Sudden malicious, mala fide termination of Agreement
:
Norwegians surrendered right to immunity
A District Court judge recently ruled on the
standing of respondents in the case Foundation for Co-Existence vs. 14
other defendants, mostly from the Norwegian Embassy, including the
former Norwegian Ambassador in Sri Lanka Hilde Haraldstad, Norwegian
Minister of Development Co-operation and Environment, Erik Solheim,
Norwegian Foreign Affairs Minister, Jonas Gahr Store, former Counselor
at the Norwegian Embassy in Colombo Edle Hamre -- and also the British
High Commissioner, among others.
The plaintiff Foundation for Co-existence
sued for breach of contract in monies dealing with projects launched by
it. Court ruled that certain defendants have surrendered their
diplomatic immunity when they signed the contract with the Foundation.
The British and Norwegians signed the contract with Mr. Kumar Rupesinghe
the Head of the Centre, and Chair of the Foundation for Co Existence. In
the contract it stipulates the process that should take place if a
dispute arises. It also states very clearly that if a dispute arises
then it will be adjudicated in a Sri Lankan Court. By the fact that the
Norwegian ambassador signed the contract, she has surrendered immunity,
court ruled.
Hugo Anthony, Senior Counsel, with Neil
Gunesekera, instructed by Gunesekera Associates appeared for the
plaintiff. Chanaka Silva appeared for the defendants instructed by Malin
Rajapaksa. The following is the text of the judgement:
IN THE DISTRICT COURT OF COLOMBO-COURT NO. 08
In the presence of Mrs. Amali Ranaweera Addl.
District Judge
Case No. 03438/2011 D.M.R.
Date 30-04-2013
Recorded by M.M.C. Renu Stenographer
ORDER
The Plaintiff has prayed from his Plaint as the first cause of action
t he recovery of a sum of Rs.57,169,452 jointly and severally together
with 12% annual interest until payment in full from 1st to 10th
Defendant representing the Norwegian Foreign Ministry, as the second
cause of action recovery of a sum of Rs.28,259,837.08 joint and
severally together with legal interest of 12% until payment in full from
1st to 10th Defendants representing the Norwegian Foreign Ministry as
the third cause of action the recovery of a sum of Rs.2,542,198.15
jointly and severally together with legal interest of 12% until payment
in full from 1st to 10th Defendants representing the Norwegian Foreign
Ministry, costs and other and further reliefs the Court shall seem meet.
The Plaintiff has prayed for the above reliefs on three causes of
action.
Accordingly the Agreement marked P2 attached to the Plaint which is
the first cause of action had been in operation from 01-05-2009 to
14-11-2009 and as there is a right to recover the relevant funds through
the officers of the Norwegian Foreign Ministry at least till 14-11-2009,
it is required to recover a sum of Rs.57,169,452/together with 12%
annual interest till payment in full from 1st to 10th Defendants, a sum
of Rs.28,259,837/08 together with interest 12% annual legal interest
from 1st to 10th Defendants representing the Norwegian Foreign Ministry
being the amounts payable by the Plaintiff to the Staff and authorities
employed by the Plaintiff due to the sudden malicious and mala fide
termination of the Agreement as their EPF and ETF bonus and other taxes
and a sum of Rs.98,528,065.69 as the Plaintiff had to obtain a Bank
draft of Rs.2,542,198.15 and 12% annual interest had to be paid on it
and the Agreement marked P2 had to be maintained till its last date and
also due to the delay in payment and some payments not settling at all
by the Norwegian Foreign Ministry officers.
