SUPREME COURTDHEERARATNE, J.
WIJETUNGA, J. ANDWEERASEKERA. J.
SC- APPEAL NO. 38/99CA APPEAL NO. 82/92(F)
DC COLOMBO CASE NO. 7315/RE02nd JUNE 2000
Appeal – Procedure of appeal to the Supreme Court from ajudgement of theCourt of Appeal – Article 128( l)of the Constitution – Stay ofexecution of thejudgement of the Court of Appeal pending appeal – The manner and thetime of applying to the Court of Appeal for leave to appeal – Rules 22(1).22(2) and 22(3) of the Supreme Court Rules of 1990 – effect of non-compliance.
Consequent to an action instituted by the plaintiff respondent (therespondent) the District Judge entered judgement for the ejectment ofthe defendant – appellant (the appellant) from the premises let to him andfor damages. An appeal by the defendant against that judgement wasdismissed by the Court of Appeal by its judgement delivered on 18. 05.1999. On the same day. the appellant filed a motion applying for a stayof execution as he intended to appeal to the Supreme Court and movedthat the case be called on 19.05. 1999 to support the motion. On 19.05.1999 the court in ex parte proceedings, ordered writ of execution to bestayed upto 01. 06. 1999 and permitted the appellant's counsel to filequestions of law before that date. On 27. 05. 1999 written questions oflaw were filed and the court by its order made on 31. 05. 1999 grantedleave to appeal on question (e) and stayed writ until the decision of theSupreme Court.
In making its order on 19.05. 1999 for stay of execution of writ, theCourt of Appeal acted withoutjurisdiction: hence that order is void. Suchjurisdiction lay only with the Supreme Court (Rule 42 of the SupremeCourt Rules 1990). 2
(2)The Order of the Court of Appeal dated 31.05. 1999 grant ing leaveto appeal on question (e) is a nullity by reason of non-compliance with the
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mandatory provisions of Rules. 22( 1). (2) and (3) in particular, the failureon the part of the appellant to make an oral application for leave to appeal.on the day the Court of Appeal delivered judgement as required by Rule22(1). Such failure was of a grave and fundamental nature.
•Per Weerasekera, J.
"1 find no explanation has been given nor can be given at all thatis reasonable, cogent and acceptable to view it merely as anirregularity”.
Cases referred to :
Woodward v. Sarsons (1875) LR 10 CP 733
Kiriwanthe and Another u. Navaratne (1990) SRI LR 393
RasheedAliv. Mohammed Ali and Others (1981) 1 SR1LR262.278
Jayawickrema, Someswaran Manthri and Company v. Jinadasa(1994) 3 Sri LR 185
Aspinall v. Sutton (1894) 2 QBD 349 at 350
Anlaby and Others v. Praetorius (1888) 20 QBD 764 at 766. 767 and768
Barker l>. Palmer (1881) 8 QBD 9 at 10 and 11
Hamp-Adams v. Hall (1911) 2 KB 942 at 945
Pritchard deed Pritchard v. Deacon and Others (1963) Ch 502 at 50310. Hewitson and Milner v. Fabre (1988) 21 QBD 6 at 9
APPEAL from the judgement of the Court of Appeal.
J.W. Subasinghe. P.C. with Harsha Soza for defendant – Appellant.
Fatsz Musihapha, P.C.. with Farook Thahir for substituted Plaintiff -Respondent.
Cur. adv. uult.
July 31, 2000.
WEERASEKERA, J.The Plaintiff-Respondent sought to eject the Defendant-Appellant-Petitioner from premises No. 179, PanchikawatteRoad, Colombo 10 on the basis that the premises wereexcepted premises and that the Defendant-Appellant failed topay an increased rental of Rs. 15000/- per month demanded
Nayar v. Tharick Ameen (Weerasekera, J.)
by notice from the original rental of Rs. 4000/- per month andfor damages.
The Defendant-appellant admitted the notice demandingthe increase in rental but averred that the premises weregoverned by the Rent Act and denied that they were exceptedpremises.
