050-SLLR-SLLR-2004-V-3-LANKA-MARITIME-SERVICES-LTD-.-v.-SRI-LANKA-PORTS-AUTHORITY-AND-6-OTHERS.pdf
332
Sri Lanka Law Reports
[2004) 3 Sri L.R
LANKA MARITIME SERVICES LTD.vSRI LANKA PORTS AUTHORITY AND 6 OTHERSCOURT OF APPEALSALEEM MARSOOF, J. (P/CA)
SRISKANDARAJA, J.
CA 2173/2004NOVEMBER 16. 2004
Writ of Certiorari – Maintainability – Another application relating to the samematter between same parties pending – Multiplicity of Actions – Interestreipublicae ut sit fins litium – Nemo debet bis vexari pro unq et eadem causa
Res Judicata – Judgments pro veritae accipitor – No judicial pronouncement
applicability of the above dicta. – Court of Appeal (Appellate Procedure)Rules 1990, Rules 3(2) – Constitution Article 12(1), 14(1), 140.
Held:
Per Saleem Marsoof, J. (P/CA)
°l am of the opinion that there is no Rule of Court or principle of law whichprecludes the filing of a fresh application with respect to the same subjectmatter as an existing application but the Court may in the context of a writapplication take into consideration the fact of the existence of the earlierapplication in exercising its discretion in regard to whether any newmaterial placed before Court in the later application should be rejected orany additional relief prayed for in the later case should be refused".
It is trite law that the doctrine of res judicata precludes freshproceedings only where there is a previous judicial decision on the samecause between the same parties.
When there is no proper judicial pronouncement (including withdrawalwithout reservation of the right to initiate proceedings) in a case involvingthe same parties and the same cause, a Court will not dismiss any freshaction or application in limine and will entertain the subsequent action orapplication.
APPLICATION for a Writ of Certiorari on a preliminary objection taken.
Cases referred to:
Jayawardane and five others v Dehiattakandiya MPCS and fifty others -1995 -2 SLR 276.
Herath v Attorney-General – 64 NLR 1923.
Lanka Maritime Services Ltd. v Sri Lanka Ports Authority
CAand Six others (Saieem Marsoof. J..P/CA)zrz.
Mendis v Himmappooa – 18432 – 1855 – Ramanathan Reports 88.
K.Kanag-iswaran PC with Nigel Bartholomeuze for petitioner.
Wijedasa Rajapakse PC with K. Liyanagamage and Rasika Dissanayake for1st, 2nd and 3rd respondents.
Romesh de Silva PC with Harsha Amarasekera and S. Cooray for 5threspondent.
Y.J.W. Wijayatilleke DSG with Janak de Silva, SC for 4th to 6th respondents.Shibly Aziz PC for 7th respondent.
November 19, 2004SALEEM MARSOOF, J.
When this application was supported for notice by learnedPresident's Counsel for the Petitioner, learned President's Counsel forthe 5th Respondent (Lanka Marine Services Pvt. Ltd. which had beennoticed in view of the application for interim relief) took up apreliminary objection to the maintainability of the application on thebasis that another application filed in this Court and now pendingbearing No. CA Application 1534/2004, in which the Petitioner in theinstant case is the 2nd Petitioner, relates to the same matter andcreates a multiplicity of applications. In particular learned President'sCounsel for the 5th Respondent drew the attention of Court to Rule3(2) of the Court of Appeal (Appellate Procedure) Rules, 1990 whichreads as follows-
"The petition and affidavit, except in the case of an application forthe exercise of the powers conferred by Article 141 of the Constitutionshall contain an averment that the jurisdiction of the Court of Appealhas not previously been invoked in respect of the same matter. If suchjurisdiction has previously been invoked the petition shall contain anaverment disclosing relevant particulars of the previous application.Where any such averment as aforesaid is found to be false orincorrect the application may be dismissed."
He submits that although in paragraph 90 of the petition filed in thiscase, the Petitioner has disclosed that the jurisdiction of this Court haspreviously been invoked by the Petitioner in CA Application No.1534/2004 together with two other parties, namely the Sri LankaShipping Company Ltd. and the Lanka Bunkering Services (Pvt) Ltd.the objective of the said Rule 3(2) is to avoid multiplicity of applications
334
Sri Lanka Law Reports
[2004] 3 Sri L.R
and that as the said application and the present application relate tothe same matter, the present application has to dismissed in limine. Inthis context, he submits that the policy of the law as well as theaforesaid Rule is that no one should be vexed twice in connection withthe same matter and he cites the judgment in Jayawardena and FiveOthers v Dehiattakandiya Multi-Purpose Co-operative Society Ltd.and Fifty Others<1) in which S.N.Silva, J. (as he then was) hasobserved at 281 that "It is thus seen that it is in the public interest thata party should not be vexed twice upon litigation in respect of thesame matter. The Supreme Court Rules have clearly an underpinningof the aforesaid element of public interest. It is for that reason that theRules require a petitioner to state that he has not invoked thejurisdiction of the court previously in respect of the same matter."
