JEYARAJ FERNANDOPULLE V. PREMACHANDRA DE SILVA AND TWO OTHERS

004-SLLR-SLLR-1996-1-JEYARAJ-FERNANDOPULLE-V.-PREMACHANDRA-DE-SILVA-AND-TWO-OTHERS.pdf


70
Sri Lanka Law Reports
[1996] 1 Sri LR.
JEYARAJFERNANDOPULLE
V.
PREMACHANDRA DE SILVA AND OTHERS
SUPREME COURT.
G.P.S.DE SILVA, C.J.,
AMERASINGHE, J.,
WADUGODAPITIYA, J.,
RAMANATHAN, J. ANDANANDACOOMARASWAMY, J.
S.C. APPLICATION NOS. 66 & 67/95.
JUNE 10, 1996.
Revision, Review or Re consideration of the judgment of the Supreme Court- Practice of the Court – Curses curiae est lex curiae – Judicial comity -Powers of the Supreme Court – Powers of the Chief Justice – Constitutionof Benches – Finality of judgments and orders of the Supreme Court -Constitution, Article 132 – Inherent Powers of the Court – The per incuriamprinciple – Relevance of questions of general and public importance.
The violations of fundamental rights found to have been committed by the10th, 11th, 13th and 14th respondents in Applications 66/95 and 67/95 wereheld to have been instigated by the 1st Respondent-petitioner by a majorityof three judges of the Supreme Court. The disagreement between themajority and minority of the Bench was based on –
the admissibility of a speech in Parliament made by the 1st Respondent-petitioner and reported in Hansard for the purpose of contradicting hisaffidavit filed in Court having regard to the privileges enjoyed by him as amember of Parliament;
the evidentiary value to be attached to the matters referred to in thespeech, having regard to the context in which it was made.
The 1st Respondent-petitioner prayed that the Court be pleased to reviseand/or review and/or further consider the use of Hansard by referring thesame for consideration by a fuller Bench.
The Acting Chief Justice nominated a Bench of five judges to hear thepetition of the 1st Respondent-petitioner, himself being one. However of thenominated Bench, the Acting Chief Justice declined to serve on the Benchand another nominated Judge relinquished his office to take over the officeof Attorney-General. Thereafter the present Bench was constituted to hearthe case.
sc
Jeyaraj Fernandopulle V. De Silva and Others
71
Held:
Usually, in the case of a petition, motion, application or letter addressedeither to the Chief Justice or to the Chief Justice and the other HonourableJudges of the Supreme Court, the Registrar submits it to the Chief Justicefor directions; if it pertains to an appeal, proceeding or matter pendingbefore or decided by a Bench of the Court, the Chief Justice refers it to theJudges who heard the case to which the petition, motion, application or letterrelates. If upon consideration in Chambers of the documents and affidavitssubmitted, an oral hearing is, in the opinion of the Judges, not warranted,the Judges would refuse to entertain the matter. The Judges concerned maydecide to hear the party in support of his petition, motion or application. Ifthey so decide after the hearing, they may reject it, and notice will not beissued on the other party and the matter will be at an end. If the Judges sodecide, the Judges may request the Chief Justice to constitute a Bench offive or more Judges to hear the matter; or the Judges to whom the matterhad been referred in the first place, may hear the matter and either grant therelief prayed for or refuse to grant relief. Where by an oversight the matteris listed before another Bench, that Bench will direct that the matter be listedbefore a Bench composed of the Judges who made the order. Cursus curiaeest lex curiae. The practice of the Court is the law of the Court. It is in accordwith the conventions of judicial comity.
It is an inveterate practice of the Court which the Court has regarded ashaving hardened into a rule that the same Judges who participated in the.formal hearing should constitute the new Bench or should also be included,as far as possible in the new Bench where a re-examination is decided. Notonly may the Judges who were supposed to be in error be the persons towhom the matter should be addressed, they ought to be the persons towhom the matter should be referred. Apart from the need to observe theconventions of judicial comity, there is the further consideration that, unlessthe practice of the Court in this regard is adhered to, the Court's position asthe final court will be placed in jeopardy.
(i) When the Supreme Court has decided a matter, the matter is atan end, and there is no occasion for other judges to be called uponto review or revise a matter. The Supreme Court is a creature ofstatute and its powers are statutory. The Court has no statutoryjurisdiction conferred by the Constitution or by any other law to re-hear, review, alter or vary its decision. Decisions of the SupremeCourt are final.
(ii) As a general rule, no Court has power to rehear, review, alter orvary any judgment or order made by it after it has been entered.
72
Sri Lanka Law Reports
[1996] 1 Sri L.R.
A Court has no power to amend or set aside its judgment or orderwhere, it has come to light or if it transpires that the judgment or orderhasbeen obtained by fraud or false evidence. In such cases reliefmust be sought by way of appeal or where appropriate, by separateaction, to set aside the judgment or order. The object of the rule isto bring litigation to finality.
However all Courts have inherent power in certain circumstances torevise an order made by them such as –
An order which has not attained finality according to the law orpractice obtaining in a Court can be revoked or recalled by the Judgeor Judges who made the order, acting with discretion exercisedjudicially and not capriciously.
When a person invokes the exercise of inherent powers of theCourt, two questions must be asked by the Court:
Is it a case which comes within the scope of the inherentpowers of the Court?
Is it one in which those powers should be exercised?
A clerical mistake in a judgment or order or some error arisingin a judgment or order from an accidental slip or omission may becorrected.
A Court has power to vary its own orders in such a way as to carryout its own meaning and where the language is doubtful, to make itplain or to amend it where a party has been wrongly named ordescribed but not if it would change the substance of the judgment.
A judgment against a dead party or non-existent Company or incertain circumstances a judgment entered in default or of consent willbe set aside.
The attainment of justice is a guiding factor.
An order made on wrong facts given to the prejudice of a partywill be set aside by way of remedying the injustice caused.
Public or general importance of a matter or dissent by a minority of theJudges constituting the Bench does not give the Chief Justice the authority
sc
Jeyaraj Femandopulle V. De Silva and Others
73
to constitute an appellate division of the Supreme Court to review and reviseits own decisions. Apart from exceptional instances in which it has beenstatutorily vested with jurisdiction to express its opinions, the business ofthe Court is adjudication. A "question" or “issue" of general or publicimportance in the abstract cannot be the subject of a judgment of theSupreme Court – it is not a matter susceptible to adjudication. A judgmentis a judicial determination of a cause agitated between real parties; uponwhich a real interest has been settled.
When any division of the Supreme Court constituted in terms of theConstitution sits together, it does so as the Supreme Court. It is one Courtthough it usually sits in several divisions. Each division has co-ordinatejurisdiction. What is conveniently, but inaccurately called a "fuller Bench"has no greater powers or jurisdiction than any division of the Court thougha decision of such a court carries greater weight. The judgment of theSupreme Court shall, when it is not an unanimous decision, be the decisionof the majority regardless of the fact that it may, in the opinion of any personwhomsoever, be wrong. Nor is it open to anyone to devalue a decision of theCourt on the assumption that one or more judges “merely agreed" with theopinion of another judge.
Article 132 (3) does not confer any right of appeal, revision or review. Ithas always been taken for granted that a matter is referred to a Bench of fiveor more judges by the Chief Justice, whether of his own motion, or at therequest of two or more judges hearing the matter, or on the application ofa party, because the question is one of general and public importance.Article 132 provides for the manner in which the jurisdiction of the Court maybe ordinarily exercised. It does not confer any jurisdiction on the Court nordoes it empower the Chief Justice to refer any matter of public or generalimportance to a Bench of five or more judges. It empowers him to constitutea Bench of five or more judges to hear an appeal, proceeding or matter whichthe Court has jurisdiction to entertain and decide or determine. The Courthas no statutory jurisdiction to re-hear, reconsider, revise, review, vary or setaside its own orders. Consequently, the Chief Justice cannot refer a matterto a Bench of five or more judges for the purpose of revising, reviewing,varying or setting aside a decision of the court. The fact that in the opinionof the Chief Justice the question involved is a matter of general or publicimportance makes no difference.
The Court has inherent powers to correct decisions made per incuriam.A decision will be regarded as given per incuriam if it was in ignorance ofsome inconsistent statute or binding decision – wherefore some part of thedecision or some step in the reasoning on which it is based is found on thataccount to be demonstrably wrong.
74
Sri Lanka Law Reports
[1996] 1 Sri L.R.
The fact that the question involved is a matter of general or publicimportance has never been regarded as a ground for the exercise of theCourts' inherent powers.
Per Amerasinghe, J:
“The inherent powers of a Court are adjuncts to existing jurisdiction toremedy injustice. They cannot be made the source of new jurisdictionsto revise a judgment rendered by Court".
Cases referred to :
Gamage William Singho and Others S.C. LA No. 60/96.
All Ceylon Commercial and Industrial Workers Union v. The CeylonPetroleum Corporation and Others [1995] 2 Sri L.R. 295, 296, 297.
Re Ganeshanathan's Application – S. C. Application No. 20/83S.C. Minutes of 21.07.1983.
Hettiarachchi v. Seneviratne and Others (No. 2) – [1994] 3 Sri L. R. 293,296, 297 – 299, 304 – 305.
Senerath v. Chandraratne, Commissioner of Excise and Others[1995] 1 Sri L.R. 209, 212, 216.
Suren Wickremasinghe and Others v. Cornel Perera S.C.
(SLA) No. 49/96 S. C. Minutes of 21.3.1996.
Wayland v. Transvaal Government 1904 TS 758.
Moosajees Ltd., v. Fernando and Others (1966) 68 N.L.R. 414.
Liyanage and Others v. The Queen (1965) 68 N.L.R. 265, 420.
Ganeshanatham v. Vivienne Goonewardene [1984] 1Sri L. R. 319, 329, 340, 355, 377, 378.
Vivienne Goonewardene v. Hector Perera and Others [1983] 1Sri L.R. 305.
Tuckerv. New Brunswick Trading Company of London 1890 Ch. D. 249.
Palitha v. O.I.C. Police Station, Polonnaruwa and Others[1993] 1 Sri L.R. 161.
Billimoria v. Minister of Lands [1978-80] 1 Sri L.R. 10, 14, 15.
Young v. Bristol Aeroplane Co., [1944] 2 All E. R. 293, 298, 300.
Marambe Kumarihamy v. Perera [1919] VI C.W.R. 325.
Thynne Marchioness of Bath v. Thynne (Marquess of Bath)
[1955] 3 All E. R. 129, 145, 146.
Mapalathan v. Elayavan (1939) 41 N.L.R. 115.
Elo Singho v. Joseph (1948) 49 N.L.R. 312.
The London Street Tramways Company Limited v. The London CountyCouncil [1898] AC 375, 380.
Duchess of Kingston's Case 20 St. Tr. 355, 478, 479.
sc
Jeyaraj Femandopulle V. De Silva and Others
75
Bandon v. Becher3 Cl. & F 479, 510.
Husaam Haj Yihyeh v. The State of Israel: The Jerusalem Post LawReports reported in Asher Felix Landau 1993 p. 234.
Wijesinghe et al v. Uluwita (1933) 34 N.L.R. 362, 364.
Easwaralingam v. Sivagnanasunderam (1962) 64 N.L.R. 396, 398.
Meier v. Meier (1948) p. 89, 95.
Mohamed v. Annamalai Chettiar (1932) 12 CL Rec. 228, 229.
Padma Fernando v. T. S. Fernando (1956) 58 N.L.R. 262.
Lawrie v. Lees (1881) 7 App. Cas. 19, 34.
Re Swire (1895) 30 CH. D. 239, 246.
Paul E. de Costa & Sons v. S. Gunaratne (1967) 71 N.L.R. 214, 215.
Hatton v. Harris (1892) A.C. 547, 560.
Raju v. Jacob (1968) 73 N.L.R. 517.
Kariapperuma and Another v. D. J. Kotelawala (1971) 77 N.L.R. 193.
Valliammai Atchi v. O.L. M. Abdul Majeed 45 N.L.R. 169.
Jonga v. Nanduwa 45 N.L.R. 128.
Menchinahamy v. Muniweera (1950) 52 N.L.R. 409, 414 – 415.
Caldera v. Santiagopillai (1920) 22 N.L.R. 155.
Juan Perera v. Stephen Fernando (1902) 2 Brown Rep. 5.
Thambiraja v. Sinnamma (1935) 36 N.L.R. 442.
Publis v. Eugena Hamy (1948) 50 N.L.R. 346.
Sirivasa Thero v. Sudassi Thero (1960) 63 N.L.R. 31,33,34.
Rodger v. Comptoir D’ Escompte de Paris (1871) LR 3 1/4C 465.
Kadiramanthamby and Another v. Lebbethamby Hadjiar (1971)
75 N.L.R. 228, 231.
Paulusz v. Perera [1933] 34 NLR 433
Loku Banda v. Assen (1897) 2 N.L.R. 31.
Karuppannan v. Commissioner for Registration of Indian and PakistaniResidents (1953) 54 N.L.R. 481.
Velupillai v. The Chairman Urban District Council, Jaffna (1936) 16 CLRec. 75, 76.
The Police Officer of Mawalla v. Galapatta (1915) 1CWR 197.
P. C. Batticaloa 8306, In Revision (1921) 23 N.L.R. 475.
The King v. Baron Silva et al (1926) 4 Times of Ceylon Reports 3.
Ranmenikhamy and Another v. Tissera and Others (1962) 65N.L.R. 214, 215.
Farrell v. Alexander (1976) 1 All ER 129, 145.
Huddersfield Police Authority v. Watson (1947) 2 Ail ER 193, 196.
Alasuppillai v. Yavetpillai (1948) 39 CLW 107.
Morelle Ltd., v. Wakeling (1955) 1 All ER 708,718.
Craig v. Kanssen (1943) 1 All ER 108.
Chief Kofi Forfie v. Barima Kwabena Sheifah Kenyaschene (1958) 1 All ER289 (PC).
76
Sri Lanka Law Reports
[1996] 1 Sri L.R.
Woolfenden v. Woolenden (1947) 2 All ER 653.
Nisha Sudarshi Ganeshi Kumarasena v. Sub-Inspector Sriyantha andOthers SC Application 257/93 – SC Minutes 23.5.1994.
Re a Solicitor [1944] 2 All ER 432, 434.
Rost v. Edwards and Others (1990) 2 All ER 641, 644, 645.
A. G. of Ceylon v. De Livera (1962) 3 All ER 1066, 1069, (1963)
AC 103, 120.
Dissanayake v. Kaleel [1993] 2 Sri LR 135.
Jayatillake v. Kaleel [1994] 1 Sri LR 319.
London Street & Tramways Co., v. London Council (1898) AC 375,380, 381.
Jones v. National Coal Board (1957) 2 QB 55, 64.
Broome v. Cassell & Co., Ltd., & Another!, 1971) 2 All ER 187,198 – 200.
Rookes v. Barnard [1964] 1 All ER 367.
Brown v. Deam and Another (1910) AC 373, 375.
Petition for revision and/or review and/or further consideration by a fullerBench of the use of Hansard in Court Proceedings.
R. K. W. Goonesekera with J.C. Weliamuna for the 1st Respondent-Peti-tioner in S. C. Application No. 66/95.
Faiz Musthapa, P.C. with Dr. J. Wickramaratne, Mahanama de Silva and S.M. Senaratne for the 1st Respondent – Petitioner in S.C. Application No. 67/95.
T. Marapana P.C. with D. Weerasuriya, N. Ladduwahetty, Jayantha Fernando,A Premaratne and S. Cooray for the 1 st – 29th Petitioners-Respondents inS. C. Application No. 67/95.
Upawansa Yapa P.C., Solicitor-General with Chanaka de Silva, S.C. for theAttorney-General.
Cur. adv. vult.
July 09, 1996.
AMERASINGHE, J.
This is a matter relating to a petition by Mr. Jeyaraj Fernandopulle,M.P., dated the 19th of December, 1995, addressed to his Lordship theChief Justice and the other Honourable Judges of the Supreme Court.
sc
jeyaraj Femandopulle V. De Silva and Others
(Amerasinghe, J.)
