CONTEMPT OF SUPREME COURT
SC Contempt No. 03/16
One Bandumali Jayasinghe
was asked to show cause as to why she should not be punished for having
committed the following offences of contempt of the Supreme Court;
That she -;
. (a) Submitted a
written complaint to Supreme Court
against Ms. Amarathunga Arachchige Niduk Wasana Perera, Attorney-at-Law relating
to her professional conduct in the District Court of Colombo case bearing No:
DDV/0054/2008 and in the complaint did wilfully make the following false
statements:
(i)
That she never received any
notice, summons and/or any decree in the said divorce action.
(ii) That she never instructed Niduk Perera to file proxy on her behalf
and/or to appear and tenders an answer and/or to take any notice of the said
divorce action.
(iii)
That Niduk Perera AAL had
tendered a forged proxy on her behalf in the said divorce action and had filed
an answer without her instructions.
The Court found her to have by way of her
false representations interfered with the due administration of justice, by
attempting to obstruct the Supreme Court from reaching a correct conclusion.
Her intention has clearly been to deceive and mislead
the Court and her conduct can be described as an attempt to make a mockery of
the law as well as of this Court in her attempt to achieve her personal
objectives. Therefore, it can be held that she calculated conduct to interfere
with and obstruct the due course of justice constitutes contempt of court which
is punishable under Article 105 (3) of the Constitution.
It was further observed that it was evident
that the Attorney-at Law Ms. Niduk Perera had discharged her professional
duties diligently and in the best interest of Bandumali Jayasinghe and the
allegations made against Ms. Niduk Perera is bereft of any merit whatsoever. It
is indeed unfortunate that the Attorney-at-Law concerned had to face the
ignominy of going through the inquiry held before the Professional Purposes
Committee of the Bar Association as a result of the complaint.
Bandumali Jayasinghe was found guilty of
contempt of Court.
Judgment of Court
Aluwihare PC.J.,
A Rule issued by this Court on 26th
July 2016, called upon the Respondent, Don Bandumali Jayasinghe (hereinafter
sometimes referred to as “Bandumali Jayasinghe”) to show cause as to why she
should not be dealt with for an offence of contempt of the Supreme Court,
punishable under Article 105 (3) of the Constitution, committed, intentionally
and/or wilfully, by making false statements to this Court.
The Rule
In
the exercise of the Jurisdiction vested in the Supreme Court in terms of
Article 105 (3) of the Constitution the Rule issued against Bandumali
Jayasinghe was to show cause as to why she should not be punished for having
committed the following offences of contempt of the Supreme Court;
That the respondent-;
. (a) Submitted a
written complaint to this Court against Ms. Amarathunga Arachchige Niduk Wasana
Perera, Attorney-at-Law (hereinafter sometimes referred to as Niduk Perera)
relating to her professional conduct in the District Court of Colombo case
bearing No: DDV/0054/2008 and in the complaint did wilfully make the following
false statements:
(i)
That she never received any
notice, summons and/or any decree in the said divorce action.
(ii) That she never instructed Niduk Perera to file proxy on her behalf
and/or to appear and tenders an answer and/or to take any notice of the said
divorce action.
(iii)
That Niduk Perera AAL had
tendered a forged proxy on her behalf in the said divorce action and had filed
an answer without her instructions.
2. In the Affidavit
[dated 27th June 2014] submitted
to this Court in SC Petition No:P/19/2014 relating to the said complaint
against Niduk Perera, the Respondent did willfully make the following false
statements;
(i)That she had had
no knowledge of the District Court of Colombo Case No.DDV/00054/2008 until she
became aware of the Testamentary Proceedings bearing number DTS/00151/2012 in
the District Court of Colombo and had never instructed Ms. Niduk Perera to appear
in that divorce action on her behalf.
(ii)
That she never received any
summons in the said divorce action
No:DDV/00054/2008 and that the signature claiming to be hers at page 43
of the document marked as “X1” is not her signature.
(iii) That she had never met Niduk Perera and did not even know her by
name.
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Facts
On 21st January 2014, Bandumali
Jayasinghe by way of a letter addressed to His Lordship the Chief Justice made
a complaint against Attorney-at-Law Ms. Niduk Perera (hereinafter sometimes
referred to as “Niduk Perera”). In the said complaint Bandumali Jayasinghe
claimed that after having perused the case record of the Testamentary Action
bearing No. DTS/00151/2012 which had been instituted by the 1st
Petitioner to these proceedings, Hee Jung Kim alias Kim Hee Jung (hereinafter sometimes referred to as “Kim Hee Jung”)
in respect of the estate of one Dharman Sathanath Jayasinghe (hereinafter
sometimes referred to as “Dharman Jayasinghe”), she was shocked to discover
that a decree of divorce had been obtained against her by Dharman Jayasinghe in
the case bearing No.
DDV.00054/2008 in the
District Court of Colombo.
