051-SLLR-SLLR-2001-V-3-GOVERNMENT-MEDICAL-OFFICERS-ASSOCIATION-AND-ANOTHER-v.-SENANAYAKE.pdf
GOVERNMENT MEDICAL OFFICERSASSOCIATION AND ANOTHERv.
SENANAYAKE
COURT OF APPEALGUNAWARDENA, J.
JAYAWICKREMA. J.
A.L.A. 186/99
C. COLOMBO 5365/99/SPLOCTOBER 04, 2000
Civil Procedure Code – S. 34. S. 207, S. 406. S. 794. S. 798 EnjoiningOrder – Disobedience – Contempt of Court – Appeal Procedure – Leaveto Appeal or Ftnal Appeal – Greater right Includes a lesser right – ResJudicata
The Plaintiff Respondent instituted action against the Defendant Petitioner- Trade Union (GMOA) seeking a declaration that the strike action wasillegal, unlawful and further sought relief by way of an injunction preventingthe GMOA from resorting to strike action. Enjoining Order was issuedfrom continuing the strike. The strike continued showing defiance andopen disobedieance.
The Plaintiff Respondent thereafter complained to Court and summonswere issued on the GMOA and the other Defendants who were membersof its Executive Committee.
The Defendants appeared in Court and raised an objection to thejurisdictionof the Court, which was disallowed.
The Respondent Petitioners sought leave to appeal from the said Orderand Leave was granted by mutual consent. On the date of hearing thePlaintiff Respondent raised the objection that, the Petitioners have followedthe wrong procedure in seeking leave to appeal inasmuch as the correctprocedure was to have directly appealed against the impugned order.
It was contended by the Petitioners that (i) that inasmuch as leave hadalready been granted of consent, it is not open to the Plaintiff Respondentto object subsequently – as the Court is functus. (2) granting leave to appealis Res Judicata between the parties
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Held :
The Plaintiff Respondent Is estopped from raising the objections tothe procedure since he had consented to leave being granted – consentremoves the effect of error.
It is to be observed that although the right of appeal is not a matter ofprocedure and is a substantive one – the procedure for filing appealis procedural. Procedural rules are meant to promote the ends ofJustice and not to thwart. The right of appeal is the greater right inrelation to the right to make an application forleave to appeal.
The Respondent Petitioners are entitled to waive as a matter of legalright intended to be conferred on them under S. 798 which provided va direct appeal. As such the provisions in S.798 which states that aparty shall appeal against the order made by the District Court incontempt proceedings can never have a mandatory force.
The word shall' must necessarily be Interpreted in a permissive sense,although the term shall in common parlance conveys a command.
Per Gunawardena, J.
"Law is the dictate of reason, and it is somewhat irrational to say thatone has no right to seek leave to appeal for no other or better reasonthan one has a right to appeal. He to whom the greater is lawful oughtnot to be debarred from the less is unlawful."
Court can be said to be functus officio when the courts task is finallyaccomplished.
An order granting leave to appeal does not fall within the scope of anyof the three sections – S. 34, S. 207, S. 406 – Setting out or creatingthe law relating to res judicata.
An interim order that is made at some stage between the commencementof an action and its final determination that is during the progress ofan action or matter cannot attract to itself the operation of the rule ofres judicata.
APPLICATION for leave to appeal – leave been granted.
Cases referred to :
Bristol Corporation u. Sinnat – 1917 2 Ch. 340, 347.
CA
Government Medical Officers Association and Another
v. Senanayake (U. de Z. Gunawardana, J.)
379
Herath v. Attorney General – 60 NLR 193.
N. G. Samlndra v. N. G. Surasena – CAM 2. 7. 2000 – CALA 211/96.
Re 56 Denton Road – Twlckenhlm – 1953 Ch. 51
K. N. Choksy P.C., with Ronald Perera for Respondent Petitioner.
K. Kanag Iswaran with Lalanath de Silva, M. C. Sumanthlran andMlhirt Gunawardena for Plaintiff Petitioner Respondent.
Cur. adv. vult.