77
Two applications numbered 66/95 and 67/95 had been filed in thisCourt under Article 126 of the Constitution alleging that certain funda-mental rights of the petitioners in those applications had been violatedby the respondents cited in those applications. Mr. Jeyaraj Femandopulle,M.P., was the 1st Respondent in both those applications. Since he isthe petitioner in the matter before us, I shall hereafter, unless thecontext otherwise requires, refer to him as the 1st Respondent-petitioner.
Argument on the two applications was heard on the 13th and 27th ofSeptember by a Bench of three Judges. Their Lordships took time forconsideration. Judgment was delivered on the 30th of November 1995.Albeit in separate judgments, the three Judges agreed that the petition-ers were entitled to a declaration that their fundamental rights underArticles 12(1), 12 (2) and 14(1) (c) read with 14(1) (g) had been violatedby the 10th, 11 th, 13th and 14th respondents; and to the reliefs grantedby the Court.
However, although two of the Judges were of the view that theviolations had resulted from the first Respondent-Petitioner’s instigationand that he should therefore pay a sum of Rs. 50,000 as costs; Rs.25,000 to the petitioner-society, the 63rd petitioner, in S.C. ApplicationNo. 66/95 and Rs. 25,000 to the petitioner-society, the 30th Petitioner,in S. C. Application No. 67/95, the third Judge was of the view that thefirst Respondent-Petitioner had not been proved to have acted inviolation of any of the fundamental rights of the petitioners, andconsequently that he was not liable to pay any sum by way of costs.
The disagreement between the majority and minority was based on –
the admissibility of a speech in Parliament made by the 1stRespondent-Petitioner and reported in Hansard for the purpose ofcontradicting the affidavit of the 1 st Respondent-Petitioner, havingregard to the privileges enjoyed by him as a Member of Parliament;
the evidentiary value to be attached to the matters referred to in thespeech, having regard to the context in which it was made.
On the 19th of December, 1995, the 1st Respondent-Petitionersubmitted a petition supported by an affidavit to this Court. After setting
78
Sri Lanka Law Reports
[1996] 1 SriLR.
out the views expressed by the Judges on these matters, he stated inparagraph 16 of his petition that “the question of the use of Hansard toassess the veracity of the affidavit of the 1 st Respondent (petitioner) isa matter of public or general importance and having regard to theexpression of dissent by (one of the Judges), the issue merits furtherconsideration and/or review and/or revision by a fuller Bench of YourLordships’Court”.
In his petition, the 1st Respondent-Petitioner prayed that this Courtbe pleased,
“(a) to revise and/or review and/orfurther considerthe aforesaid issueof the use of Hansard, by referring the same for consideration by a fullerBench, and
to grant such other and further relief as Your Lordships’ Court shallseem meet.”
When a petition addressed to his Lordship the Chief Justice and theother Judges of the Supreme Court relating to a concluded matter isreceived, the Registrar of the Court submits it with the record of the caseto his Lordship the Chief Justice for directions. In the matter before us,since his Lordship the Chief Justice was out of the country, the Registrarsubmitted the documents to his Lordship the Acting Chief Justice on the19th of December, 1995. On the 22nd of December, 1995, his Lordshipthe Acting Chief Justice stated as follows:
The 1st Respondent-(Petitioner) in SC (FR) Applications Nos. 66/95 and 67/95 has made application in terms of Article 132 (3) of theConstitution by way of petition and affidavit, moving that a fullerbench of the Supreme Court be constituted to consider a questionwhich he says is a matter of general and public importance thatarose in the course of hearings before a Bench of 3 Judges in theaforesaid Fundamental Rights applications; to wit: that the use ofthe contents of Hansard – P16 – containing speeches, debates andproceedings in Parliament by the majority of Judges of the saidCourt, to assess the veracity or reliability or acceptability ofaffidavits filed by him as 1 st Respondent to those applications, andthe decision of the said majority as to the legal relevance of
sc
Jeyaraj Fernandopulle V. De Silva and Others
(Amerasinghe, J.)
79
speeches, debates and proceedings in Parliament as contained inHansard amounts to a violation of the freedom of speech, debatesand proceedings in Parliament in terms of the Parliament (Powersand Privileges) Act recognized and kept alive by Article 67 of theConstitution.
A perusal of the judgments of theCourt that heard the said applica-tions shows a strong division of opinion on this question of the useof speeches, debates and proceedings in Parliament as reflected inHansard. The majority of judges of that Court used extracts fromHansard to discredit the affidavits of the 1 st Respondent-Petitionerfiled in the said applications and declare the contents of theaffidavits as unreliable. The minority judgment sharply disapprovesof the use to which extracts from Hansard have been put by the saidmajority of judges and has concluded that the privilege of freedomof speech and debate associated with proceedings in Parliament -quote – “being the cornerstone of a democratic Parliamentarysystem” – has been gravely prejudiced and has ruled out its use toi mpeach the creditworthiness of the 1 st Respondent-Petitioner (sic)in his responses by way of affidavit to the complaint of infringementof the Petitioners-Respondents, fundamental rights.
I am of opinion that the question whether speeches, debates andproceedings in Parliament and reflected in Hansard can be used asbeing legally relevant evidence to compare and contrast and confirmor reject or discredit as inconsistent or unreliable affidavits ofmembers of Parliament or of other persons filed in Court proceed-ings or before otherTribunals referring to events and matters outsideParliament is a question of general and public importance, allprivileges of Parliament being part of the general and public law ofthe land which ought to be considered and decided by a fuller Benchcomprising five (5) judges of the Supreme Court. I
I am further of the opinion that the nomination of any of theHonourable Judges who comprised the Court of three (3) Judges toa fuller Bench is not appropriate in the circumstances. One of theHon. Judges that comprised the majority dealt with the point raisedin this petition only as a response to the view of the other whoexpressed the minority dissenting view, while the third Hon. Judge
BO
Sri Lanka Law Reports
[1996] 1 Sri L.R.
merely agreed with the view that now forms the majority viewpointthat has given rise to the present petition. The Hon. Judge whoexpressed the minority viewpoint thereupon responded to themajority view point in his judgment.
I accordingly nominate the following Hon. Judges to constitute aBench of Five (5) Judges of the Supreme Court, namely,
Hon. G. P. S. de Silva
Hon. G. R. T. D. Bandaranayake
Hon. P. Ramanathan
Hon. S. W. B. Wadugodapitiya
Hon. S. N. Silva
to hear, consider and determine the question whether speeches,debates and proceedings in Parliament as reflected in Hansard canbe used as being legally relevant evidence to compare and contrastand confirm or reject or discredit as inconsistent or unreliable,affidavits of members of Parliament or of other persons filed in Courtproceedings or before other Tribunals referring to events or mattersoutside Parliament, or that they cannot be so used for otherpurposes, for to do so could strike at or inhibit the freedom ofspeech, debate and proceedings in Parliament there by constitutinga breach of the privileges of Parliament as recognized by law; andto make consequential orders thereto. Consequently the followingfindings and orders made and reliefs awarded in each case andcontained in the judgment of Hon. Wijetunge, J. at pp. 36 and 37noted as (i) and (iv) thereof with which Hon. Fernando, J. has agreed,consequent to the use of Hansard, would lie in suspense until theFuller Bench of Five (5) judges has come to its decision, as thoseorders and reliefs affect the 1st Respondent-Petitioner in eachcase; to wit:
the finding that the fundamental rights of each individual peti-tioner-Respondent in each case,enshrined in Articles 12 (1), 12 (2),14 (1) (g) read with 14 (1) (c) of the Constitution have been infringedby the 1 st Respondent-Petitioner;
the finding that the said violations resulted from the 1 st Respond-ent-Petitioner’s instigation; and the order for costs in the stated
sc
Jeyaraj Femandopulle V. De Silva and Others
(Amerasinghe, J.)
81
sum of money to be paid in each case by the 1st Respondent-Petitioner.
Registrar to notify the parties in each case of the nomination of afuller bench of five Judges of the Supreme Court to consider anddecide the above question of general and public importance markedX and V and to inform them of the date of hearing.
Registrar to inform the Judges of the Fuller Bench of said nomina-tion.
Hon. G. R. T. D. Bandaranayake(Acting) Chief Justice22nd December 1995PS.
REGISTRAR
Copies of documents placed before Bench of Three (3) Judges andcopies of the petition and affidavit of the present 1st RespondentPetitioner to be made available to the judges of the Fuller Bench.
TDB
22/12/95
In response to the directions of the Acting Chief Justice, theRegistrar of the Supreme Court on the 29th of February 1996,notified the parties in S. C. Applications Nos. 66/95 and 67/95 asfollows:
WHEREAS the 1 st Respondent petitioner abovenamed has filedan application that this matter be referred to a fuller Bench torevise and/or review and/or further consider, the issue of the useof Hansard, take notice that this matter has been listed forhearing on the 10th, 11 th & 12th of June 1996 before a DivisionalBench of the Supreme Court to consider and decide the followingquestions:
Whether speeches, debates and proceedings in Parliament
82
Sri Lanka Law Reports
[1996] 1 Sri L.R.
and reflected in Hansard can be used as being legally relevantevidence to compare and contrast and confirm or reject ordiscredit as inconsistent or unreliable, affidavits of Members ofParliament or of other persons filed in Court proceedings or beforeother Tribunals referring to events and matters outside Parlia-ment is a question of general and public importance, ail privilegesof Parliament being part of the general and public law of the landwhich ought to be considered and decided by a Fuller Benchcomprising 5 (five) Judges of the Supreme Court.
Whether speeches, debates and proceedings in Parliamentas reflected in Hansard can be used as being legally relevantevidence to compare and contrast and confirm or reject ordiscredit as inconsistent or unreliable, affidavits of Members ofParliament or of other persons filed in Court proceedings or beforeotherTribunals referring to events or matters outside Parliament,or that they cannot be so used for the above purposes, for to doso would strike at or inhibit the freedom of speech, debate andproceedings in Parliament, thereby constituting a breach of theprivileges of Parliament as recognized by Law.
And to make consequential orders thereto.
Copies of petition and affidavit filed by the 1st Respondent-petitioner are annexed.
Registrar of the Supreme Court
The Bench nominated by the Acting Chief Justice could not beconstituted, for although his Lordship the Hon. Mr. Justice G. R. T. D.Bandaranayake, when he was Acting Chief Justice, had nominatedhimself as one of the Bench of five Judges to hear the matter, hisLordship had later indicated to the Honourable Chief Justice that he didnot wish to participate in the hearing and determination of the matter.The Hon. Mr. Justice S. N. Silva who had been nominated by the ActingChief Justice, had, since his nomination, relinquished office to assumeduties as Attorney-General. The parties had, as we have seen, beennoticed to appear. The matter of the petition was, therefore, listed to beconsidered by a Bench constituted by His Lordship the Chief Justice.
sc
Jeyaraj Fernandopulle V. De Silva and Others
(Amerasinghe, J.)
83
CURSUS CURIAE
Usually, in the case of a petition, motion, application or letteraddressed either to the Chief Justice or to the Chief Justice and the otherHonourable Judges of the Supreme Court, the Registrar submits it to theChief Justice for directions; if it pertains to an appeal, proceeding ormatter pending before or decided by a Bench of the Court, the ChiefJustice refers it to the Judges who heard the case to which the petition,motion, application or letter relates. If upon consideration in Chambersof the documents and affidavits submitted, an oral hearing is, in theopinion of the Judges, not warranted, the Judges would refuse toentertain the matter. E.g. see Gamage William Singho and Others.(1)The Judges concerned may decide to hear the party in support of hispetition, motion or application. If they so decide after the hearing, theymay reject it, and notice will not be issued on the other party and thematter will be at an end: All Ceylon Commercial and Industrial WorkersUnion v The Ceylon Petroleum Corporation and Others,™ If the Judgesso decide, the parties may be noticed and after hearing them, theJudges may request the Chief Justice to constitute a Bench of five ormore Judges to hear the matter: ReGaneshanatham’s Application,(3) orthe Judges to whom the matter had been referred to in the first place,may hear the matter and either grant the relief prayed for (e.g. seeHettiarachchi v Seneviratne,w; or refuse to grant relief: (e.g. seeSenerathvChandraratne, Commissioner of Excise and Others,™ SurenWickramasinghe and Others v Cornel Perera.™ Where by an oversightthe matter is listed before another Bench, that Bench will direct that thematter be listed before a bench composed of the Judges who made theorder: Senerath vChandraratne.™
Cursus curiae est lex curiae. The practice of the court is the law ofthe Court. Wessels, J in Wayland v Transvaal Government,™ held thatit is no argument to say that there was no actual contested case in whichthis procedure has been laid down; for a course of procedure may beadopted and hold good even though there has been no decision on thepoint. However, in Sri Lanka the practice of the Court has beenrecognized in judgments of the Court.
The practice of the Court in these matters is in accordance with theconventions of judicial comity. In Moosajees Ltd. v Fernando and
84
Sri Lanka Law Reports
[1996] 1 Sri L.R.
Others,181 the applications for writs of certiorari had been referred undersection 51 of the Courts Ordinance for hearing before five Judges inregard mainly to the question whether the tribunal concerned in eachapplication was a “judicial officer”. After expressing their views on thequestion, and assuming that the tribunals had jurisdiction, it wasordered that the applications be set down for further hearing before aBench of two Judges upon other matters raised by the respectivepetitioners. As the two Judges before whom they were listed for furtherhearing were unable to agree in regard to the order they should make,the applications came to be listed before another Court of five Judges.AftertheearlierCourt of five Judges had delivered its judgment, the PrivyCouncil decidedL/yanage and Others v The Queen,(9). In the light of thatdecision, which recognized a separation of powers as between theLegislature, the Executive and the Judiciary, the tribunals concernedhad no jurisdiction to entertain the references. It was held by themajority (4-1) that, inasmuch as the earlier Court of five Judges had notentered a decree finally disposing of the applications, it was open to thelater Court of five Judges to re-examine, in the light of the decision of thePrivy Council, the supreme and ultimate appellate authority at that time,the question whether the tribunals had jurisdiction. H. N. G. Fernando,oPJ at p.420 said:
In the interests of judicial comity, it would certainly have beenpreferable if the same five Judges who participated in the formerhearings of these applications had also constituted the presentBench. But even if my brother Sri Skanda Rajah had been a memberof this Bench, his presence would have made no difference to theultimate decision. Even on the assumption that he would haveadhered to his former opinion, the majority decision of the Bench(The Chief Justice, my brother Fernando and myself) would be thatthe tribunals in these cases had no jurisdiction and that the reliefsought by the petitioners should be granted. That being so, theabsence from this Bench of one member of the former Benchbecomes a technical consideration only, and I doubt whether ourrevocation of the former orders will constitute a precedent inconsist-ent with the conventions of judicial comity. The circumstances ofthe revocation are probably unique, in that the error of a formerjudgment has been manifested in a decision of the Privy Councildelivered before the former judgment had become effective by thepassing of a decree determining the rights and obligations of theparties.
sc
Jeyaraj Femandopulle V. De Silva and Others
(Amerasinghe, J.)
85
Ganeshanatham v Vivienne Goonewardene,l'0) was no exception.Ratwatte, Colin Thome and Soza, JJ had heard and decided VivienneGoonewardenev Hector Perera and Others,(11), in which it had been heldthat V. Ganeshanatham had been responsible for the arrest of thepetitioner in violation of her fundamental rights. The decision of the Courti n Vivienne Goonewardene v Hector Perera was based upon the affidavitof Ganeshanatham filed by the 2nd Respondent, the Inspector-Generalof Police, in which Ganeshanatham had stated that he had arrested Mrs.Goonewardene. Ganeshanatham filed an application complaining thatthe finding against him was made per incuriam. Ganeshanatham’sapplication was listed before a Bench comprising the same Judges whohad heard Vivienne Goonewardene’scase. After hearing counsel, on the21 st of July 1983, the Court decided as follows:
On a consideration of the papers filed before us and the argumentsadduced by counsel we are of the view that the following questionsarise for determination preliminarily, namely:
Has the Supreme Court jurisdiction to review or revise in anymanner its own judgment in S.C. Application No. 20/83?
