Constitution Article 126 - Time Bar - Imperative - Suppression of material facts fatal - Failure to observe uberrima fides - Vigilanti ­ bus Non Dormientubis Jura Sub - Vernieunt - Impotentia excusat legem - Uberrimafides.

Sri Lanka Law Reports  2013 - Volume 1 Page No - 6

  

LIYANAGE & ANOTHER VS

RATNASIRI - DIVISIONAL SECRETARY, GAMPAHA & OTHERS

SUPREME COURT  TILAKAWARDENA J SATHYA HETTIGE PC J., DEP PC J.,

SC F R 121/2012 DECEMBER 7,2012 JANUARY 10,2013 MARCH 8, 2013

Constitution Article 126 - Time Bar - Imperative - Suppression of material facts fatal - Failure to observe uberrima fides - Vigilanti ­ bus Non Dormientubis Jura Sub - Vernieunt - Impotentia excusat legem - Uberrimafides.

The Petitioners complained that their Fundamental Rights were infringed by appointing the 7th Respondent to the post of Registrar of Births and Marriages, Hendala Division. The Respondent contended that the application is out of time and the Petitioners are guilty of suppression and misrepresentation of material facts - Thereby failing to act with uberrima fidei. On the preliminary objection taken -

Held:

(i) The Supreme Court has consistently held in a number of cases involving alleged violation of fundamental rights that the time limit within which an application should be filed is mandatory;

(ii) This is a constitutional mandate. The well known principle of vigilantibus Non Donnantibus Jura Subveniunt - law assists those that are diligent not those who sleep over their rights - is applicable;

(iii) It is now a well established principle that when an applicant has suppressed or misrepresented the facts material to an application and when there is no complete and truthful disclosure of all

material facts, the Court will not go into the merits of the relevant application, but will dismiss it in limine...

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per Sathya Hettige P.C, J.

"These Petitioners have failed and neglected to tender a material document-namely, his application for the post of Registrar to Court. Court holds that there was a deliberate suppression and there has  been no complete disclosure.

AN APPLICATION under Article 126 of the Constitution.

Cases referred to:

1. Jayasinghe Us The National Institute of Fisheries and Nautical Engineering (NIFNE) and others - 2002 1 Sri L.R.27

2. Revici Us Prentice Hall Incorporated and others - 1969 1 All ER 772

3. G. S. Premachandra & another Us University Grants Commission and 10 others- SCFR 573/2004;

4. S. A. B. Senanayake Us University Grants Commission - SCFR 574/2004;

5. Edirisuriya Us Navaratne- 1985 1 Sri L.R. 100;

6. Eager Us Fumivall- 17 ch D 115;

7. Blanca Diamond (Pvt)LTD v. Wilfred Van Els & Two others - 17 ch D 115;

8. Alphonso Appuhamy Us. Hettiarachchi-73 NLR 131;

9. Gas Conversions (Pvt) Ltd., and 3 others Us Ceylon Petroleum Corporation and others- SCFR91/2002 at 4;

Mangala Niyarepola with Edward Samarasekara for the Petitioners

Suren Gnanaraj S. C. for the 1st - 6th and 8th Respondents

Sanjeewa Dissanayake for the 7th Respondent

June, 20, 2013

SATHYA HETTIGE P.C.J.

The petitioners in this application filed under Article 126 of the Constitution of Sri Lanka, were the applicants for the post of Registrar of Births and Deaths for Hendala Division and Marriages (General) for the Southern Aluthkuru Korale Division in the District of Gampaha and alleged that their

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fundamental rights were infringed by the actions of the 1st to 6th respondents by appointing the 7th respondent for the said post. The petitioners also sought a direction from the court cancelling the appointment of the 7th respondent and appoint any one of the petitioners whose names appeared in the notice dated 14.06.2011 (P4) to the said post except Pelihawadana Arachchige Bernard Cyril Perera Jayawardane who did not attend the interview on 01.07.2011.

The court granted leave to proceed on the alleged viola­tion of Article 12(1) of the Constitution on 30th May, 2012.

