SHARIF AND OTHERS vs. WICKRAMASURIYA AND OTHERS

020-SLLR-SLLR-2010-V-1-SHARIF-AND-OTHERS-vs.-WICKRAMASURIYA-AND-OTHERS.pdf


CA
Shartf and others vs. Wickramasuriya and others
255
SHARIF AND OTHERS VS. WICKRAMASURIYA AND OTHERSCOURT OF APPEALERIC BASNAYAKE, J.
CHITRASIRI, J.
CA 972/2007
PR. LT. PUTTALAM 16097/PSEPTEMBER 10, 2008JUNE 1, 5, 2009OCTOBER 8, 2009NOVEMBER 18, 2009
Restitutio-in Integrum -Primary Courts Procedure Act – Section 66 -Section 66 {1) (a) (i). Jurisdiction of the Court of appeal to entertainRevision/Restitutio-in-Integrum applications from Primary Courtorders ? Constitution Article 138- 13th Amendment Article 154 P(3f-High Court of the Provinces (Spetdal Provisionsf Act 19 of 1990 -Section 9 as amended by Act 54 of2006.
The petitioner sought an order by way of restitutio in integrum and orrevision to set aside an order made by the Primary Court Judge underSection 66 of the Act.
It was contended by the respondent that the Court of Appeal has nojurisdiction to hear revision applications filed against the orders orjudgments of Magistrate Courts and that after the 13th amendmentto the Constitution and Act 19 of 1990 the aggrieved parties shouldmove the respective High Courts of the Provinces in Revision.
Held
In terms of Article 138 Court of Appeal shall have and exercisesole and exclusive cognizance by way of appeal, revision. HoweverArticle 154 (3) has given the High Court Appellate and revisionaiyjurisdiction in respect of orders by Magistrates/primary Courts.Hence the Court of Appeal ceased to enjoy sole and exclusivejurisdiction. Article 154 P did not take away the powers exercisedby the Court of Appeal under Article 138.
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Per Eric Basnayake, J.
“High Court is vested with original jurisdiction and is placed lowerto the Court of Appeal in the order of Courts on superiority”.
Jurisdiction enjoyed by the Court of Appeal through Article 138remains intact. Both Courts enjoy concurrent jurisdiction onmatters referred to in Article 154 P (3)
High Court of the Provinces (Sp. Prov) Act 19 of 1990 had madeprovision for the Court of Appeal either to transfer such appealor application to High Court or to hear and determine suchapplications.
Per Eric Basayake, J.
“I am of the view that it is more expedient for the Court of Appeal tohear and conclude this case rather than to transfer it to High Courtand for the reasons given on the merits I find that the learnedJudge has gravely erred in her order.
The fact that the Primary Court had not made an effort to persuadeparties to arrive at an amicable settlement fundamentally affectsthe capacity or deprives the Primary Court of competence to holdan inquiry into the question of possession.
APPLICATION for Revision/Restitutio in Integrum from an order of the
Primary Court of Puttalam.
Cases referred to:-
Kanagasabai vs. Mylvaganam 78 NLR 280
Ramalingam vs. Thangarajah 1982 2 Sri LR 693
David Appuhamy vs. Yassassi Thero 1987 1 Sri LR 253
Punchi Nona vs. Padmasena 1994 2 Sri LR 117
Tudor vs. Anulawathie 1999 3 Sri LR 235
Ali vs. Abdeen 2001 1 Sri LR 413
In Re the Thirteenth Amendment 1987 2 Sri LR 312 at 323
Abeywardane vs. Ajith de Silva 1998 1 Sri LR 134
Cunaratne vs. Thambinayagam 1993 2 Sri LR 335
Kanaglingam vs. Logeswaran CA (Rev) 686/97 C.A.M. 9.6.1999
Ramalingam vs. Paramashwary 2000 2 Sri LR 340
CA
Sharif and others vs. Wickramasuriya and others
(Brie Basnayake J.)
257
Ikram Mohamed PC with Manjula Niyalpola for petitioner.Rohan Sahabandu with Athula Perer for respondents.
October 21st 2010ERIC BASNAYAKE J.
The Petitioners-second party (petitioners) are seekinginter alia an order by way of restitution in integrum and/orrevision and to set aside the order dated 17.10.2007 of thelearned Additional Magistrate of Puttalam. By this orderthe learned Judge had determined that the respondents (l**and 2nd respondents) were in possession of the land (subjectmatter) two months prior to the date the information was filedand thus not to disturb their possession.