If so,
on what grounds or under what circumstances can suchjurisdiction be exercised?
what procedure should be followed to obtain relief?
In view of the importance of these questions, we think that a fullerBench of the Supreme Court than at present constituted, shouldfinally decide them. Acting under Article 132 (3) (ii) of the Constitu-tion, we therefore request His Lordship the Chief Justice to put thesequestions up for early decision before a fuller Bench of the SupremeCourt by virtue of the powers vested in him by Article 132 (3) of theConstitution.
The Chief Justice acceded to the request of the three Judges. TheHon. Mr. Justice Colin Thome, who had been one of the Judges who haddecided the earlier matter was one of the Judges of the Bench of seven
86
Sri Lanka Law Reports
[1996] 1 Sri L.R.
Judges nominated by the Chief Justice. With great respect, I find itdifficult to understand why his Lordship the Acting Chief Justice actedin disregard of an inveterate practice of the Court that this Court hasregarded as having hardened into a rule. I respectfully regret my inabilityto accept his Lordship’s explanation in his directions of 22nd December1995, namely, that the Bench was divided in its opinion, for excludingthe Honourable Judges who heard the case from a consideration of thepetition before us. I respectfully find myself in disagreement with theview expressed by his Lordship the Acting Chief Justice that he feltconstrained to refer the matter to a “fuller Bench” because “One of theHonourable Judges that comprised the majority dealt with the pointraised in this petition only as a response to the view of the other whoexpressed the minority dissenting view, while the third Hon. Judgemerely agreed with the view that now forms the majority viewpoint thathas given rise to the present petition. The Hon. Judge who expressedthe minority viewpoint thereupon responded to the majority viewpoint inhis judgment.”
The emphasis is mine.
Not only may the Judges who were supposed to be in error be thepersons to whom the matter should be addressed, they ought to be thepersons to whom the matter should be referred to. (Cf. Tucker v NewBrunswick Trading Company of London.^) Apart from the need toobserve the conventions of judicial comity, there is the further consid-eration that, unless the practice of the Court in this regard is adheredto, the Court’s position as the final Court will be placed in jeopardy.
When the Supreme Court has decided a matter, the matter is at anend, and there is no occasion for other Judges to be called upon toreview or revise a matter. However, as we shall see, the Court hasinherent power in certain circumstances to revise an order made by it.On the basis that one division of the Cou rt may do what another may do,it would be competent for oni. Jmsion, in the exercise of that power, toset aside an order of another division of the Court. This must be so, forthere may be circumstances in which it may not be possible for thereview to be undertaken by the same Bench: For instance, one or moreof the Judges who decided the first matter may not be available, due toabsence abroad, or retirement or some such reason. E.g. see Palitha
sc
Jeyaraj Fernandopulle V. De Silva and Others
(Amerasinghe, J.)
87
O.I.C. Police Station Polonnaruwa and Others,1'3' Justice cannot bedenied because one or more of the Judges are not available. However,where they are available, such matters should be considered by thesame Bench of Judges. In Billimoria v Minister of Lands,1'*' Samarakoon,CJ said:
The Attorney-General contended that it was competent for oneCourt to set aside an order made per incuriam by another Bench ofthe same Court. Generally this would be so. But it has been thepractice of our Courts for parties or their Counsel to bring the errorto the notice of the Judge or Judges who made the order so that heor they can correct the order. Indeed this has always been a matterof courtesy between Bench and Bar and I regret to note that it hasnot been done in this instance nor has the second Court thought itfit to direct Counsel to make the application to the Court that madethe stay order.
We have advanced beyond graceful politeness and consideratenessin intercourse as a justification of the practice: The Supreme Court inSuren Wickramasinghe & Others v Cornel Perera & Others,™ held that“law, practice and tradition” required that matters pertaining to a decidedcase should be referred to the Cou rt composed of the Judges who hadheard the case. The practice of the Court in this regard is the law of theCourt-lexcuriae-and it must be given effect to in the same way in whicha rule of Court must be given effect to. (Cf. the observations of LordGreene MR. in Young v Bristol Aeroplane Coy5' where his Lordship saidthat “The Rules of the Supreme Court have statutory force and the courtis bound to give effect to them as to a statute.”)
In the matter before us, following the usual practice of referring amatter for reconsideration to the Judges who decided it was morejustified than ever, because the complaint revolves around what tran-spired in Court and afterwards when the Judges were considering thematter. The Judges who decided the matter seemed to be the obviouschoice. In fact, thinking aloud, I did suggest during the argument thatthis might perhaps yet be done. Upon further consideration, however,since the parties are before us on notice, and there is sufficient materialin the Judgments in S. C. Applications 66/95 and 67/95 to decide thematter, I am of the view that we should deal with the matter; but the
8B
Sri Lanka Law Reports
[1996] 1 Sri L.R.
course of action we take in the extraordinary circumstances of this caseshould not be regarded as a precedent for departing from the ruleestablished by practice. An exception confirms the rule.
STATUTORY JURISDICTION
When the matter of the petition of the 1st Respondent-Petitioner wastaken up for consideration by this Court, Mr. Marapana submitted thatthe Court had no jurisdiction conferred on it by the Constitution or by anyother law to accede to the prayer of the 1 st Respondent-petitioner torevise or review the decision of the Court..
An order which has not attained finality according to the law orpractice obtaining in a Court can be revoked or recalled by the Judge orJudges who made the order, acting with discretion, exercised judiciallyand not capriciously. (See Moosajees Ltd. v. P.O. Fernando andOthers.<8)) However, as a general rule, no court has power to rehear,review, alter or vary any judgment or order made by it after it has beenentered (cf. Marambe Kumarihamy v. Pereraf 6)) either in an applicationmade in the original action or matter or in a fresh action brought to reviewthe judgment or order. If it is suggested that a Court has come to anerroneous decision either in regard to fact or law, then amendment of thejudgment or order cannot be sought, but recourse must be had to anappeal to the extent to which the appeal is available. (See per Morris,LJin Thynne (Marchioness of Bath) v Thynne (Marquess of Bath).(17) ACourt has no power to amend or set aside its judgment or order whereit has come to light or if it transpires that the judgment or order has beenobtained by fraud orfalse evidence. In such cases relief must be soughtby way of appeal or where appropriate, by separate action, to set asidethe judgment ororder. (Halsbury, paragraph 556). The object of the ruleis to bring litigation to finality. The rule is subject to certain exceptions(See Halsbury, Vol. 26 paragraph 556) which I shall deal with later, buttaking one thing at a time, let me deal with the question of statutoryjurisdiction.
In Ganeshanatham v. Vivienne Goonewardene and Three Others,(supra), Ganeshanatham sought relief from theSupreme Court in theexercise of the revisionary and inherent powers of the Court. Hiscomplaint was that another Bench of the Court had, to his detriment,acted per incuriam for the several reasons set out in his application.
sc
Jeyaraj Fernandopulle V. De Silva and Others
(Amerasinghe, J.)
89
Samarakoon, CJ (at pp. 327 – 328) referred to the provisions of theConstitution conferring jurisdiction on the Supreme Court and statedthat none of those provisions gave the court a jurisdiction to revise itsown decisions. Nor had the Legislature, the Chief Justice furtherobserved, acting in terms of Article 118 (g) conferred such a jurisdictionby law. His Lordship held "that this Supreme Court has no jurisdictionto act in revision in cases decided by itself.” Justices Sharvananda,Wimalaratne, Colin Thome, and Wanasundera agreed with the ChiefJustice. Ranasinghe, J. and Rodrigo, J. dissented. However, thedissenting Judges granted the relief prayed for, not in the exercise of theCourt’s ordinary, statutory jurisdiction but in the exercise of the Court’sextraordinary, inherent jurisdiction.
In general, a decision of the Court is final: it is not subject to anappeal, revision, review, reargument, or reconsideration: Hettiarachchiv Seneviratne and Others,w Suren Wickramasinghe and Others vCornel Perera and Others,(S) Cf. Mapalathan v. Elayavan,m (17) cf. EloSingho v Josep.m
The Supreme Court is a creature of statute and its powers arestatutory. The Court has no statutory jurisdiction conferred by theConstitution or by any other law to re-hear, review, alter or vary itsdecision. The decisions of the Supreme Court are final. (E. g. seeSenerathv. Chandraratne, Commissioner of Excise and Others,® AllCeylon Commercial & Industrial Workers Union v The Ceylon PetroleumCorporation and Others,®. In Ganeshanatham,(supra), Samarakoon,CJ. (at p. 328) drew attention to the fact that the use of the phrase “shallfinally dispose of” in Article 126 (5), in dealing with the exercise of thecourt’s powers in relation to fundamental rights and language rightspetitions, and the phrase “final and conclusive” in Article 127 in dealingwith the Court’s appellate jurisdiction, signified that once a matter wasdecided by the Supreme Court, the thing is over. There is nothing morethat can be done. As far as the matters which are the subject of thedecision are concerned, it is all over. There is an end to such litigation- as needs must be with all litigation. Public policy requires that theremust be an end to litigation, for the sake of certainty and the mainte-nance of law and order, in the pacific settlement of disputes between thecitizen and the State or between other persons; for the sake ofpreventing the vexation of persons by those who can afford to indulge in
90
Sri Lanka Law Reports
[1996] 1 Sri L.R.
litigation; andforthe conservation of the resources of the State. Interestrei publicae ut sit finis litium.
Some people may regard a particular case as being unusual orextraordinary or of special significance for one reason or another.However, when the decision is that of the “final” Court, as is everydecision of the Supreme Court, due consideration should be given tothat fact. The Earl of Halsbury, LC, (Lords MacNaughten, Morris andJames of Hereford concurring) in The London Street Tramways Com-pany Limited v The London County Council,m observed as follows withregard to decisions of the final Court in the U.K.:
My Lords, it is totally impossible, as it appears to me, to disregardthe whole current of authority upon this subject, and to suppose thatwhat some people call an “extraordinary case” an “unusual case”,a case somewhat different from the common, in the opinion of eachlitigant in turn, is sufficient to justify the rehearing and rearguingbefore the final Court of Appeal of a question which has been alreadydecided. Of course I do not deny that cases of individual hardshipmay arise, and there may be a current of opinion that such and sucha judgment was erroneous; but what is that occasional interferencewith what is perhaps abstract justice as compared with the incon-venience – the disastrous inconvenience – of having each questionsubject to being reargued and the dealings of mankind rendereddoubtful by reason of different decisions, so that in truth and in factthere would be no real final Court of Apeal? My Lords, “interest reipublicae” that there should be “ finis litium” at some time, and therecould be no “ finis litiunf if it were possible to suggest in each casethat it might be reargued because it is “not an ordinary case,”whatever that may mean. Under these circumstances I am ofopinion that we ought not to allow this question to be reargued.
WHAT WAS THE HON. ACTING CHIEF JUSTICE ATTEMPTING TOACHIEVE?
The Hon. Acting Chief Justice, in his Lordship’directions of the 22ndof December, 1995 explained that he referred the matter to a Bench offive Judges because there was “a strong division of opinion”, andbecause the “minority judgment sharply disapproves of the use to which
sc
Jeyaraj Femandopulle V. De Silva and Others
(Amerasinghe, J.)
91
extracts from Hansard have been put by the said majority..The Hon.Acting Chief Justice states that the question on which the Judges weredivided was a matter of “general and public importance”. What, may Irespectfully inquire, might his Lordship’s position have been had therebeen unanimity in regard to either of the views taken? Would he havethen deemed it appropriate to refer the matter to a “fuller Bench”because it was still a matter of general and public importance?
Mr. Marapana conceded that the matter of parliamentary privilegewas important, but inquired, “So, what?”. The public or general impor-tance of a matter does not give the Chief Justice the authority toconstitute an appellate division of the Supreme Court to review andrevise its own decisions. Indeed, if “general or public importance” is acompelling reason for referring a matter to a Bench of five or moreJudges, then in every case that the Supreme Court grants leave underthe Proviso to Article 128 (2) (which requires that the Supreme Courtshall grant leave to appeal in every matter or proceeding in which it issatisfied that the question to be decided is of public or generalimportance), the Chief Justice on the application of a party would beobliged to refer the matterto a Bench of five or more Judges, unless heis prepared to say that, although the Court had held it to be otherwise,the question was not one of general and public importance. Ought theChief Justice to come to such a conclusion after the Supreme Court hasdecided otherwise? From where is such a power derived by the ChiefJustice? Each Bench of the Supreme Court constituted according tolaw, is the Supreme Court and its decision on a matter is final. The ChiefJustice is the head of the Judiciary and as such he has certain uniquepowers and privileges; but he has no superior powers v/s-a-wsthe otherJudges of the Court in the matter of adjudication. He is not empoweredto overrule or even to suspend the decisions of the Court. Nor can heconfer jurisdictions on Benches nominated by him which the law has notgiven the Court. Article 132 (3) does not confer an appellate orconsultative jurisdiction on a Bench constituted by the Chief Justice.
What is it that the Acting Chief Justice referred to a Bench of fiveJudges purporting to act under the provisions of Article 132 (3) ? It is notan “appeal”, for it is not sought to obtain the assistance of the Court tocorrect any error in fact or in law which has been committed by the Courtof Appeal or any Court of First Instance, tribunal or other institution.
92
Sri Lanka Law Reports
[1996] 1 Sri L.R.
(Article 127). As we have seen, the Supreme Court is the highest andfinal Superior Court of record (Article 118) and, therefore there can beno appeals from its decisions. Indeed, the 1st Respondent-Petitionerdoes not in his petition state that the decision of the court was incorrect.His position, on a plain reading of the petition, is that “the question ofthe use of Hansard to assess the veraciy of the affidavit of the 1stRespondent is a matter of public or general importance and havingregard to the expression of the dissent by (one of the Bench of threejudges), the issue merits further consideration and/or review and/orrevision by a fuller Bench of Your Lordships Court.” In his prayer, the 1 stRespondent-petitioner does not clearly and directly request the Court toset aside its order, but prays instead in an ambiguous manner that theCourt be pleased “to revise and/or review and/or further consider theaforesaid issue of the use of Hansard, by referring the same forconsideration by a fuller Bench”. “Revision”, “review” and “further consid-eration” are quite distinct functions. Of course, the usual general prayerwas added: “to grant such other and further relief as to Your Lordship”sCourt shall seem meet.”
The Acting Chief Justice in his directions of the 22nd of December1995 nominated a Bench of five Judges,
to hear, consider and determine the question whether speeches,debates and proceedings in Parliament as reflected in Hansardcan be used as being legally relevant evidence to compare andcontrast and confirm or reject or discredit as inconsistent orunreliable, affidavits of members of Parliament or of otherpersons filed in Court proceedings or before other Tribunalsreferring to events or matters outside Parliament, or that theycannot be so used for other purposes, for to do so could strikeat or inhibit the freedom of speech, debate and proceedings inParliament thereby constituting a breach of the privileges ofParliament as recognized by law; and to make consequentialorders thereto….
What, I might respectfully inquire, were the “consequential orders"that were contemplated upon a determination of the Court with regardto the complex matters on which the Acting Chief Justice sought theopinion of the Bench of Judges His Lordship has constituted? How doesall this relate to what the 1 st Respondent-petitioner actually said in his
sc
Jeyaraj Femandopulle V. De Silva and Others
(Amerasinghe, J.)
93
petition? Was his Lordship primarily seeking an opinion of a “fullerBench” on the questions formulated by him?
Most certainly, if it is empowered to do so, the Supreme Court mayprovide its opinion, as distinguished from a judgment, on any matterupon which it is empowered by the law to render. The Constitutionprovides forthose matters. E.g. see Articles 120,121,122,123,125 and129.
