026-SLLR-SLLR-1996-V-2-FERNANDO-v.-SYBIL-FERNANDO-AND-2-OTHERS.pdf
FERNANDO
V.
SYBIL FERNANDO AND 2 OTHERS
COURT OF APPEAL.
SENANAYAKE, J.
EDUSSURIYA, J.
A. 56/89 F
C. COLOMBO 3356/ZLMARCH 13, 1996.
Civil Procedure Code – S.24,27(2), 27(1), 28, 755(1) and 759(2) AmendmentNo. 79 of 1988 – Administration of Justice Law S.323(1) – Notice of Appealsigned by Appellant – Registered Attorney-airLaw on Record – are thereexceptional Circumstances?
A preliminary objection was taken that the Notice of appeal was signed bythe Appellant himself when there was a proxy filed by the Registered AttorneyX and therefore the appeal should be rejected as there is no valid notice ofappeal.
Held:
There are no exceptional circumstances averred. One could understandif at the relevant time the Registered Attorney-at-Law was out of the islandor that he had been hospitalised which necessitates the Appellant himselfsigning the Notice of appeal.
S.24 of the Civil Procedure Code gives the freedom to a party to makeany appearance or application or appear in Court unless the law authorisedthat he should be expressly represented by an Attorney-at-Law. But oncean Attorney-at-Law was duly appointed by the party concerned he foregoeshis rights to tender and sign the Notice of appeal when the RegisteredAttorney-at-Law is alive and his proxy remains on record without beingrevoked.
Per Senanayake, J.“In my view the lapse referred earlier goes to the basic validity of the Noticeand Petition of Appeal and as such it is not curable in terms of S.755 andS.759(2) of Act No. 79 of 1988 (Amendment). It is a well accepted principleof interpretation that the statute has to be read as a whole and that everyclause should be construed with reference to the context and the other
clauses of the Act, so far as possible to make a consistent enactment ofthe whole Statute.”
AN APPEAL from the judgment of the District Court of Colombo.
Cases referred to:
Reid v. Samsudeen 1 NLR 292.
Kusumawathie v. Nawaratne, S.C. 16/90 S.C.M. 16.10.1990.
Sharpe v. Wakefield -1891 A.C. 173.
Silva v. Kumaratunga 40 NLR 139.
Reginahamy v. Jayawardane 1917 4 C.W. R. 390.
Seelawathie v. Jayasinghe 1985 2 S.L.R. 266.
Hameed v. Deen – 1988 – 2 S.L.R. 1.
Somawathie v. Buwaneswari 1990 – 1 S.L.R. 223.
Romesh de Silva, P.C. with C. Wijeratne for Appellant.
P.A.D. Samarasekara, P.C. with Keerthi Sri Gunawardane for Respondent.
May 10,1996.
SENANAYAKE, J.
This is an appeal from the Judgment of the learned District Judgeof Colombo. When this appeal was taken up for hearing the Court broughtto the notice of the learned counsel for the Appellant that the notice ofappeal in terms of Section 755 (1) of the Civil Procedure Code hasbeen signed by the Appellant when at the relevant time there was aproxy filed by the Registered Attorney-at-Law Mr. Nimal Siripala deSilva. Therefore the question arose whether the Appellant could proceedwith this appeal. The learned counsel for the Appellant indicated toCourt that he had been taken by surprise since there was no objectiontaken by the Respondent. He moved to tender written submissionsand the Court granted both parties time to tender written submissions.
The learned Counsel’s submission was that when the matter cameup for hearing the Respondents did not take up this objection and thatthe notice of appeal was filed in 1989 and even at that stage no objectionwas taken by the Respondent.
