PARAMESWARY AND OTHERS
COURT OF APPEAL.W1GNESWARAN, J.TILAKAWARDENA. J.CA. 1055/98.
P. C. JAFFNA 713.28th JANUARY. 2000.
Constitution, Articles 138. 154P. 154PI3) (b) – Thirteenth Amendment ■Jurisdiction of the Court of Appeal exercising Reulsionary Jurisdiction overOrders of Primary Court – Is the jurisdiction of Court of Appeal ousted -Is jurisdiction vested only in the High Court – Concurrent or paralleljurisdiction – High Court of the Provinces (Special Provisions) Act 19ofl 990- S. 12(a) – Transfer of case – “Expedient to do“.
On the preliminary objection that the Court of Appeal has no jurisdictionto entertain the transfer application –
Despite Article 138 of the Constitution. Article 154P(3)b gavethe High Court of a Province a parallel or concurrent jurisdiclionto hear applications by way of an appeal or Revision regardingorders made by a Primary Court within the Province. In effect bothcourts were conferred concurrent jurisdiction in respect of thesematters.
The High Court of the Provinces (Special Provisions) Act No. 19 of1990 – certified on 15.5.1990 – was brought into make provisionregarding the procedure to be followed in and the right to appealto and from the High Court established under Article 154Pof the Constitution.
After conferring by S.4 – S.5 of Act No. 19 of 1990 – a right of appealfrom an order made by the Primary Court to the High Courtestablished under Article 154P. S.5 of Act 19 of 1990 providedsimilar procedures to be adopted in the High Court, as followed in
Ramallngam u. Parameswary and Others
the Court of Appeal with regard to such appeal or revision relatingto orders made by Primary Courts.
When S. 12(a) of Act, No. 19 of 1990 – provides for a transfer of a casefiled in the Court of Appeal to the appropriate High Court, (he mainconsideration which should attract the attention of the Courtof Appeal when deciding whether a case before it should betransferred should be the convenience of parties. Easing theworkload of the Court of Appeal cannot be an adequate ground -that would be a most unfortunate selfish ground.
Per Wigneswaran, J.
"To order the transfer of this case to the High Court of Northern Provinceholden at Vavuniya would be the height of insensitivity on the part ofthis Court. The Primary Court which made the impugned order is thePrimary Court of Jaffna. The very fact that there is no High Courtfunctioning in Jaffna but only in peripheral Vavuniya must no doubt betaken into consideration in consonance with the difficulty facedby persons to obtain security clearance to stay beyond 24 hours atVavuniya.”
“High Court functioning in a peripheral area (at Vavuniya) beingcalled upon to overlook the work of an appropriate Court (in Jaffna) forcertain exigencies cannot be considered as the appropriate High Courtestablished under the Law in terms of S. 12 of 19 of 1990."
APPLICATION in Revision from the Order of the Primary Court of Jaffna,under Article 138 of the Constitution.
P. Siualoganathan for Petitioner.
S. Mahenthiran for Is'and 3rd Respondents.
Cur. adv. uult.
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May 30, 2000.
WIGNESWARAN. J.This Revision Application was filed on 14.10.1998 beforethis Court in respect of an order made by the PrimaryCourt Judge, Point Pedro dated 14.9.1998. Counsel for thePetitioner having supported this matter on 21.10.1998 theCourt issued notice on the Respondents returnable on27.11.1998.
On 27.11.1998 the Counsel for the Respondents movedfor two months’ time to file objections stating that theRespondents were residing in Jaffna and communication withthem was difficult. Consequently 29.1.1999 was fixed as thedate for objections. On that day Counsel for Respondentsmoved for further time to file objections. The date was extendeduntil 02/03/1999. Thereafter owing to the proceedings in theoriginal Court being in Tamil the case was transferred to beheard before this Bench by the President of the Court of Appealon 07.09.1999.
A preliminary objection was taken up by the Counselfor the Respondents on 16.12.1999 stating that thiscase should not be entertained by this Court. Writtensubmissions were called for and thereafter filed by therespective Counsel.