The District Court of Colombo by its judgment dated 28thFebruary, 1992 decreed in favour of the Plaintiff-Respondentwith damages at Rs. 4000/- per month.
The Defendant-Respondent appealed from this judgmentbut the Court of Appeal dismissed the appeal by its judgmentdelivered on 18th of May 1999.
On the same day i. e. on the 18th of May 1999 theDefendant-appellant filed a motion presumably in the Registryto the effect that
the Defendant-appellant intends to appeal to theSupreme Court
for a stay of execution
that the case be called on 19. 05. 1999 to support thismotion.
It would be pertinent at this stage to refer to Article 128 ofthe Constitution which provides for appeal from the judgmentof the Court of Appeal and which is supplemented by Rules ofProcedure provided for by Article 136 1(e) 2. 3. and 4. Thismotion clearly does not intend to seek relief under Article128( 1) but under Article 128(2) by way of special leave and theSupreme Court Rules 1990 would supplement the procedureas specified in Part 1 of the Supreme Court Rules in particularRules 7,8 and 9. Though the motion of 18. 05. 1999 states thatnotice has been given under registered cover it barely seeks tosatisfy the requirements of the Rules without proof of service
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nor that the Plain tiff-Respondent had adequate notice of whatwas proposed to be supported when it was in fact supportedon 19. 05. 1999, the following day.
The case was called in the Court of Appeal in Open Courtwith such undue haste to be supported on the 19,h of May1999, and on an ex parte application
the writ of execution was stayed upto 01. 06. 1999
the Counsel for Defendant-Appellant: undertook to filequestions of law before 01. 06. 1999.
It is my considered view that it is inconceivable under whatprovision of written law or practice the Court of Appeal stayedthe writ of execu tion and whether it was so stayed in that forumor by a direction to the District Court which issued the writ.Suffice to state that such jurisdiction would lay only with theSupreme Court and the Court of Appeal clearly acted withoutand beyond its jurisdiction and the order is void ab initiowithout more.
It is also inconceivable as to what provision of law or ruleof the Supreme Court permitted the Defendant-Appellant tofile questions of law in the Court of Appeal when his ownmotion stated his intention to file an appeal to the SupremeCourt presumably by way of an application for special leave.
Be that as it may. written questions of law were in fact filedon 27th May. 1999 and the Court of Appeal by its order of the31st of May 1999 granted leave to appeal on question (e) and thewrit was stayed until the decision of the Supreme Court. Withregard to stay of writ whether of consent or otherwise the orderof the Court of Appeal on 19. 05. 1999 being void ab intitioall subsequent orders in my opinion are patently withoutjurisdiction and therefore a nullity.
The Defendant-Appellant thereafter made an applicationfor special leave to the Supreme Court on the questions of law
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on which leave was not granted by the Court of Appeal and thatapplication was refused by the Supreme Court.
In the light of this scenario the. Plaintiff-Respondent urgedtwo objections at the hearing of this appeal.
Is the order of the Court of Appeal dated 31. 05. 1999 anullity by reason of non compliance with the provisionscontained in Rules of the Supreme Court and is the appealuntenable.
Has the Defendant exercised due diligence as conceived byRule 34 of the Supreme Court Rules and if not should theappeal be dismissed.
Article 128(1) of the constitution which permits an appealto the Supreme Court with leave of the Court of Appeal on asubstantial question of law is supplemented by Rules of theSupreme Court of 1990 as set out in Rules 20(1), 20(2), 20(3),21, 22(1), 22(2) and 22(3)(5) and (6).
For the purpose of this objection it would suffice toexamine Rules 22(1) (i), (ii), 22(2) and (3)
Rule 22(1)(2) and (3) reads as follows and to reproducethem would not be superfluous to determine this question.
