MARTIN v. WIJEWARDENA

044-SLLR-SLLR-1989-V-2-MARTIN-v.-WIJEWARDENA.pdf


sc
Martin v. Wijewardena
409
MARTIN
v.
WIJEWARDENA
SUPREME COURTRANASINGHE. C.J.. JAMEEL. J. ANDAMERASINGHE. J.
S.C. REF NO. 1/89C.A. NO. 43/86A.T. KALUT'ARA NO. 18/109AMAY 30. 1989
Agrarian Services Act, No. 58 of 1979. Sections 18(1) and (2) – Failure of
tenant-cultivator to pay rents – Forfeiture of tenancy rightsRight of appeal –
Constitution. Article 138 – Appellate jurisdiction of Court of Appeal.
410
Sri Lanka Law Reports
11989] 2 Sri LR
Held:
A right of appeal is a statutory right and must be expressly created and grantedby statute. It cannot be implied. Article 138 is only an enabling Article and itconfers the jurisdiction to hear and determine appeals to the Court ot Appeal. Theright to avail of or take advantage of that jurisdiction is governed by the severalstatutory provisions in various Legislative Enactments.
Section 18 of the Agrarian Services Act, No. 58 of 1979 does not provide for nordoes it create a right of appeal in a tenant cultivator who is aggrieved by theOrder of the Commissioner to pay up his arrears to the landlord before astipulated date. Further Article 138 of the Constitution does not confer on such atenant cultivator a right of appeal.
While the Agrarian Services Act, No. 58 of 1979 s. 5(6) provides lor an appeal(on a point of law only) from a decision of the Commissioner given at an evictioninquiry, no such right of appeal is provided for a party aggrieved by the Order ofthe Commissioner of Agrarian Services at an inquiry into the non-payment of rent.No appeal lies from any Orders made under section 18 of the Agrarian ServicesAct.
Cases referred to:
Anchapulle v. Baker 31 NLR 149
Silva v. Silva 16 NLR 57
I.P. Police v. Fernando 30 NLR 482
Sudharman de Silva v. A.G. (1986) -1 Sri LR 9
Cassim v. Abdursak 38 NLR 428
Culanthavelu v. Somasundaram 2 Bal. 122
Suppiah v. Lokubanda 4 CWR 727
Shockman v. John CWR 93
Saunders v. Park 1 Bal. 22
King v. Ratnam 30 NLR 212
In Re Wijesinghe 16 NLR 312
Kanagasunderam v. Podihamine 19 CLW 53 (F.B)
A.G. v. Sellim 11 ER 1200
King v. Joseph Hansom 106 ER 102
In Re Albert Godamune 38 NLR 74
Sangarapillai v. Chairman, Municipal Council, Colombo 32 NLR 92
sc
Martin v. Wijewardena (Jameel, J.)
411
REFERENCE under Article 135 of the Constitution to the Supreme Court.
P.A.D. Samarasekera, P.C. with Kanchana Abeypala for (tenant-cultivator)respondent-appellant
C.J. Ladduwahetty for (landlord) complaint-respondent.
Cur. adv. vult.
June 27. 1989.
JAMEEL, J.
The landlord complainant-respondent had complained to theCommissioner of Agrarian Services, Kalutara that rents properly dueto him, from the tenant cultivatior respondent-appellant, are inarrears.
After inquiry, inter partes, the Assistant Commissioner (Inquiries)had issued a notice under Section 18(1) of the Act No. 59 of 1979.By this notice The Assistant Commissioner had directed the appellantto pay to the respondent, on or before 31.1.1986-all the arrears thathad been found to be due.
The appellant had failed to make payment as directed and hisrights as tenant cultivator became forfeit, by operation of law underSection 18(2) of the Act.
Notwithstanding the absence of provisions for any proceedings tobe had before The Assistant Commissioner, the appellant hadcomplained to the Assistant Commissioner that he had gone to thehouse of the respondent on 31.1.1986 in order to make the payment,but that he had been informed that the respondent was not at home,and so was unable to make the payment in due time. Thereon theLearned Assistant Commissioner, had held an inquiry and hadconcluded that on his own admission the appellant had forfeited histenancy rights.