She further claimed in her letter that
having examined a certified copy of the case record of the said divorce action,
she found that;
a)
Dharman Jayasinghe, her
ex-husband had filed action on 1st February 2008 seeking a divorce
from her.
b)
On 15th May 2008
Niduk Perera had tendered a proxy for and on behalf of her and had also filed
answer claiming that instructions had been given by her to do so.
c)
The case was fixed for trial
for 3rd July 2008 and had been taken up exparte since there had been no appearance and/or representation on her
behalf .
d)
The Court had entered a Decree nisi and ordered it to be served through registered post and the
Fiscal.
e)
On 10th October 2008
the Fiscal had reported to the Court that the Decree nisi had not been served on her.
f)
On the same day, an
Attorney-at-Law called Ms. Nilu Perera (hereinafter sometimes referred to as
“Nilu Perera”) had appeared as her Attorney and had informed the Court that she
was accepting the notice of the Decree nisi on behalf of the Respondent.
g)
On 30th January
2009, the District Court had made the Decree nisi absolute on the basis that the said Attorney-at-Law had accepted
the Decree nisi on behalf of her.
Bandumali Jayasinghe had
further asserted in the complaint that;
a)
She had no knowledge of the
divorce action No. DDV/00054/2008 until she became aware of the testamentary
proceedings bearing No. DTS/00151/2012.
b)
She had never received any
summons, notice and/or any decree in the divorce action.
c)
She had never met Niduk Perera
nor had she ever retained the services of Niduk Perera in a divorce action.
d)
She had never instructed Niduk
Perera to file a proxy on her behalf and/or to appear and tender an answer
and/or to take any notice in the divorce action.
e)
Niduk Perera had tendered a
forged proxy on her behalf and had filed answer without her instructions. She
had also permitted Dharman Jayasinghe to obtain an ex-parte decree in his favour.
f)
One Attorney-at-Law named Nilu
Perera had accepted the notice of the Decree nisi without any instructions
having been given by her.
g)
She had been severely
prejudiced by the illegal conduct of the said Niduk Perera and/or Nilu Perera
and therefore prays that the Supreme Court takes necessary steps to grant her
relief in respect of the injustice caused to her due to the aforesaid illegal
conduct.
In pursuance of this complaint, proceedings
commenced in the Supreme Court under reference No. P/19/2014.
The Court then referred the said matter to
the Bar Association [BASL] to hold an inquiry. The Professional Purposes
Committee of the Bar Association of Sri Lanka (hereinafter sometimes referred
to as “The Committee”) had held an extensive inquiry into the complaint and
reported to the Supreme Court of their findings by their report dated 27th
January 2015. (“P27”)
The Committee observed that it was unable
to come to a finding of any professional misconduct or breach of professional
etiquette on the part of Attorney -at- Law Niduk Perera and that it could
neither accept Bandumali Jayasinghe as a truthful witness nor believe in her
assertions. The Committee recommended to this Court that no further action
should be taken against Niduk Perera and that action should be taken to issue a
Rule on Bandumali Jayasinghe to show cause as to why she should not be dealt
with for contempt of court by intentionally making false statements to the
Supreme Court in the said Inquiry [SC/P19/2014].
However, on 15th November 2014,
Bandumali Jayasinghe on the advice of her legal representatives, withdrew the
aforementioned complaint she made to the Supreme Court against Niduk Perera.
Thereafter, by way of a Petition dated 2nd
June 2016, the Petitioners in the instant case invoked the Contempt of Court
jurisdiction of the Supreme Court praying that the Court be pleased to in the
first instance issue a Rule on Bandumali Jayasinghe to show cause as to why she
should not be punished or dealt with for contempt of court by intentionally
and/or willfully making false statements to the Supreme Court.
Accordingly, a Rule was issued by this
Court against Bandumali Jayasinghe on 26th July 2016 and the inquiry
commenced.
Evidence led at the
Contempt Proceedings No.03/16 at the Supreme Court
Niduk Perera was called as a witness on
behalf of the Petitioners and was questioned before the Supreme Court on 22nd
June 2018 and 24th July 2018.
On 22nd June 2018 she identified
Bandumali Jayasinghe in court. (at page
11 of the Contempt proceedings dated 22nd June 2018).
She claimed that up to the 28th
of May 2014, which was the day on which Bandumali Jayasinghe had claimed to
have seen her for the very first time, she had in fact met Bandumali Jayasinghe
on more than 10 occasions. She further argued that Bandumali Jayasinghe was
lying in stating that she had never met her and had never instructed her to
file a proxy in the divorce action.
On being questioned, Niduk
Perera related the following facts;
She had first come to know Bandumali
Jayasinghe in 2008 after having been recommended to Bandumali Jayasinghe by
Varners Law Firm.
She received a telephone call from
Bandumali Jayasinghe asking to be represented by her in the divorce action
No.DDV/54/2008.
She had a consultation with Bandumali
Jayasinghe at her office prior to summons being served and she had asked her to
meet her again after the summons had been served.
On being informed by Bandumali Jayasinghe
that she had received summons, she had told her to come and meet her with the
summons and the other documents she had received with it.
She had gone through the summons and
prepared a printed proxy which she got Bandumali Jayasinghe to sign and write
her NIC Number.
She had compared the number written by
Bandumali Jayasinghe with her National Identity Card and had made a correction
as an extra digit [of the ID number] had been written by Bandumali.
