514Sri Lanka Law Reports(19X2) 2 S L R.
BANK OF CEYLON
SHARVANANDA, J., WIMALARATNE, J., VICTOR PERERA, J., ANDSOZA, J.
SC.. REF. ,6/82 ^ C.A.NQ.. 325/74 (F) – D.C. COLOMBO No. 73754/M.OCTOBER 26, 1982.
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Interpretation – ‘Question of law' – When does such a question become a ‘substantial'question of law?
Cases referred to:
Chunilal Metha v. Century Shipping & Manufacturing Co. Ltd. (1962) A./.R.SC 1314.
Subbaro v. Veeraju (1951) AIR Madras 969.
REFERENCE under Article 125 (1) of the Constitution bv the Court of Appealto the Supreme Court.
H.L. de Silva, S.A. with K. Kanag-Iswaran and S. Mahenthiran forplaintiff-petitioner, i
H. W. Jayewardene, Q.C., with J. W. Subasinghe, S.A., K.N. Choksy, S.A.,L.C. Seneviratne and Lakshaman Perera for defendant-respondent.
November 15, 1982
SHARVANANDA, J. read .the following unanimous determinationof the Court on the questions referred to it by the Court ofAppeal.■•
The following questions have been referred to us in terms of the..provisions of Article . 125 (1) of the Constitution by the Court of• Appeal for determination:
What constitutes a “question of law” within the meaningof the provisions of Article 128 (1) of the Constitution?
When does such a question of law become a “substantial”question of law, within the meaning of the provisions ofthe said Article?
What are the tests adopted on that behalf?
When is a judgment of the Court of Appeal said to. involve such a question of law, as is contemplated in• the provisions of the said Article to the Constitution?-
5C('oilcues l.itl. t Hunk of Ceylon (Shurvunumlu. 1.)515
We accordingly determine the above questions referred to us asfollows:-
1. , “Questions of Law'
The “Law” in this context means the General Law and not.merelyStatute Law..
The proper legal effect of a proVed fact is necessarily aquestion of law. A question of law. is to be distinguishedfrom a question of “fact”. Questions, of law and questionsof facts are sometimes difficult to disentangle.
Inferences from the primary facts found are mattcrs of law.
The question whether the tribunal has misdirected itselfon the law or the facts or misunderstood thenf 'br hastaken into account irrelevant considerations or has failedto take into account relevant considerations or has reacheda conclusion which no reasonable tribunal directing itselfproperly on law could have reached or that it has gonefundamentally wrong in certain other respects is a questionof law. Given the primary facts, the question whether thetribunal rightly exercised its discretion is a question of law.
Whether the evidence is in the legal sense sufficient to-support a determination of fact is a question of law.
If in order to arrive at a conclusion on facts it is necessaryto construe a document of title or correspondence .thenthe construction of the document or.correspondence becomesa. question of law.
Every question of legal interpretation which arises afterthe primary facts have been established is a question of law.
Whether there is or is not evidence to support a finding,is a question of law.
Whether the provisions of a statute apply to the . facts;what is the proper interpretati®n of a statutory provision;what is the scope and effect, of such provision are allquestions of law.
Whether the evidence had been properly admitted orexcluded or there is misdirection as to the burden of, proofare all questions of law.
Sri Lanka Law Reports
(1982) 2 S L R.
"The Substantial Question of Law"
It is not enough if a mere question of law is involved, it must bea substantial one. Whether a particular question of law is substantialor not must depend on the circumstances of each case. No absoluteor exhaustive definition or test of “substantial” question of law canbe formulated. All that this Court can do is to set down someguidelines for its ascertainment.
Since an appeal on a question of law is intended to be a beneficialremedy, the provisions of Article 128 (1) of the Constitution haveto be interpreted broadly and liberally.
We have derived valuable assistance in this connection from thejudgment of the Supreme Court of India in Chunilal Mehta vs.Century Shipping & Manufacturing Co. Ltd. (1). That Court afterreviewing earlier authorities framed a test for identifying a substantialquestion of law. We respectfully adopt the test. It is stated at page1318: “The proper test for determining whether a question of law.raised in the case is substantial would be whether it is of generalpublic importance or whether it directly or substantially affects therights of the parties and, if so, -whether it is either an open questionin the sense that it is not finally settled by the Supreme Court orby the Privy Council or is -not free from difficulty or calls fordiscussions of alternative views. If the question is settled by theHighest Court or the general principles to be applied in determiningthe questions are well settled and there is a mere question of applyingthose principles or the plea raised is palpably absurd, then thequestion would not be a ‘substantial question of law.’ ” That Courtquoted with approval the view of the Madras High Court expressedin Subbarao vs. Veeraju (2). “When a question of law is fairlyarguable, where there is room for difference of opinion on it orwhere the Courts below thought it necessary to deal with the questionat some length and discuss alternative views, then the question wouldbe a substantial question of law! On the other hand if the questionwas practically covered by. the decisions of the Highest Court or ifthe general principles to be applied in determining the question arewell settled and the only question was of applying those principlesto the particular facts of the case, it would not be a substantialquestion of law.”
