FERNANDO, P.—Abdul Coder o. David
[In the Cotjbt op Appeal of Ceylon]
1972 Present: Fernando, P., SIrimane, J., Samerawlckrame, J.,and Siva Supramaniam, i.
M.A. M. ABDUL CADER, Applicant, and ASOKUMAR DAVID,
Application No. 20 of 1972’
S. C. 148 (F)I66—D. C. Puttalam, 6327
Court of Appeal—Judgment of Supreme Court delivered prior to January 19, 1972—Application for leave to appeal therefrom—Time limit for fling such application—Court of Appeal " Leave to Appeal Procedure ” Rules, 1972, Rule 7—Court ofAppeal Act, No. 44 of 1971, ss. 1, 2, 3, 11, 13 (I), 13 (3), 14, 18—CourtsOrdinance (Cap. 6), Chapter V.
Role 7 of the “ Leave to Appeal Procedure ” Rules, 1972, which came intooperation on January 19, 1972, reads as follows:—
“ Applications for leave to appeal in any civil or criminal matter shall bemade within twenty-one days of the delivery of the judgment from which itis sought to appeal.
Provided, however, that until the coming into operation of these Rules,applications for leave to appeal shall be made within a reasonable timo andwith the least possible delay. ”
Held, that in considering whether on application for leave to appeal from ajudgment delivered by tho Supremo Court on a date prior to January 19, 1972,was made with reasonable diligence and witheut undue delay, the time mustbe computed as from November 15, 1971, which was tho date when the Court ofAppoal came into boing, and not as from March 8, 1972, which was tho datewhen tho minimum number of Judges necessary to constitute the Court ofAppoal was appointed.
.APPLICATION filed on March 22, 1972, for leave to appeal from ajudgment of tho Supreme Court delivered on May 30, 1971.
M.Tiruchelvam, Q.C., with M. S. M. Nazeem and M. A. M. Bdki,for tho applicant.
N.Satyendra, for the respondent.
Cur. adv. vidl.
May 16, 1972. Febnando, P.—The applicant by his application lodged in the Registry of the Court ofAppeal on March 22, 1972, seeks leave to appeal to this Court from ajudgment of the Supreme Court delivered on May 30, 1971. A preli-minary objection to our entertaining this application was raised on behalfof the respondent, the ground of the objection being that the applicationwas not filed within the time prescribed by the Rules made under thepowers specified in Section 13 (1) of the Court of Appeal Aot. No. 44 of
FERNANDO,' P.—Abdul Coder v. David
That Section conferred a power on the President of theCourt of Appeal to make, with the concurrence of the Minister of Justice,Rules of Court regulating generally the practice and procedure of theCourt of Appeal including the time within which appeals to the Courtare to be entertained. There is no dispute that the expression“ appeals ” in Section 13 (1) includes applications for leave to appeal.
Certain Rules made under the powers conferred by the aforesaid Section13 (1) and styled the Court of Appeal “Leave to Appeal Procedure”Rules, 1972, have been published in Gazette Extraordinary No. 14,993/46of January 19, 1972. By virtue of Section 13 (3) of the Act, these Rulescame into operation on the date of publication, namely January 19,
Rule 7 of these Rules specifies the time limit for presentationof applications for leave to appeal and is in the following terms :—
“ 7. Applications for leave to appeal in any civil or criminal matterBhall be made within twenty-one days of the delivery of the judgmentfrom which it is sought to appeal-
Provided, however, that until the coming into operation of theseRules, applications for leave to appeal shall be made within a reasonabletime and with the least possible delay. ”
The Court of Appeal Act, No. 44 of 1971 came into operation (Section 1)on November 16, 1971—see Gazette Extraordinary No. 14,983/12 ofNovember 12, 1971. On an assumption that the Court of Appeal cameto be established only on that date, clearly the first part of Rule 7 whichcould only have prospective application could not have been compliedwith by the applicant as the judgment he is aggrieved by was deliveredso long ago as May 30, 1971. Though there was no fixed time limitapplicable to this matter, he had to be reasonably diligent in makinghis application ; it was not open to him to be dilatory or to be guilty ofundue delay. The proviso-to rule 7 is not intended to do more thanto set out in express terms what even otherwise a party making anapplication was obliged to do. The purpose for which it was made wasthus not to impose on 19th January 1972 an entirely new conditionwhich an application made by a party earlier had not to satisfy. Interms it applies only to applications made on a date prior to the 19thJanuary 1972 when the rules came into operation.
