017-SLLR-SLLR-1998-1-ABEYWARDENE-v.-AJITH-DE-SILVA.pdf
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ABEYWARDENE
v.AJ1TH DE SILVA
SUPREME COURT
AMERASINGHE, J., WADUGODAPITIYA, J.,
WIJETUNGA, J., ANANDACOOMARASWAMY. J.
AND SHIRANI BANDARANAYAKE, J.
S.C. SPECIAL LA. NO. 457/9629TH JULY 1997.
Appeal – Article 154 P (3) (b) of the Constitution – Sections 5 and 9 of the HighCourt of the Provinces (Special Provisions) Act No. 19 of 1990 – Appeal froman order of the High Court in the exercise of its revisionary jurisdiction.
The petitioner sought leave to appeal to the Supreme Court from an order madeby the High Court in the exercise of its revisionary jurisdiction.
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Held:
A direct appeal does not lie to the Supreme Court from the order of the HighCourt in the exercise of its revisionary jurisdiction. An appeal from such ordershould be made to the Court of Appeal.
Cases referred to :
Gunaratne v. Thambinayagam and others (1993) 2 Sri LR 355.
Abeygunasekara v. Setunge and others (1997) 1 Sri LR 62.
Yapa v. Ameer and another S.C. Spl. LA. S.C. minutes 5 March 1977.
In Re 13th Amendment to the Constitution (1987) 2 Sri LR 310, 323.
Mariam Beebee v. Seyed Mohamed (1966) 68 NLR 36, 38.
Attorney-General v. Podisingho 51 NLR 385, 388.
Somawathie v. Madawela (1983) 2 Sri LR 15, 26.
Thameena v. Koch (1969) 72 NLR 192.
S.LB.C. v. De Silva (1981) 2 Sri LR 228 (CA).
Nadarajah v. Tilagaratnam (1986) 3 CALR 303 (CA).
APPLICATION for Special Leave to Appeal from the judgment of High Court,Anuradhapura
Mohan Peiris with Shanaka Ranasinghe, Nuwanthi Dias, Nirosha Jayamaha,Jayantha Fernando, Nishada Gamage for the petitioner.
Patrick Fernando with R. E. Thambiratnam for the respondent.
Cur. adv. vutt.
13th October, 1997
ANANDACOOMARASWAMY, J.
This is an application for Special Leave to Appeal from the order ofthe learned High Court Judge of Anuradhapura dated 5th August,1996. When this application was supported for special leave beforea Bench consisting of Amerasinghe, J., Anandacoomaraswamy, J. andGunawardena, J., Counsel for the respondent raised a preliminaryobjection namely that the petitioner had filed this application in thewrong forum, for the petitioner should have first appealed to the Courtof Appeal and thereafter if he was unsuccessful come to this courtif he so desired. He relied on the decision of this court (Kulatunga,J. with whom G. P. S. de Silva CJ., and Ramanathan, J. agreed)in the case of Gunaratne v. Thambinayagam and othersIn that caseit was held : 1
1. "The right of appeal is a statutory right and must beexpressly created and granted by statute.
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2. S. 9 of Act No. 19 of 1990 does not give a right of appealto the Supreme Court from an order of the High Courtin the exercise of its revisionary jurisdiction11.
He also relied on the decision of this court by the same Benchin the case of Ananda Gordon Abeygunasekera v. Adikari MudaligeDon Mervyn Joseph Setunga and two others!2'. In that case, this Courtanswered the following two questions referred to this court by the Courtof Appeal in the affirmative:
"Does the Court of Appeal have an appellate jurisdictionin terms of Article 138 (1) of the Constitution as amendedby the 13th amendment in respect of a decision ofthe provincial High Court made in the exercise of itsrevisionary jurisdiction?
Does a party aggrieved by a decision of the provincialHigh Court given in respect of a matter coming withinPart VII of the Primary Courts Procedure Act, have a rightof appeal to the Court of Appeal in terms of Article154 P (6) of the Constitution as amended by the 13thamendment read with section 74 (2) of the Primary CourtsProcedure Act?".
In that case it was argued that Gunaratne v. Thambinayagam(supra) was wrongly decided.
Learned counsel for the respondent also relied on the decision ofthis court (Fernando, J., Wadugodapitiya, J., Perera, J.) in Yapa v.Ameer and another**1. Where the Court held that according to thedecision in Gunaratne v. Thambinayagam {supra) there is no suchright of appeal and the Court agreed with that decision.