Article 129 (1) of the Constitution provides as follows:
If at any time it appears to the President of the Repubic that aquestion of law or fact has arisen or is likely to arise which is ofsuch a nature and of such public importance that it is expedientto obtain the opinion of the Supreme Court upon it, he may referthat question to that Court for consideration and the Court may,after such hearing as it thinks fit, within the period specified in suchreference or within such time as may be extended by the Presi-dent, report to the President its opinion thereon.
The Chief Justice is not empowered by the Constitution to call uponthe Supreme Court to express its opinion on a matter of publicimportance; nor has the Court the jurisdiction to entertain such arequest.
Apart from the exceptional instances in which it has been statutorilyvested with jurisdiction to express opinions, the business of the Courtis adjudication. A “question” or “issue” of general or public importancein the abstract cannot be the subject of a judgment of this Court. Apetition for the consideration of a matter merely on the ground of itsimportance in general should be rejected by this Court, for it is not amatter susceptible to adjudication. A judgment “is a judicial determina-tion of a cause agitated between real parties; upon which a real interesthas been settled.” Otherwise, “there is no judge; but a person investedwith the ensigns of a judicial office is misemployed in listening to afictitious cause proposed to him; there is no party litigating, there is noparty defendant, no real interest brought into question.” (per Solicitor-General Wedderburn during the argument in VneDuchess of Kingston’sCase,(21) and adopted by Lord Brougham in Bandon v BecherSi2)
94
Sri Lanka Law Reports
[1996] 1 Sri L.R.
There could be no “ finis litiunf if it were possible to suggest in eachcase in which leave to appeal has been granted under Article 128(2) orin a case referred by the Chief Justice under Article 132 (3) to a Benchof five or more Judges, that it might be reargued becuse it was concernedwith a matter of public or general importance: The unsuccessful partyeach time would have a right to have his matter considered by a anotherBench of five or more Judges. Notwithstanding the declaration in theConstitution that the Supreme Court is the final court of appeal, in effectwe would have no final Court of Appeal if the decision of one division ofthe Court was subject to review or revision or rehearing or furtherconsideration in any manner whatsoever by another division of theCourt. At the heart of the matter before us seems to be a misunderstand-ing of what is a decision of the Supreme Court.
WHAT IS A DECISION OF THE SUPREME COURT?
There can be no appeal to a higher court or institution from a decisionof the Supreme Court, for Article 118 of the Constitution declares theSupreme Court to be the highest and final Superior Court of Record.TheSupreme Court consists of the Chief Justice and of not less than six andnot more than ten other Judges. (Article 119). The jurisdiction of theSupreme Court may be exercised in different matters at the same timeby the several judges of that Court sitting apart, provided that itsjurisdiction shall, subject to the provisions of the Constitution, beordinarily exercised at all times by not less than three Judges of theCourt sitting together as the Supreme Court. (Article 132 (2)). In thematter of considering whether leave to proceed should be granted whena person alleges that his fundamental rights or language rights havebeen violated, the jurisdiction of the Court may be exercised by a Benchof not less than two judges. (Article 126 (2)). In the exercise of itsconsultative jurisdiction, the opinion, determination and response of theCourt shall be expressed after consideration by at least five Judges ofthe Supreme Court, of whom, unless he otherwise directs, the ChiefJustice shall be one. (Article 129 (1)) The hearing and determination ofa proceeding relating to the election of the President of the Republicshall be by at least five Judges of the Supreme Court of whom, unlesshe otherwise directs, the Chief Justice shall be one. (Article 130).
When any division of the Court constituted in terms of the Constitu-tion sits together, it does so “as the Supreme Court”. (Article 132 (2)).
sc
Jeyaraj Fernandopulle V. De Silva and Others
(Amerasinghe, J.)
95
It is one Court though it usually sits in several divisions. Each divisionhas co-ordinate jurisdiction. What is conveniently, but inaccuratelycalled a "fuller Bench” has no greater powers or jurisdiction than anydivision of the Court. If a Bench of all the Judges is a Bench of the FullCourt – there is no such description as the “fullest Court” – what does a“fuller Bench” mean? The judgment of the Supreme Court shall, when itis not an unanimous decision, be the decision of the majority (Article132 (4)), regardless of the fact that it may, in the opinion of any personwhomsoever, be wrong. Nor is it open to anyone to devalue a decisionof the Court on the assumption that one or more judges “merely agree”with the opinion of another Judge. It would, for more reasons than one,be inconvenient to a regrettable extent if a Judge, who after dueconsideration of a draft submitted to him feels that he cannot usefullyadd anything to a judgment of a brother Judge, may not merely say thathe agrees with his brother, without running the risk of being taunteddirectly or by innuendo with mindless, mechanical behaviour.
The Constitution does not provide for an appeal from a decision of onedivision of the Supreme Court to another division of the Court. Numbersare of no consequence, except that a decision of a Bench of five or moreJudges carries greater weight. What can be done by a Bench of five ormore Judges can equally well be done by a duly constituted Bench ofa smaller number of Judges. The Court acts as the Supreme Court. Andthe corollary of that is that what cannot be done by the smallest numberof Judges acting as the Supreme Court in terms of the law, cannot bedone by a Bench of five or more Judges. (Cf. per Lord Greene, MR inYoung v Bristol Aeroplane Co., {supra) at p. 298).
I n Hettiarachchi, {supra), at p. 296, where the Court had refused leaveto proceed in the matter of an application for the alleged infringement ofthe petitioner’s fundamental rights, the petitioner applied to the Court fora “fuller Bench” to determine the matter of his appeal for a revision of thedecision of the Court. The Court observed as follows:
The petitioner’s motion of 30.5.94 was filed under a misapprehen-sion that other Judges of the Court or more Judges, or even all theJudges could constitute an appellate tribunal in respect of thatdecision of the Supreme Court which refused him leave to proceedunder Article 126 (2). While other Judges of the Supreme Court
96
Sri Lanka Law Reports
[1996] 1 Sri L.R.
might regard that decision as erroneous, and refuse to follow itwhen deciding other matters, it was final as far as that case wasconcerned.
One division of the court may, as stated in Hettiarachchi, (supra)refuse to follow a decision of another division; however, it would be onlyin the most exceptional circumstances that the court would depart fromone of its own precedents. An eminent scholar-judge, the late JusticeSilberg of Israel, had once commented that if a court departed from itsown precedents frequently, it would no longer be a “court of justice”, butthat it would be a "court of judges”. Justice Silberg’s observations werequoted with approval in Husaam Haj Yihyeh v The State of Israel;(23) Inthat case, the issue was whether a Bench of three judges of theSupreme Court of Israel could dissent from a decision of a Bench of fiveJudges. It was held that while it was possible, it was undesirable, unlessthe precedent was incorrect. If it was clearly incorrect, it should not befollowed. As Chief Justice Smoira had said: “Between truth and stability,truth must prevail”. On the other hand, if both points of view werepossible, then as Justice Barak had said, “Between truth and truth,stability must prevail”.
I n Suren Wickramasinghe, (supra), an application to review an ordergranting special leave to appeal had been made and a “fuller Bench” hadbeen requested. The Court said:
Apart from instances where the law expressly provides otherwise,a bench of more than three Judges can only be constituted underArticle 132 (3) of the Constitution, and the power to do so is vestedin the Chief Justice alone. Article 132 shows, ex facie, that thatpower can only be exercised in respect of a pending appeal,proceeding or matter – but not in respect of a concluded matter.SC (SLA) Application No. 49/96 is a concluded matter. Further, interms of Article 132 (2) a judgment or order delivered by a benchof three Judges is the judgment or order of theSupreme Court, andnot of “some fragmented part of the Court”; it is final (cf. Article 127(1)), and is not subject to appeal to another bench of the Court,even if it were to consist of five, or seven, or nine, or even all theJudges: Hettiarachchi vSeneviratne (No. 2), (supra), where it wasalso pointed out that,
sc
Jeyaraj Fernandopulle V. De Silva and Others
(Amerasinghe, J.)
97
It is quite wrong to assume . . . that the power of the ChiefJustice under Article 132 (3) to direct that an appeal, proceedingor matter be heard by a bench of five or more Judges… makesany difference. That provision confers no right of appeal, revisionor review.
ARTICLE 132 (3) OFTHE CONSTITUTION
The learnd Solicitor-General, agreeing with the submissions of Mr.Marapana, stated that Article 132 (3) did not confer any right of appeal,revision or review. That was also the view of this Court in Hettiarachchi,(supra), and in Suren Wickramasinghe, (supra). I find myself in agree-ment with that view.
Article 132 (3) provides as follows:
The Chief Justice may-
of his own motion; or
at the request of two or more Judges hearing any matter; or
on the application of a party to any appeal, proceeding ormatter if the question involved is in the opinion of the ChiefJustice one of general and public importance,
direct that such appeal, proceeding or matter be heard by a Benchcomprising five or more Judges of the Supreme Court.
Perhaps Article 132 (3) in certain respects may be capable of morethan one interpretation. It has, as far as I know, been always taken forgranted that a matter is referred to a Bench of five or more J udges by theChief Justice, whether of his own motion, or at the request of two or moreJudges, or on the application of a party, because the question is one ofgeneral and public importance. The Article it seems to me has beentaken to mean as follows:
If in the opinion of the Chief Justice the question involved in anyappeal, proceeding or matter is one of general or public importance, hemay
98
Sri Lanka Law Reports
[1996] 1 Sri L.R.
of his own motion; or
at the request of two or more Judges hearing any matter; or
on the application of any party in such appeal, proceeding ormatter,
direct that such appeal, proceeding or matter be heard by a Benchcomposed of five or more Judges of the Supreme Court.
Be that as it may, there has been no doubt that Article 132 providesfor the manner in which the jurisdiction of the Court may be ordinarilyexercised. Article 132 does not confer any jurisdiction on the Court. Nordoes Article 132 (3) empower the Chief Justice to refer any matter ofpublic or general importance to a Bench of five or more Judges. Itempowers him to constitute a Bench of five or more Judges to hear anappeal, proceeding or matter which the Court has jurisdiction toentertain and decide or determine. The court has no statutory jurisdic-tion to rehear, reconsider, revise, review, vary or set aside its ownorders. Consequently, the Chief Justice cannot refera matterto a Benchof five or more Judges for the purpose of revising, reviewing, varying orsetting aside a decision of the Court. The fact that in the opinion of theChief Justice the question involved is a matter of general or publicimportance makes no difference. In Hettiarachchi v Seneviratne,™followed in Suren Wickramasinghe and Others v Cornel Lionel Pereraand Others,™ it was pointed out that,
It is quite wrong to assume… that the power of the Chief Justiceunder Article 132 (3) to direct that an appeal, proceeding or matterbe heard by a bench of five or more Judges . . . makes anydifference. That provision confers no right of appeal, revision orreview.
To use Article 132 in that way would be to usurp legislative power,in order to create an additional right of appeal which the Constitu-tion did not confer; and, indeed, in effect to create a right of appealwith leave from the Chief Justice sitting alone.
There have been, as far as I have been able to ascertain, at least 58appeals, proceedings or matters heard by Benches of five or more
sc
Jeyaraj Femandopulle V. De Silva and Others
(Amerasinghe, J.)
99
Judges since 1978. It came as no surprise to find that there is noinstance of a concluded matter ever having been referred to such aBench under Article 132 (3) for revision, review orfurtherconsideration.In Suren Wickramasinghe and Others v Cornel Lionel Perera andOthers, (supra), Fernando, J. (Dheeraratne and Wijetunga, JJ. agree-ing) said as follows:
Apart from instances where the law expressly provides other-wise, a bench of more than three judges can only be constitutedunder Article 132 (3) of the Constitution, and the power to do so isvested in the Chief Justice alone. Article 132 shows, ex facie, thatpower can only be exercised in respect of a pending appeal,proceeding or matter – but not in respect of a concluded matter.
The Court had more than enough justification for arriving at thatdecision.
Ganeshanatham (supra) is not, as it is sometimes supposed, anillustration of a reference of a concluded matter for review or revision orreconsideration of its decision by way of an appeal or otherwise. Thepetitioner in that case was not a party in S.C. Application 20/83 VivienneGoonewardenv Hector Perera and Others (supra). Indeed, his complaintwas that he had been found guilty of violating Mrs. Goonewardene’sfundamental rights without being made a party to the proceedings andwithout being heard. It was not a case of the same question as had beenalready judicially decided by a Bench of three Judges once again beingraised between the same parties before a Bench of seven Judges.
When an application was made by the petitioner in Ganeshanatham,(supra), the matter was listed in the usual way before a Benchcomposed of the same three Judges who had heard VivienneGoonewardene’s case because there was reference in the petition to amatter that had arisen in the hearing and determination ofGaneshanatham. The caption in Ganeshanatham was as follows: “Inthe matter of an application in revision and for the exercise of theinherent powers and jurisdiction of the Supreme Court.” The threeJudges, as we have seen, acting under Article 132 (3) of the Constitutionrequested the Chief Justice to determine two questions: “(1) Has theSupreme Court jurisdiction to review or revise in any manner its own
100
Sri Lanka Law Reports
[1996] 1 Sri L.R.
judgment in S.C. Application No. 20/83 (Vivienne Goonewardene’scase)? (2) If so (a) on what grounds or under what circumstances cansuch jurisdiction be exercised?; (b) what procedure should be followedto obtain relief?” Accordingly, the Chief Justice, acting under the powersvested in him by Article 132 (3), constituted a Bench of seven Judges.
The Court decided that it had no jurisdiction conferred by theConstitution or any other law to review or revise its own judgment in anymatter. However, it was held that the Court had inherent powers to reviseits decisions in certain circumstances, but that the petitioner’s matterwas not one in which those powers should be exercised.
In the matter before us, the 1 st Respondent-petitioner prays that theCourt be pleased to (a) “revise and/or review and/or further consider theaforesaid issue of Hansard, by referring the same for consideration bya fuller Bench, and (b) to grant such other and further relief as to YourLordships Court shall seem meet.” The 1st Respondent-petitioner inparagraph 16 of his petition, stated that “the question of the use ofHansard to assess the veracity of the affidavit of the 1 st Respondent isa matter of public or general importance and having regard to theexpression of dissent by (one of the Judges), the issue merits furtherconsideration and/or review and/or revision by a fuller Bench of YourLordship’s Court.”.
In the matter before us, the 1st Respondent-petitioner, unlike thepetitionernGaneshanatham, was a party in a proceeding that had beenfinally decided by the Court. Forthe reasons I have explained, the Courthas no statutory jurisdiction to revise, review or further consider all orany of the matters that have been adjudicated upon. The fact that amatter was decided by a majority does not assist him, forthe decisionof the majority, whether it be right or wrong, is the decision of theSupreme Court in terms of Article 132 (4) of the Constitution. Theimportance of a matter does not, as we have seen, make any difference.Article 132 does not confer any jurisdiction on the Court. It merelyprovides for the manner in which the jurisdictions of the Court, conferredby the Constitution or by law, may be exercised. Article 132 (3) doesnot empower the Chief Justice to referany appeal, proceeding or matterwhatsoever to a Bench of five or more Judges: It empowers him toconstitute a Bench to hear an appeal, proceeding or matter in which theCourt has jurisdiction.
sc
Jeyaraj Fernandopulle V. De Silva and Others
(Amerasinghe, J.)
101
THE INHERENT JURISDICTION OFTHESUPREMECOURT
Although as a general rule, no court or judge has power to rehear,review, alter or vary any judgment or order after it has been entered,either in an application made in the original action or matter or in a freshaction brought to review the judgment or order, yet the rule is subject tocertain exceptions.
All Courts have inherent jurisdiction to vary their orders in certaincircumstances. (E.g. see Hettiarachchi, (supra) at 297; Wijeyesingheetal. v Uluwita(24) Easwaralingam vSivagnanasunderam,i2S))
Mr. Marapana submitted that, as far as the Supreme Court – the finalCourt – was concerned, the exceptions were limited to those mentionedin Ganeshanatham, (supra), at page 377 by Rodrigo, J. I am reluctantto limit the exceptions by any list that purports to be exhaustive, andthat is the preferable course in the consideration of mattters of this kind.