She had told the trial court that Bandumali
Jayasinghe was not contesting the divorce
She was told by Bandumali Jayasinghe that
there was a written agreement between her and Dharman Jayasinghe prior to the
divorce action under which they had agreed to divide their assets.
She stated that Bandumali Jayasinghe had in
fact communicated with her through her mobile phone no 0773186901 and produced
detailed call records reflecting large number of calls between the parties,
from 14th March 2008 to October 2008. (Statements marked as P25, P26
and P27)
She stated that even after the conclusion
of the divorce action Bandumali Jayasinghe had maintained a professional
relationship with her.
This was evidenced
by;
1.The Power of Attorney No.147, dated 13th
December 2009, attested by Niduk Perera and executed by Bandumali Jayasinghe’s
son Ashan Jayasinghe of which Bandumali Jayasinghe was the first witness. The
protocol copy of the Power of Attorney dated 13th December 2009
No.147 was produced before the Court as evidence.
(at page 15 of the proceedings of 22nd
June 2018 and proceedings dated 24th July 2018)
2.Niduk Perera’s services had been retained
to draft a Trust Agreement in respect of a Trust that Bandumali Jayasinghe and
her former husband Dharman Jayasinghe wanted to establish in the name of their
deceased sons, Hiran and Ashan Jayasinghe.
(evidenced by a Letter dated 08th
June 2014 from Mr. Nihal Jayewardene, PC whose advice was sought during the
drafting of the Trust Agreement) marked as P34.
3.Emails had been sent by Bandumali
Jayasinghe to Niduk Perera regarding the Trust matter (P36)
4. A ‘friend
request’ sent to Niduk Perera by Bandumali Jayasinghe on the social media
platform ‘Facebook’ to add her as a Friend. (The email notification of the
friend request is marked as P35).
These instances clearly establish the fact
that Bandumali Jayasinghe knew who Niduk Perera was and had a professional
relationship with her even after the divorce had been finalized.
Evidence given in SC Proceedings No.
P/19/2014 with respect to Bandumali Jayasinghe’s complaint against Niduk
Perera.
After the complaint was filed by Bandumali
Jayasinghe against Niduk Perera, the latter gave a detailed account of her
professional relationship with Bandumali Jayasinghe by way of two affidavits,
i.e. Observations to the Supreme Court dated 10th June 2014 (marked
as “P20”) and an affidavit tendered to the Inquiry Committee of the Bar
Association of Sri Lanka dated 31st October 2014 (marked as
“P23”)
Although this material pertains to the issue of determining whether
Niduk Perera was guilty of professional misconduct, it is pivotal in the
present action for this court to determine whether Bandumali Jayasinghe’s
allegations are in fact true.
As was stated in Niduk
Perera’s two Affidavits;
She had first come to know Bandumali
Jayasinghe in 2008 when Bandumali Jayasinghe had contacted her via phone and
had asked her to represent her (Bandumali Jayasinghe) in the divorce action No.
DDV/0054/08.
Then on or about 2nd April 2008,
Bandumali Jayasinghe had come to meet her at her office and had instructed her
on the said divorce action.
She had been informed by Bandumali
Jayasinghe that she and Dharman Jayasinghe had agreed to dissolve their
marriage and had already negotiated and executed a divorce settlement, as to
how the assets were to be divided between them. Bandumali Jayasinghe had also
related that she received monies from Dharman Jayasinghe and that she had
already executed certain deeds, acting in terms of the post-nuptial agreement.
(vide
Paragraph 5a of P20)
Regarding the divorce action, Bandumali
Jayasinghe had instructed her that she
would not be contesting the action and had asked for a speedy conclusion of the
action without her having to participate in the legal proceedings. This was,
according to her, the first professional duty, she had performed on behalf of
Bandumali Jayasinghe in respect of this case. (vide page 10 of the proceedings dated 22nd June 2018)
Thereafter, Bandumali Jayasinghe had met
her again at her office and had handed over the said summons and the Plaint
which had been delivered along with the summons. (at paragraph 5c of P20).
She had then prepared a printed proxy and
had obtained Bandumali Jayasinghe’s signature and had got her to write down her
National Identity Card number in her own handwriting. She had then checked the
number by comparing it with the National Identity Card and having seen that
Bandumali Jayasinghe had written an extra digit got her to delete the same.
(Proxy is marked as ‘P17’). The place where Bandumali Jayasinghe’s signature
appears is marked as P17 (a) and where the NIC number of Bandumali Jayasinghe
appears is marked as P17 (b))
Niduk Perera maintained that she then
drafted the Answer on Bandumali Jayasinghe’s instructions denying the
allegations contained in the Plaint and had made a plea of counter divorce as
Bandumali Jayasinghe wanted to end the marriage as well. (vide paragraph 5(d) of P20)
When the case was called in the District
Court of Colombo, she had appeared on behalf of Bandumali Jayasinghe and had
filed her proxy as well as the Answer.
(paragraph 5e P20)
Thereafter, she had sought further
instructions from Bandumali Jayasinghe as to whether she wished to pursue a
divorce in her favour or refrain from contesting her husband’s action. (vide Paragraph 24 of P23). She claims that Bandumali Jayasinghe had
instructed her that she did not wish to contest the case and wanted her to take
the necessary steps to expedite the divorce.