It was from this order that the appellant had filed this appeal to theCourt of Appeal. The respondent had raised a preliminary objection.Thereon the Court of Appeal had framed and forwarded the followingquestion for consideration and decision by this court, namely:
412
Sri Lanka Law Repons
/1989/2SriLB
"Does Article 138 of the Constitution confer any rights on anyaggrieved person to appeal to the Court of Appeal from anyorder made by the Assistant Commissioner of Agrarian Servicesin terms of Section 18(1) of Act No. 58 of 1979, when such aright has not been specifically conferred by statute?”
Article 138 of the Constitution is an Article located in Chapter XVIand more particularly in the portion under sub-head Court of Appeal.This chapter deals with the Superior Courts.
Article 138 reads as follows:-
"The Court of Appeal shall have and exercise, subject to theprovisions of the Constitution or of any Law, an AppellateJurisdiction, for the correction of all errors in fact or in law, whichshall be committed by any Court of First Instance, Tribunal orOther Institution, and sole and exclusive cognizance by way ofAppeal, Revision and Restitutio In Integrum of all cases, suits,actions, prosecutions, matters and things of which such HighCourt and Courts of First Instance, Tribunal or Other Institutionmay have taken cognizance.”
It is the contention of Learned President’s Counsel for theappellant that Article 138 not only spells out the Appellate Jurisdictionof the Court of Appeal but that it also grants, impliedly, a right ofappeal to all parties who came before the Court of First Instance,Tribunal or Other Institution concerned.
He further contended that, this right is an unfettered right, grantedto the litigant, with only such limitations as are included in thephrase:-
“Subject to the provisions of the Constitution or of any Law.”
That is to say, Learned President’s Counsel contends that, other‘Provisions of the Constitution, if any, or any other Law' could onlycurtail the total and unfettered right of appeal granted to each andevery disputant before any Court, Tribunal or Other Institution.
He thus contended for a full and unfettered right in the tenant
cultivator respondent-appellant to have filed this appeala
Constitutional Right.
sc
Martin v. Wijewardena (Jameel, J.)
413
He illustrated his second proposition by reference to Section 5(6) ofthis same Act No. 59 of 1979, wherein the right of appeal is‘Restricted to’ ‘Points of Law’ only. Mr. Samarasekera also cited insupport the decisions of this Court in:-
Anchapulle v. Bakery)
Silva v. Silva(2)
I.P. Police v. Fernando(3)
Article 138 is an enabling provision which creates and grantsjurisdiction to the Court of Appeal to hear appeals from Courts ofFirst Instance, Tribunals and Other Institutions. It defines anddelineates the jurisdiction of the Court of Appeal. It does not, norindeed does it seek to, create or grant rights to individuals viz-a-vizappeals. It only deals with the jurisdiction of the Court of Appeal andits limits and its limitations and nothing more. It does not expresslynor by implication create or grant any rights in respect of individuals.Article 139 makes it quite clear that the Court of Appeal is anappellate tribunal in respect of the Orders, Judgments, Decrees orSentences of the Courts of First Instance, Tribunals or OtherInstitutions
In the case of the Courts of First Instance, referred to above, it isthe Judicature Act which creates and institutes them. (Vide Section 5of the Judicature Act No. 2 of 1978). Sections 13(3), 14, 15 and 16of this Act designated the persons who are entitled to appeal fromorders and judgments of the High Courts, in its several jurisdictions.These sections contain the general limitations on those rights ofappeal. Sections 23, 31 and 35 designate the persons entitled toappeal from Orders, Judgments and Decrees of the District Courts,Magistrates Courts and the Primary Courts respectively. Theseseveral sections of the Judicature Act expressly create the rights ofappeal in each case and invest those rights in the several personsrespectively designated in those sections. These sections enablethose designated persons to lodge appeals while Article 138 enablesthe Court of Appeal to receive and entertain them. This differentiationis made explicit in the terms of Section 13 of the Judicature Act itself.Section 13(1) vests the High Court with Admiralty Jurisdiction whileSections 13(3) and 13(4) respectively create and vest in the severalpersons mentioned therein the right of appeal to the Court of Appeal,either directly or with -the leave of court first had and obtained, from
414
Sri Lanka Law Reports
11989/ 2 Sri LR
the Judgments and Orders respectively ot the High Court. The rightof the Court of Appeal to entertain and hear and dispose of thoseappeals is given by Article 138 of the Constitution.