Learned President's Counsel appearing for the 1st, 2nd, 3rdRespondents states that he associates himself with the submission oflearned President's Counsel for the 5th Respondent and states thatthe Petitioner itself has admitted in Paragraph 90 of its petition that thetwo cases relate to the same matter. Paragraph 90 of the petition isquoted below:
"The Petitioner states that they have not previously invoked thejurisdiction of Your Lordship’s Court in respect of this matter exceptin the matter of CA Application 1534/2004 together with Sri LankaShipping Company Limited and Lanka Bunkering Services (Pvt)Ltd."
Learned President's Counsel appearing for the 1st, 2nd, 3rdRespondents further submits that the present application is based onthe letter dated 15th July 2003 (P17) which is a licence issued to the'Petitioner by the Minister of Power and Energy in terms of Section5(4) of the Petroleum Products (Special Provisions) Act No. 63 of2002, and although the substantive relief prayed for by the Petitionerin subparagraphs (b), (c), (d), (e) and (f) of the prayer to the Petitionhave been sought by reference to the said document, the said licencedoes not bind the 1 st Respondent Sri Lanka Ports Authority or the 2ndand 3rd Respondent officials of the said Authority. He also points outthat the very same document has been the basis of the previousapplication bearing reference CA Application No. 1534/2004 in whichit has been tendered marked P16. He further submits that thecertiorari prayed for in sub-paragraph (d) of the prayer and the
CA
Lanka Maritime Services Ltd. v Sri Lanka Ports Authority
and Six others (Saieem Marsoof. J..P/C.A.)
335
mandamus prayed for in subparagraph (c) of the prayer to the presentapplication are in substance the same reliefs prayed for by prayers (c)and (d) in CA application 1534/2004. He also submits that although adeclaration has been sought by sub paragraph (c) of the prayers ofthe petition, the Petitioner has sought to invoke the jurisdiction of thisCourt in terms of Article 140 of the Constitution which does not conferany jurisdiction to grant a declaration. He further submits that theprohibition sought by sub paragraphs (f) of the prayer to the presentpetition could and should have been prayed for. in the previousapplication, and that the failure to plead that relief in the previouslyfiled application cannot be remedied by filing a fresh application. Healso submits that the Petitioner could seek the said relief in CAApplication No. 1534/2004 itself as the case is still pending and is infact listed for argument on 19th November 2004.
Leaned President's Counsel appearing for the Petitioner statesthat Rule 3 (2) of the Court of Appeal (Appellate Procedure) Rules,1990 only requires the disclosure of any previous applications filed inthis Court or in any other form relating to the same matter, but doesnot preclude a fresh application being filed as in this case where newmaterial has surfaced. He submits that it is extremely material to hiscase that the 6th Respondent (Attorney-General) has issued a legalopinion in his letter dated 3rd March 2004 in response to a queryraised by the Energy Supply Committee in its letter dated 9thDecember 2003. In paragraph 84 of the Petition filed in this case thePetitioner has quoted extensively from the said legal opinion of the 6thRespondent. In particular, learned Counsel for the Petitionerhighlights the fact that the 6th Respondent has ruled that insofar asthe 5th Respondent operates barges to transport fuel within theColombo Port, any refusal to permit other barge owners to transportbunker fuel by barge would be a violation of the fundamental rightsenshrined in Article 12 (1) and Article 14(1) of the Constitution. Hesubmits that the existence of the said legal opinion has beensuppressed by the Respondents in CA Application 1534/2004 andthat in the circumstances it has become necessary for the Petitionerto seek "the aid and assistance" of this Court to petition for the reliefprayed for by the Petitioner. He further submits that the petitioner hassatisfied Rule 3(2) as it has disclosed the fact that a previousapplication has been filed with respect to the same matter, but furthersubmits that there is no rule of Court that gives effect to the alleged
336
Sri Lanka Law Reports
[2004] 3 Sri L.R
principle against the multiplicity of applications. Learned President'sCounsel for the Petitioner also submits that principles of res judicartahave no relevance to the matter in issue as those principles precludethe filing of a fresh action or application after the matter in dispute hasbeen put to rest by a decision of a Court of law which is not the casehere as CA Application No. 1534/2004 is still pending before this Court
