117-NLR-NLR-V-54-A.-KARUPPANNAN-et-al-Appellant-and-COMMISSIONER-FOR-REGISTRATION-OF-INDIAN-AND.pdf
Karuppannan v. Commissioner for Registration of Indian and481
'Pakistani Residents
1953Present: Gratiaen J. and Gonasekara J.A. KARUPPANN.AN" et at., Appellants, and COMMISSIONERFOR REGISTRATION OP INDIAN AND PAKISTANIRESIDENTS, Respondent
S. C. 371 and 1,003—Indian and Pakistani Residents'Applications for Registration, Nos. C 816 a/nd N 68 .
Costs—Supreme Court—Inherent jurisdiction to award costs—Courts Ordinance(Cap. 6),s. 19 (b)—Indian and Pakistani Residents (Citizenship) Act, No. 3 of1949, s. 15.
Subject to such statutory limitations as may be prescribed in particularinstances, the Supreme Court possesses inherent power to award costs whenexercising either its original or appellate jurisdiction. Therefore, whendisposing of appeals filed under section 15 of the Indian and Pakistani Residents(Citizenship) Act, the Supreme Court is not precluded from making anappropriate order as to costs.
A
^APPEALS under section 15 of the Indian and Pakistani Residents(Citizenship) Act. They were reserved under section 48 of the CourtsOrdinance for the decision of a Bench of two Judges in regard to aquestion of costs.
N. K. Choksy, Q.C., with C. Shanmuganayagam, H. Rodrigo andMiss J. Somasunderam, for the appellants.
M. Tiruchedvam, Crown Counsel, with V. Tennekoon and J. W.Subasinghe, Crown Counsel, for the respondent.
Cur. adv. vult.
May 15, 1953. The Court pronounced the following order :—
These appeals came up before us, upon a reference by Swan J., for adecision as to whether the Supreme Court, when exercising its appellatejurisdiction under section 15 of the Indian and Pakistani Residents(Citizenship) Act, No. 3 of 1949, has power to award costs.
Section 19 (b) of the Courts Ordinance vests the Supreme Court withan appellate jurisdiction which is limited to the correction of errorsmade by the original Courts ”, that is to say, District Courts, Courts ofRequests and Magistrates’ Courts. This jurisdiction has been enlargedfrom time to tune by later legislation, of which the Indian and PakistaniResidents (Citizenship) Act, No. 3 of 1949, is an example. Many ofthese enactments, including the particular Act under consideration,do not expressly authorise the Court to award costs..
21MV.
2J. K. B 27309—1,592 (6/.r3)
482jKaruppannan v. Commissioner for Registration of Indian and
Pakistani Residents'
Apart from its criminal jurisdiction, conferred by section 19 (a) ofthe Courts Ordinance, the Supreme Court possesses an originaljurisdiction in certain other respects—for example, it is empowered togrant injunctions under section 20, to issue writs in the nature of man-damus, quo warranto, certiorari, procedendo and prohibition, and to orderthe transfer of judicial proceedings from one Court to another (section42). In none of these cases has the Supreme Court been granted expressauthority by the legislature to make appropriate orders as to costs,except to the limited extent whereby it is empowered to impose termsand conditions as to payment of costs when it makes an order for thetransfer of proceedings.
Notwithstanding the absence of express statutory provision, the powerof the Supreme Court to award costs when exercising either its originaljurisdiction or its appellate jurisdiction (under the Courts Ordinanceand also under later legislative enactments) has always been assumed ;indeed it has never been challenged until the present appeals came upfor argument. We conceive, therefore, that the uninterrupted exerciseof this power cannot logically be explained except on the basis that theSupreme Court possesses an inherent jurisdiction in respect of costssubject to such statutory limitations as may be prescribed in particularinstances.
Mr. Tiruchelvam reminds us, and we agree, that the Supreme Court is acreature of statute, and that its jurisdiction in respect of any form of legalproceedings requires a statutory origin. But we do not subscribe to thesuggested corollary that the Supreme Court cannot possess jurisdiction,independent of statute, to award cost3 in appropriate cases. The decisionof a Collective Bench of three Judges in re a Member for the Local Board ofJaffna 1 is specially instructive on this point. At that time, the CourtsOrdinance did not empower the Supreme Court, as it now does, to issuemandates in the nature of quo warranto. The Court ruled that it had“ no power either inherent in it or impliedly given to it by statute ”to issue such a writ. The application was accordingly refused, butwith costs. This authority furnishes cogent proof that the inherentjurisdiction for which Mr. Choksy now contends was recognised nearlyhalf a century ago. Indeed, it is a jurisdiction which the respondenthimself has, until very recently, invoked whenever he was the successfulparty in appeals under the Act, and to which he has submitted withoutcomplaint when his rulings were set aside as being contrary to law.