I see the difficulty of defining where you are to stop. In the words ofEvershed, MR n Meier vMeieriZ6)“ prefer not to attempt a definition ofthe extent of the court’s inherent jurisdiction to vary, modify or extendits orders if, in its view, the purposes of justice require that it should doso.” The view of the Master of the Rolls was followed by Morris, LJ inThynne (Marchioness of Bath) v Thynne (Marquess of Bath), (supra) atpp. 145,146). I shall, as Morris, LJ did, without purporting to categorise,mention some illustrations of the scope of the Court's powers.
However, let me first say this: When a person invokes to exercise itsinherent powers, the Court must ask itself two questions, as Garvin,SPJ did in Mohamed v Annamalai Chettiar,{21):
Is it a case which comes within the scope of the inherentpowers of this Court; and
Is it one in which those powers should be exercised?
There is no doubt that a clerical mistake in a judgment or order orsome error arising in a judgment or order from an accidental slip oromission may be corrected under the Court’s inherent jurisdiction. (SeeHalsbury, Vol. 26 Paragraphs 556 and 557; cf. Marambe KumarihamyvPerera, (supra).
102
Sri Lanka Law Reports
[1996] 1 Sri L.R.
For instance, nPadma Fernando v T. S. Fernano,m in the matter ofan application for a writ of habeas corpus, H.N.G. Fernando, J. deliveredhis judgment on the 24th of October, 1956 holding that a father’s rightto the custody of his child during the subsistence of his marriage maybe overridden on the ground that if the child is permitted to continue inthe custody of the father there would be detriment to the life, health ormorals of the child. In the circumstanes of the case, his Lordshipdirected the father to deliver custody of the child to the mother. OnOctober 29th 1956, H.N.G. Fernando, J. said (at p. 264): “My attentionhas been drawn to provide in the above order that the Respondent (thefather) may have access to the child. I direct thatthe Respondent shouldhave the right to visit the child….”
A court has the power to vary its orders in such a way as to carry outits own meaning and, where the language used is doubtful, to make itplain. (See per Lord Penzance in Lawrie v Lees,(29>. In Re SwiremLindley, LJ. said that “… if an order… does not express the real orderof the Court, it would, as it appears to me, be shocking to say that theparty aggrieved cannot come here to have the record set right… Itappears to me, therefore that, if it is once made out that the order…does not express the order actually made, the Court has amplejurisdiction to set that aright, whether it arises from a clerical slip or not.”
In Paul E. de Costa & Sons v S. Gunaratne,(31> the decree of theDistrict Court was thatthe petitioners who carried on business under thename of “Paul E. de Costa & Sons” should pay a sum of Rs. 60,000 fromtheirpersonal and private assets. However, according to thejudgment,the sum was payable out of the firm”s money and not out of the personalproperty of the partners. The decree had been affirmed in appeal by theSupreme Court. Upon application for revision, Manicavasagar, J.(Samerawickrame, J. agreeing) said at p. 215 as follows:
… the Court has the inherent power, if the judgment does notcorrectly state what it actually decided and intended, to vary itsjudgment so as to carry out its manifest intention. The law on thispoint was stated by Lord Watson in the case of Hatton v Harris(32)and it supports the proposition I have just stated:
When an error of that kind has been committed, it is alwayswithin the competency of the Court, if nothing has intervened
sc
Jeyaraj Fernandopulle V. De Silva and Others
(Amerasinghe, J.)
103
which would render it inexpedient or inequitable to do so, tocorrect the record in order to bring it into harmony with the orderwhich the Judge obviously meant to pronounce.
The Supreme Court held that the decree should be amended by theaddition of the stipulation that “the said sum of Rs. 60,000 and interestshall not be recoverable from the personal and private assets of thepetitioners save and except to the extent of their interests in the saidfirm of Paul E. de Costa and Sons.”
I n Raju v Jacob;(33) the petitioner, who had been sentenced to a termof one year’s rigorous imprisonment, did not appeal against the order ofthe Magistrate but made an application in revision. The Supreme Courtordered that hard labour be stayed from the 19th of July 1967 till thedisposal of the application. When the application was subsequentlydismissed on the 14th of September 1967, the Court made no orderregarding the resumption of hard labour as the fact that hard labour hadbeen stayed was not brought to its notice. Further, on account of thedelay, through oversight, in the communication to the authorities of theorder dismissing the application in revision, hard labour was notresumed until the 30th of October 1967. It was contended on behalf of .the petitioner that the entire period during which he was kept in remandwithout hard labour should be deducted from the term of one year’srigorous imprisonment imposed on him. There was no authority orprovision of law in regard to a similar matter in so far as applications forrevision were concerned although there was statutory provision withregard to appeals. The Criminal Procedure Code provided that in thecase of an appellant who was in custody pending an appeal, theSupreme Court had the power to order that the time so spent or any partthereof shall be reckoned as part of the term of his sentence.Weeramantry, J. in granting the petitionerthe benef it of the period spentin remand said as follows: I
I see little distinction in principle between an appeal in which hardlabour is stayed and a revision application in which this court hasmade express order to the same effect. Moreover the revisionapplication in this case has been filed in respect of an appealableorder and I do not think it would be correct to deny relief to theapplicant on the mere technicality that what came before this court
104
Sri Lanka Law Reports
[1996] 1 Sri L.R.
was a revision application and not an appeal. If in the exercise ofits jurisdiction this court may give by way of revision the same reliefit may grant by way of appeal I see no justification for denying toan applicant in revision, whose application has been entertainedby this court, an elementary right which is conferred on everyappellant.The silence of the Criminal Procedure Code on thismatter cannot take away from the inherent powers of this court togrant relief of the nature contemplated by section 341 (5) to anapplicant in revision. The grant of such relief is of course a matterentirely in the discretion of the court and will always be dependenton the circumstances of each case. In the circumstances of thiscase I cannot lose sight of the fact that notice has issued upon therevision application and that a stay of hard labour has beenexpressly ordered by this court. It is also most unusual for revisionapplications to be filed by accused in jail and I understand this tobe the only application so filed over a long period of time.
I n Kariapperuma and Another v. D.J. Kotelawala,m H. N. G. Fernando,CJ. (Thamotheram, J. agreeing), allowed an appeal and dismissed theplaintiff’s action. The Chief Justice in his judgment considered thejudgment of Keuneman, J. in ValliammaiAtchi v. O. L. M. AbdulMajeed(35> and the decision of the Privy Council in that case reported in 48 NLR289. In a “Post-Script" to the judgment, the Chief Justice explained asfollows:
I much regret that owing to an error in my note of the argumentsin this appeal, my judgment attributed to Counsel for the Respond-ent a submission different from that which he actually made. Hissubmission that a trust arose in this case did not depend on thejudgment of Keuneman, J. in ValliammaiAtchi’st35' case, althoughit happens somewhat curiously that that judgment was of assist-ance in considering the question to be decided in the present case.But Counsel had depended instead on a judgment of the samelearned Judge reported in the same volume of the Report -JongavNanduwa.m)
The Chief Justice then examines the matter in the light of the decisionin Jonga vNanduwa (supra), and afterfinding thatthefactsofthat case were“in no way comparable”, confirms the view expressed by him earlier.
sc
Jeyaraj Femandopulle V. De Silva and Others
(Amerasinghe, J.)
105
Halsbury, Vol. 26 paragraph 556 states that,
The court has inherent jurisdiction to vary or clarify an order so asto carry out the court’s meaning or make the language plain, or toamend it where a party has been wrongly named or describedunless this would change the substance of the judgment. Thecourt will treat as a nullity and set aside, of its own motion ifnecessary, a judgment entered against a person who was in factdead or a non-existent company or, in certain circumstances, ajudgment in default or a consent judgment. Where there has beensome procedural irregularity in the proceedings leading up to thejudgment or order which is so serious that the judgment or orderought to be treated as a nullity, the Court will set it aside.
I n Menchinahamy v Muniweera,(37) about six weeks after an appeal tothe Supreme Court from an interlocutory decree in the District Court wasdismissed by the Supreme Court, an application was made to theSupreme Court “for revision or in the alternative forrestitutio-in-integrumby the heirs of a party-defendant who had died before the interlocutorydecree was entered but whose heirs had not been substituted in hisplace before the interlocutory decree was so entered. There was noother remedy open to the petitioner except to move the Supreme Courtfor relief. Dias, SPJ (Gunasekera, J. agreeing) said at pp. 414-415 asfollows:
We now come to the substantial point which has been urged in thiscase, namely, that not only are there no merits in the presentapplication of the petitioner, but also that if we grant her the reliefshe seeks we will in effect be sitting in judgment on a two-Judgedecision of this Court in the earlier appeal and which is nowembodied in a decree of the Supreme Court which has passed theSeal of the court. It was argued that the Supreme Court by meansof restitutio in integrum cannot vary its own decrees, especiallyafter they have passed the Seal of the Supreme Court. It waspointed out that the powers of this Court are not unlimited. It isurged that section 36 of the Courts Ordinance (Chapter VI) definesthe jurisdiction of the court, while section 37 only permits thisCourt to interfere with the judgments of an original Court and itcannot interfere with the orders of the Supreme Court. It is pointed
106
Sri Lanka Law Reports
[1996] 1 Sri L.R.
out that section 776 of the Civil Procedure Code deals with thesealing of decrees of the Supreme Court, and that once a decreehas been sealed, such decree, if it is a judgment of two Judges ofthis Court, cannot be varied by another bench of two Judges.
The question, however, is whether such arguments can prevail ina case of this kind. Let me take one example. P files a partitionaction against A. B and C. A and B appear and file answer. C doesnot. There is a contest and a trial. The District judge enters aninterlocutory decree. There is an appeal to the Supreme Courtwhich affirms the judgment and decree of the District Court. TheSupreme Court judgment is sealed. Thereafter, before final decreeis entered, C comes forward and satisfies the Court by proof thatthere was, in fact, no service of summons on him. It is everydaypractice in a case like that for the Court to hold that all the earlierproceedings are abortive and of no effect. If authority is needed thisis supplied by the following cases:- Caldera v Santiagopillai,mJuan Perera v Stephen Fernando,(39) and Thambiraja vSinnamma.m The last case on this point is that of Publis vEugena Hamy<41> which laid down that where a summons in apartition action is not properly served on a party, such party is notbound by the final decree in the case and it can be vacated evenwhen the irregularity has been discovered after final decree wasentered. It is to be noted that in the present case final decree hasnot yet been entered.
The situation which emerges in the present case is that Saineriswas a party. He died before the trial without steps having beentaken to substitute his heirs who were, therefore, not bound by thesubsequent proceedings. In giving relief to the petitionerwe are notsitting in judgment either on the interlocutory decree or on thedecree in appeal passed by this Court. We are merely declaringthat, so far as the petitioner is concerned, there has been aviolation of the principles of natural justice which makes it incum-bent on this Court, despite technical objections to the contrary, todo justice. In my opinion, therefore, the order of this Court shouldbe that the petitioner and the other heirs of Saineris should beforthwith added as parties to this action, and that after she has filedher statement of claim, the District Judge should proceed to
sc
Jeyaraj Femandopulle V. De Silva and Others
(Amerasinghe, J.)
107
adjudicate on the merits of her application. It will also be the dutyof the plaintiff to see that all the necessary parties are before theCourt before anyfurtherapplicationis made. I would gofurtherandsay that in view of the irregularity in not joining Saineris’ heirs, inmy opinion both the interlocutory decree in this action and thesubsequent judgment of this Court in appeal are of no effect,because by reason of the non-observance of the steps in proce-dure no proper interlocutory decree was, in fact, entered in thiscase… .
W.Sirivasa Thero v Sudassi Thero,^2) was not a case in which theSupreme Court varied its own order; but it is instructive. In that case, theplaintiff sued three other priests for a declaration that he was entitled tothe office of Viharadhipathi, incumbent and trustee of a Vihara andPansala and to the management and control of their temporalities. Hedid not ask for possession of any property. He obtained judgment anddecree as prayed for and, upon his application to execute the decree,a writ of possession was issued in respect of a room in the Pansala. Thepetitioner who was in occupation of the room was ejected. The petitionerfiled action in the District Court in respect of his eviction, but the DistrictJudge held that he was not in law entitled to possession because thedefendant as Viharadhipathi was entitled to control the occupation of thePansala. In appeal, it was held that the Court had no jurisdiction to isuethe writ of possession and the Court ordered that the petitioner berestored to possession. Sansoni, J. (H.N.G. Fernando, J. agreeing) saidas follows at pages 33-34:
Since the decree was one in respect of which, under the Code, thejudgment-creditor could not ask for, and the Court had no power toissue a writ of possession, it seems to me that the Court wasacting without jurisdiction in issuing such a writ. The foundation ofa writ of possession is a decree for possession, and a writ ofpossession which is not founded on such a decree is a nullity,because in issuing it the Court acts in excess of its jurisdiction.Where a Court makes an order without jurisdiction, as in this case,it has inherent power to set it aside; and the person affected by theorder is entitled ex debito justitiae to have it set aside. It is notnecessary to appeal from such an order, which is a nullity …
108
Sri Lanka Law Reports
[1996] 1 Sri L.R.
The question now arises as to what order we should make on thisappeal. The plaintiff asked the Court to restore him to possessionof the room, because he had been dispossessed of it in executionof the decree. Section 328, no doubt, contemplates dispossessionunder decrees for possession of immovable property, but this isnot a matter which we can allow to stand in the way of the plaintiff,for we must have regard to the substance rather than the form.Justice requires that he should be restored to the position heoccupied before the invalid order was made, for it is a rule that theCourt will not permit a suitor to suffer by reason of its wrongful act.The Court will, so far as possible, put him in the position which hewould have occupied if the wrong order had not been made. It is apower which is inherent in the Court itself, and rests on theprinciple that a Court of Justice is under a duty to repair the injurydone to a party by its act: see Rodger v ComptoirD’ Escompte deParish
I would, therefore, direct that the plaintiff be restored to possessionof the room …
In Katiramanthamby and Another v Lebbethamby Hadjiar,{A4)Lebbethamby Hadjiar was the sole beneficiary named in the last will ofa Tamil lady who died in Batticaloa leaving valuable property. He madean application for probate of the Will. He named no respondents to hisapplication and averred in an affidavit that to the best of his knowledgeand belief the deceased had left only himself as her sole heir. TheDistrict Judge made order nisi declaring the Will to be proved anddirected that a copy of the Order shall be published in the GovernmentGazette and in the Daily News. The ordern/s/was in fact published notin the Daily News as ordered by the Court but in the Daily Mirror.Thereafter order absolute was entered but probate of the Will was notactually issued by the Court. Then Katiramanthamby and his brotherfiled an application objecting to the grant of probate and seeking tointervene in the testamentary proceedings. They claimed that they werethe sons of a sister of the deceased and that they were her intestateheirs. After inquiry, the District Judge made order vacating the orderabsolute and allowing the intervention of the petitioners and fixed thecase forfurther inquiry. Lebbethamby Hadjiar then appealed against theorder of the District Judge vacating his earlier order, and the Supreme
sc
Jeyaraj Fernandopulle V. De Silva and Others
(Amerasinghe, J.)
109
Court set aside the order of the District Judge on the ground that thefatter had no jurisdiction to vacate the order absolute previously made.Katiramantamby and his brother then made an application in revision inwhich they prayed that the Court set aside the order absolute and allowthem an opportunity to show cause against the order absolute beingentered. They claimed by affidavit that the Respondent was a Muslimand a complete stranger to the deceased, and that the Respondentdeliberately omitted in his original petition to inform Court that thepetitioners were the lawful intestate heirs. It is significant that in hisapplication for probate, the Respondent had made no averment in termsof section 525 of the Civil Procedure Code that he “has no reason tosuppose that his application will be opposed by any person.” Accordingto the affidavits of the petitioners, the deceased, the Respondent andthe petitioners were all residents of Valaichenai. The principal ground onwhich the petitioners relied in support of their application was thatsection 532 of the Civil Procedure Code imperatively required theDistrict Judge to select a newspaper for the publication of the ordern/s/“with the object that notice of the order should reach all personsinterested in the administration of the deceased’s property.” In theopinion of the Supreme Court the publication of the order in the DailyMirror or in the Daily News, which were English Newspapers, “did notsuffice to reach persons in the position of the petitioners, whoseinterests section 532 was intended to protect.” H. N. G. Fernando, C.J.(Weeramantry, J. agreeing) stated as follows at p. 231:
I must therefore hold when the District Judge failed to select anewspaper which would satisfy the object mentioned in section532, he failed to comply with a mandatory provision of law, andthus the mandatory requirement of publication was not satisfied.