Learned counsel for the petitioner submitted that the cases reliedon by learned counsel for the respondent were wrongly decided. Inview of his submission that Bench requested His Lordship the ChiefJustice to consider appointing a fuller Bench to consider the followingquestion :
"Does a direct appeal lie to the Supreme Court from an orderof the High Court in the exercise of its revisionary jurisdictionwithout appealing to the Court of Appeal".
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In view of this request His Lordship The Chief Justice nominatedthis Bench to hear and determine the question of law.
At the outset I must say that these three decisions are rightand that if in consequence of these decisions there would be anundesirable increase of litigation, that is the matter for the legislature.
In the instant case a dispute relating to land had been referredto the Magistrate's Court of Anuradhapura in terms of section 66 (1)(b) of the Primary Courts Procedure Act, No. 44 of 1979. Therespondent in that case raised an objection stating that the Magistratelacked jurisdiction to inquire into the matter. That objection was overruledand the respondent filed an application in the High Court ofAnuradhapura for the revision of the said order. The learned HighCourt Judge allowed the application for revision and set aside theorder of the learned Magistrate. It is from the order of the learnedHigh Court Judge that the petitioner has filed this application in thiscourt for special leave to appeal.
The question before this court is whether a direct appeal lies tothis court from an order of the High Court in the exercise of itsrevisionary jurisdiction without first preferring an appeal to the Courtof Appeal.
There is no right of appeal from an order of the Primary CourtJudge by reason of the provisions of section 74 (2) of the PrimaryCourts Procedure Act, No. 44 of 1979. However, parties appeal tothe Court of Appeal by way of revision under Article 138 of theConstitution read with Article 145 to have the order set aside.After the 13th Amendment, section 5 of the High Court of theProvinces (Special Provisions) Act No. 19 of 1990 read with Article154P (3) (b) of the Constitution (enacted by the 13th Amendment)entitled him to file such application in the High Court of the province.The jurisdiction of the High Court in the matter is concurrent. In Rethe 13th Amendment to the Constitution.(4) In the result, he mayfile an application in the Court of Appeal or in the High Court.Article 154P establishes a High Court for each province. Article154P (3) (b) states as follows:-
"Every such High Court shall-
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notwithstanding anything in Article 138 and subject to any law,exercise, appellate and revisionary jurisdiction in respect of con-victions, sentences and orders entered or imposed by Magistrate'sCourts and Primary Courts within the province".
Article 154P (6) states as follows
"Subject to the provisions of the Constitution and any law,any person aggrieved by a final order, judgment or sentence ofany such court, in the exercise of its jurisdiction under paragraphs
(b) . . . may appeal to the Court of Appeal in accordance withArticle 138".
After the 13th Amendment, appeals to the Court of Appeal fromHigh Courts established by Article 154P of the Constitution weregoverned by the Court of Appeal (Procedure for appeals from HighCourts established by Article 154P of the Constitution) Rules, 1988made by the Supreme Court and published in Gazette ExtraordinaryNo. 549/6 of 13.03.89. This was followed by Act No. 19 of 1990.Section 9 of Act No. 19 of 1990 provides for a direct appeal to theSupreme Court from any final or interlocutory order, judgment, decreeor sentence of a High Court established by Article 154P of theConstitution in the exercise of the appellate jurisdiction vested in itby Article 154P (3) (b) or s. 3 of the Act or any other law. s. 10provides as follows
“The Supreme Court shall, subject to the Constitution bethe final court of appellate jurisdiction within Sri Lanka forthe correction of all errors in fact or in law which shall becommitted by a High Court established by Article 154P ofthe Constitution, in the exercise of the appellate jurisdictionvested in it by paragraph (3) (b) of Article 154P of theConstitution or section 3 of this Act, or any other law andthe judgments and orders of the Supreme Court shall, in suchcases, be final and conclusive in all such matters.
The Supreme Court shall, in the exercise of its jurisdiction,have sole and exclusive cognizance by way of appeal fromany order, judgment, decree or sentence made by a HighCourt established by Article 154P of the Constitution, in theexercise of the appellate jurisdiction vested in such High Courtby paragraph (3) (b) of Article 154P of the Constitution orsection 3 of this Act or any other law and it may affirm, reverse
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or vary any such order, judgment, decree or sentence of suchHigh Court and may issue such directions to such High Courtor Court of First Instance or order a new trial or further hearingin any proceedings as the justice of the case may requireand may also call for and admit fresh or additional evidenceif the interests of justice so demands and may in such event,direct that such evidence be recorded by such High Court,or any Court of First Instance".
