HALWAN AND OTHERS
COURT OF APPEALS.N. SILVA, J.
CA APPLICATION NO. 780/88
WB NO. WB/165/86
17th MAY. 17th JUNE. 19™ AUGUST AND
06™ SEPTEMBER 1991
Certiorari and Mandamus – Wakfs Board – Wakfs Tribunal ■ MuslimMosque and Charitable Trusts or Wakfs Act No. 51 of 1956 as amendedby Acts 21 of 1960 and 33 of 1982 – Section 9D(1). 9C, 9H(1). 13. 14(1) -Trustees – Sheik of Beruwala – Thakkiya – “Calipha" ofMalwana – AppealandJudicial Review – Judgments and orders – Judicature Act S. 23 -Article140 of the Constitution – Rule 47 of the Supreme Court Rules.
The Muslim Mosque and Charitable Trusts or Wakfs Act provides, interalia, for the registration of Mosques, Muslim shrines and places ofreligious resort. It also provides for the appointment of trustees ofregistered Mosques. In terms of section 14(1) it is the duty of the WakfsBoard to confirm and appoint a person or persons to be a Trustee orTrustees of a Mosque as soon as such a mosque is registered in termsof section 13. The Wakfs Board is also empowered to revoke theappointment of a Trustee and to appoint new Trustees.
An appeal lies from the decision of the Wakfs Board to the Wakfs Tribunalin terms of section 9H(1) of the Act.
The Wakfs Tribunal is established in terms of section 9D(1) of theAmendment Act No. 33 1982 where it is stated that the member of theTribunal shall be appointed by the Judicial Service Commission. Section9G provides that in all proceedings under the Act the Tribunal shallfollow the procedure of a District Court. It is further provided that theTribunal shall have all the powers of a District Court as provided for inthe Civil Procedure Code in regard to the execution of orders andjudgments.
Under section 55A introduced by the Amendment Act No. 33 of 1982every order made by the Tribunal is deemed to be an order made by aDistrict Court. This will attract the provisions of Section 23 of the
Halwan and Others v. Kateelul Rahuman (S.N. Silva, J.)
Judicature Act and a party dissatisfied with an order will have a right ofappeal to the Appeal Court. However the provisions in relation to appealsfrom judgments of the District Court have not been brought in but onlythe provisions in relation to appeals from orders have been madeapplicable. The provisions of the Civil Procedure Code that relateexclusively to appeals from any order of an original court and thecommon provisions with regard to appeals from any order and anyjudgment of such court, will apply mutatis mutandis, to and in relationto an appeal from an order of the Tribunal.
Unlike in England where the basis of review by the Prerogative writs isthe common while appeals are in terms of the statute in Sri Lanka bothremedies are statute based. In our context it is appropriate to describethe appellate jurisdiction as the ordinary jurisdiction and review by wayof writs of certiorari, prohibition and mandamus (vide section 140 of theConstitution) as the extraordinary jurisdiction.
A party dissatisfied with judgment or order, where a right of appeal isgiven either directly or with leave obtained has to invoke and pursue theappellate jurisdiction. When such a party seeks judicial review by way ofan application for a writ, he has to establish an excuse for his failure toinvoke and pursue the appellate jurisdiction. Such excuse should bepleaded in the petition seeking judicial review and be supported byaffidavits and necessary documents. The same principle is applicable toinstances where the law provides for a right of appeal from a decision ororder of an institution or an officer, to a statutory tribunal. The reasonis that such appellate procedure as established by law being theordinary procedure should be availed of before recourse is had to theextraordinary jurisdiction by way of judicial review as provided in Article140 of the Constitution.
When notice of appeal or a leave to application is filed, it is a first steptaken to invoke the jurisdiction of the Court. It is incumbent on apetitioner to disclose this fact. Under Rule 47 where there is an avermentthat the jurisdiction of the Court of Appeal has not been invoked inrespect of the same matter and it is false and incorrect the application canbe dismissed. Hence for non-disclosure and the false and incorrectaverment, the application can be dismissed.
