The Court of Appeal has clear jurisdiction under Art. 105(3) to punish for contempt of itself and of other courts/tribunals, whether committed in facie or ex facie curiae.

 Headnote — Nature Resort (Pvt) Ltd v Pramuka Savings & Development Bank Ltd & others; Upul Jayasuriya v S.P.R.P. Senanayake - Unreported

Court of Appeal of Sri Lanka — CA Contempt No. COC-0006-21 (from DC Kaduwela No. 878/L/2020)

CA Contempt No : COC-0006-21

Decided: 21 March 2023

Bench: Menaka Wijesundera J; Neil Iddawala J (judgment of Iddawala J)

Counsel: Neil Unamboowe PC for Petitioner; Nihal Somasiri with Hashini Rathnayake for Respondent

Contempt of court; false affidavit; Article 105(3) Constitution; Section 183B Civil Procedure Code; Section 181 Civil Procedure Code (contents of affidavits); Section 55(1) Judicature Act; in facie/ex facie curiae; forum and timing; prejudice to pending trial; property boundary dispute; survey superimposition plan.

Procedural Posture

Application (27.09.2021) to the Court of Appeal under Art. 105(3) read with CPC s.183B to punish the respondent (Assistant Manager, Sri Lanka Savings Bank Ltd—3rd defendant in DC action) for contempt, alleging deliberate falsehoods in two affidavits (22.02.2021; 20.05.2021) filed in DC Kaduwela Case No. 878/L/2020.

On 18.07.2022 the Court of Appeal called for the respondent’s position before deciding on issuing formal summons. Respondent appeared (06.12.2022) and parties filed written submissions (31.01.2023). Question before Court: whether to issue formal summons in contempt.

 

Facts (Underlying DC action in brief)

Plaintiff company (Nature Resort) and Slam Studio (Pvt) Ltd obtained a loan via the 1st/2nd defendants to purchase land in Talangama; default alleged.

Plaintiff says land was to be handed to 1st/2nd defendants under a constructive trust; alleges 3rd defendant (Sri Lanka Savings Bank Ltd) — not party to that arrangement — is encroaching.

Plaintiff seeks, inter alia, declaration of title.

In DC, the respondent (officer of 3rd defendant) filed affidavits relying on a licensed surveyor’s superimposition plan (No. 015101) asserting encroachment/unlawful occupation by the petitioner (Upul Jayasuriya PC) and his spouse.

Petitioner alleges those affidavits contain knowingly false statements, intended to mislead the DC and pervert justice.

Issues

Whether the Court of Appeal should issue summons and proceed in contempt against the respondent for alleged false statements in affidavits filed in the DC proceedings.

How Art. 105(3) (superior courts’ contempt power) interfaces with CPC s.183B and Judicature Act s.55(1) (lower courts’ contempt jurisdiction) when the alleged contempt turns on factual matters central to the pending trial.

Held

Jurisdiction affirmed but not exercised: The Court of Appeal has clear jurisdiction under Art. 105(3) to punish for contempt of itself and of other courts/tribunals, whether committed in facie or ex facie curiae.

However, summons refused and application dismissed on prudential/forensic grounds: the alleged contempt (false affidavits) is inextricably tied to fact-finding on boundaries and extent of the land, matters squarely within the DC’s remit in the pending trial. Proceeding in contempt at appellate level would risk prejudicing the trial and impair efficiency.

Proper forum: In circumstances where the alleged contempt arises “in the course of” proceedings and hinges on issues the trial court must determine, the trial court is the appropriate forum to address such contempt in the first instance.

Ratio / Principles

Scope of superior courts’ contempt power (Art. 105(3)):

The Court of Appeal (a superior court of record) may punish contempt of itself and of “any other court, tribunal or institution” whether committed in court or elsewhere.

This includes false affidavits filed in subordinate courts (ex facie curiae).

Coexistence with lower courts’ statutory contempt jurisdiction:

Judicature Act s.55(1) gives District/Magistrates’ Courts special jurisdiction to punish contempts committed in the presence of the court and all offences committed in the course of any act or proceeding that the law declares punishable as contempt.

CPC s.183B specifically provides that a person who wilfully makes any false statement by affidavit or otherwise in the course of proceedings may be punished as for contempt of court, in addition to Penal Code liability for giving false evidence.

These provisions operate without derogating from Art. 105(3); they identify circumstances where the trial court is the more suitable forum.

