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b41cf475-3c4f-478d-b293-17def8c052e7
Liquidation)(Unreported' M'37187, Napier Registry,21 December 19BB), Greig J dealing with similarprovisions in the New Zealand Companies Act, said \"It sti// remains the position under the Act that the starting point of the procedure s the factthat the disposition is voidab/e under s
sc_appeal_179_2018.txt
9c21014b-3740-4275-ab8c-c3c47e1c22c8
. 309 or s. 3ll of the Act. rn the words of the Act, it isthe wish of the /iquidator to set aside which motiuates the procedure but that depends uponthe fact that the disposition s in truth voidab/e under the sections
sc_appeal_179_2018.txt
3a4cacc9-8ab1-4a75-8a3f-f79db5cca9c8
. That is a maffer which theliquidator has to prove and so he must carry both the initia/ and the u/timate onus, theevidential and the substantive onus to show that this is a voidab/e transaction. It is the/iquidator that makes the claim that it is voidab/e even though that s by notice which, if thereis no opposition, wi// be sutffcient in itse/f
sc_appeal_179_2018.txt
67e6f559-a62f-4bd9-961b-7fe3409c3226
. But where there s opposition it must bg and itought to be for the liquidator to adduce some evidence to justifii that
sc_appeal_179_2018.txt
19f1959e-cfc0-4c20-90c0-354b242eecf9
.,, Furthermore, in the case of Hastie (referred to above), Greig J went on to say; \" It seems to me that in practice it is beffer for the /iquidator, who is the representative of thecompany and its affairg to produce the evidence, not on/y of the date of the /iquidation andthe date of the disposition, but a/so such other materia/ from the records of the companyrt'thich supports the /iquidator's
sc_appeal_179_2018.txt
20a1f3a8-3524-4089-a8f3-4ddda7cf921d
c/aim that this is a voidab/e disposition
sc_appeal_179_2018.txt
64488e9a-1b11-4b94-96e7-b1f797ca6ee6
. Then it is for thecreditor or d/sponee to furnish any defensive averment or to produce evidence in support ofany posltive c/aim by way of re/ief or excuse of the avoidance of the disposition.,,[!e ,Appeal L7gl201S] - page trS of l
sc_appeal_179_2018.txt
5131e14d-b23c-4a79-9d04-51f0dc11c48f
.E eonsiderinE the above, it is nry view that, where the Far|y-frloticed-Appellant has applied tocsurt under seetion 370(2) within the speeified tinre period (as is the case i-rere) the burdenof proof does nst shift to ihe Faffiy-tdoticed-Appellant to defend their position ul-rtii thei-iquidator tras dlseharged their obligation to establish the requirenrents under sections 357 [and 369J descnibed
sc_appeal_179_2018.txt
54063297-a51c-4c7e-bf25-27b76666494e
above' It is oniy in the event ihe l-iquidator is able to disehange g
sc_appeal_179_2018.txt
f6367440-b5a3-4aa4-a586-bb6ac8ea1374
.leir obllgations with respect ts their burden *f proof reguired under seetions 3G7 [and 36g] thatthe Paffy-Noticed=Appei|ant will be ealled upon to defend their position
sc_appeal_179_2018.txt
7496537c-877d-4898-86b6-aae94fb35b6e
. It is elear that the burden cf proof does not shift from the Liquidatcr te the Farty-Notieed- Appellant irrespeetive of the action (or inaction) of the party-fi{otieed-Appellant under section 370{2}\" This position is suppo*ed by the cornmentary by K\" Kanag-trwaran and Di{sha*i wijayawandana, eornpeny Law {aalq at PaEe 6g0 whieh reads as follows; \"{t is important to note tt'tat section 370
sc_appeal_179_2018.txt
b011c4bd-013f-4bd3-ac03-15ed3d77a92a
does not operate ts sltift the onas of proof fot- establishing that a transaction coffies within sectbn 362 or s6g or that a eharge coffies wthin section 368\" Tfte onas rernarns witlt the liquidator
sc_appeal_179_2018.txt
36941e65-13fd-401e-9cd6-2ae95426bcd4
. The secttbn is only a conuenient way of disposing of the need for coaft proceedings where there is no contest However, tf the position tb contested the liguidator still bears the onus of Broof.,, It is a known fact that our eornpanies Act af 2Qa7 is primarily based on the fiiew Zealand fot'l1panies Act of i9931[K
sc_appeal_179_2018.txt
3058a12b-6593-4584-a0f6-2b3a5db7d6bb
. Kanag-Iwaran and Dilshani wgayawardana, cornpany Law {2814J,at p' viiJ' This position has been relied upon by
sc_appeal_179_2018.txt
96d85dac-5e68-45fa-b11e-5fd31cd9a71b