The remaining question is whether our powers in revision to setaside the order absolute cannot now be exercised, because in theprevious appeal the Supreme Court restored the Order Absolute… In that appeal however, the Supreme Court only held that theDistrict Judge should not have set aside his own order and thejudgment cites a passage from the case of Paulusz v Perera,(45)to the effect that “the correction of all errors of fact and law of aDistrict Court is vested (by) the Courts Ordinance in the SupremeCourt”. While no doubt the present petitioners could at that stage
110
Sri Lanka Law Reports
[1996] 1 SriL.R.
have invited this Court to exercise its powers of revision in theirfavour, the petitioners took substantially the same course, whenwithin a few weeks after the decision of that appeal, they made thepresent application in revision. We must I think take into accountthe fact that there appear to have been grave deficiencies in therespondent’s original application for probate, and also the factthat, prima facie, this was an unusual Will.
For these reasons the application of the present petitioners isallowed; the order absolute for probate is set aside, and thepetitioners will be permitted to intervene in the testamentaryproceedings…
As pointed out in Hettiarachchi, (supra) at p. 299, the headnote in thereport of Katiramanthamby, (supra) is misleading, for the SupremeCourt did not set aside its own order. What it was requested to do bythe petitioners, and what it did in fact, was to set aside the first orderof the District Judge which he himself could not have set aside, therebyenabling the nephews of the deceased to intervene in the testamentaryproceedings. The District Judge was wrong and realized his mistake,but he could do nothing about it, for, as Halsbury (Vol. 26 paragraph 557,p.281)observes:
A judgment or order will not be varied . . . when it correctlyrepresents what the court decided and where the court itself waswrong, nor can theoperative and substantive part of the judgmentbe varied and a different form substituted …
Halsbury (Vol 26, paragraph 560, page 285) states that
A judgment which has been obtaind by fraud either in the court orof one or more of the parties may be impeached by means of anaction… In such an action it is not sufficient merely to allege fraudwithout giving any particulars, and the fraud must relate to matterswhichpr/mafac/ewouldbeareasonforsettingthejudgment asideif they were established by proof, and not to matters which aremerely collateral. The court requires a strong case to be estab-lished before it will set aside a judgment on this ground, and theaction will be stayed or dismissed as vexatious unless the fraud
sc
Jeyaraj Femandopulle V. De Silva and Others
(Amerasinghe, J.)
111
alleged raises a reasonable prospect of success and was discov-ered since the judgment…
An action will lie to rescind a judgment on the ground of the discoveryof new evidence which would have had a material effect upon thedecision of the Court. It must be shown (1) that the evidence could nothave been obtained with reasonable diligence for use at the trial and (2)that the further evidence is such that if given it would have an importanteffect on the result of the trial although it need not be decisive and (3)that the evidence is such as is presumably to be believed. (Halsbury,Vol. 26 paragraph 561). InLokuBanda vAssen,(46) Withers, J. affirmedthe decision of the Court of Requests. However, he ordered the recordto be brought up to decide whether there should be a new trial becausean important piece of evidence in the form of a document was reportedto have been discovered in the record room of the trial court after theSupreme Court had decided the appeal. In the circumstances of thecase, however, Withers, J. declined to vary his order although he heldthat the Court had the power to review a judgment of its own passed inappeal where it appears that fresh evidence has been discovered sincesuch judgment was pronounced.
In Palitha v O.l.C. Polonnaruwa and Others;l13) the Supreme Courthad to decide on the alleged infringement of the petitioner’s fundamentalrights guaranteed by Article 13 of the Constitution. The application hadbeen dismissed on the 12th of February 1993 since the Court wasinformed by learned State Counsel that the petitioner was due to bereleased on the 30th of April 1993 after rehabilitation. However, due toa typographical error, the order made by the Court stated that thepetitioner had been so released on the 30th of April 1992. The petition-er’s father requested the Commissioner-General of Rehabilitation torelease the petitioner on the basis of the Court’s order. On the 2nd ofApril, 1993 the Commissioner-General informed the Court that thepetitioner had not been sent for rehabilitation and that he was still incustody at the Pelawatta detention camp. State Counsel confirmed thatthe petitioner had not been sent for rehabilitation even after the Attorney-General had on the 19th of February, 1993 communicated the fact thatthe Court had been informed that the petitioner was due to be rehabili-tated. The petitioner was released from the Detention Camp on the 30thof April, 1993. The Court restored the matterand granted the petitioner
112
Sri Lanka Law Reports
[1996] 1 Sri LR.
a declaration that his rights under paragraphs (2) and (4) of Article 13had been infringed and directed the State to pay a sum of Rs. 17,500as compensaton. Kulatunga, J. (Ramanathan and Wijetunga, JJ. (agree-ing) said at p. 162:
Considering the fact that the order of this Court dated 12.02.1993was made on wrong facts given to the prejudice of the petitioner,we set aside the said order by way of .remedying the injusticecaused to the petitioner (notwithstanding the failure of his Counselto appear in Court though noticed, which failure appears to be dueto the short notice given to him) – vide Wijesinghe v Uluwita(24) andGaneshanatham v Goonewardene (supra) at p. 329.
Costs have been awarded to a successful party in the exercise of itsinherent powers Gratiaen, J. observing that he was resorting to theinherent jurisdiction of the Court “especially as it is in aid of justice”:Karuppannan v Commissioner for Registration of Indian and PakistaniResidents,(47)
Whether it is in the exercise of its extraordinary inherent jurisdictionor otherwise in the performance of its ordinary statutory duties, theCourt is obliged to keep the attainment of justice in view. Velupillai v TheChairman Urban District Council, Jaffna;(48) was not a case relating tothe inherent powers of the court, but the observations of the ChiefJustice in that case provide us with valuable guidance. In that case theplaintiff had a cause of action against the Urban District Council ofJaffna. His proctor was under the erroneous impression that the Councilcould not be sued and therefore action was filed naming the Chairmanof the Council as the defendant. When the parties came to trial thepreliminary issue was raised on behalf of the defendant that the actionagainst the Chairman was not properly instituted. The District Judgeallowed that issue. The proctor for the plaintiff moved to amend thecaption. The District Judge refused him permission to amend thecaption. Abrahams, CJ. (with whom Soertsz, J. agreed) at p. 76 said: I
I think that if we do not allow the amendment in this case we shouldbe doing a very grave injustice to the plaintiff. It would appear asif the shortcomings of his legal adviser, the peculiarities of law andprocedure and the congestion in the courts have all combined to
sc
Jeyaraj Femandopulle V. De Silva and Others
(Amerasinghe, J.)
113
deprive him of a cause of action and I for one refuse to be a partyto such an outrage upon justice. This is a Court of Justice, it is notan Academy of Law.
I would allow the amendment…
However, as we shall see, justice must be done according to law.Moreover, in applying the law to the circumstances of a case, differentconclusions may be reached by the Judges hearing the matter. Thus inGaneshanatham, (supra), although the seven Judges who heard thematter were of the opinion that, as a Superior Court of Record, theSupreme Court has inherent powers to make corrections to meet theends of justice (see per Samarakoon, C.J. at p. 329 – Sharvananda,Wimalaratne, Colin Thome and Wanasundera, J J. agreeing – see p. 340;per Ranasinghe, J. at p. 355; and per Rodrigo, J. at p. 377), the Court(5-2) did not think that the case was one in which the inherent powersof the Court should be exercised.
The court has consistently recognized the fact that it has inherentpower to correct decisions made per incuriam. (E.g. see The PoliceOfficer of Mawallav Galapatta,m P.C. Batticaloa, 8306, In Revision,(50)The King v Baron Silva et a/.,(51) Mohamed v Annamalai Chettiar,(supra)-, EloSingho v Joseph, (supra)-, Ranmenikhamy and Another vTissera and Others,<52) Ganeshanatham (supra) (Seven Judges) at 329,355, 377; Hettiarachchi, (supra)-, Senerath v Chandraratne, Commis-sioner of Excise and others, (supra) at 212,216.AllCeylon Commercial& Industrial Workers Union v Ceylon Petroleum Corporation andAnother, (supra) at 297.
Earl Jowitt in his Dictionary of English Law, (2nd Ed. 1977, Vol. 2 p.1347) translates the phrase to mean “through want of care”. He goes onto explain that “A decision or dictum of a judge which clearly is the resultof some oversight is said to have been given per incuriam” In Farrell vAlexander,(53) Lord Justice Scarman in the Court of Appeal translatedper incuriam as “Homer nodded”. Others, however, have given thephrase a more restricted meaning. Lord Chief Justice Goddard inHuddersfield Police Authority v Watson,1541 said:
What is meant by giving a decision per incuriam is giving ad tcision when a case or statute has not been brought to the
114
Sri Lanka Law Reports
[1996] 1 Sri L.R.
attention of the court and they have given the decision in ignoranceor forgetfulness of the existence of that case or that statute.
Lord Goddard’s definition was adopted by Basnayake, J. inAlasuppillaiv Yavetpillai,{ss) and by Kulatunga, J. (G.P.S. de Silva, CJ. andRamanathan, J. agreeing) in All Ceylon Commercial and IndustrialWorkers Union, (supra) at 297. In Hettiarachchi, (supra), at p. 299 theCourt (Fernando, Amerasinghe and Perera, JJ.) said that “A decisionwill be regarded as given per incuriam if it was in ignorance of someinconsistent statute or binding decision …”
In The King v Baron Silva, (supra), the petitioners were the 3rd and4th accused in a case in which they were charged with agreeing withthree others to act together with the common purpose of committing theoffence of extortion and that they thereby committed the offence ofconspiracy punishable under sections 113 (b) and 373 of the PenalCode. They were convicted and the convictions were upheld by theSupreme Court. They applied to the Court to revise the judgment inappeal on the ground that section 113 (b) of the Penal Code was notinforce on the date of the alleged commission of the offence, namely the23rd of March 1924. That section was introduced by the Penal CodeAmendment Ordinance No. 5 of 1924. It was passed on the 20th ofMarch 1924, but did not receive the sanction of the Governor till the 6thof May 1924. There was no doubt that the offence of conspiracy asdefined in that amendment was not an offence on the date the petitionerswere alleged to have committed the offence. Maartensz, J. said:
Two questions arise from the application, first, whether this Courthas the power to revise its own judgment, and second, whether inthe circumstances of this case the verdict should be altered or theaccused acquitted. The first point is free from difficulty for I thinkthat if this Court per incuriam affirms the conviction of a man foran offence which at the time of the alleged committal of it was notan offence under the law, the Court has inherent power to revise itsverdict. There is ample authority for this proposition in the case ofthe Police Officer of Mawilla v. Galapatha (supra) and in theanonymous case reported in the 2nd Volume of the New LawReports p. 475. In both cases it was held that the Supreme Courthad power acting in revision to vacate its own order made perincuriam.
sc
Jeyaraj Femandopulle V. De Silva and Others
(Amerasinghe, J.)
115
The sentences were varied.
In P.C. Batticaloa, 8306 In Revision, (supra), in an appeal from thedecision of a Police Magistrate, Shaw, J. while dismissing the appealon the facts, expressed the view that the Magistrate had no jurisdictionto try the case summarily. His attention had not been called to thechange effected in the Penal Code by Ordinance No. 31 of 1919, section22 (b). His Lordship had sent the case back for the Magistrate to takenon-summary proceedings. “This decision of mine was undoubtedlywrong and made per incuriarrf, said his Lordship, and varied his ordertaking the error into account. His Lordship said that the case of ThePolice Officer of Mawilla vGalapata, (supra), satisfactorily showed thathe had the power to put the matter right in revision.
I n Young v Bristol Aeroplane Co. Ltd, (supra)( cited with approval bySamarakoon, CJ. in Billimoria v Minister of Lands, (supra) at p. 14; andby Rodrigo, J. inGaneshanatham, (supra) at pp. 377-378), Lord Greene,M R pointed to two classes of decisionsperincuriam that did not comewithin the scope of its inquiry in that case:
a decision in ignorance of a previous decision of its own Court ora Court of a co-ordinate jurisdiction covering the case; and
a decision in ignorance of a previous decision of a higher Courtcovering the case which binds the lower Court.
The definition of the phrase perincuriam in Lord Goddard’s terms hasbeen regarded as being too restrictive. In Morelle Ltd. v Wakeling (56>(followed n Billimoria v Minister of Lands, (supra) at p. 14 by Samarakoon,Cd.and'mGaneshanatham, (supra) by Ranasinghe, J. at p.355and byRodrigo, J. at p. 378) Evershed, MR said as follows:
As a general rule the only cases in which decisions should be heldto have been given per incuriam are those decisions given inignorance or forgetfulness of some inconsistent statutory provi-sion or of some authority binding on the court concerned so thatin such cases some part of the decision or some step in thereasoning on which it is based is found, on that account, to bedemonstrably wrong. This definition is not necessarily exhaustive,
116
Sri Lanka Law Reports
[1996] 1 Sri L.R.
but cases not strictly within it which can properly be held to havebeen decided per incuriam must, in our judgment, consistentlywith thesfare decisis rule which is an essential feature of our law,be … of the rarest occurrence.”
There are several instances of the Court acknowledging that it hadacted per incuriam in circumstances which might not have beenaccommodated within Lord Goddard’s definition.
In the Police Officer of Mawilla vGalapata, {supra) the accused wascharged with an offence underthe Excise Ordinance and convicted andsentenced to pay a fine. At the argument of the appeal, his counsel tookup the point that the proceedings were badab initio, inasmuch as therewas nothing to show that the complaint or the report on which theaccused was brought to Court was made by an Excise Commissioner,a Government Agent, or an Excise officer authorised by either of themon that behalf. Wood Renton, CJ. said; I
I called the attention of counsel to the fact that the prosecutionpurported to be sanctioned by a signature, which I took from myown personal experience of it, to be that of Mr Forrest. Theappellant’s counsel accepted my assurance that the signaturewas that of Mr. Forrest, and after argument the appeal wasdismissed.The appellant now applies in revision to have the orderof this Court dismissing the appeal set aside on the ground that thesignature in question was not that of Mr. Forrest at all, or of anyperson possessing the necessary status under section 49 of theExcise Ordinance … It appears to me that the powers of theSupreme court are sufficiently wide to enable me to interfere byway of revision. I set aside, as having been madeper incuriam andby what may prove to be a mistake on the part of the Court itself,the order of 23rd July dismissing the appeal and send the caseback to the Police Court of Tangalle for further inquiry andadjudication on the question whetherthe requisite authority fortheinstitution of the proceedings was given. The petition filed insupport of the present application does not indicate whose thesignature in question is. If it should prove on further inquiry not tobe a proper authority for the report, the whole proceedings will bequashed. But if, on the other hand, it should be shown that the
sc
Jeyaraj Fernandopulle V. De Silva and Others
(Amerasinghe, J.)
117
signature, whether it is that of Mr. Forrest or not, is a properauthentication of the prosecution, the conviction and sentence willstand affirmed.
