JAYASINGHE

Vs.

ANOUKA DE SILVA

SUPREME COURT
ALUWIHARE, J.
WENGAPPULI, J.
SAMAYAWARDHENA, J.
SC/HCCA/LA/36/2021
WP/HCCA/COL/31/2019 (F)
DC COLOMBO DDV/155/2017
AUGUST 6, 2021

Supreme Court Rules 1990, Rules 2, 6, 8(2)-Non-compliance due to lack of due diligence-Dismissal in limine

The petitioner filed a leave to appeal application before the Supreme Court on 07.01.2021 against the judgment of the High Court. In the

motion, he suggested three dates to list the application for support for leave and moved court to issue notice on the respondent; further, he admitted that he did not tender: (a) the original proxy; (b) the original affidavit in support of the petition; (c) the document purportedly marked A (i.e. the appeal brief); (d) a certified copy of the document marked B (i.e. the judgment appealed from). The judge made order in chambers on 05.02.2021 directing the petitioner to tender all marked documents and the memorandum and thereafter to move for support. The petitioner did not take steps. The respondent moved the Supreme Court to dismiss the application of the petitioner in limine.

Held:

1. Rule 2 of the Supreme Court Rules 1990 inter alia states that every application for special leave to appeal to the Supreme Court shall be made by a petition together with affidavits and documents in support thereof as prescribed by Rule 6, and a certified copy or uncertified copy of the judgment or order in respect of which leave to appeal is sought.

2. It is not a bare notice that shall be served on the respondent but notice with a copy of the petition and affidavits and annexures filed therewith.

3. The proper service of notice on the respondent through the Registrar of the Supreme Court is the duty of the petitioner.

4. Rule 2 permits the petitioner to tender documents later, but he must show his bona fides and satisfy the court that he exercised due diligence to secure the documents and any failure to do so was beyond his control.

5. No acceptable reason was adduced by the petitioner to satisfy the court that he exercised due diligence in attempting to obtain the marked documents and tender the original proxy, original affidavit and memorandum for nearly seven months. Even at the time of the respondent supporting the motion for dismissal of the petitioner's application, there was no complete leave to appeal application before court. The contumacious conduct of the petitioner is conspicuous.

6. Non-compliance with the Supreme Court Rules results in dismissal of the application in limine without going into the merits.

7. The petitioner failed to exercise due diligence in prosecuting the application for leave to appeal and failed to comply with Rule 2 read with Rule 6, and Rule 8(1) read with Rule 8(3) of the Supreme Court Rules 1990 and therefore the application shall be dismissed in limine.

Held further:

8. Cases should not be thrown away on technicalities without going into the merits unless such technicalities go to the root of the matter. Such an attitude will erode the confidence placed in the justice system by those who come to court seeking redress. But this is not a mere technicality.

9. The Rules setting out procedure have been made to facilitate the due administration of justice and not to thwart it. For the effective and efficient administration of justice, both substantive law and procedural law must co-exist. Substantive law aims at the ends which the administration of justice seeks to achieve while procedural Jaw aims at the means by which those ends can be achieved. Without procedural law in place, substantive law will be illusory.

Cases referred to:

1. Tissa Attanayake v. Commissioner General of Elections [2011] 1 Sri LR 220
2. Sudath Rohana v. Mohamad Zeena [2011] 2 Sri LR 134
3. Rohitha Peiris v. Doreen Peiris [2015] BLR 101
4. Nestle Lanka PLC v. Bodiyawatte (SC/HC/LA/54/2018,SC Minutes of 30.09.2020)
5. Aaron Senerath v. Manager, Moray Estate, Maskeliya (SC/SPL/