Legal Services and Laws of Sri Lanka


SLR-1982 Vol.2-P617

SLR - 1982 Vol.2, Page No - 617

BANDARANAIKE
v.
DE ALWIS AND OTHERS
SUPREME COURT
SAMARAKOON, C.J., WIMALARATNE, J., AND COLIN-THOME, J.
S. C. 1/82
SEPTEMBER 1, 1982.

Charge of personal misconduct of Judge - State seeking to intervene - Interests of justice -Thirdpartyseekingtobe
added - No charge against him - Constitution, Article 134(3) - Court's power to hear necessary party.

The petitioner alleged that the Special Presidential CommissionhadissuedaNoticeunderSection16oftheSpecial
Presidential Commission Law informing A.H.M. Fowzie that he was a person whose conduct should be the subject ofinquiryand
requiring him to file a statement if he challenged the allegations in the evidence led at the inquiry.

The petitioner further alleged that while Fowzie continued to be subject to the jurisdiction of the Commission ofwhichthe
1st respondent was a member he knowingly engaged in financial transactions with Fowzie and thereby was guiltyofmisconduct
and corruption and compromised his position and not qualified to act as a Member of the Special Presidential Commission.

The Attorney General in the interests of justice and Fowzie because insinuations had been made against him sought to
intervene under Article 134 of the Constitution.

Held -
1) That the allegations involved the personal conduct of the 1st respondent in his private dealings in which theStatewas
in no way involved and therefore it was not necessary to hear the Attorney-General.

2) That conduct of the 1st respondent in entering into a common legal transaction when he was amemberoftheCommission
which had assumed jurisdiction over Fowzie was the question and not the conduct or corruption of Fowzie.

Cases referred to:
(1) The United India Fire and General Insurance Co. Ltd. v. Weinman (1958) 59 NLR 495.

(2) The Chartered Bank v. De Silva (1964) 67 NLR 135.

APPLICATION to intervene in writ proceedings.

G.F. Sethukavaler, S.A., with Lakshman de Alwis instructed by Mrs. P.K. Nanayakkara for applicant.

K.M.M.B. Kulatunge, acting S.G. with Suri Ratnapala, S.C.instructedbyT.G.Gooneratne,StateAttorneyforAttorney-
General.

P. Navaratnarajah, Q.C., with Dr. M.L.S. Jayasekera, Kanag-IswaranandK.SivananthaninstructedbyMessrsSrinivasan,
Amaratunge and Pararajasingham for 1st respondent.

September 20, 1982

SAMARAKOON, C.J.

The petitioner has made an application for Writs of Quo Warranto and Prohibition in terms of the proviso toArticle140of
the, Constitution of the Democratic Socialist Republic of Sri LankareadwithSection18AoftheSpecialPresidential
Commission (Special Provisions) Act No. 4 of 1978 seeking an order that 1st respondent has become"unabletoact,andis
disentitled to hold office of and to function as a Member of the SpecialPresidentialCommissionofInquiry"andfora
further order restraining and preventing him from continuing to exercise or to function in the saidoffice.Thepetitioner
alleges that the Special Presidential Commission -acting under the provisions ofSection16oftheSpecialPresidential
Commission of Inquiry Law No. 7 of 1978. had issued a notice on A.H.M. Fowzie informinghimthathewasapersonwhose
conduct should be the subject of inquiry and requiring him to file a statement if he challenged any allegations containedin
the evidence led at the preliminary inquiry. The petitioner further alleges thatwhilethesaidFowziecontinuedtobe
subject to the notice and thereby subject to the jurisdiction of the Commissionthe1strespondentknowinglyengagedin
financial dealings with the said Fowzie. The dealings comprise a land transaction, the details of which are not relevantfor
this application. By so doing, the petitioner states, the 1st respondent has -

"(a) committed an act of grave misconduct,
(b) vitiated his integrity, and thereby shown himself to be corrupt, and guilty of corruption, and thereby,
(c) compromised his position as a Judge of the Court of Appeal, by his misbehaviour, and
(d) become 'unable to act' as a Member of the Special Presidential Commission of Inquiry, under section 3(1) of the said Law
No. 7 of 1978."

