SUDATH ROHANA AND ANOTHER V MOHAMED ZEENA AND ANOTHER

SUDATH ROHANA AND ANOTHER V.
MOHAMED ZEENA AND ANOTHER

SUPREME COURT
DR. SHlRANIA. BANDARANAYAKE,CJ.
EKANAYAKE ,J.AND
IMAM,J.
S.C.H. C. CA LA. NO 111/2010
H.C. (Southern Province) NO. SP/HCCA/GA/LA/0030/2009
D.C. GALLE NO. 1417/L
JULY 14,2010, SEPTEMBER 03,2010, AUGUST 31,2010

Supreme Court Rules - Leave to appeal - Failure to comply with Rules - Rules 8(3), 27(3) and 27(8) - To ensure that all necessary parties are properly notified on the matter which is before the Supreme Court- Rule 8 - To ensure that all parties are notified in order to give a hearing - Do the Supreme Court Rules 1990 apply to appeals from the High Courts (Civil Appeal).

When this application was taken for support for leave to appeal, the Plaintiff - Judgment Creditor - Respondent (Respondent) took up a preliminary objection stating that the Petitioners had not complied with Rule 8(3) of the Supreme Court Rules, 1990 and hence the Petitioner's application should be rejected in limine.

The objection raised by the Respondent was that the Petitioners had not given notice to the Respondents as required by the Supreme Court Rules.

Held:

(1) Rule 28 deals with the procedure that has to be followed when filing an application against the judgment of a High Court of the Provinces. Similar to Rule 8(3), Rule 28 (3) refers to the necessity of tendering notice to the Registrar.

(2) The purpose of the Rule 8(3) as well as Rule 27 (3) of the S.C. Rules 1990 is to ensure that all necessary parties are properly notified on a matter coming up before the Supreme Court, for all the parties to participate at the hearing.

(3) The Rules 28(3) and 27(3) are mandatory rules that should be followed and objections raised on non-compliance with such rules, cannot be taken as mere technical objections. As the said Rules are mandatory, the notice has to be served through the Registry of the Supreme Court,

Per Dr. Shirani A. Bandaranayake, CJ.-

"When it is stated that the substantive law and procedural law are complementary, it signifies the importance of procedural law in a legal system. Whilst the substantive law lays down the rights, duties, powers and liberties, the procedural law refers to the enforcement of such rights and duties. In other words the procedural law breathes life into substantive law, sets it in motion and functions side by side with substantive law."

(4) The provisions in  Rule 28(3) are similar to that of Rule 8(3); the only difference being that Rule 8(3) applies to application for special leave to appeal and Rule 28(3) for all other appeals to the Supreme Court from an order, judgment, decree or sentence of the Court of Appeal or any other Court or tribunal.

Cases referred to:

(1) AH.M. Fowzie and 2 others v. Vehicles Lanka (Put) Ltd - (2008) Sri L.R. 23.

(2) Fernando v. Sybil Fernando and Others - (1997) 3 Sri L.R. 1

(3) Dulfer Vmma v. V.DC. Matale - (1939) 40 NLR474

(4) Samantha Niroshana v. Senerath Abeyruwan - SC (Spl.) LA No. 145/2006 - S. C. Minutes, 28.2007

(5) Wickramatillake v. Marikar- (1894) 2 NLR9

(6) Re Chenwell- (8 Ch. D 2506)

(7) K. Reaindran v. JJ. Velusomasundram - SC (Spl.) L.A. Application No, 298/99 - S. C. (Spl.) Minutes of 7.2.2000

(8) N.A Premadasa v. The People's Bank - S.C. (Spl.) L.A. Application No. 212/99 - (S.C. Minutes of 24.2.2000)

(9) Hameed u. Majibdeen and others - S.C. (Spl.) L.A. Application No. 38/2001 - S.C. Minutes of 23.07.2001

(10) K. M. Samarasinghe V. R. M. D. Ratnayake and Others - S.C. (Special) L.A. Application No. 51/2001 - S.C. Minutes of 27.07.2001.

(11) Soong Che Foo v. Harosha K. de Silva and Others - S.C. (Spl.) L.A. Application No. 184/2003 - S.C. Minutes of 25.11.2003

(12) C.A. Haroon u. S.K. Muzoor and others - S.C. (Sp1.)L.A.Application No. 158/2006-S.C. Minutes of 24.11.2006

(13) Woodman Exports (Put) Ltd. u. Commissioner - General of Labour S.C. (Spl.) L.A. Application No. 335/2008 - S.C. Minutes of 13.12.

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