Cases referred to :
Preston v. Inland Revenue Commissioners (1985) 2 All ER 327, 337
R.V. Secretary of State (1986) 1 All ER 713. 723, 724
R.V. Epping and Harlow General Comrs (1987) 3 All ER 257. 262
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APPLICATION for Writs of Certiorari and Mandamus.
H.L. de Silva. P.C. with Javid Yusuf for Petitioners.
K. Kanag-Iswaran. P.C. with M.SA. Hassan & Farook Thahir for 151 to 5thRespondents.
Cur. adv. vult.
November 01, 1991.
S.N. SILVA, J.The eleven petitioners filed this application for Writs ofCertiorari and Mandamus. The Writs of Certiorari Eire to quashthe orders dated 03. 01. 1988 (P4) and 06. 04. 1988 (P5) madeby the Wakfs Board and the Wakfs Tribunal respectively.
The petitioners claim to be the persons elected as Trusteesof the Ulahitiwela Jumma Mosque, Malwana, by the Jamath,on 22. 12. 1985. They made an application to the Wakfs Boardin terms of section 14(1) of the Muslim Mosque and CharitableTrusts or Wakfs Act No. 51 of 1956 as amended by Act,Numbered 21 of 1960 and 34 of 1982. The 1st to 5thRespondents filed another application opposing theapplication of the petitioners for confirmation as Trustees andmoving that the Board confirms as Trustees the personsnominated by a person styled the Sheik of Beruwala. There isa sharp conflict in the claims made by both parties. Whilst thepetitioners state that the mosque was constructed during theperiod beginning in 1979 and ending in 1985, the 1st to 5threspondents state that the place of worship is in fact aThakkiya about 80 years old constructed by the Sheik beingthe spiritual leader of a particular religious order. It issubmitted by these Respondents that the Sheik and hissuccessors reside in Maligahena, Beruwala and nominate theTrustees of the Thakkiya on the advise of a person styled the“Calipha” of Malwana.
The Wakfs Board inquired into the application, objectionsand counter application and, by its order ‘P4’ refused to
Halwan and Others u. Kaleelul Rahuman (S.N. Silva, J.)
confirm the petitioners as the Trustees. The Board furtherdirected that nominations be called for from the Sheik forpersons to be appointed as Trustees. It appears that the mainbasis of the decision of the Board is that both parties admittedthat upto 02. 06. 1985 the practice had been for the Trusteesto be appointed by the Sheik. The petitioners appealed fromthat order to the Wakfs Tribunal established under section 9Dof the Act. The appeal was argued before the Tribunal andboth parties were represented by Counsel. Counsel for thepetitioners submitted that section 14(l)(a) of the Act appliesonly in respect of the first appointment of Trustees uponregistration. The Tribunal held against this submission anddismissed the appeal. The order of the Board was confirmed bythe Tribunal.
The Petitioners filed this application on 22. 07. 1988 andit was supported for notice on 29. 07. 1988. On that day theCourt directed the issue of notice. It is also recorded that “astay order is entered in terms of paragraph ‘c It is to be notedthat the petition does not contain a prayer for interim relief andthat paragraph ‘C’ is a prayer for costs. The Respondentsappeared on 27. 10. 1988 and moved for time to file objections.On 29. 11. 1988 it was directed that the matter be listed forhearing, in January, 1988. It appears that this order was notcomplied with. On 22. 11. 1989 the petitioners tendered anamended petition without notice to the respondents. In theamended petition there is a prayer for a stay order in respectof the order marked ‘AT dated 04.08. 1988 made by the WakfsBoard appointing five persons as trustees on the basis of theprevious orders ‘P4’ and ‘P5’. The motion for amendment wassupported on 23. 11. 1989 and when the respondents were notpresent the amendment was allowed. A stay order was issuedas prayed for in the prayer to the amended petition. This stayorder has thereafter been extended from time to time. Therespondents have filed further objections to the stay order andto the amended petition on the basis that they did not receiveprior notice of it.