The petitioners, case
The extent of the disputed land is 14 acres. The originalowners of this land were one Naina Marrikar and his wife.They sold this land by deed No. 11616 of 1967 to one Bashir.Bashir sold it by deed No. 383 of 1971 to the 1st petitioner’swife and her sister. Naina Marikar died in 1975. On 25.5.1997the intestate heirs of Naina Marikar namely, the wife and thechildren executed deed No. 13501 and purportedly gifted theland in dispute to one of the children, namely, Munawer Ali.The petitioners claim that the deed 13501 did not conveyanything as there was nothing left to be conveyed
l5t case under section 66 of the Primary Court Procedure Act
On 26.06.1997 Munawer Ali made a complaint toWanathawiluva police against Letiff, the father of the presentowners. In this complaint to the police Munawer Ali statedthat he became aware that his father owned 14 acres of landin Puttalam and that one Latiff was claiming ownership. This
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resulted in a section 66 application being filed. The courtdismissed this application as the information was filed twomonths after the complaint.
2nd case under section 66
On 22.6.2006 the l8t respondent who had a special powerof attorney from Munawer Ali had placed the 2nd respondentin the land in a temporary cadjan hut. The first respondentis a retired Grama Sevaka of this province. On 9.7.2008 the2nd respondent was evicted allegedly by the petitioner orhis agents. This resulted in a complaint being made to thepolice by the 2nd respondent on 10.7.2006. The police filedinformation on 26.9.2006 and initiated the present case No.16097/06/P. The petitioners had complained that the courthas no jurisdiction to hear this case as two months havelapsed from the date of the complaint to the date of filing theinformation.
The order of the Judge
The learned Judge having referred to section 68(3) of thePrimaiy Court Procedure Act stated that “the documents filedby the respondents reveal that the respondents have been inpossession for more than 6 months prior to the date of thedispute. The learned Judge stated that “by considering theaffidavits tendered the court decides that two months priorto the filing of the information by the police, possession waswith the respondents (first party). There was no determina-tion as to who was in possession at the time of filing theinformation and whether there was dispossession.
The objections of the respondents
The respondents claimed that Munawer Ali was the ownerby deed No. 13501 and the l9t respondent was in possession
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Sharif and others vs. Wickramasuriya and others
(Eric Basnayake J.j
259
throughout until the petitioners disturbed the 1st respon-dent’s possession in 2006.
Written submissions of counsel for the 1st and 2nd respondents
In the written submissions tendered on 18.11.2009 thelearned counsel for the respondents confirmed the followingfacts, Namely:
The date of eviction – 9.7.2006
The date of complaint – 10.7.2006
The date the information was filed 26.9.2006
Thus there is no dispute that the information was filedout of time. Whilst admitting that the information shouldhave been filed within 2 months of the date of complaint, thelearned counsel finds fault with the police for not having filedsame. However the learned counsel justified the court enter-taining this application. The learned counsel submitted thatthe act of the police should not be held against the aggrievedparty. When the aggrieved party acted under Section 66(1) (a)
, the aggrieved party expected the police also to act accordingto the law. When section 66(1) (a) (i) lays down that the policeshall with the least possible delay file an information and thefailure to adhere to the provisions in Section 66 (1) (a) (i) shouldnot be held against the aggrieved party. The learned counselsubmitted that a scheming party could prevent the aggrievedparty from proceeding with the section 66 application bymaking the police file information after two months.
The Primary Courts procedure
The court shall before fixing the case for inquiry makeevery effort to induce the parties to arrive at a settlement
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(66(6)). At the inquiry the court is required to determine asto who is in possession of the land on the date of the filingof information under section 66 and make order as to whois entitled to possession of such land (68(1)). If any personwho had been in possession is forcibly dispossessed within aperiod of two months immediately before the date on whichthe information was filed, he may make a determination tothat effect and make an order directing that the party dispos-sessed be restored to possession (Section 68 (3)) (Kanagasabaivs. Mylvaganam{l) Ramalingm vs. ThangarajaH2|, DavidAppuhamy vs. Yassassi Thero,3) Punchinona vs. Padumasena(4>Tudor vs. Anulawathie(5)
The learned President’s Counsel for the petitionerscomplained that no effort whatsoever was made by the learnedJudge to pursue a settlement. The fact that the PrimaryCourt had not made an endeavor to persuade parties toarrive at am amicable settlement fundamentadly aiffects thecapacity or deprives the Primary Court of Competence to holdam inquiry in to the question of possession Ali vs. Abdeen(6).The learned counsel further submitted that the learnedJudge has totally misdirected herself in law amd made nodetermination in terms of sections 68(1) or 68 (3) of the Act.