February 19, 2001.
U. DE Z. GUNAWARDANA, J.
The plaintiff – respondent had filed an action in the DistrictCourt of Colombo against the defendant trade union, which isthe Government Medical Officer's Association, (G.M.O.A) seekinga declaration to the effect that the strike action commenced byit on 12th June 1999 was illegal and unlawful and also ancillaryrelief by way of an injunction preventing the said union frompersisting in its wayward course of action. It is commonknowledge that habitual and constant strike actions commencedby the said association did cause untold hardship and extrememental and physical suffering to the patients and the generalpublic, and would have, undoubtedly, caused Hippocrates, whoenunciated the obligations and duties of physicians, to turnmany times in his grave, and, would have had to do so, of late,with unfailing regularity and frequency. One wonders whetherthe supposedly August association above – mentioned is devoidof the kindness natural to humanity. There is no gainsayingthat anti – social strike actions by doctors have become a way oflife in Sri Lanka – clearly overstepping the limits of moderation.This intolerable state of affairs has obviously prompted theplaintiff-respondent, (who had displayed a readiness to dothings for the benefit of the people in gene red) to file this actionagainst the G.M.OA. who is the 1st respondent-petitioner.
The learned District Judge issued enjoining order, on 22ndJune 1999 to be operative until 06. 07. 1999, restraining theaforesaid defendant union from continuing the strike or the
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concerted refusal on the part of doctors to perform their duties.The action of the defendant union, or rather that of the officer,who acted on its behalf, when the summons and the enjoiningorder were sought to be served on the defendant union, strikesone as ludicrous and deserves to be condemned in the moststringent terms. At first, an officer had signed the precept inacknowledgment of the receipt thereof, and thereafter had struckoff his signature at the instance of another. This act is final proofof their unbearable conceit and arrogance. Such uncouth, andunbecoming conduct, so patently lacking in fineness of feelingand good taste, unerringly point to men who are not only deficientin mind as to be incapable of rational conduct, but also tocharacter in which the quality of delicacy and seemliness areundesirably absent. The strike continued showing defiance andopen disobedience. And in consequence of that, upon motionby the plaintiff – respondent, the learned District Judge on 25,hJune 1999. issued summons in form 132 together with warrantsin pursuance of section 794 of the Civil Procedure code on the1st and the 2nd – 13lh respondents who are. respectively, thedefendant – union and members of its executive committee.
On the 30th of June 1999, the respondents appeared beforethe District Court and raised an objection to the jurisdictionof the Court. The learned District Judge made order on16. 08. 1999 with regard to the jurisdictional objection andheld that the defendant – respondent (G.M.O.A) could be chargedas it was (or rather as it is) and that 2nd – 13,h respondents -petitioners ought also to be charged for aiding and abetting thedefendant – petitioner – i.e. the G.M.O.A. The defendant -respondent – petitioner (G.M.O.A) and 2 – 13th respondents -petitioners made an application to the Court of Appeal on
08. 1999 for leave to appeal against the aforesaid order ofthe learned District Judge.
On the 21st of September 1999 leave to appeal was grantedby mutual consent of the parties and further hearing was re-fixed in the Court of Appeal for 7th October 1999 on which datethe learned President's Counsel for the plaintiff – respondent
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Gouemment Medical Officers Association and Another
v. Senanayake (U. de Z. Gunawardana, J.)
381
raised the objection that the 1st – 13th respondents – petitionershad followed a wrong procedure in seeking leave to appealinasmush as the correct procedure was to have directly appealedagainst the order complained of in pursuance of section 798which states that: "an appeal shall lie to the Supreme Courtfrom every order, sentence or conviction made by any Court in
the exercise of its special jurisdictionto punish by way of
summary procedure the offence of contempt" The argument,
though, somewhat, supported by authority, has the reek oraffectation of an odiously technical one, as the sequel wouldserve to show.
