FOWZIE AND OTHERS v. VEHICLES LANKA (PVT) LTD

004-SLLR-SLLR-2008-V-1-FOWZIE-AND-OTHERS-v.-VEHICLES-LANKA-PVT-LTD.pdf


Fowzie and others v Vehicles Lanka (Pvt) Ltd.
SC
FOWZIE AND OTHERS
v
VEHICLES LANKA (PVT) LTD.
SUPREME COURTBANDARANAYAKE, J.
DISSANAYAKE, J.
BALAPATABENDI, J.
SC SPL LA 286/2007CA 944/2006JANUARY 8, 28, 2008FEBRUARY 5, 6, 2008
Applicability of SC Rules 1990 – Rule 8 (3) – Rule 8 (5) – Rule 40 – Tenderingthe relevant number of notices along with the application for service onrespondents in time – Variation or extension of time permitted with permissionof Court – Does non compliance with Rule 8 (3) result in the dismissal of theapplication?
The respondent contended that the petitioners had not complied with Rule 8 (3)of the SC Rules 1990 and sought the dismissal of the application, in limine.
Held
A careful examination of Rule 8 (3) clearly indicates that the purposeof it is to ensure that the respondents have received the notices of thepetitioners' application lodged in this Court and in the event that the
24Sri Lanka Law Reports[2008} 1 Sri L.R
said notice not been received by the respondents, to make provisionfor the Registrar to dispatch fresh notice by registered notice.
The SC Rules 9 of 1990 makes provision for the petitioner to file anapplication for a variation or an extension of time, if and when theneed arises (Rule 40).
There is non compliance with Rule 8 (9) of SC Rule 1990 and thepetitioners also had not taken steps to make an application (Rule 40)for variation or an extension of time in tendering notices as requiredby Rule 8 (3).
APPLICATION for Special leave to appeal from a judgment of the Court ofAppeal on a preliminary objection raised.
Cases referred to:
Samantha Niroshana v Senarath Abeyruwan – SC Spl LA145/2006 – SCM 2.8.07.
Kiriwante and another v Navaratne and another – 1990 – 2 Sri LR393
Rasheed Ali v Mohamed Ali and others – 1981 – 2 Sri LR 29
Soong CheFoo v H. K. de Silva – SC Spl LA 184/2003 – SCM 25.11. 03 K.M.
Gangodagedara v Mercantile Credit Ltd – 1988 – 2 Sri LR 253
Jayawardena, Someswaran and Manthri & Company v Jinadasa -1994-3 Sri LR 185
Samarawickrema v Attorney General – 1983 2 Sri LR 162
Shanmugavadivu v Kulatilaka – 2003 – 1 Sri LR
Annamalie Chettiar v Manjula Karunasinghe and another – SC69/2003 – SCM 6.6.05
Wickramatilaka v Marikkar- (1895) 2 NLR 9
Re Chenwel-8 Ch D 506
Sadlarv Whiteman
Reg v Skeen -(1910) 1 KB 868 at 892
K. Reaindran v K. Velusomasundaram – SC Spl LA 298/99 – SCM
7.2.00
N. A. Premadasa v People’s Bank – SC Spl LA 212/99 – SCM
24.2.00
Hameed v Majibdeen and and others – SC Spl LA 38/01 – SCM
23.7.01
R. M. Samarasinghe v R. M. D. Rathnayake and others – SC SplLA 51/2001 – SCM 27.7.01
C. A. Haroon v S. K. Muzoor and another – SC Spl LA 158/ 2006 -SCM 24.11.2006
Fowzie and others v Vehicles Lanka (Pvt) Ltd.
SC (Shirani Bandaranayake, J.)25
Sanjay Rajaratnam DSG for respondents-petitioners
Faiz Musthapha PC with Thushani Machado for petitioner-respondent
Cur.adv.vult
July 8, 2008
SHIRANI BANDARANAYAKE, J.
This is an application for Special Leave to-Appeal from the 01judgment of the Court of Appeal date 10. 09. 2007. By that judgmentthe Court of Appeal issued a writ of certiorari quashing Regulation2(3) and Regulation (b) made by the 1st respondent-petitioner andpublished in Gazette No. 1446/31 dated 25.05.2006 prayed by thepetitioner-respondent (hereinafter referred to as the respondent).