It appears that the learned Judge has taken as easy pathby not following the procedure laid down by the Act. Therewas no determination by the learned Judge as to who was inpossession on the date of filing the information as requiredby section 68(1). The other limb of this section is to make amorder as to who is entitled to possession. To make this orderthe Judge is required to make a determination as to who wasin possession on the date of filing the information. Once thecourt decided as to who was in possession on the date of filingthe information, the court must maike an order as to who
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Sharif and others vs. Wickramasuriya and others
(Eric Basnayake J.)
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is entitled to possession. Necessarily the person who was inpossession at the time of filing the information is entitled topossession, unless there was dispossession within a periodof two months immediately before the date on which theinformation was filed.
Admittedly it was the petitioner who was in possessionon the date of filing the information. The'information wasfiled on 26.09.2006. Two months period immediately beforethe date of the filing of the information would be 26.7.2006.The dispossession was on 9.7.2006 which falls outside theperiod. If the dispossession is outside the two months period,section 68(3) will have no application. A party dispossessedcould be restored back in to possession under section 68(3).If section 68(3) has no application the court cannot make anorder of restoration. In that event the court will have to makean order declaring the petitioner entitled to possession as itwas the petitioner who was in possession on the date of filingthe information.
The jurisdiction of the Court of Appeal
The learned counsel for the respondents submittedthat the Court of Appeal has no jurisdiction to hear revisionapplications filed against the orders or judgments of Magis-trates. He submitted that after the 13th Amendment to theConstitution and the Act of No. 19 of 1990 (High Court ofthe Provinces (Special Provisions) Act the aggrieved partiesshould move the respective High Courts of the provinces inrevision.
The Constitution
Article 138 of the Constitution gives jurisdiction to theCourt of Appeal with regard to its revisionaiy powers. Article138 is as follows:-
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138 (1): The Court of Appeal shall have and exercise(subject to the provisions of the Constitution or ofanv law) an appellate jurisdiction for the correctionof all errors in fact or in law which shall be committedby any court of first instance, tribunal or otherinstitution and sole and exclusive cognizance, by wayof appeal, revision and restitution in integrum, of allcases, suit, action, prosecutions matters and things ofwhich such courts of First instance, tribunal or otherinstitution may have taken cognizance (emphasisadded).
Proviso not reproduced
Is not reproduced.
The sole jurisdiction given by Article 138 was expendedto High Courts by Article 154P (3) (b) under the 13th Amend-ment to the Constitution. The Article is as follows:
154P (3) Every High Court shall –
Notwithstanding anything in Article 138 . . .exercise, appellate and revisionary jurisdictionin respect of orders. . . by Magistrate Courts andPrimary Courts within the province
In terms of Article 138 the Court of Appeal shall have andexercise. . . sole and exclusive cognizance by way of appeal;revision.. . However Article 154(3) (b) has given the High Courtappellate and revisionary jurisdiction in respect of orders byMagistrate Courts and Primary courts. Hence the Court ofAppeal ceased to enjoy sole and exclusive jurisdiction. Article154P did not take away the powers exercised by the Court ofAppeal under Article 138.
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Sharif and others vs. Wickramasuriya and others
(Eric Basnayake J.)
263
However section 9 of the High Court of the Provinces(Special Provisions) Act appears to have caused a conflictwith regard to the jurisdiction enjoyed by the Court of Appeal.According to this section an aggrieved person by a final orderof a High Court in the exercise of the appellate jurisdictionvested in it by paragraph (3) (b) of Article 154P may appealto the Supreme Court on a substantial question of law withleave first obtained from High Court.
Section 9 of High Court of the Provinces (Special Provi-sions) Act No. 19 of 1990 is as follows:-
Subject to the provisions of this Act or any other lawany person aggrieved by (a) a final order … of a HighCourt. . . in the exercise of the appellate jurisdic-tion vested in it by paragraph (3) (b) of Article 1S4P.. . which involves a substantial question of law, mayappeal there from to the Supreme Court if the Courtgrants leave to appeal to the Supreme Court. . .
