REVISION AGAINST ISSUANCE OF CERTIORARI BY H.C- NON SERVICE OF SUMMONS-PATENT WANT OF JURISDICTION-REVISION NOT AVAILABLE UNTIL THE BASIC REMEDY IS EXHAUSTED Revision application challenging the issuance of prerogative writ by HC. - non-exhaustion of the alternative remedies- patent want of juriction
REVISION AGAINST ISSUANCE OF CERTIORARI BY H.C- NON SERVICE OF SUMMONS-PATENT WANT OF JURISDICTION-REVISION NOT AVAILABLE UNTIL THE BASIC REMEDY IS EXHAUSTED
Revision application challenging the issuance of prerogative writ by HC. - non-exhaustion of the alternative remedies- patent want of juriction
The high court while observing that notices on all the respondents had not been served proceeded to inquire into the matter based on the misconception that the lapse in the service of notices on the respondents had taken place during the tenure of office of the previous HCJ and therefore cannot be corrected and issued the writ applied for which decision is challenged by way of revision without applying to cure the defect before the HC.
Basically the court was wrong in the court was wrong to have imposed a duty on the 1st respondent Governor to inform court that no notices had been sent to the other respondents. The right to adjudication is always linked together with the power to declare a decision void or ineffective by the very same adjudicator or body, if the circumstances so demand. This power which is always inbuilt in the person or authority called upon to adjudicate is regarded as an inherent power which is indisputably indispensable for due administration of justice. One such instance where a judge is expected to pronounce his own determination as being void is when he had adjudicated a dispute, without notice to the party affected by the decision. Determination of any such matters without notice as may be required to be given to the opposite party is tainted with incurable defect commonly known as patent want of jurisdiction. In the event of a court adjudicates a matter with patent want of jurisdiction, its adjudication can be attacked in the same proceedings or in any collateral proceedings. The rationale behind this principle evolves from the right of being heard and decisions so made would tantamount to as if no decision is made.
HELD: As such there had been no impediment whatsoever for the respondent-petitioners to have made an application to the High Court judge on that matter and such an application can be made even now adverting to the principle that the court had no jurisdiction to enter judgment against the 2nd to 7th respondent petitioners based on the principle that no amount of delay is capable of conferring jurisdiction which the Court patently was lacking in it.
A W Abdus Salam, J
The petitioner-respondent (S L M Razik) was a non-certificated teacher and was dismissed from service, consequent upon his being found guilty at a disciplinary inquiry, for allegedly submitting false certificates in order to secure employment under the North Western Provincial Council. Upon such dismissal he preferred an appeal to the 1st respondent-petitioner. The appeal so made by him was turned down by the 1st respondent-petitioner.
In the meantime the criminal proceedings instituted against him in the Magistrate’s Court, almost on the same allegations leveled against him at the disciplinary proceedings, ended up in his exoneration. The petitioner-respondent thereupon made a subsequent appeal to the 1st respondent urging reinstatement. This appeal too was rejected by the 1st respondent petitioner. Thereafter, the petitioner respondent filed application bearing No C.A.381/2000 in this Court to have the order of dismissal from service quashed. As the subject matter of the above application fell within the Provincial Council list appended to the Constitution of the Democratic Socialist Republic of Sri Lanka, it was referred to the Provincial High Court of North-Western Province for determination. Accordingly, the petition of the petitioner-respondent was heard in H.C.A.67/2000 in the Provincial High Court of the North-Western Province holden at Kurunegala and the Learned High Court Judge interalia found that...
1. The decision to terminate the service of the petitioner-respondent had been made without considering the evidence led before the disciplinary inquiry.
2. That the petitioner-respondent had been able to rebut the evidence of some of the witnesses led on behalf of the respondents and that the petitioner-respondent had been able to create a doubt with regard to their testimony;
3. That the 2nd, 3rd respondent-petitioners had failed to assess the evidence against the petitioner-respondent on a just and equitable standard.
4. That the allegation made against the petitioner-respondent, is motivated by a personal animosity between him and certain members of his family.
The respondent-petitioners have filed the present revision application interalia on the following grounds that...
(i) 3rd to 6th respondent-petitioners were not summoned or noticed by the High Court before hearing of the application and in that context there has been a grave and serious violation of the rules of natural justice which alone constitutes an exceptional circumstance for the exercise of the powers of revision.
(ii) The court was wrong to have imposed a duty on the 1strespondent Governor to inform court that no notices had been sent to the other respondents.
