Superior Courts avoided in Contempt case objections | Daily News

Superior Courts avoided in Contempt case objections

Supreme Court complex
Supreme Court complex

In this case of Contempt of Court, an affidavit had been filed without the signatories of the affidavit being told that it’s an affidavit to be filed in Court. Filing such a false affidavit is in Contempt of Court and the plaintiff in the District Court case filed for Contempt of Court in the Court of Appeal ((Metthananda v. Kushan Fernando - SLR - 290, Vol 1 of 2006 [2005] LKCA 74; (2006) 1 Sri LR 290 (July 25, 2005)), for action to be taken against two defendant-respondents, for filing a false affidavit in a District Court matter, in a blatant act of Contempt.

However, the Counsel for defendant-respondents took a preliminary objection to the effect that the contempt case should have been filed in the District Court.

The Court of Appeal records the circumstances in which the application had been made before it:

“This is an application filed by the Plaintiff-Petitioner (hereinafter referred to as the Petitioner) seeking that the 1st and 5th Defendant-Respondents (hereinafter referred to as the Respondents) be dealt with appropriately for Contempt of Court committed by them. On counsel for the Plaintiff-Petitioner making oral submissions to Court on 19.12.2003, counsel for the 1st and 5th Defendant-Respondents took up a preliminary objection on 30.01.2004.

The facts of the case are briefly as follows. The Plaintiff-Petitioner alleges that the 1st Defendant-Respondent and the 5th Defendant-Respondent obtained signatures for the affidavit marked XI from K. D. M. M. Bandara, Arachchige Don Wijeratne and Latha Gamage without explaining or disclosing that the aforesaid document marked XI is an affidavit which is to be tendered to Court. Furthermore, it is alleged by the Plaintiff-Petitioner that when the aforesaid signatures were obtained a Justice of the Peace was not present.”

The basic objection of the respondents was that when specific acts of contempt were committed before a Tribunal or a Court, the contempt charges should be filed in that Tribunal or Court and not in any other Superior Court with regard to those specific acts. The procedure is laid down in the Civil Procedure Code and the Judicature Act, it was contended.

Constitutional provisions empowered the Supreme Court to punish for Contempt of Court, however, whether such an act has been committed before or outside of any other Court.

There is no doubt that the Supreme Court has the right to punish for Contempt of Court whenever there has been an act of contempt committed within or outside the premises of any Court or Tribunal.

This, the petitioner’s Counsel held, was a provision in the Common law and since we follow the English law in matters of criminal Contempt of Court, this common law provision, it was contended, would apply.

The judgement of the Court of Appeal states:

“The Respondents referred to a judgement of His Lordship Chief Justice G. P. S. De Silva in A. M. E. Fernando vs. Attorney General ( (2003) 2 Sri LR at 53) where His Lordship held that “Article 105(3) of the Constitution vests the Supreme Court, which is a Superior Court of record, in addition to the powers of such Court, the power to punish for contempt itself whether committed in the Court itself or elsewhere, with imprisonment or fine or both as the Court may deem fit.

This provision it was pointed out by the Petitioner is based on the common law, which draws a distinction in which is described as criminal contempt between those acts committed in the face of the Court “in faciae curiae” and those committed outside Court “ex facie curiae”.”

In this regard, several articles written by English jurists were cited as it was a Common law provision that criminal acts of contempt can be punished with necessary action by the Supreme Court. In facie curiae is the legal term used for acts of Contempt committed within Courts or Tribunals against such Courts or Tribunals.

With reference to Sri Lankan law however, will these provisions of the Common law apply in certain specific circumstances? The pertinent point in this regard is that the Constitution of this country — in Article 105 (3) — specifically empowers the Supreme Court and the Court of Appeal to punish for Contempt in any court or Tribunal, whether contempt was committed within the premises of such Court or Tribunal, or otherwise.

In which case, the defendant-respondent’s preliminary objections should have been overruled, but then it transpired that matters are not exactly that straightforward, and perhaps legal scholars should focus their attention on why that is so.

Cited cases made it further apparent that the Supreme Court or the Court of Appeal does have the right to punish for Contempt of Court.

Case law was cited in this regard, that the Supreme Court had the power to punish for contempt when for instance an injunction granted by the District Court had been disobeyed.

Article 105 (3) of the Constitution reads as follows:

“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 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 Court, Tribunal or Institution referred to in paragraph 1(c) of this Article, whether committed in the presence of such Court or otherwise. Provided that the preceding provisions of this Article shall not prejudice or affect the rights now or hereinafter vested by any law in such other Court, Tribunal or Institution to punish for Contempt of Court.”

The fact is that the Civil Procedure code in its provisions on contempt specifically states that in cases of contempt of the nature of making false statements before Court, the Tribunal or Court could punish the offenders, or words to that effect. The specific provisions were alluded to in the Appeal Court judgement under review, in these words: “Section 183(8) of the Civil Procedure Code specifically 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.”

With this regard the case of Mansoor and another vs. OIC Avissawella Police and another ({1991} 2 Sri LR 75) was cited in the judgement as relevant. In this case it was held that where a statute creates a specific right and gives a specific remedy or appoints a specific Tribunal for its enforcement, a party seeking to enforce must resort to that Tribunal. The judgement seemed to have turned on such case law.

“For the aforesaid reasons the Petitioner's application is dismissed”, the judgement concluded, and the Petitioner was directed to institute the action in the District Court, where the alleged complaint is said to have been committed. The Preliminary objection was upheld.

 


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