089-NLR-NLR-V-74-MALIBAN-BISCUIT-MANUFACTORIES-LTD.-Appellants-and-R.-SUBRAMANIAM-THE-CEYLON-M.pdf
Malibu » Biscuit Manufactories Lid. v. Subramaniam
337
[Privy Council]
1971 Present: Lord Morris of Borth-y-Gesf, Lord Guest, Viscount Dilhorne,Lord Simon of Glaisdale and Lord Cross of Chelsea
MALI BAX BISCUIT MANUFACTORIES LTD., Appellants, andR. SUBRAMANIAM, THE CEYLON MERCANTILE UNION,
N. L. ABEYTVIRA and another, Respondents
Privy Council Appeal No. 48 of 1970
S. C. 207jOS—Application for Conditional Leave to appeal to Iler Majesty _the Queen-in-Council in S. C. Application No. 49S/67
Appeals (Privy Council) Ordinance (Cup. 100)—Section 3—Scope and meaning of thewords “civil suits or actions ”— Applicability to a writ of certiorari—Section52 of the Ceylon Charter of Justice of 1S33—Civil Procedure Code (Cap. 101),ss. 5, 0—Industrial Disputes Act (Cap. 131), s. 4 (1).
An application to the Supremo Court for a writ of certiorari in a civil matteris a “ civil suit or notion ” within the mooning of section 3 of tho Appeals(Privy Council) Ordinance. Tho reasoning which was tho basis of the decisionof tho Supremo Court in Silvcrline Bus Co.. Ltd. v. Kandy Omnibus Go., Ltd.(58 N. L. R. 193) canuot stand.
Tenneboon v. Duraisamy (59 N. L. R. 481) and Colombo ApothecariesCo. Lid., v. Wijesooriya (71 N. L. R. 25S) approved.
-A.PPEAL, with sjiecial leave, from a judgment of the Supremo Courtreported in (I960) 74 N L. JR. 70.
An industrial dispute was referred to a Labour Tribunal in terms ofsection 4 (1) of the Industrial Disputes Act (Cap. 131). The appeiiant-Company raised the preliminary objection that the Labour Tribunal hadno jurisdiction to enquire into the matters in the reference. This objectionwas rejected by the Labour Tribunal and subsequent]}', in an applicationfor a writ of certiorari, by the Supreme Court. The appellants thenapplied to the Supreme Court for conditional leave to appeal to the PrivyCouncil from the judgment of the Supreme Court, but this application wasrefused on the sole ground that the application for the writ of certiorariwas not a civil suit or action within the meaning of section 3 of the Appeals(Privy Council) Ordinance. Thereafter the appellants filed the presentappeal to the Privy Council after obtaining special leave.
F. N. Gratiaen, Q. C., with Eugene Colran, for the appellants.
No appearance for the respondents.
LXXIV—15
!•—K 7055—2.255 (10/71)
Cur. adv. vult.
33S LORD MORRIS OF BORTH-Y-GEST.—Jdaliban Bi3cuit hlanufactorit*
Ltd. v. Subramaniam
July 19, 1971.[Delivered by Lord Morris of Borth-y-Gest]—
In the exercise or in the purported exercise of powers vested in him bysection 4 (1) of The Industrial Disputes Act (Chapter 131 of theLegislative Enactments of Ceylon), as amended by other Acts, the-Ministerof Labour on 14th June 19G7 referred an industrial dispute between theappellants and the second respondents to the first respondent as Presidentof the Labour Tribunal for settlement by arbitration. Various matterswere specified by the Minister as being in dispute between the appellantsand the second respondents.- The appellants contended however thatthe order of reference was not valid in law : that the Tribunal had nojurisdiction to entertain a reference relating to the matters which werespecified : and that the second respondents had no right, to represent anyof the persons named in the r eference. The appellants raised and arguedtheir contentions (which need not be referred to in detail) as preliminaryobjections at a hearing before the first respondent. The first respondent-considered them and by an Order made on 12th December 1907 lie held,rejecting the contentions, that the reference taken as a whole was validand that subject to certain stated exceptions the Tribunal had jurisdictionto enquire into the matters in the reference.