(iii) The court has failed to consider that to impose a duty on the 1st respondent Governor to inform the court that no notices have been sent to the other respondents is contrary to the principles upon which rule 3 (4) (a) of the Court of Appeal (Appellate Procedure) rules 1990 is based;
(iv) The State Counsel marked their appearance for all the respondents and therefore it is factually incorrect to state that the State Counsel had appeared for all the respondents before the Provincial Court;
(v) The court has failed to appreciate the fact that the mere statement that the written submissions were being filed on behalf of the respondents could not in any event cure the defect of non-service of summons.
(vi) Such indication was not a sufficient substitute for the absence of duly signed proxies by the 2nd to 6th respondent-petitioners authorizing the State counsel to appear on their behalf.
(vii) The Learned High Court Judge has clearly erred in holding that the court cannot correct the past errors when she fixed the matter for order.
(viii) The Learned High Court Judge has failed to appreciate that the 2nd to 6th respondent-petitioners are really affected by the application of the petitioner-respondent and therefore before an order is made against them, the rules of natural justice and the principles of fair of procedure required that they should have been given notice of the application against them and that they should have been given a right to be heard before the court made the final order.
(ix) The Learned High Court Judge has also failed to appreciate that an order against 2nd to 6th respondent-petitioners, without having heard them in opposition to the application of the petitioner-respondent was tantamount to and in fact is a violation of their rights enshrined in Article 12 (1) Of the Constitution of the Democratic Socialist Republic of Sri Lanka.
The ground relied upon by the respondent-petitioners to attack the impugned judgment on the ground of non-service of summons loomed large in the proceedings before us. Quite interestingly, when the application of the petitioner-respondent came up before us, on 12.5.2000 this Court directed the transfer of the application to the respective High Court with specific direction that the High Court judge considers the application of the petitioner-respondent early, after giving notice to the parties. (Emphasis added).
The main ground on which the respondent-petitioners seek to avoid the impugned judgment is the issuance of the writs of certiorari and mandamus without notifying the 2nd to 6threspondent-petitioners of the application. In addition they urge that in any event the facts and the circumstances of the case did not warrant the consideration the learned High Court judge thought that it deserved.
On behalf of the respondent-petitioners, it was urged that there are exceptional circumstances warranting the intervention of this court demanding the exercise of the discretionary powers to revise the impugned judgment. They further maintain that the failure on the part of the respondent-petitioners to initially address an application to the original court to recall writs issued, in no way an impediment to maintain the present revision application.
It is trite law that the right to adjudication is always linked together with the power to declare a decision void or ineffective by the very same adjudicator or body, if the circumstances so demand. This power which is always inbuilt in the person or authority called upon to adjudicate is regarded as an inherent power which is indisputably indispensable for due administration of justice. One such instance where a judge is expected to pronounce his own determination as being void is when he had adjudicated a dispute, without notice to the party affected by the decision. Determination of any such matters without notice as may be required to be given to the opposite party is tainted with incurable defect commonly known as patent want of jurisdiction. In the event of a court adjudicates a matter with patent want of jurisdiction, its adjudication can be attacked in the same proceedings or in any collateral proceedings. The rationale behind this principle evolves from the right of being heard and decisions so made would tantamount to as if no decision is made.
The reasoning that led to the learned high court judge to arrive at the findings is quite peculiar. According to the journal entries maintained in the case, as rightly observed in the impugned judgment, no summons or notices have been served on 2nd to 6th respondent-petitioners. More importantly this fact has not been disputed by the petitioner-respondent either. Nevertheless, the learned High Court judge proceeded to deliver judgment substantially affecting the rights of the 2nd to 6th respondent-petitioners, clouded with the doubt of misconception in her mind that she had no jurisdiction of the court to ascertain whether summons or notices had been served on the 1st to 6th respondent-petitioners. In my opinion, this is a grave misconception on the part of the leaned Judge as to her powers and functions in a matter of this kind.
