ATTANAYAKE V. COMMISSIONER GENERAL OF ELECTIONS

ATTANAYAKE V. COMMISSIONER GENERAL OF ELECTIONS

SUPREME COURT
DR. SHIRANI A. BANDARANAYAKE, C.J.,
RATNAYAKE, P.C., J. AND
PRNASATH DEP, P.C.,J.
S.C.(SPL)L.A. NO. 55/2011
C.A. WRIT APPLICATION NO. 155/2011
JULY 4TH, 2011

Supreme Court Rules, 1990 - Compliance of Rule 8 is imperative - Rule 40 -Application for extension of time for the purpose of Rule 8/31 - Procedure.

The petitioner preferred this application before the Supreme Court for special leave to appeal. The Respondents took up a preliminary objection that the application for special leave to appeal before the Supreme Court should be dismissed as the Petitioner has not complied with Rule 8(3) and Rule 40 of the Supreme Court Rules, 1990. At the time of filing of the application, the Petitioner had not issued notices on the Respondents through the Registrar. It is also admitted that the Petitioner had not made any application in terms of Rule 40 for an extension of time. Admittedly, this matter had come up for support on two occasions without notices to the other Respondents.

Held:

(1) the provisions laid down in Rule 8 clearly deal with the need to issue notices on the Respondents through the Registxy and sets out clear guidelines to ensure that steps are taken at several stages to ensure that the Respondents are so notified. The guidelines are given not only for the Petitioner, but also for the Registrar of the Supreme Court and even for the Respondents to see that the application for special leave to appeal is properly instituted, notices are correctly tendered and relevant parties are properly notified. It is in order to follow the said procedure that it is imperative for a Petitioner to comply with Rule 8 of the Supreme Court

(2) Supreme Court Rules 8(3) and 40 indicate that the Petitioner should tender notices to the Registly of the Supreme Court along with his application for special leave to appeal and in the event if there is need for an extension of time to tender such notice that it should be done following the procedure laid down in terms of Rule 40 of the said Rules.

(3) In terms of Rule 40, where there is an application for extension of time for the purpose of Rule 8(3), the Registrar cannot entertain such an application, but he should submit it to a single Judge, nominated by the Chief Justice, in chambers to decide on such grant of extension of time.

(4) The Supreme Court procedure laid down by way of Supreme Court Rules made under and in terms of the provisions of the Constitution cannot be easily disregarded as they have been made for the purpose of ensuring the smooth functioning of the legal machinery of the Supreme Court. When there are mandatory Rules that should be followed and when there are preliminary objections raised on non compliance of such Rules, those objections raised cannot  be taken as mere technical objections.

APPLICATION for Special Leave to Appeal from the judgment of the Court of Appeal dated 04.03.2011

Cases referred to:

1 .C. Comasaru V. M/s. Leechman and Co.Ltd. and Others - S.C. Application No. 217172 and 307172, S.C. minutes of 26.05.1976

2. Nicholas V. O. L. M Macan Marker Ltd. and Others - (1981) 2 Sri L.R. 1

3. K. Reaindren V.K. Velusomasundera - S.C. (Spl.) L.A. Application No.298199, S.C. minutes of 07.02.2000

4. Union Apparels (Pvt.) Ltd. V. Director-General of Customs and Others - (2000) 1 Sri L.R. 27

5. Piyadasa and Others V. Land Reform Commission - S.C. Application No.30/97, S.C. Minutes of 08.07.1998

6. Kinwanthe and Another v. Nauaratne and Another - (1990) 2 Sri L.R. 393

7. Priyani Soysa V. Riem'e Arsecularatne and Another - (1999) 2 S L.R. 179

8. Bank of Ceylon V. Bank Employees' Union (On behalf of Karunatilake) - (2003) 1 Sri L.R. 47

9. Samantha Niroshana V. Senarath Abeynrwan - S.C. (Spl.) L.A. No.145/2006, S.C.Minutes of 02.08.2007

10. Fowzie and Others V. Vehicles Lanka (Pvt.) Ltd. - 2008 1 Sr

Click Here to Read the rest of this document