The respondents-petitioners (hereinafter referred to as petitioners)had thereafter preferred an application for Special Leave to Appealto this Court.
When that application of the petitioners for Special Leave to 10Appeal came up for support for the consideration of the grant ofSpecial Leave, learned president’s Counsel for the respondent tookup a preliminary objection that the petitioners had not complied withthe requirement in Rules 8(3) and 40 of the Supreme Court Rules1990 and therefore submitted that the application for Special Leaveto appeal should be dismissed in limine.
The facts relevant to the preliminary objection raised by thelearned President’s Counsel for the respondent, as presented byhim, albeit brief, are as follows:
The petitioners had filed the application for Special Leave to 20Appeal on 22.10.2007, but the notices were not tendered on thatdate. The respondent had received a copy of a motion along withthe petition and affidavit filed and in the said motion it was statedthat the registered Attorney for the petitioners had sought three (3)dates for the learned Deputy Solicitor General to support theapplication for Special Leave. However, according to the learnedPresident’s Counsel for the respondent, there was no notice sent tothe respondent from or through the Registry of the Supreme Court.
26Sri Lanka Law Reports[2008J 1 Sri L.R
When the connected application No.1492/2006 came up for hearingbefore the Court of Appeal on 30.10.2007, the State Counsel 30appearing for the respondents in that application had moved that thehearing of that case in the Court of Appeal be deferred in view of thependency of this application before the Supreme Court. Thereafter,the registered Attorney-at-Law for the respondent had perused theRecord and had observed that the petitioners had failed to tendernotices for service on the respondent along with the application forSpecial Leave as required by Rule 8(3) of the Supreme Court Rulesof 1990.
On 30.10.2007, the Attorney-at-Law for the respondent filed amotion and moved this Court to reject the application for Special 40Leave, for the reason that the petitioners had not complied with Rule8(3) of the Supreme Court Rules of 1990. Thereafter on 31.10.2007notices and the annexures were tendered by the petitioners at theRegistry without a motion.
Accordingly learned President’s Counsel for the respondentcontended that the petitioners had not complied with Rule 8(3) ofthe Supreme Court Rules 1990 and relying on the decision of thisCourt in Samantha Niroshana v Senarath Abeyruwarih submittedthat the petitioners cannot now invoke the Courts discretion in termsof Rule 40 to obtain an extension of time to comply with Rule 8(3) of 50the Supreme Court Rules 1990. Accordingly respondent the learnedPresident’s Counsel for the respondent contended that the saidpreliminary objection be upheld and the application for SpecialLeave to Appeal be dismissed in limine.
Learned Deputy Solicitor General for the petitioners concededthat the notices were tendered to the Registry of the Supreme Court,
7 (seven) working days after the Special Leave to Appeal applicationwas filed. Learned Deputy Solicitor General further conceded thatthe decision in which the learned President’s Counsel for therespondent was relying on, viz, Samantha Niroshana v Senarath 60Abeyruwan (supra) was correct in deciding to uphold the preliminaryobjection of the respondent as the petitioners in that case had notacted reasonably and efficiently upon discovery of the defect in their
Fowzie and others v Vehicles Lanka (Pvt) Ltd.
SC(Shirani Bandaranavake. J.)27
application for Special Leave to Appeal and the respondents had notreceived notice of the Special Leave to Appeal application. Theposition taken by the learned Deputy Solicitor General for thepetitioners therefore was that, in the circumstances of the presentcase, the petitioners have discharged the requirements of Rule 8(3)and thereby had fulfilled the objective of the said Rule 8(3), eventhough such execution may not have been in strict compliance of 70Rule 8(3) of the Supreme Court Rules of 1990..Learned DeputySolicitor General submitted that he is relying on the decisions ofKiriwanthe and another v Navaratne and another2) and Rasheed Aliv Mohamed AH and others<3>.
Having stated the submissions of the learned President’sCounsel for the respondent and the learned Deputy SolicitorGeneral for the petitioners, let me now turn to consider the factualposition of the objection raised by the learned President’s Counselfor the respondent with reference to the provisions contained inRules 8(3) and 40 of the Supreme Court Rules of 1990 and the 80decided cases.