Notwithstanding that no such submission or applica-tion has been made under Rule 20(1) an applicationmay be made orally by or on behalf of any partyaggrieved being a final order, judgment, or sentence onthe day such a final order of judgment is delivered.
for leave to appeal to the Supreme Court in respectof a substantial question of law which shall bespecified and recorded; or (ii)
(ii)for time to consider making an oral application forsuch leave.
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An oral application for leave to appeal shall bedetermined by the Court of Appeal forthwith ormay be adjourned for consideration or determinationwithin 21 days.
Where an oral application for time to consider themaking of an application for leave to appeal is made,a certified copy or uncertified copy of the judgment ororder of the Court of Appeal shall be issued to theApplicant and to any other parties requiring copieswithin forty eight hours. The Court shall forthwith fixa date, not later than twenty one days from the dateof delivery of such final order or judgment for theconsideration of such application. On or before thedate so fixed, the party applying for leave shall-tender to Court and to all other parties present orunrepresented a written statement of the question oflaw in respect of which leave to appeal is sought.
The emphasis is mine.
What force and what authority do the rules convey andwhat consequences flow from a breach of the rules whichsupplement the statute namely Article 128(1) with rules ofprocedure formulated under Article 136(1), (2). (3) and (4) tosupplement its procedure.
It would not be inappropriate in order to complete thepicture to quote an oft quoted passage from Maxwell onInterpretation of Statutes 12th Edition at page 314 quotingLord Colridge C.J. at page 746 in Woodward v. Sarsonsni.
“An absolute enactment must be obeyed or fulfilledexactly, but it is sufficient if a directory enactment beobeyed or fulfilled substantially”
and at page 320 of Maxwell
"Enactments regulating the procedure in Courts areusually construed as imperative”.
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In this instance on the day the Court of Appealdelivered judgment on 18. 05. 1999 Counsel representing theDefendant-Appellant was present and no oral application wasmade for leave to appeal. In fact this is confirmed by the motionof the same date which must presumably have been filed in theRegistry seeking a stay of writ, that they sought to appeal to theSupreme Court. It could by no means be taken to mean awritten application for leave to appeal. Subrules 22(1), (2) and(3) do not envisage in any event a written application but anoral application for leave to appeal and only when such an oralapplication is made do the provisions of Subrules 22(2) and22(3) come into operation. Moreover the Right of Appeal flowsfrom Article 128(1) of the Constitution and the Rules are Rulesof the Supreme Court.
In any event the absence of the application for leave toappeal does not cause prejudice to the Defendant-Appellantsince he would in any event as he professed to and proposedto do in his motion of the 18th of August 1990 have the right toseek refuge under Rule 7 and seek special leave to appeal to theSupreme Court so that even if he acted in the mistaken beliefof fact or law as to the correct procedure such act would notcause prejudice to him.
It has been urged on behalf of the Defendant-Appellantthat since non compliance of the rules does not have penalconsequences envisaged in the Rules itself they are onlyenabling guidelines and that the application for leave to appealcould have been filed or even made within the 21 days andorder made by the Court of Appeal within and before the expiryof 21 days.
It has been the practice that as empowered by the Rulesall leave to appeal applications in our experience were madeand rightly so on the day judgment was delivered, orally, inOpen Court, and only if any application is so made on the dayjudgment is delivered; that a postponement is granted under
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the Rules for written questions of law to be submitted anddetermined within 21 days. Any other alternative argumentadduced is but a vain attempt to render so grave a defect inprocedure curable at the discretion of Court.
But can the Court condone such a grave defect of noncompliance, a defect which is conditioned with a time limit inthat'it should be made on the judgment is delivered?
I do concede that in appropriate circumstances noncompliance with the rules may be curable. Thus in the case ofKiriwanthe and another v. NavaratneJ21:
Fernando, J. held:-
“The weight of authority thus favours the view thatwhile these rules (Rule 46, 47, 49, 35) must becomplied with the law does not require or permit anautomatic dismissal of the application or appealof the party in default. The consequence of noncompliance (by reason of impossibility or for anyother reason) is a matter falling within the discretionof the Court to be exercised in considering the natureof the default as well as the excuse or explanation inthe context of the particular rule. ”
or as Sharvananda, J. said in Rasheed Ali v. Mohamed Aliand Others131 at 278 in a dissenting judgment;
“These rules are designed to facilitate justice andfurther its ends. They are not designed to trip thepetitionerfor justice. Too technical a construction ofthe Rules should be guarded against."