When this matter was taken up for hearing on 7th December 2012 the respondents raised two preliminary objections on the maintainability of the application as follows:

1. That the petitioners' application was out of time in terms of Article 126 (2) of the Constitution as the application of the petitioners has not been filed within one month of the alleged infringement.

2. The petitioners were guilty of suppression and misrepresentation of material facts, thereby failing to act with uberrima fides.

After hearing all the parties on the preliminary objections the court directed the parties to file written submissions within six weeks and reserved the judgment. However, the petitioners have failed to file written submissions as directed. Nevertheless this court has examined and considered all pleadings and documents filed in court.

Article 126 (2) of the Constitution stipulates that if a person alleges that any fundamental right or language right

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has been infringed or that it is about to be infringed by executive or administrative action that person by himself or through his Attorney-at law must apply to the Supreme Court within one month from such infringement seeking relief (emphasis added).

The Article very clearly refers to a time frame within which such complaint should be made to the Supreme Court.

The Article 126 (1) reads as follows:

"The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the infringement or imminent infringement by executive or administrative action of any fundamental right or language right declared and recognized by Chapter III or Chapter IV.

Article 126 (2) provides that "Where any person alleges that any such fundamental right or language right relating to such person has been infringed or is about to be infringed by executive or administrative action, he may himself or by an Attorney-at-Law on his behalf, within one month thereof in accordance with such rules of Court as may be in force, apply to the Supreme Court by way petition in writing addressed to such court praying for relief or redress in respect of such infringement. Such application may be proceeded with only with leave to proceed had and obtained from the Supreme Court, which leave may be granted or refused, as the case may be, by not less than two judges".

In paragraph 6 of the petition the petitioners have stated that on the 17.10.2011 they came to know that the 7th respondent had been appointed to the post and was functioning from an office located at No. 34/23. Paranawatta Road,

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Kerawalapitiya, Hendala, Wattala. The petitioners filed this application in the Supreme Court registry only on 19th March 2012 after about five months lapse, despite admitting to have been aware of the 7th respondent's appointment.

It must be stated that the Supreme Court has consistently held in a number of cases involving alleged violation of  fundamental rights that the time limit within which an application for relief for any fundamental right or language right violation may be filed is mandatory and must be complied with.

It can be seen that this is a Constitutional mandate. On the facts of this case it can also be said that the well known Latin maxim regarding doctrine of Prescription in Roman Law "Vigilantibus Non Dormientibus Jura Subveniunt" which means "the laws assist those who are vigilant, not those who sleep over their rights" is applicable. (emphasis added)

The court finds that the petitioners in this application have been negligent for a long period of time in instituting this application. When an appointment of a public servant is being challenged the aggrieved party must come before the court within the time limit prescribed by the law without unreasonable delay. The petitioners have not explained the delay and not even taken the opportunity given by court to explain the delay by filing written submissions on the preliminary objections and the merits of this application as directed by the court.

The petitioners in this application have taken up the position that this is a case where there was continuing violation of their fundamental rights.

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The learned counsel for the 7th respondent and the learned State Counsel cited the judgment of Jayasingha v. The National Institute of Fisheries & Nautical Engineering (NIFNE) & Others(1) wherein it was held that "The documentary evidence showed that several months prior to 15.12.2000 the date of the petitioner's application, he was aware of the appointment of the 18th respondent as DGM of NIFNE. Hence the petitioner's application was time barred".

In Revici v. Prentice Hall Incorporated and Others(2) Denning M.R. at 774 Edmund Davies, L.J. and Widgery, L.J. agreeing

" . . . . Nowadays we regard time very differently from what they did in the nineteenth century. We insist on the rules as to time being observed. We have had occasion recently to dismiss many cases for want of prosecution when people have not kept to the rules as to time .... "

In the cases of G. S. Premachandra & Another v. University Grants Commission and 10 others (3) and S.A.B. Senanayake v. University Grants Commission,(4)

former Chief Justice Dr. Bandaranayake J (as she then was) held that

"The time limit specified in terms of Article 126(2) of the Constitution that a petitioner must come before the Supreme Court within one month from the alleged infringement or imminent infringement is mandatory. However, the Supreme Court could exercise its discretion in a fit manner provided that a petitioner has submitted adequate reasons or an excuse for the delay in presenting his petition."