Dr. Kumar Rupesinghe |
Accordingly the above causes of action have been filed to recover
damages from the 1st to 10th Defendants representing the Norwegian
Foreign Ministry. When drawing attention to the caption of the Plaint it
appears that it has named Hilde Haraldstad Ambassador Norwegian Embassy
as the 1st Defendant, Erik Solheim, Minister of Environment and
Cooperation as 2nd Defendant, Jonas Gahr Store Minister of Foreign
Affairs as the 3rd Defendant, Ingrid Fiska, State Secretary, Secretary
to the Ministry of Environment and International Development as the 4th
Defendant, Espen Barth Eide State Secretary, Ministry of Foreign Affairs
as the 5th Defendant; Kjersti Anderson, Assistant Director General,
Ministry of Foreign Affairs as the 6th Defendant, Vigdis Wathne past
Chief Secretary, Norwegian Embassy as the Defendant, “Edle Hamare Past
Consular Officer Norwegian Embassy as the 8th Defendant, 9th Erik Glenne
Director Foreign Service Administration Unit as the Defendant and Tire
Hattrem Past Ambassador Norwegian Embassy as the 10th Defendant.
British High Commission
In addition four representatives of the British High Commission have
been named in the caption. They are H.E. Joh Rankin, High Commissioner,
British High Commission as the 11th Defendant, Tom Owen Edmunds, Head of
Political and Development Division, British High Commission as the 12th
Defendant, William Hague State Secretary Overseas and Commonwealth
Office as 13th Defendant and Russel Crane, South Asian Group Overseas
and Commonwealth Office as 14th Defendant.
Erik Solheim |
According to paragraph 43 of the Plaint the right that the Plaintiff
had to file action against the 11th to 14th Defendants is said to have
been voluntarily withdrawn as a mark of appreciation of service given to
the Plaintiff by the British High Commission. According to Journal Entry
NO.1 Summons had been served to all the Defendants on 15-092011 by
Registered Post and through Ministry of Foreign Affairs. On 25-05-2012
lawyers appeared representing all parties and argued that as Defendants
are High ranking officers and Ambassadors of Foreign States they have
immunity in this country. As no relief has been sought for 11th to 14th
Defendants they have been released from the case.
A panel of lawyers had appeared on behalf of 1st to 10th Defendants
under Section 41 of the Judicial Service Act No. 02 of 1978 to assist
the Court. In terms of Sub Section 41(1) of the Judicial Procedure Act
it is stated that every lawyer has the entitlement to tender replies and
implement them in all Courts that have been established to assist and
advise clients. Also in terms of Sub Section 41(2) any person exercising
half Judicial Power has the entitlement to represent any party through
an Attorney-at-Law. If it is so on behalf of 1st to 10th Defendants
under Section 27 of the Civil Procedure Code Submissions had been made
1ston behalf of parties without filing a proxy to appoint a lawyer on
behalf of 1st to 11th Defendants appearance had been made in Court
without filing a proxy to assist Court (Amions Curaie).
Judicial assistants
In Case Seneviratne Vs. Attorney General (71NRL 439) and Seetha Vs.
Sharmananda and others (1989 105 Sri Lanka Law Report 94) the
possibility of lawyers appearing as helpers to court had been taken into
consideration. As Defendants 1 to 10 have foreign sovereignty a request
has been made to provide judicial assistants on their behalf due to the
fact that when proxies are filed making them Defendants they are
regarded to have waived off immunity entitled to them till such time the
judgment is given. Drawing attention to Superintendent Government Soap
Factory, Bangalore V Commissioner of Income Tax (43 NRL 439) in Taylor V
Best (14GB 487) it is mentioned “where the Ambassador had voluntarily
appeared as one of several Defendants and defended the Section to
Judgment he had waived his privilege”. As Defendants 1 to 10 are
representatives of the Norwegian Government and Ambassadors and as they
are claiming for immunity by way of filing proxy in this case, the said
immunity is regarded to have been waived. Submissions had been made in
this manner representing as judicial assistants.
Hilde Haraldstad |
Certain primary objections have been made on behalf of 1st to 10th
Defendants. That is according to Section 6 in Diplomatic Privileges Act
No.9 of 1966, a certificate has been issued by the Ministry of Foreign
Affairs of this country where it is stated that Defendants 1 to 6 have
immunity and it is said to be conclusive evidence. It is stated that 3rd
Defendant is the present Minister of the Ministry of Foreign Affairs and
previously he had been the Minister of Health of the Norwegian
Government. Also it is stated that the 5th Defendant is presently
working as the Ministry of Defence in the said State and previously he
had functioned as the Minister of Foreign Affairs. Second Defendant at
the time of filing the case had been working as the Minister of
International Development and 6th to 9th Defendants are Senior Officer
of the Foreign Ministry of the Norwegian Government.