The following tests, may, in our view, be applied in determiningwhether a question of law is substantial or not. (It is to be notedthat these tests are not exhaustive).
Collettes Lid. v. Bank <>f Ceylon (Sharvananda. J.)
A question of law which has been definitely settled by
the Supreme Court or in respect of which there is nodifference of opinion is not a substantial question oflaw. It should be such as to impress the Court that itis debatable in view of the authorities or that theauthorities themselves may require reconsideration. Itmust be such that there may be some doubt or differenceof opinion or there is room for difference of opinion
A question of law will not be substantial merely bemusemuch is at stake on the answer to it.
The world “substantial” docs not imply that the questionof law must be of general interst or importance. It issufficient if a substantial question of law, as betweenthe parties to the litigation is involved. This howeverdoes not mean that every question of law as betweenthe parties is a substantial question. A question of lawis substantial between the parties if the decision turnsone way or another on the particular view taken ofthe law. If it does not affect the decision, then it cannotbe substantial as between the parties. An important ordifficult question would of course be a substantialquestion; but even if a question is not important ordifficult, if there is room for reasonable difference ofopinion on the question then it would be a substantialquestion of law.
If there is a conflict of judicial opinion and there isno direct decision of the Highest Court on the questionof law raised then there would be a substantial questionof law.
If the question of law raised is a question of law directlyand substantially affecting the rights of the parties andif it is an open question in the sense that it is notfinally settled by the Supreme Court or is not freefrom difficulties or calls for discussion of alternativeviews then, it is a mere question of applying well settledprinciples. If the plea raised is palpably absurd, thequestion would not be a substantial question of law.
Orders passed in the exercise of the discretion of theCourt do not ordinarily involve a substantial questionof law but a question whether a Court could in law,
(1982) 2 S.L.R.
Sri Lanka Law Reports
exercise any discretion at all in a given case, is asubstantial question of law.
Objections on the ground of defects in the form orprocedure are not substantial questions of law, unlesssuch defects appear to have greatly prejudiced any party.
A question as to prescription or jurisdiction may be asubstantial question of law.
Whether the construction of documents is or is not asubstantial question of law depends upon the facts ofeach case. If the document in question is a documentof title or the very foundation of the action, its meaningmay involve a substantial question of law.
Questions as to the status of parties or the applicabilityof any point of law or provision "bf a statute may raisesubstantial questions of law.
When a particular set of facts can lead to alternativefindings of law, then a substantial question of law wouldbe involved.
Where the case has occupied the court for a very longtime and on which there is a very elaborate judgment,it cannot be argued that no substantial question of lawis involved by endeavouring to demonstrate that on themerits of the case the decision sought to. .be appealedfrom is “obviously right”.
Whether the judgment contains anything ex facie badin law which bears on the determination is a substantialquestion of law. If the facts .'found are such that noperson acting judicially and properly instructed as torelevant law could have come to the determinationunder appeal, then a substantial question of law ariseson the ground that there has been some misconceptionof the law and this has. been responsible for thedetermination.
:(xiv). Where there is no evidence to support the .determinationor where the evidence is inconsistent with or contradictoryof the determination or where the true and only reasonableconclusion contradicts the determination, a substantialquestion of law is involved.
Collettes Ltd. r. Bank of Ceylon (Shantmanda, J.)
The word ‘involve' implies a considerable degree of necessity. Themere circumstance that a question of law is raised in a- case wouldnot justify the inference that the proposed appeal involves a substantialquestion of law, unless it is necessary to decide the question of lawfor a proper decision of the case. The test is not merely the importanceof the question but its importance to the case itself. If the decisionof the case depended upon a consideration of that point it WQuIdbe deemed to be “involved.” If on the other hand there is o.njy. aremote contingency of it being taken into consideration, it will notanswer the test.
Determination sent to Court of Appeal.