The cumulative effect of the provisions of Articles 154P (3) (b),154P (6) and section 9 of Act No. 19 of 1990 is that, while thereis a right of appeal to the Supreme Court from the orders, etc., ofthe High Court established by Article 154P of the Constitution in theexercise of the appellate jurisdiction vested in it by Article 154P
(b) or Section 3 of Act No. 19 of 1990 or any other law, thereis no right of appeal to the Supreme Court from the orders in theexercise of the revisionary jurisdiction. An appeal from an order ofthe High Court in the exercise of its revisionary jurisdiction shouldbe made to the Court of Appeal. An appeal to the Supreme Courtfrom the decision of the Court of Appeal would lie, with leave.
It is contended on behalf of the petitioner that the expression"appellate jurisdiction" (as opposed to “Original Jurisdiction") wouldordinarily include the power to review decisions by way of appeal,revision or restitutio in integrum. I do not agree with this submission.Article 154P (3) (b) refers to "appellate" and "revisionary" jurisdiction,but “revisionary jurisdiction" is omitted in section 9 of Act No. 19 of1990. The omission, in my view, is not inconsequential, for jurisdictionin respect of revision is distinct from appellate jurisdiction (MariamBeebee v. Seyed Mohamed(5>. Vide also Somawathie v. Madawelaf61and Attorney-General v. PodisinghcP>.
Prior to the enactment of section 3 of Act No. 19 of 19^0, theremedy by way of revision was not available against the order of aLabour Tribunal: Vide Thameena v. KochfB>, S.L.B.C. v. De Silva191 andNadarajah v. Tilagaratnaml,0>. Section 3 of Act No. 19 of 1990 vestedin the High Court (in addition to appellate jurisdiction), revisionaryjurisdiction in respect of the orders of Labour Tribunal and ordersmade under sections 5 and 9 of the Agrarian Services Act. Further,while section 9 of Act No. 19 of 1990 does not give a right of appealto the Supreme Court from an order of the High Court made in theexercise of its revisionary jurisdiction, section 31D of the IndustrialDisputes Act as amended by Act No. 32 of 1990 (which also providesfor direct appeals to the Supreme Court) provides as follows :
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“Any workman, trade union or employer who is aggrieved byany final order of a High Court established under Article 154P ofthe Constitution, in the exercise of the appellate jurisdiction vestedin it by law or in the exercise of its revisionary jurisdiction vestedin it by law, in relation to an order of a Labour Tribunal, may appealtherefrom to the Supreme Court with the leave of the High Courtor the Supreme Court first had and obtained".
It will thus be seen that if a litigant invokes the revisionary juris-diction of the Court of Appeal, he has one chance for an appeal tothe Supreme Court, whereas if he invokes the revisionary jurisdictionof the High Court he will have two chances of appeal, one to theCourt of Appeal and then to the Supreme Court, except when therevisionary jurisdiction of the High Court is invoked in relation to anorder of a Labour Tribunal, in which case there is only one appealand that too to the Supreme Court only.
It is further seen that the legislature did intend to have the rightof appeal to the Court of Appeal from a revisionary order of the HighCourt except when the revisionary jurisdiction of the High Court isinvoked in relation to an order of a Labour Tribunal.
In response to the question placed before this court, I hold thata direct appeal does not lie to the Supreme Court from the orderof the High Court in the exercise of the revisonary jurisdiction. Anappeal from the order of the High Court in the exercise of itsrevisionary jurisdiction should be made to the Court of Appeal. Wherea party is dissatisfied with the order of the Court of Appeal, the partymay, with leave of the Court of Appeal or when such leave is refusedby the Court of Appeal, with leave of the Supreme Court, appeal tothe Supreme Court.
For the foregoing reasons I am of opinion that the preliminaryobjection must be upheld.
Special Leave to Appeal is therefore refused, with costs fixedat Rs. 5,250/-.
AMERASINGHE, J. – I agree.
WADUGODAPITIYA, J. – I agree.
WIJETUNGA, J. – I agree.
BANDARANAYAKE, J. – I agree.
Special leave to appeal refused.