I n Mohamed vAnnamalai Chettiar,(supra) the Supreme Court usedits inherent powers to free an insolvent from arrest pending the decisionof his appeal to the Privy Council although there was no statutoryauthority for such an order. Garvin SPJ said:
I should be reluctant to subscribe to the proposition that this Courthas no powers other than those derived from express legislation.Like other courts in the Empire and in particular Superior Courts,this Court has always been considered to possess a certainreserve of powers which are generally referred to as inherentpowers. It has been said that these powers are equal to its desireto order that which it believes to be just. This is perhaps too wideand somewhat misleading a statement. No court may disregardthe law of the land or purport in any case to ignore its provisions.Where a matter has been specifically dealt with or provided for bylaw there can be no question that the law must prevail, for justicemust be done according to law. It is only when the law is silent thata case for the exercise by a Court for the exercise of its inherentpowers can arise …
Subject to the limitations above referred to the inherent powers ofthis Court would seem to extend to the making of such orders asmay be necessary for the ends of justice and to prevent abuse ofthe process of the Court. But these powers must be exercised inaccordance with sound legal principles and not arbitrarily when-ever a case arises which is not provided for by legislation.
… Is it a case which comes within the scope of the inherentpowers of this Court and is it one in which those powers should beexercised?. . .
Must we stand by and do nothing to prevent the arrest andimprisonment of the applicant in the interval, which may well be along one, before the order of the Privy Council is made known? Hisestate is under sequestration and no pecuniary or other loss or
118
Sri Lanka Law Reports
[1996] 1 SriLR.
prejudice to the opposing creditors is involved in granting hisprayer for protection. It only means that their right to arrest hisperson and cast him in prison for debt will be postponed until thePrivy Council decides whether he is a person who is liable to bearrested and imprisoned.
For my part, I am satisfied that this is a.case in which the Courthas inherent power which should be exercised to prevent whatmight prove to be a grave injustice to the applicant and that ingranting his application we shall be acting on sound judicialprinciple and in accordance with the intention of the Legislaturemanifested in parallel cases for which it has made provision.
I would accordingly direct that the insolvent be granted protectionuntil the decision of His Majesty in Council upon his appeal ismade known.
In Ranmenikhamy and Another v Tissera and Others, (supra), anappeal to the Supreme Court was rejected on the application of counselfor certain respondents on the ground that notice of appeal had not beenserved on one of the other Respondents. (It might be observed that thefailure to serve notice on a party against whom an order is made, is aserious procedural irregularity on which the Court may set aside itsorder: Craig v Kanssen(57); Chief Kofi Forfie vBarima Kwabena SheifahKenyaschene,m Woolfenden v Woolenden,m cf. KatiramathambyandanothervLebbethambyHadjiar, (supra); MenchinahamyvMuniweera,(supra). It was later proved to the Court that the Respondent in questionwas a minor who was represented in the action by a duly appointedguardian-ad-litemon whom notice of appeal had been duly served. It wasalso conceded that the objection was raised and not resisted as theresult of a mistake common to both counsel and that there had beensubstantial notice of appeal to the minor Respondent. The Court (T.S.Fernando and Herat, JJ) set aside its order on the ground that it hadacted per incuriam. I
I n Nisha Sudarshi Ganeshi Kumarasena v Sub-InspectorSriyanthaand Others,m the presiding Judge sent his draft judgment to two otherJudges who approved it and later signed the three final copies of thejudgment. The judgment was reported in the press and was the subject
sc
Jeysraj FemandopuUe V. De Silva and Others
(Amerasinghe, J.)
119
of adverse comment in the press. The presiding Judge then realized thatthe two Judges who had agreed with him had not been members of theBench that heard the matter and submitted the judgment he haddelivered as a draft to the two Judges who heard the matter with him. Oneof those Judges wrote a separate judgment, while the other agreed withthe judgment of the presiding Judge. The presiding Judge then directedthe Registrar to list the matter for delivery of Judgment and a newJudgment was delivered, the presiding Judge explaining that the formerdecision of the Court had been made perincuriam.
IS THE MATTER BEFORE US ONE THAT COMES WITHIN THESCOPE OF THE INHERENT POWERS OFTHE COURT?
Strictly speaking, the 1st Respondent-petitioner, unlike the peti-tioner in Ganeshanatham, (supra), did not in his petition expresslyinvoke this Court to grant relief in the exercise of its inherent powers.
The directions of the Acting Chief Justice dated the 22nd of December1995 make no reference to the inherent jurisdiction of the Court.Nevertheless, if, the Acting Chief Justice, of his own motion, was asHumphreys, J. put it in Re a Solicitor^ endeavouring to place the 1stRespondent-petitioner’s petition before the Court “in that most attractiveform, an appeal to the inherent jurisdiction of the Court,” his Lordship,with great respect, had no power to do so. Article 132(3), in my view,does not empower the Chief Justice to do so. That Article, as I havestated earlier, does not confer jurisdiction. The inherent jurisdiction ofthe Court is not vested in it by any provision of the Constitution, or byParliament in terms of Article 118 (g) of the Constitution but is a powerintrinsically attached to the Court as a superior court of record. (Cf.Article 105 (3); cf. also Article 118).
Moreover, the fact that the question involved is a matter of general orpublic importance has never been regarded as a ground for the exerciseof the Court’s inherent powers.
Be that as it may, giving a liberal interpretation to paragraphs 05 and06 read with the prayer of the petition of the 1 st Respondent-petitionerand assuming that the 1 st Respondent-petitioner did invoke this Courtto grant relief in the exercise of its inherent powers, is his case one that
120
Sri Lanka Law Reports
[1996] 1 SriL.R.
comes within the inherent powers of the Court? if so, is it a case in whichthose powers should be exercised?
Mr Marapana submitted that the matter before us did not “evenremotely” come within the scope of the inherent powers of the Court.
According to Mr. Goonesekere, the gravamen of the 1 st-Respondent-petitioner’s complaint is that, although he was noticed and representedby Counsel, there was no opportunity or insufficient opportunity to dealwith the matter of the admissibility and evidentiary value of the 1stRespondent-petitioner’s speech in Parliament that was used by the 'majority of Judges to contradict the averments in the 1 st Respondent-petitioner’s affidavit. The basis for holding him liable was the speech inParliament. Had it been excluded, the 1st Respondent-Petitioner wouldhave been exonerated. Since he had been found “guilty” on the basis ofthe inadmissible speech, the 1 st Respondent-petitioner had sufferedinjustice.
The 1 st Respondent-petitioner states in his petition as follows:
The 1 st Respondent filed his counter-affidavit dated 23rd May,1995. The 1st petitioner annexed to his counter-affidavit dated
an extract of Hansard of 7.2.95 containing a speech madeby the 1 st Respondent. This was marked P16. As the said extractwas filed along with the counter-affidavit, the 1 st Respondent wasunable to counter the same.
The question as to whether the statement made by the 1stRespondent in Parliament was covered by Parliamentary Privi-lege, was not raised in the course of the hearing or even thereafter.His Lordship Justice Fernando, in his judgment, stated as follows:-
The second issue, as to Parliamentary privilege is one which noone even mentioned, even in passing. Neither the 1 st Respondentnor his Counsel raised it in the pleadings, in the written submis-sions or in the oral argument – although the Court itself specificallydrew the attention of Counsel to the effect of the Hansard extractson the reliability of the 1 st Respondent’s affidavit. And they havenot sought to raise it even after judgment was reserved.
sc
Jeyaraj Femandopulle V. De Silva and Others
(Amerasinghe, J.)
121
Mr. Goonesekere also drew our attention to the following passage inthe judgment of Fernando, J.:
… Ordinarily I would hesitate to disagree with the consideredopinion of Samarakoon, CJ; especially a decision in a casewhich was argued for twelve days in the Court of Appeal and foranother four in this Court. More so here, without the benefit ofan iota of research, or a minute of submissions, by Counsel,upon an issue on which we ought not to have to depend on ourown researches …
Mr. Goonesekere stated that there were two incidents and that it wasin respect of the first incident that the affidavit was filed. When Mr.Marapana who appeared for the petitioners addressed Court on the 13thof September, 1995, the Hansard extract was not submitted. Later, Mr.Musthapha made submissions on behalf of the 16th Respondent. It wasat the end of the hearing that reference was made to the speech reportedin Hansard for the first time. Counsel for the 1 st Respondent, thereforehad no opportunity of responding to the matters raised. Mr. Goonesekeresubmitted that the “proper course of action” would have been to invitefurther argument on the matter during which Counsel could haveassisted the Court. The matter is important, because it involves aconsideration of the issue of parliamentary privilege and the Courtought, in those circumstances, to have acted “with circumspection andassistance”. Mr Goonesekere drew our attention to Popplewell, J’sobservations in Rost v Edwards and Others^:
The courts must always be sensitive to the rights and privileges ofParliament and the constitutional importance of Parliament retain-ing control over its proceedings. Equally, as Viscount Radcliffe putit in A-G of Ceylon v De Livera(63), the House will be anxious toconfine its own or its members’ privileges to the minimum infringe-ment of the liberties of others. Mutual respect for and understand-ing of each other’s respective rights and privileges are an essentialingredient in the relationship between Parliament and the courts.
In the circumstances, Mr. Goonesekere submitted, the Court oughtto have sought the assistance of the Attorney-General in deciding amatter that impinged on parliamentary privilege. That was, he said, the
Sri Lanka Law Reports
[1996] 1 Sri LR.
122
invariable practice in England, as numerous decisions of the courts ofthat country showed. Mr. Goonesekere quoted the following words fromthe judgment of Popplewell, J. in Rost (supra) at p 644 to illustrate hissubmission:
It became clear after the initial submissions of counsel that thequestion of parliamentary privilege might be involved and counselagreed that the only course open to the court was to adjourn furtherargument and to set out the matters which might give rise toparliamentary privilege in writing; then to submit those questionsto the Attorney-General and the court to ask for the assistance ofthe Attorney-General in resolving what might be a conflict betweenthe privileges of Parliament and the rights of the parties freely topresent their case in court.
Accordingly that course was adopted. The court has had theadvantage of submissions by the Solicitor-General as well ashelpful argument by counsel for the two protagonists in thelitigation.
In the cases relating to the petition before us, Mr. Goonesekeresubmitted that "counsel were not permitted to make their contribution;and the Attorney-General who should have been heard, was also deniedthe opportunity of assisting the Court.”
Mr. Marapana submitted that it was not correct to state that thespeech in Parliament was sprung on the respondents at the end of theargument and that there was no opportunity of dealing with the matter.He stated that the extract from Hansard (P 16) was annexed to thecounter-affidavit of the petitioners, dated the 31 st of May 1995, in whichthey responded to the 1st respondent’s affidavit. The argument tookplace on the 13th and 27th of September 1995 – several months after thefiling of the extract from Hansard.
In paragraph 05 of his petition, the 1 st Respondent-petitioner himselfstates that “The 1st petitioner annexed to his counter-affidavit dated
an extract of Hansard of 7.2.95 containing a speech made bythe 1 st Respondent.”
sc
Jeyaraj Femandopulle V. De Silva and Others
(Amerasinghe, J.)
123
Wijetunga, J. at p. 21 of his judgment confirms this. His Lordshipstates as follows:
In reply to the 1st respondent’s affidavit denying the remarksattributed to him, the petitioners filed a counter-affidavit dated
annexing extracts from the Hansard of 7.2.95 (P16)…
Perera, J. too confirms that position at p. 2 of his judgment. HisLordship states as follows:
In response to this denial, on the part of the 1st Respondent thePetitioners have filed a counter affidavit dated 31.05.95, annexingextracts from the Hansard of 07.02.95 (P16) which is a record ofthe proceedings of Parliament on that date.
The 1 st Respondent-Petitioner’s complaint as stated in his petitionwas not that the speech had been placed before the Court only at theend of the argument, but that because it was filed with the counter-affidavit of the petitioners, he had no opportunity of refuting it. Inparagraph 05 of his petition he states: "As the said extract was filedalong with the counter-affidavit, the 1st Respondent was unable tocounter the same.”
Why could he have not done so through his counsel?
In fact, learned counsel for the 1 st Respondent had addressed Courton the matter of the speech in Parliament. Perera, J. in his judgment atp.2 states as follows:
As regards the statements attributed to the 1 st Respondent in theHansard referred to (P16), Counsel for the 1 st Respondent has inmy view, rightly submitted that such statements must be consid-ered in the proper context. The reference to the Katunayakeincident in Parliament that day has been triggered off by astatement made by a Member of Parliament based on a newspa-per report which appeared in the “Divaina”. Counsel submitted thatthe contents of the said report itself have been proved to befalse.There was no reference whatsoever to the 1 st Respondent inthat report. It was counsel’s submission that the 1 st Respondent
124
Sri Lanka Law Reports
[1996] 1 Sri L.R.
in this instance has merely retorted or given a “fighting reply” to thejibes as is wont to happen in the floor of the House. This hecontended was not a considered reply to an adjournment question.It is a political speech which cannot be taken literally as anadmission by the 1 st Respondent or the accuracy of what was inthe newspaper or his involvements in violence on that day. Counselsubmitted that the Court should therefore not place any reliance onthe contents of P 16 and invited the Court to reject the same.
In my view there is much substance in the submission of counselon this matter. The Petitioners’ allegations against the 1st Re-spondent remain uncorroborated. I am of the opinion that it wouldbe highly unsafe to tilt the scales in favour of the Petitioner(s) inthis case relying upon, a general statement made by the 1stRespondent in Parliament particularly having regard to the specialcircumstances in which the Respondent made the statementattributed to him.
At page 23 of his judgment, Wijetunga, J states as follows:
The 1st Respondent did not deny or explain the statementsattributed to him, by means of a counter-affidavit; nor did hiscounsel seek to deny those statements or take any objection totheir admissibility in evidence. Learned counsel’s position wasthat such statements made in Parliament must not be treated asif they were precise responses to questions; that when the matterwas raised, the 1 st Respondent gave a political response, ratherthan afactual response; that his observations were general and notintended to refer to the facts of this particular incident and thatsuch statements made in the cut-and-thrust of debate oftencontain over-statements and inaccuracies. Hence, counsel sub-mitted that they cannot be treated in the same way as an avermentin an affidavit filed in Court proceedings. He strenuously contendedthat the 1 st respondent’s affidavit set out the correct position andthat his statements in Parliament should not be used to test theaccuracy or credibility of that affidavit. I
I am not at all attracted by this contention. An averment in anaffidavit, no less than oral evidence, can be tested by reference toa prior i. (consistent statement…
sc
Jeyaraj Femandopulle V. De Silva and Others
(Amerasinghe, J.)
125
No question of parliamentary privilege had, it seems, been raised bylearned counsel for the 1 st Respondent. On the other hand, it appearsfrom paragraph 6 of the 1 st Respondent-petitioner’s petition, wherein hequotes from Fernando, J’s judgment, that the Court had “specifically”drawn the attention of counsel “to the effect of the Hansard extracts onthe reliability of the 1st respondent’s affidavit”. Mr. Goonesekere inmaking his submissions also quoted the passage from Fernando, J’sjudgment in which those words occur. Neither the 1st Respondent-petitioner, in his petition and affidavit, nor Mr. Goonesekere challengedthe correctness of Fernando, J’s statement. There was an indicationthat the speech would be used, and learned counsel for the 1stRespondent was conscious of that. Had he any reason to believe thatthe speech would not be used, the trouble he took to explain the wayin which the speech should be considered in relation to the 1strespondent’s affidavit is inexplicable. Had learned counsel thought thatparliamentary privilege stood in the way of the use of the speech, whydid he not raise it? He did not raise the objection and then submit thatshould the Court hold that the speech was admissible, then more weightshould be attached to the 1 st respondent’s affidavit than to his speechin Parliament, or that the speech in Parliament should be disregardedaltogether having regard to the circumstances in which the speech wasmade. Learned counsel did not raise the question of relative worth as analternative. He tacitly accepted the admissibility of the speech andproceeded to arg ue that it was the affidavit that should prevail. If it washis view that the Attorney-General should be heard on the matter, whydid he not say so?