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When this matter was argued, learned President’sCounsel for 1st to 5th respondents raised a preliminaryobjection on the ground that the petitioners cannot seek tochallenge the orders marked ‘P4’ and ‘P5’ by way of judicialreview since they have a right of appeal to this Court from theorder (P5) of the Tribunal. It was further submitted that thepetitioners have sought to exercise that right of appeal, firstlyby filing a notice of appeal dated 14. 04. 88 in the Tribunal andsecondly by filing a leave to appeal application on 22. 07. 88in this Court (CA/LA 86/88). A further ground relied upon bythe respondents is that the averments in the petition andaffidavit that the jurisdiction of this Court has not beenpreviously invoked is incorrect. It is submitted that thepetitioners had to make a full disclosure regarding the stepstaken by them to file appeals from the impugned order and thatthe application should fail for a contravention of Rule 47 of theSupreme Court Rules. Learned Counsel also complained of themanner in which the amended petition was filed and interimrelief on the amended petition obtained, without notice tothem.
Learned President’s Counsel for the petitioners submittedthat the jurisdiction of this Court is not invoked by merelyfiling an application for leave to appeal or by serving a noticeof appeal, if nothing further is done by the appellants toprosecute the appeal. It was further submitted that there is anambiguity in the provisions of section 55A of'the Act whichprovides for an appeal and that the petitioners cannot befaulted for not resorting to that procedure.
I have carefully considered the submissions both oral andwritten, addressed by learned President’s Counsel regardingthe preliminary objection raised by learned President’sCounsel for the 1st to 5th Respondents.
The Muslim Mosque and Charitable Trusts or Wakfs Actprovides inter alia, for the registration of Mosques, Muslimshrines and places of religious resort. It also provides for theappointment of Trustees of registered Mosques. In terms of
Halwan and Others v. Kaleehd Rahuman (S.N. Silva, J.)
section 14(1) it is the duty of the Wakfs Board to confirm andappoint a person or persons to be a Trustee or Trustees of aMosque as soon as such a Mosque is registered in terms ofSection 13. The Wakfs Board is also empowered to revoke theappointment of a Trustee and to appoint new Trustees. Thepetitioners admit the jurisdiction of the Board in the matter ofconfirmation and appointment of Trustees. They invoked thejurisdiction of the Board in this regard by their application forconfirmation as trustees. When objections were raised theyparticipated in a protracted inquiry before the Board in regardto the matter. When the Board held against the Petitionersthey appealed to the Tribunal in terms of section 9H(1) of theAct.
The Wakfs Tribunal is established in terms of section9D(1) of the Amendment Act No. 33 of 1982 where it is statedthat the members of the Tribunal shall be appointed by theJudicial Service Commission. Section 9G provides that in allproceedings under the Act the Tribunal shall follow theprocedure of a District Court. It is further provided that theTribunal shall have all the powers of a District Court asprovided for in the Civil Procedure Code is regard to theexecution of orders and judgments.
Section 55A also introduced by the Amendment Act No. 33of 1982 states as follows:
“55A. Eveiy order made by the Tribunal shall be deemedto be an order made by a District Court and the provisions ofthe Civil Procedure Code governing appeals from orders andjudgments of a District Court shall, mutatis mutandis, applyto and in relation to appeals from orders of the Tribunal".
This section contains two main elements. The first issubstantive in nature. It deems every order made by theTribunal to be an order made by a District Court. This willattract the provisions of section 23 of the Judicature Act anda party dissatisfied with an order will have a right of appeal tothis Court. The second element is procedural in nature and it
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states that the provisions of the Civil Procedure Code “shallmutatis mutandis, apply to and in relation to orders of theTribunal".