On 28th May 2008 she had
appeared on behalf of Bandumali Jayasinghe and had informed the court that she
would not be contesting the action, after which the court fixed the case for
trial on 3rd July 2008. (journal entry no. 3 at page 3 of annexure
x1) (paragraph 25 of P23)
On 3rd
July 2008, she had appeared in the District Court of Colombo on behalf of
Bandumali Jayasinghe and the case was refixed for 29th August 2008
(Journal Entry No.4) (paragraph 27 of P23). However, after she had left, the
case had been taken up again and an ex parte decree nisi had been entered in
favour of Dharman Jayasinghe.
She had then informed Bandumali Jayasinghe
about the ex parte proceedings.
Bandumali Jayasinghe not having been too concerned, had insisted on having the
action concluded as soon as possible as there was a sum of money that she was
to receive once the case was over, in terms of a post-nuptial agreement between
her and Dharman Jayasinghe. (Para 30 P23)
Sometime later Bandumali Jayasinghe had
informed her that an officer of the court had visited her house in Dompe but
had not been able to serve the Decree Nisi
as she was then residing at Longden Place, Colombo 07. However, she had gone on
to say that the Decree Nisi that
had been sent to her under registered cover, had reached her.
Bandumali Jayasinghe had then specifically
instructed her to appear in Court on the next date and to consent to conclude
the divorce action which would assure her receiving the balance payment
promised under the divorce agreements. (Para
31 P23)
Accordingly, she had appeared in court on
10th October 2008 and took notice of the decree nisi and thereafter the case had been re-fixed for 30th
January 2009 to make the decree nisi
absolute. (paragraph 32 of P23)
She
had called Bandumali Jayasinghe the day before the decree nisi was to be made absolute to make sure she had not changed her mind
(Paragraph32 p23) (detailed bill of outgoing calls from Niduk Perera to
Bandumali Jayasinghe from 15th
September 2008 to 14th
October 2008 R47 (a) (b))
On 30th January 2009 she had
appeared once again in court and the decree nisi had been made absolute. Certified copies of the decree nisi and decree absolute had been handed over to Bandumali Jayasinghe.
(para 33 p23)
(Statements marked as P25,
P26 and P27)
This evidence clearly and unequivocally
demonstrates the client-lawyer relationship between these two individuals, and
that Niduk Perera’s services had been
obtained by Bandumali Jayasinghe to appear on her behalf in the divorce action
No. DDV/00054/08 and had appointed her as her
attorney on record by duly signing the proxy.
Bandumali Jayasinghe’s evidence
The evidence given by Bandumali Jayasinghe
in order to support the allegations she had made against Niduk Perera warrant
an extensive examination in order to ascertain whether she did in fact attempt
to mislead the Supreme Court and thereby interfere with the administration of
justice, thereby committing the offence of Contempt of court.
Despite Bandumali Jayasinghe’s contention
in the written submission dated 21st August 2020 tendered on her
behalf, regarding the powers of the Committee to conduct an inquiry, the Supreme
Court will not delve into the matter of whether or not the Committee had the
mandate to carry out an inquiry and make recommendations. The fact of the
matter is that Bandumali Jayasinghe did attend the said inquiry and give
evidence before it. Therefore, we see no reason why the
Supreme Court, independent of the findings
of the Committee, could not take into account the aforesaid evidence in order
to ascertain whether she came before the Supreme Court and made false
representations.
The Court will therefore inquire into the
contents of her complaint to the Supreme Court dated 21st January
2014, her Affidavit to the Supreme Court dated 27th June 2014
(marked as P21), as well as her Affidavit to the Inquiry Committee of the Bar
Association of Sri Lanka dated 25th August 2014 (P22) and the proceedings of the BASL inquiry
(marked as P24(a), P24 (b), P24(c), P24(d), P24(e), P24(f)). All of this
evidence pertains to the proceedings relating to the complaint she had made
against Niduk Perera, but nevertheless warrants examination in the present
case, given the fact that the key issue is whether she made false
representations to the Supreme Court and is therefore guilty of contempt of
court.
Evidence given by
Bandumali Jayasinghe in support of her allegations.
(i) That she had never met Niduk Perera and did not even know her by
name.
One claim made by Bandumali Jayasinghe
against Niduk Perera was that she had never met her and had never retained her
services in the divorce action. (vide Paragraph
8 of the Complaint).
She reiterated this in her Affidavit to the
Supreme Court (“P21”) (para 4 and para 13) as well as in her Affidavit to the
Professional Purposes Committee of the Bar Association of Sri Lanka
(hereinafter sometimes referred to as “The Committee”) (P21 at paragraph 43).
Furthermore, when the Supreme Court confronted Bandumali Jayasinghe in open
Court as to whether she had met Niduk Perera previously, she replied by saying
that she had never seen her and that it was the first time that she was seeing
her. (SC Proceedings of 28th May 2014). Even at the inquiry
conducted by the Committee, on 30th August 2014 she claimed that it
was at the Supreme Court that she had seen Niduk Perera for the first time.