It is significant that the marginal to Article 138 reads, “Jurisdictionof the Court of Appeal" while the marginals to Section 14, 15 and 16of the Judicature Act read "Right of Appeal". Equally significant isthe fact that the right to appeal from Orders and Judgments of theCourt of Appeal itself is contained in another Article of theConstitution, namely, Article 128, which too is included in ChapterXVI, but under a different sub-title,…“Supreme Court." The marginalto that Article too reads ‘‘Right of Appeal." On the other hand themarginal to the enabling section in respect of the jurisdiction of theSupreme Court in respect of Appeals, namely, Article 127, whichreads, "Appellate Jurisdiction.”
On a consideration of the several Articles of the Constitution andthe several sections of the Judicature Act, adverted to above, it is notpossible to accept the contention of Learned President's Counsel thatthere is implied in Article 138 a ‘Right of Appeal’ to the Court ofAppeal. The ‘Right’ of ‘an Aggrieved Party’ or of 'A party dissatisfiedwith’ an Order or Judgment of a Court of First Instance is containedin the several sections of the Judicature Act.
The words ‘Subject to the provisions of the Constitution or of anyLaw’ are a limitation on the powers of the Court of Appeal. They donot constitute a limitation on the Rights of an Appellant. One suchlimitation placed on the powers of the Court of Appeal is to be seenin-the proviso to this very Article. On the other hand Sections 14, 15and 16 of the Judicature Act amply illustrate the kind of limitationsplaced by law on the rights of appeal granted to differeni parties to acriminal case- heard by a High Court. They also spell out thecircumstances in which these rights could or could not be exercised.
The rights of appeal granted by the Judicature Act are curtailed, inrespect of civil cases by the provisions of Section 754 of the CivilProcedure Code. They are restricted to the parties to the suit. Afurther restriction on the right of appeal is that an appeal from anOrder? not being a Judgment, is exercisable only with the leave of theCourt; of Appeal first had and obtained. The Code aiso provides for aNotice of Appeal prior to filing the Appeal petition itself. There are
sc
Martin v. Wijewardena (dameel, J-)
415
other provisions in the Code,, for instance, section 88(1) and Section389, which preclude an Appeal in certain circumstances.
In respect of criminal appeals from the Magistrate's Courts, too,there are similar restrictions – Eg. Sections 317 to 319 of the Codeof Criminal Procedure Act. Indeed, Section 316 provides that thereshall be no appeal from any judgment or order of a criminal courtexcept as provided for by that Code or by any other law for the timebeing in force. In this context it is pertinent to note that while Section'14(a) of the Judicature Act grants a right of appeal to a person'convicted by a'High Court after trial by Jury, Section 14(b) grants this:right of appeal, as of right, to a person convicted at a trial without ajury. Even so, certain categories of convicted persons are excepted,(Vide: Sudharman de Silva Vs. A.G.(4),).
Under the Administration of. Justice Law, The Supreme Court- wasthe only court endowed with jurisdiction .to hear and entertain, appeals 'whether civil or criminal. (Vide: Section 11 Part 1 ^ Judicature ActNo. 44 of 1973.)
The rights of appeal granted, and the limitations-pjaced thereon, bythe Administration of Justice Law. are detailed in Section 316 of thatLaw for criminal cases and in Section. 317 for civil cases. (Chapter IV- Appeal Procedures.)
Section 31 (D) (1) of the Industrial Disputes Act (Cap. 131 of the1956 C.L.E.) provides that Orders made by Labour Tribunals are finaland not to be questioned in any Court. However, Sub-section (2) ofthe same section grants a right of appeal to the worker, the employeror to the trade union' from any judgment of a labour tribunal.Nevertheless, the appeal could only be on a point of law.
Section 5(6) of the Agrarian Service Act, No. 58 of 1979 providesfor an appeal, again on a point of law only, to the Court of Appeal,from a decision of the Commissioner, given at an Eviction Inquiry.Under those provisions a "Landlord'' or "the person evicted" ifaggrieved by that decision can appeal to the Court of Appeal. Section5(7) (b) (11) t.akes into account and provides for the possibility thatthe eviction may have been* effected by a third party and that it couldhave been so done; with op .without the knowlege, consent orconnivance of the Landlord or the person evicted from an order of the
416
Sri Lanka Law Reports
/l989/2SnLR
Commissioner under that Section no such provision is made,however, in respect of his Order under Section 18. Neither theLandlord nor the Person Evicted is given a right of appeal in respectof orders made under Section 18. Learned Counsel for therespondent contends that such non-grant must be construed to meanthat, therefore, no appeal lies from any Orders made under Section18.
