GUNARATNE v. THAMBINAYAGAM AND OTHERS

029-SLLR-SLLR-1993-2-GUNARATNE-v.-THAMBINAYAGAM-AND-OTHERS.pdf


SC Swasthika Textile Industries Ltd., r. Thantrige Dayaratne (Fernando, J.)355
GUNARATNE
v.THAMBINAYAGAM AND OTHERS
SUPREME COURT.
P. S. DE SILVA, C. J.,
KULATUNGA, J. ANDRAMANATHAN, J.
S.C. SPL APPL. NO. 14/92
C. COLOMBO (RA) NO. 68/91M.C. MOUNT LAVINIA NO. 69279(WITH S.C. APPEAL NO. 21/92)
OCTOBER 12 & 13, 1992.
Appeal – Supreme Court Jurisdiction-Judgment of High Court of a ProvinceExercising Revisionary Jurisdiction — Constitution – Article 154 P (3) (b)- Act No. 19 of 1990.
The petitioner in application No. 14/92 and the appellant in Appeal No. 21/92each sought to canvass by way of direct appeal to the Supreme Court a judgmentof the High Court of Western Province made in the exercise of its revisionaryjurisdiction vested in it by Article 154 (3) (b) of the Constitution. For this purposethey invoked the provisions of S. 9 of the High Court of the Provinces (SpecialProvisions) Act No. 19 of 1990 which provides for a direct appeal to the SupremeCourt from any final or interlocutory order, judgment, decree or sentence of aHigh Court established by Article 154 p of the Constitution in the exercise ofthe appellate jurisdiction vested in it by Article 154 (3) (b) or S. 3 of the Actor any other law.
Held :
The right of appeal is a statutory right and must be expressly createdand granted by statute.
S. 9 of Act No. 19 of 1990 does not give a right of appeal to the SupremeCourt from an order of the High Court in the exercise of its revisionaryjurisdiction.
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[1993] 2 Sri L.R.
Cases referred to :
In Re the Thirteenth Amendment to the Constitution (1987) 2 Sri LR 310,323.
Mariam Beebee v. Seyed Mohamed 68 NLR 36, 38.
Somawathie v. Madawela (1983) 2 Sri LR 15, 26.
Attorney – General v. Podisingho 51 NLR 385, 388.
Thameena v. Koch 72 NLR 192.
S. L. B. C. v. de Silva (1981) 2 Sri LR 228 (CA).
Nadarajah v. Tilagaratnam (1986) 3 CALR 303 (CA).
Bakmeewewa v. Raja (1989) 1 Sri LR 231 (SC).
Martin v. Wijewardena (1989) 2 Sri LR 250.
Gamhewa v. Maggie Nona (1989) 2 Sri LR 250.
Mudiyanse v. Bandara SC Appeal 8/89 S.C. mins of 15.03.91.
Preliminary objection to entertainment of appeal.
W. Dayaratne with Sarathchandra Liyanage for 3rd respondent – respondent
petitioner.
S. Mahenthiran with Sampathy Welgampola for the 1st respondent – petitioner
respondent.
Other respondents absent and unrepresented.
Cur. adv. vult.
November 25, 1992.
KULATUNGA, J.
In this application and in SC Appeal No. 21/92, it is sought to canvassby way of appeal a judgment of the High Court of Western Provincemade in the exercise of its revisionary jurisdiction vested in it byArticle 154 P (3) (b) of the Constitution. A preliminary objection wastaken in each of these cases that there is no right of appeal tothis Court from such judgment as the direct appeal provided to thisCourt by S. 9 of the High Court of the Provinces (Special Provisions)Act, No. 19 of 1990 is limited to any order, judgment, decree orsentence of a High Court of a Province made in the exercise of itsappellate Jurisdiction and hence this Court has no jurisdiction to grantleave to appeal in this application or to hear and determine the appealin SC Appeal No. 21/92. Of consent, both these cases were listedtogether as they involve the same point which can be disposed ofby a single judgment. At the hearing, learned Counsel for the partiesin each case made submissions and subsequently tendered writtensubmissions as directed by us.
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Gunaratne v. Thambinayagam and Others (Kulatunga, J.)
357
In each of these cases a dispute relating to land had been referredto a Magistrate (exercising the powers of the Primary Court) in termsof S. 66 (1) (b) of the Primary Courts Procedure Act No. 44 of 1979.After due inquiry, the Magistrate made his determination, the objectof which is to maintain the status quo until final adjudication ofthe rights in a civil suit. S. 74 (2) of the Act provides that an appealshall not lie against such determination. Prior to the 13th Amendmentto the Constitution, a party aggrieved with such a determination usedto apply to the Court of Appeal to have it set aside by way of revisionin the exercise of the power of that Court under Article 138 of theConstitution read with Article 145. S. 5 of the High Court of theProvinces (Special Provisions) Act, No. 19 of 1990 read with Article145 P (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. InRe the Thirteenth Amendment to the Constitution <’> . In the result,he may file his application in the Court of Appeal or in the High Court.