Anyhow, before considering that argument any further, itwould be apposite to look, in a preliminary way, at the counterarguments put forward by the learned President's Counsel(Mr. K. N. Choksy) on behalf of the 1st – 13th respondents -petitioners. Perhaps, none but he could have devised better ormore able arguments although they would not prove to be whollyacceptable on this, of all occasions. There is no denying thathis arguments worked like a charm and it would be churlishnot to freely acknowledge that this order derived, somewhat,immeasurably from the material enshrined in his argumentsfor no other reason than that they set me thinking. The argumentis two – fold, and, to summarise it in my own words, is as follows:
inasmuch as leave had already been granted, of consent, on21st of September 1999, it is not open to the plaintiff – respondentto object subsequently, to the procedure adopted by the 1st -13th respondents in seeking to leave to appeal, more so, as the"Court is now functus".
the order granting leave to appeal is res judicata between
the parties.
To consider the two – fold submission reproduced abovein order : (a) There is no scope for the argument that the"Court is now functus" and has therefore no power to considerthe correctness of the procedure adhered to by the 1 – 13threspondents – petitioners in seeking leave to appeal – instead of
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directly appealing against the order in question. It is notwholly correct to say that the Court of Appeal" made order on
09. 1999 granting leave to appeal". As explained earlier, theleave was granted of consent which, in fact, obviated the needfor the Court itself to make a considered order, as such. Theorder granting leave made by this Court, if it can be called anorder, can be likened, if, in fact, it is not veritably so, for instance,to a consent order – the provisions and terms of which weresettled and agreed to by parties to the action. There was noadjudication by the Court of Appeal of the rights and status of1st – 13th respondent – petitioners. I think it would be more correctto have said that the plaintiff – respondent is now estopped fromimpugning the correctness of the procedure adopted by the la- 13th respondent – petitioners, since the plaintiff – respondenthad consented to leave to appeal being granted to the 1st – 13threspondent – petitioners – leave being what they sought, in thefirst instance. To quote from George Spencer Bower, whosename will long continue to be remembered for his celebratedtreatise on " The law Relating to Estopped by Representation":"Not even the plainest and most express contract or consent ofa party to litigation can confer jurisdiction on any person notalready vested with it by the law of the land, or add to thejurisdiction lawfully exercised by any judicial tribunal; it isequally plain that the same results cannot be achieved byconduct or acquiescence by the parties. Any such attempt tocreate or enlarge jurisdiction is in fact the appointment of ajudicial officer by a subject
On the other hand where nothing more is involved than amere irregularity of procedure or (e.g) non – compliance withstatutory conditions precedent to the validity of a step inlitigation, of such a character that, if one of the parties be allowedto waive the defect or to be estopped by conduct from setting itup, no new jurisdiction is thereby impliedly created and noexisting jurisdiction impliedly extended beyond its existingboundaries, the estoppel will be maintained and the affirmativeanswer of illegality will fail."
(The above is an excerpt from Spencer Bower.)
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Government Medical Officers Association and Another
v. Senanayake (U. de Z. Gunawardaria. J.)
383
In Bristol Corporation v. Slnnat111 Neville J said at 347:"When a provision like this is put in a statute for the protectionof the public, a member who has no desire to rely on theprotection given him has a perfect right to waive the giving ofthe notice altogether."
The plaintiff – respondent, of free of choice, has waived ordiscarded the objection that he could have taken to the procedureadopted by the 1st – 13th respondents in seeking leave to appeal,assuming, of course, that the procedure of appealing directlyagainst the order had been devised by the law not for theirbenefit, that is, not for the benefit of the 1st – 13th respondent,(they being the parties aggrieved by the order of the learnedDistrict Judge) and also the that 1st – 13th respondents had nolegal right to seek leave to appeal and were prohibited fromdoing so – both of which assumptions would wholly beindefensible and insupportable. As stated above, the learnedPresident's Counsel for the plaintiff-respondent by his unequivocalact of consenting to grant leave had barred himself from raisingany objection to the mode (adopted by the 1st – 13th respondents
petitioners) of appealing against the order – that is, by seekingin the first instance, leave to appeal.
