Information and Communication Technologies Authority v Emtel Ltd 2020 SCJ 4
Facts
This was an appeal against a judgment of the Supreme Court ordering the ICTA to pay to E. Ltd the sum of Rs 9,249,530 and interest in the sum of Rs 4,077,725 with costs. ICTA appealed against the said judgment on the ground that the learned Judge erred and acted unfairly in refusing to grant a postponement on the day of hearing to proceed with a third-party procedure.
Further, ICTA argued that Rule 38 (2) of the Supreme Court Rules 2000 (hereinafter referred to as the “SCR 2000”), upon which the learned Judge relied, was not mandatory but only directory and that the Court retained discretion in order to decide whether to grant the postponement or not.
Held
Rule 38 (2) of the SCR 2000 reads:
“The defendant or the respondent shall lodge the third party procedure prior to the filing of the plea”
The Court stated that it was not disputed that ICTA failed to comply with the above requirement and there is a settled line of decisions that failure to comply with the Rules would not irremediably be fatal in all cases.
In the present circumstances, however, ICTA filed its plea 8 months before coming with the motion for the postponement to proceed with the third-party procedure. This only when the case came for trial and more than a year after the case had been lodged. On hearing, ICTA advanced no reason whatsoever to explain the failure to proceed in a timely manner with the third-party procedure so as not to disrupt the trial process.
The Court held that the learned judge judiciously exercised his discretion which led him to the only conclusion which was conducive to the ends of justice, which was to reject ICTA’s motion for postponement.
The Court, accordingly, dismissed the appeal.
Case Commentary
As put forward in the present matter, the following oft-quoted passage from Quesnel and Ors v Dorelle & Ors [1867 MR 61] has served as a basis for the Supreme Court to consistently invoke the exercise of its discretionary powers in deciding upon what is the right course to follow where there has been a non-compliance with the Rules:
“The Judges who have framed those rules retain in their application a certain amount of discretion, they are to be enforced in all cases, but they are to be enforced so as to further, not to defeat the ends of substantial justice; non compliance with their provisions ought to be visited with some penalty, but where such non compliance does not affect the substantial merits of a case, and where the Court is satisfied, not on a mere statement of parties but upon proper evidence that the strict application of a rule in a matter of form would work irremediable injury to one of the parties, it lies with the Court to modify the application under the penalty of costs, and this, in the way which would appear to them more conducive to ends of justice.”
Reference
Civil procedure – appeal – supreme court rules 2000 – third party procedure – discretion