Content of affidavits (CPC s.181):

Affidavits must be confined to facts within the deponent’s own knowledge and observation; on interlocutory applications, belief may be stated if reasonable grounds are set out.

Breach of s.181 may underpin contempt under s.183B where willfulness is present.

Forum selection & prejudice test (case-management principle):

Even where the Court of Appeal has jurisdiction, it should decline to act if deciding contempt would require it to pre-determine factual controversies at the heart of the pending trial, thereby prejudicing that trial and undermining “proper authority and efficiency” of the lower court.

Contempt premised on disputed factual assertions (e.g., land encroachment shown by a superimposition plan) should ordinarily be determined by the trial court that will assess those facts on evidence.

Precedent Relied On

Meththanda v Kushan Fernando (2006) 1 Sri LR 290 — Interprets Art. 105(3), Judicature Act s.55(1) (proviso), and CPC s.183B; confirms that while superior courts retain inherent contempt powers, lower courts possess and should exercise their specific statutory jurisdiction to deal with contempts (including falsified affidavits) arising in their own proceedings.

 

Application of Law to Facts

The alleged falsity stems from affidavits asserting encroachment based on a survey superimposition plan. Whether those statements are false depends on determinations (boundaries, possession, title) that the DC must make at trial.

Issuing summons and deciding contempt now would pre-judge those determinations and risk inconsistent findings, producing delay and inefficiency.

Therefore, while the Court could act under Art. 105(3), it should not in these facts; the DC is the proper forum to consider any contempt under Judicature Act s.55(1) and CPC s.183B, after or alongside its merits determination.

Disposition

Summons not issued; application dismissed.

Observation: The DC, as the court seised of the merits and underlying facts, is the best forum to address any contempt in the course of its proceedings.

Significance / Practice Notes

Strategic forum choice: Parties alleging contempt by false affidavits in lower court proceedings should ordinarily move the trial court under s.55(1) Judicature Act and s.183B CPC.

Appellate restraint: The Court of Appeal will exercise restraint under Art. 105(3) where contempt adjudication would pre-empt factual issues in the pending action.

Affidavit discipline: Deponents must adhere to CPC s.181; willful deviation (unsupported beliefs, assertions beyond personal knowledge) may invite contempt in addition to potential perjury.

In facie vs ex facie: Both are punishable; but where the contempt is ex facie and entwined with trial facts, prefer the trial forum to avoid prejudice.

Efficiency & fairness: The ruling underscores that contempt jurisdiction is not merely about punitive power; it must be exercised to protect, not distort, the trial process.

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BEFORE : Menaka Wijesundera J ,  Neil Iddawala J -  [ COUNSEL : Neil Unambuwa PC for the Petitioner, Nihal Somasiri with Hashini Rathnayake for the Respondent - Decided on : 21.03.2023 - Iddawala - J

This is an application for contempt of court filed on 27.09.2021 against the respondent for allegedly, deliberately and maliciously stating false statements on his affidavit submitted for the original matter ongoing in the District Court of Kaduwela. In the instant matter, the Court by its order dated 18/07/2022 decided to have the benefit of the position of the respondent before taking a decision of issuing formal summons. And thereby directed the petitioner to issue notice including on all documents directly to the respondent. Respondent appeared before the Court on 06.12.2022 and made submissions. Respondent was then directed to file his position with regard to the issuance of summons by way of written submission. Written submissions were filed by the parties on 31.01.2023. Upon entertaining this application this Court is mandated to determine whether formal summons should be served on the respondent.

The facts of the original matter are briefly as follows. The plaintiff and one Slam Studio (Pvt) Ltd. have obtained a loan of 11,000,000 LKR from the 2nd defendant company via the 1st defendant bank to purchase a lot of land in Talangama. Upon defaulting to repay the loan with installments of 20,020,000 LKR in accordance with the loan agreement, the plaintiff and the other, being principal debtors, have agreed to handover the said land to the 1st and 2nd defendants claimed to be under constructive trust. However, plaintiff further claims that the 3rd defendant bank which has no involvement in the above incident allegedly attempts to encroach the said land obstructing the peaceful possession and enjoyment of the property by the plaintiffs. In the original matter the plaintiff has prayed inter alia for a declaration of title.