International Law
Accordingly it is argued that Defendants 6 to 9 have immunity under
the Conventional International Law. It is shown that the said Defendants
1 to 10 have been included to the case not on personal level but for an
act done on their duty level. Also these Defendants have no connection
whatsoever to the Agreement P2 and is representatives of the Ministry of
Foreign Affairs of Norwegian Government and they are entitled for
immunity for performing an official duty under the conventional
International Law. It has also been argued that Agreement P2 is not an
Agreement concerning commercial transactions and even parties not
connected to the Agreement have been added as Defendants to this case.
In that connection the primary objection of the Defendants had been
based on the fact that Defendants are entitled for immunity in
accordance with the Conventional International Law or Diplomatic
Immunity and also on the fact that persons not parties to Agreement P2
have been included to the case. In reply to the above primary objection
the Plaintiff has argued that the Ministry of Foreign Affairs of this
country has issued a number of certificates of various kinds but as by
way of condition 10.4 of the Agreement P2 filed in action immunity has
been expressly waived Defendants 1 to 10 have no entitlement for
immunity. At the Oral Submissions both parties had given attention to
various local and foreign judgments and books on international law and
Agreement law.
Accordingly in the first instances the attention of this Court is
drawn as what kind of immunity is entitled to the Defendants. Defendants
1, 7 and 10 mentioned in the Caption of 1st
John Rankin |
the Plaint are officers representing Norwegian Embassy. Defendant is
the present Ambassador of the Norwegian Embassy in this country and the
7th Defendant is the past Chief Secretary of the Norwegian Embassy.
International Law governing diplomatic relations between States is
enumerated in Vienna Convention on Diplomatic Relations 1961 Law 31 of
the Convention states that Embassy officials are waived from Criminal
Law procedure and entitled for immunity subject to certain limitations.
Law 32 of the Convention also states of certain instances where
Embassy officials are not entitled for privileges. Also in a case where
an Embassy official is involved in a case outside his official duties
and for private or commercial purpose he will not get the diplomatic
immunity.
Further Embassy officials or if there is any specified period of time
and after such time will not be entitled for immunity. According to Law
39(2) it is stated that there is an entitlement for immunity for
official duties performed during the period of service. By enforcing the
terms of Vienna Convention Diplomatic Immunity Act No. 9 of 1996 was
approved. It is evident when drawing attention to the preface of the
Act. It is said “It is an Act that provided provisions for immunity and
privileges to certain officers and representatives of International
organizations and their properties.
As Vienna Convention relating to Diplomatic relationship was passed
in Vienna on 19-04-1961, and as Sri Lanka is a party to that Convention
and as it is necessary to make legal provision to fulfill the
responsibility on the part of Sri Lanka, the Parliament of the
Democratic Socialist Republic of Sri Lanka has thus declared Rules 31
and 32 of the Vienna Convention have been applied to the Act as well.
According to Rule 31 of the Schedule in that Act;
“1. A representative of the Ambassador should get the immunity from
the Criminal Judicial power of the State which assumes duty. Further
except on the following instances he should enjoy immunity from the
Civil and Administrative and judicial power of the state which he
assumes power.
Jonas Gahr Store |
(a) Except he is in possession of a private immovable property on
behalf of the State he is sent for missionary purposes, any case
relating to a private immovable property in a state where he assumes
duties;
(b) Case relating to succession where he is involved as an Executor,
Administrator, heir or testamentary beneficiary on private basis and not
on behalf of the State to which he is sent
(c) Case relating to any profession or commercial act outside his
official duties as representative to Ambassador in the State where he is
sent
2. It is stated that a representative of the Ambassador is not bound
to give evidence as a witness. In Sub Section 2(3) of Act NO.9 of 1996
for the purposes of Rule 32 any waiver by the Head of the Mission or any
persons acting on his behalf is considered as a waiver by the State.
