AMEEN AND OTHERS v. MALSHIP (CEYLON) LTD

009-SLLR-SLLR-1982-2-AMEEN-AND-OTHERS-v.-MALSHIP-CEYLON-LTD.pdf


S(
Wiekramaratne r. Thiivendrurajtih iSiinuimkimn, ( / j
483
AMEEN AND OTHERS
v.
MALSHIP (CEYLON) LTD.
SUPREME COURT
WIMALARATNE, J., RATWATTE, J., AND SOZA. J.
S.C. NO. 91/81.
CA/LA/NO. 92/81 (SC) – CA/LAJ113/81D C. COLOMBO NO. 1893/SPL.
MAY 21, 1982.
Stamp duty – Should an application for leave 'to appeal be stamped?
Held –
That as sub-head A of Part'll of the Schedule'of the Stamp <irdmance doesnot provide for stamping of applications for-leave to appeal oi; -noiices of appealno stamp duty is necessary for legv,e; to^ appeal or notices of appeal..Thfi levyof stamp duty is governed by the Ipttef,.oLfh^jp^n^^J,b’spirit..’
53-
484
Sri Lanka Law Reports
(1982) 2 S L R.
Cues referred to:
Partington v. Attorney-General (1869) IV English and Irish Appeals (H.L.) 100,122
Tennant v. Smith (1892) A.C. ISO, 154.
APPEAL from order of Court of Appeal
P. Somatilakam for petitioncrs-appellants.
Douglas Premaratne, D.S.G. (appears as Amicus Curiae).
June 15, 1982.
soza, j.
Cur. adv. uvlt
The only point raised in this appeal is whether an application forleave to appeal should be stamped* The Court of Appeal has heldthat such applications should bear class stamps.
At the time the Stamp Ordinance was passed in 1909, the CivilProcedure Code No.2 of 1889 was in force. Under the provisions ofthis Code a party aggrieved by ‘‘any judgment, decree or order ofany original court” could file a petition of appeal to the SupremeCourt – seg section 754(1). Whether the appeal was from a finaljudgment, decree or order or from an interlocutory judgment, decreeor order, the provision was for filing a petition of appeal. In itsSchedule A Part II the Stamp Ordinance enumerated the stampduties payable on law proceedings. For the civil proceedings in DistrictCourts itemised under sub-head A of this Part the stamp dutiespayable were set out. item 19 refers to petitions of appeal as beingliable to stamp duty varying in value according to the scale set outagainst this item. As notices of appeal and applications for leave toappeal were not steps in procedure prescribed by the statute as itstood then, there is no reference to them.
On 1.1.1974 the Administration of Justice Law, No.44 of 1973came into force. By section 3(l)(b) of this Law sections 753 to 778of the Civil Procedure Code were repealed. Henceforth appeals tothe Supreme Court against any judgment of an original court wereto be lodged by giving a notice of appeal (sections 317(1) and 318)while appeals from an order,made by an original court in the courseof any civil action, proceeding or matter were possible only with theleave of the Supreme Court first had and obtained upon an applicationfor leave to appeal (sections 317(2) and 326(1)). Sections 323(1) and326fl V of the Administration of Justice Law stioulate that a notice
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Ameen and Others v. Malship (Ceylon) ltd. (Soza. ./ )
485
of appeal and an application for leave to appeal respectively had tobear a stamp of the prescribed denomination. Although there wasthis requirement of a stamp of the prescribed denomination therewas no legal stipulation prescribing the denomination of stamps thatshould be affixed. The Stamp Ordinance was not appropriatelyamended. Therefore no stamp duty was payable on notices of appealor applications for leave to appeal under the Administration of JusticeLaw, No.44 of 1973.