(Pages 4, 25-26)
However, on 6th September 2012
Bandumali Jayasinghe admitted to the Committee, under cross-examination, that
she had met Niduk Perera or someone resembling her before on several occasions.
(page 40)
(ii)
That Niduk Perera had tendered
a forged proxy on her behalf in the said divorce action and had filed answer
without her instructions.
The crux of Bandumali Jayasinghe’s
complaint is that, unbeknown to her, Niduk Perera had acted and appeared on her
behalf in the divorce action bearing No. DDV/00054/2008. She claimed that Niduk
Perera had tendered a forged proxy and an answer without having received any
instructions from her to do so.
She has reaffirmed this allegation in her
Affidavit to the Supreme Court (P21) (vide
Paragraph 19) and in her Affidavit to the Committee (P22) (vide paragraph 40).
However, during the inquiry, she not only
admitted to signing the proxy (proceedings dated 31.08.2014 at page 31), but it
was also discovered that the photocopies of a certified copy of the proxy that
had been tendered by her as evidence to the Supreme Court had been tampered
with (proceedings dated 6th September 2014). Bandumali Jayasinghe
could not vouch for the genuineness of the document she produced as the proxy
and did not answer when asked whether she could swear that it hadn’t been
tampered with. (proceedings of 30th August 2014 page 28)
(iii)
That she never received any
notice, summons and/or any decree in the said divorce action.
In Bandumali Jayasinghe’s affidavit to the
Supreme Court (P21), she affirmed that she did not receive summons and that
although the signature placed on the “precept to fiscal to serve” appears to be
hers it was in fact not hers. (vide paragraph 7)
She has reiterated this assertion in her
Affidavit to the Committee (P22). (Paragraph 41-42)
However, under cross-examinationon13th
September 2014, she has admitted that she did receive the summons, had signed
it and did not take it seriously. (at page 27). This is
further established by Journal Entry No.2 of the Case
record of DDV00054-08 which states that summons had been personally served on
Bandumali Jayasinghe by the Fiscal on 2nd May 2008, as well as by
the Fiscal’s affidavit dated 2nd May 2008.
in June 2012, Bandumali Jayasinghe
instituted a testamentary case No. DTS00134-12 in respect of the estate of the
deceased Ashan Jayasinghe in the District Court of Colombo. During the course
of the testamentary proceedings, Bandumali Jayasinghe’s lawyers had submitted
the decree absolute of her divorce from Dharman Jayasinghe by way of a motion
on 27th June 2012. She has denied all knowledge of that motion.
(page 20 of the proceedings dated 13th September 2014)
The contradictory position taken by
Bandumali Jayasinghe on material points, is a clear indication of the fact that
she had not been truthful, that her version lacks credibility and that she has
wantonly misrepresented facts to the Supreme Court
(iv) That she had no
knowledge of the Divorce case
All of her allegations against Niduk Perera
are fundamentally based not only on her assertion that she did not grant a
proxy to her, but also on her claim that she knew nothing about the divorce
action instituted by her husband Dharman Jayasinghe.
Her assertion that she had no knowledge of
the fact that the divorce action No. DDV/00054/2008 was filed by Dharman
Jayasinghe and that she only found out about it when the testamentary action
bearing No. DTA 15/2012 was filed by Kim Hee Jung with regard to his estate,
has been restated in her Affidavit to the Supreme Court (at paragraph 4 of P21)
as well as in her Affidavit to the Committee (at paragraphs 29 read with 31 -33
of P22).
Despite her claim that she was unaware of
the divorce proceedings against her, there is ample circumstantial evidence
which points to the fact that she was aware of
the divorce action;
On 26th November 2007, Dharman
Jayasinghe and Bandumali Jayasinghe had entered into a Non-Notarial Agreement
(marked as “P4”). It had been described as a mutually created settlement to
divorce/ collaborative divorce agreement.
For the same purpose of dissolving their
marriage amicably they had entered into a second agreement in the style of a
post-nuptial agreement, dated 28th December 2007 (marked as “P6”).
In pursuance of the
aforesaid agreements Bandumali Jayasinghe had;
• Gifted the premises No. 40/19, Longden Place premises to Dharman
Jayasinghe by Deed No. 3924 dated 28th December 2007. (P7)
• Gifted a land called “Alubogahakumbura” by Deed No. 3932 dated 2nd
January 2008 to Ashan
Jayasinghe. (P8)
• Gifted a land along with Dharman Jaysinghe, called “Mahabim
Mukalana” by Deed No. 3925 dated 28th December 2007 to Ashan Jayasinghe.
(P9)
• Accepted Rs. 12.5 million as the first instalment of the Rs. 25
million agreed upon by the parties with a specific condition that the remaining
balance of Rs. 12.5 million shall only be paid when the decree nisi is made absolute. (Clause 4 of P6)
• Resigned as a Director of Dinu Construction (Pvt) Ltd (Letter of
Resignation dated 4th December 2007 marked as ‘P5 (a)’), a company
which was incorporated in 1987 by Dharman Jayasinghe with co-ownership and
codirectorship with Bandumali Jayasinghe and another
The only explanation she could give to the
Committee for signing the aforementioned agreements was that she was not aware
of the nature and significance of those documents and that she signed whatever
documents Dharman Jayasinghe wanted her to, in order to obtain money for the
education of her son, Ashan Jayasinghe.
