Legal Services and Laws of Sri Lanka


SLR-1994 Vol.3-P91

SLR - 1994 Vol.3, Page No - 91

BROWN & CO. LTD. AND ANOTHER
v.
RATNAYAKE, ARBITRATOR AND OTHERS
SUPREME COURT
BANDARANAYAKE, J.
KULATUNGA, J.
WADUGODAPITIYA J.
S.C. APPEAL NO. 18/90

S.C. SPL. L.A. 59/90
C.A./LA./S.C. 15/89
C.A. APPLICATION NO. 566/85
JANUARY 17 AND APRIL 03,1992.

Certiorari - Non-compliance with Rule 46 of the Supreme Court Rules of 1978 - Failure to file certified copyofproceedings
where impugned award of Arbitrator was made in respect of services - Rule 50 of the Supreme Court Rules - Interest onamount
awarded.

Held:
Rule 46 of the Supreme Court Rules of 1978 requires the petition to be supportedbyaffidavitandtobeaccompaniedby
original or duly certified copies of documents material to the case in the form ofexhibits.Theburdenofpresentinga
proper application is on the party that seeks the intervention of the Court. The procedure is specifiedforthisthreshold
stage. The Rule regulates the mode of enforcing a legal right. The petitioner has to tenderallrelevantmaterialtothe
Court in order to invoke its jurisdiction. If he fails to do this there is a failure to comply with a substantialaspectof
the Rule. The fact that the Court is empowered by Article 140 toinspectandexaminetherecorddoesnotabsolvethe
petitioner of his duty to invoke jurisdiction properly.
The fact that the record was subsequently made available to courtisnotanexcuseforfailuretocomplywithbasic
requirements of the Rule. One cannot claim a right to proceed to the next step without compliance with a valid invocationor
jurisdiction in the first place. Such would lead to uncertainty, unreasonableness and oppressive results. In thissensethe
rule is mandatory.

In this view of the matter dismissal for want of compliance with necessary basics is an order that maybemadewithinthe
Rule, a necessary corollary to it and does not amount to an amendment, alteration orrevocationoftheRuleapprovedby
Parliament. The Court here is only articulating the real scope of theRuletogiveeffectandexpressiontoit.This
interpretation does not widen the ambit of the Rule.
Although the Rule does not expressly provide for dismissal the question of obtaining the approval of. Parliament tomakean
order for dismissal does not srise. Dismissal is in the scheme of the Rule.
No effort was made by the petitioner's to seek permission of the Court of Appeal to tender additional documents astheymay
have done under Rule 50. Under rule 50 the Court of Appeal has discretionary powers where appropriate, to admit materialnot
tendered with the petition. In these circumstances the Court below wasentitledtorefusetoproceedfurtherwiththe
application.
In view of the fact that the Arbitrator's award was as far back as 1985, legal interestontheaggregatesumpayableis
awarded.

Cases referred to:
1. Nicholas v. Macan Markar (1981) 1 Sri L.R. 1.
2. Rasheed Ali v. Mohamed Ali (1981) 2 Sri L. R. 29.
3. Rasheed Ali v Mohamed Ali (1981) 1 Sri L. R. 262.
4. Koralage v. Mohamed (1988) 2 Sri L. R. 299
5. Mary Nona v Francina (1988) 2 Sri L. R, 250
6. Paramanathan v. Kodituwakkuaratchi (1988) 1 Sri L. R. 315, 333.
Appeal from order of the Court of Appeal.

H. L. de Silva P.C. with Desmond Fernando P.C. and Nigel Hatch for plaintiff appellant.

Romesh de Silva P.C. with Geethika Gunewardena for defendant-respondent.

November 26, 1992.