In this instance there is no doubt a default by noncompliance with Rule 22(1). No explanation for such defaulthas been forthcoming and inferentially is repeatedlycontinued except for the spurious excuse that such an
Nayar v. Tharick Ameen lWeerasekera, J.)
application could be made since it not so prohibited, in writingwithin 21 days of the judgment. There can be no prejudice asthe Defendant-Petitioner had a right to have recourse to Rule7 and in fact did with regard to what was refused by the Courtof Appeal. He could not be inferred to be under a mistakenbelief of fact or law as the motion of 18. 05. 1999 indicated hisintention to make an application for special leave to theSupreme Court and not for leave to appeal from the Court ofAppeal. When there was a default of Rule 35 of the SupremeCourt Rules it was held in the case of JayawickramaSomeswaran Manthri & Company v. Jinadasa!4, that,
“The appellant failed to file written submissionsas required by Rule 35 of the Supreme Court Rules1978 and was unable to tender an excuse for notso tendering written submission. The appeal hastherefore to be dismissed for failure to show duediligence for the purpose of prosecuting the appeal.”
I have referred to the practice of the Court of Appeal inrespect of the applications for leave to appeal and suchpractice has by itself the force of law. I am supported by thedecision in Aspinall v. Sutton'51 at page 350 of Wright J.
“We have consulted the officers of the crown officeand we find the practice is perfectly settled. A casestated by the justices must be lodged at the crownoffice within 3 days after the receipt by the Appellant.We must therefore give effect to the objection. ”
in which the requirement of a rule that the Appellanttransmits the case to the Court within 3 days had not beencomplied with had no penalty for non compliance, gave rise tothe objection being upheld.
So also Fry. LJ in the case of Anlaby and Others v.Praetorius161 who considered the most material question to beone of practice when there was no penalty attached to the non
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compliance of a rule where the service of a writ which was notendorsed as required by the rules within three day of serviceheld at page 768.
“The judgment entered was premature and irregular.In such a case the right qf the Defendant to set asidethe judgment is made ex debitojustitae and there aregood grounds why that should be so became the entryof the judgment is a serious matter, 'leading to theissue qf execution and possibly to an action fortrespass”
Thus the fact that no penalty is prescribed in the rulesdoes not bear ground to support the argument that noncompliance with a rule of the Supreme Court which is groundedin firm practice is a curable irregularity.
Moreover the rule specified the time at which theapplication for leave to appeal has to be made. It is urged thatthis can be extended to mean an elastic 21 days. In the caseof Barker u. Palmer17’.
It was held that the provision in Rule 7 with respect to thetime of delivery of the summons to the bailiff was obligatoryand not merely directory and therefore the judge ought not tohave tried the case.
Grove, J. at page 10 of this judgment went on to elaboratethus.
“The rule is that the provisions with respect of timeare obligatory unless the power of extending the timeis given to the Court and there is no such power here. ”
The words of Subrules 22(1), (2) and (3) have similarcontent and are preemptory and give no more discretion thanwhat the ordinary meaning conveys.
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What is left for me to consider is whether the default or noncompliance with Rule 22(1), (2) and (3) is an irregularity whichcan be waived. Whilst accepting the view expressed by Fernando,J. in Kiriwantha andanother v. Navaratne in regard to Rule 46,47, 49 and 35 and of Sharvananda, J. in Rasheed Ali v.Mohamed Ali and otherslSupra) what reason if any could begiven for the default in the instant case. I And no explanationhas been given nor can be given at all that is reasonable, cogentand acceptable to view it merely as an irregularity.