In perusing the record I find that during the relevant time theAppellant’s Registered Attorney was Mr. Nimal Siripala de Silva whose
proxy was on record. The journal entry 105 of the record indicates on28.02.1989 the Plaintiff-Appellant had tendered to Court the Notice ofAppeal and on 26.02.1989 the cash receipt for security and bond weretendered to Court by the said Attorney-at-Law and the motion signedby Attorney-at-Law. But though the Notice of Appeal was not signedby the Registered Attorney-at-Law but by the Appellant himself therewas no excuse as to why the Attorney on record did not sign the Noticeof Appeal. There were no exceptional circumstances averred. One couldunderstand if at the relevant time the Registered Attorney-at-Law wasout of the Island or that he had been hospitalized which necessitatedthe Appellant himself signing the Notice of Appeal. The facts disclosedon the record clearly establish that the Registered Attorney at therelevant time was in active practice. This was a deliberate act by theAppellant.
The learned Counsel for the Appellant sought permission to tenderNotice of Appeal duly signed by the present Registered Attorney-at-Law. I am of the view that such an application cannot be entertained inlaw at this stage, this would be contrary to the provisions of the CivilProcedure Code.
The learned Counsel in his written submissions had contendedthat this was a case highly contested and several witnesses were calledby either side and deals with a very valuable land, a commercial premisessituated in Maradana.
I do not see any relevance of the said submissions to the questionin issue. The value of the property or the highly contested nature ofthis case has no bearing to the crucial question in issue. The CivilProcedure Code gives any party a right to conduct his own case and inthe event the Judgment of the Original Court is adverse to him he couldin terms of Section 755(1) tender a Notice of Appeal and file a Petitionof Appeal himself and present his case and make his submissionsbefore the Court of Appeal. But in the instant case there was aRegistered Attorney-at-Law who had filed the proxy and was conductingand taking all necessary steps in terms of the Provisions of the CivilProcedure Code on behalf of the Appellant. Section 27(1) of the CivilProcedure Code and 27(2) provide how an appointment is made andhow it could be revoked. Section 28 sets out that all proceedings standsuspended for a period of 30 days in case of incapacity or death of theAttomey-at-Law on record.
Section 24 of the Civil Procedure Code gives the freedom to a partyto make any appearance or application or appear in Court unless thelaw authorized that he should be expressly represented by an Attorney-at-Law. But once an Attomey-at-Law was duly appointed by the partyconcerned he foregoes his rights to tender and sign the Notice of Appealwhen the Registered Attorney-at-Law is alive and his proxy remains ona record without being revoked.
The learned Counsel for the Appellant submitted that the CivilProcedure Code from time immemorial was used by a party to obtainjustice. He relied on the Judgment of Reid v. SumsudeerP) and referredto the observation of Bonser C.J. at Page 294:- “It is not the duty of aJudge to draw technical conditions in the way of administration of justicebut where he sees that is prevented from receiving material or availableevidence merely by reasons of technical objection he ought to removethe technical objections out of the way upon proper terms as to costsand otherwise”. I am of the view that the observation of Bonser C.J. hasno relevance to the instant case. The case of Reid v. Sumsudeen(supra) was a case filed in the Court of Requests where all technicalitiesof law are banished and not adhered to. Bonser C.J. at page 293observed “that such an objection should have been up-held is to meastounding especially in a Court of Requests which is a Court fromwhich all technicalities should be banished.” It is my view the saidcase has no relevance to the question in issue. The learned Counselreferred to the amendment to Section 755 and 759(2) by Act No. 79 of1988. Where the amendment reads as : “In the case of any mistakeomission or defect on the part of any Appellant in complying with theprovisions of the foregoing sections (other than the provision specificperiod within which any act or thing is to be done to the Court of Appeal)if it should be of opinion that the Respondent has not been materiallyprejudiced grant relief on such terms as it may deem just”.
It was submitted by learned Counsel that this Court has the powerto grant relief if the case wad any mistake made in terms of Section755. He contended the only matters that were incurable were if therehas been non- compliance with a time period, i am unable to agree
with his contention. In my view, the lapse referred earlier goes to thebasic validity of the Notice and Petition of Appeal and as such it is notcurable in terms of the amendment. It is a well accepted principle ofinterpretation that the statute has to be read as a whole and that everyclause should be construed with reference to the context and the otherclauses of the Act, so as far as possible to make a consistentenactment of the whole statute (Maxwell on Interpretation of Statute12th Edition page 47).