BANDARANAYAKE. J.
1. This is an appeal from an Order oftheCourtofAppealdismissinganapplicationforaWritofCertiorarifor
noncompliance with Rule 46 of the Supreme Court Rules 1978. The AwardsoughttobequashedwasmadebyanArbitrator
appointed by the Minister under the Industrial Disputes Act.
2. The dispute referred for Arbitration related to the termination of the 3rd Respondent's services by the Petitioners.
3. By paragraph 15 of the Petition filed before the Court of Appeal the Appellants averred that theAwardwasbadinlaw
and/or discloses errors of law on the face of the record, in that (among other averments):
(a) conclusions drawn from the primary evidence are perverse and/or are such that no reasonable person duly versed inlabour
relations law could have drawn, in particular:
(i) taking into account irrelevent evidence andcircumstancessuchasthatthe3rdRespondentwasashareholderin
justifying his
misconduct
(b) the failure to take into account relevant evidence in arriving at findings, in particular:
(ii) the poor performance of the 3rd Respondent in cross-examination and his admission .....
4. It was also averred by the Appellants that the partieshad,inaccordancewiththepracticeanddirectionofthe
Arbitrator, tendered (to the Arbitrator) written statements setting out in full their respective cases.TheAppellantsled
evidence of an Executive Officer and marked documents R 1 to R 20 andthe3rdRespondentgaveevidenceandcalledtwo
witnesses on his behalf at the inquiry before the Arbitrator. After conclusion of the evidence, oral and documentarywritten
submissions were made by the parties.
5. Along with the proxy, petition and affidavit tendered by the Appellants in the application made to the Court of Appealon
16.5.85 the Petitioners only annexed and tendered 10 documents marked "A" to "J". The proceedings had beforetheArbitrator
or other documents were not tendered to the Court of Appeal.
6. The application was first taken up for hearing by the Court of Appeal on 4.7.88. Apreliminaryobjectionwastakenon
behalf of the 3rd Respondent to the application on the ground that Rule 46 of the SupremeCourtRules1978hasnotbeen
complied with by the Appellants, in that a certified copy of theproceedingshadnotbeenfiled.Counselforthe3rd
Respondent submitted that a certified copy of the proceedings was necessary for a properadjudication,buttheAppellants
insisted that all documents material to the case has been filed and that they would stand orfallbythoseexhibits.The
Court took the view at that initial stage that it would become necessaryfortheCourttodecidewhetheraparticular
document was material to the case or not and to decide that the Court had to enquireintotheapplicationasitcanbe
decided only in the course of the hearing. The Court thus taking the view that it was premature to decide this question asa
preliminary issue, overruled the preliminary objection aforesaid and made order on27.(}9.88 that ..."theapplicationbe
listed for hearing in due course".
7. The journal entries of 10, 10.89 and 11. 10.89 of the Court of Appeal Record show as follows:
10.10.89 - Appearances marked (Senior Counsel had appeared for bothsides.Caseproceedingfurtherinquiryon11.10.89
(tomorrow)11.10.89 - Same appearances as before. Order reserved for 15.10.89
8. on 15.10.89 order was delivered by the Court ofAppeal.BythatOrdertheCourtdismissedwithcoststhe
appellants application for a writ of certiorari. This appeal is from that order. In doing so theCourtmadethefollowing
observations and gave the following amongst other reasons for its order:

Quote :
"The Award was made on 13.01.85 and gazetted on 15.03.85. This application was madeon16.05.85.thepleadingsshowthe
Petitioner relied only on the exhibits annexed to the petition and not on the proceedings (vide paragraphs 15 and 17ofthe
petition) .
. . No reason is pleaded in the petition as to why the proceedings are not annexednor doesthepetitionstatethatthe
proceedings will be tendered later, . . . The application was supported on 31.5.85 and notice issued. Objectionswerefiled
on 19.8.85 and the 3rd Respondent specifically pleadednoncompliancewithRule46oftheSCRules1978...Despite
objections the Petitioner did not tender the proceedings but filed a motion dated 13.01.86 moving that the recordbecalled
for ... On 4.7.88 when objections were taken that Rule 46 had not been complied with,CounselforthePetitionersStated
"documents mentioned to the case have been filed and they would stand or failbytheirownexhibits."Inviewofthis
statement, by my judgement dated 27.09.88, I left this issue open ... No otherdocumentsorproceedingshavebeenfiled
since ... Learned Counsel for the Petitioners is now seeking notonlytorefertotheproceedingsbutalsotoother
documents as well. It is now claimed thatcertainproceedingsanddocumentshavebeentendered.Thereisnorecord
whatsoever of such proceedings or documents being either tendered to Court to served on the 3rdRespondent.ThePetitioner
is unable to state as to when these (additional) documents were tendered. In any event proceedings ordocumentscouldhave
been tendered only upon a motion and with permission of Court after notice to the 3rd respondent in terms of Rule 50ofthe
SC Rules. This has not been done. Further, the material said to have been tendered are uncorrected uncertified copies ...In
the instant case the Petitioner having stated that he was relying only on theoriginalexhibitsfiledandpreventedthe
application from being dismissed (on 27.09.89) cannot now resile from that position. By seekingtorelyondocumentsand
proceedings which have not been duly tendered the Petitioners impliedly admit thatthepetitionaspresentlyconstituted
cannot be sustained ... The Appellants has not adduced any reason as to why there has been non-compliance with Rule46.The
application ... is dismissed with costs."
Whilst vigorously contending that the Court of Appeal should have allowed him to support his application on the 10documents
tendered, learned president's Counsel for the Appellant also submitted that:

(i) In the Court of Appeal the Appellants moved the Court to call for the record front he Industrial Court. CourtofAppeal
made order calling for such record on 13.1.86. The record was received by the appellate Court on 16.1.86.itwassubmitted
the relief invoked involved the appellate tribunal having to inspect and examine suchrecord-videArticle140ofthe
Constitution. Certiorari proceedings begin with such examination. Therefore, irrespective of the Petitioner filingcertified
copies of proceedings, they are to be found in the record which Court inspects. No prejudice can therefore be causedtothe
Respondent in the circumstances.

(ii) The rule-making power of the Supreme Court was governed by Article 136 (1) (b) of the Constitution, whichprovidesfor
Parliamentary supervision. Rule 46 does not provide for dismissal of an application for non-compliance.Parliamenthasnot
been made aware that the appellate Courts prescribe dismissal as a penalty for non-compliance with rule 46 by the processof
interpretation of the Rules. Parliament may well consider such a penalty as excessively harsh orunfair.Itwassubmitted
the supreme Court has no inherent power to interpret rules as its powers are here circumscribedbytheConstitutionwhich
prescribed for parliamentary supervision of the rule-making power of the Court. There is also no room for the applicationof
precedents. In a written Constitution when power is prescribed there is no room for arrogation ofinherentpowers.Ifthe
Supreme Court thought that Rule 46 should be imperative it would have prescribed for same. Ithasnot.TheRulesmaybe
amended but only with the approval of Parliament. That hasnotbeendoneregardingRules46.Thereforethepowerof
dismissal for noncompliance is not available to a Court. In previous decision of the Courtswhichheldthattheruleis
mandatory, to wit:
Nicholas v. Macan Markar (CA) (1)

Rasheed Ali v. Mohamed Ali(2) and(3)

Koralage v. Mohamed (CA)(4)

Mary Nona v. Francina (CA) (5)
the Courts have not counsidered the impact of Article 136 (1) (a) and (b) and (3) and (4) of the Constitution.Counselalso
compared the rule-making powers of Section 39 of the former Courts ordinance and Section 15 of the formerAdministrationof
Justice law which required the concurrence of the Minister to the rules framed.
(iii) Appellants Counsel dealing with the factualpositionregardingtheapplicationsubmittedthatthe10documents
tendered provided sufficient information to establish a prima facie case.ButtheCourtdidnotgettothestageof
examining those documents. The Court dismissed the application prematurely for alleged non-compliance with Rule 46.
Appellants Counsel in the course of oral submissions before us said that the told the Court of Appeal that the10documents
tendered were material and sufficient for his case and that it was not necessary to also have the proceeding held beforethe
arbitrator. The Record was also available. In the result Petitioners Counsel contended there had beensufficientcompliance
with Rule 46 and that his application should be decided on its merits.
Learned Counsel for the 3rd Respondent on the other hand submitted that all documents relevant tothecasehavenotbeen
tendered. Material documents such as the proceedings before the Arbitrator which are essential forapropergraspofthe
dispute have been deliberately left out. There was a lack of begrime fides on the part ofthePetitioner.Thearbitration
proceedings itself were deliberately prolonged on frivolous grounds and vexations applications. The 10 documents tenderedto
the Court of Appeal along with the petition were not enough. Counsel submitted that the Appellants merely joined issue asto
whether Rule 46 was mandatory or not ... (ie) that they only canvassed matters of law in the Court of Appeal. Theirposition
was that the Rule was merely directory and that the Court had no power of dismissal complaining thatsuchwouldamountto
judicial legislationbut the Petitioners didnotcontendthatallmaterialdocumentshavebeentenderedtoCourt.
Respondents Counsel explained the contents of the Petitioners 10 documents tendered to wit:
A- an earlier decision of the Court of Appeal as to who should commence leading evidence before the Arbitrator -
on whom was the burden of proof