As the Record of the Special Leave to Appeal application reveals,on 22.10.2007, the petitioners had lodged an application in theSupreme Court and sought for Special Leave to Appeal from thejudgment of the Court of Appeal dated 10. 09.2007. A motion had beenfiled by the Attomey-at-Law for the petitioners, which stated thus:
“a) My appointment as Attorney-at-Law for the 1 st -3rd respondents-petitioners above named,
b) Petition together with the affidavit of the 2ndrespondent-petitioner and documents marked A1-A1190
and move that Your Lordships' Court be pleased toaccept the same.
Copy of this motion together with copies of petition,affidavit and documents mentioned above were sent tothe petitioner-respondent by registered post and theregistered postal article receipt bearing No. 5109 date
28Sri Lanka Law Reports[2008] 1 Sri L.R
22.10.2007 is annexed hereto.
Colombo on this 22nd day of October 2007.
Attorney-at-law for the 1st to 3rd respondents-100
petitioners.”
On 30.10.2007, Attorney-at-Law for the respondent filed theproxy on behalf of the respondent and also filed a motion movingCourt to reject the Special Leave to Appeal application as thepetitioners had not complied with Rule 8(3) of the Supreme CourtRules 1990.
Thereafter on 01.11.2007 petitioners had tendered the noticesand the annexures without a motion and on the same date, theRegistry of the Supreme Court had dispatched the said noticesalong with the documents by registered post to the respondent. no
Having considered the factual position pertaining to thepreliminary objection, let me now turn to examine the provisionspertaining to Rule 8(3) of the Supreme Court 1990. Rule 8, which iscontained in Part I of the Supreme Court Rules 1990, deals withSpecial Leave to Appeal and is in the following terms:
“The petitioner shall tender with his application suchnumber of notices as is required for service on therespondents and himself together with such number ofcopies of the documents referred to in sub-rule (1) ofthis rule as is required for service on the respondents.120
The petitioner shall enter in such notices the names andaddresses of the parties, and the name, address forservice and telephone number of his instructingAttorney-at-Law, if any, and the name, address andtelephone number, if any, of the Attorney-at-Law, if any,who has been retained to appear for him at the hearingof the application, and shall tender the required numberof stamped addressed envelopes for the service ofnotice on the respondents by registered post. Thepetitioner shall forthwith notify the Registrar of any130
change in such particulars.”
Fowzie and others v Vehicles Lanka (Pvt) Ltd.
SC(Shirani Bandaranavake, J.)
An examination of Rule 8(3) clearly specifies the necessity totender the relevant number of notices along with the application forservice on the respondents. The said Rule, not only specifies the needto tender notices but also describes the steps that have to be taken intendering such notices. It is also to be borne in mind that in terms ofRule 8(3), tendering of such number of notices for service has to bedone, at the time the petitioner hands over his application and itappears that the said requirement is mandatory. The purpose of Rule8(3) is to ensure that, the respondents are notified that a Special uoLeave to Appeal application is lodged in the Supreme Court. The Ruleclearly stipulates that such notice should be given along with the filingof the application. The need for serving notice on the respondents, isfurther emphasized in Rule 8(5), where it is stated that,
“The petitioner shall, not less than two weeks and not
more than three weeks after the application has been
lodged, attend at the Registry in order to verify that such
notice has not been returned undelivered. If such notice
has been returned undelivered, the petitioner shall
furnish the correct address for the service of notice on150
such respondent. The Registrar shall thereupon
dispatch a fresh notice by registered post and may in
addition dispatch another notice with or without copies
of the annexure, by ordinary post….”
A careful examination of this Rule quite clearly indicates thatthe purpose of it is to ensure that the respondents have received thenotices of petitioners application lodged in this Court and in theevent that the said notice not been received by the respondents, tomake provision for the Registrar to dispatch fresh notice byregistered post.160
Referring to Rule 8(3) of the Supreme Court Rules of 1990,learned Deputy Solicitor General for the petitioners, submitted thatthe objective of Rule 8(3) is to ensure that the respondent is givennotice by way of registered post, prior to the Special Leave toAppeal application is supported. Learned Deputy Solicitor Generalalso referred to the decision in Soong Che Foo v H.K. de SilvaW
30Sri Lanka Law Reports[2008) 1 Sri L.R
where S. N. Silva, C. J. referring to Rule 8(3) had observed that,
“The rules are so designed that the respondents wouldhave adequate notice of the application. A non-compliance with rules may even result in the matter170
being considered in the absence of the respondents.”