High Court is vested with original jurisdiction and isplaced lower to the Court of Appeal in the order of Courtson superiority. However when a party chooses to go to HighCourt with a right of appeal to the Supreme Court, one mayargue that the appellate powers of the Court of Appeal havebeen removed.
Has the powers of the Court of Appeal with regard to itsappellate and revisionary jurisdiction been removed? This isnot so. Articles 138 and 154P give jurisdiction to Court ofAppeal and High Court respectively to hear appeals andrevision from the Magistrate’s Court Against the orders of thesecourts appeal lie to the Supreme Court with leave first obtainedfrom the Court of Appeal or the High Court as the case may
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be, on a question of law. This does not mean that the powersenjoyed by the Court of Appeal had been taken away. Thepowers of the High Court are limited to the Province. TheCourt of Appeal exercises its powers for the whole island.
The High Courts are given jurisdiction with regard toappeals and revision against judgements and orders ofthe Magistrate’s Courts and Primary Courts through theConstitution (13th Amendment). High Courts are givenappellate and revisionaiy jurisdiction with regard to judge-ments, decrees and orders of the District Courts in theProvinces through an Act of Parliament (Act No. 54 of2006). Against the judgments and orders of the High Court,appeal would lie again to the Supreme Court with leave firstobtained on a question of law from the Supreme Court. Inthis respect the High Courts have been given concurrentjurisdiction along with the Court of Appeal.
Act No. 54 of 2006
This Act amended Act No. 19 of 1990 with the inser-tion of sections 5A, 5B, 5C and 5D. Section 5A(1) gives theappellate and the revisionary jurisdiction which is asfollows
5A (1) A High Court established by Article 154P ofthe Constitution for a province, shall have andexercise appellate and revisionarv jurisdiction inrespect of judgments, decrees and orders deliveredand made bv anv District Court or a Family Courtwithin such a province and the appellate jurisdictionfor the correction of all errors in fact or in law, whichshall be committed by any such District Court orFamily Court, as the case may be (emphasis added).
CA
Sharif and others vs. Wkdvamasuriya and others
(BricBasnayakeJ.)
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(2) Not reproduced
I am of the view that the jurisdiction enjoyed by theCourt of Appeal through Article 138 remains intact. ThroughArticle 138 one has the liberty to invoke the jurisdiction ofthe Court of Appeal or to resort to a Provincial High Court in-terms of Article 154P (3) (b). If one chooses to go to the HighCourt, an appeal would lie to the Supreme Court with leavefirst obtained from the High Court (Section 9 of the Act 19 of1990). If one invokes the jurisdiction of the Court of Appealunder Article 138 an appeal would lie from any final orderor judgement of the Court of Appeal to the Supreme Courtwith leave of Court of Appeal first obtained (Article 128(1)of the Constitution). It is thus clear that both courts enjoyconcurrent jurisdiction on matters referred to in Article 154P
(b). The jurisdiction enjoyed by the Court of Appeal hadnot been disturbed by Articles of the Constitution or by theActs of Parliament.
Sharvananda C. J., Colin-Thome, Atukorale andTambiah J. in the case of In Re the Thirteenth Amendment toThe Constitution and The Provincial Councils Bill ,7> at 323 intheir determination held as follows
“The Bill do not effect any change in the structureof the courts judicial power of the people. The SupremeCourt and the Court of Appeal continued to exerciseunimpaired several jurisdictions vested in them by theConstitution. There is only one Supreme Court and oneCourt of Appeal for the whole Island. The 13th Amend-ment Bill only seeks to give jurisdictions in respect of. . .Without prejudice to the executing jurisdictions of theCourt of Appeal. Vesting of this additional jurisdictionin the High Court of each province only brings justicenearer home to the citizen and reduces delay and cost oflitigation.”
