DIRECTOR GENERAL, COMMISSION TO INVESTIGATE ALLEGATIONS OF BRIBERY OR CORRUPTION V. GENERAL ANURUDDHA RATWATTE

DIRECTOR GENERAL, COMMISSION TO INVESTIGATE
ALLEGATIONS OF BRIBERY OR CORRUPTION
V. GENERAL ANURUDDHA RATWATTE

COURT OF APPEAL
SILVA, J. AND
D. S. C. LECAMWASAM, J.
CA 325/07
H. C. (COLOMBO) B 1579/ 15
FEBRUARY 26TH, 2010

Judicature Act - Section 39 - Objection to jurisdiction of any Court of first instance when?- Bribery Act - Section 23A(4) - Opportunity to show cause before instituting proceedings-No action can be instituted without giving such opportunity to show cause - Legal maxim expressio unius est exclusion alterius - Patent - Latent lack of Jurisdiction?

The Director General of the Bribery Commission filed action against the Accused under Section 23A(3) of the Bribery Act. At the end of the prosecution case, the defence took up an objection that the prosecution had failed to comply with the pre-conditions found in Section 23A (4) of the Bribery Act. The learned High Court Judge upheld the objection and discharged the Accused.

In the appeal, the defence raised two preliminary objections, namely, the Bribery Commission should give a person an opportunity to show cause as to why he should not be prosecuted for such offence and there must be a certificate stating either the person has failed to show cause or the cause shown by the persons is unsatisfactory in the opinion of the Bribery Commission.

Held:

(1) The salient ingredient of Section 23A (4) of the Bribery Act is the 'affording of an opportunity' to 'show cause' before instituting an action. If the opportunity is not given, then it can tantamount to a patent lack of jurisdiction as no prosecution is possible without affording such opportunity before institution of action

(2) There is no requirement that a certificate or a document should be annexed to the indictment that the Bribery Commission is not satisfied with the explanation given by the Accused in terms of Section 23A (4). A certificate of dissatisfaction is not a requirement under Section 23A (4) of the Bribery Act.

Held further -

Per Lecamwasam, J., -

". . . once an opportunity is given and if the Commission is not satisfied with the explanation given in reply on such occasion, I hold that the Commission is not bound to issue a certificate or letter of dissatisfaction. Mere fact of institution of action is ample proof of such dissatisfaction."

Cases referred to:

1. Kanagarajah v. Queen - 74 N.L.R. 378

APPEAL from an order made by the High Court of Colombo.

Jayantha Jayasunya, D.S.G. for the Complainant - Appellant

Rienzie Arsecularatne, P. C., with Wasantha Batugoda for the Accused- Respondent.

Cur.adv.vult

June 17th 2010
D. S. C. LECAMWASAM, J.

In this case the Director General ofthe Bribery Commission filed action against the accused under Section 23 A (3) of the Bribery Act. At the end of the prosecution case the defence took up an objection to the effect that the prosecution failed to satisfy two pre conditions embodied in section 23 A (4) of the Bribery Act and therefore moved court to acquit the accused.

    On a perusal of the proceedings it is evident that the parties have made lengthy submissions and on 30th November

2007 the learned High Court Judge upheld the objection and discharged the accused. Being aggrieved by the aforementioned order the complainant has filed the instant appeal and a revision application bearing No. 168/ 2007.

    In his written submissions learned Presidents Counsel has raised two preliminary objections, to wit; The Bribery Commission should give a person an opportunity to show cause why he should not be prosecuted for such offence and there must be a certificate stating either the person has failed to show cause or the cause shown by the person is unsatisfactory in the opinion of the Bribery Commission.

    Although the learned Presidents Counsel has urged two pre conditions before this court by way of written submissio

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