notwithstanding anything in Article 138 and subject to anylaw, exercise, appellate and revisionary jurisdiction in respect ofconvictions, sentences and orders entered or imposed byMagistrate’s Courts and Primary Courts within the Province".
A. 154 P (6)-
“Subject to the provisions of the Constitution and any law, anyperson aggrieved by a final order, judgment or sentence of anysuch Court in the exercise of its jurisdiction under paragraph (3)
may appeal therefrom to the Court of Appeal in
accordance with Article 138”.
A. 138(1)-
"The Court of Appeal shall have and exercise subject to theprovisions of the Constitution or of any law, an appellatejurisdiction for the correction of all errors in fact or in law whichshall be committed by the High Court in the exercise of itsappellate or original jurisdiction or by any Court of First Instance,Tribunal or other institution and sole and exclusive cognizance, byway of appeal, revision and restitutio in integrum, of all causes,suits, actions, prosecutions, matters and things of which suchHigh Court. Court of First Instance, Tribunal or other institutionmay have taken cognizance".
In Gunaratne v. Thambinayagam [Supra] the question that cameup for consideration was whether the right of direct appeal to theSupreme Court provided by S.9 of Act No. 19 of 1990 is limited toorders made by the High Court in the exercise of its ‘appellatejurisdiction” in the narrow sense and excluded appeals from ordersmade in the exercise of its “revisionary jurisdiction”. It was held thatS.9 would not confer a right of appeal in respect of revisionary ordersof the High Court. In so deciding, this Court had regard inter alia, tothe following considerations:
The power of revision is an extraordinary power distinct fromthe appellate jurisdiction of the Court.
The right of appeal is a statutory right and must be expresslycreated and granted by statute.
Section 9 refers to orders made in the exercise of theappellate jurisdiction of the High Court. In contrast S.31DD(1) ofthe Industrial Disputes Act as amended by Act No. 32 of 1990(which also provides for direct appeals to the Supreme Court)provides for an appeal from any final order of a High Court, in theexercise of the appellate jurisdiction or its revisionaryjurisdiction, vested in it by law, in relation to an order of a LabourTribunal.
It is thus clear that the expression “appellate jurisdiction" in S.9 ofAct No. 19 of 1990 has a restricted meaning. If so, this Court cannotenlarge the right of appeal granted by that section. It is a matter forParliament. As such, I am unable to agree that the case of Gunarathev. Thambinayagam (Supra) has been wrongly decided. In the instantcase, we are not concerned with the question whether a statutoryright of appeal granted by ordinary law is subject to any limitation.The question here is whether the appellate jurisdiction of the Court ofAppeal under Article 138(1) of the Constitution to entertain appealsmade in terms of Article 154P(6) is restricted and excludes the powerto entertain appeals from revisionary orders of the High Court. If it isso restricted then, it also means that the right of appeal granted byArticle 154P(6) is restricted by Article 138(1).
Conceptually, the expression "appellate jurisdiction" includespowers in appeal and on revision. From the time of the Administration
of Justice Law No. 44 of 1973 it also includes restitutio in integrum.See Sections 36 and 37 of the Courts Ordinance (Cap.6), Sections 11and 354 of the A.J. L. and Articles 138, 139 and 145 of theConstitution. Prior to the 13th amendment when only the Courts ofFirst Instance, Tribunals and other institutions were subject to theappellate jurisdiction of the Court of Appeal, there was no questionthat the Court of Appeal was empowered to exercise its jurisdiction“by way of appeal, revision and restitutio in integrurrf. Under the 13thamendment the High Court of a Province which is vested with powersof appeal as well as revision is not a Court of First Instance. Hence,by a consequential amendment to Article 138(1), that Court also hasbeen made subject to the appellate jurisdiction of the Court ofAppeal. The amendment provides inter alia that “the Court of Appealshall have and exercise … an appellate jurisdiction for the correctionof all errors … which shall be committed by the High Court, in theexercise of its appellate or original jurisdiction”.