In the case of Hamp Adams v. Hall181 it was held that;
“non compliance with order lx., r.15 was not anirregularity which could be waived and that thePlaintiff not having complied with the rule was notentitled to proceed by default and that the judgmentand verdict be set aside. ”
The order referred to in this case was a rule as seen in thereasoning of Buckly LJ. quoted hereinafter.
I quote with approval the reasoning which is very apt tothe facts of this case of Buckly LJ at page 945 in Hamp Adamsv. HaII(Supra):
“The Judgment and the assessment of damages wasplainly wrong, unless Order lx., r.15 can be read inthe way: ‘otherwise the Plaintiff shall not beat liberty, in case of non-appearance, to proceedby default unless the Court or a judge shallretrospectively think proper to give effect to thejudgment as if the rule had been complied with. ’ Butsupposing that the rule could be read in that way,ought the Court retrospectively to treat proceedingsas valid which have been taken against a Defendantin his absence?! think not. Where a Plaintiff proceedsby default every step in the proceedings must strictlycomply with the rules; that is a matter strictissimijuris. That has not been done in this case, and on
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these grounds I am of opinion that this judgmentmust be set aside. ”
The non compliance in this case is no mere irregularityand no manner of explanation can possible rectify it. Whatremains to be considered now is the consequence of suchdefault or non compliance which is incurable.
The rules specified a time at which the leave to appealapplication had to be made. It is clear that the application forleave to appeal was not made when judgment was delivered.On the contrary the motion of the 18th of May 1999 whenjudgment was delivered sought to indicate an intention toapply for leave presumably special leave to the Supreme Court.The questions of law were never suggested orally whenjudgment was delivered nor was an application for leave toappeal made orally at any time even within the 21 days or forwritten questions of law to be tendered. Written questions oflaw were tendered only on 27Ul of May 1999. No explanation forthese lapses has been tendered nor are they forthcoming.Where the procedure is wrong the judgment or order of 31. 05.1999 cannot be right. The failure to comply was of a grave andfundamental nature.
It was decided in the case of Pritchard, deed Pritchard v.Deo.con and others191.
“That originating summons had never been issuedand was a nullity ab initio, for where an action wascommenced by an originating summons, which waspurely a creature of the Rules of the Supreme Court,and that summons was not issued in accordancewith the only relevant rule, Order 54, r.4B, thatconstituted afundamentalfailure to comply with therequirements of section 225 of the Supreme Court ofJudicature (Consolidation) Act, 1925, relating to theissue of civil proceedings; and the Court had no powerunder R.S.C., Ord. 70, r.l, to cure proceedings whichwere a nullity. ”
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So also in the case of Hewitson and Milner v. Fabre“ 01 it washeld that:
"the service of the writ instead of a notice was anullity, and not a mere irregularity, and that theorder for service of the writ and all subsequentproceedings must be set aside. ”
In this case too the non compliance with Subrules 22(1),
and (3) constituted a fundamental failure, graveand irremediable and such failure amounted to the noncompliance with Article 128(1) which constituted the entireproceedings in the Court of Appeal after the delivery ofjudgment on 18. 05. 2000 a nullity and in particular the orderof 31. 05. 1999 granting leave to appeal on question (e).
I have already for the reasons given held that the order tostay the writ of execution has been made without jurisdiction.
I hold that the appeal is rejected on the purported order ofthe Court of Appeal dated 31st of May 1999 granting leaveto appeal on question (e) as that order by reason of noncompliance with the mandatory provision of Subrules 22(1),(2) and (3) is a nullity.
In view of the conclusion I have already come to it wouldbe unnecessaiy to examine whether the Defendant-Appellanthas exercised due diligence.
I uphold the objection of the Plaintiff-Respondent that theorder of 31. 05. 1999 is a nullity and the appeal is rejected. Iaward the Plaintiff-Respondent costs fixed at Rs. 15000/-.
DHEERARATNE, J. – I agree.
WIJETUNGE, J. – I agree.
NAYAR v. THARICK AMEEN