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In the case of Abeywardene vs. Ajith De Silva (8) thequestion was whether a direct appeal lies to the SupremeCourt from an order of the High Court in the exercise of itsrevisionary jurisdiction without first preferring an appeal tothe Court of Appeal. Anandacoomaraswamy J held (with fourJustices agreeing)”
There is no right of appeal from an order of the PrimaryCourt Judge. . . However parties appeal to the Court ofAppeal by way of revision under Article 138 of theConstitution read with Article 145 to have the order set aside.After the 13th Amendment, section 5 of the High Court ofthe Provinces (Special Provisions) Act No. 19 of 1990 readwith Article 154P (3) (b) of the Constitution entitled him tofile such application in the High Court of the province. TheJurisdiction of the High Court in the matter is concurrent(In re 13th Amendment to the Constitution (supra)) Inthe result, he may file an application in the Court ofAppeal or in the High Court” (emphasis added). In Gunaratnevs. ThambinayagamPK Kulatunga J., G.P.S. De Silva C. J.and Ramanathan J agreeing) referring to Article 138 of theConstitution read with Act No. 19 of 1990 and 154P (3) (b) ofthe Constitution held that “The jurisdiction of the High Courtin the matter is concurrent. . . In the result he may file hisapplication in the Court of Appeal or in the High Court”(at 357) (Also Kanagalingam vs. Logeswaranm by J. A. N. DeSilva J. (now Chief Justice). Ramalingam vs. Parameshwan/111Act No 19 of 1990 had made provision for the Court of Appealeither to transfer such appeals or applications to High Courtor to hear and determine such applications (by the Court ofAppeal). It appears that Act 19 of 1990 was introduced for thepurpose of expediting and disposing of cases. The relevantsection is as follows:-
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Sharif and others vs. Wkkmrnasuriya and others
(Eric Basnayake J.)
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12(a) Where any appeal or application is filed in the Courtof Appeal and an appeal or application in respect of thesame matter has been filed in a High Court established byArticle 154P of the Constitution invoking jurisdiction vestedin that Court by paragraph (3) (b) or (4) of Article 154P ofthe Constitution, within the time allowed for the filing ofsuch appeal or application, and the hearing of such appealor application by such High Court has not commenced, theCourt of Appeal may proceed to hear and determine suchappeal or application or where it considers it expedient todo so, direct such High Court to hear and determine suchappeal or application:
Provided, however, that where any appeal orapplication which is within the jurisdiction of a HighCourt,… is filed in the Court of Appeal, the Court ofAppeal may if it considers it expedient to do so, or-der that such appeal or application be transferred tosuch High Court and such High Court shall hear anddetermine such appeal or application.
Where the Court of Appeal decides to hear anddetermine any such appeal or application, as providedfor in paragraph (a), the proceedings pending inthe High Court shall stand removed to the Court ofAppeal for its determination (emphasis added).
Not reproduced
Not reproduced
This application was filed in the Court of Appeal on16.11.2007. The parties were noticed by the Court of Appealand objections were filed by the respondents on 7.2.2008. The
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written submissions were filed on 10.9.2008 and 1. 6.20098s 18.11.2009. This was taken up for argument on 8.10.2009.When this case was taken up for argument counsel for bothparties had addressed court with regard to the merits andthe court was ready and had time to hear both counsel onits merits. Thus the Court of Appeal is in a position to makean order on its merits. Therefore there is no reason for theCourt of Appeal to send it back to High Court. I am of the viewthat it is more expedient for the Court of Appeal to hear andconclude this case rather than to transfer it to the High Court.
Provisions have been made in the event an appeal orrevision is filed in the Court of Appeal and without filing inthe High Court of the Province, to transfer such cases. This isby Act No. 54 of 2006.
The section is as follows:
5D (1) Where any appeal or application in respectof which the jurisdiction is granted to a High Courtestablished by Article 154P of the Constitution by section5A of this Act is filed in the Court of Appeal, such appealor application, as the case may be, mavbe transferred forhearing and determination to an appropriate High Courtas mav be determined bv the President of the Court ofAppeal and upon such reference the said High Court shallhear and determine such appeal or the application, as thecase may be, as if such appeal or application was directlymade to such High Court.
Thus both courts enjoy concurrent jurisdiction withregard to judgments and orders of the Magistrate/PrimaryCourts and District Courts. The powers enjoyed by the Courtof Appeal had been given to the High Court of the Provinces
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to facilitate the litigants in the provinces and also to reducethe work load of the Court of Appeal. I am of the view that thepetitioners are at liberty to file this application before theCourt of Appeal and the petitioners are before the correctforum. For the reasons given on its merits I find that thelearned Judge has gravely erred in her order. Thus I set asidethe order of the learned Judge and make order directing theJudge to issue a writ of possession forthwith and repair theinjustice caused to the petitioner. I allow this application withcosts.
CHITRASIR1 J. – I agree.
Application allowed.