The allegation of non-service of summons is amply borne out by the observation and findings of the learned Judge of the High Court, as at page 7 of the judgment marked as P8, she quite clearly mentions that notice of the application has only been served on the 1st and 2nd respondent-petitioners. She further states that the petitioner (the teacher) has failed to advert her to the non-service of summons from the year 2000. No doubt, the High Court judge, who wrote out the impugned order, had taken over the conduct of the proceedings only in the year 2005. Between the year 2000 and 2005 the application of the petitioner-respondent had been handled by the predecessors in office of the judge who wrote out the impugned order. Therefore, the learned High Court judge was under a grave misdirection that she is unable to rectify the mistake or correct the lapse that occurred during the tenure of office of her predecessors in relation to the non-service of summons. The relevant part of the judgment of the Learned High Court Judge is reproduced below in its original form
“ wfkl=;a j.W;a;rlrejka fj; oekajSï ksl=;a lr fkdue;s njg fm;aiïlre fjkqfjka fy` 1 jk j.W;a;rlre fjkqfjka fy` wOslrKfha wjOdkh 2000 j¾Ifha isgu fhduqlr fkdue;s nj fmfka’ ud bosrsfha oS fuu kvqj uq,a j;djg le|jd we;af;a 2005’05’30 jk osk j.W;a;rlrejka fjkqfjka ,sLs; foaYk bosrsm;a lsrSugh’ tA wkqj tu wjia:dfõ oS wfkl=;a j.W;a;rlrejkag oekajSï ksl=;a lr weoao keoao hkak ms<sn|j oekqula fkdue;s w;r ksfh`.h m%ldY lsrSu i|yd kvq jd¾;dfõ we;=<;a lreKq iy f,aLk mrsCId lsrSfï oS ta nj fmkS .sh njg i|yka l< hq;=h’ flfia fj;;a ishtZu j.W;a;rlreka fjkqfjka rcfha kS;S{jrhd fmkS isgsk njg kvq jd¾;dfõ igyka .; lr we;s njg wjOdkh fhduq l< hq;=h’ oekg kshñ;j we;af;a wjqreÿ mylg wOsl ld,hla .;jS we;s fuu fm;aifï b,a,d we;s iykh m%Odkh l< hq;=o keoao hkak ms<sn|j ksfh`.hla m%ldY lsrSu fyhska uq,a ld,fha oS isÿ jS we;s wvq mdvq ms<sn|j fuu wOslrKhg lghq;= l< fkdyel’ ”
In the case of P. Beatrice Perera Vs Commissioner of National Housing 77 NLR 361 summons had not been served at all and an exparte judgment against the defendant was entered. This was held to be void ab initio and the defendant is said to have the right to challenge its validity at the time when the judgment so obtained is sought to be used against him either in the same proceedings or collaterally , provided always that he has not by his subsequent conduct estopped himself by acquiescence , waiver or inaction.
In the case of Leelawathie Vs Jayasiri 2000 SLR volume 2 page 231, it was held that there is no question of implying or presuming that the defendants were aware of the case filed since statutory provisions apply to service of summons and unless the summons are duly served, the other statutory consequences for non-appearance serving of summons, would not apply to the defendant.
In Ittapana Vs Hemawathie 1981 SLR Vol 1 page 476 the Supreme Court held that the principles of natural justice are the basis of our laws of procedure. The requirement that the defendant should have notice of the action either by personal service or substituted service of summons is a condition precedent to the assumption of jurisdiction against the defendant.
According to the head note of the judgment in Ittapana vs Hemawathie (ibid) 'Jurisdiction' may be defined to be the power of a court to hear and determine a cause, to adjudicate or exercise any judicial power in relation to it. When the jurisdiction of a Court is challenged the Court is competent to determine the question of jurisdiction. An inquiry whether the Court has jurisdiction in a particular case is not an exercise of jurisdiction over the case itself. It is really an investigation as to whether the conditions of cognizance are satisfied. Therefore, a Court is always clothed with jurisdiction to see whether it has jurisdiction to try the cause submitted to it.
Failure to serve summons is a failure which goes to the root of the jurisdiction of the Court to hear and determine the action against the defendant. It is only by service of summons on the defendant that the Court gets jurisdiction over the defendant. If a defendant is not served with summons or otherwise notified of the proceedings against him, the judgment entered against him in those circumstances is a nullity. The proceedings being void, the person affected by them can apply to have them set aside ex debito justitiae in the exercise of the inherent jurisdiction of the court which is saved by S. 839 of the Civil Procedure Code. Hence the District Judge acted within his jurisdiction in inquiring into the question of non-service of summons. (Emphasis added)
According to the head note of the judgment in Ittapana vs Hemawathie (ibid) 'Jurisdiction' may be defined to be the power of a court to hear and determine a cause, to adjudicate or exercise any judicial power in relation to it. When the jurisdiction of a Court is challenged the Court is competent to determine the question of jurisdiction. An inquiry whether the Court has jurisdiction in a particular case is not an exercise of jurisdiction over the case itself. It is really an investigation as to whether the conditions of cognizance are satisfied. Therefore, a Court is always clothed with jurisdiction to see whether it has jurisdiction to try the cause submitted to it.
