SC dismisses application filed in appeal Court

Sarath MALALASEKERA

The Supreme Court dismissed the application filed by Timberlake International (Pvt) Limited, Pannipitiya Road, Thalawathugoda in the Court of Appeal.

The Supreme Court also granted special leave to appeal and vacated the order of the Court of Appeal dated November 28, 2007.

The Petitioner Timberlake International (Pvt) Limited cited M.P.A.U.S. Fernando, The Conservator General of Forests, P.G. Wickremasinghe, Range Forest Officer, Divisional Forest Officer and Pussellawa Plantations Limited, Alfred Tower, Colombo 3 as Respondents.

Justice Saleem Marsoof PC in his judgement, agreed by Justice Nimal Gamini Amaratunga and Justice P.A. Ratnayake PC, stated that the Court of Appeal misdirected itself and erred in law in failing to consider whether Timberlake International (Pvt) Limited was entitled to invoke the writ jurisdiction of the Court of Appeal having settled HC Application No. 07/07 in the High Court of the Western Province on July 28, 2006, in a manner grossly inconsistent with the said settlement.

The judgement also stated "I also hold that the Court of Appeal misdirected itself and erred in law in failing to considered the serious lack of UBERRIMA FIDES on the part of Timberlake International (Pvt) Limited.

In my considered opinion, the conduct of Timberlake International (Pvt) Limited in this case has been such that it was not entitled to any form of discretionary relief, and in all the circumstances of this case, the Court of Appeal should have dismissed its application in LIMINE."

Based on its own prior performance, the well established principles applied in the context of basic principles of contract law, would deem Timberlake International (Pvt) Limited as being barred from claiming relief in a manner that is starkly opposite to its manner of conduct at prior times and from which it gained pecuniary and other benefits.

There is in effect a legitimate expectation created not only in the other party to the contract, namely Pussellawa Ltd., but also in the Conservator-General of Forests on whose behalf the stipulations contained in Clause 7 (d) and (e) of the Agreement were made, that Timberlake International (Pvt) Limited has wholly accepted the contractual obligations as well as subsequent undertakings such as those flowing from the settlement reached in connection with the matter before High Court of the Western Province, and intends to act accordingly.

This Court cannot in its binding commitment to doing equity deny the realization of such rights, the judgement stated.

In addition to the conduct described above, which itself demonstrates the lack of BONA FIDES in Timberlake International (Pvt) Limited's conduct, "I find it has also misrepresented material facts in its petition to the Court of Appeal.

It is trite law that any person invoking the discretionary jurisdiction of the Court of Appeal for obtaining prerogative relief, has a duty to show UBERRIMA FIDES or ultimate good faith, and disclose all material facts to this Court to enable it to arrive at a correct adjudication on the issue arising upon this application," the judgement added. Additional Solicitor General A. Gnanathasan with Senior State Counsel S. Balapatabendi and State Counsel N. Wigneswaran appeared for the Respondent-Petitioners. President's Counsel Manohara de Silva with Attorneys Arienda Wijesundera instructed by Bandara Thalagune appeared for the Respondents.