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1.The petitioners have
misrepresented material facts and/or have not acted with uberrima fidei;
2.The petitioners have no
locus standi to have and maintain this application;
3. The petitioners’
application is time barred; and
4. The petitioners’
application on the face of it does not convey how the petitioners’
are entitled to executive or
administrative relief.
Referring to the petitioners’
objection on disclosure, learned counsel for the respondents submitted that the petitioners should have filed of record the
Retailer Agreement, which the 1st petitioner has entered into
with the Shell Gas Lanka Ltd. The respondents submitted that if the
petitioners had failed to disclose this document, it amounts to
misrepresentation of relevant facts or non-disclosure of material facts.
Learned counsel for
the petitioners’ were of the view that the objection raised by the
respondents, pertaining to the non-disclosure of the aforementioned
document, is untenable. He
has drawn our attention to the document marked P 23(g), which was filed
along with the petition and affidavit. P23 (g) is the case record of the
High Court (Commercial) Colombo, No. HC (Civil) 01/2002 (3).
Learned counsel for the petitioners’ has also taken up the
position that the concept of non-disclosure of material facts has no
application with regard to the infringement of fundamental rights under
and in terms of Article 126 of the Constitution.
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 the merits of the relevant
application, but will dismiss it in limine. In The Bambarakelle
Estates Tea Company Vs. G.W.Goonewardene
and Another, (Browne’s Reports, Vo.II, pg.78) a case decided as far
back in 1900, Bonser, C.J., thought it as a waste of time to refer to
authorities as it is a well established practice that misrepresentation of
material facts invariably would dissolve an injunction on that ground
alone, without going into merits of the case. In Bonser, C.J.’s words,
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“The Court of Chancery in England always
required
the strictest good faith on the part of persons applying
for injunctions; and whenever it found that the plaintiff
had mess-stated his case, either by
misrepresentation
or by the suppression
of material facts, it invariably
dissolved
the injunction on that ground alone and
refused to go into the merits. The practice is so well
established, that it would be waste of time to refer to
authorities”(supra, pg.81).
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In Alphonso Appuhamy Vs. Hettiarachchie
( (1973) 77 N.L.R. 131) Pathirana, J., discussing several English
cases, 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 fidei. This concept has been accepted and followed,
as mentioned earlier, by several cases in our Courts. ( Moosajees
Limited Vs. Eksath
Engineru Saba Samanya Kamkaru Samithiya (
(1976) 79(1) N.L.R.285
), Hotel Galaxy (Pvt.) Ltd., Vs.
Mercantile Hotels Management
( (1987) 1 Sri L.R.
5), Kiriwanthe Vs. Navaratne
( (1990)
1 Sri L.R. 1), Navaratnasingham Vs. Arumugam ([1980] 2 Sri L.R.1).
The submission of the learned
counsel for the petitioners on the preliminary objections taken, were two
fold. If I may reiterate, firstly he submitted that although it is a well
settled principle that when a party invokes the writ jurisdiction, all
facts must be clearly placed before the Court, the doctrine of complete
disclosure has no application in situations where the applications before
the Supreme Court does not require nor invoke the discretionary powers
vested in this Court. In other words, his position is that, the doctrine
of complete disclosure has no application in petitions filed in terms of
Article 126 of the Constitution. Secondly, he took up the position that in
any event, they produced the document referred to by the respondents, as
that has been concealed by the petitioners, was produced by them along
with the petition and affidavit to this Court and therefore there is no
such concealment as claimed by the respondents.
Admittedly, all the decisions, which had dealt with the doctrine of uberrima
fidei and/or complete disclosure has been on applications for
prerogative writs or injunctions. Learned counsel for the petitioners’
thus has cited several cases that deals with such applications.
Fundamental rights, which are
enumerated in Chapter III of the 1978 Constitution of the Democratic
Socialist Republic of Sri Lanka, are for the
purpose of ensuing that certain principles will
not be sacrificed by state action. The concept of fundamental rights is to
protect the individual from any kind of injustice by the executive. In
order to enforce such rights, provision is made for, to have direct access
to the apex Court in the country; the Supreme Court. Discussing the role
of the Supreme Court, in this sphere of work, former Chief Justice
Sharvananda, in his book on Fundamental Rights in Sri Lanka (pg.2) states
that,
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“ The Court performs a very onerous
task
in this area. The Court, scrutinizes
governmental action in order to protect
the people’s fundamental rights from any
unjustifiable encroachment by the Executive.
In exercising this power of judicial review, the
Supreme
Court discharges a crucial function.”
Applications on
fundamental rights, made in terms of Articles 17 and 126 of the
Constitution, are solely dealt with on documents filed of Record. The
Rules of the Supreme Court requires that a petitioner to set out in his
petition, a plain and concise statement of the facts and circumstances
relating to his right and infringement or imminent infringement thereof,
including particulars of the executive or administrative action whereby
such right has been or is about to be infringed. The petitioner must also
tender in support of such petition the affidavit and documents, which are
available to him. Every application by way of a petition in writing under
and in terms of Article 126(2) of the Constitution would be considered by
a bench of not less than two judges, and after granting such hearing, the
Court shall make order granting or refusing leave to proceed. Upon leave
to proceed being granted, the petitioner shall tender notices as is
required for service on the respondents together with copies of his
petition, affidavit and annexures. It is thus, a mandatory requirement for
a petitioner to make a full and candid disclosure of all material facts in
an application. The underlying objective of the desire and necessity for
such disclosure is an obvious fact. The relief obtained by virtue of a
fundamental rights application is an extra-ordinary remedy which is
enunciated by Constitutional provisions. The procedure, as pointed out
earlier, describes clearly that the Court is solely dependent on the
material placed before it. The Court would place heavy reliance on the
material brought before Court and if it is found that the Court has been
deceived, either by not placing before it the relevant material or that
the material placed before the Court is fraudulent, it has every right to
refuse to anything any further.