From the foregoing, the irresistible
conclusion one can draw is that Bandumali Jayasinghe had ‘lied’ to the Supreme
Court with the objective of persuading the court to take action against Niduk Perera,
based on those lies.
Following the death of her younger son
Ashan Jayasinghe, Bandumali Jayasinghe in her statement to the Cinnamon Gardens
Police Station on 29th January 2011 had specifically stated that,
according to her late son, he had not been pleased with the food prepared by
the ‘Korean Lady’ who was the wife of his father (Dharman Jayasinghe) and that
his father had once warned Ahsan Jayasinghe that the Korean Lady was not a
servant but his lawful wife. However, in her Affidavit to the Supreme Court
dated 27th June 2014, while admitting that she did make a statement
to the Cinnamon Gardens Police Station on 29th January 2011 with
regard to the death of her son, she has claimed that she was unaware that her
husband had divorced her, which certainly was not the truth.
Later, in June 2012, Bandumali Jayasinghe
instituted a testamentary case No. DTS00134-12 in respect of the estate of the
deceased Ashan Jayasinghe in the District Court of Colombo. In the caption in
the said testamentary action she was named as “Don Bandumali Welikala” and not
as “Don Bandumali Jayasinghe”, “Welikala” being her maiden name. She had also claimed ½ of Ashan Jayasinghe’s
estate, when she could have claimed ¾ of it if her marriage to Dharman
Jayasinghe still subsisted. She did not, however, provide a reasonable
explanation for her abovementioned course of conduct.
Furthermore, as mentioned earlier, on 27th
June 2012 her lawyers had by way of motion submitted the decree absolute of her
divorce from Dharman Jayasinghe, of which she denied all knowledge. (page 20 of
the proceedings dated 13th September 2014)
Four months after the death of Dharman
Jayasinghe, the Condominium Unit belonging to the late Ashan Jayasinghe was
leased out to Colombo International Container Terminals Limited by Bandumali
Jayasinghe and Kim Hee Jung who acted as joint-lessors and owners of the said
property. In the lease agreements Bandumali Jayasinghe’s status was described
as ‘divorced’ and Kim’s was described as the wife of Dharman Jayasinghe. (Lease
Agreement No. 3284 dated 4th July 2012 and Lease Agreement No. 3541
dated 18th June 2013 both dates anterior to the complaint made against
Niduk Perera by Bandumali Jayasinghe)
At the inquiry conducted by the Committee,
Bandumali Jayasinghe admitted to signing the said lease agreements (at page 18
of the proceedings dated 3rd August 2014 and at page 13 of the
proceedings dated 6th September 2014) however she insisted that in
addition to her it was the mother of Dharman Jayasinghe, Soma Rupali Jayasinghe
(the 2nd Petitioner in the instant case), who had signed and that
Kim Hee Jung had not been present. On the perusal of the agreements, it is
clear that Soma Rupali Jayasinghe had signed only as a witness and that the
power of attorney holder of Kim Hee Jung had signed on her behalf as a joint
lessor.
Kim Hee Jung could not have been a joint
lessor if she did not inherit Ashan Jayasinghe’s property through Dharman
Jayasinghe. And she could only inherit from Dharman Jayasinghe if she was his
wife.
In addition to all of this evidence,
Bandumali Jayasinghe failed to give an adequate explanation for the telephone
calls and email messages between her and Niduk Perera. When examining the supplementary evidence
pertaining to her knowledge of the said divorce action it is evident that
Bandumali Jayasinghe has not been honest in her representations.
The inference that can be drawn from the above
is that Bandumali Jayasinghe having full knowledge of her dealings with Niduk
Perera has made false representations to the Supreme Court by way of an
affidavit, the contents of which for all intents and purposes ought to be
treated as evidence.
The Attorneys-at-Law appearing on behalf of
Bandumali Jayasinghe in the present action have stated that they do not wish to
challenge the fact that the allegations made against Niduk Perera are untrue.
Their only contention is that the statements made do not amount to contempt of
court. (written Submissions on behalf of the Respondent in Contempt No.03/16
dated 21st August 2020)
Thus, at this point this court needs to
consider whether the Respondent Bandumali Jayasinghe’s conduct, namely placing
‘false evidence’ before the Supreme Court, amounts to contempt of court.
Contempt of Court
Contempt of court is a multifaceted
offence, for which it is difficult to lay down a precise definition. In English
Common Law, contempt of court is an act or omission calculated to interfere
with the due administration of justice.
Lord Radcliffe in the case
of Reginald Perera v. The King stated;
“There
must be involved some act done or writing published calculated to bring a Court
or a Judge of the Court into contempt or to lower his authority or something
calculated to obstruct or interfere- with the due course of justice or the
lawfulprocess of the Courts.”
According
to Lord Cross of Chelsea, “Contempt of court means an
interference with the administration of justice….”