.lustice Buwaneka Aluwihare, Ff in the caseof Jaqa l-anka International (Pvt) Ltd vs Bank of ceylon (5e\" AppEAl- 50/Al2n13) decided on 3U1CI12023\" Accordingly, it is permissible to rnake reference to deeisions of the Flew Zealand courts inrespect to matters arising in these proceedings, in the absence of decided cases om the suhjectmatter curently in sri Lanka\" Accordingly, I rely atso on the
sc_appeal_179_2018.txt
8c2bb34f-b015-47dd-9ca3-158c285cac4b
decisions of the lsew Zealandeourts referred to above in support of my view
sc_appeal_179_2018.txt
c350bd0f-97bb-4e1b-afd8-8aa41941bdd2
. For the above reasons, where the Party-l\oticed-Appellant had eppiied to fcurt under section370t2) wlthin tl\"re speeified tirne period (as is the case hereJ, I am of the view thrat theLiquldator shouxd begin the Inquiry and establish its claim under section 367 before the Farry- fldoticed-Appeflant is cailed upon to defend their position\" Therefore, I answer the questions of law Nos
sc_appeal_179_2018.txt
f165cbc7-534f-4570-b542-e7476991d8c2
. l^ and z on which leave ts appeal was granted in the affirmative.For these reasons, the Appeal of Commerciaf High Court is set aside.ISC Appeal 779lZOLB)- page 16 of'16 the Pafty-Noticed-Appellant is allowed. The order of the No order for costs. ]UDGE OF THE SUPREME COURT Having considered both the views presented by my Brothers, I am more inclined to agree with the findings of Hon. lustice A.L
sc_appeal_179_2018.txt
f44b430f-e731-4cf2-b27a-48958533c7f4
. Shiran Gooneratne. KUMUDINI WTCKREMASINGHE, l ]UDGE OF THE SUPRE}4E COURT
sc_appeal_179_2018.txt
755345ab-de6a-4cbd-89c2-d8a3269f4975
Page 1 of 16 IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of a Revision Application in terms of Article 138 of the Constitution read with section, 364 and 365 of the Code of Criminal Procedure Act No. 15 of 1979. CA Revision Application : The Director General, CPA/ 0136/22 Commission to Investigate Allegation of Bribery or Corruption , No
cpa_0136_22_final_judgement_pdf.txt
533ff866-3d71-432b-aea4-b89805819235
. 36, Malalasekara M awatha , Colombo 07. High Court of Colombo COMPLAINANT Case No. HCB/1988/2013 Vs. Ranaweera Wanasinghe W anninayake Herath Mudiyanselage Gamini Wanasinghe No. 349, Divulges Kotuwa, Galewela. ACCUSED AND NOW BETWEEN Page 2 of 16 The Director General, Commission to Investigate Allegation of Bribery or Corruption , No. 36, Malalasekara M awatha , Colombo 07
cpa_0136_22_final_judgement_pdf.txt
8febb9ad-717c-4c37-9ff2-fc4b1cb3051a
. COMPLAINANT -PETITIONER Vs. Ranaweera Wanasinghe Wanninayake Herath Mudiyanselage Gamini Wanasinghe No. 349, Divulges Kotuwa, Galewela. ACCUSED -RESPONDENT Before : Sampath B. Abayakoon, J. : P. Kumararatnam, J. Counsel : Anuradh a Siriwardhena, A .D.G
cpa_0136_22_final_judgement_pdf.txt
e353a187-73da-4d57-bcc5-8d2f34c2a0c0
. for the petitioner : Asanka Mendis with Sandeepani Wijesooriya for the respondent Argued on : 01-11-2023 Decided on : 08-02-2024 Page 3 of 16 Sampath B. Abayakoon, J
cpa_0136_22_final_judgement_pdf.txt
058ce48c-4f21-42c6-8c1c-870a8e0d4d85
. This is an application by the complainant -petitioner (hereinafter referred to as the petitioner), namely, the Director General of the Commission to Investigate Allegations of Bribery or Corruption, invoking the revisionary jurisdiction of this Court granted in terms of Article 138 of the Constitution
cpa_0136_22_final_judgement_pdf.txt
f2cb0097-8da5-4684-9c36-f48fa973c485
. The petitioner is seekin g to set aside the order dated 12 -09-2022, of the learned High Court Judge of Colombo, marked P -04 and P -05 along with the petition, wherein, the action institu ted by the petitioner before the High Court of Colombo was dismissed
cpa_0136_22_final_judgement_pdf.txt
f53e1989-d0ec-4d9b-bb86-d441bbaf403e
. When this matter was supported for notice, this Court , after having considered the relevant facts and the circumstances issued notice to the accused - respondent named. Accordingly, the accused -respondent was allowed to file his objections in relation to the application and the peti tioner was also allowed to file counter objections in that regard
cpa_0136_22_final_judgement_pdf.txt
38a3812b-befe-42bb-9d2d-25acb5042673