B- an earlier order of the arbitrator as to whether his inquiry should proceed ex parte

C- an earlier order of the Court of Appeal that the inquiry before the arbitrator should commence afresh
D- the arbitrator's Award

E - I- 5 letters which included a memorandum and annual leave entitlement.
3rd Respondents Counsel also submitted that the material that has not been filed by the Petitioners comprised.
(i) Written statements of parties tendered to the arbitrator setting out their full positions.
(ii) 475 pages of oral evidence including the evidence of the 3rd Respondent and 2 witnessescalledonhisbehalf
who were all subjected to cross-examination.

(iii)Written submissions made to that Arbitrator.
It was contended for the 3rd Respondent that of 20 documents produced at the inquiry, only 5weretenderedtotheAppeal
Court. This would present a distorted picture and mislead the Court.
Consequently the 3rd Respondent strenuously objected to the Petitioner's claim that the 10 documentstenderedtoCourtby
the Petitioner were sufficient. The Petitioners were content to canvass only matters of law before the Appeal Courtbutdid
not contend that all relevant documents material for a proper adjudication were tendered to Court.
When the inquiry was taken up the second time inOctober1989beforetheCourtofAppeal,Petitioner'sCounselkept
referring to documents other than those 10 which had been tendered and also to oralevidencegivenbeforetheArbitrator
which proceedings also were not tendered. Even after objection was taken the Petitioners did not seektotendertheother
material and essential documents for a just decision, although such a step is permissible under Rule 50 -videParamanathan
v. Kodithuwakkuaratchi (CA).(6) Thus Counsel prayed for a dismissal of this appeal with costs and interest.

I now turn to the submissions of Appellant's Counsel that as Rule 46 does not specifically providefordismissalfornon-
observance the Court below acted without jurisdiction and that as the record was indeedavailabletherewasnoprejudice
caused to the Respondents.
Article 136 (1) provides for Rules to be made regulating generally the practice and procedure of the Courtsincludingrules
as to the proceedings in the Court ofAppealastotheexerciseoftheseveraljurisdictionsofthatCourt.Writ
jurisdiction is a special jurisdiction of the Court. This appeal deals with a procedural matterregardingtheexerciseof
this special jurisdiction.

What is the procedure to be adopted at the threshold stage of a writapplicationseekingtheinvocationoftheCourt's
discretionary powers under Article 140? Sometimes a Rule makes it plain what the effect of non-observance of the Ruleisto
be. More often it does not. It is a question of construction by looking at the scheme and purpose of the relevantrulesand
deciding whether dismissal is in the scheme of things or whether dismissalwouldamounttoanamendment,alterationor
revocation of the Rule as envisaged by Article 136 of the Constitution. Rule 46 requires thepetitiontobesupportedby
affidavit and to be accompanied by original or duly certified copies of documentsmaterialtothecaseintheformof
exhibits. Clearly then, the burden of presenting a proper application is on the party thatseekstheinterventionofthe
Court. The procedure is specified for this threshold stage. The Rule regulates the modeofenforcingalegalright.The
Petitioner has to tender all relevant material to the Court in order to invoke its jurisdiction.Ifhefailstodothis
there is a failure to comply with a substantial aspect of the Rule. The fact that the Court is empowered byArticle140to
inspect and examine the record does not absolve the Petitioner of his duty to invoke jurisdiction properly.

