Petitioner Went to “Extraordinary Levels” to Undermine Supreme Court’s Jurisdiction- SC
Rs. 500,000 Cost Imposed for Abuse of Process in Special Leave to Appeal
The Supreme Court imposed Rs. 500,000 as state costs for abuse of process, after finding that a petitioner had attempted to render the Court’s jurisdiction nugatory by filing a Special Leave to Appeal against a criminal judgment of the Court of Appeal, while at the same time pursuing a separate per incuriam application in that very same Court of Appeal.
The judgment, arose from a Special Leave to Appeal filed in the much-discussed “VAT case.” After losing in the Court of Appeal, one of the accused sought Special Leave to Appeal to the Supreme Court. However, while that case was pending, the same party filed a separate “per incuriam” application before the Court of Appeal, asking that the very same judgment be set aside on the claim that certain trial documents had been omitted from the appeal record.
This created two parallel proceedings before the country’s two highest courts on the same issue. The Attorney General’s Department objected, calling it an abuse of process. The petitioner later attempted to withdraw the Supreme Court case, but the Court refused to allow a simple withdrawal.
Justice Janak De Silva explained that under Rule 15 of the Supreme Court Rules, a petitioner cannot withdraw a Special Leave to Appeal “as of right.” “….A petitioner does not have an absolute right to withdraw a Special Leave to Appeal application made to this Court. It can be done only with the prior permission of Court. The application may be allowed by Court after necessary inquiry. The inquiry must be directed towards examining inter alia whether a petitioner has wasted the valuable resources of court in filing that application or whether there has been any abuse of the process of Court. After such inquiry, the application for withdrawal may be allowed on such terms as to costs and otherwise as Court thinks fit. Rule 15 does not specify the other terms, other than an order for costs, envisaged therein. Abuse of process of Court is a matter that Court can take into consideration in determining such terms….” – Justice Janak De Silva
Turning to the petitioner’s per incuriam argument, the Court clarified that assuming some documents were missing from the appeal record “does not make the judgment one made per incuriam.” That situation, the court explained, is no different from a case where all documents are available but the Court simply fails to examine them, a matter that could be raised on appeal, not through a fresh application.
The Supreme Court went further, saying the petitioner had “gone to extraordinary levels to render nugatory the jurisdiction of this Court” by pursuing both proceedings simultaneously and attempting to have the Court of Appeal decide first. The judgment described this conduct as contemptuous and stressed that “this Court has a bounden duty, as the highest and final superior Court of record in the Republic, to safeguard its constitutional jurisdiction and to condemn in the strongest terms any attempt to render it nugatory by resorting to abuse of process.”
In conclusion, the Supreme Court allowed the withdrawal of the Special Leave to Appeal subject to payment of Rs. 500,000 in state costs, affirmed the Court of Appeal’s majority judgment, and directed that the Court of Appeal shall not entertain the per incuriam application any further.
Case No: S.C. (Spl) L.A. Application No. 24/2024 (Decided on 11.07.2025)
Before: Janak De Silva, J. Mahinda Samayawardhena, J. Arjuna Obeyesekere, J.