. At the hearing of the application this Court listened to the submissions of the learned Additional Director General of the Commission to Investigate Allegations of Bribery or Corruption (hereinafter sometimes referred to as the Commission) in support of the application , and to the submissions of the learned Counsel who represented the accused -respondent , in order to determine the application
cpa_0136_22_final_judgement_pdf.txt
b5f9d031-8fb0-4ec6-8cbd-8d0358b73e41
before the Court
cpa_0136_22_final_judgement_pdf.txt
a5018e8e-c4dd-4ffc-9fa0-7c5ecf75ec24
. This is a matter where the accused -respondent (hereinafter referred to as the accused ) was indicted before the High Court of Colombo for committing two counts of bribery, punish able in terms of section 19(b) and 19(c) of the Bribery Act, by accepting Rs. 12500/ - as a gratification for doing an official act he was duty bound to perform
cpa_0136_22_final_judgement_pdf.txt
cfa41ac0-7657-4abb-9e61-fae8dde3f688
. The offence had been allegedly comm itted on 4th July 2012 at Galewela. Page 4 of 16 The indictment had been served on the accused on 20 -02-2014, where the accused had pleaded not guilty
cpa_0136_22_final_judgement_pdf.txt
ad348e2f-e7df-4977-8bdf-c6f1cff48595
. The trial has taken plac e before several learned High Court Judges, and when the matter was mentioned before the learned High Court Judge who pronounced the impugned order , the evidence had been concluded and it was for final submissions by the respective parties
cpa_0136_22_final_judgement_pdf.txt
42c56200-fc61-4116-831c-3714da697e28
. It was the submission of the learned Counsel for the petitioner that when the case was mentioned for th e final submissions on 11 -10-2021 , the presiding Judge inquired from the prosecution whether it had the authorization of all three Commissioners of the Commission to i nitiate proceedings before the High Court against the accused , for which the reply was that one Commissioner has authorized
cpa_0136_22_final_judgement_pdf.txt
177bad49-11f3-414e-bb8b-a07befa614da
the institution of procee dings
cpa_0136_22_final_judgement_pdf.txt
e31c6604-db75-47da-ad68-342b261b08e1
. (See- Journal Entry at page 77 of the brief) . This has resulted in an order by the learned High Court Judge by giving a date for the prosecution to consider maintaining the action any furt her, or to make submissions
cpa_0136_22_final_judgement_pdf.txt
01e361ae-238d-4ec5-bcd7-65917d17ed8c
. When the matter was mentioned on 03 -11-2021, the prosecution has informed the Court that the matter is under consideration by the Commiss ion and the learned Counsel who represented the accused had informed the Court that he is objecting to any with drawing of the case , and if there is a ny such application he reserves his right to object to such an application
cpa_0136_22_final_judgement_pdf.txt
7c713e0f-ec13-46de-a75b-e80d14a8dfb6
. (See - Journal Entry at page 379 of the brief) The case has been mentioned again for the same purpose on 17 -12-2021
cpa_0136_22_final_judgement_pdf.txt
be2c4162-3b02-4a22-9c4a-170060ea6874
. The Journal Entry in that regard shows that the learned Counsel for the accused has informed the Court that he is agreeable for the continuation of the trial, while t he prosecution has informed that the advice of the Commission had been to continue with the tr ial to its conclusion
cpa_0136_22_final_judgement_pdf.txt
e2570754-6dfc-4bd0-93ae-09bcc65ba18b
. (See- Journal Entry at page 381 of the brief) Page 5 of 16 This has resulted in the learned High Court Judge making the following Journal Entry with reads thus; අධිකරණයෙන්: - යේ සේබන්ධයෙන් කරුණු විමසීයේදී නඩුයේ විමර්ෂණෙ සඳහා යමන්ම නඩු පැවරීම සඳහා ද යකාමිෂන් සභායේ සාමාජිකයින් තියදනා ම අත්සන් කර යනාමැති බව අධිකරණෙට දැනුේ යදයි
cpa_0136_22_final_judgement_pdf.txt
bfe8954a-a96e-4244-8435-470d528dd8f4
. යමම අධිකරණෙ ඉදිරියේ පවතින සමහර අල්ලස් නඩු වල පැමිණිල්ල විසින් නඩු පැවරීම සේබන්ධයෙන් යකාමිෂන් සභායේ සාමාජිකයින් තියදනා ම අත්සන් කර යනාමැති වීම මත නඩුව ඉල්ලා අස් කර ගනී. සමහර නඩු වල එයස් යනාකරයි
cpa_0136_22_final_judgement_pdf.txt
65256573-3570-4eab-9dda-cf8cd5ec28da
. යමෙ එකම කරුණු සේබන්දයෙන් ගන්නා විවිධ මතෙක් වන යහයින් නඩු පැවරීම සේබන්ධයෙන් සහ නඩුයේ විමර්ෂණෙ සඳහා යකාමිෂන් සභායේ සාමාජිකයින් තියදනායේ ම අනුමැති ෙ යනාමැති ව යම ම නඩුව ඉදිරිෙට පවත්වා යගන ො හැකිද නැද්ද ෙන්න අධිකරණයේ තහවුරු කිරීමට පැමිණිල්ලට අවස්ථාව යදමි. ඒ පිළිබඳ ව කරුණු දැක්වීම ලිඛිත ව සිදු කිරීමට අවසර පතයි