The appellants thereupon by Petition dated 19th December 19G7 appliedto the Supreme Court for a Mandate in the nature of a writ of certiorariagainst the first respondent quashing the proceedings held by him andhis order of 12th December 19G7 and for a Mandate in the nature ofa writ of jvohibition against the first respondent prohibiting him fromhaving any further proceedings in the matter.
The application was heard by the Supreme Court on 26th and 27thJanuary 196S. Counsel appeared for the appellants: the secondrespondents were also represented by Counsel : as also was the tjiirdrespondent for whom Crown Counsel appeared. The hearing was beforeH. N. G. Fernando Chief Justice and Abcycsundere J. By their decisionwhich was given on 9tJi April 196S the Supreme Court held that noneof the several grounds of objection taken by the appellants “ could havejustified any liojic of a decision either by the Arbitrator or by the SupremeCourt that proceedings should not be taken by the Arbitrator upon thereference ”. The application of the appellants was therefore dismissedand the appellants were ordered to pay costs (fixed at Rs. 1,050) to thesecond respondents.
The appellants desired to appeal to Her Majesty in Council against theDecision and Order of the Supreme Court. By Petition they madeapplication (on 30th April 19GS) to the Supreme Court for conditionalleave to appeal. It is provided by section 3 of the Appeals (Privy Council)Ordinance (Chapter 100) as follows :
3. From and after the commencement of this'Ordinance the right
of parties to civil suits or actions in the Supreme Court to appeal
LORD MORRIS OF BORTH-Y-GEST.—Maliban Biscuit Manufactories . 339
Ltd. v. Subramaniam
to Her Majesty in Council against the judgments and orders of suchcourt shall be subject to and regulated b}'—
(a) the limitations and conditions prescribed by the rules set outin the Schedule, or by such other rules as may from time totime be made by Her Majesty in Council : and(It) such general rules and orders of court as the Judges of theSupreme Court may from time to time make in exercise ofany power conferred upon them by any enactment for thetime being in force. ”
Rules 1 and 2 of the Schedule are as follows :
“ 1. Subject to the provisions of these rules, an appeal shall lie—
(а)as of right, from any final judgment of the court, where the
matter in dispute on the appeal amounts to or is of the valueof five thousand rupees or upwards, or where the appealinvolves directly or indirectly some claim or question to orrespecting property or some civil right amounting to or ofthe value of five thousand rupees or upwards; and
(б)at the discretion of the court, from any other judgment of the
court, whether final or interlocutory, if, in the opinion of thecourt, the question involved in the appeal is one wlvmh, byreason of its great general or public importance or otherwise,ought to be submitted to Her Majesty in Council for •decision.
Application to the court for leave to appeal shall be made bypetition within thirty days from the date of the judgment to beappealed from, and the applicant shall, within fourteen days from thedate of such judgment, give the opposite party notice of suchintended application. ”
The application of the appellants stated that Notice of the intendedapplication for leave to appeal had been given to each of the respondentsin terms of Rule 2. The Petition stated that the Judgment of theSupreme Court of 9th April 1968 was a final judgment and that thematter in dispute amounted to or was of the value of upwards ofRs. 5,000 and that the apjjeal involved directly or indirectly someclaim or question to or respecting property or some civil rightamounting to or of the value of upwards of Rs. 5,000.
The second respondents presented a statement of objections in whichthey asserted that the Judgment or Order of 9th April 19CS was not afinal judgment within the meaning of that expression in Rule 1, that thematter in dispute did not amount to Rs. 5,000, that the appeal did notinvolve any property claim or question of that value, and that theapplication for a Writ which the appellants had made was not a civilsuit or action within the meaning of section 3 of the Appeals (Privy Counoil)Ordinance.
