STASSEN EXPORTS LIMITED v. BROOKE BOND (CEYLON) LIMITED AND ANOTHER

008-SLLR-SLLR-1990-2-STASSEN-EXPORTS-LIMITED-v.-BROOKE-BOND-CEYLON-LIMITED-AND-ANOTHER.pdf


STASSEN EXPORTS LIMITED
v.BROOKE BOND (CEYLON) LIMITED AND ANOTHER
SUPREME COURT.
A. G. DE SILVA. J.. AMERASINGHE. J.. KULATUNGA. J„
S.C. APPEAL No. 21/90,
S. C. SPL. L. A. No. 42/90,
C. COLOMBO No. 2845/SPL.
C. A. L A. NO. 124/89,
JULY 30, 31, AUGUST 30, 31 AND SEPTEMBER 17,1990.
Intellectual Property Act, No. 52 of 1979 – Sections 107 (10) 107(13), 182 (3).
Registration of Trade Mark – Appeal – Leave to appeal to Court of Appeal – Meaning of‘Rules’ in Section 182 (3) of the Intellectual Property Act, No. 52 of 1979 – Civil ProcedureCode (Cap. 105) Section 754 – Trade Marks Ordinance No. 14 of 1988, Section 33 – TradeMarks Ordinance No. 15 of 1925 sections 50, 190 (2) – Interpretation of Statutes -Principles applicable – Subordinate legislation.
Stassen Exports Ltd. applied to the Registrar of Trade Marks for the registration of a TradeMark. Brooke Bond Ceylon Ltd. objected to the registration of the mark. The Registrar heldthat the mark could be registered. Brooke Bond Ceylon Ltd. appealed to the District Court.The District Court dismissed the appeal of Brooke Bond Ceylon Ltd. who then appealedto the Court of Appeal for leave to proceed against the decision of the District CourtStassen Exports Ltd. objected that Brooke Bond Ceylon Ltd. was following the wrongprocedure in applying for leave to appeal. Brooke Bond Ceylon Ltd., it was submitted, interms of Section 154 (1) of the Civil Procedure Code, had a rightist appeal and thereforethe Court of Appeal had no jurisdiction to entertain the application for leave to appeal. TheCourt of Appeal overruled that objection.
On appeal to the Supreme Court.
Held (Kulatunga J. dissenting) that an appeal from a final judgment of a District Court isgoverned by Section 754 (1) of the Civil Procedure Code and therefore a persondissatisfied with such a judgment may prefer an appeal to the Court of Appeal against suchjudgment for any error in fact or in law as a matter of right. The Court of Appeal has nojurisdiction in such circumstances to hear and determine an application for leave to appeal.When Section 182 (3) of the Code of Intellectual Property Act states that ‘Every judgmentor Order of the District Court under this Code shall be subject to an appeal to the Court ofAppeal and such appeal shall be subject to the same rules which govern interlocutoryappeals from the District Court', the word ‘rules' in thal section means ‘rules of Court* andnot legislation made by Parliament such as Section 754 (2) of the Civil Procedure Code.
Per Amerasinghe, J.,
‘I do not wish to suggest that the technical meaning must always be given to wordsin an Act of Parliament. What I do say is that where an enactment uses a term whichhas both an ordinary and technical meaning the question of which meaning the termis intended to have is determined by the content. If the content is technical, thepresumption is that the technical meaning of the term is the appropriate one unless thecontent warrants the wider meaning given to the word loquitur ut vulgus, that isaccording to the common understanding and acceptance of the term in commonparlance’.
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R v. Slator (1881) 8 QBD 267, 272, 274.
