Businessman Harry J should not ‘harass’ people, counsel tells Colombo court
Harry Jayawardena
A Colombo court was urged on Tuesday not to allow Colombo businessman Harry Jayawardena to harass people and abuse the law.
The request was made to Colombo High Court Judge N.V. Karunatilleke by Gamini Marapana, senior counsel appearing for Zaki Alif, in a case involving Mr. Jayawardena and his complaint over the alleged violation of his proprietary tea blend. There are several cases in a dispute originating between Harry Jayawardena, chairman of Stassen Exports (Pvt) Ltd and Stassen International (Pvt) versus Zaki Alif an erstwhile business partner of Mr. Jayawardena and the Directors of OSH Holdings over pertaining to a particular tea brand and tea blend taking many twists and turns.
While a Commercial High Court case is pending on the original trade mark dispute, the complainant Mr. Jayawardena sought and secured an order from the Colombo Magistrate’s court for a search warrant to examine the stores of OSH Holdings and the issuing of summons against Mr.Alif and two directors of OSH Holdinga. At the very outset the parties took up preliminary objection that the case filed against them in the Magistrate Court was malicious and illegal and they should be forthwith released from the case and that the case be dismissed in limine . The Magistrate after listening to submissions on the very first day ordered that Mr.Alif be acquitted from the case, Principally since he had no involvement whatsoever to OSH Holdings and its Directors. The Magistrate further ordered Mr. Jayawardena to pay Mr.Alif compensation in a sum of Rs. 50,000 for a wrongful prosecution. The order pertaining to the acquittal of the two Directors of OSH Holdings is currently pending before the Magistrate Court.
Mr.Alif, one of the founders of Stassens who along with Mr. Raj Obeysekera has been having a long-standing Board room battle with Mr. Jayawardena (another founder). The trio along with the late V.P. Vittachi has had numerous claims and counter claims in court against Mr. Jayawardana. In the latest case filed in the High Court of Colombo by Mr. Jayawardena, Mr.Alif was named as the first accused-respondent and the two Directors of OSH Holdings was named as the 2nd and 3rd respondents. In the new High Court case filed by Mr.Jayawardena, he is seeking to revise the order made by the magistrate acquitting Mr. Alif since there was no evidence to show that he is involved in a company called OSH Holdings.
Counsel appearing for the accused respondents is objecting to even notice being issued in the revision application, and counsel for both parties made nearly three hours submissions last Tuesday. As a preliminary objection, Mr.Marapana PC submitted to court that the petitioner has no right to bring this application to the High Court, because-rightly or wrongly- an order of acquittal of the first accused-respondent Alif was made by the Magistrate and there is no right of appeal unless and otherwise prior written sanction is first received from the Attorney General in terms of Section 318 of the Criminal Procedure Code and that in this instance case the AG has already refused to provide such sanction.
Counsel for the petitioner (Mr. Jayawardena) submitted that the first accused-respondent was acquitted even before the charge had been read out to the accused. Based on that fact the High Court must issue notice and issue a stay order on the Magistrate’s ruling. Mr. Jeevantha Jayatilake, Senior Counsel appearing for the two Directors of OSH Holdings named as the 2nd and 3rd respondents submitted to court that the Magistrate now is in the process of delivering his order pertaining to objections raised by the second and third respondents that they should be acquitted from the proceedings of the Magistrate’s Court. Since this order is pending, the High Court should not issue a stay order. Mr. Jayatilake further submitted to court that since the interim relief prayed for in the High Court exceeds the final relief that is prayed for, that it is well settled law that such interim relief should not be granted.
He said that with regard to Mr. Alif, there has been a suppression of material facts and documents in the revision application filed by the petitioner and also on the basis that the AG has already refused the application to grant for submission under Section 318 of the Criminal Procedure Code to file an appeal. The High Court Judge reserved its order for 28th January pertaining to the objection that the court should neither issue notice on the respondents or a stay order staying the proceedings of the magistrate court. Mr.Nihal Fernando PC and Mr. Duminda Weerasooriya PC appeared for Mr. Harry Jayawardena while Mr.Gamini Marapona PC with Mr.Navin Marapona appeared for the first accused-respondent. Mr.Jeewantha Jayatilleke, Senior Counsel with Mr.Thivanka Polgampola and Mr.Ralitha Amarasena Attorneys-at-Law, appeared for the second and third accused-respondents