cpa_0136_22_final_judgement_pdf.txt
f8dbc65a-032f-4ec6-8895-ab2ce2d33144
. ” The learned High Court Judge of Colombo has pronounced his order on 12 -09- 2022, which is the order sought to be challenged by this application
cpa_0136_22_final_judgement_pdf.txt
c1c6aa99-8ac6-41df-b955-07e0e8d9c92c
. (The order marked P -04 along with the petition) It is clear from the order that although there was no preliminary objection as to the maintainability of the action before the Court by the accused , and in fact, the accused had specifically objected to any withdrawal of the action by the prosecution, th e impugned order has been pronounced on the basis that the accused raised a preliminary
cpa_0136_22_final_judgement_pdf.txt
bb9b62d7-9796-4042-9c48-859590cd1fb2
objection as to the jurisdiction
cpa_0136_22_final_judgement_pdf.txt
567e7992-f802-4b2d-a20b-fcd9643baaea
. I find this as a clear misdirection as to the facts by the learned High Court Judge, which needs to be highlighted . The learned High Court Judge, being guided by the judgment in the case of Anoma S . Polwatte Vs
cpa_0136_22_final_judgement_pdf.txt
b06d476d-0776-4974-9215-d2ca3a836377
. The Commission to Investigate Allegations of Bribery and Corruption SC/Writ Application No 01/2011, decided on 26 - 07-2018 has determined that the failure to get the sanction of all three Commissioners prior to filing action before the High Court amounts to a patent lack of jurisdiction and therefore ab initio v oid, hence, the action canno t be maintained
cpa_0136_22_final_judgement_pdf.txt
d95e132e-b1be-49a8-bfb0-6c3331f3bbb1
. Page 6 of 16 For matters of clarity, I will now reproduce the relevant final determination by the learned High Court Judge, which appears at page 22 of the said order marked P -04. “ඉහත කරුණු අනුව යමම නඩුව මහාධිකරණෙ ඉදිරියේ පැවරීම සඳහා යමන්ම විමර්ශනෙ සඳහාද, යකාමිෂන් සභාව විසින් නීතයානුකුලව විධානෙක් ලබා දී නැත. එෙ නඩුයේ මූලෙටම බලපාන්නාවූ යදෝෂෙකි
cpa_0136_22_final_judgement_pdf.txt
cf4e352c-fc84-4efb-85eb-a99b2a9218b3
. (patent lack of jurisdiction ) ඒ අනුව නඩු පැවරීම මුල සිටම යදෝෂ සහගතෙ . (ab initio void) ඒ අනුවම පැමිණිල්ලට යමම නඩුව චුදිතට එයරහිව පවරා පවත්වායගනො යනාහැකිෙ
cpa_0136_22_final_judgement_pdf.txt
790ce025-76ea-40ae-b2d5-f28b8977577d
.” After p ronouncing the above order and , accordingly , discharging the accused from the indictment against him , on 20 -09-2022, the learned High Court Judge on his own motion has made a direction to notice the parties to appear before the Court on 22 -09-2022 in order to make a correction to the order pronounced on 12 -09-2022
cpa_0136_22_final_judgement_pdf.txt
0896273c-fe02-456b-b9ca-d4a2502869f8
. When the matter was mentioned on the day, the learned High Court Judge has made the following Journal Entry in the case record. “යමම නඩුයේ මූලික වියරෝධතාවෙ හා සේබන්ධ නියෙෝගෙ 2022.09.12 වන දින ප්‍රකාශෙට පත් කරන ලද අතර ඒ අනුව නඩුයේ 01, 02 ය ාදනාවන් යගන් චුදිත නිදහස් කර ඇත. 2022.09
cpa_0136_22_final_judgement_pdf.txt
99dcf7ef-e69a-46d7-a14f-82cbf623baf5
.12 දින අත්සන් කර නඩු වාර්තාවට යගානු කර ඇති නියෙෝගෙ මුද්‍රණෙ කිරීයේදී අතපසුවීමකින් නිවැරදි නියෙෝගෙ යවනුවට සංස්කරණෙ යනාකළ නියෙෝගයේ පිටපතක් මුද්‍රණෙ වී ඇත. ඒ අනුව 2022.09.12 දින නියෙෝගයේ ස්ථාන කිහිපෙක් සංස්කරණෙ විෙ යුතුෙ. එකී සංස්කරණෙන් මගින් නියෙෝගයේ හරෙට යහෝ නියෙෝගෙට හානිෙක් යනාවන යහයින් යමම සතිෙ තුල සංස්කරණෙ කරන ලද නියෙෝගෙක්ද නඩු වාර්තාවට යගානු කිරීමට කටයුතු කරමි. ඒ අනුව 2022.09
cpa_0136_22_final_judgement_pdf.txt
28463362-1688-41d4-ab8d-d1d212dd2a7f
.12 දින නියෙෝගයේ සංස්කරණෙ යනාකළ යලස සටහන් කිරීමටද යේ සතිෙ තුල සංස්කරණෙ කර යගානු කරන නියෙෝගෙ සංස්කරණෙ කල යලස සටහන් කිරීමටද පිෙවර ගනිමි. එහි දිනෙ 2022.09.12 ම සඳහන් කර එමගින් පාර්ශවකරුවන්ට හානිෙක් යනා වන බව යමම අධිකරණයේ ස්ථාවරෙයි . සංස්කරණෙ කල නියෙෝගයේ පිටපතක් ගාස්තු රහිත ව පැමිණිල්ල ට ද ගාස්තු සහිත ව චුදිත යවත ද නිකුත් කිරීමට අවසර යදමි
cpa_0136_22_final_judgement_pdf.txt
f487e6fe-73a8-4a3d-a6cf-74f4e5a2955b
. (චුදිත යමයතක් නියෙෝගයේ පිටපතක් ලබා යනායගන ඇති යේතුව මත එයස් ගාස්තුව ට ෙටත් ව නිකුත් කිරීමට නිෙම කරන ලදී.) යමම කාරණාව මගින් පාර්ශවකරුවන්ට සිදු වූ අපහසුතාවෙ පිළිබඳව අධිකරණෙ කණගාටු ව ප්‍රකාශ කරයි. Page 7 of 16 අද දින නීති කෘතය සටහන්වල පිටපත් ඉල්ලා සිටි. අද දින නීති කෘතය සටහන්වල පිටපත් පැමිණිල්ලට ගාස්තු රහිතවද චුදිතට ගාස්තුවට ෙටත්වද කිකුත් කරනු