While therefore an application which falls within the proviso will beduly made, one that does not fall exactly and strictly within its termswill not necessarily be out of time. It will suffice that an applicationfor leave to appeal from a judgment delivered before the coming into■ operation of the rules, whether made before or after 19th January 1972,is shown to our satisfaction to have been made with reasonable diligenceand without undue delay.*
Mr. Tiruchelvam sought an escape for the applicant from the operationof the time limit indicated in Rule 7 by contending that, as the Court ofAppeal was not constituted (Section 3) until March 8,1972, in the sense
FERNANDO, P.—Abdul Coder v. David
that the minimum number of Judges necessary to constitute the Courtwas appointed only on that date, there was no Court in existence to whichthe applicant could have applied for leave to appeal or in which he couldhave lodged his application. To use his own words, “ there must bejudges before there can be a Court We think that an examination ofChapter V of the Courts Ordinance which provides for the establishmentof District Courts, Courts of Requests and Magistrates’ Courts andappointment of judges thereto is sufficient by way of a general answerto Mr. Tiruchelvam’s contention, without an enumeration of othersimilar provisions which are readily available.' After an examinationof his argument we were unable to agree with his contention that therewas no distinction between the establishment of the Court and its consti-tution. It is clear that when Section 2 of the Act enacted that “ thereshall be a Court of Appeal . . . the Court, which is undoubtedlya creature of statute, was established in the sense that it came intoexistence on the day the statute itself came into operation. The Presidentof the Court of Appeal was appointed on November 20, 1971, and thereare no words in the Act to warrant a conclusion that the Presidentcould'not himself have been appointed except at the same time as atleast two other Judges of this Court received appointment. ThenSection 11 of the Act provides for a Registrar and other officers of theCourt, and Section 13 enables the President to make Rules of Court.We are unable to accede to the argument necessarily implied in thecontention raised by Mr. Tiruchelvam that neither the President nor theRegistrar and the other officers could have been appointed until theCourt was constituted within the meaning of Section 3.
Mr. Satyendra submitted that the Act contemplates three classes ofpowers of the Court—administrative, legislative and judicial. He pointedout that certain administrative functions of the Court have to be performedby the Registrar and the other officers, that the President has beenvested with certain legislative powers and that the judicial power lieBin the Court constituted in terms of Section 3. He emphasised thedistinction between the Court as an institution and the holders of officetherein, viz., the judges. This submission is undoubtedly sound, andit is only for the hearing and determining of appeals and applicationsfor leave to appeal, or, in other words, for the exercise of the judicialpower of Court, that the minimum number of judges specified in Section 3becomes necessary. We therefore hold that the Court was establishedor came into being on November 16,1971, and it follows that an applica-tion for leave to appeal or an appeal could have been lodged at any timeon or after that date. A constitution of the Court was not necessaryto enable an intending applicant for leave or an appellant to file hisapplication or appeal, as the case may be, in the already established.Court because the filing of documents of that kind is a unilateral actby the applicant or appellant. Such lodging could have been effectedby presenting the documents to the Registrar who had himself receivedappointment as from the date of operation of the Act and there was anestablished Registry of the Court on that date.
FERNANDO, P.—Abdul Coder v. David
The affidavit filed by the applicant indicates that he had after May 30,1971, taken certain steps under the Appeals (Privy Council) Ordinanceto obtain from the Supreme Court leave to appeal to the Privy Council.Those steps had not been completed by the date the Court of Appeal Actcame into operation.
Section 14 of the Court of Appeal Act repealed the Appeals (PrivyCouncil) Ordinance as from November 15, 1971. It is indisputablethat litigants were generally aware, at any rate by about the middle of1971, of the proposal to abolish the jurisdiction of the Privy Counciland to substitute therefor a Court of Appeal in Ceylon. As we hold(1) against Mr. Tiruchelvam’s contention which was that it was notpossible to invoke the judicial power of the Court of Appeal until theminimum number of judges received appointment and (2) that anapplication for leave to appeal was competent as from November 15, 1971,what we have now to consider upon this application is whether therehas been on the part of the applicant reasonable diligence and no unduedelay in making the application. Before the date of the operation ofRule 7 the applicant had a period of two months and three days duringwhich he could have lodged his application. He actually did so onlyon March 22, 1972, i.e. more than four months afterwards. Whereasthe time limit after the Rules came into operation has been fixed aswithin 21 days (and no one has contended that this itself is an unreasonablelimit), whether the case of this applicant is one to which the provisoto Rule 7 applies or is one which falls outside Rule 7 altogether, adelay of over four months is in our opinion an unreasonable delay.Mr. Tiruchelvam did not appear to us to submit that a procedural baron the basis of dilatory tactics on the part of an applicant wasintrinsically unfair or unreasonable. Therefore, when one remembersthat the submission for the applicant is that he was waiting for theestablishment of the Court (even to the extent of not being anxious topursue his application for leave to appeal to the Privy Council), weare left'with the situation that no valid reason has been put forwardto excuse the delay in invoking the jurisdiction of the Court exceptthe unsuccessful argument that that jurisdiction could not have beeninvoked until March 8, 1972.
It may be mentioned here that Section ,18 of the Court of Appeal Actabolished the right of appeal to Her Majesty in Council. The date thatabolition took effect was the date the Court of Appeal Act itself cameinto operation. We have the satisfaction therefore of observing that theview which we have upheld that the Court of Appeal itself was establishedon the same date is not only not in conflict with but actually furthersthe achievement of the principal objects for which Act No. 44 of 1971purported to provide, viz., the establishment of a Court of Appeal at thesame time as the abolition of appeals to Her Majesty in Council.
We uphold the respondent’s preliminary objection. In this situationwe do not feel it necessary to examine another objection raised for therespondent and on which both Counsel addressed us, namely, that the
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question involved in the proposed appeal is not one of general orpublio importance. We would refuse leave to appeal and award tothe respondent his costs of the application.
M. A. M. ABDUL CADER, Applicant, and ASOKUMAR DAVID, Respondent