■Learned Deputy Solicitor General had also referred to theobservation made by Bandaranayake, J. in Samantha Niroshana vSenarath Abeyruwan (supra), where it was stated that,
“. . . the purpose of the Supreme Court Rules is toensure that all necessary parties are properly notified inorder to give a hearing to all parties and Rule 8specifically deals with this objective.”
r.-
Learned Deputy Solicitor General for the petitionersaccordingly contended that considering the circumstances in 180
Samantha Niroshana (supra), this Court was correct in upholding
*
the preliminary objection of the respondent as the petitioners in thatcase had not acted reasonably and efficiently upon discovering thedefect in their application for Special Leave to Appeal and therespondent had received no notice of the Special Leave to Appealapplication. The position taken up by the Deputy Solicitor Generalfor the petitioners therefore was that, considering the circumstancesof the present case, the petitioners have fulfilled the objective anddischarged the requirements of Rule 8(3), although it may not havebeen in strict compliance of Rule 8(3) of the Supreme Court Rules 1901990.
Accordingly, learned Deputy Solicitor General contended thatin the event an applicant, ‘fails to strictly, but manages tosubstantiately comply with a Rule, and in so doing causes noprejudice to the respondent, this Court could examine thecircumstances surrounding such default and adopt a reasonableview of the matter, in order to prevent an automatic dismissal of theapplication.’ In support of his contention learned Deputy SolicitorGeneral referred to the judgment to Mark Fernando, J. in Kiriwantheand another v Navaratne and another (supra), and also to the 200
Fowzie and others v Vehicles Lanka (Pvt) Ltd.
SC(Shirani Bandaranavake. J.)
decisions of Rasheed Ali v Mohamed Ali and others (supra),Gangodagedara v Mercantile Credit Ltd.W Jayawickrama, Somes-waram and Manthri and Company v Jinadasa^ and Samara-wickrama v Attorney General.*?)
It is to be noted that, all the aforementioned decisions hadconsidered the effect of non-compliance of a Rule or Rules of theSupreme Court Rules of 1978 and not of the Supreme Court Rulesof 1990. Also, as admitted by the learned Deputy Solicitor General,in most of the decisions, the provisions of the Rules were regardedas imperative in nature. For instance, in Gangodagedara v 210Mercantile Credit Ltd., (supra) Wijetunga, J. had held that,
“. .. I am of the view that the provisions of Rules 49 areimperative in nature and call for strict compliance.
Failure to comply with such a mandatory requirement isfatal to the application.”
Moreover in Rasheed Ali (supra) Soza, J. had held that,
. . the provisions of Rule 46 are imperative andshould be complied with by a party who seeks to invokethe revisionary powers of this Court.”
Kiriwanthe v Navaratne (supra) decided in1990 considered the 220need to comply with the requirements of Supreme Court Rules of1978. The rationale of its decision, as clearly examined and statedin Samantha Niroshana v Sena rath Abeyruwan (supra), was that incertain instances, taking into consideration the surroundingcircumstances, the Court could exercise its discretion either toexcuse the non-compliance or to impose a sanction.Notwithstanding the above position, it is to be borne in mind that inthe decision of Kiriwanthe v Navaratne (supra) this Court had notsuggested automatic exercise of its discretion to excuse the non-compliance of Supreme Court Rules. The procedure that has to be 230followed in considering the exercise of discretion was clearlyexamined by Mark Fernando, J. where it was stated that,
… I am content to hold that the requirements of Rule46 must be complied with, but that strict or absolute
32Sri Lanka Law Reports[2008] 1 Sri L.R
compliance is not essential, it is sufficient if there iscompliance which is ‘substantial’ – this being judged inthe light of the object and purpose of the Rule. It is notto be mechanically applied, as in the case now beforeus; the Court should first have determined where thedefault had been satisfactorily explained, or cured240
subsequently without unreasonable delay, and thenhave exercised a judicial discretion either to excuse thenon-compliance, or to impose a sanction . .