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It is important to note that the party who alleges any violations of his fundamental rights must exercise due degree of vigilance and caution and it can be seen that the use of legal diligence without long and unreasonable delay is always fovoured by the courts of justice.

In Edirisuriya v Navaratnam (5) the court has reiterated the fact that the time limit of one month under Article 126(2) of the Constitution is mandatory but however, the court said that the court has a discretion to entertain an application made out of time in a fit case in that the petitioner must adduce reasons for the delay. It appears that this basic principle is based on the Latin maxim "impotentia excusat legem"  which means that where the law creates a duty or charge and the party is unable to perform due to no fault on his part the law excuses him. (Eager v Furnivall(6))

Now I will briefly state the facts in considering the merits of this application in fairness to all parties despite the application being instituted out of time.

Pursuant to a notice published in the Gazette by the 4th respondent applications were called for the post of Registrar of Births and Deaths of the Hendala division and Marriages (General) for the Southern Aluthkuru Korale division, within the Divisional Secretariat Division of Wattala in the Gampaha District. It appears that 10 applicants including the petitioners and the 7th respondent applied for the said post and the interview was conducted on the 1st of July 2011 by an Interview Panel in respect of 8 applicants including the petitioners and the 7th respondent. At the said interview the 7th respondent obtained highest marks and the mark sheet marked 2R3 was annexed to the affidavit of the 2nd respondent. The 7th

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respondent was accordingly appointed to the said post by the 4th respondent with the approval of the 6th respondent with effect from 18th November 2011.

However, the petitioners lodged a complaint protesting against the appointment of the 7th respondent on the 22nd November 2011 on the basis the 7th. respondent's name did not appear in the notice marked P4 to the petition and therefore 7th respondent was not eligible to be considered for appointment.

Thereafter, the 4th respondent published a notice marked P7 giving the public an opportunity to lodge any objections to the 7th respondent's appointment requiring them to be present at an Inquiry. Accordingly the petitioners lodged their objections and inquiry was conducted on 9th May 2012. However the petitioners failed to be present at the said inquiry and establish their complaint in support of the objections by producing any oral or written material.

On perusal of the written submissions filed by the State it appears that in fact the Grama Niladari 171 Kerawalapitiya and Grama Niladari 171 A Matagoda and 7th. respondent had been present and given written statements in response to the objections (2R9a, 2R9b and 2R9c). After the inquiry it had been found that the objections were baseless and were accordingly rejected. It has also been found that the error by

not including the name of the 7th respondent in the notice P4 had been a bona fide lapse which was discovered only after the interview was conducted, on the part of the typist who was assigned to prepare the notice. The court accordingly finds that no reasons are evident to justify this challenge of the appointment of the 7th Respondent.

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Now I will deal with the next objection raised with regard to suppression and misrepresentation of material facts and documents.

The respondents submitted that the 1st petitioner was found guilty and fined in the Magistrate's Court of Wattala in MC case No. 38384 and had applied for the Post of Registrar and suppressed that fact and made false representations. The  notice calling for applications very clearly had stated that any person who had been found guilty by a Court of law is not eligible to apply for the said post. The petitioner deliberately

suppressed this information by avoiding the production of his application to court. The 7th respondent has annexed marked 7Rl the copy of the relevant case proceedings in support of that position. The respondents submitted that the material facts had been suppressed from court. This court finds that there is merit in the contention of the respondents that there has been deliberate suppression of facts.