The submission of learned President's Counsel for thepetitioners is that the words preceding the foregoing wordsthat refer to “the provisions of the Civil Procedure Codegoverning appeals from orders and judgments of a DistrictCourt” have the effect of introducing provisions in relation toboth types of appeals, namely, appeals from judgments andappeals from orders as found in the Civil Procedure Code. Thissubmission ignores the basic division in the content of thesection. The substantive element deems every order of theTribunal to be an order of a District Court. The proceduralelement cannot have the effect of altering the substantiveelement and the section will not have the effect of introducingboth appellate procedures with regard to orders of a Tribunal.Statutory provisions should be interpreted so as to removepossible ambiguilty and not to introduce or advance anambiguity. The words relied upon by learned President'sCounsel should be considered in the light of the provisions ofthe Civil Procedure Code that are made applicable and in thecontext of the remaining portions of the section and not inisolation.
On an examination of the provisions of the Civil ProcedureCode with regard to appeals it is seen that section 754(2) andsection 756(2), (3), (4), (5), (6) and (7) apply exclusively inrelation to applications for leave to appeal from orders of anoriginal court. Section 754(1), (3) and (4) 755, 756(1) and 757apply exclusively in relation to appeals from judgments of theoriginal court. The other provisions are applicable in relationto both types of appeals. For instance, section 758(1) withregard to the contents of a petition is applicable to both typesof appeals. The provisions from section 765 to 767 with regardto appeals notwithstanding lapse of time apply to both typesof appeals. Similarly the provisions with regard to hearing ofappeals in Chapter 61 are applicable to both types of appeals.These provisions are thus applicable to orders and judgmentsof an original court.
Halwan and Others v. Kaleelvl Rahuman (S.N. Silva, J.)
The effect of the words “mutatis mutandis" appearing insection 55A and referred above is to make the relevantprovisions of the Civil Procedure Code applicable with duealteration of detail. What is relevant has to be determined bythe substantive element of the section which deems everyorder of the Tribunal to be an order of the District Court.Therefore the provisions of the Civil Procedure Code that relateexclusively to appeals from any order of an priginal court andthe common provisions with regard to appeals from any orderand any judgment of such court, will apply mutatis mutandis,to and in relation to an appeal from an order of the Tribunal.
The Petitioners have in fact filed a notice of appeal inthe Tribunal from the order marked ‘P5 According to theproceedings of the Tribunal (X2), on 15. 08. 1988 the Tribunalrejected this notice because a petition of appeal had not beenfiled within a period of 60 days. The Petitioners also filed a leaveto appeal application, (CA/LA 86/88), as noted above on22. 07. 1988 being the same date on which this applicationwas filed. The application for leave to appeal was submitted toa Judge as required by section 756(5) of the Civil ProcedureCode and an order was made that it should be supported inopen court within two weeks. It appears that this applicationhas not yet been supported for the issue of notice. Thus it isseen that the petitioners have had recourse to both types ofappeals. They have failed to pursue either appeal withdiligence. The leave to appeal application which appears tohave been filed out of time is yet in abeyance. The question thatarises for consideration is whether the Petitioners can haveand maintain this application for Writs of Certiorari in view ofthe right of appeal they have in terms of section 55A of theMuslim Mosque and Charitable Trusts or Wakfs Act read withsection 23 of the Judicature Act.
Learned President’s Counsel for the Respondents hascited several recent decisions in England where it has beenheld that judicial review will not be granted (by way of an
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application for a Writ of Certiorari) in instances where analternative statutory remedy is available. In the case ofPreston v. Inland Revenue Commissionersn>. Lord Templemanobserved that “judicial review should not be granted where analternative remedy is available . . . Judicial review should notbe allowed to supplant the normal statutory appealprocedure." In the same case Lord Scarman (at p330) observedthat it is “a proposition of great importance that a remedy byway of judicial review is not to be made available where analternative remedy exists”, and that “it will only be very rarelythat courts will allow the collateral process of judicial reviewto be used to attack an appealable decision". In the case ofR. v. Secretary of State121 at 723/724, Donaldson M.R. observedthat”. . . It is well established that, in giving or refusingleave to appeal for judicial review account must be taken ofalternative remedies available to the applicant. This aspectwas considered by this Court very recently. . . and it was heldthat the jurisdiction would not be exercised when there was analternative remedy by way of appeal, save in exceptionalcircumstances. By definition, exceptional circumstancesdefy definition, but, where Parliament provides an appealprocedure, judicial review will have no place . . .". In the caseof R. v. Epping and Harlow General Comrs131, Donaldoson M.R.has observed that” But it is a cardinal principle that, save inthe most exceptional circumstances that jurisdiction will notbe exercised where other remedies were available and have notbeen used”.
