022-SLLR-SLLR-1989-V-1-KULATILEKE-v.-KARUNARATNE-AND-OTHERS.pdf
CA . Lady Benwell v. The Attorney-General and Another (S. N. Silva. J.J. 303
KULATILEKE
V/ ■;
KARUNARATNE AND OTHERS
COURT OF APPEAL
A. de Z. GUNAWARDENE, J.' ' .
-CA L A (SC) NO. 0,5/89 — C.A. APPLN. NO. 45/82 '
P. C. WELIMADA.NO. 4.750.
OCTOBER 20. 1989
Revision — Leave to appeal — Article 128(1) of the Constitution — When Court.of Appeal will grant leave jo appeal to the Supreme Court.
Of the-8 questions-of . law. formulated in'the application for.leave to appeal. 7questions did not arise from the judgment.ofJhe.Court of Appeal, nor were theyargued before the Court of Appeal. Only 1 question of .law formulated had. some-relation to the said jud.gment and there too the question was whether it raised, asubstantial question of law fit for review by the Supreme Court.■
H®ld-
That the Court of Appeal only has power to grant leave to appeal .from a"final order. , judgment, decree or sentence of the Court of'. Appeal." The
. circumstances under which the Supreme Court exercises its jurisdiction to grantspecial leave to appeal is much wider.'
. That the exercise of reviewing facts not argued in the main appeal, inrelation to the questions.of law raised in the leave to.appeal application: isunwarranted; in .considering a leave to appeal application.
Cases referred to. :
MohamedHaniffa RasheedAli v. Khan MohamedAli and another S. C. No.
6/81. S. C. Minutes of 20/11/8ir- -'
Marynona v:FransinaX 1988) 2 S. L. R. 250.‘
304
Sri Lanka Law Reports
1198911 Sri L. R.
APPLICATION for leave to appeal to the Supreme Court.
Sanath JayatiUeke for Petitioner, no appearance for Respondents.
Cur. adv. vult.
November 1 4. 1989
A. DE Z. GUNAWARDENE, J.
This is an application for leave to appeal to the Supreme Courtfrom a judgment of the Court of Appeal, in a revision applicationwhich came up before this Court. When the said revisionapplication was taken up for argument. Counsel for therespondents raised a preliminary objection, stating that thepetitioner has failed to comply with the mandatory provisions ofRule 46 of the Supreme Court Rules, in that, he had failed tofurnish certified copies of some of the prders sought to berevised in the said application. The petitioner in the said,application sought to revise 4 orders made by the Primary CourtJudge of Welimada dated 31/7/81. 6/11/81. 5/1/82 and15/1/82 and also an order alleged to have been made by theRegistrar of the Court on 1 9/1 2/81.. However, only the certifiedcopies of the orders made by the Primary Court Judge on1 3/7/81 and 6/1 1/81 have been filed with the petition. Whenthe said preliminary objection was taken. Counsel who appearedfor the petitioner abandoned the prayer for the revision of theorders dated 5/1/82. 15/1/82 and 19/12/81. as certifiedcopies Of the said orders have-not been filed. Since the petitionerhas not complied with Rule 46 and not filed the relevant certifiedcopies of the proceedings as required under that rule and hadabandoned part of the relief claimed in the petition, the Court of-Appeal upheld the said objection raised by the Counsel for therespondent.
In dismissing the said application. Court also noted that itappears from the proceedings that the parties have invited-the.Primary Court Judge to visit the land and had consented to abideby th'e order that he would make. Accordingly the Primary CourtJudge has inspected the land and gone through the documentsand made an appropriate order. This application'for leave toappeal is from the said judgment of the Court of Appeal.