Reference has been made to certain authorities which explain thejurisdiction of the English Courts to award costs. There appec-rs to beno rule of universal application. In the Courts of common law, forinstance, the power to award costs does not exist apart from statute—London County Council v. Chttrchwardens and Overseers of West Ham2;whereas the Court of Chancery had assumed that power from itscommencement without the aid of the legislature. Encyclopaedia ofthe Laws of England (2nd Edn.) vol. 4 p. 65. The House of Lords is also
(1907) 1 A. C. R. 128.
(1902) 2 Q. B. 173.
Raruppannan v. Commissioner for Registration of Tndian and483
-Pakistani Residents
vested with an inherent jurisdiction, independent of" statute, to awardcosts. Guardians of Westham Union v. Churchwardens, <&c. of BethncdGreen where Lord Herschell said :
“ Costs have been awarded for upwards of two centuries. I seeno foundation on which the power to order their payment can restexcept the inherent authority of this Court as the ultimate Court ofappeal.”.
Lord MaeNaghten agreed, and observed that :
,c The House of Lords, as the highest Court of appeal, has andnecessarily must have an inherent jurisdiction as regards costs.”
The origin of the jurisdiction of the Supreme Court of Ceylon in respectof costs must now be examined. It is declared by section 7 of the CourtsOrdinance to be " the only superior Court of record ” in this country ;in the generality of cases, and for most practical purposes, it is the ultimateCourt of appeal. The unchallenged assumption of the power which ithas exercised in the past to award costs in cases whenever it was notexpressly precluded by statute from doing so in particular instancesmay legitimately be traced, as in the case of the House cf Lords, to aninherent jurisdiction vested in it. The unbroken line of precedentswhich have been brought to our notice is by itself sufficient proof thatthe jurisdiction does exist, and even if it be “ difficult to maintain itupon a nice foundation ” we are content to say, as Lord Hardwickedid in Burford (Corporation of) v. Lenthall 2, that we “ ought to be boundby those precedents, especially as it is in aid of justice ”. The practicehas been observed and recognised without interruption since the Courtwas first established, and there is no justification whatsoever for disturbingthe cursus curiae now.—Migneault v. Malo s.
The respondent claims the protection of the English rule of practiceunder which “ the Crown neither pays nor receives costs ”. The founda-tion of that rule was, apparently, that “ the Crown cannot be made topay costs because what it is doing is due to its prerogative ; the Crownwill not receive costs because it is beneath the dignity of the Crown toreceive them ”. The rule has never, as far as we are aware, been invokedin Ceylon, and in any event it has no bearing on the present issue.Although the respondent is a servant of the Crown, he stands in theposition of any other litigant when he comes before us as a “ publicofficial charged with the performance of a duty imposed by statute ”.
R.v. Commissioners for Special Purposes of Income Tax ; ex parte Dr.Bamardo 's Homes4. Lord Darling expressed his disapproval in thatcase of the technique of persons who “ rely upon the prerogative of theCrowh in order to escape paying costs, but have been content to forgettheir dignity occasionally when it was a question- of receiving them ”.
The final submission made on behalf of the respondent is that he wasnot a necessary party to either of these appeals (a) because his positionis equivalent to that of a judge against whose order an appeal has been
(1896) A. C. 477.» (1872) L. R. 4 P. O. 123.
2 Atk. 551 ( = 26 E. R. 731)* (1920) 1 K. B. 27.
484
Appu Naide, v. Dingiri Naide
preferred, and (6) because in these particular cases it was not he but theAssistant Commissioner who made the orders which Swan J. has setaside. We disagree. He was a proper party to each appeal becausethe relief prayed for was a direction that he should register, the appellantas a citizen of Ceylon in compliance with the statutory duty imposed onhim by the provisions of the Act ; it was necessary and desirable thereforethat he should have been given an opportunity of showing cause againstthe proposed order, and he did in fact enter an appearance in this Courtfor that very purpose. The second part of the argument is but a quibble.Although the erroneous decisions under appeal were made by the AssistantCommissioner, the respondent has completely identified himself withthem by his conduct in resisting the appeals, and Swan J. has in eachcase issued against the respondent himself a direction which must beobeyed..
We hold that this Court, in disposing of appeals filed under section 15of the Act, is not precluded from exercising its inherent jurisdiction tomake an appropriate order as to costs. Let the record now be returnedto Swan J. in order that he may make such orders as to costs uponMr. Choksy ’s applications as he thinks fit. We further direct that therespondent must in any event pay to the appellants their costs of theargument before us.
Application for costs allowed.