In a recent judgment, the Supreme Court considered the necessity of obtaining a court pronouncement on a decision deemed void, even though it was already null and void from the outset. The court discussed how, according to legal scholars, while some decisions are considered invalid from the beginning, it is often necessary to have an …
SC Examines Necessity of Court Ruling on ‘Void’ Admin Decisions
In a recent judgment, the Supreme Court considered the necessity of obtaining a court pronouncement on a decision deemed void, even though it was already null and void from the outset. The court discussed how, according to legal scholars, while some decisions are considered invalid from the beginning, it is often necessary to have an official court declaration for clarity. The court also addressed the ‘presumption of validity’, noting that administrative decisions are generally presumed valid unless successfully challenged. Furthermore, the court emphasized that decisions made without jurisdiction—referred to as ultra vires—are automatically void, and any subsequent acts based on such decisions are similarly rendered invalid.
The case involved a dispute over the issuance of a gem mining license. Initially, the petitioner (P) and two respondents (2Rs) applied for the license, but their applications were rejected. The two respondents then appealed to the Director-General, who did not have the authority to make the decision. Despite this, the Director-General made a ruling.
The petitioner then appealed to the Secretary to the Minister, who did have the proper legal authority. However, the Secretary upheld the Director-General’s decision. The court found that the Director-General acted without legal authority, making the decision ultra vires and void from the beginning. As a result, the court declared all subsequent actions based on that decision to be invalid.
The Court also held in this that despite the fact that the gem mining license had already lapsed, the court’s ruling serves as a reminder to public authorities that decisions made beyond their legal jurisdiction may lead to judicial consequences. Furthermore, the court reaffirmed that its decision operates erga omnes—affecting not only the parties involved but also setting a precedent for future cases involving similar legal principles.
“…By virtue of the presumption of validity, a formal pronouncement of nullity is necessary with regard to the initial ultra vires decision. While it is desirable to have a formal judicial pronouncement regarding subsequent actions or decisions, such a pronouncement is not mandatory. Nonetheless, prudence dictates that a formal pronouncement be made, depending on the unique facts and circumstances of each case.
For example, if X has been invalidly removed from an office and Y has been appointed in his place, or if the licence issued to X has been invalidly cancelled and allocated to Y, X cannot disregard the invalid decisions and carry on as if nothing has happened. Conversely, if those invalid decisions made in respect of X are declared null and void by formal pronouncements by Court, in practice, the decisions made in favour of Y cannot have any effect notwithstanding that no such formal pronouncement by Court has been made. This is because, once the initial decision is declared a nullity, there is no room to accommodate Y. In such an event, Y’s remedy lies against the wrongful decision maker, and not against X…” – Justice Mahinda Samayawardena
Emerging Exception on Void Decisions:
Validity of Subsequent Acts Depends on the Legal Power of the Second Actor
The court also examined the impact of invalid decisions on subsequent actions taken by individuals or entities. It focused on whether such acts could be validated if the individuals responsible for taking those actions had legal authority.
In Boddington v. British Transport Police [1998] 2 WLR 639, Lord Steyn cited with approval the theory of the second actor as advanced by Professor Christopher Forsyth in “The Metaphysic of Nullity, Invalidity, Conceptual Reasoning and the Rule of Law”, in Christopher Forsyth and Ivan Hare (eds), The Golden Metwand and the Crooked Cord: Essays on Public Law in Honour of Sir William Wade (OUP 1998), as follows: I accept the reality that an unlawful byelaw is a fact and that it may in certain circumstances have legal consequences. The best explanation that I have seen is by Dr. Forsyth who summarised the position as follows in “The Metaphysic of Nullity, Invalidity, Conceptual Reasoning and the Rule of Law”, at p. 159: “it has been argued that unlawful administrative acts are void in law. But they clearly exist in fact and they often appear to be valid; and those unaware of their invalidity may take decisions and act on the assumption that these acts are valid. When this happens the validity of these later acts depends upon the legal powers of the second actor. The crucial issue to be determined is whether that second actor has legal power to act validly notwithstanding the invalidity of the first act. And it is determined by an analysis of the law against the background of the familiar proposition that an unlawful act is void.” – Justice Samayawardena
Possibility of Raising ‘Nullity’ in Any Proceedings
“…The validity of a decision can be attacked directly or indirectly. However, this should be allowed with caution. As a general rule, the decision maker must be heard before the decision is struck down on exceeding powers or any other ground. An order made contrary to the principles of natural justice is outside the jurisdiction and void. This is applicable not only to administrative bodies but also to Courts. Illegality cannot be rectified by another illegality. Therefore, collateral attacks on decisions should not be encouraged.
Wade is not against collateral attacks on void decisions when he says at page 235: The validity of the act or order may be challenged directly, as in proceedings for certiorari to quash it or for a declaration that it is unlawful. But it may also be challenged collaterally, as for example by way of defence to a criminal charge, or by way of defence to a demand for some payment. As a general rule, the court will allow the issue of invalidity to be raised in any proceedings where it is relevant. Where some act or order is invalid or void, that should be able to be raised in any proceedings which depend on the validity of that act….” – Justice Samayawardena
Case No: SC/MISL/04/2014 [07.02.2025]
Before: Hon. Chief Justice Murdu N.B. Fernando, P.C. Hon. Justice A. L. Shiran Gooneratne Hon. Justice Mahinda Samayawardhena