The petitioners failed to participate at the inquiry held on 9th May 2012 into the objections raised by them against the  7th respondent's appointment despite the fact that they were granted an opportunity to do so. It appears that the petitioners failed to attend the inquiry into the objections filed by them and instead instituted these proceedings seeking reliefs alleging violations of fundamental rights. Did the petitioners in this application act with Uberrima Fides. In a number of judgments of this court the requirement of full disclosure of material facts was discussed and dealt with. The court has also enunciated the requirement to act with Uberrima Fides in respect of applications before court. The doctrine of complete and truthful disclosure will apply in situations where applications alleging infringement of fundamental rights are filed before court in terms of Article 126 of the Constitution.

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In the case of Jayasinghe u The National Institute of Fisheries and Nautical Engineering and Others (supra) at 286 referred to by both the counsel for respondents, it was held that

"the conduct of the petitioner in withholding these mate­rial facts from court shows a lack of Uberrima fides on the part of the petitioner. When a litigant makes an application to this court seeking relief, he enters into a contrac­tual obligation with the court. This contractual relationship requires the petitioner to disclose all material facts cor­rectly and frankly. This is a duty cast on any litigant seeking relief from court. In the case of Blanca Diamonds (Put) Limited u. Wilfred Van Els and two Others (7) the court high­lighted this contractual obligation which a party enters into with the court, requiring the need to disclose Uberrima fides and disclose all material facts fully and frankly to court. Any party who misleads court, misrepresents facts to court or utters falsehood in court will not be entitled to obtain redress from court. It is a well established proposi­tion of law, since the courts expect a party seeking relief to be frank and open with the court. This principle has been applied even in an application that has been made to challenge a decision made without jurisdiction. Further, court will not go into merits of the case in such situations. The failure to make a full and frank disclosure of all mate­rial facts renders this application liable to be dismissed."

It is also noteworthy to refer to the case of Alponso Appuhamy v Hettiarachchi(8) wherein Pathirana J was of the view that "when an application for a prerogative writ or an injunction is made, it is the duty of the petitioner to place before the court, before it issues notice in the first instance a full and truthful disclosure of all the material facts, the petitioner must act with Uberrima Fides."

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On perusal of the petition it can be seen that the petitioners' application is based on the fact that the petitioners  possessed all the required qualifications to apply for the post of Registrar and the Notice marked P4 calling for applicants to be present at an interview did not disclose the three names including the name of the 7th respondent. However, on perusal of the material before court it can be seen that 4th respondent has remedied the mistake for which the petitioners positively reacted, by giving the petitioners and the general public a fair opportunity of objection to the appointment of the 7th respondent. The petitioners did not proceed with the complaint and or participate at the inquiry to which the petitioners were invited.

I will refer to the Supreme Court case of Gas Conversions (Pvt) Ltd and 3 Others v Ceylon Petroleum Corporation & 3 Others(9) Dr. Bandaranayake J (as she then was) dealt with a similar situation wherein several preliminary objections were raised on misrepresentations and suppression of material facts and failure to observe Uberrima Fides. (emphasis added)

"A series of judgments of our courts have enunciated the requirement of 'complete disclosure' and uberrima fides with regard to the applications before Court. It is now a well established principle that when an applicant has suppressed or misrepresented the facts material to an application and when there is no complete and truthful disclosure of all material facts the court will not go into merits of the relevant application, but will dismiss it in limine . . . ."

It must be stated that when the court considers applications on fundamental rights made under Articles 17 and 126 of the Constitution the court has an onerous task to cautiously consider the material placed before court in relation to the infringement of fundamental rights alleged by the petitioner supported by an affidavit. Therefore, it is the paramount duty of the petitioner to disclose all the relevant material facts truthfully. These petitioners have failed and neglected to tender a material document, namely his application for the post of registrar, to court. On a consideration of all the material the court holds that this was a deliberate suppression and there has been no complete disclosure.

In view of the reasons discussed above I uphold the preliminary objections raised by the respondents on the basis that the petitioners have failed to comply with the manda­tory provisions contained in Article 126(2) of the Constitution and because the petitioners have misrepresented and suppressed material facts to court and failed to observe the doctrine of uberrima fides. I dismiss the application in limine. No costs.

TILAKAWARDENE J - I agree

DEP PC J - I agree

Application dismissed.