Law of Writs – suppression and/or misrepresentation of material facts – judicial review
“It is not every suppression or misrepresentation of fact that will be detrimental to a Petitioner in an application for judicial review. It must be a material fact and this depends on the facts and circumstances of each case.”
IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA
W.A Bhathiya Indika Wickramasinghe v. Land Commissioner General & Others
Case No. CA (Writ) 381/2017
Decided On: 12.05.2020
Janak De Silva J.
The land forming the subject matter of this application is state land within the meaning of the Land Development Ordinance No. 19 of 1935 as amended (Land Development Ordinance). One David Appuhamy, father of the original 6th Respondent, was granted a permit for this land (P3). David Appuhamy passed away in 1991.
David Appuhamy had two brothers namely Sugathan Appuhamy and Wijeris Appuhamy, the grandfather of the Petitioner. Initially David Appuhamy had nominated Sugathan Appuhamy as his successor. At the time this nomination was made David Appuhamy was unmarried. Later upon his marriage the nomination of Sugathan Appuhamy became null and void in terms of section 52(1) of the Land Development Ordinance.
There is no dispute between the parties that David Appuhamy did not nominate a successor. Hence upon his death, succession must take place in terms of section 72 of the Land Development Ordinance and the 3rd Schedule therein.
However, the Petitioner claims that the land in issue was cultivated by his grandfather and his two brothers although the permit was issued to David Appuhamy. It is further claimed that David Appuhamy left this land and settled down in Nochchiyagama in 1945 with his partner and he was later granted lands in Nochchiyagama under the Mahaweli project. The Petitioner asserts that after David Appuhamy and Sugathan Appuhamy left the land, it was his grandfather Wijeris Appuhamy who solely possessed and cultivated it. Wijeris Appuhamy died in 1995 while his wife died in 2008. They had three sons and a daughter who is the mother of the Petitioner.
The Petitioner contends that from the time of the death of his grandfather in 1995, he was cultivating this land. According to him, his father started building a house on the land in 2009 which was halted in the same year due to financial constraints. The construction resumed in 2014 and was completed by January 2016.
Somewhere in September 2015, the Petitioner made a request to the 4th Respondent to grant the land in issue to him. Around October 2017 the Petitioner was made aware that the original permit (P3) has been transferred to the 6th Respondent.
The Petitioner in this application is seeking to challenge the actions or inactions of the 1st to 5th Respondents which resulted in the failure to issue a permit or grant to the Petitioner in terms of the Land Development Ordinance in respect of the land which the Petitioner and his predecessors were occupying and cultivating from 1937 and the illegal transfer of the permit (P3) to the 6th Respondent.
While all parties have filed extensive and undoubtedly helpful written submissions raising many interesting points of law, in my view Court must first examine whether the Petitioner has come to Court with clean hands in that he has not suppressed and/or misrepresented material facts to Court.
Suppression and/or Misrepresentation of Material Facts
It is established law that discretionary relief will be refused by Court without going into the merits if there has been suppression and/or misrepresentation of material facts. It is necessary in this context to refer to the following passage from the judgment of Pathirana J in W. S. Alphonso Appuhamy v. Hettiarachchi [77 N.L.R. 131 at 135,6]:
“The necessity of a full and fair disclosure of all the material facts to be placed before the Court when, an application for a writ or injunction, is made and the process of the Court is invoked is laid down in the case of the King v. The General Commissioner for the Purpose of the Income Tax Acts for the District of Kensington-Ex-parte Princess Edmorbd de Poigns. Although this case deals with a writ of prohibition the principles enunciated are applicable to all cases of writs or injunctions. In this case a Divisional Court without dealing with the merits of the case discharged the rule on the ground that the applicant had suppressed or misrepresented the facts material to her application. The Court of Appeal affirmed the decision of the Divisional Court that there had been a suppression of material facts by the applicant in her affidavit and therefore it was justified in refusing a writ of prohibition without going into the merits of the case. In other words, so rigorous is the necessity for a full and truthful disclosure of all material facts that the Court would not go into the merits of the application, but will dismiss it without further examination”.