FONSEKA VS LT GENERAL JAGATH JAYASURIYA AND FIVE OTHERS

FONSEKA VS. LT. GENERAL JAGATH JAYASURIYA
AND FIVE OTHERS

COURT OF APPEAL
ERIC BASNAYAKE, J.
SALAM  J.
ABEYRATNE  J.
CA 679/2010 (DB)
MAY 24, 25, 26 ,31, 2011
JUNE 1, 8, 14, 22 ,23, 2011
JULY 6, 28, 2011
AUGUST 1, 3, 2011
SEPTEMBER 12, 15, 2011

Writ of Certiorari - Decision of a Court Marshal - Army Act - Section 57, Section 109 [e], Section 133 - Charges bad in law? Guide - lines - No force or authority - Charges prescribed/ Bias of the judge advocate - Constitution Art 89, 91 [1] a - Disqualification from being elected to Parliament - Reasons not given - Judicial body - Suppression of material facts - fatal? Uberrima fides - What are material facts? - To be decided by Court only?

The petitioner sought to quash the decision of the respondents to convict the petitioner in Court Marshal 2, and to quash the sentence of  30 months imprisonment.

The petitioner - Ex Army Commander - was taken into military custody on 8.2.2010 and kept in custody until the Court Marshal. In the Court Marshal 1 - the petitioner was charged - that he engaged in political activities whilst being subject to Military Law. The petitioner was convicted of the charges and was imposed the sentence of cashiering from the Army. Court Marshal 2 was convened on 17.3.2010 with the appointment of 2-4 respondents as its President and Members. The 4 charges relate to the petitioner having served as Chairman of the Tender Board pertaining to the procurement of certain equipment - the charges alleged that tenders were awarded to B Company through H Company

and that the petitioner's son -in-law had an interest or concern with H company. It was alleged that the petitioner by concealing or failing to disclose that his son-in-law had such intent or concern - did commit a fraudulent act- punishable under section 109 [3] of the Army Act.

The respondents contended that, the petitioner has misrepresented and suppressed material facts with a view to misleading/deceiving Court. The petitioner contended that, the alleged suppression goes only to the ground of bias, and as bias was not one of the main grounds urged at the hearing the application does not depend upon bias.

Held:

(1) A petitioner who seeks relief by writ which is an extra-ordinary remedy must in fairness to Court, bare every material fact so that the discretion of Court is not wrongly invoked or exercised.

(2) It is perfectly settled that a person who makes an ex parte application to Court is under an obligation to make that fullest possible disclosure of all material facts within his knowledge.

(3) If there is anything like deception the Court ought not to go in to the merits, but simply say" we will not listen to your application because of what you have done.

Per Abdus Salam J.

"Material facts are those which are material for the Judge to know in dealing with the application as made, materiality is to be decided by Court and not by the assessment of the applicant or his legal advisers

Whether the facts not disclosed are of sufficient materiality to justify or require immediate discharge of the order without consideration of the merits, depend on the importance of the facts to the issues, which are to be decided by Court"

APPLICATION for a Writ of Certiorari.

case  referred to:-

(1) In Re The Eighteenth Amendment

(2) G.S.C. Fonseka vs.Dhammika Kitulegoda and seven others - SC No. 1/210 CA. (wrl) 676/2010 S.C.M. 10.1.2011

(3) R us. Kensington Income Tax Commissioner - (1917) 1KB - 486

(4) Republic of Peru vs. Driefius Brother and com - 55 LT. 802 a1 803

(5) Daglish vs. Jarvie - (1950) - 2 MAC & G 231

(6) Alphonso Appuhamy vs. Hettiarachchi - 71 NLR 131

(7) Athula Ratnayake vs. Lt. Col. Jayasinghe - 78 NLR 35

(8) Laub vs. Attorney General and Another- (1995) 25 Sri LR 88

(9) Walker Sons & Co. ua., vs. Wijayasena- (1997) 25 NLR 88

(10) Sarath Hulangamuwa vs. Siriwardene, Principal, Vishaka Vidyalaya,- (1986) 1 SLIR 2

Click Here to Read the rest of this document