cpa_0136_22_final_judgement_pdf.txt
059e12d6-c393-4b88-957e-9ca332e71a48
.” The learned High Court Judge has then filed of record , the order what he termed as the edited ord er ( සංස්කරණය කල) dated as 12 -09-2022. This is the order the petitioner has produced marked P -05 along with the petition
cpa_0136_22_final_judgement_pdf.txt
01caa0da-ff9e-47ed-8123-e3b0f7c490fa
. It was the submission of the learned Counsel for the Commission that the procedure adopted by the learned High Court Judge on 22 -09-2022 to pronounce another order on the basis that it is an edited version of the order pronounced on 12 -09-2022 was in total violation of section 283(4) of the Code of Criminal Procedure Act , and shall have no legal effect
cpa_0136_22_final_judgement_pdf.txt
6882319e-87fa-4d5c-a4f6-1c755a624025
. The learned Counsel contended that although any clerical error o r any obvious defect can be corrected even after the rising of the Court , this was a n irregularity that cannot be considered as such. The learned Counsel brought to the notice of the Court the following material differences o f the orders marked P -04 and P -05
cpa_0136_22_final_judgement_pdf.txt
2bcf68b2-1362-49aa-8745-dbcb0dc039bb
. Old One (P4) New One (P5) Page 2 4th paragraph Page 2 4th paragraph not available Page 3 1st, 2nd, 3rd paragraphs Page 3 1st, 2nd, 3rd paragraphs not available Page 3 Section 16 (3) available Page 3 Section 16 (3) not available Page 8 Paragraph 2 Not available in the new one Page 8 of 16 Page 16 5th paragraph (last part) similar paragraph Page 15 1st paragraph. Later part had been inserted newly
cpa_0136_22_final_judgement_pdf.txt
85478ce2-6447-460e-a368-e41c2b756cbe
. 4 rows had been inserted. Page 18 From the bottom 2nd paragraph Page 16 After No. 57 Not available Page 18, 19 Not available Page 16, 17 2 new paragraphs had been inserted. Paragraph 58, 59 inserted newly. It was her view that both the orders cannot be allowed to stand, as they have no legal validity before the law as they stand now
cpa_0136_22_final_judgement_pdf.txt
c40936b5-375b-4d98-9b6d-c429a7d69600
. Before considering the other points raised during the hearing of this application, I believe that the above matters brought to the attention of the Court need s to be addressed , as find them to be important questions of law
cpa_0136_22_final_judgement_pdf.txt
c98a44b0-e3b8-4594-af09-94d0356292cd
. As I have stated before , the learned High Court Judge was misdirected when it was determined that the accused raised a jurisdictional objection , whereas , it was not , and it had been the learned High Court Judge who has thought it fit to raise a jurisdictional objection on his own motion
cpa_0136_22_final_judgement_pdf.txt
8721558a-902c-4727-855a-43beda3e8742
. It needs to be reminded that our system of law is adversarial and not inquisitorial where Judges ar e not expected to play the part of a prosecutor or a defen ce Counsel in a trial. Page 9 of 16 The relevant section 39 of the Judicature Act under which an objection to the jurisdiction can be considered reads as follows; 39
cpa_0136_22_final_judgement_pdf.txt
5377b0a6-e397-42e8-b1a0-b48c27d7dd30
. Whenever any defendant or accused party shall have pleaded in any action, proceeding or matter brought in any Court of first instance neither party shall afterwards be entitled to object to the jurisdiction of such Court, but such Court shall be taken and held to have jurisdiction over such action, proceeding or matter: Provided that where it shall appear i n the course of the proceedings that
cpa_0136_22_final_judgement_pdf.txt
a2770d9e-018d-4530-b40e-8703b7f72367
the action, proceeding or matter was brought in a Court having no jurisdiction intentionally and with previous knowledge of the want of jurisdiction of such Court, the Judge shall be entitled at his discretion to refuse to proceed further with the same, and to declare the proceeding null and void
cpa_0136_22_final_judgement_pdf.txt
acc05479-c781-4331-80da-56f4a05a3384