Accordingly to Rule 32 - it is stated
“1. Immunity against the judicial power received by the
representative of Ambassadors and persons who get immunity under Rule 37
can be waived off by the sending State.
2. That waiver should always be a declared waiver.” If so, by that
Section it is stated that the Head of the Diplomatic Mission or the
person who is acting on his behalf can waive the immunity in accordance
with Rule 32. As stated in Rule 32 if immunity has been waived by
declaration, entitlement for immunity cannot be requested again to the
Ambassador. Parties to Agreement P2 were Norwegian Ministry of Foreign
Affairs [MFA] and British High Commission [BHC] as Joint Donors and
Foundation for co-existence Granters Limited Company) the Plaintiff.
10th Defendant was the person who signed Agreement P2 on behalf of
Norwegian Ministry of Foreign Affairs as past Norwegian Ambassador. It
is further stated in Agreement P2 that Norwegian Embassy in Colombo, on
behalf of Norwegian Ministry of Foreign Affairs is playing a main role
with regard to communication matters pertaining to this Agreement. (The
Norwegian Embassy in Colombo is, as a part of MFA shall be competent to
act on behalf of the MFA. “All communication MFA in regard to the
Agreement shall be directed to the Embassy”.
Accordingly the above Defendants should have been included to this
case a Norwegian Embassy in this country had acted as a representative
of the Norwegian Ministry of Foreign Affairs who is a party to Agreement
P2. In case G.G. Arulpragasam Vs J.A. Gregory [55 NLR 35] it had been
decided that diplomatic immunity is extended not only to an Ambassador
but to his wife as well as those who serve under him (“Under the rules
of International Community, diplomatic immunity from judicial process is
extended not only to a Minister or Ambassador but also to his family,
suite and servants. An assistant to a Ministry or Naval Attache if he in
fact works in an Embassy is covered by the immunity.
Accordingly Courts in this country to have accepted the Diplomatic
immunity. According to paragraph 9 of the Plaint 8th Defendant has been
included to the Plaint as he was the past Consular Officer of the
Norwegian Embassy in Colombo and as he has taken action in terms of
Agreement P2 on behalf of the Norwegian Ministry of Foreign Affairs.
Vienna Convention on Consular Relations -1963 has been signed. In order
to assist to perform their official duties satisfactorily they are
entitled for immunity with regard to local judicial power. However
consular officers are not entitled for immunity in connection with their
activities [International Balancing and Human Rights Law .... Fr. Noel
Dias -page 210)
Commercial activities
Defendants 2, 3, 4, 5, 6 and 9 requested for immunity under
Conventional International Law. A difference can be seen with regard to
immunity under Conventional International Law between Foreign public
Administration activities and Government Commercial activities. It is an
accepted fact that immunity is limited to commercial transactions done
by a Government. Also the representatives of a Government are getting
personal immunity within the purview of their duties (Immunity Ratione
Personae). In paragraph 739 of International Law -Sixth Edition written
by Author Macallum Shove it is said “However, in its judgment in the
Congo v. Belgium case, the International Court of Justice stated that,
‘in international law it is firmly established that .... certain holders
of high -ranking office in a state, such as the head of state, head of
government and minister for foreign affairs, enjoy immunities from
jurisdiction in other states, both civil and criminal’.
The Court took the view that serving Foreign Minister would benefit
from immunity ratione person on the basis that such immunities were in
order to ensure the effective performance of their functions on behalf
of their states”.
It states of the immunity enjoyed by a Foreign Minister. In case
Percy Mahinda Rajapaksa V United States of America [No.12-S087, Appeal
from the United States District Court for the District of Columbia (No.