The case of Anchapulle v. Baker( 1) cited by Learned President'sCounsel for the appellant was a case in which the accused wasbound over on an order made under Section 325(1) (b) of theCriminal Procedure Code and in that case it was held by Lyall Grant(J) that an appeal does lie in such a case. In coming to thisconclusion, Lyall Grant (J) relied on a decision by Akbar (J) in I.P.Police v. Fernando(3) wherein it was held that when an accused iswarned and discharged by a Magistrate, the remedy open to thecomplainant is to appeal. Akbar (J) himself relied on an earlierjudgment of Lyall Grant (J) in P.C. Dandagamuwa in revision No. 670S.C.M. 31.10.1928.)
Soertsz (J) however, in Cassim y. Abdursak(5) following the caseof Culanthavelu v. Somasunderam(6) departed from the ruling ofLyall Grant (J) and went on to hold that no appeal lay from an ordermade under Section 325(1) of the Criminal Procedure Code. HisLordship Justice Soertsz distinguished the cases of Suppiah v.Lokubanda(iy and Shockman v. John(8) both of which cases dealtwith situations that arose from the Magistrate having discharged theaccused and thereon referred the complainant to his civil remedy andfollowed the decision of Montcrieff (J) Saunders v. Park(9). Whilemaking reference to all these cases His Lordship Justice Soertsz alsomade reference to the Full Bench decision of the Supreme Court inCulanthavelu v. Somasunderam (Supra) wherein, it was held thatfrom a binding over order made under Section 88 of the CriminalProcedure Code, no appeal lay. Vide:- King v. Rafnam(iO) and InRe. Wijesinghe (11).
Kanagasundaram v. Podihamine^2) was a case which dealt withthe right of appeal from an Order, to tax costs under Section 31 of theLand Acquisition Ordinance. Whilst rights of-appeal are specificallymentioned in respect of Ordiers made* 'under Sections 26 and 35 of
sc
Martin v. Wijewardena (Jameel, J.)
417
the Ordinance no mention is made of any such right of appeal inrespect of Orders under Section 31. It was held by the Full Benchthat no appeal lies. In their judgment their Lordships quoted andrelied on the decision in AG. v. Sellim (13) in which case LordWestbury had stated as follows:,-
"The criterion of a new Right of Appeal is- plainly an act whichrequires Legislative Authority.^The Court from which it is givenand the Court to which it is given must both be bound and thatmust be the act of some higher power.”
Howard (C.J) has also quoted a passage from the judgment ofAbbot (C.J.) in the case of King -v. Joseph Hanson(14) namely:-
“For the rule of law is ‘Although Certiorari lies, unless'expresslytaken away, yet an appeal does not lie unless expressly given'by Statute.”
The question that arose- for decision was as to -whether thelanguage of Sections 21 and 32 of Cap. 203 gives, not merely byimplication, but by express words a Right of Appeal. Howard (C.J.)held that the Supreme Court had no right to entertain an appealwhen that power is not expressly given by statute.
A case which is more in accord with the facts of this case is thatof in Re. Albert Godamune{ 15). That was'a problem under theNotaries Ordinance—Cap. 91 (1938) C.L.E..
Section 26 (1) of the. Ordinance provides for the Secretary of theDistrict Court to issue Annual Certificates toNotaries who apply for them. The applicationshould be made before the FIRST of MARCH ofeach year.
Section 28 (1) provides that should the Secretary refuse to issuethe Certificate the notary could apply to the DistrictJudge who could make on Order as justicedemands.
Section 28 (2) provides for an appeal to the Supreme Court fromthe Order made by the District Judge.
418
Sri Lanka Law Reports
l1989l2SriLR
However, Section 26 (2) which covers the situation where theapplication has been made after the time granted, provides that insuch a case, the District Judge could direct the Secretary to issue thecertificate if the District Judge is satisfied that the delay in making theapplication had not been due to the negligence of the Notary. Nothaving been so satisfied in that case the District Judge had refusedto give such a direction for the issue of Certificate to Mr. Godamunefor that year. The Notary lodged an appeal with the Supreme Court.Justice Akbar (with Justice Koch in agreement) held:-
“unfortunately for the powers of this Court, to entertain such anappeal we have to look to the words of Section 27 (Section 28of Cap. 91 (1938) C.L.E). Section 27 is clear, that the Right ofAppeal is only given to the Notary only in cases whereproceedings begin by the Secretary refusing or declining toissue a certificate and it does not apply to a case, like this,where the Secretary has no power at all to have anything to dowith the matter until the District Judge had made his Orderunder the proviso to Sub-section 2 of that section.
