P. S. DE SILVA. C.J..
PERERA, J. ANDWIJETUNGA, J.
S.C. APPEAL NO. 110/95
C. COLOMBO NO. 33/91M.C. COLOMBO NO. 65573NOVEMBER 20. 1996.
Appeal – Jurisdiction of the High Court to entertain an appeal – Right of Appeal -Urban Development Authority Law No. 41 of 1978 as amended. Sections 19D(1)and 19H(1) – Article 154P(3) (b) of the Constitution.
The appellant appealed to the Court of Appeal against an order made by theMagistrate in proceedings under Section 19D(1) of the Urban DevelopmentAuthority Law No. 41 of 1978, as amended by Act No. 41 of 1988. The Appealwhich was filed In the Magistrate's court was forwarded to the High court ofColombo. The High Court Judge heard the appeal.
As at the date the appeal was filed, the appellant's statutory right of appeal wasto appeal to the Court of Appeal, hence the High Court had no jurisdiction to hearand determine the appeal. Article 154P(3) (b) of the Constitution only conferredforum jurisdiction to hear appeals but does not create a corresponding right inany person to invoke the appellate jurisdiction. A right of appeal is a statutoryright and must be expressly created and granted by statute.
Cases referred to:
Gunaratne v. Thambinayagam (1993) 2 Sri LR-355,360.
Martin v. Wijewardena (1989) 2 Sri L.R. 409.
Patera v. The Commissioner of National Housing 77 NLR 361 at 366.
APPEAL from the judgment of the High Court of Colombo.
Faisz Musthapha, P.C., with Amarasiri Panditharatne for appellant.
Romesh de Silva, P.C., with Harsha Amerasekera for substituted respondent.
Cur. adv. vult.
P. S. DE SILVA, C.J.,
The predecessor of the substituted petitioner-respondent institutedthese proceedings in the Magistrate’s Court in terms of section19D (1) of the Urban Development Authority Law No. 41 of 1978 asamended by the Urban Development Authority (Amendment) ActNo. 41 of 1988 to eject the appellant and two others from unit (F) 132of the 1st floor of the condominium property named Liberty Plaza.The Magistrate by his order dated 6.4.90 allowed the application andmade absolute the order nisi.
The appellant filed in the Magistrate's Court a petition of appealagainst the order of the Magistrate. It is to be noted that the petitionof appeal was addressed to the Court of Appeal. The journal entrydated 18.4.90 shows that the Magistrate had made order (1) “acceptappeal” (2) “enter in appeals register", (3) “forward to the High Court,Colombo, for preparation of briefs to be transmitted to the Court ofAppeal" – (vide J. E. 18.4.90). It is Common ground that the appealhad been lodged in the Magistrate's Court on the 18th April 1990.However, the appeal was by an error, listed for argument before theHigh Court of the Western Province (Colombo). Written submissions
were filed, oral submissions were made on 22.3.95 before the HighCourt and the High Court on 24.5.95 dismissed the appeal.
The appellant filed an application for special leave to appeal tothis court against the order of the High Court and leave was grantedon the following matters:- (a) Did the High Court have jurisdiction totake cognizance of and/or hear and determine the appeal from theorder of the Magistrate’s Court; (b) if not, should this matter bereferred to the Court of Appeal for decision in respect of the appealagainst the order of the Magistrate's Court?
It was the submissions of Mr. Musthapha for the appellant that theHigh Court had no jurisdiction to hear and determine the appeal. Withthis submission I agree. The right of appeal against an order made inproceedings under section 19D(1) is conferred by section 19H(1) ofthe amending Act No. 41 of 1988. Section 19H(1) is in the followingterms:- “Any person who is dissatisfied with an order under section19E(3) or 19F( 1) by a Magistrate's Court may before the expiry of aperiod of 14 days from the date of such order, appeal to the Court ofAppeal against such order." It is clear therefore that the right ofappeal was to the Court of Appeal and not to the High Court.
It is true that Article 154P (3) (b) of the Constitution enacts that aHigh Court for each Province shall “notwithstanding anything in Article138 and subject to any law, exercise, appellate and revisionaryjurisdiction in respect of convictions, sentences and orders entered orimposed by magistrates Courts and Primary Courts within theprovinces." But the point to be noted is that while Article 154 P confersappellate jurisdiction on the High Court (forum jurisdiction) yet it doesnot create a corresponding right in any person to invoke the appellatejurisdiction. It is well settled law “that a right of appeal is a statutoryright and must be expressly created and granted by Statute."Gunaratne v. Thambinayagam and Others"'. The right of appeal to aHigh Court for each Province from orders made by Magistrates Courtswas expressly created and granted by section 4 of the High Court ofthe Provinces (Special Provisions) Act No. 19 of 1990. This Act cameinto operation only on the 15th of May 1990. Therefore on the 18th ofApril 1990, which was the date on which the petition of appeal wasfiled in the Magistrate's Court, there existed no right of appeal to theHigh Court established by Article 154P of the Constitution.
Mr. Musthapha cited the case of Martin v Wijewardenat}), which isof relevance to the matters in issue in this appeal. That was a casewhere the following preliminary question of law arose forconsideration:- “Does Article 138 of the Constitution confer any rightson any aggrieved person to appeal to the Court of Appeal from anyorder made by the Assistant Commissioner of Agrarian Services interms of section 18(1) of Act No. 58 of 1979 when such a right hasnot been specifically conferred by Statute?".
Jameel J.( having set out the provisions of Article 138 expressedhimself in the following terms:- "Article 138 is an enabling provisionwhich creates and grants jurisdiction to the Court of Appeal to hearappeals from courts of first instance, tribunals and other institutions, itdefines and delineates the jurisdiction of the Court of Appeal, it doesnot, nor indeed does it seek to create or grant rights to individualsviz-a-viz appeals, it only deals with the jurisdiction of the Court ofAppeal and its limits and its limitations and nothing more. It does notexpressly nor by implication create or grant any rights in respect ofindividuals (at page 413)… Article 138 is only an enabling Article andit confers the jurisdiction to hear and determine appeals to the Courtof Appeal. The right to avail of or to take advantage of that jurisdictionis governed by the several statutory provisions in various LegislativeEnactments." (at page 419). This reasoning would apply with equalforce to the conferment of jurisdiction on the High Court establishedby Article 154P. As stated earlier, the right of appeal to a HighCourt of the Province was conferred only by the High Court of theProvinces (Special Provisions) Act No. 19 of 1990 which was broughtinto operation on a date subsequent to the filing of the petition ofappeal in this case.
Mr. Romesh de Silva for the respondent stressed the fact that noobjection to the jurisdiction of the High Court of the Western Provinceto hear and determine this appeal was ever taken either in the writtensubmissions or at the hearing of the appeal. In my view the failure totake such objection is of no avail to the respondent, as this is clearlya case where there was a patent want of jurisdiction in the High Courtof the Western Province to hear and determine the appeal, (seePerera v The Commissioner of National Housing0').
I accordingly hold that the High Court of the Western Province hadno jurisdiction to hear and determine the appeal. The appeal isallowed, the judgment of the High Court is set aside and the Court ofAppeal is directed to hear and determine this appeal. There will beno costs.
PERERA, J. -1 agree.
WUETUNGA, J. – I agreeAppeal allowed.
MALEGODA v. JOACHIM