Learned President’s Counsel for the Petitioners hassubmitted that these observations should be understood inthe context of the particular cases. He referred to the followingpassages appearing in Administrative Law by H. W. R. Wade, 6thEdition (1988) pages 709 and 712:
“Such a discretionary power (i. e. declining to intervene)
(brackets supplied) may make inroad upon the rule of law
and must therefore be exercised with the greatest care."
Haluian and Others v. Kaleelul Rahuman (S.N. Silva, J.)
“First principles dictate that there should be no rulerequiring the exhaustion of administrative remediesbefore judicial review can be granted. A vital aspect of therule of law is that illegal administrative action can bechallenged in the Court as soon as it is threatened. Thereis therefore no need first to pursue any administrativeprocedure or appeal in order to see whether the action willin the end be taken or not. An administrative appeal on themerits of the case is something quite different from judicialdetermination of the legality of the whole matter.”
The learned author has followed the preceding passagewith extracts of some of the dicta cited above. This section ispreceded with the following comment by the author:
“Recently the case law has produced a crop of judicialstatements which conflict with this rule just explained”(p 714).
Upon an examination of the dicta he makes the followingcomment:
“None of these dicta appear to recognise that appeal andreview have radically different purposes; that appealis concerned with merits while review is concernedwith legality; that review is the primary mechanism forenforcing the rule of law under the inherent jurisdiction ofthe Court while appeal is a statutory adjunct with no suchfundamental role.” (p715).
The foregoing dicta comments and observations have allbeen made in relation to instances where an appeal lies as apart of the administrative machinery, to a statutory tribunaland not (as in this instance) to a Superior Court. However ina later section of the same book (page 945 and 946) ProfessorWade repeats the same observation (without elaboration) withregard to instances where the statute gives a right of appeal tothe High Court. He has not (in this section) cited any instancewhere relief has been granted by way of judicial review to an
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aggrieved party who has not pursued a statutory right ofappeal to a Superior Court. Learned President's Counsel forthe Petitioners has also not drawn my attention to any suchcase.
The observations of Professor Wade (appearing in the1988 edition of his work and referred above) should beunderstood in the context of the basis and evolution of thetwo reliefs – appeal and judicial review, in England. Theinstruments of judicial review being the prerogative Writs ofMandamus, Certiorari and Prohibition and the ordinaryremedy of damages were granted by the Kings Bench Divisionand available to persons who wished to dispute the legality ofadministrative acts of Justices of peace and of such otherauthorities as there were. The Crown is yet the nominalplaintiff in applications for these remedies.
The basis of this review is the Common law. Proceduralinnovations were made most significantly by the SupremeCourt Act of 1981 which unified remedies of prerogative writswith the remedies of declaration and injunction by permittinga single application to be made for such remedies to the HighCourt. On the other hand, an appeal is entirely statute based.It is in this context that Professor Wade has described theremedy by way of appeal as a “statutory adjunct with no suchfundamental role”.
In Sri Lanka both remedies are statute based. Article138(1) of the Constitution vests an appellant jurisdiction inthis Court “for the correction of all errors in fact and in lawwhich shall be committed by any Court of First Instance.Tribunal or other …”. Similarly Article 140 vests in this Court“full power and authority to inspect and examine the recordsof any Court of First Instance or Tribunal or other institutionand grant and issue, according to law, orders in the nature ofWrits of Certiorari, Prohibition, Procedendo Mandamus andQuo warranto against the Judge of any Court of First Instance,or tribunal or other institution or any other person.” There is
Halwan and Others v. Kaleelul Rahuman (S.N. SUoa, J.)