Failure to serve summons is a failure which goes to the root of the jurisdiction of the Court to hear and determine the action against the defendant. It is only by service of summons on the defendant that the Court gets jurisdiction over the defendant. If a defendant is not served with summons or otherwise notified of the proceedings against him, the judgment entered against him in those circumstances is a nullity. The proceedings being void, the person affected by them can apply to have them set aside ex debito justitiae in the exercise of the inherent jurisdiction of the court which is saved by S. 839 of the Civil Procedure Code. Hence the District Judge acted within his jurisdiction in inquiring into the question of non-service of summons. (Emphasis added)
It is a fundamental principle of law that the revisionary jurisdiction of this court will not be exercised unless the petitioner has exhausted the other remedies or the alternative methods available in order to put the matter right. Admittedly that the respondent-petitioners have not made any application to the judge of the High Court to vacate the judgment entered for default but for reasons of their own elected to invoke the revisionary jurisdiction of this court.
The power of revision vested in this court is discretionary and will not be exercised when there are other remedies available to a party. The reason adduced by the petitioner-respondents for not availing the right to complain to the original court of the non-service of summons does not appear to me as convincing. Had the learned High Court judge been properly adverted to the fact of non-service of summons and the inevitable legal consequences, I do not think that the learned High Court judge would have brushed aside such serious matter without affording the respondent- petitioners the right of being heard in the proper way.
For purpose of completeness I consider it as not being inappropriate to refer to the dictum of Wijetunga, J. in the case of Gunasena Vs Bandaratilleke SLR-2000 Volume:1 Page No:292 where His Lordship emphasized the duty of court to correct its own mistake in the following words…..
"The authorities............... clearly indicate that a court has inherent power to repair an injury caused to a party by its own mistake. Once it is recognized that a court would not allow a party to suffer by reason of its own mistake, it must follow that corrective action should be taken as expeditiously as possible, within the framework of the law, to remedy the injury caused thereby. The modalities are best left to such court. and would depend on the nature of the error."
In Ranmenikhamy Vs. Tissera, 65 NLR 214 where an appeal which was preferred to the Supreme Court was rejected on the application of counsel for certain respondents, on the ground that notice of appeal had not been served on one of the other respondents and it was later proved to Court that the respondent in question was a minor who was represented in the action by a duly appointed guardian-ad-litem on whom notice of appeal had been duly served, it was held that, inasmuch as the order rejecting the appeal was made per incuriam, the Court had inherent jurisdiction to set aside its own order.
Therefore, it cannot be doubted that every Court involved in the administration of Justice is blessed with the power to vacate in appropriate circumstances an order/judgment entered per incuriam. The learned State Counsel argued that once a judgment is delivered the judge is functus officio and therefore he cannot consider, review or set aside the order. In support of his argument he cited Mathes Vs Rottan 2 NLR 366. The judgment in that case has no application to the matter in hand, since the facts and the legal principle involved in that case are totally different to present case.
Another argument advanced by the respondent-petitioners is that they could not have made an application to the provincial High Court for the reason that the judge had positively expressed the view that she cannot correct the mistakes of the past. The finding of the Learned High Court Judge that she is unable to correct the mistake that had occurred in the past is misapprehension of the law and a finding arrived without hearing the other side and definitely an order entered per incuriam.
As such there had been no impediment whatsoever for the respondent-petitioners to have made an application to the High Court judge on that matter and it is my view that such an application can be made even now adverting to the principle that the court had no jurisdiction to enter judgment against the 2nd to 7th respondent petitioners. This is based on the principle that no amount of delay is capable of conferring jurisdiction which the Court patently was lacking in it.
For reasons stated above, as the respondent- petitioners have not exhausted the remedy available to them in the lower court, the application made in revision is dismissed.
I make no order as to costs.
Sgd. Judge of the Court of Appeal
I agree
W L R Silva
end of judgment
other useful details
other useful details
1. Dharmadasa Wanniarachchi
The Governor,-
North Western Province,
Governor’s Office and others,
CA (PHC) APN REV. No. 235/06
HC(North Western P) No . 67/00
Petitioners
Vs.
Sulaima Lebbe Mohamed Razik,
Petitioner-Respondent
Before: W L R Silva J and A W A Salam J
Counsel: H O M Hizbulla SC for the petitioners and Nizam Kariapper for the petitioner respondent.
Argued: 11.11.2009
Decided on: 20 .10.2010
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