In the matter of contempt of court at hand, the petitioner alleges that the respondent in this application who is the assistant manager of the 3rd defendant company (Sri Lanka Savings Bank Limited) has submitted affidavits dated 22.02.2021 and 20.05.2021 for the proceedings of the aforementioned case at Kaduwela DC bearing No. 878/L/2020 with numerous false statements, deliberately and maliciously, attempting to evade the truth, mislead the Court and subvert the course of justice. The petitioner has stated in his petition that he is an individual of good repute; a prominent legal practitioner of 45 years, a President's Counsel and a senior member of the bar. He was elected as the secretary of the Bar Association from 1991-1993 thereafter as its president in 2013. He has further appeared for several well-known cases and has acted as the Chairman of Board of Investment from 2015-2017. There is no dispute on Those facts.

The respondent has submitted that the 3rd defendant bank to which he is the assistant manager, has obtained the superimposition plan bearing No. 015101 (marked as R1 along with respondent's submissions) by a licensed surveyor and claims that it depicts an encroachment and an unlawful occupation by the petitioner and one Chula Jayasuriya the spouse of the petitioner. It is further claimed that the above-mentioned individuals had mortgaged portions of land which said Chula Jayasuriya claims in her affidavit to belong to the plaintiff company however as per the superimposition plan deem to be an encroachment.

To determine the matter at hand this Court would like to first resort to Section 181 of the Civil Procedure Code which states that "Affidavits shall be confined to the statements of such facts as the declarant is able of his knowledge and observation to testify to, except on interlocutory applications in which statements of his belief may be admitted, provided that reasonable grounds for such belief be set forth in the affidavit." Under Section 183 B it states that "where any person willfully makes any false statement by affidavit or otherwise, in the course of any of the proceedings aforesaid he may be punished as for a Contempt of Court, besides his liability to be tried and punished under the Penal Code for the offence of giving false evidence, where such statement is on oath or affirmation."

Indubitably the superior courts are conferred overarching powers on contempt of court under Article 105 (3) of the Constitution. It states "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: Provided that the preceding provisions of this Article shall not prejudice or affect the rights now or hereafter vested by any law in such other court, tribunal or institution to punish for contempt of itself." (Emphasis added) Thus, the Court of Appeal is clearly conferred the jurisdiction to entertain contempt of court committed at any other court. However, in a matter as the one at hand, where determining the contempt of court largely depends on findings, perusal and examinations at lower Court trial, it is plausibly more appropriate for such a forum to determine on the contempt of court matter as well.

This position was comprehensively analysed in the case of Meththanda vs Kushan Fernando (2006) 1 Sri LR 290 , where the Court of Appeal resorted to Section 55 (1) of the Judicature Act, proviso of section 105 (3) read with 183B of Civil Procedure Code and stated that the inherent jurisdiction on contempt of court of superior courts shall not prejudice the specific jurisdiction conferred to lower courts by above mentioned provisions when dealing with contempt of court by falsified affidavits. Section 55 (1) of the Judicature Act has endowed jurisdiction on contempt of Court to lower courts where it states that "every District Court, Small Claims Court and Magistrates' Court shall, for the purpose of maintaining its proper authority and efficiency, have a special jurisdiction to take cognizance of, and to punish with the penalties in that behalf as hereinafter provided, every offence of contempt of court committed in the presence of the court itself and all offences which are committed in the course of any act or proceeding in the said courts respectively, and which are declared by any law for the time being in force to be punishable as contempt of court (Emphasis added). Therefore, to maintain proper authority and efficiency any contempt of court committed at lower court proceedings shall be entertained by such court.

Given that Article 105 (3) of the Constitution has specifically given jurisdiction to the Court of Appeal to deal with matters of contempt of court committed at other courts and tribunals, this Court would like to reiterate that it is clearly endowed with jurisdiction to entertain this matter whether it is committed 'in facie curiae' (within the well of the Court) or 'ex-facie curiae' (those committed outside the Court). However, if this Court is to serve summons and determine that there is contempt of court it would indicate that the respondent has lied in evidence and if decided otherwise it would indicate vice versa. This determination would clearly prejudice the proceedings at the trial court. And given that the trial court is inherently bound to determine boundaries and extent of land lots, this Court entertaining this application which is inter alia based on determining such boundaries, would result in inefficiency and delayed justice. This ascertainment on prejudice of rights, proper authority and efficiency is one of a case-by-case basis. Therefore, this Court believes that the best forum to entertain this matter is the trial court. Thereby, this Court refuses to issue summons to the respondent.

Application dismissed.

JUDGE OF THE COURT OF APPEAL

Menaka Wijesundera-J.

I agree.

JUDGE OF THE COURT OF APPEAL