It is to be observed that the mode of proceeding to questionthe correctness of the order, that is: by directly appealing againstthe said order as provided for by section 798 of the CivilProcedure Code, had been prescribed or thought up by the law,to my way of thinking, to assist the person or party or partiesaggrieved by the order, in this instance, the 1st -13* respondents
petitioners (they being the parties so affected) and to facilitatematters from their stand – point by obviating the more circuitousand indirect mode of appealing, that is, by seeking, in the firstinstance, leave to appeal. By providing for a direct appeal to aparty affected or aggrieved by the order in contempt proceedings,section 798 seeks to get round or do away with the inconvenienceof first obtaining leave, in order to be able to appeal. Section 798of the Civil Procedure Code, provides a procedure which bymeans of a direct appeal, seeks to make relief available without
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delay and perhaps without too much attention to detail – delayand attention to detail being features of the procedure accordingto which one has to obtain leave first, in order to get the right ofappeal. Thus, it will be seen that, in the circumstances of thiscase, the right of direct appeal against an order as provided forin section 798 in contempt proceedings will inure or take effectto the benefit of the Is' – IS* respondents – have turned out.And it is they i.e. 1st – 13th respondents – petitioners who havenot availed themselves of that benefit or advantage of a directappeal, and chosen to forgo it and as the maxim goes: "quilibetpotest renunciare juri pro se introducto"- which means everyone may relinquish a right introduced for his benefit. So that itis not open to the plaintiff – respondent to complain that the 1st
13th respondents had not directly appealed against the order,when they could have done so as a matter of legal right, but hadchosen, instead, to seek leave to appeal.
The argument of the learned President's Counsel for the 1st
13th respondents – petitioners that the Court of Appeal is nowfunctus need not, in fact, be considered. In the circumstancesof this case I have no reason to rule definitely on the validityof that submission since, for the reasons stated above, theplaintiff – respondent has no right initially, because the 1st – 13threspondents – petitioners are not precluded by law to seek leaveto appeal, and in any event, no right at this stage, because theplaintiff – respondent is estopped, to object to the procedurechosen to be followed by the respondents – petitioners, that is,of seeking leave to appeal against the order of the District Court.The Is* – 13th respondents – petitioners, by choosing to seekleave to appeal, have not prejudiced a right of the plaintiff -respondent and they have only, so to speak, renounced anadvantage which the law had accorded to them, i. e. torespondents – petitioners themselves – they being the partieschallenging or impugning the order made by the District Courtin the exercise of its special jurisdiction to punish the offence ofcontempt.
In any event, even on the assumption, which would be amanifestly erroneous and absurd one, i. e. that although the
CA
Government Medical Officers Association and Another
v. Senanayake (U. de Z. Gunawardana. J.)
385
direct right of appeal is given to the party aggrieved by the orderof the District Court, yet that party or parties who, in this instanceare the 1st – 13th respondents – petitioners, cannot waive thatright of making a direct appeal without the consent of the partyin whose favour the order was given, who, in this instance, isthe plaintiff – respondent – even then, the plaintiff – respondentby his conduct, as explained earlier, had waived the irregularityin the procedure. In other words, assuming, for the sake ofargument, that the plaintiff – respondent had a right to object tothe 1st – 13th respondents – petitioners relinquishing the benefitconferred upon them, by section 798 which made available tothe 1st -13th respondents – petitioners, the advantage of preferringa direct appeal – yet the plaintiff – respondent, by his conduct,as explained earlier, had consented to adopt the procedure and,as such, is thereby estopped from questioning the regularitythereof.