340 LORD MORRIS OK BORTH-Y-GEST.—Matiban Biscuit Manufactories
Ltd. v. Subramaniam
The application was heard by the Supreme Court on 19th, 20th and23rd August 19G3. Counsel appeared for the appellants. Counselappeared for the second respondents. The Court gave its decision on 19thDecember in the following year (19G9). From the terms of the Judgmentit appears that the main contention of Counsel for the second respondentswas that the Judgment or Order of tlie Supreme Court dismissing theapplication of the appellants for writs of certiorari and -prohibition wasnot an order which was made in a civil suit or action. The Judgmentrecords that Counsel for the second respondents also contended that thematter in dispute on the appeal did not amount to Rs. 5,000 and that theappeal did not involve any property claim or question of that value.It does not appear to have been contended that- the Judgment or Order ofthe Supreme Court was other than a final judgment.
The conclusion of the Supreme Court was that their previous Judgmentor Order was not one made in a civil suit or action. On that groundthey held that the appellants were not entitled to appeal. Theirapplication was therefore dismissed with costs. The Court, found itunnecessary to consider the contention that the matter in dispute on theappeal did not amount to Rs. 5,000 and that the appeal did not involveany property, claim or question of that value.
On 25th February 1970 an Order in Council was made granting theappellant special leave to appeal to Her Majesty in Council.
The question which now arises for decision is whether the SupremeCourt were correct in deciding that, the appellants were not entitled toappeal to Her Majesty in Council for the reason that the Judgment orOrder against which they contend they have a right of appeal was nota judgment in a civil suit or action. If the Supremo Court were wrongin so deciding then subject lo their being satisfied in regard to thequestions above noted as to the value of the matter or claim in disputeand subject to the satisfaction of prescribed conditions it would betheir duty to accede to the appellants’ application and to grant- leaveto appeal.
The reasons which guided the Supreme Court to their conclusion thatthe appellants were not entitled to appeal were (a) that it had been decidedin the Supreme Court in the case of Si/verline Bus Company Ltd. v. KandyOmnibus Company Ltd.1 53 X.L.R. 193 that certiorari proceedings didnot “ fall within the category of proceedings known as suits or actions ”and (b) that that conclusion was untouched by the decision of the PrivyCouncil in the case of Tcnnckoon v. Duraisamy 2 [195S] A.C. 354.
It is clear that the right to appeal to Her Majesty in Council to whichsection 3 of the Appeals (Privy Council) Ordinance relates is the rightof “parties to civil suits or actions’’. The Ordinance does not relateto criminal matters. Their Lordships arc only here concerned with a
‘ (19-56) 5S N. L. Jl. 193.
(1955) A. C. 3-54; 59 A L. Ft. 4S1.
LORD MORRIS OF BORTH-Y-GEST.—Maliban Biscuit Manufactories 3-J1
Ltd. v. Subramaniam
civil matter. The question which is now raised is whether the application:which the appcilants made in this case for a il-ril of certiorari or ofprohibition was within the designation of a civil suit or action.
Tho Appeals (Privy Council) Ordinance contains an Interpretationsection (sec section 2) but there is no definition of civil suit or action.In tho Civil Procedure Code (Chapter 101) there is an InterpretationClause (section 5). Subject to context the word “action” in theOrdinance lias the meaning of “ a proceeding for the prevention or redressof a wrong ”. By section G it is provided that “ Every application to acourt for relief or remedy obtainable through ihe exercise of the Court’spower or authority, or otherwise to invite its interference, constitutesan action The Code provides that (he procedure of air action may boeither “regular” or “summary” and the Code prescribes both thecourse of regular and of summary procedure.