It is thus apparent that the Supreme Court did not hold that thediscretion of the Court would always be exercised to excuse a non-compliance of the Supreme Court Rules. What the Court stated wasthat instead of mechanically applying its discretion, the Court wouldhave to consider certain aspects with regard to the non-compliancein question. These steps included the following:-
the Court should first have determined whether the default 250had been satisfactorily explained and/or;
the default had been cured subsequently withoutunreasonable delay.
If the said requirements were fulfilled, the Court could exerciseits discretion either to excuse the non-compliance or to impose asanction.
Thus it is obvious that it would be necessary to evaluate theprovisions of the relevant Rule/Rules before considering the effectof any non-compliance. For this purpose it is essential that therelevant Rule/Rules be carefully examined and it is on that basis that 260I had stated in Shanmugavadivu v Kulathilakd8> and SamanthaNiroshana v Senarath Abeyruwan (supra) that Kiriwanthe’s casewas decided on 18.07.1990 on the basis of the Supreme CourtRules of 1978 and on 13.11.1990 the amended Supreme CourtRules of 1990 had come into effect.
The Supreme Court Rules of 1990 applicable to those caseshad indicated the objectivity of exercising judicial discretion, andsuch discretion had to be exercised in terms of those provisions.
Fowzie and others v Vehicles Lanka (Pvt) Ltd.
SC(Shirani Bandaranayake, J.)^_
This position was further strengthened in the decision of AnnamalieChettier v Manga/a Karunasinghe and another,&) where the 270preliminary objection on non-compliance with Rules 30(1) and 30(6)of the Supreme Court Rules of 1990 was sustained by this Court. Inthese circumstances, it is evident that the issue in question has tobe considered only in terms of Supreme Court Rules of 1990.
Rule 8(3) of the Supreme Court Rules of 1990, as statedearlier, clearly states that,
‘The petitioner shall tender with his application suchnumber of notices as is required for service on therespondents and himself. . ."
As referred to earlier, the petitioner has filed the petition, 280affidavit and documents marked A1 – A11 on 22.10.2007. Themotion does not refer to the notices being tendered to the Registry.Instead it stated thus:
“ Copy of this motion together with copies of petition,affidavit and documents mentioned above were sent tothe petitioner-respondent by registered post and theregistered postal article receipt bearing No. 5109 dated22.10.2007 is annexed hereto.”
It is therefore apparent that the petitioners had not tenderedwith the application the required number of notices to the Registry in 290terms of Rule 8(3) of the Supreme Court Rules 1990, but had sentcopies of the motion, petition, affidavit and the documents byregistered post to the respondent. As stated earlier, on 31.10.2007,the Attorney-at-Law for the respondent filed a motion moving toreject the petitioners' application and on 01.11.2007, the petitionershad tendered notices and annexure without a motion.
Learned Deputy Solicitor General for the petitioners relied onthe decisions based on Supreme Court Rules of 1978, and even interms of the provisions under the said Supreme Court Rules of 1978the said Rules were imperative in nature and needed strict 300compliance and further Court required at least an explanationregarding the petitioners' failure to comply with the said Rules.
34Sri Lanka Law Reports[2008] 1 Sri L.R
It is to be noted that the Supreme Court Rules of 1990, makesprovision for a petitioner to file an application for a variation or anextension of time, if and when the need arises. In fact Rule 40 of theSupreme Court Rules of 1990 refers to Rule 8(3) and states that,
“ An application for a variation or an extension of time,in respect of the following matters shall not beentertained by the Registrar, but shall be submitted byhim to a single judge, nominated by the Chief Justice,310
in chambers:
a) tendering notices as required by rules 8(3) and25(2); . .
It is therefore quite clear that in terms of Rule 8(3) thepetitioners should have tendered notices on the day they filed thepetition, viz., 22.10.2007 to the Registry for the Registrar to act interms of Rule 8(1) to give notice forthwith to each of therespondents, by registered post. In the normal course of events, thepetitioners should have complied with Rule 8(5) to verify by Attorneyat the Registry that notice has not been returned undelivered and 320this has to be done not less than two weeks and not more than threeweeks after the application had been lodged. In this applicationhowever, it is to be noted that, on 31. 10. 2007, the respondent hadfiled a motion moving to reject the application of the petitioners asthey have not complied with Rule 8(3) of the Supreme Court Rules1990. By that time, not only there was non-compliance with R,u1e8(3) of the Supreme Court Rules of 1990, but the petitioners alsohad not taken steps to make an application in terms of Rule 40 forvariation or an extension of time in tendering notices as required byRule 8(3).330
It is not disputed that the petitioners had not taken any of theaforementioned steps and it is also apparent that there is clear non-compliance with Rules 8(3) and 40 of the Supreme Court Rules of1990.