‘ Sangarapillai v. Chairman Municipal Council, Colombo^ 6) wherethe Supreme Court in a similar case held that it had no right toentertain an appeal where the, power was not expressly given by theStatute.
Sangarapillai's case (Supra) was a case in which the Chairmanhad refused to issue a Certificate of Conformity under Section 15 ofOrdinance No.19 of 1915. The District Judge had dismissed anappeal made to him against that refusal. On an appeal against thatdismissal of his appeal by the District Judge the party dissatisfiedlodged an appeal in the Supreme Court. Dalton (J) (withJayayvardena (A.J.) agreeing) held that no appeal lay. The onlyremedy, it was held was a case stated on a question of Law as theDistrict Judge had functioned as an Appellate Tribunal and no appeallies from that order unless provided for in the Ordinance.
It is significant to note, that the Legislature appears to have takencognizance of the judgment in Godamune’s Case for, the reprint ofthe Notaries Ordinance as appearing in the (1956) C.L.E. (Cap. 107)shows an amendment to section .28 by way of an additional sentenceto Section 28 (2) which is the corresponding section in that reprintwhich reads as follows:-
sc
Martin v. Wijewardena (Jameel, J.)
419
“or., by the refusal of the District Judge to direct the issue of
a certificate in any case referred to in Sectioh 27 (2), mayappeal against such Order or refusal to the Supreme Court.”
This amendment has been effected by Ordinance No. 59 ofJ 1943.
These interpretations of the Supreme Court must be taken to hav.ebeen within the knowledge of the. Legislature when it enactedSections 5(6) and 18 of the Agrarian Services Act, No. 58 of 1979,on 25.4.1979.
MAXWELL on the INTERPRETATION OF STATUTES (12th Edi.)at Page 159 records the case of A.G. Vs. Sellim (Supra) and goes onto state
"It is also presumed that a statute does not create newjurisdictions or enlarge existing ones, and express language isrequired if an Act is to be interpreted as having this effect.”
In the light of these authoritative statements it is not possible toaccept the contention that there is implied in Article 1-38 an unfettered"RIGHT OF APPEAL" to the Court of Appeal. Nor, is it possible toaccept the contention that this alleged "RIGHT OF APPEAL” underthis Article 138 is only fettered to the extent provided for in theConstitution or other Law. An Appeal is a Statutory Right and mustbe expressly created and granted by statute. It cannot be implied.Article 138 is only an enabling Article and it confers the jurisdiction tohear and determine appeals to the Court of Appeal. The right to availof or take advantage of that-jurisdiction is governed by the severalstatutory provisions in various Legislative Enactments. That is to say,for appeals from the regular courts, in the Judicature Act, and theProcedural Laws pertaining to those courts. For the various Tribunalsand other Quasi-Judicial Bodies, in the respective statutes thatcreated them. For these reasons the question formulated by theCourt of Appeal is answered in the Negative. Section 18 of theAgrarian Services Act, No. 58 of 1979 does not provide for nor doesit create a Right of Appeal in a tenant cultivator, who is aggrieved bythe Order of the Commissioner to pay up his arrears to the Landlordbefore a stipulated date. Further, Article 138 of the Constitution doesnot confer on such a tenant cultivator a Right of Appeal.
420
Sri Lanka Law Repons
IW89l2SnLR
The Registrar is directed to transmit this determination to the Courtof Appeal.
RANASINGHE, C.J. – I AgreeAMERASINGHE, J. – I Agree
No right of appeal
from section 18 (1) of Agrarian
Services Act to Court of Appeal.
Commencing with' (1989) Volume 1, the subscription will be as follows: Rs. 240.00 pierVolume of fifteen parts and Digest. To obtain all the parts and Digest by postpayments should be made in advance to the SUPERINTENDENT, GOVERNMENTPUBLICATIONS BUREAU, TRANSWORKS HOUSE, COLOMBO 1.