Article 154 P establishes a High Court for each Province. Article154 P (3) (b) states :
" Every such High Court shall –
notwithstanding anything in Article 138 and subject to any law,exercise, appellate and revisionary jurisdiction in respect ofconvictions, sentences and orders entered or imposed byMagistrates Courts and Primary Courts within the Province "
Article 154 P (6) provides :
“ Subject to the provisions of the Constitution and any law,any person aggrieved by a final order, judgment or sentenceof any such Court, in the exercise of its jurisdiction under
paragraphs (3) (b)may appeal to the Court of Appeal
in accordance with Article 138 "
The Court of Appeal (Procedure for appeals from High Courtsestablished by Article 154 P of the Constitution) Rules, 1988 madeby the Supreme Court were published in Gazette (Extraordinary) No.549/6 of 13.03.89. The said Rules provide the procedure to befollowed in making appeals to the Court of Appeal, inter alia, fromorders made by a High Court in the exercise of its appellate orrevisionary jurisdiction under Article 154 P (3) (b).
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This was followed by Act No. 19 of 1990 which by S. 4 thereofgave a person the right of invoking the appellate jurisdiction of theHigh Court established by Article 154 P and provided the procedure,inter alia, for making appeals to that Court and for invoking itsrevisionary jurisdiction under Article 154 P (3) (b).
S.12 of Act No. 19 of 1990 makes provision for resolving someof the anomalies arising by reason of the provisions of Article 154Pwhich vested new jurisdictions in the High Court, but concurrentlywith the existing jurisdiction of the Court of Appeal in the same sphere.Thus, where an appeal or an application in respect of the same matteris filed in the Court of Appeal and in the High Court and the hearingof such application by the High Court has not commenced, the Courtof Appeal may proceed to hear and determine such appeal orapplication or where it considers it expedient to do so, direct suchHigh Court to hear and determine such appeal or application.Provided, however, where an appeal or application which is withinthe jurisdiction of a High Court established by Article 154 P of theConstitution is filed in the Court of Appeal, the Court of Appeal mayif it considers it expedient to do so, order that such appeal orapplication be transferred to such High Court and such High Courtshall hear and determine such appeal or application.
S.9 of the Act (with the marginal note “ Appeals to SupremeCourt from High Court in certain cases ") provides for a direct appealto the Supreme Court from any final or interlocutory order, judgment,decree or sentence of a High Court established by Article 154 P ofthe Constitution in the exercise of the appellate jurisdiction vestedin it by Article 154 P (3) (b) or S. 3 of the Act or any other law.
S.10 provides that the Supreme Court shall be the final Court ofAppeal over the High Court exercising such appellate jurisdiction andfurther provides that the new jurisdiction vested in the Supreme Courtshall be sole and exclusive.
The learned Counsel for the petitioner and the appellant in SCAppeal No. 21/92 submitted that particularly in the background oflegislative provision existing prior to the 13th Amendment, (viz. TheCourts Ordinance, The Administration of Justice Law, Article 138 ofthe Constitution and the relevant statutes on Civil and CriminalProcedure) the expression " appellate jurisdiction " (as opposed to" original jurisdiction “) would ordinarily include the power to reviewdecisions by way of appeal, revision or restitution in integrum; thatArticle 154 P (3) (b) enacted by the 13th Amendment vested ■
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appellate jurisdiction “ in the High Court limited to appeal and revisionof the decisions of the Magistrates Courts and Primary Courts ; that
S.3 of Act No. 19 of 1990 extended the exercise of such jurisdictionto orders made by Labour Tribunals and orders made under .Sections5 and 9 of the Agrarian Services Act No. 58 of 1979 ; and that inthe context, the expression " appellate jurisdiction in S. 9 of the Actshould not be limited to an appeal made 'eo nomine* but-should beinterpreted to include the power of review by way of revision.
Learned Counsel for the respondents, and particularly Mr.Mahenthiran in this application argued :
that whilst “ appellate jurisdiction " would conceptuallyinclude appeal and revision, yet the power of revision is distinctfrom appellate jurisdiction. He cited the dicta of Sansoni C.J.who delivered the majority decision of the Divisional Bench inMariam Beebee v. Seyed Mohamed (2).
J
" The power of revision is an exraordinary power which is quiteindependent of and distinct from the appellate jurisdiction ofthe Court. Its object is the due administration of justice andthe correction of errors, sometimes committed by this Courtitself, in order to avoid miscarriage of justice "
These dicta were cited with approval by Soza J. in a DivisionalBench decision of this Court in Somawathie v. Madawela (3).
These were cases in which the power of the former SupremeCourt and this Court to set aside a decree nisi in a partitionaction by revision was considered. Much earlier in Attorney-General v. Podisingho w (an application for the revision of theorder of a Magistrate in a criminal case), Dias J. said that thispower (which is a discretion) is exercised "where there is apositive miscarriage of justice in regard either to the law orto the Judge's appreciation of the facts " (P 388). It was heldthat this power is not limited to cases where there is no appeal;and that “ it is wide enough to embrace a case where an appeallay but which for some reason was not taken " (P 390).