However, in regard to the argument that the Court is nowfunctus, because leave had already been granted on 21stSeptember 1999,1 wish to say, in passing, that a Court can besai^ to be functus officio when the court's task is finallyaccomplished, that is, when the court's authority is exhausted -the court having accomplished the purpose. In any event, it isdoubtful whether the court can be said to be functus, when theCourt of Appeal itself had not on its own made any order eithergranting leave or refusing it. As stated above, the respondent -petitioners obtained leave, of consent or by mutual consent ofthe parties, which relieved the court of the need to make aconsidered order. There is a total lack of authority on the point.No precedent was cited. Anyhow, as I said before, I need notexpress an authoritative opinion in regard to the questionwhether the court, under no circumstances, can be said to befunctus officio when an order is made, which is. be it noted, nota final order (but an interim one) in the sense of an order bringingthe proceedings to an end or finality.
To deal with the second point put forward by Mr. ChoksyEC.: to reproduce his own words: "that order granting leave isalso res judicata between the parties".
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As observed by His Lordship Basnayake C. J. in Herath v.Attorney General'2’ 60 N.L.R. 193 the whole of our law relatingof res judicata is to be found in sections 34. 207 and 406 of theCivil Procedure Code. Section 34 requires the plaintiff to includeof the whole of his claim in the action and if he relinquished anypart of his claim, without the leave of the Court, he is barred orprecluded from suing for the reliefs or remedies so omitted.Section 207 renders all decrees passed by the District Court,final as between the parties – subject to an appeal. And Section406, substantially states "that if a plaintiff withdraws an action,without permission of Court to bring a fresh action – he shall beprecluded from bringing a fresh action in respect of the samematter. I have briefly considered above, the scope of the threesections in the Civil Procedure Code embodying the whole ofthe Sri Lankan law relating res judicata to show that an ordergranting leave to appeal (assuming that the Court of Appealhad made such an order) does not fall within the scope of anyone of the three sections setting out or creating the law relatingto res judicata. Res judicata means a matter adjudicated or amatter settled by final judgment of the Court. The effect of thelaw of res judicata is to oust the jurisdiction of the Courtaltogether when there is a final judgment rendered by a Courtof competent jurisdiction on the merits – such judgment beingconclusive as to the rights of parties. The rule of res judicataconstitutes an insuperable or an absolute legal impediment toa subsequent action on the same cause of action or claim. Ithas been said that "sum and substance of the whole rule is thata matter once judicially decided is finally decided".
I cannot bring myself to hold that an interim or interlocutoryorder, that is made at some stage between the commencementof an action and its final determination, that is, during theprogress of an action or matter, can attract to itself the operationof the rule of res judicata.
The self – same argument, that is, that a party aggrieved byan order, made by the District Court in the exercise of itsjurisdiction to punish the offence contempt cannot seek leaveto appeal, was considered by me in an earlier un-reported case
CA
Government Medical Officers Association and Another
y, Senanayake (U. de Z. Gunawardana,' J.)
387
(N. G. Samindra v. N. G. Surasena131) That was an appeal froman order of the District court of Kandy, convicting a person ofthe offence of contempt, in that the man had allegedly obstructedthe surveyor, in the execution of a commission issued to thesurveyor in a partition case. And this is what I said on thatoccasion. To cite the relevant excerpt of my own judgment, withwhich my brother Yapa J. agreed:" When the law has accorded,as pointed out above, the right to appeal, an appeal lies as amatter of right, and no leave to appeal need-be or rather couldbe sought – although it is debatable as to whether or not theright of appeal carries with it as a necessary concomitant, theright to seek leave to appeal. It can, to say the least, arguably besaid that the right of appeal, in any event, does not exclude theright to seek leave to appeal, although, perhaps, it is wholly un-necessary or superfluous to seek leave or permission to obtaina thing which one is entitled to, as a matter of legal right. Law isthe dictate of reason, (lex est dictamen rationis) and it issomewhat irrational to say that one has no right to seek leaveto appeal, for no other or better reason than that one has aright to appeal. He to whom the greater is lawful ought not to bedebarred from the less as unlawful, (non debet cui plus licetquod minus est non licere) A person, for instance, who has aright to enter a particular place is not to be debarred fromentering that place because he has sought leave, needlesslythough it be, to enter it."