The Appellant's responsibilities are not over by simply filing a petitionandaffidavitintheCourt.ACourtisnot
compelled to inspect and examine the record. As a matter of fact, there is nothing on recordtoshowthattheCourtdid
inspect or examine the record in the instant case although it didcallfortherecorduponthemotionofAppellant's
Counsel. So the fact that the record was subsequently made available to Court is not an excuse forfailuretocomplywith
basic requirements of the Rule. To hold otherwise would lead to unfairness. The Rule itselfisacommonsenseresponseto
litigants wanting the disturbance of an Order or Award. It is no more than anormalproceduralstepdeemednecessaryto
inform both Court and Respondents of the matters of complaint and the matters relied upon to supportthecomplaint.Itis
consistent with ordinary practice. One cannot claim a right to proceed to the nextstepwithoutcompliancewithavalid
invocation of jurisdiction in the first place. Such would lead to uncertainty, unreasonableness andoppressiveresults.In
this sense the rule is mandatory. In this view of the matter dismissal for want of compliance withnecessarybasicsisan
order that may be made within the Rule, a necessary corollary to it and doesnotamounttoanamendment,alterationor
revocation of the Rule approved by Parliament. The Court here is only articulating the real scope of the Rule to giveeffect
and expression to it. This interpretation does not widen the ambit of the Rule.

Thus the question of obtaining the approval of Parliament to make an order of dismissal does not arise.
I have enumerated salient facts both from the Petition filed before the Court of Appeal and the order of the Court ofAppeal
which are important for the disposal of this appeal. The contents of paragraph 15 of theaforesaidPetitionclearlystate
that the Award was bad in law and disclosed errors of law in that -
(a)conclusions drawn from the primary evidence are perverse, and
(b)the Arbitrator took into account irrelevant evidence to wit: the poor performance of the 3rd Respondent incross-
examination and his admissions.
Upon the aforesaid averments clearly the proceedings wherein the 3rd Respondent gave evidence andcalledtwowitnesseson
his behalf and other relevant documents should have been tendered to the Appeal Court as they arehighlyrelevantforits
consideration.
This has not been done.

There is a passage in the Award that the Arbitrator took into account both the oralanddocumentaryevidencelaidbefore
him. This suggests that there was important relevant material thatoughttobeconsideredbyaCourtexercisingwrit
jurisdiction but not laid before it. 'The order of the Court of Appeal shows that that tribunalhaspointedtothisvery
circumstance as militating against the Appellant's application for writ. There is no inconsistency betweentheordersmade
by the Court of Appeal (supra). The preliminary objection taken byRespondentswasoverruledonthefirstoccasionas
Petitioner had insisted that his 10 documents were sufficient to enable the Court to decide on issuance ofawrit.Onthe
second occasion according to the Court, the Petitioner had sought to refer tocontentsofproceedingsanddocumentsnot
tendered and strenuously opposed by Respondents. This fact is confirmed by Counsel forRespondentsbeforeus.Weseeno
reason not to accept the record of events as contained in the Orders of the Court of Appeal (supra). No effort had beenmade
by the Petitioners to seek permission of the Court of Appeal to tender additional documents as they may have done underRule
50 - vide 1988. 1 SLR. 315 at 33(6) and no explanation for such omission has been offered. Under rule 50 the Court ofAppeal
has discretionary powers where appropriate to admit material not tendered withthepetition.Inthesecircumstancesthe
Court below was entitled to refuse to proceed further with the application. Appellant'spresentsubmissionthathecould
Proceed upon the 10 documents tendered is contradicted by thefactsandcircumstancesplacedbeforeus.Theorderof
dismissal was a proper order that the Court could fairly have made. The order oftheCourtofAppealdated25.10.89is
affirmed. The appeal is dismissed. The 3rd Respondent is entitled to his costs both here and in the Court
of Appeal.

This appeal arises from a dispute between employer and employee. The Arbitrator's award was asfarbackas1985.Inthe
circumstances I think it fair that the employee 3rd Respondent be paidinterestontheaggregatesumofRs.470,105/-
awarded to him. The Appellants will therefore pay legal interest on the said total sum awarded from date of Award to dateof
payment.

KULATUNGA, J. - I agree

WADUGODAPITIYA, J. - I agree

Appeal dismissed.
Interest awarded.


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