Attorney-General v. Times Newspapers (1973) 2 All ER 54,]
In Attorney-General v. Leveller Magazine
Ltd., [1979] AC 440 at page 449, Lord Diplock defined the offence as
follows,
“Although criminal contempt of court may take a variety
of forms, they all share a common characteristic: they involve an interference
with the due administration of justice, either in a particular case or more
generally as a continuing process. It is justice itself that is flouted by
contempt of court, not the individual court or judge who is attempting to
administer it.”
In
Attorney-General v. Newspaper Publishing PLC [1988] Ch.333, 368; it was held that, “The law of
contempt is based on the broadest principles, namely that the courts cannot and
will not permit interference with the due administration of justice. Its
application is universal.” [per Sir john Donaldson MR]
If
the people are to be governed by the rule of law, the judicature administering
it should not only be credible, but should also command the confidence of the
public; without which it loses its ability to perform its functions. The court
is required to adjudicate on the rights of litigants based on the material
placed before it in the form of evidence. Since the court necessarily has to
rely on such evidence, the reception of accurate and credible evidence has a
significant bearing on the court arriving at correct decisions.
One of the main reasons, in my view, for
almost all jurisdictions world over to visit instances of giving false evidence
with penal sanctions is to ensure the due administration of justice; for
failure on the part of the court to do so would impact on the credibility of
the court and thereby lower the reputation of the court as an impartial
adjudicator of disputes.
Commenting
on the principles of the offence of ‘Giving false evidence’ under Section 191
of the Indian Penal Code, Dr. Sri Hari Singh Gour says “The
giving of false evidence is thus the
practicing of fraud upon the court by making it believe as true that which the
deponent does not believe to be true.. As such the offence belongs the genus of
offences concerned with due discharge of their duties by public servants. The
offence is thus a contempt of court…” [Gour’s Penal Law of India 11th Edition Vol 2-page 1724]
Giving false evidence has received statutory
recognition as ‘contempt of court’ in the form of Section 449 of the Code of
Criminal Procedure Act No.15 of 1979.
hereinafter the CPC] Section 449 of the CPC reads thus;
449
(1); “If any person giving evidence on
an subject in open court in any judicial proceeding under this Code gives, in
the opinion of the court before which the judicial proceeding is held, false evidence within the
meaning of section 188 of the Penal Code, it shall be lawful for the court, if
such court be the Supreme Court or Court of Appeal or High Court, summarily to
sentence such witness as for a contempt of the court to imprisonment either
simple or rigorous for any period not exceeding two years or to fine such
witness in any sum not exceeding one thousand rupees; or…….”
Although Section 449 of the CPC has no
application to the instant situation the point, I wish to make is that, giving
or presenting false evidence could be treated as an instance of ‘contempt of
court’.
In the instant case the Respondent had
clearly, by misrepresenting facts which were false or she knew to be false had
made use of such facts in her attempt to obtain from the court the order, she
desired.
Powers of the Supreme
Court to deal with instances of contempt.
The Constitution vests the Superior Courts inter
alia, with the power to punish for contempt of court.
The power of the Supreme Court to do so is contained in Article 105 (3) of the
Constitution which reads as follows:
Article 105 (3)
“The
Supreme Court of the Republic of Sri Lanka and the Court of Appeal of the
Republic of Sri Lanka shall each be a superior court of record and shall have
all the powers of such court, including the power to punish for contempt of
itself, whether committed in the court itself or elsewhere, with imprisonment
or fine or both as the court may deem fit. The power of the Court of Appeal
shall include the power to punish for contempt of any other court, tribunal or
institution referred to in paragraph 1 (c) of this Article, whether committed
in the presence of such court or elsewhere.”
In the Matter of D.M.S.B. Dissanayake S.C.
Rule, 1/2004, S.C. Minutes of 7th December 2004 (unreported) S. N.
Silva C.J. emphasized that
“….
this Court, as the highest and final superior court of the Republic, forms part
of the administration of justice and necessarily attracts the power to take
cognizance of and punish offences of contempt.”
Hence the jurisdiction to punish as
contempt, any act of interference with the administration of justice is vested
with the Supreme Court as a Superior Court of Record. It is part of the
inherent jurisdiction of the Supreme Court and an essential adjunct for
safeguarding the rule of rule of law.
Making false representations to
the Supreme Court
Judges do not have personal knowledge of
the cases brought before them and in fact, they are not supposed to have such
personal knowledge. Therefore, to mete out justice Judges must depend on
documents and the testimonies of individuals that are submitted to the court.
As such, if a document or testimony is false, then there is every likelihood of
injustice resulting due to the falsity of the material before the court.
The plea made by the Petitioners in this
action is that Bandumali Jayasinghe has made a series of false statements to
mislead the Supreme Court and has thereby committed the offence of Contempt of
Court punishable under Article 105 (3) of the Constitution.
The three essential elements required to
establish that an individual has given false evidence can be identified
as,
1.The legal obligation to state the truth.
(arising out of the binding nature of an oath, an express provision of law to
state the truth, or a formal declaration required to be made by law.)
2.
The making of a false
statement.
3.
The belief in its falsity.