Comparatively speaking, the right of appeal is the greaterright in relation to the right to make an application for leave toappeal. The right of appeal is a right that one already has, as amatter of law whereas by an application for leave to appeal oneasks for that right i. e. the right to appeal. A right of appeal thathas materialised is an actual fact or is a vested right and islarger than an inchoate right, if not, no right. Right of appeal isone that is already crystallised and vested in the person affectedby the order. It is irrational to say that one loses a lesser rightbecause one enjoys the greater one, unless one is expresslyprohibited from seeking or exercising the lesser right, for thelesser right is subsumed under the greater right. And there is nosuch express prohibition. Prohibitions are not to be presumed.
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What is not prohibited must be deemed to be permitted. Thatis a inveterate principle which, in fact, is a rudiment of the law.
The argument of the learned President's Counsel for theplaintiff – respondent was that the word "shall" in section 798of the Civil Procedure has to be interpreted in a peremptorysense. Repetition of Section 798 is un – avoidable in the contextand it reads thus.: "An appeal shall lie to the Supreme Courtfrom every order, sentence or conviction made by any Court inthe exercise of its special jurisdiction to take cognizance of, anto punish by way of summary procedure the offence of contemptof Court and the procedure on any such appeal shall follow theprocedure laid down in the Criminal Procedure Code regulatingappeals from orders made in the ordinary criminal jurisdictionof District and Magistrate's Court".
The word "shall" in the expression " an appeal shall lie tothe Supreme Court" must necessarily be interpreted in apermissive sense although the term "shall" in common parlanceconveys a command. For, if the word "shall", in the excerpt ofsection 798 reproduced above, is construed in a compulsorysense the party aggrieved by the order, if not, all the parties tothe proceeding in which the order was made, would be underan obligation to appeal against the order, irrespective of whetherthey wish to do so or not and will have no choice of action butto appeal. It is unthinkable that the legislature would have beenso irrational as to have intended such a result. Justice mustnot be the slave of grammar. The term "shall" that occurs in thelatter part of the same section (798), which latter part is as
follows: " and the procedure on any such appeal shall
follow the procedure laid down in the Criminal Procedure Code…"According to the procedure prescribed in the Criminal ProcedureCode one has to directly appeal against the order. The questionis whether or not the adherence to the procedure laid down inthe Criminal Procedure Code is mandatory. I think the term"shall" in the expression "shall follow the procedure in theCriminal Procedure Code" also has to be interpreted in anenabling or permissive sense for the reason that a party for whosebenefit or convenience, a direct appeal was provided for by
CA
Government Medical Officers Association and Another
v. Senanayake (U. de Z. Gunawardana, J.)
389
section 798 of the Civil Procedure is entitled to waive that benefit,as explained in an earlier part of this order. Rationallyunderstood, the party for whose benefit the appeal procedurewas made easier was obviously the party who was dissatisfiedwith the order and who therefore wanted to challenge it. In thecase in hand, it is the respondents – petitioners who are seekingto challenge the order and they have done so by seeking leaveto appeal, in the first instance. Inasmuch as the respondents -petitioners have an undoubted right to waive the benefit of theprocedure indicated in section 798, the adoption of the saidprocedure is not compulsory – so far as the respondents -petitioners are concerned. The objection raised by the plaintiff- respondent to the procedure adopted by the respondents -petitioners in fifing an application for leave to appeal is whollyuntenable. To summarise the reasons for the decision : (a) Theplaintiff – respondent is estopped from raising the objection tothe procedure since he had consented on 21. 09. 1999 to leavebeing granted. Omnis consensus to Hit errorem – is a well -known maxim which means that consent always removes theeffect of error. It is to be observed that although the right ofappeal is not a matter of procedure and is a substantive one -the procedure for filing appeal is procedural. Procedural rulesare meant to promote the ends of justice and not to thwart them.