. No doubt, a Judge can act even in a situation where no jurisdictional objection was taken as provided for in the proviso of section 39, it is my considered view that the pr oviso can only be applied to situations where there is a patent lack of jurisdiction
cpa_0136_22_final_judgement_pdf.txt
32379559-e341-4cce-9783-64c7e3fd5599
. Althou gh th e learned High Court Judge had determined that the situation considered by him to dismiss the action where , admittedly , all three Commissioners have not given their sanction to initiate action as a matter where patent lack of jurisdiction exists, I am in no position to agree
cpa_0136_22_final_judgement_pdf.txt
7b1ea13e-bbfb-401b-9d72-cedbf2c55624
. I find that the learned High Court Judge has again been misdirected as to the question of jurisdiction and law . This is an action initi ated by the Director General of the Commission in terms of the Bribery Act where the High Co urt h as the jurisdiction to hear and determine the matter
cpa_0136_22_final_judgement_pdf.txt
8761d364-5195-4546-b36b-0a507e9f13a5
. Only i n a situation where the High Court has no jurisdiction to hear and determine a matter , the question of patent lack of jurisdiction come s into play, whereas , this was no such situation
cpa_0136_22_final_judgement_pdf.txt
0e0b8fa8-e51e-4554-885b-dd248e4623cf
. Page 10 of 16 The question of jurisdiction considered by the learned High Court Judge, if it can be considered as a jurisdictional question, is a situation where the prosecution has been initiated without having the sanction of all the commissioners, which is clearly a procedur al defect, which can only be viewed as a latent lack of jurisdiction
cpa_0136_22_final_judgement_pdf.txt
079a3417-a638-4434-888e-5cdb0cb50b99
. Even if the action is dismissed on such a basis, there can be no bar for the Director General of the Commission to file the action again before the High Court after rectifying the said procedural defect. In the case of P. Beatrice Perera Vs. The Commissioner of National Housing 77 NLR 361 at 366, Tennekoon, C.J
cpa_0136_22_final_judgement_pdf.txt
5b8cf709-907a-4da2-8afb-edd4dded9604
. has discussed the difference between the patent lack of jurisdiction and latent lack of jurisdiction and the effect o f such a si tuation in the following manner. “Lack of competency in a Court is a circumstance that results in a judgment or order that is void. Lack of competency may arise in one of two ways
cpa_0136_22_final_judgement_pdf.txt
74d75cad-e84e-41c6-a261-7f023f935d82
. A Court may lack jurisdiction over the cause of matter or over the parties; it may also lack competence because of failure to comply with such procedural requirements as a re necessary for the exercise of power by the Court
cpa_0136_22_final_judgement_pdf.txt
f21788a1-043b-403f-a154-de9c62a12ba9
. Both are jurisdictional defects; the first mentioned of these is commonly known in the law as ‘patent’ or ‘ total’ want of jurisdiction or a defectus jurisdictionis and the second a ‘latent’ or ‘contingent’ want of jurisdiction or a defectus triationis . Both classes of jurisdictional result in judgments or orders, which are void. However, an important difference must also be noted
cpa_0136_22_final_judgement_pdf.txt
f87b6bea-4c27-4ef8-af49-abf93e1fa712
. In that class of case where the want of jurisdiction is patent, no waiver of objection or acquiescence can cure the want of jurisdiction; the reason for this being that to permit parties by their conduct to confer jurisdiction on a t ribunal which has none would be to admit a power in the parties to the litigation to create new jurisdictions or to extend a jurisdiction beyond its existing
cpa_0136_22_final_judgement_pdf.txt
9499006a-b4da-4e27-be91-fe37f8991af3
limits, both of which are within the exclusive privilege of the legislature; the proceeding i n cases within this category are non coram judice and the want of jurisdiction is incurable
cpa_0136_22_final_judgement_pdf.txt
732ad16d-eacf-4ae7-92ed-709ad1eeb785
. Page 11 of 16 In the other class of case s, where the want of jurisdiction is contingent only, the judgment or order of Court will be void only against the party on whom it operate s but , acquiescence, waiver or inaction on the part of such person may estop from making or attempting to establish by evidence, any averment to the effect that the Court was lacking in contingent jurisdiction