1:11-ev-00235)] concluded recently in a High Court of the United States
of America it has been decided that the President of this country is
entitled to immunity for his acts while remaining in office. (“the
Defendant is entitled to Head of State immunity under the Common law
while he remains in office “) The judiciary of this country too has
taken into consideration of the immunity of foreign states. In case In
ress “Arnolda Da Brescia (23 NLR 391) Justice Sampayo has pointed out
that the ship Bresia belonging to Italy, although it had been handed
over to another charterer for a commercial purpose Sri Lanka Judiciary
has no power to arrest it (“A ship belonging to a foreign state cannot
be arrested by our Courts. The foreign state does not lose its immunity
from being proceeded against by the arrest of the ship, even if it
employs the ship in ordinary commerce’. The Court is bound to withhold
its hand whenever it appears that it is without jurisdiction and cannot
refuse to entertain an objection to the jurisdiction at any, stage of
the suit”)
Also in soap factory case it has been decided that the State of
Mysore is not an independent sovereign state and therefore it cannot
invoke in aid immunities under International Law (“Profits derived from
the sale in Ceylon of Goods produced by the Government Soap Factory in
Bangalore, which is owned by the State of Mysore, are liable to
assessment for Income-Tax. The state of Mysore is not an independent
Sovereign State and it cannot invoke in aid immunities arising by virtue
of International Law). Accordingly the judiciary of this country also
had taken into account about the immunity foreign States have in
relation to commercial activities.
Legal authority
When going through the case record it appears that the Ministry of
Foreign Affairs has issued certain certificates to all these Defendants
to the effect that they have immunity. In Salton Jahor (1894 I OB 149)
it was decided that if the Secretary of State certifies with regard to
the independent sovereignty that Certificate is decisive for the
judiciary of that country. Even under Section 6 of Act NO.9 of 1996 when
a question crops up as to whether a person is entitled for immunity, it
is necessary to get a certificate certified by the Secretary to the
Ministry of Foreign Affairs stating the facts of the case and it is
considered as a Final Evidence.
From the certificates issued to the Defendants by the Ministry of
Foreign Affairs by way of certificates dated 17-01-2012 and 09-05-2012
under the signature of the Legal Consultant of the Ministry of Foreign
Affairs it has been stated that Defendants 1 to 10 are entitled for
immunity. However subsequently by certificate dated 11-10-2012 it has
been stated that Defendants 1 to 10 are not entitled for immunity and
accordingly the original certificate was withdrawn.
This certificate should be issued by the Secretary of the Ministry of
Foreign Affairs but as it has been issued by a party that has no legal
authority to issue such certificate, it is not valid under law.
Subsequently the Ministry of Foreign Affairs has consulted the Attorney
General in this connection which is evident from the letter dated
07-02-2013 of the Solicitor General. On a later date Secretary to the
Ministry of Foreign Affairs had issued a certificate or two dated
06-03-2013 has been issued to Defendants 1 to 10. According to the said
certificates it has been stated that the Defendants 2, 3, 4, 5, 6, and 9
are entitled for immunity under Conventional International Law and
Defendants 1, 7, 8 and 10 are entitled to immunity under Vienna
Convention. Accordingly Certificates had been issued with the signature
of the Secretary to Defendants 1, 7, 8, and 10 under Section 6 of the
Diplomatic Immunity Act No. 9 of 1996. On that occasion it had been
argued on behalf of the Defendants that the said certificate is a Final
Evidence.
Plaintiff had instituted this action in order to ascertain why the
parties have come to this decision when the Agreement filed as P2 has
been terminated illegally. According to document P2 Norwegian Foreign
Ministry and British High Commission had provided assistance to the
Plaintiff establishment to accomplish the objectives in the first
condition of the Agreement.
