045-SLLR-SLLR-2004-V-1-GREGORY-FERNANDO-AND-OTHERS-v.-STANLEY-PERERA-ACTING-PRINCIPAL-CHRIST-TH.pdf
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GREGORY FERNANDO AND OTHERSvSTANLEY PERERA, ACTING PRINCIPAL,CHRIST THE KING NATIONAL SCHOOL AND OTHERSCOURT OF'APPEALFERNANDO, J. ANDSRIPAVAN, J.
C. A. 1766/2003DECEMBER 17, 2003
Writ of certiorari – Necessary parties not made parties to the application -Acquired rights being affected – Natural justice – Fair hearing
The petitioners sought to quash the (temporary) list containing the names ofthe successful children published by the 1st respondent and further sought tocompel the 1st respondent to constitute an interview board and to hold inter-views afresh.
It was contended that, the petitioners have failed to make the successful chil-dren'or their parents as parties to this application.
Held:
(i) It is vital that fairness demands that a person whose rights would beadversely affected must be given an opportunity for a fair hearing. Onewould not go to the merits of a case without hearing necessary parties.
Per Sripavan, J.,
‘The law is concerned with public confidence in the administration ofjustice; hence it is of paramount importance to ensure that individualsfeel that they have been given a fair hearing before a decision istaken….”
APPLICATION for a writs in the nature of certiorari and mandamus.
Cases referred to:
1. Farook v Siriwardena, Education Officer-(1997) 1 Sri LR 145 at 148.
■ 2. Abayadeera and 162 others v Don Stanley Wijesundera, ViceChancellor, University of Colombo and another – (1983) 2 Sri LR 267
Mutusamy Gnanasambanthan v Chairman, REPIA and others -(1998) 3 Sri LR 169
Gregory Fernando and others v Stanley Perera, Acting Principal,
CAChrist the King National School and others (Sripavan J.)347
University of Ceylon v Fernando – (1960) 1 WLR 233
Schmidt v Secretary of State for Home Affairs – (1969) 2 CA 149,170
Gamini Dissanayake v Kaleel- (1993) 2 Sri LR 135 (Distinguished)S.F.A. Cooray with C. Wijesuriya for petitioners.
Janaka de Silva, State Counsel for respondents.
Cur.adv.vult
December 19, 2003SRIPAVAN, J.
When the aforesaid application was taken up for hearing on 01
learned State Counsel appearing for the respondentsraised a preliminary objection to the maintainability of this applica-tion on the basis that the petitioners have failed to make the suc-cessful children or their parents whose names appeared in the tem-porary list published by the .first respondent as parties to this appli-cation.
The substantial relief sought by the petitioners is a writ of cer-tiorari to quash the temporary list of successful children publishedby the 1st respondent and a. writ of mandamus compelling the first 10respondent to constitute an Interview Board and to hold interviewsafresh in terms of circular number 2003/03 dated 23.05.2003.
The objection of the learned State Counsel is that the reliefclaimed by the petitioners, namely, quashing the temporary list ofsuccessful children would affect their acquired rights and as suchthe successful children or their parties should have been made par-ties to this application. It is on this basis learned State Counselurged that this application must be dismissed in limine since thepetitioners have failed to make necessary parties as respondentsto this application.20
A Court exercising judicial review has a duty to ensure that basicprinciples of natural justice are followed and cannot negate orbreach it to the detriment of any party. In Farook v Siriwardena,Election Officer 0) at 148 the Supreme Court observed thus:
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‘There is another point, although it had not been previ-ously raised namely, that T.K.Azoor who had been nom-inated by the party as its new member of the MunicipalCouncil and whose rights are affected in these proceed-ings had at no stage been made a party to the applicationmade to the Court of Appeal. This is itself is fatal to thevalidity of the application.”
In Abayadeera and 162 others v Dr.Stanley Wijesundara, ViceChancellor, University of Colombo and another2) the petitionerssought a writ of mandamus on the respondents to compel them tohold the 2nd MBBS Examination only for students of the Universityof Colombo. A three judge Bench of this Court observed that if amandamus is issued 115 students of the North Colombo MedicalCollege will be adversely affected and the failure to make themrespondents is fatal to the petitioners application.
In Muthusamy Gnanasambanthan v Chairman, REPIA and oth-ers (3> the Supreme Court considered whether an authority whoseorder is assailed must be made a party and held that the failure tomake REPIA a party was a fatal irregularity that would lead to a dis-missal of the application.
The petitioners in paragraph 10 of the petition alleged that thefirst respondent did not duly publish a temporary list of the suc-cessful candidates and the reserve list till 27.09.2003. The petition-ers were aware of the names of the successful candidates by27.09.2003. The petitioners filed this application on 13.10.2003.Accordingly, the petitioners had sufficient time to make the suc-cessful candidates or their parents as parties to this application.Even after the first respondent filed his statement of objections dis-closing the names of successful students together with the namesand addresses of the parents, the petitioners never sought the per-mission of Court to add the successful students or their parents asparties to this application.
In the circumstances, the explanation tendered by the petition-ers that this application has to be disposed of early as it involvesthe question of admission of children to school cannot be accept-ed. It is vital that fairness demands that a person whose right wouldbe adversely affected must be given an opportunity for a fair hear-
CA
Gregory Fernando and others v Stanley Perera, Acting Principal,
Christ the King National School and others (Sripavan J.)
349
ing. The conduct of the petitioners itself dis-entitles them for therelief they have prayed for. In any event, how does one go into themerits of a case without hearing necessary parties? It is implied bynatural justice that no one ought to suffer any prejudice without giv-ing first an opportunity of defending himself.
The right to legal representation is a part of natural justice. InUniversity of Ceylon v FernandoW at 233 where Lord Jenkinsequated natural justice with “elementary and essential principles offairnesd' and went on to say:70
“I find it difficult to say that legal representation before atribunal is an elementary feature of the fair dispensationof justice. It seems to me that it arises only in a societywhich has reached some degree of sophistication in itsaffairs.”
In Schmidtv Secretary of State for Home Affairs!5) Lord DenningM.R. suggested that the ambit of natural justice extended notmerely to protect rights but any “legitimate expectation/' of which itwould not be fair to deprive [a person] without hearing what hehas to say.80
Accordingly, it is of fundamental importance that justice shouldnot only be done, but should manifestly and undoubtedly be seento be done. The law is concerned with public confidence in theadministration of justice; hence it is of paramount importance toensure that individuals feel that they have been given a fair hearing■ before a decision is taken.
The learned Counsel for the petitioner relied on the judgment ofFernando, J. in Gamini Dissanayake v Kaleel <6) I do not think thatthe decision in Kaleel’s case can be applied to the present appli-cation. The question whether necessary parties were before Court 90was not considered in Kaleel’s case. The petitioners in that appli-cation were not given an opportunity to give any explanation beforethe working committee. The Supreme Court held that all the issuesin that application relate to legal matters arising upon admittedfacts; expulsion had not yet taken effect and their validity is to bedecided by the Court.
Even though there is some “urgency” in disposing this applica-
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tion, the petitioners had ample time to make the successful stu-dents or their parents whose rights would be affected as necessaryparties to this application. This the petitioners have failed to do.
For the reasons stated above I uphold the preliminary objectionraised by the learned State Counsel and dismiss the petitionersapplication, in all the circumstances without costs.
FERNANDO, J. – I agree.
Preliminary objection upheld;application dismissed.
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