As I had stated in Samantha Niroshana v Senarath Abeyruwan(supra) I am quite mindful of the fact that mere technicalities should
Fowzie and others v Vehicles Lanka (Pvt) Ltd.
SC(Shirani Bandaranayake, J.)35
not be thrown in the way of the administration of justice andaccordingly I am in respectful agreement with the observationsmade by Bonser, C.J., in Wickramathilaka v MarikaA10) referring toJessel M.R., in Re Chenwel/Su)340
“It is not the duty of a Judge to throw technical difficultiesin the way of the administration of Justice, but when hesees that he is prevented receiving material or availableevidence merely by reason of a technical objection, heought to remove the technical objection out of the wayupon proper terms as to costs and otherwise.”
It has also to be noted that the purpose and the objective ofRule 8 of the Supreme Court Rules of 1990, is to ensure that allparties are properly notified in order to give a hearing to all parties.
The procedure laid down in Rule 8 of the Supreme Court Rules, 3501990 clearly stipulates the process in which action be taken by theRegistrar from the time an application is lodged at the Registry of theSupreme Court. It is in order to follow the said procedure that it isimperative for a petitioner to comply with Rule 8 of the SupremeCourt Rules 1990 and in the event that there is a need for a variationor an extension of time the petitioner could make an application interms of Rule 40 of the Supreme Court Rules of 1990. Accordinglyas I had states in Artnamalai Chettiar Muthappan Chettiar (supra)and Samantha Niroshana v Senarath Abeyruwan (supra), anobjection raised on the basis of non-compliance with a mandatory 360Rule such as Rule 8 of the Supreme Court Rules of 1990 cannot beconsidered as a mere technical objection.
It is also to be noted that, there was no dispute over thelanguage used in Rules 8(3) and 40 of the Supreme Court Rules of1990 and that there was no ambiguity of its construction. In suchinstances it is clear that when there is only one construction thatcould be given to a particular provision it would be necessary toenforce such construction. Referring to instances, where clear andunequivocal language had been used Farwell, L.J. in Sadler vWhiteman<12) referring to Lord Campbell in Reg. v Skeen*13) at 89 2 370stated that,
36Sri Lanka Law Reports/2008j 1 Sri L.R
“Where by the use of clear and unequivocal languagecapable only of one construction, anything is enactedby the Legislature, we must enforce it, although, in ouropinion, it may be absurd or mischievous.”
Accordingly where there has been non-compliance with amandatory Rule such as Rule 8(3), serious consideration should begiven for such non-compliance as that kind of non-compliance by aparty would lead to serious erosion of well established Courtprocedure in our Courts, maintain throughout several decades. 380
Having said that, the question that has to be answered iswhether the non-compliance with Rule 8(3) would result in thedismissal of the application. This question was considered inSamantha Niroshan v Senarath Abeyruwan (supra), wherereference was made to a long line of cases of this Court,
K. Reaindran v K. Velusomasunderamy4) N.A. Premadasa v ThePeople's Bankys) Ha meed v Majibdeen and othersy6) K.M.Samarasinghe v R.M.D. Rathnayake and othersy 7> Soong Che Foov Harosh K. de Silva and others (supra), C.A. Haroon v S.K. Muzoorand of/?ers<18) that had decided that non-compliance with Rule 8(3) 390would result in the dismissal of the application.
In the circumstances, for the reasons aforementioned, I upholdthe preliminary objection raised by the learned President’s Counselfor the respondent and dismiss the petitioners application forSpecial Leave to appeal, for non-compliance with the Rules of theSupreme Court, 1990.
I make no order as to costs.
DISSANAYAKE, J.-I agree.
BALAPATABENDI, J.-I agree.
Preliminary objection upheld.
Application dismissed.