The objective is to provide financial support to the Plaintiff
Establishment to promote peace and co-existence from the year 2008 to
2011. It is stated “The FCE has by letter dated 14 February 2008
requested MFA and BHC for financial support to their project titled
“Promoting Peace and Coexistence 2008-2011” On the consideration of such
request and the approval of the Consolidated Proposal, the IVIFA and BHC
have decided to extend financial support to the project and the three
parties have hereby agreed by and between themselves as follows”
Judicial power
In paragraph 24 of the Plaint it has been stated that the Norwegian
Foreign Ministry has agreed to provide funds during the aforesaid
timeframe. It has to be ascertained whether this Agreement is merely a
commercial transaction or a nonprofit gaining transaction. According to
Defence parties have reached this Agreement with the intention of
getting aid through Norwegian Foreign Ministry. But Court cannot take a
decision at this time with regard to the contents in P2. Court has to
consider at present whether Defendants 1 to 10 are entitled for immunity
under Diplomatic Privilege and according to Conventional International
Law. Under Conventional International Law or according to Sub Section
2(3) of Diplomatic Privileges Act and Rule 32 of the Vienna Convention
if any foreign State representative has expressly waived immunity no
relief on immunity can be requested again. Defendants 1 to 10 have not
contested document P2.
According to Condition 104 of the said document “If any dispute
arises relating to the implementation or interpretation of this
Contract, the Parties shall consult with a view to reaching a solution.
Any disputes that cannot be solved amicably shall be referred to the
competent Sri Lankan court and settled in accordance with Sri Lankan
law. The court venue shall be Colombo” where it is agreed that when any
dispute arises relating to the Agreement it should be decided under the
law of the country and at a Court in Colombo. Accordingly according to
the Plaintiff by way of Agreement P2 the said parties has expressly
admitted the judicial power of the Court in this Court. If that is so,
Norwegian Foreign Ministry which is a party to the Agreement having
signed the Agreement and expressly admitting the judicial power of this
country cannot request for immunity at a later stage.
By way of Act NO.9 of 1996 and Conventional International Law if the
Foreign Sovereign power expressly waive the immunity there is no
possibility of requesting for immunity relief. Although a certificate
has been issued by the Secretary to the Ministry of Foreign Affairs
under Section 6 of Act no. 9 of 1996 or by issuing a Certificate to the
representatives of a Foreign State under the Conventional International
Law to the effect they are entitled to immunity if the foreign
representatives through document P2 have expressly waived the immunity
in such case that certificate is not valid for the parties.
It is important to find out who are parties to Document P2 as they
are the persons who have expressly waived immunity. It is the Norwegian
Foreign l”1inistry that is regarded as Joint Donors.
Condition 1.1 further states that the Norwegian Embassy in this
country is acting on behalf of the Norwegian Foreign Ministry. That
means “The Norwegian Embassy in Colombo is, as a part MFA, shall be
competent to act on behalf of the MF~ All communication to MFA regard to
the Agreement shall be directed to the Embassy”
It was the 10th Defendant who was the Ambassador in this country at
that time signed document P2 on behalf of the Norwegian Foreign
Ministry. If that is so they should have expressly waived the immunity
from document P2 as Norwegian Foreign Ministry as well as
representatives of the said Ministry and accepted the judicial power of
this country. If so Norwegian Foreign Ministry and the Norwegian Embassy
which was acting as its representative will not be entitled to this
immunity.
When drawing attention to the caption of the Plaint 1st Defendant is
the present Norwegian Ambassador in this country. 10th Defendant has
been included to the case as the person who signed the Agreement P2.
Norwegian Foreign Ministry
The relevant party has signed the Agreement as apart of the duty
during the tenure of his services and he has no personal binding on
Agreement P2. Letters dated 17-06-208 and 11-06-2008 filed by the 8th
Defendant with the Plaint had been issued by him. He has issued a letter
as a part of his duty on behalf of the Foreign Ministry as the Consular
at that time. According to paragraph 8 of the Plaint 7th Defendant was
the past Secretary of the Norwegian Embassy of this country.
According to paragraphs 1, 8,9 and 11 of the Plaint, the relevant
Defendants were shown as persons who acted on behalf of the Norwegian
Foreign Ministry as per document P2. If so, the relevant party also has
been included to the case for an act of duty done during the period of
his office. Rule 39 of the Convention has been accepted by the Schedule
to the Diplomatic Immunity Act. As at present they are neither officers
of Norwegian Embassy in this country nor representatives representing
Norwegian Foreign Ministry they are not bound for reliefs as prayed for.
