034-SLLR-SLLR-2002-3-RANMENIKE-v.-SENARATNE.pdf
274
Sri Lanka Law Reports
[2002] 3 Sri LR.
RANMENIKE
v.SENARATNE
COURT OF APPEALTILKAWARDANE, J. ANDWIJERATNE, J.
HCA NO. 408/92OCTOBER 21, 2002
Writ of Habeas Corpus – Exemplary costs – When should it be ordered? – Isit punitive?
Held:
Exemplary means outstanding or in context exceeding the amount needed
for simple compensation.
It is a method of imposing a fine in lieu of a separate action for civil damagesfor enhanced or exemplary costs which was to penalize the parties whohad made false declarations to court.
Prior to awarding exemplary costs the court has to determine as to whethera respondent is liable for the arrest / detention of the corpus.
Per Tilakawardane, J.
"Another important aspect of exemplary costs is that in a way it involvesa punitive effect against those found liable; it is a form of punishment to deterothers from following such action specially in carrying out their official duties
APPLICATION for a writ of habeas corpus.
Cases referred to :
K. Leela Violet v. I. P. Vidanapathirana and Others – (1994) 3 SLR 337.
Sebastian M. Hongray v. Union of India – (1984) AIR SC 1026.
Kodippilige Seeble v. Savanathan and Others – (1986) 2 Sri LR 228.
CA
Ranmenike v. Senaratne (Tilakawardane, J.)
275
A. A. de Silva, PC with Jayalath Hissella and Sarath Weerakoon for petitioner.Asoka Weerasooriya with Chandrika Thilakaratne for 2nd respondent.
Arjuna Kurukulasuriya for 1st respondent.
Gihan Kulatunga, State Counsel for Attorney-General.
October 21, 2002S. TILAKAWARDANE, J.
Learned President’s Counsel appearing for the petitioner hasconceded in his argument that he is not proceeding against the5th respondent, the Commander of the Army nor Colonel Liyanage,the 2nd respondent, who at all times material to this applicationwere in charge of the Sevana Army Camp at Ratnapura.
All parties to this case have conceded that the only matter thatis in issue is whether this court should award exemplary costs tobe paid by the 1st and 3rd respondents to the petitioner.
It is important to note that the definition given in the OxfordDictionary for the word exemplary means outstanding, in other wordswhere it is connected to the word damages, it means outstanding orin context exceeding the amount needed for simple compensation.The term exemplary costs was introduced to our courts by the decisiongiven in the case K. Leela Violet v. I. P. Vidanapathirana and Others.™
An analysis of this judgment discloses that the original conceptof exemplary costs had come from the Indian case of Sebastian M.Hongray v. Union of India.® Justice Desai, dealing with similar
01
10
276
Sri Lanka Law Reports
[2002] 3 Sri LR.
applications in which the corpora had disappeared but where therespondents were denying liability, evolved a novel method of grantingrelief. Whilst identifying the writ jurisdiction of the habeas corpusapplications to obtain the release of a person from illegal detention,he clearly recognised that such applications could not be used toobtain punishment or to afford reparation to the wronged person.He, therefore, developed the concept that, by the very denial of theparties who are responsible, namely the respondents in a case, therehad been a misleading of the court. In other words there could havebeen charges of civil contempt which could have been preferredagainst the respondents, upon their denial especially when inquiriesheld subsequently revealed that such denials were false. In suchinstances no doubt civil contempt would lie against the perpetrators.Civil contempt was admittedly punishable with imprisonment as wellas a fine. So, the court evolved this method of imposing a fine, inlieu of a separate action for civil damages for enhanced or exemplarycosts, which was to penalize the parties who had made false declarationsto the court. In fact, this concept of false denial of arrest and custodyof individuals was also referred to by Justice Mark Fernando inHabeas Corpus application No. 19 of 1988 which has also beenadverted to in the case of K. Leela Violet v. I. P. Vidanapathirana(supra). In this case there is no doubt that the prerequisites forawarding of exemplary costs should be considered by this court, butin considering the same we should also remember that there is apunitive aspect involved in the awarding of such costs.
However, prior to this award this court has to make certaindeterminations, as to whether a respondent is liable for the arrestand/or detention of the corpus and though it is not accepted thatsuch should be of the standard required in criminal Taw. KodippiligeSeetha v. Savanathan and Others.<3) In terms of the findings in theHigh Court of Ratnapura case No. 121/94 against the 1st and 3rd
20
30
40
CA
Ranmenike v. Senaratne (Tilakawardane, J.)
277
respondents their liability had been proved beyond reasonable doubtand they have been accordingly convicted by the High Court ofRatnapura. In this sense, it is also important to note that thereforethe denial in these pleadings in this application by the 1st and 3rdrespondents were false. In terms of the facts and circumstances ofthis case, clearly the disappearance of the corpus was attributableto the 1st and 3rd respondents and the denial of arrest and detentionmade by them in their affidavits were patently false especially in termsof the findings in the aforesaid High Court case. Thus, the denial bythe 1st and 3rd respondents are false statements made to this courtand attracts the liability of civil contempt.
Another important aspect of exemplary costs is that, in a way itinvolves a punitive effect against those found liable. In other wordsit is a form of punishment to deter others from following such actionsspecially in carrying out their official duties. The senior counsel arguingon behalf of the petitioners have stated that this relief of cost is grantedin a way to assuage the grief of the petitioner. This would be anunderstatement as this court is in no way able to make reparationfor the loss that has been suffered by them, and specially the lossof the members of their own families.
However, it also to be remembered that these petitioners havetraversed a long and hazardous path overcoming many bars andobstacles to ultimately obtain their relief, at least in so much as theirsatisfaction of knowing that the culprits to this hideous crime havebeen convicted of charges.
Therefore, as the costs of seeking relief through court has beenincurred by them, this court feels that the awarding of costs is justand necessary under the circumstances.
50
60
70
278
Sri Lanka Law Reports
[2002] 3 Sri L.R.
However, in awarding the punitive costs the very high punitiveaspect which would normally have been considered by this court istempered by the fact that both the 1st and 3rd respondents after their
convictions are serving a period of 10 years’ rigorous imprisonmentfor the actions which are included in the allegations made in theseapplications.
Having considered all these this court awards a sum ofRs. 35,000, as exemplary costs to be awarded by the 1st respondentto the petitioner in this case. A period of time is being given for thepayment of these charges. For this purpose this case is to be mentionedon 12.12. 2002. Failure to pay such costs, will render the respondentsliable to a period of one year’s rigorous imprisonment.
The Registrar is required to officially inform the 1st and 3rdrespondents of the decision of this court in this matter and a certifiedcopy of this decision is to be annexed and served to the 1st and3rd respondents through the Superintendent of Prisons, as therespondents are presently serving a sentence.
WIJERATNE, J. – I agree.
Exemplary costs fixed at Rs. 35,000 awarded.
80
90