a cursus curiae that In granting these orders the Court willfollow the applicable principles of English Law. However thispractice does not alter the basis of jurisdiction which remainsstatutory. In this statutory scheme, where a party dissatisfiedwith a Judgment or order has a right of appeal either directlyor with leave obtained as in this instances, the appellatejurisdiction of this court extends to the correction of “all errorsin fact or in law” committed by the Court, tribunal orinstitution that delivered the judgment or order. Therefore theobservations of Professor Wade that appeal and review are twodistinct procedures, appeal being concerned with merits andreview being concerned with legality (as stated at p. 36, 715and 946) are not quite appropriate in our statutory context.The appellate jurisdiction save in instances where it isrestricted to questions of law will encompass the merits andthe legality of the impugned order. In our context it isappropriate to describe the appellate jurisdiction as theordinary jurisdiction and review by way of Writs of Certiorari,Prohibition and Mandamus (vide Article 140 of theConstitution) as the extraordinary jurisdiction. A partydissatisfied with a judgment or order, where a right of appealis given either directly or with leave obtained, has to invoke andpursue the appellate jurisdiction. When such party seeksJudicial review by way of an application for a Writ as providedin Article 140 of the Constitution he has to establish an excusefor his failure to invoke and pursue the appellate jurisdiction.Such excuse should be pleaded in the petition seeking judicialreview and be supported by affidavits and necessarydocuments. In any event, where such a party has failed toinvoke and pursue the appellate jurisdiction the extraordinaryJurisdiction by way of review will be exercised only inexceptional circumstances such as, where the court, tribunalor other institution has acted without jurisdiction or contraryto the principles of natural justice resulting in an order that isvoid. The same principle is in my view applicable to instanceswhere the law provides for a right of appeal from a decision ororder of an institution or an officer, to a statutory tribunal. The
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reason is that such appellate procedure as established by lawbeing the ordinary procedure should be availed of beforerecourse .is had to the extraordinary jurisdiction by way ofjudicial review as provided in Article 140 of the Constitution.The remedy by way of judicial review should not be allowed tosupplant the normal statutory appeal procedure and shouldbe available only in exceptional circumstances as noted above.
In this .case the petitioners have neither pleaded norestablished any excuse for not pursuing the right of appealthey had in respect of the order ‘P5’. They have also failed toplead any exceptional grounds that warrant the exercise of theextraordinary jurisdiction of this Court. For that matter, theypossibly cannot plead lack of jurisdiction on the part of theBoard or the Tribunal, being the persons who invoked thejurisdiction of these institutions. There is also no allegation ofa violation of the principles of natural justice.
The other matter to be considered is the failure of thepetitioners to make disclosure of the attempts made by themto invoke the jurisdiction of this Court. As noted above theyfiled a notice of appeal in the Tribunal which was rejected. Inaddition they filed a leave to appeal application in this verycourt which has not been supported. These matters shouldnecessarily be disclosed. Rule 47 of the Supreme Court Rulesprovides that the petition and affidavit “shall contain anaverment that the jurisdiction of the Court of Appeal has notbeen invoked in respect of the same matter. Where such anaverment is found to be false and incorrect the application maybe dismissed.”
The submission of learned President’s Counsel for thepetitioners is that a mere filing of a notice of appeal or anapplication for leave to appeal is not an invocation of thejurisdiction of this Court. I cannot accept this submission. Thefiling of a notice of appeal or a leave to appeal application arethe first steps taken to invoke the jurisdiction of this Court.Therefore it was incumbent on the Petitioners to disclose these
Halwan and Others v. Kaleelul Rahuman (S.N. Sitoa. J.)
matters in the application for judicial review. The petitionershave failed to do so and have even obtained interim relief fromthis Court without such disclosure. In these circumstances Iam of the view that the provisions of Rule 47 should be appliedagainst the petitioners and that this application should in anyevent be dismissed on that ground.
For the reasons stated above I uphold the preliminaryobjections raised by learned President’s Counsel for the 1st to5th respondents and dismiss this application without goinginto the merits. The petitioners will pay to the 1st to 5threspondents a sum of Rs. 2500/- by way of costs.
HALWAN AND OTHERS v. KALEELUL RAHUMAN