(b) The respondents – petitioners are entitled to waive as amatter of legal right the benefit intended to be conferred on themunder section 798 of the Civil Procedure Code which provideda direct appeal. As such the provisions in section 798 of theCivil Procedure Code which states that a party "shall" appealagainst the order made by the District Court (in the exercise ofits contempt jurisdiction) can never have a mandatory force -so far as the respondents – petitioners are concerned – asexplained above.
The objection raised by the plaintiff – respondent to theeffect that the application for leave to appeal filed by therespondent – petitioners cannot be entertained by the Court ofAppeal (in that the respondents – petitioners have chosen thewrong mode of appeal) is hereby over-ruled.
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As a final note, 1 wish to say that sometimes it worksinjustice, if one were to interpret sections or'the law in an overlytechnical sense, as did happen in a case under the Legis ActioProcedure in the Roman times which procedure became odiousowing to its excessive formalism and technicality. In that case,which I remember from my student days, the plaintiff who suedthe defendant for cutting his vines lost the case, the only sin ortransgression, if any. he had committed being, that he used theword "vines" in the plaint when he should have said "trees" forthe law of TWelve Tables which provided for the action spoke ingeneral terms of "trees" (actio de arboribus succisis). It looks asif the Roman Judge who decided that case was not conspicuousfor his common – sense, for both trees and vines derived theirsustenance from the soil – difference, if any, between the twobeing that the former with a self-supporting stem, grew verticallyto the ground and the latter, usually, horizontally. One need notbe well informed about the science of plants to know that bothtrees and creepers (vines) come under the genus of plants – vines,being a creeping or a climbing plant.
I cannot bring myself to reject the application for leave toappeal for no other or better reason than that the respondents- petitioners have a right of appeal. A decision of this kind hasto be taken pragmatically – the test must always be adoptingthe technique which best fits the job to be done. Whilst rulingin favour of the 1st (G.M.O.A) and the 2nd – 13th respondentswho are its executive committee members, I am constrained toadd. as a final note, that I am overwhelmed with wonder thatthere is a total lack of compassionate reluctance on the part ofthe G.M.O.A to inflict pain and suffering on others, – distressbeing a concomitant of the strike action which the G.M.O.A. isexcessively fond of – perhaps, by force of habit.
I wish to say, by way of an addendum, that Mr. Choksysargument i. e. that the Court of Appeal is functus (since it hasmade order granting leave, which argument, to be honest, I hadcircumvented with circumspection) certainly contains anunderlying layer of good sense and, perhaps, good law. 1 hadavoided considering that argument because I have chosen to
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base or rest this order on other grounds. But the learnedPresident's Counsel had not substantiated his argument. However,of one thing, one can be certain, if of no other, i.e. that thestatutory power to decide is often a "power to decide once andonce only." Vaisey J. accepted that principle in these words:
"where Parliament confers on a bodythe duty of determining
any question, the deciding or determining of which affects the
rights of the subject, such decisionmade and communicated
in terms which are not expressly preliminary or provisional isfinal and conclusive and cannot in the absence of expressstatutory power or consent of the person or persons so affectedbe altered or withdrawn by that body." Vide Re. 56 Denton Road,Twickenhemt4) (1953) Ch. 51.
The suggestion that a conclusive decision can be alteredwith the consent of the person affected needs qualification, sinceconsent by itself cannot confer a power which does not exist.And, it remains to consider, assuming that the Court of Appealhad, in fact, made order granting leave, whether or not such anorder can be said to be a preliminary order for the observationsVaisey J. reproduced above, seem to suggest that a preliminaryorder will not attract to itself the qualities of finality andconclusiveness – upon which the argument of functus arises.
JAYAWICKRAMA, J. – I agree.
Preliminary Objection Overruled.