(i) That prior to the enactment of S. 3 of Act No. 19/1990, the remedy by way of revision was not available againstthe order of a Labour Tribunal. Thameena v. Koch (5) in which
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Tennakoon J. said " i do not think the revisionary powers ofthis Court extends to orders of Labour Tribunals “ presumablyfor the reason that S. 753 of the old Civil Procedure Code andS. 356 of the Criminal Procedure Code to call for and examinerecords was limited to examine records of only a Court. Thislimitation was continued by S. 354 of the A.J.L. In terms ofArticle 145 of the 1978 Constitution the revisionary power ofthe Court of Appeal is limited to examine and inspect recordsof only a Court of First Instance. It was, therefore, held inS. L B. C. v. De Silva (6) and Nadarajah v. Tilagaratnam mthat the Court of Appeal has no power to review the order ofa Labour Tribunal by revision.
(ii) That S. 3 of Act No. 19/1990 vested in the High Court(in addition to appellate jurisdiction) revisionary jurisdiction inrespect of the orders of Labour Tribunals and orders madeunder Sections 5 and 9 of the Agrarian Services Act. LearnedCounsel submits that this " revisionary jurisdiction “ is a newjurisdiction vested in the High Court and that S. 9 of the Actwhich provided for direct appeals to the Supreme Courtexpressly limits such appeals to any order, judgment, decreeor sentence of a High Court in the exercise of its appellatejurisdiction vested in it by Article 154 P (3) (b) of the Con-stitution (or S. 3 of the Act). As such, S. 9 does not touchthe appellate power of the Court of Appeal under Article 154P(6) in respect of orders of the High Court in the exercise ofits revisionary jurisdiction ; and the remedy of the appellantwas to have appealed to that Court in terms of the relevantCourt of Appeal Rules.
That the right of appeal is a statutory right and must beexpressly created and granted by statute. Mr. Mahenthiran hascited in support the decisions in –
Bakmeewewa v. Raja (8), Martin v. Wijewardena (9>, Gamhewav. Maggie Nona (9 Mudiyanse v. Bandara (,0>.
It is the contention of Counsel that S. 9 does not give appellanta right of appeal to the Supreme Court from an order of the HighCourt in the exercise of its revisionary jurisdiction. In contrast S. 31Dof the Industrial Disputes Act as amended by Act No. 32 of 1990(which also provides for direct appeals to the Supreme Court)provides :
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" Any workman, trade union or employer who is aggrievedby any final order of a High Court established under Article 154Pof the Constitution, in the exercise of the appellate jurisdictionvested in it by law or in the exercise of its revisionary jurisdictionvested in it by law, in relation to an order of a Labour Tribunal,may appeal therefrom to the Supreme Court with the leave of theHigh Court or the Supreme Court first had and obtained"
Although during the hearing, it appeared that there was someabsurdity or injustice resulting from limiting appeals to this Court tothe orders of a High Court in the exercise of its jurisdiction by wayof appeal, having considered the above submissions I now haveno difficulty in accepting the submission the S. 9 imposes such alimitation. S. 9 of the Act and the authorities would not permit theconferment of a right of appeal in respect of revisionary orders ofthe High Court ; And hence there is no absurdity or injustice whichthis Court is empowered to cure by interpretation.
If the multiplicity of litigation in this sphere is felt to be an anomaly,it is a matter for the legislature. In fact, in a number of other situationsunder the system introduced by the 13th Amendment and subsequentlegislation, the incidence of multiplicity of litigation is inevitable. Thusit appears –
that in the light of the concurrent jurisdiction of the Courtof Appeal and the High Court which still exists, which fact isconfirmed by S. 12 of Act No. 19/1990, the identical disputemay be decided by the Court of Appeal or by the High Court.A decision in the High Court would permit two appeals whilsta decision in the Court of Appeal would permit one more appeal;
that under S. 5 of the Agrarian Services Act No. 58 of1979 as amended by Act No. 4 of 1991, appeals on decisionson eviction of a tenant cultivator from a paddy land have nowto be made to the Board Review ; but appeals under S. 9of that Act may be made either to the Court of Appeal (asprovided in that section) or to the High Court as provided byS. 3 of Act No. 19 of 1990. In respect of certain other ordersunder the Agrarian Services Act, a Writ application may bemade to the Court of Appeal under Article 140 or to the HighCourt under Article 154 P (4) of the Constitution. The numberof appeals in such cases would vary depending on whether
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(c) that under S. 31 D of the Industrial Disputes Act asamended by Act No. 32 of 1990, an appeal from the orderof a Labour Tribunal may be made to the High Court with asecond appeal to the Supreme Court. Under S. 3 of the ActNo. 19 of 1990, a revision application in respect of such ordermay be made to the High Court in which event parties willbe entitled to appeal to the Court of Appeal from the orderof the High Court and then to the Supreme Court.
For the foregoing reasons, I uphold the preliminary objection takenon behalf of the Respondent and refuse leave to appeal, with costs.
G. P. S. DE SILVA, C.J. – I agree.
RAMANATHAN, J. – I agree.
PreliminaryObjection upheld