As there is no provision by which the words “ civil suits or actions”as appearing in the Appeals (Privy Council) Ordinance arc given expressdefinition the question as to their scope and meaning calls for considera-tion. In their Lordships’ view this question was decided in the Judgmentof the Board in Tennekoon v. Duraisamy1 [195S] A.C. 354. In that case-there had been an appeal to the Supreme Court under section 15 of theIndian and Pakistani Residents Citizen.-hip Act. The Supreme Courtallowed leave to appeal from their Judgment to Her Majesty in Council.On the hearing of the appeal before the Board a preliminary objectionwas taken to the competency of the appeal. So the issue was raised asto whether the Judgment of the Supreme Court had been given in a civilsuit or action. The preliminary objection was argued and in deliveringthe Judgment of the Board Lord Morton of Hcnryton dealt fully (seepp. 373-9) with the reasons why it failed. It was held that the words“ civil suits or actions ” in section 3 of tho Appeals (Privy' Council)Ordinance bore tne same meaning as they bore in section 52 of the CeylonCharter of Justice of 1S33.
In the course of the Judgment Lord Morton said :
“ It was argued before their Lordships that the judges of the SupremeCourt were wrong, that they had not power to grant leave to appeal,and that consequently their Lordships had no jurisdiction to hear thoappeal, unless and until an application to Her Majesty for specialleave to appeal was successfully made. It is thus necessary to examinewhether the proceedings before the Supreme Court were a ‘ civil suitor action ’ within the meaning of section 3. There has been a conflictof authority in Ceylon upon the point.
The words ‘civil suit or action’ first occur in section 52 of theCharter of IS33, which conferred on the subject a right to appeal tothe Sovereign. It is in the following terms :‘ 52. And We do
1 (105S) A. C. 35 i ; 59 N. L. It. 4S1.
!•*—K 7955 (10/71)
342 LORD MORRIS OF BORTII-Y-CEST.—Matiban Biscuit Manufactories
Ltd. v. Subramaniam
further grant, ordain, direct, and appoint that it shall be lawful forany p.rsou or persons being a party or parties to any civil suit oraction depending in the said Supreme Court to appeal to Us Our heirsand successors in Our or Their Privy Council against any finaljudgment, decree, or sentence, or against any rule or order made inany such civil suit or action, and having the effect of a final ordefinitive sentence, and which appeals shall be made subject to thorules and limitations following
There follow a number of rules and limitations designed, amongother things, to exclude eases considered of insufficient importanceto be the subject-matter of an appeal to the Privy Council. It is tobe observed that the section enabled a person, subject to these rulesand limitations, to appeal as of right to the Sovereign. ' Section 53,which their Lordships think unnecessary to set out here, preservedintact the right of the Sovereign to admit appeals from the subjecteven where the subject could not appeal as of right.
It was argued before the Supreme Court and their Lordships thata civil suit or action means a proceeding in which one party suesfor or claims something from another. 2o doubt tho words areproperly applicable to such cases, and they are the cases to whichthe words are most frequently applied. But it is necessary to inquirewhether the application of the words as they appear in section 52of the Charter must be limited to such eases. Their Lordships wouldmake the general observation that section 52 of the Charter wasgranting to a subject labouring under a sense of grievance thefundamental right of appealing to the Sovereign and that-, though itwould be natural to exclude from the range of permissible appealseases of insufficient importance, it would be difficult (o imagine anintention to exclude eases differentiated by reference to flic form ofthe proceedings, regardless of the gravity of the result occasioned bythem. And as section 3 of tho Appeals Ordinance sets out themanner in which ‘ the right of parties to civil suits or actions in theSupreme Court to appeal to His Majesty in Council ’ is to be regulated,their Lordships do not doubt that tho words ; civil suits or actions ’must be given the meaning which they boro in the Charter of 1S33 . ”
Having referred to and adopted the reasoning of the Board in the casoof Commissioner of Stamps, Sir-nils Settlements v. Oei Tjong Swan 1 [1033]A.C. 37S (where the meaning of the w ords “ civil cause ” was considered)Lord Morton referred to the definition of the word “action” in thoCourts Ordinance and in the Civil Procedure Code—i.c., as “ a proceedingfor the prevention or redress of a wrong ” and proceeded: ■
“ It was argued that the order of the deputy commissioner couldnot be said to be a wrong in the sense that a tort or a breach of contractcan be said to be a wrong, as there was nothing illegal in the action
U03Z) A. C. MS.