The power to review the orders of Magistrate's Courts and PrimaryCourts by way of appeal and revision is conferred on High Courts byArticle 154P (3) (b). Section 3 of Act No. 19 of 1993 extended thispower to orders of Labour Tribunals and orders made under Sections5 and 9 of the Agrarian Services Act. Had these provisions conferredappellate jurisdiction on the High Court to be exercised by way ofappeal and revision, the questions of interpretation of the kind whichhave arisen from time to time may not have arisen. However, the useof the expression “appellate and revisionary jurisdiction" has givenrise to such questions. Whenever such questions arise as to themeaning of a particular provision, the Court has to interpret thestatute and determine its meaning on the basis of the intention ofParliament or the supposed intention of Parliament, having regard tothe language of the statute and relevant rules of interpretation. Asstated in Bindra’s “Interpretation of Statutes” 7th Ed. p.945:
‘It is the duty of the Court to determine in what particular meaningor particular shade of meaning the word or expression was usedby the Constitution makers, and in discharging the duty the Courtwill take into account the context in which it occurs, the subject toserve which it was used, its collocation the general congruity withthe concept or object it was intended to articulate and a host ofother considerations. Above all, the Court will avoid repugnancywith accepted norms of justice and reason".
In the case before us, Article 154P (3) (b) conferred “appellate andrevisionary" jurisdiction on the High Court. Article 154P (6) providesthat any person aggrieved by a decision of the High Court in theexercise of its jurisdiction inter alia, under paragraph (3) (b) mayappeal therefrom to the Court of Appeal in accordance with Article138. Thus Article 154{P) (6) itself has not limited the right of appealgiven by it to orders made by the High Court by way of appeal.However, that Article refers back to Article 138 which spells out thejurisdiction of the Court of Appeal and the manner of its exercise.
Learned counsel for the 1st respondent relies upon the wording ofthe first part of Article 138(1) to argue that the right of appeal givenby Article 154(p) (6) is limited to correcting errors committed by theHigh Court in deciding appeals. This argument is based on the useof the words "appellate jurisdiction for the correction of all errors .. .committed by the High Court in the exercise of its appellate ororiginal jurisdiction". Counsel next cites the second part of Article138(1) which gives the Court “sole and exclusive cognizance by wayof appeal, revision and restitutio in integrum of all causes, suitsactions, prosecutions, matters and things of which such High Court,Court of First Instance, Tribunals or other institution may have takencognizance". He argues that by this part the Court of Appeal is givenappellate and revisionary jurisdiction only with regard to orders madeby the High Court in the exercise of its original jurisdiction.
In my opinion there is no justification for the suggestedconstruction of Article 138(1). In using the expression “appellate ororiginal jurisdiction" Parliament intended to refer to the appellatejurisdiction of the High Court as opposed to its original jurisdiction.These words were not used to limit the appellate jurisdiction of theCourt of Appeal to correct the errors committed by the High Courtonly in respect of decisions given by way of appeal. This is theinterpretation which is most agreeable to justice and reason.
Secondly, there is no warrant for dissecting Article 138(1) into twoparts and holding that the powers of appeal and revision given by thesecond part are limited to decisions given in the exercise of theoriginal jurisdiction of the High Court. The entire Article should beread as a whole. The second part is complementary to the first partand proceeds to give the Court sole and exclusive cognizance over
all the matters referred to in that Article and to spell out the manner ofexercise of the appellate jurisdiction of the Court of Appeal. Thesecond part refers to “such High Court” viz. the High Court havingappellate and original jurisdiction. Accordingly, I hold that the Courtof Appeal has jurisdiction to hear an appeal against a decision of theHigh Court whether given by way of appeal or on revision.
There is also no merit in the submission that Section 74(2) of ActNo. 44 of 1979 is a bar to an appeal to the Court of Appeal from thejudgment of the High Court. That section plainly prohibits an appealfrom a decision of the Primary Court Judge. Such prohibition cannotaffect the right of appeal to the Court of Appeal against a decision ofthe High Court. It is true that the right of appeal given by Article154(P) (6) is subject to any law. However, having regard to its plainmeaning, Section 74(2) cannot be invoked to deprive the appellant’sright of appeal to the Court of Appeal. On the other hand, in theabsence of clear and express provision, it is in the interest of justicethat such right should be upheld rather than denied lest erroneousdecisions of the High Court will be immune from scrutiny by aSuperior Court.
For the foregoing reasons, the questions referred to this court haveto be answered as follows:
The appellant will be entitled to costs in a sum of Rs. 750/- payableby the 1st respondent.
G. P. S. DE SILVA, C. J. -1 agree.
RAMANATHAN, J. -1 agree.
Questions referred answered.