Two applications have now been filed seeking permission to intervene in these proceedings. One is by the State Attorneywho,
seems to have been alerted by copies of notices and documents served on the Attorney-General from timetotime.TheState
Attorney moves that the Attorney-General be granted a hearing because "it appears from the materialfiledsofarthatit
would be in the interests of justice that the Attorney-General appears on behalf of the State at thehearingoftheabove
application." An unusual kind of application. He is not seeking to be added as a party for the reason that theinterestsof
the State would be adversely affected by any order that will be finally made. It is simply on the basisthattheinterests
of justice would be served if the Attorney-General is heard on behalf of the State. The gravamen of the allegationsinvolves
the personal conduct of the 1st respondent in his private dealings in which the State isinnowayinvolved.Ifinthe
course of the proceedings this Court considers it necessary to hear the Attorney-General hewillcertainlybenoticedas
amicus curiae. Such a stage has not been reached. I therefore refuse the application of the State Attorney.
The other application is one made by the said A.H.M. Fowzie. He has filed an affidavit and moves that he be allowedtotake
part in these proceedings and be heard. He states thatthe"imputationsandinsinuationsofimproprietyandsuspicion
relating to the conduct and dealings between the 1st respondent" and himself and allegations ofcorruption,misconductand
scandal touch on him also. He further statesthatanadversefindingagainstthe1strespondentwouldhaveserious
consequences on his integrity and expose him to the jeopardy of the law's processes. He pleads that he isabusinessman,a
social worker, a politician and that. he once held office as Mayor of Colombo. Counsel appearing for himsoughttojustify
this application under the provisions of Article 134(3) of the Constitution of 1978 which reads as follows:-

"134(3) The Supreme Court may in its discretion grant to any other person or his legal representativesuchhearingasmay
appear to the Court to be necessary in the exercise of its jurisdiction under this Chapter."

The Attorney-General has of right to be heard in the seven instances set out in Article 134(1). A party to aproceedinghas
a similar right of being heard in person or by representative in such proceedings [Article 134 (2)]. Anyotherpersonwill
be heard if the Supreme Court thinks that such person should be heard. The provisions of Article 134(3)givetheCourtan
unlimited discretion. The petitioner cited two decisions of the Supreme Court. The first is thecaseofTheUnitedIndia
Fire and General Insurance Co. Ltd. vs. Weinman (1). That was a case arising from a motor collision resulting in injuriesto
the plaintiff. The plaintiff claimed damages against the owner of the motor vehicle and hisdriver.TheInsuranceCompany
sought to be added stating that it was a necessary party because, as the in surer of the motorvehicle,theCompanywould
eventually be liable to honour any decree entered against the owner of the, motor vehicle. The SupremeCourtrejectedthis
argument on the ground that any order against the owner would not affect the Company's legalrightsandinanyeventno
liability wouldarise until and unless a decree Js entered against the insured as provided in Section 105(1)oftheMotor
Traffic Act.

The next case cited by the petitioner is the case of The Chartered Bank vs. De Silva (2). This was a case in whichtheBank
sought to be added as a party under the provisions of Section 18 of the Civil Procedure Code. It was held that theBankwas
only a material witness and its presence was therefore not necessary inordertocompletelyandeffectuallydecidethe
questions involved in the action.

The words of Article 134(3) are of wider import than Section 18 of the Civil ProcedureCode.Thewordnecessaryinthis
Article is not restricted to a hearing for the purpose of exercisingthejurisdictionconferredbyChapterXVIofthe
Constitution. It goes way beyond such limits. It gives the Court the discretion to hear any person if it considersthatthe
interests of justice require that he be heard.

In that view of the provisions of Article 134(3) the question I ask myself is whetheritisnecessarytohearthesaid
Fowzie to decide the allegations against the 1st respondent.Thetransactionofsaleandpurchaseisacommonlegal
transaction. It is not the transaction that is impugned. It is the conduct ofthe1strespondentinenteringintosuch
transaction at a time when he was a Member of the Commission which had assumed jurisdiction over the said Fowzie in termsof
section 16 of the Law No. 7 of 1978that is now in question. This court need not, and indeed is not called on to decideany
allegations of misconduct or corruption against Fowzie. Though no doubt, if such a development takes place in thecourseof
the hearing this Court might then consider the necessity of hearing Fowzie. I therefore refuse this application too.IMake
no order for payment of costs against either the Attorney-General or Fowzie.

WIMALARATNE, J. - I agree.

COLIN-THOME, J. - I agree.

Application refused.

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