cpa_0136_22_final_judgement_pdf.txt
a4a8c2a2-6f23-4bea-a092-1f21eaf92a03
.” For the reasons as considered above, I am of the view that the learned High Court Judge had no basis to consider this matter as a preliminary objection raised by the accused when there was no such objection, and on the basis that this was a situation of patent lack of jurisdiction, whereas, it was not
cpa_0136_22_final_judgement_pdf.txt
b40fa969-c659-43da-9e1b-081d8ec3c748
. I find that this alone would vitiate the order of dismissal of the action by the learned High Court Judge. The next matter I would like to draw my attention is the manner in which the learned High Court Judge decided to insert the 2nd order marked as P -05 on the same matter after pronouncing his order on 12 -09-2022
cpa_0136_22_final_judgement_pdf.txt
89fdf1b6-2e5c-4271-b052-b54400dbb1cc
. It is well settled law that once a judgment , or an order for that matter , is pronounced by a Judge, such a judgment or the order cannot be altered or reviewed by the Judge who pronounced it un less in terms of section 283(4) of the Code of Criminal Procedure Act
cpa_0136_22_final_judgement_pdf.txt
cae464b2-b0ed-44ef-9fce-57f7607ab4cc
. Such a judgement or an order can be reviewed only by a competent appellate Court upon an application in that regard The relevant section reads thus; 283
cpa_0136_22_final_judgement_pdf.txt
4cadf8f6-dcbc-40b5-a460-2d92ef9c7ea4
. (4) When a judg ement has been so signed it cannot be altered or reviewed by the Court which gives the judgment: Provided that a clerical error may be rectified at any time and that any other error may be rectified before the Court rises for the day. Page 12 of 16 In the case of Hari Singh Mann Vs
cpa_0136_22_final_judgement_pdf.txt
1fae9e3b-6507-4341-a99c-23c7de3bf703
. Harbhajan Singh Bajwa AIR 2001 SC 43 the Indian Supreme Court considering the provisions of section 362 of the Indian Code which has very much similar provision to our Code, It was held: \"Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error
cpa_0136_22_final_judgement_pdf.txt
f3fa196d-601e-44fc-bbac-6cb39a9b0d44
. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory prov ision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set a side by a Court of competent jurisdiction in a manner prescribed by law
cpa_0136_22_final_judgement_pdf.txt
d69f345f-9a3d-454d-afb2-480846f2f480
. The Court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error
cpa_0136_22_final_judgement_pdf.txt
7a805760-739d-4e05-a4a2-372e60d96868
.” I am in no position to agree with the procedure adopted by learned High Court Judge in this regard , which was in contravention of the limitations imposed on a trial Judge to alter a judgment or an order once pronounced. A Judge is expected to pronounce a well -considered judgment o r an order, which amounts to the final det ermination o f the question or questions before him
cpa_0136_22_final_judgement_pdf.txt
3595daed-6fc0-41e3-bb89-cee56aad8d47
. It is my view that , therefore, a Judge has no legal right to enter another order on the same matter , on the basis that the previous order was the unedited version of his order and it has been pronounced due to a mistake occurred in printing the same, however good the intentions of the learned High Court Judge to pronounce an order he believe d to be a more perfect one , although it may not
cpa_0136_22_final_judgement_pdf.txt
9331e350-1eea-4624-88e7-649349679d24
have changed the previously pronounced final determination
cpa_0136_22_final_judgement_pdf.txt
8433f9ec-05a4-4b64-8f40-207ab4a418e3
. Page 13 of 16 I find t hat by adopting such a procedu re, the learned High Court Judge , maybe inadvertently , has created a situation where there are two orders in the same matter of which the affected parties will be unable to understand the rationale behind it
cpa_0136_22_final_judgement_pdf.txt
62155547-148c-490e-b98b-8909268a56ec
. If this kind of procedure is allowed to stand, no finality can be attached to any such order or a judgment of a Court of first instance, and the purpose of appellate procedure available for any dissatisfied party of an action would become meaningless . Therefore, it is my considered view that both the orders marked P -04 and P -05 cannot be allowed to stand