The Counsel. for the petitioner conceded that, of' the 8questions of law -formulated in para. 9 of his petition. 7 questions
CA Kulatileke v. Karunaratne and Others (A. De 2. Gunawardene. J.)305
do not arise from the judgment of the Court of Appeal nor werethey argued before.the Court of Appeal'. Only the question-statedin para. 9(g) appears to have, at least some'relation to the saidjudgment. .Therefore, the ‘.question. : arises for* considerationwhether leave toV-appeal should be granted • in such anapplication. •. j.-v,
In Article 128j 1) where provision is made fpr leave to appeal tothe Supreme Court to be granted by the Court of Appeal Jhewords used are. "final order, judgment, decree or sentence of theCourt of Appeal-in' any .matter or proceedings, whether civil or..criminal, which involves-, a substantial question^.of law." [This inmy view restricts the power-of the. Court of Appeal to grantjeayeto appeal only where substantial questions of law arises fromsuch, "final order. judgmehtv.|decree or sentence." This becornesclear when one examines Arti.cie 128.(2) wherejthe power of theSupreme Court to grant special leave i$ .dealt with. The.amplitude of the prQvisidns'there'appear? to' be much wider. Thesaid s'ub-sec'tidn provides for' special leave to appeal to'begranted, "from any final or interlocutory order, judgment, decreeor sentence made by the Court of Appeal in any'‘matter orproceedings., whether ■ civil or criminal." In addition, andimportantly, the Supreme Court is vested with the. power to grantsuch special leave "where in th'edpinion of thd Supreme Court.-acase or matter i's fit for review by the Supreme Court." The words’cas'e-’or 'matter'; in my view enlarges the scope of the power ofthe Supreme Court to grant special leave to appeal even otherthan from a. "final order, judgment, decree or sentence of theCourt of Appeal."'Furthermore.'-the proviso to the-said- articlestates that the-Supreme Court shail-grant ‘leave to-appeal "onevery matter of proceedings 'in which it- is satisfied'that thequestion to bd"decided is-of public of ge'hefarimpof:tance." ;lt is•therefore seen thaf'the power vested.in the Supre'rne Court togrant special, leave to appeal is more extensive than the powergranted to the Court of Appeal to'permit leave to appeal to^theSupreme-Court. ' c•-.
Thus it appears, from the above analysis that whilst the Court-OfAppeal only has power to grant leave to appeal-from a "finalorder, judgment, decree or sentence of the Court of'Appeal."
306
Sri Lanka Law Reports-
l) 989J I Sri L R.
The-circumstances under which the Supreme Court exercises itsjurisdiction to grant-special leave to appeal is much wider; In thelight of the said interpretation, when one considers the presentapplication of the petitioner, the questions of the law urged bythe petitioner' not being questions of iaw arising from thejudgment of the Court of Appeal, are therefore beyond the scopeof Article 128(1). Hence, the petitioner would not be entitled toobtain Jeave^to appeal to the Supreme Court, from the Court ofAppeal. '
There i's dlsp another aspect that arises from the said questionsof lavy that the petitioner is Peeking to canvass before the SupremeCourt. Of the said questions, some-are questions of mixed factand law a’nd'the Court of Appeal'in deciding this applicationwould be. .required, to consider facts in relation to the questibnsraised in order to decide upon' the question whether'they aresubstantial questions of law. fit to be reviewed by the. Supremefcourt. Thi».exercise of considering facts'not'argued in the mainappeal, ip .my view, is unwarranted in a leave to appealapplication.
( . In con,cj.usion it must, be rioted that of the grounds urged assubstantial questions of law. the only matter-which related, if .atall. to the judgment of the Court of. Appeal as I stated earlier-, isthe ground-urged in,para. 9Jg). This relates to the question ofnon-compliance with Rule 46 of the Supreme Court Rules. It hasbeen heid- by the Supreme Court, by a majority of the Judges, inthe-case1 of Mohamed Haniffa Jjtasheed Ali-vs: Khan Mohamed AHand another^), .that the Rule 46 of the Supreme Court Rules ismandatpryr, ifhis decision has j-been followed by the Court, ofAppealcin,the.ease ,of Marynona- vs. Fransina^-_ In any event.-thenon-compliance of Rule 46 is mainly a, question of fact., In myview it ,d,oes; not give rise to a question-of substantial law which is■f.it;to.be re.viewed.b.y:the Supreme Court. For. the'above reasons Irefuse leave to appeal in this case and dismiss the application. .
. Leave to appeal-ref used,
1r !.. {• ■■ -pp’v,v
Application^ dismjssed,