The learned Counsel relied on the case of Kusumawathie v.Nawaratne(2). This case decided the question of non compliance of therules of the Supreme Court and the Court held that the purpose of therules had to be analysed and mere non-compliance must not amountto automatic dismissal. In my view the authority cited has no relevanceto the instant case. Here the nature of the Act of commission was fataland it basically affects the validity of the appeal and judicial discretionmust be exercised reasonably and it cannot vary as “the LordChencellos foot”
In the case of Sharpe v. Wakefield3), it was held discretion meanswhen it is said that something is to be done within the discretion of theauthorities that something is to be done according to the rules of reasonand justice not according to private opinion, but according to law andnot humour, it be not arbitrary, vague and fanciful but legal and regularand it must be exercised within the limit to which an honest mancompetent to discharge his office ought to confine himself.
Lord Halsbury referred to the celebrated Rookes case 1858. In thewords of Coke L.J. “for a discretion is a science of understanding todiscern between falsity and truth between shadows and substancebetween equity and colorable glosses and pretences and not accordingto their will and private affection.In my view the authorities cited by the learned Counsel for theAppellant though it is from our Supreme Court has no application tothe facts of the instant case. Each case has to be considered on itsown merits and the interpretation of the law must refer to the wholecontext of the statute.
It was decided in case of Silva v. KumaratungeP) Maartensz,J. in acase where the Petition of Appeal was signed by a Proctor at a timewhen another subsisting proxy was of record, was considered bad inlaw and he summed up as follows: “The ratio decidendi in the old caseswith which I respectfully agree was that this Court cannot recognizetwo Proctors appearing for the same party in the same cause”.
In the Case of Reginahamy v. Jayawardands) Ennis, J. rejected anappeal which was not signed by the proctor on record.
In the case of Seelawathie v. Jayasinghe{6) Seneviratne, J.considered the provisions of Section 323(1) of the Administration ofJustice Law. He held that a party could sign the Notice of Appeal onlywhen he has no Registered Attorney. Seneviratne, J. observed at page270 as follows: “When a party to a case has an Attorney-at-Law onrecord, it is the Attomey-at-Law on record alone, who must take steps,and also whom the Court permits to take steps. It is a recognizedprinciple in Court proceedings that when there is an Attorney-at-Lawappointed by a party such party must take all steps in the case throughsuch Attorney-at-Law. Further, the principle established in a court isthat if a party is represented by an Attorney-at-Law such a party himselfis not permitted to address court. All the submissions of the partymust be made through the Attorney-at-Law who represents such aparty.”
In the case of Hameed v. Deen<7> S. N. Silva, J. observed that aNotice of Appeal signed by the Appellant when the Registered Attorneywas on record was bad in law and not curable.
This Court in the Case of Somawathie v. Buwaneswarf8> took thesame view and I do not see any reasons to differ from the earlierdecisions. The amendment of 79 of 1988 allows mistake or omissionconnected to giving of security and signing of the bonds and thoseomissions or mistakes of similar nature.
In my view, there is no merit in the written submissions of thelearned Counsel. If one were to entertain application of this nature thenone could submit that a party could sign and file his pleadings himselfinspite of there being a Registered Attorney on record as no materialprejudice is caused to the Defendant. Such a contention is not tenablein law. I am of the view the Notice of Appeal signed by the Appellanthimself goes to the validity of Notice of Appeal and this is not curablein terms of the amendment.
Therefore, I reject the Notice of Appeal and the Petition of Appeal andthe appeal is dismissed with costs fixed at Rs. 5250/-.
EDUSSURIYA, J. -1 agree.
Appeal dismissed.