cpa_0136_22_final_judgement_pdf.txt
3767050d-a3a7-42c2-bb64-997392a1e50a
. Having determined the above questions of law in favour of the petitioner , to have a finality on the matter , I will now focus my attention to the legal provisions considered by the learned High Court Judge to dismiss the action initiated by the Director General of the Commission
cpa_0136_22_final_judgement_pdf.txt
0161b331-48e2-441e-9c2a-4b6f88adbb68
. For that purpose , I will only consider the order marked P -04 dated 12 -09-2022, which was the order that has to be considered for any such purpose. It is clear that the learned High Court Judge has taken guidance from the case of Anoma S . Polwatte Vs
cpa_0136_22_final_judgement_pdf.txt
ca1fac87-d4e8-498e-954b-8357904f37e9
. The Director General of the Commission to Investigate allegations of Bribery or Corruption (Supra) in determining that the action cannot be maintained before the High Court
cpa_0136_22_final_judgement_pdf.txt
12954973-5693-4706-acaf-b88f478f400f
. This was a case where Anoma S Polwatte challenged the decision of the Director General of the Commission to initiate action against her by way of a Writ application filed before the appropria te forum, namely, before the Supreme Court in te rms of section 24(1) of the Commission to Investigate Allegations of Bribery or Corruption Act (CIABOC) , where she sought a Writ, which was granted based on
cpa_0136_22_final_judgement_pdf.txt
c97af824-0aa3-468c-9b00-bb0759d43464
the applicability of section 11 of the CIABOC Act
cpa_0136_22_final_judgement_pdf.txt
510ddc39-df9a-46db-bb7a-b92369f2646a
. Page 14 of 16 It needs to be noted that when determining the matter, the learned High Court Judge did not have the priceless advantage of the judgment of the Supreme Court in the case of Indiketiya Hewage Kusumadasa Mahanama Vs
cpa_0136_22_final_judgement_pdf.txt
54719381-d284-4548-b442-b364328eb730
. The Commission to Inv estigate allegations of Bribery or Corruption, SC TAB - 1A and 1B/ 2020 decided on 11 -01-2023 , where the Five Judge Bench of the Supreme Court resolved the application of section 11 of the CIABOC Act in relation to actions filed before the High Court. Vijith Malalgoda, P.C., J
cpa_0136_22_final_judgement_pdf.txt
c49a1ac3-13b0-4449-8d9b-f0641e0bc5c8
. referring to the Anoma Polwatte case at page 44 stated thus; “As already observed by us, when deciding the above case, this Court had never intended to impose an additional requirement of submitting a written directive given by the Commission when forward ing an indictment by the Director General of the CIABOC to High Court other than following the provisions of already identified under section
cpa_0136_22_final_judgement_pdf.txt
ad246340-3c46-4e53-9dff-5ad124ea46db
12(1) and (11) of the CIABOC Act
cpa_0136_22_final_judgement_pdf.txt
d0ec24ac-e777-41dc-b2ac-214c718e2801
. If the Director General is directed under section 11 of the CIABOC Act by the CIABOC to forward an indictment, he is only bound to follow the provisions of section 12(1) and (11) of the CIABOC Act
cpa_0136_22_final_judgement_pdf.txt
76937f66-1181-411f-96ef-4299959bd66e
. In the absence of any complaint that the Director General of CIABOC had failed to comply with sections 12(1) and (11) if the CIABOC Act wh en forwarding the indictment before the High Cou rt at Bar, it is correct in refusing the jurisdictional objection raised on behalf of the 2nd accused before the High Court at Bar
cpa_0136_22_final_judgement_pdf.txt
e00058ed-f37e-4c70-ae65-e5550c3cb475
. The trial Judge before whom the indictment is fled is therefore bound to accept the indictment and take up the trial unless there is material to establish that Director General of CIABOC had failed to comply with the provisions of secti ons 12(1) and (11) of the CIABOC Act
cpa_0136_22_final_judgement_pdf.txt
0d85ee52-e067-4242-b147-661377a50dab
. Any party who intends to challenge an indictment forwarded by the Director General CIABOC on the basis that the CIABOC has failed to comply with section 11 of the CIABOC Act, the said challenge could only be raised in an appropriate action before an appropriate forum
cpa_0136_22_final_judgement_pdf.txt