The arguments placed by the learned Counsel for theRespondents are as follows:
1. The Thirteenth Amendment to the Constitution of this
country devolved judicial power earlier vested in the Court
of Appeal (Article 138) to the Provincial High Courts.
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Proviso to Section 12(a) of Act No. 19 of 1990 empoweredthis Court to transfer cases falling within the jurisdictionof High Courts to the appropriate High Courts.
Not to transfer such cases to the appropriate HighCourts would (i) equate one of the Superior Courts, theCourt of Appeal, to the High Courts, (ii) unduly burdenthe work-load of the Court of Appeal (iii) deprivethe High Court of the Northern Province holden atVavunia of the devolved judicial matters falling withinits jurisdiction.
Judgment of this Court in C. A. Revision 686/97 (PrimaryCourt, Jaffna Case No. 139) was also referred to.
These arguments would presently be examined.
Article 138 of the Constitution of the DemocraticSocialist Republic of Sri Lanka certified on 31.8.1978 readsas follows:
(1) The Court of Appeal shall have and exercise subject tothe provisions of the Constitution or of any law, anappellate jurisdiction for the correction of all errors infact or in law which shall be committed by any Courtof First Instance, tribunal or other Institution and soleand exclusive cognizance, by way of appeal, revisionand restitutio in integrum, of all causes, suits, actions,prosecutions, matters and things of which such Courtof First Instance, tribunal or other institution mayhave taken cognizance:
Provided that no judgment, decree or order of anycourt shall be reversed or varied on account of anyerror, defect or irregularity, which has not prejudicedthe substantial rights of the parties or occasioned afailure of justice.
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(2) The Court of Appeal shall also have and exercise allsuch powers and jurisdiction, appellate and original,as Parliament may by law vest or ordain.
By the Thirteenth Amendment certified on 14.11.1987the following new Article 154P was incorporated into theConstitution:
There shall be a High Court for each Province witheffect from the date on which this Chapter comes intoforce. Bach such High Court shall be designated as theHigh Court of the relevant Province.
The Chief Justice shall nominate, from amongJudges of the High Court of Sri Lanka such number ofJudges as may be necessary to each such High Court.Every such Judge shall be transferable by the ChiefJustice.
Every such High Court shall:
exercise according to law, the original criminaljurisdiction of the High Court of Sri Lanka inrespect of offences committed within the Province;
notwithstanding anything in Article 138 andsubject to any law, exercise, appellate andrevisionary jurisdiction in respect of convictions,sentences and orders entered or imposed byMagistrates Courts and Primary Courts within theProvince;
exercise such other jurisdiction and powers asParliament may, by law, provide.
Every such High Court shall have jurisdiction to issue,according to law-
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orders in the nature of habeas corpus, in respectof persons illegally detained within the Province;and
orders in the nature of writs of certiorari,prohibition, procedendo, mandamus and quowarranto against any person exercising, withinthe Province, any power under-
any law; or
any statutes made by the Provincial Councilestablished for that Province,
in respect of any matter set out in the ProvincialCouncil List.
The Judicial Service Commission may delegate tosuch High Court, the power to inspect and report on,the administration of any Court of First Instancewithin the Province.
Subject to the provisions of the Constitution and anylaw, any person aggrieved by a final order, judgmentor sentence of any such Court in the exercise of itsjurisdiction under paragraphs (3) (b) or (3) (c) or (4) mayappeal therefrom to the Court of Appeal in accordancewith Article 138.
Thus despite Article 138 of the Constitution. Article 154 P
(b) gave High Court of a Province a parallel or concurrentjurisdiction to hear applications by way of an appeal orrevision regarding orders made by Primary Courts within theProvince.