In R
Vs. Kensington Income Tax Commissioners
( [1917] 1 K.B. 257, at pp.266-267) Scrutton, L.J. described the
underlying objective in the need to have complete disclosure, in the
following words:
“ . . . it has been for many years the rule
of the Court,
and one which it is of the
greatest importance to
maintain, that
when an applicant comes to the Court to
obtain
relief on an ex parte statement he
should make
a full and fair disclosure of
all the material facts- it says
facts, not law. He must not misstate the law if he can
help it; the Court is supposed to know the law. It
knows
nothing about the facts, and the applicant
must state fully
and fairly the facts; and the
penalty by which the Court
enforces that obligation
is that if it finds out that the facts
have not been fully and fairly stated to it the Court will set
aside any action which it has taken on the faith of the
imperfect statement.”
Although Scrutton, L.J.’s description is with
reference to an application for a writ of prohibition, I am of the view
that the characterization is correspondingly applicable to the petitions
on fundamental rights in terms of Article 126 of the Constitution.
Prerogative writs, which could be introduced as extra-ordinary remedies,
have been given the following meaning in the Oxford English Dictionary (2nd
edition, Vol. XX, pg 637):
“A written command, precept, or formal order
issued by a Court in the name of the sovereign,
State, or other competent legal authority,
directing or enjoining the person or persons
to
whom it is addressed to do or refrain from
doing some act specified therein.”
Whilst a writ is issued in the name of the sovereign, fundamental rights
are guarantees against state action and both belong to the category of
PUBLIC law remedies. Considering the totality of circumstances described
above, I am unable to comprehend with the submission of the learned
counsel for the petitioners that the doctrine of complete disclosure is
not applicable to fundamental rights.
The petitioners have prayed in their petition to quash the decision of the
1st respondent to sell LPG to the 3rd respondent
without any restrictions attached to the resale thereof and/or to declare
that the said decision is void, illegal and of no effect.
The
respondents’ position is that the petitioners have entered into a
Retailer Agreement and in terms of Clause 4.5 of the said Agreement, that
the 1st petitioner is prohibited and precluded from purchasing
LPG from any organization other than Shell Gas Lanka Ltd. Clause 4.5 of
the said Agreement reads as follows:
“During the contract period all gas required by
the Retailer for sale at the premises shall be
purchased exclusively from the company and
the Retailer or its affiliates shall not purchase,
procure, obtain, sell or distribute gas or products
similar to the subject matter hereof or contemplated
herein other than from the Company or as permitted
by the Company at the premises.”
Admittedly, the petitioners, along with their petition and affidavit, have
not filed the Retailer Agreement, referred to above. However, the position
taken up by the petitioners is that the document marked P 23g, is filed of
Record, along with the petition and affidavit. P 23g is the full case
Record of the Commercial High Court case filed by the 1st
petitioner against the 1st and 2nd respondents. The
Agreement, marked as ‘C’, is a Retailer Agreement entered into between
Shell Gas Lanka Ltd., and one Thon Lanka (Pvt.) Ltd., which is not a party
to the instant case. The petitioners further relied on the paragraph 22 b
of the petition, dated 11.02.2002, filed in this Court, which reads as
follows:
“. . . the petitioners state that whilst the petitioners
purchased
auto gas at a sum of Rs.41/- per kilogram
(including the Government imposed goods and
Services Tax at 12.5%) as they had opted to become
a part of the Shell Gas retailer network, the 2nd
respondent purchased auto gas from Shell
at a rate of Rs.45/- per kilogram
(including the
Government imposed Goods and Services Tax at
12.5%) as they refused to become a
part of the
retailer network.”
The petitioners accordingly took up the position that they have
unequivocally represented to Court that they were a part of the Shell Gas
Retailer net work.
A
careful perusal of the documents annexed to the petition, dated
11.02.2002, discloses that the petitioners did not produce the relevant
Retailer Agreement to this Court. In such circumstances we are unable to
uphold the position taken up by the petitioners in this application.
In R Vs.
Kensington Income Tax Commissioners
(supra at pg.261), Lord Cozens-Hardy, M.R., referring to Dalglish
Vs.Jarvie ( [1850] 20 L.J. Ch.475) stated that,
“ It is the duty of a party asking for an
injunction to bring under the notice of
the Court all facts material to the
determination of his right to that injunction;
and it is no excuse for him to say that he was
not aware of the importance of any facts which
he has omitted to bring forward.”
A petitioner invoking the fundamental rights jurisdiction
must make a complete disclosure of all material facts and refrain from
deliberately concealing material facts from the Court. If a petitioner has
not made the fullest possible disclosure, such person cannot obtain any
relief in terms of Article 126 of the Constitution. As
Warrington
, L.J. remarked in R
Vs.Kensington Income Tax Commissioners (supra), this is
‘perfectly plain and requires no authority to justify it.’
For
the aforementioned reasons I uphold the preliminary objection taken by the
1st to 3rd respondents on the ground that the
petitioners have misrepresented material facts and/or have not acted with
uberrima fidei and dismiss
the petitioners’ application in limine. In view of the foregoing
findings it would not be necessary to consider the other grounds of
objections, taken by the respondents, referred to earlier.
In
all the circumstances of this case there will be no costs.
JUDGE
OF THE SUPREME COURT
A.
ISMAIL, J.
I agree
JUDGE OF THE SUPREME COURT
J.A.N.
DE SILVA, J.
I agree
JUDGE
OF THE SUPREME COURT
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