343
LORD MORRIS OF BORTH Y-GEST.—Maliban Biscuit Manu factories
Ltd. v. Subramaniam
of the deputy commissioner. On the other hand, it was argued thatthe word ‘ wrong ’ in the definition has a wider connotation and wouldinclude the consequence of an order made bj' a commissioner which iswrong though legally made. It is not necessary for their Lordships todecide the point. The Charter was granted long before the two Ordin-ances mentioned were enacted and, as their Lordships have alreadypointed out, the words ‘civil suits or actions’ in the Privy Council .Appeals Ordinance must bear the same meaning as they bore in tlvoCharter.
In addition to the definition of ‘action’ {contained in section 5)mentioned above the Civil Procedure Code contains the following insection 6 : ‘ Every application to a court for relief or remedy throughthe exercise of the court’s power or authority, or otherwise to invite itsinterference, constitutes an action ’. This is what their Lordshipsthink is the meaning of 1 action ’ in the Charter and in the AppealsOrdinance though, as will have been seen, they do not found theirdecision on this section. ”
In the light of the ruling of the Board in the passages above quotedtheir Lordships think that it is clear that the decision of the SupremoCourt rejecting the appellants’ application for writs of certiorari orprohibition in this ease was a judgment or order in a civil suit or action.Their Lordships do not find it necessary to refer fully to the Judgmentof the Supreme Court in Silverline Bus Co. Lid. v. Kandy Omnibus Co.Lid.1 5S N.L.R. 193. It had there been held that an application for awrit of certiorari did not come within the words “ civil suit or action ”and it was held that such words should be construed in their ordinarysense of a proceeding in which one party sues for or claims somethingfrom another in regular proceedings. That case was referred to byLord Morton who stated that it had been decided after the' SupremoCourt had granted the application for leave to appeal in the T enr^'kaencase. He said that the point actually decided in the Silverline Bvs Co.Ltd. case was not before their Lordships and so they heard no argumentupon it. He added however that it followed from the views that theirLordships had expressed that they could not accept the view ofBasnayake C.J. that the words “ civil suit or action ” in section 3 ofthe Appeals Ordinance should be limited to “ a proceeding in whichone party sues for or claims something from another in regular civilproceedings ”.
The point that arose in the Silverline Bus Co. Lid. ease docs arise inthe present case. In view of the decision and reasoning expressed inthe Judgment of the Board in Tennekoon v. Duraisamy their Lordshipsconsider that the reasoning which was the basis of the decision in thoSupreme Court in the Silverline ease cannot stand. The Judgment orOrder of tho Supreme Court dismissing the appellants’ appbeation for
(1950) 58 N.L.R. 193.
344 Independent Industrial cO Commercial Employees' Union v. Board o]Directors, Co-operative Wholesale Establishment, Colombo
writs of certiorari or prohibition was a judgment or order in a civil suitor action. The. recent case of Colombo Apothecaries Co. Ltd. v. Wijesooriya171 N.L.R. 25S was correctly decided.
For the reasons which they have set out their Lordships will humblyadvise Her Majesty that the appeal should be allowed and that theDecree of the Supreme Court of the 19th December 19G9 dismissing theapplication for conditional leave to appeal should be set aside and thatthe application bo remitted to the Supreme Court to be dealt with inaccordance with this Judgment.
The costs of the appellants before the Supreme Court on the applicationfor leave to appeal and before their Lordships’ Board must be paid bythe second respondents.
Appeal alloivccl.