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The High Court of the Provinces (Special Provisions) ActNo. 19 of 1990 certified on 15.5.1990 was brought in “to makeprovision regarding the procedure to be followed in and theright to appeal to. and from the High Court established underArticle 154 P of the Constitution"
After conferring by Section 4 a right of appeal from anorder made by the Primary Court to the High Court establishedunder Article 154 P of the Constitution, Section 5 of the saidAct No. 19 of 1990 provided similar procedures to be adoptedin the High Court as followed in the Court of Appeal, withregard to such appeal or revision relating to orders made byPrimary Courts.
Section 12 of the said Act No. 19 of 1990 referred toprocedure to be adopted in case an appeal or application inrespect of the same matter is filed in Court of Appeal and in theHigh Court. The said section is as follows:
(a) Where any appeal or application is filed in the Courtof Appeal and an appeal or application in respect ofthe same matter has been filed in a High Courtestablished by Article 154 P of the Constitutioninvoking jurisdiction vested in that Court byparagraph (3) (b) or (4) of Article 154 P of theConstitution, within the time allowed for the filing ofsuch appeal or application, and the hearing of suchappeal or application by such High Court has notcommenced, the Court of Appeal may proceed to hearand determine such appeal or application or where itconsiders it expedient to do so, direct such High Courtto hear and determine such appeal or application:
Provided, however, that where any appeal or applicationwhich is within the jurisdiction of a High Court establishedCA
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by Article 154 P of the Constitution is filed in the Court ofAppeal, the Court of Appeal may if it considers it expedientto do so, order that such appeal or application betransferred to such High Court and such High Court shallhear and determine such appeal or application,
Where the Court of Appeal decides to hear anddetermine any such appeal or application, as providedfor in paragraph (a), the proceedings pending in theHigh Court shall stand removed to the Court of Appealfor its determination.
No appeal shall lie from the decision of the Court ofAppeal under this section to hear and determine suchappeal or application or to transfer it to a High Court.
Nothing in the preceding provisions of this sectionshall be read and construed as empowering the Courtof Appeal to direct a High Court established by Article154 P of the Constitution to hear and determine anyappeal preferred to the Court of Appeal from an ordermade by such High Court in the exercise of thejurisdiction conferred on it by paragraph (4) of Article154 P of the Constitution.
It is to be noted that the power given under Article 138 ofthe Constitution to the Court of Appeal to hear and determineapplications in revision against orders made by PrimaryCourts was not in any way taken away by either the ThirteenthAmendment or Act No. 19 of 1990. In effect both Courtswere conferred concurrent jurisdiction in respect of thesematters.
When section 12(a) and its proviso in Act No. 19 of 1990speaks of considering “it expedient to do so” the phrase must
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be properly understood. “Expedient” as an adjective meanssuitable or advisable. As a noun it means that which servesto promote. It also connotes the means suitable to an end.It would be unethical to define the phrase "expedient to do so"as that which serves to promote a selfish end. The mainconsideration which should attract the attention of the Courtof Appeal when deciding whether a case before it should betransferred to an appropriate High Court should be theconvenience of parties. Easing the work-load of the Court ofAppeal cannot be an adequate ground. That would be a mostunfortunate selfish ground. Further, the alleged equation of aSuperior Appellate Court to the High Court of a Provinceneed not be considered demeaning or debasing. The wholepurpose of the Thirteenth Amendment establishing a HighCourt in every province was to confer jurisdiction in respect ofcertain matters in the High Court granting it concurrentjurisdiction with the Court of Appeal. When concurrent orparallel jurisdiction is given by Law to two Courts the questionof a superior and inferior Court would not arise. As far as thejurisdiction granted to the two Courts in certain matters goes,they are equal. Even the question of depriving the High Courtof the Northern Province of a devolved judicial matter need notconcern us unless the Court of Appeal arbitrarily wishes toarrogate to itself jurisdiction in preference to the High Court forsome questionable reason.
The only consideration, to our mind, that shouldreceive our attention when we deem a matter to be “expedientto do so” should be the convenience of parties. So long asthe law had not detracted nor taken away a particularjurisdiction from the Court of Appeal and conferred itexclusively on the High Court, it might be assumed that bothCourts could hear such cases subject to convenience ofparties. If parties have a ready forum closer to them such aforum is to be preferred rather than the forum far away fromtheir residences.