Second and 4th
and 4th Defendants are Minister and State Secretary respectively of
the Ministry of Environment and Cooperation and the said Defendants have
not given a clarification with regard to their connection to Agreement
P2. Although it is stated that the 2nd Defendant has been included to
the case as he is coming under the purview of that Ministry, it has not
been shown in what capacity the 2nd Defendant had acted in implementing
document P2. Accordingly it is obvious from the Plaint that 2nd and 4th
Defendants have been made a party to this case without a clear
connection to document P2. It appears from the Oral Submissions of the
Defence that 3rd Defendant is the present Minister of Health in the
Norwegian Government. If that is so the purview of duties of the 3rd
Defendant does not relate to P2.
Therefore the present Norwegian Foreign Ministry has also been
included to the case without any connection with that party. 5th
Defendant is the present Norwegian Foreign Minister. It has also been
admitted that 6th and 9th Defendants are high ranking officers of the
Norwegian Foreign Ministry. That is to say the facts in document P2 is
relevant to their purview of duties. Only the Defendants 1,5,6 and 9 are
as stated in List P2 are parties representing Norwegian Foreign Ministry
and parties representing Norwegian Embassy locally who have waived off
immunity. Apart from that as Defendants 2, 3, 4, 7, 8 and 10 are
personally not bound or privilege officers duties performed by them
during their tenure of office they are entitled for immunity. Sometimes
they may have been included to the case as the immunity entitled to them
will be an obstacle for them to be called before a Court.
According to Section 17 of the Civil Procedure Code a case cannot be
dismissed for including parties wrongfully. In case Wahareke alias
Moratota Sobhitha Thera Vs. Amunugama Ratnapala Thera (1991) 1 SLR 201
it has been shown that adding parties or dismissing a case by adding
parties is preventing a Judge by Section 17 and that the wrong party
should be struck off and necessary amendments should be made to the
Answer.
Further in John Singho Vs Julius Appu [10 NLR 351] v Fernando Vs
Perera [21 Narive 94] it has been said that objections regarding
inclusion of parties erroneously should be pointed out in the first
opportunity available. According to Section 18 of the Civil Procedure
Code during the course of the trial or previously at the request of one
party or both parties an Order can be made to delete the name of a party
who has been included in an improper manner.
As already the Government has accepted the Plaint and Summons have
been issued to Defendants it is not possible for Court to take action as
per Section 46(2(e) of the Civil Procedure Code but as shown in Case
Edie vs Somasundaram [1 NLR 292] when there is an ex facie case observed
by Court there is a possibility of amending the Plaint correcting those
mistakes “when a Plaint, defective in some material respect, has been
filed, it is not necessary to move that it be taken off the file, but it
is duty of the Court, of its own accord, or upon its attention being
called, to reject the Plaint or return it to Plaintiff for amendment. If
the Plaint is good ex facie, any objection thereto be taken by the
answer”
Plaintiff party
Accordingly on the strength of document P2 as Norwegian Embassy of
this country had acted as representatives of the Norwegian Foreign
Ministry and its representatives, and as the said party had expressly
waived its immunity they cannot request for immunity again. But at this
stage it is not possible for the Court to consider whether document P2
is a document that can be enforced before law.
Accordingly it is the conclusion of this Court that as per the
Certificate issued by the Secretary to the Foreign Ministry the above
mentioned 2nd 3rd 4th 7th 8th and 10th Defendants of the Petition are
entitled for immunity.
Therefore acting under Section 18 of the Civil Procedure Code I
discharge the above 1st, 5th, 6th, and 9th Defendants from this case.
Also I reject the request made for immunity in respect of 1st, 5th, 6th
and 9th, and Defendants with regard to immunity. I also inform that
accordingly the Plaintiff party can amend the Plaint if necessary.
(Amali Ranaweera) Additional District Judge, Colombo 30-04-2013
|