When the Administration of Justice Law was taken off the Statutebook and the Civil Procedure Code was revived by Law No. 19 of1977 and amended by Law No.20 of 1977 the provisions in regardto appeals underwent a change. Under the provisions of the CivilProcedure Code as amended appeals from any final judgmentpronounced by any original court in any civil action, proceeding ormatter had to be preferred by lodging a notice of appeal followedwithin sixty days by a petition of appeal (sections 754(1), (5), 755(1)and (3)). The notice of appeal had to be duly stamped but thepetition of appeal was exempt from stamp duty. Appeals' from anyorder (not a final judgment) of any original court made in the courseof any civil action, proceeding or matter were possible with the leaveof the Supreme Court first had and obtained upon a duly stampedapplication for leave to appeal (sections 754(2),(5) 756(2)). Needlessto say the reference to the Supreme Court in the provisions of theCivil Procedure Code must be read_ as a reference to the Court ofAppeal constituted under the Constitution of 1978 (Article 169). TheCivil Procedure Code now operative provides that notices of appealand applications for leave to appeal shall be duly stamped. Theexpression “duly stamped’’ means here “stamped according to law".No consequential amendment to the Stamp Ordinance was made andthere is no statutory provision stipulating the denomination of stampsthat should be affixed. The Stamp Ordinance still carries provisionfor stamping only petitions of appeal but these too are now exemptfrom stamp duty by virtue of section 755(3) of the Civil Procedure Code.
So far as civil proceedings in the Supreme Court go there are onlyfourteen items made subject to stamp duty in Part 11 of ScheduleA of the Stamp Ordinance. The Stamp duty is uniform for all theitems according to the class. But it is wrong to assume Jhat as allthese fourteen items are subject to stamp duty at a uniform rateeven papers not so itemised should be presumed to be subject tostamp duty at the same rate. The fourteen items in question do not
486
Sri Lanka Law Reports
(1982) 2 S L R.
make an exhaustive list. 1 can find no justification for th.e view thatall papers filed in the Supreme Court have to be stamped. Onlythose expressly enumerated have to be stamped. If the Legislaturewanted'^!!. papers filed in the Supreme Court to be stamped, itwould^have said so. This surely cannot be presumed. Applicationsfor leave to appeal are not referred to at all in the enumeration ofpapers -that have to be stamped. The levy of stamp duty to beeffective must be imposed in clear and express terms. In this connectionthe oft-quoted words of Lord Cairns in Partington v. Attorney-General £) bear repetition:
‘….as I understand the principle of all fiscal legislation, it isthis: If the. person sought to be taxed comes within the letterof- the law he must be taxed, however great the hardship mayappear, .to the judicial mind to be. On the other hand, if theCrown, seeking to recover the tax, cannot bring the subjectwithin the letter of the • law, the subject is free, howeverapparently .within the spirit of the law the case might otherwiseappear tarjbe. In other words, if there be admissible, in anystatute, what is-called an equitable construction, certainly sucha construction is not admissible in a taxing statute, where youcan simply adhere to the words of the statute.”
A similar approach was adopted by Lord Halsbury speaking fromthe Woolsack' in the case of Tennant v Smith (2).
“In various cases the principle of construction of .a taxing Acthas been referred to in various forms, but I believe they maybe all reduced to this, that inasmuch as you have no right toassume that there is any governing object which ,a taxing Actis intended to attain other than that which it has expressedby making such and such objects the intended subject fortaxation, you must see whether a tax is expressly imposed.
Cases, therefore, under the Taxing Acts always resolvethemselves into a question whether or not the words of theAct have reached the alleged subject of taxation.”
In the instant case the reference to petitions of appeal in sub-headA of Part 11 of Schedule A of the. Stamp Ordinance is not wideenough to reach notices of appeal and applications for leave to appealas subjects of taxation. The levy of stamp duty is governed by theletter of the law and not by its spirit. In construing a taxing statuteone cannot bend its plain language to suit what the Legislature may
CA
Aleckman i Kochchikade Town ( ntiiwil
487
have contemplated or intended. .To do so would be to' crossT’heRubicon which divides the province of the Judge fronv. thqtoftheLegislator.-
The appeal is therefore allowed. The Attorney-General wasrepresented before us as amicus curiae on our direction. Thereforethere will be no costs cither here or in the Court of Appeal.
WIMALARATNE, J — I agree.
RATWATTE, J. — 1 agree.
Appeal allowed.