I am of the opinion that there is no Rule of Court or principle of lawwhich precludes the filing of a fresh application with respect to the samesubject matter as an existing application, but the Court may in thecontext of a writ application take into consideration the fact of theexistence of the earlier application in exercising its discretion in regardto whether any new material placed before Court in the later applicationshould be rejected or any additional relief prayed for in the later caseshould be refused. In Jayawardena and Five Others v DehiattakandiyaMulti Purpose Co-operative Society Ltd. and Fifty Others (supra)S.N. Silva, J. made the following pertinent observation at 281 to 282-
"The contents of Rule 47 and Rule 3(2) referred above appear to bebased on the doctrine of res judicata is meant the termination of thecontroversy by a judgment of a Court. This is accomplished either by anadverse decision or by discharge from liability. In the case of Herath vAttorney-General, a bench of 3 Judges of the Supreme Courtconsidered the implications of this doctrine. Basnayake, CJ. cited anauthority which expresses the view that the doctrine is founded uponthe maximum "nemo debet bis vexaripro una et eadem causa which isitself an outcome of the wider maxim interest reipubiicae ut sit finis litium(page 217). It is thus seen that it is in the public interest that a partyshould not be vexed twice upon litigation in respect of the same matter, iThe Supreme Court Rules have clearly an underpinning of theaforesaid element of public interest. It is for that reason that the Rulesrequire a petitioner to state that he has not invoked the jurisdiction of theCourt previously in respect of the same matter. The basic assumptionis that if a party has invoked the jurisdiction of the Court previously inrespect of the same matter, he is barred from invoking the jurisdictionfor the second time, save in exceptional situations as noted above. Ifthis principle is not applied, it would happen as in this case, where aparty who has withdrawn his earlier application without any reservationretains another Counsel and makes a second foray to this Court byway of a fresh application."
Lanka Maritime Services Ltd. v Sri Lanka Ports Authority
CAand Six others (Saleem Marsoof, J., P/C.A.)337
It is trite law that the doctrine of res judicata precludes freshproceedings only where there is a previous judicial decision on thesame cause between the same parties. It is common ground thatthere is no prior judicial pronouncement to thwart the applicationmade by the Petitioner in this case. The question for determination onthe preliminary objection taken on behalf of some of the Respondentsis whether the wider maxim interest reipubiicae ut sit finis litium whichwhen converted to contemporary language would mean that "it is inthe public interest that there should be an end to litigation" wouldpreclude the Petitioner from maintaining the present application. Thesaid maxim was considered in the old case of Mendis vHimmappooaP) in which the record revealed that the plaintiff hastwice already brought the identical action, and has twice been absenton the date of the trial, and the case has already been twicedismissed. Stark J. considered the maxim, and observed-
"interest reipubiicae ut sit finis litium is a good maxim; it flowsout of the very nature of society, for unless there is an end tolitigation, rights would for ever remain uncertain and no man wouldever enjoy that security of person and property, without somedegree of which society could not subsist, and it may be added, inproportion to the enjoyment of which in any society civilizationadvances, or has opportunity to advance.
Accordingly, it is a rule of law that a solemn judgment on anymatter standing pro veritate accipitur. But this effect cannot attachto a judgment given without a hearing of the case, which appearsto be the predicament in which the subject-matter of the presentsuit is placed. If the judgments in the previous cases were inrespect of the absence of the plaintiff, and so of the nature ofnonsuits without evidence taken in the cause, they do not amountto Res Judicata, which is properly defined as legal judgment on thesame point between the same parties, on the same grounds ormedia concludendi after argument or confession."
It will follow from this decision that where there is no prior judicialpronouncement (including a withdrawal without reservation of theright to initiate fresh proceedings) in a case involving the sameparties and the same cause, a Court will not dismiss any freshaction or application in limine, and will entertain the subsequentaction or application.
338
Sri Lanka Law Reports
[2004] 3 Sri L.R
For the foregoing reasons, the preliminary objection taken upby learned President's Counsel for the 1st, 2nd, 3rd and 5thRespondents is overruled, without prejudice to any otherobjections to the maintainability of the application that may betaken by the Respondents, if so advised.
SRISKANDARAJAH, J. – I agree.
Preliminary objection overruled.
Matter set down for argument.