The matter of the admissibility of the speech appears to have beenraised by Perera, J. after perusing the draft judgment of Wijetunga, J.in which Wijetunga, J. had used the extract from Hansard. Perera, J.was of the view that the speech should not be used. Perera, J. then wrotea separate judgment in which he held that parliamentary privilegeprevented the use of the extract, citing the provisions of the Parliamen-tary (Powers and Privileges) Act, No. 21 of 1953 and certain decisionsof the courts. Fernando, J. then wrote a separate judgment dealing withthe matters raised in Perera, J’s draft. After perusing Fernando, J.’sdraft, Perera, J then responded, in the judgment his Lordship delivered,to the comments made by Fernando, J with regard to certain observa-tions made in the draft judgment of Perera, J. Fernando, J. complained
126
Sri Lanka Law Reports
[1996] 1 Sri L.R.
that his Lordship received no assistance, and explains that “for thatreason I have confined my observations to the two decisions cited byPerera, J. and the precedents referred to therein, and refrain fromcomment on recent decisions of this Court (Dissanayake v Kaleel,{M)Jayatillake v Kaleel,{65))… But in this case we do not have to considerwhether Samarakoon, C.J. was wrong in regard to the second of theabove principles, for this case is covered by the first principle, as the usemade by Wijetunga, J. of the Hansard extracts is well within thatprinciple."
Can it be said that the judgments of the Court in S.C. ApplicationsNos. 66/95 and 67/95 were attributable to the Court having acted inignorance or forgetfulness of some inconsistent statutory provision orsome authority binding on the Court so that the decision to use thespeech was demonstrably wrong? Nothing has been placed before usto support such a position. What were the provisions of the legislatureor decisions of the Court that were overlooked? Learned Counsel for the1st Respondent-petitioner did not refer us to any such matter. LordScarman, as we have seen, translated per incuriam to mean ‘Homernodded’. Having regard to the lively exchange of views on the matter ofparliamentary privilege in the light of the relevant legislation anddecisions of the Court that were considered by the learned Judges, Icannot possibly say that the Court acted per incuriam. Indigorquandoque bonus dormitatHomerus, said Horace. However, there was,in my opinion, no nod on the Judges’ side of the Bar Table. I am notsuggesting that there was a nod on the other side: The strategies ofcounsel are, as we said in Hettiarachchi, (supra) entirely up to them.The Court must take the case as learned counsel deems it bestpresented in the interests of his client. However, once a matter isconcluded and a decision is given, that is an end of the matter.
Let us assume that Perera, J. was right in the interpretation of the lawand that the majority was wrong in using the speech as it did. If so, canwe review or revise that order? We have no statutory powers to do so.May we do so in the exercise of our inherent powers?.The fact that adecision is wrong is not a ground for the exercise of the Court’s inherentpowers. As Samarakoon, CJ observed mBillimoria v Minister of Lands,(supra) at p. 15:
sc
Jeyaraj Femandopulle V. De Silva and Others
(Amerasinghe, J.)
127
The Attorney-General contended that section 24 applied to stayorders as well. This is a moot point. The Judges who made the stayorder appeared to have thought otherwise. They may be right orthey may be wrong. Assuming they are wrong – how does thatmake it an order per incuriam? If the order appealed against isallowed to stand it will open the flood gates for one Bench of theCourt that disagrees with another’s interpretation, made after dueconsideration, to assume a jurisdiction that it does not have.
Naturally, the Court welcomes the assistance of counsel. Indeed, asit was pointed out in Hettiarchchi (supra), following Jones v NationalCoal Board, (infrap7 the nature of proceedings in our Courts is suchthat the assistance of counsel is indispensable. I might venture to addthat the quality of justice partly depends on the degree of assistancegiven by the Bar, including the “official Bar”. The Attorney-General wasa party to the proceedings, the 79th Respondent in S.C. Application No.66/95 and the 46th Respondent in S.C. Application No. 67/95; but hewas not present or represented though noticed. When assistance is notavailable, or is inadequate, the Court must nevertheless act, doing thebest it can in the circumstances.
In Billimoria'scase, (supra), Samarakoon, CJ. at p. 15observed, withsome asperity, as follows: “The Attorney-General stated that had theCourt the benefit of a full argument it would not have made the stay order.This kind of argument gives little credit to the Judges and undue creditto the pleader.” In the cases relating to the petition before us, thequestion of parliamentary privilege in regard to the admissibility of thereport of the speech received the consideration it did in the judgmentsdelivered because one of the Judges raised it, supplying what somepeople may suppose was a gap in the case for the 1st Respondent.However, there is nothing to show that had the matter not been raisedby Perera, J. the Court would have acted per incuriam. AdmittedlyWijetunga, J. in his draft judgment did not deal with the question ofparliamentary privilege; not being a contentious matter when he pre-pared his judgment, he was not obliged to deal with it. It does not meanthat he had overlooked the question.When Perera, J. expressed hisviews, neither Wijetunga, J. nor Fernando, J. were convinced by hisLordship’s reasoning. Perhaps, had learned Counsel dealt with thematter, he might have been more persuasive? But does that make the
128
Sri Lanka Law Reports
[1996] 1 SriL.R.
decision one that was given perincuriam? Halsbury (Vol. 26 paragraph578, followed with approval in Hettiarachchi(supra) at p. 299) states:“A decision should not be treated as given perincuriam, however, simplybecause of a deficiency of parties, or because the court had not thebenefit of the best argument”.
In London Street & Tramways Co. v London Council,m where thequestion was whether a decision of the House of Lords was conclusiveand binding, it was held that it was. The Earl of Halsbury, LC, at pp. 380- 381, responded as follows to the submission of counsel:
My Lords, I only wish to say one word in answer to a very ingeniousargument which the learned counsel set before your Lordships. Itis said that this House might have omitted to notice an Act ofParliament, or might have acted upon an Act of Parliament whichwas afterwards found to have been repealed. It seems to me thatthe answer to that ingenious suggestion is a very manifest one -namely, that that would be a case of a mistake of fact. If the Housewere under the impression that there was an Act when there wasnot such an Act as was suggested, of course they would not bebound, when the fact was ascertained that there was not such anAct or the Act had been repealed, to proceed upon the hypothesisthat the Act existed. They would then have ascertained whether itexisted or not as a matter of fact, and in a subsequent case theywould act upon the law as they then found it to be, although beforethey had been underthe impression, on the hypothesis I have put,either on the One hand that an Act of Parliament did not exist, oron the other hand that an Act had not been repealed (either casemight be taken as an example) and acted accordingly. But whatrelation has that proposition to the question whether the samequestion of law can be reargued on the ground that it was notargued or not sufficiently argued, or that the decision of law uponthe argument was wrong? It has no application at all.
The emphasis is mine.
Hettiarachchi'scase is not an exception to the rule that the Court willnot review or revise its judgment in the exercise of its inherent powerson the ground that the Court had not the benefit of the best argument.
sc
Jeyaraj Fernandopulle V. De Silva and Others
(Amerasinghe, J.)
129
In fact, the Court, at page 299, expressly said otherwise. In that case,Mr. Goonesekere who subsequently appeared for the petitioner andpleaded his cause with success, unreservedly accepted the correct-ness of the decision of the Court on the two matters that had originallybeen argued. The petitioner’s application could not be sustained onthose two grounds. Counsel who had appeared earlierfailed to respondto “several not-so-subtle indications” from the Bench that certainrelevant matters should be adverted to in support of the application, (seepage 295). The Court was unwilling to descend into the forum and supplythe deficiency. At pages 300-301, the Court explained its position asfollows:
… should the Court have intervened to do what learned Counselwho then appeared for the Petitioner had failed to do? That wouldhave been quite improper; proceedings under Article 126 areessentially adversarial in nature. Of course, the Court has amplepower to probe a matter for the purpose of ascertaining the truth;to expedite the work of Court by suggesting the consideration ofissues of fact and law which seem to arise; and by indicating howa submission might be clarified or refined; and by guiding anargument in the direction of the matters of fact and law actually inissue. But it will nevertheless leave Counsel entirely free to decidewhat he wishes to place before the Court, and how he proposes todo so. The Court recognizes and respects Counsel’s right to do so.It will not encroach on Counsel’s rights, especially when herepeatedly insists on following a plan of action he appears to haveset himself and disregards suggestions from the bench as to analternative course that might be followed. We must take the caseas Counsel deems it best presented in the interest of his client.Moreover, the Court must take care to guard itself against anyappearance of bias which might result from intervention, for justicemust not only be done, but must be seen to be done. As Judges,we are expected to be neutral. Therefore the Court must refrainfrom entering into the arena by initiating and presenting legal andfactual submissions on behalf of a party. In Jones vNational CoalBoard,11671 Lord Denning said:
(The judge) must keep his vision unclouded… let the advocatesone after the other put the weights into the scales – the nicely
130
Sri Lanka Law Reports
[1996] 1 Sri L.R.
calculated less or more • but the judge at the end decides whichway the balance tilts, be it ever so slightly… The judge’s part inall this is to hearken to the evidence, only himself asking questionsof witnesses when it is necessary to clear up any point that hasbeen overlooked or left obscure; to see that the advocates behavethemselves seemly and keep to the rules laid down by law; toexclude irrelevancies and discourage repetition; to make sure bywise intervention that he follows the points that the advocates aremaking and can assess their worth; and at the end to make up hismind where the truth lies. If he goes beyond this, he drops themantle of a judge and assumes the role of an advocate; and thechange does not become him well… Such are our standards.
The subsequent matter before the Court in Hettiarachchi, (supra)was not an application for review or revision. The Court had refused thepetitioner leave to proceed with his application. Although the decisionof the Court was final, the terms of its order clearly indicated that theCourt was not satisfied that all the relevant material had been placedbefore it. In the “exceptional circumstances of the case”, (pp. 304-305)the Court granted the petitioner leave to proceed.
Nor is Broome v Cassell & Co Ltd. & Another,m a persuasiveprecedent that might assist the 1 st Respondent -petitioner. In Rookesv Barnard,m Lord Devlin, in the words of Lord Denning at p. 198 inBroome’s case,
… threw over all that we ever knew about exemplary damages. Heknocked down the common law as it had existed for centuries. Helaid down a new doctrine about exemplary damages. He said thatthey could be awarded in two very limited categories but in noother, and all the other Lords agreed with him …
Denning, MR, quoting examples, pointed out that there had been a“wholesale condemnation” of the new doctrine in Commonwealth coun-tries. His Lordship pointed out (at pp. 198 – 200) that counsel who arguedRookes v Barnard had
. . . accepted the common law as it had been understood forcenturies and did not suggest any alteration of it. Yet the House,
sc
Jeyaraj Fernandopulle V. De Silva and Others
(Amerasinghe, J.)
131
without argument, laid down this new doctrine. If the House weregoing to lay down this new doctrine • so as to be binding on all ourcourts • it ought at least have required it to be argued. They mightthen have been told of the difficulties which it might bring in itswake … Next I say that there were two previous cases in whichthe House of Lords clearly approved the award of exemplarydamages .. .It was not open to the House in 1964 to go againstthose decisions. Lord Devlin must have overlooked them, for hesaid that ‘there is not any decision of this House approving anaward of exemplary damages’. Finally, I say that the new doctrineis hopelessly illogical and inconsistent… All this leads me to theconclusion that, if ever there was a decision of the House of Lordsgiven per incuriam, this was it.
A decision of the Supreme Court, that is to say a decision of themajority of Judges of any Bench of the Court constituted according tothe provisions of law, is the decision of the Supreme Court. Such adecision is final and conclusive. The Supreme Court has no statutoryjurisdiction to vary, review, revise or in any way alter or amend itsdecision, even though it may be alleged to be wrong. The Supreme Courtas a superior court of record, however, has a certain reserve of powerswhich are generally referred to as ‘inherent powers’ which the Constitu-tion recognizes in Article 105 (3): (Per Samarakoon, CJ. inGaneshanatham, (supra) at p. 329; cf. Garvin, SPJ in Mohamed vAnnamalai Chettiar, (supra). In the exercise of its inherent powers, theCourt may revise its decision in certain limited circumstances. “Thegrant of such relief is of course a matter entirely in the discretion of theCourt and will always be dependent on the circumstances of eachcase”. (Per Weeramantry, J. in Rajuv Jacob (supra). The exercise ofthe jurisdiction of the inherent powers of a Court, including the SupremeCourt, must be in “appropriate circumstances” (Per T.S. Fernando, J. inRanmenikhamy, (supra) at p. 215). In that connection, it must beremembered that the jurisdiction which the Court is called upon toexercise is “extraordinary” (per Kulatunga, J .in All Ceylon Commercial& Industrial Workers Union, (supra) at p. 296). Where it is not a matterin which a decision has been given in ignorance or forgetfulness of someinconsistent statutory provision or of some authority binding on it – sothat it cannot be said that it is a case in which some part of the decisionor some step in the reasoning on which it is based is, on that account,
132
Sri Lanka Law Reports
[1996] 1 Sri L.R.
demonstrably wrong, then, as pointed out in Morelle Ltd., (supra) andfollowed by Ranasinghe, J. in Ganeshanatham, (supra), at p. 355, anintervention on the ground that the Court had actedperincuriam mustbe “of the rarest occurrence”. In deciding whether it is a case whichcomes within the scope of the inherent powers of this Court, and whetherit is one in which those powers must be exercised, the Court must act“in accordance with sound legal principles and not arbitrarily”: (perGarvin, SPJ nMohamedv AnnamalaiChettiar). The Court guides itselfby reference to parallel instances in legislation, (e.g. see Mohamed vAnnamalai Chettiar (supra)', and Jacob vRaju, (supra))', or by decisionsin analogous cases, (e.g. see The King vBaron Silva, (supra); Palithav O.I.C. Polonnaruwa and others, (supra), and All Ceylon Commercial& Industrial Workers Union v Ceylon Petroleum Corporation andanother, at p. 297); or by reference to the practice of the courts incomparable situations, or by a combination of such methods (e.g. seeMenchinahamyvMuniweera, (supra)), having regard to what is appropri-ate in the circumstances of the case. The Supreme Court is “a Court ofJustice" (per Abrahams, CJ in Velupillai v The Chairman U.D.C., Jaffna,(supra) and the Court can intervene to prevent injustice. (Cf. perSamarakoon, CJ. in Ganeshanatham at p. 329). However, as Garvin,SPJ pointed out nMohamed vAnnamalai Chettiar, (supra), the powersof the Court in that regard, are not, as it js sometimes supposed, “equalto its desire to order that which it believes to be just”. No Court, muchless any judicial officer, including the Chief Justice, may disregard thelaw of the land or purport for any reason whatsoever to ignore itsprovisions, for justice must be done according to law: (cf. per Garvin,SPJ in Mohammed v Annamalai Chettiar, (supra); and per LordLoreburn in Brown v Deam and Another.(70), including the provisions ofthe Constitution, (and Rules made thereunder: cf. Young v BristolAeroplane Co.(supra) at p. 300), the enactments of the Legislature andthe inveterate practices of a Court. (Cf. Suren Wickramasinghe andOthers v Cornel Lionel Perera and Others(supra). The inherent powersof a Court are adjuncts to existing jurisdiction to remedy injustice.Theycannot be made the source of new jurisdictions to revise a judgmentrendered by a Court. (Per Samarakoon, J. inGaneshanatham,(supra)at 329; per G.P.S. de Silva, CJ. in Senerath v Chandraratne (supra) atp. 216; per Kulatunga, J. in All Ceylon Commercial & Industrial WorkersUnion (supra) at p. 297).
sc
Jeyaraj Fernandopulle V. De Silva and Others
(Amerasinghe, J.)
133
For the reasons stated in my judgment, this Court has no statutorypowers to rehear, revise, review or further consider its decisions in S.C.Applications Nos. 66/95 and 67/95; and there are no grounds for holdingthat there are circumstances that bring those decisions within thescope of the inherent powers of this Court. I, therefore, reject thepetition.
For the removal of doubt, I declare the directions made by the Hon.Acting Chief Justice dated the 22nd of December 1995 suspending theoperation of the decisions of the Court in S.C. Applications Nos. 66/95and 67/95 to be of no force or avail.
There will be no costs.
G.P.S. DE SILVA, C.J. -1 agree.
WADUGODAPITIYA, J. -1 agree.
RAMANATHAN, J. -1 agree.
ANANDACOOMARASWAMY, J. -1 agree.
Petition rejected.