court of Appeal had inherent power to correct thesame, in order that a party did not suffer by reason of a lapse onthe part of the court. The procedure adopted by the Court of Appealwas what it considered most appropriate in the circumstances. Isee nothing objectionable in that procedure.”
The per incurriam finding in the judgment of the matter beforeme presently has been made as a result of Justice Wigneswaran’s
90
100
110
120
194
Sri Lanka Law Reports
[2004] 1 Sri L.R
attention not being drawn to the second page of the final decree incase No.34801/P where M.A.Girigoris Perera has been allotted theshares of the plaintiff, the 1st and 2nd defendants in that case.
Having regard to the above definition of “per incurriam” orderand the many instances where the Courts have held that “per incur- 130riam” orders have to be corrected, I think the facts and circum-stances of the instant case warrant the exercise of inherent powersof this Court to rectify the mistake made in the judgment of JusticeWigneswaran, to prevent injustice to be caused to the plaintiff-appellant-petitioner.
I am also mindful of the oft quoted legal principle that no manshall be put in jeopardy by a mistake made by a Court.
Therefore I overrule the preliminary objection of the 3rd defen-dant-respondent-respondent and allow the application of the plain-tiff-appellant-petitioner. Acting under the inherent powers vested in uothis Court, I vacate the judgement dated 06.09.2000 delivered byJustices Wigneswaran and Shiranee Tilakawardane and order thatthe matter be fixed for arguments afresh.
The decree entered by this Court is vacated. Registrar of thisCourt is directed to communicate this order to the Registrar of theDistrict Court of Colombo and call for the record of this case forth-with.
SOMAWANSA, J. – I agree.
Decree of the Court of Appeal vacated;matter re-fixed for argument.