In the instant case, there are numerous
instances that establish without doubt, that Bandumali Jayasinghe has
suppressed facts and has given statements which she knew or had reason to
believe to be untrue. For instance, she vehemently denied retaining or having
ever seen Niduk Perera, but evidence suggests otherwise; she affirmed to this
Court that she never received summons, but on being crossexamined she admitted
that she did; she complained that Niduk Perera had tendered a forged proxy, but
she later admitted that she did in fact sign the proxy; she claimed to know
nothing about Dharman Jayasinghe divorcing her and going on to marry Kim Hee Jung,
but all evidence supports the assumption
that she did know.
The irresistible inference that can be
drawn is that Bandumali Jayasinghe has deliberately presented an account which
is demonstrably false, with a view to mislead and deceive the court to achieve
her personal objectives.
When
a person misleads the Supreme Court or for that matter any court, it amounts to
interference with the due course of justice by attempting to obstruct the Court
from reaching a correct conclusion. (The Secretary, Hailakandi Bar Association
v. State of Assam, A.I.R. 1996 S.C. 1925 at pp. 1930,1931).
Therefore, making false representations to
the Supreme Court knowing them to be false, giving evidence knowing it to be
false- and thereby attempting to mislead the Court amounts to Contempt of Court
as it is a direct interference with the administration of justice.
Despite the fact that Bandumali Jayasinghe
was given the opportunity to establish the veracity of her account, she has
failed to do so. The submissions made by
her in support of her allegations against Niduk Perera are laden with
contradictions, inaccuracies and falsehood.
Her assertion that the allegations made by
her were not made with the intention of influencing the court as to the final
outcome of the case, but were made in order to establish the charge against
Niduk Perera is not an acceptable justification for her actions. (A video
written submissions of Bandumali Jayasinghe to the
Supreme Court dated 21st August 2020). It is clear that her conduct
created a real risk to the due administration of justice and was therefore a
“calculated conduct”. (Attorney General v. Times Newspapers (1974) AC 273)
Furthermore, the allegations levelled
against Niduk Perera which included the filing of a forged proxy, appearing and
filing answer for a party without receiving instructions, and allowing the
action to proceed ex parte, all done without any
instructions from the party purported to be represented, are extremely grave.
In pursuance of these allegations Bandumali Jayasinghe had thought it fit to make a complaint to the Chief Justice and
thereafter tender a false affidavit and supplementary evidence to support her
false allegations. As was reiterated earlier, In the matter of D.M.S.B.
Dissanayake (supra) S.N. Silva C.J.
emphasized that the Supreme Court as the most superior court of the country
forms part of the administration of justice and attracts the power to recognize
and punish offences for contempt.
Therefore, the Supreme Court possesses the
power in proceedings relating to contempt of court, a power which, if properly
exercised can be a salutary influence on the administration of justice. The
Constitution itself has vested the Supreme court with the power to hold an
individual, who as in this instance, had blatantly lied to it, guilty of
contempt.
Bandumali Jayasinghe has by way of her
false representations interfered with the due administration of justice, by
attempting to obstruct the Supreme Court from reaching a correct conclusion.
Her intention has clearly been to deceive and mislead
the Court and her conduct can be described as an attempt to make a mockery of
the law as well as of this Court in her attempt to achieve her personal
objectives. Therefore, it can be held that she calculated conduct to interfere
with and obstruct the due course of justice constitutes contempt of court which
is punishable under Article 105 (3) of the Constitution.
We have considered the submissions made on
behalf of the Respondent in this matter.
Accordingly, we affirm the Rule served on
the Respondent; convict the Respondent of the offence of contempt of Court,
punishable under Article 105 (3) of the Constitution.
In the course of the hearing the Learned
President’s Counsel Razik Zarook PC maintaining the highest traditions of the
Bar did submit that “the allegations made against Niduk Perera had certainly
not been well thought of and indeed not correct and in view of it, the
Respondent unreservedly apologise to this Court”.
Upon consideration of all relevant facts
the Respondent is sentenced to a term of two years rigorous imprisonment,
however, taking into account the mitigatory factors pleaded on her behalf, the
operation of the sentence is suspended for a period of five years. In addition,
a fine of Rs. 300,000/ [Three hundred thousand] is also imposed on the
Respondent, with a default sentence of two years rigorous imprisonment. The
fine is to be paid on a date to be determined by this court.
The Respondent is further directed to
tender a written apology to Attorney -at-Law Ms. Niduk Perera with regard to
the false and /or baseless allegations made against her.
Although it may not have a direct bearing
on the issue before us, I would be failing in my duty if this court does not
make an observation with regard to the discharge of her professional duties by
Attorney- at- Law Ms. Niduk Perera. Having gone through the material placed
before us in the course of the inquiry, it was evident that the Attorney-at Law
Ms. Niduk Perera had discharged her professional duties diligently and in the
best interest of the Respondent, Bandumali Jayasinghe and the allegations made
against Ms. Niduk Perera is bereft of any merit whatsoever. It is indeed
unfortunate that the Attorney-at-Law concerned had to face the ignominy of
going through the inquiry held before the Professional Purposes Committee of
the Bar Association as a result of the complaint made by the Respondent
Bandumali Jayasinghe, to the Supreme Court.
JUDGE OF THE SUPREME COURT
JUSTICE MURDU FERNANDO PC
I agree
JUDGE OF THE SUPREME COURT
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