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Thus the only matter to receive our consideration in thisconnection should be whether parties would be prejudiced byhaving this matter decided in this Court.
The learned Counsel for the Petitioner has drawn ourattention to paragraph 7 of the Petition dated 14th day ofOctober 1998 which reads as follows:
“The Petitioner is compelled to make this applicationto your Lordships’ Court direct as there is no High Courtfunctioning in Jaffna, the High Court holden in Vavuniya Isbeyond the reach of the Petitioner as he has to come to Colomboand obtain security clearance to enter Vavuniyaand no more than a day will be permitted for his stay inVavuniyafor security reasons and as your Lordships' Court isvested with concurrent appellate and revisionary jurisdictionto enable them to make this application in respect of thismatter".
With the passing of the Emergency (MiscellaneousProvisions and Powers) Regulation No. 1 of2000 on 03.05.2000,published in Gazette Extra Ordinary No. 1130/8, underSection 5 of the Public Security Ordinance, the position of alitigant, resident in the Northern Province has become evenmore pathetic. He has to face inter alia ad hoc curfews,restrictions on movements; control over communicationsincluding telecommunications and daily news publications.The very fact that there is no High Court functioning in Jaffnabut only in peripheral Vavunia must no doubt be taken intoconsideration in consonance with the difficulty faced bypersons to obtain security clearance to stay beyond 24 hoursin Vavuniya. To order a transfer of this case to the High Courtof Northern Province holden at Vavuniya would be height ofinsensitivity on the part of this Court. We are aware that incases such as C. A. Revision No. 686/97 which was referred to
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by the learned Counsel for the Respondent, the relevantrecords have still' not reached the appropriate High Court ofNorthern Erovinces holden in Vavunia even after eight monthssince the order was made. We are satisfied that litigantsfrom the Jaffna Peninsula would be adversely affected ifwe were to make order transferring this applicaiton to theHigh Court holden in Vavuniya.
Even though learned Counsel for the Respondents hadin paragraph 28 of his written submissions referred to thefact that he had attended Courts in Vavuniya and had notencountered any difficulties in conducting his professionalduties there, we pre not sure that he had made such visits toVavunia after .the passing of Regulation No. 1 of 2000. In anyevent, this Court has already considered this matter andissued hcftice on the Respondents. Further, there had been noconnected application pending in the High Court holden atVavunia when such steps were taken before this Court.Furthermore, a High Court functioning in a peripheralarea (at Vavuniya) being called upon to overlook the workof an appropriate High Court (in Jaffna) for certainexigencies cannot be considered as the appropriate HighCourt established under the law in terms of Section 12 ofAct No. 19 of 1990.
Therefore we are of opinion that even though the ThirteenthAmendment devolved judicial power earlier vested in theCourt of Appeal to Provincial High Courts and proviso toSec. 12(a) of Act No. 19 of 1990 empowered this Court totransfer rertain types of cases to the appropriate High Courtif considered expedient to do so, yet the use of discretionby this Court to transfer such cases must consider inter aliathe convenience of parties. We are of opinion that when anorder to transfer is made by this Court under the provisions ofAct No. 19 of 1990 it must not be founded on the convenience
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of the CourKof Appeal but on adequate grounds favourableto the litigants.
There would n<5t be any beneficial results that may accrueto the litigants bv such a transfer in this instance. In fact theywould be greatly prejudiced under the present circumstancesif a transfer is ordered.
We therefore .refuse the application made by the learnedCounsel for the Respondents to transfer this case to theHigh Court" of Northern Province holden at Vavuniya anddismiss the preliminary objection raised by the learnedCounsel.
TILAKAWARDANA, j.I agree.
Preliminary roojection overruled. Application to transfer caserefused?
RAMALINGAM v. PARAMESWARY AND OTHERS