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Graham v. Ewart 1856 1 H 8 N 550, 562, 563, 564
Rein v. Lane 1867 LR 2 QB 144, 150, 151
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The Dunelm 1884 9 P. D. 164, 171
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Holmes v. Bradtie)d Rural Development Council [1949] 2 KB 1,7 tin. – 8
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The Lincoln College Case (1595) 3 Co. Rep. 586
John Carter Colquhoun v. Henry Brooks [1889] 14 AC 493, 506
Canada Sugar Refining Co, v. R [1898] C 735, 741
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R v. Poor Law Commissioners (1837) 6A8 E56
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The King v. Berchett (1690) 1 Show 106, 108
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R v. East Ardsley Inhabitants (1850) 14 QB 793, 801
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Stone v. Mayor, Alderman and Burgesses of Yeovil Corporation (1876)1 CPD 691,701
Harcourt v. Fox (1693) 1 Show 506, 532
Mason v. Boltons Library Ltd 1913 1KB 83, 90
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The Fusilier (1865) Br&L341, 393
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The Governor and Company of the Bank of England v. Vagliano Brothers [1891] AC107, 144, 145
Bristol Tramways & Carriage Co Ltd v. Fiat Motors Ltd [1910] 2 KB 831,836
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Govinda Iyer v. Emperor AIR 1919 Mad 7, 8
R v. Holland Palmer (1785) 1 Leach 352, 355
En Parte Copeland (1852) 2 De. GM & G 914, 920
R v. Loxdale (1758) 1 Burr 445, 447
Barras v. Aberdeen Steam Trawling and Fishing Co Ltd. [1933] AC 402, 411
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Ananti v. Chhanu and Others AIR 1930 All 193, 197
George Wimpey & Co. Ltd v. BOAC [1955] AC 169, 191
Ishar Singh v. Allah Rakha and Another AIR 1936 Lahore 698, 699
State v. Jamnabai Manji Keshaviji AIR 1955 Bom 280, 282
Samidorai Thennavarayar v. Vaithilinga Thennavarayar AIR 1964 Mad. 314
Tayillath Vamanan Nambudiri v. Ammamankandyil Narayana Kurup and OthersAIR 1965 Kerala 1, 2 fin.
Commissioner of Income Tax Bombay v. M/s. Filmistan Ltd. Bombay AIR 1958Bom. 345, 346
Nagendra Nath Bose v. Mon Mohan Singha Roy and Others AIR 1931 Calcutta 100
Sheikh Sadar AH v. Sheik Dolliluddin Ostagar AIR 1928. Cal 640
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Escoigne Properties Ltd v. IRC [1958] AC 549, 566
The Beta (1865) 3 Moo. P. C. C. (N. S.) 23, 25
Curtis v. Stovin (1889) 22 OBD 513, 517
Hankey v. Clavering [1942] 2 KB 326, 330
Juanis v. Engo Nona (1926) 8 Ceylon Law Recorder 45
Fernando v. Fernando (1969) 72 NLR 599
Savings and Investment Bank v. Gasco (1988) 2 All ER 975
APPEAL from an order of the Court of Appeal given on a preliminary objection to anapplication for leave to appeal.
H. L. de Silva P. C. with Gomin Dayasiri, P. M. Ratnawatte and Janaka de Silva forpetitioner.
K. N. Choksy, P. C. with Lakshman Kadirgamar for respondent.
Curadv. will.
October 09,1990AMERASINGHE.J.
Stassen Exports Ltd., applied to the Registrar of Trade Marks undersection 102 of the Code of Intellectual Property Act, No. 52 of 1979 forthe registration of the trade mark Spring Brand that was depicted underthe number 40649 in the Government Gazette No. 246 of 20 May, 1983.Brooke Bond Ltd., in terms of section 107 (10) of the Intellectual PropertyAct, filed a notice of opposition dated 17 November, 1983. Brooke BondLtd. objected to the registration of the mark Spring Brandon the groundthat it was the registered owner of Trade Mark Nos. 5226 and 2878which, wholly in one case, and partly in the other, consisted of the wordsSpring Leaf. After inquiring into the matter, the Registrar of Trade Marksby his Order, dated 25 January, 1988, made in pursuance of the powersvested in him by section 107 (13) of the Intellectual Property Act, heldthat the mark in question could, be registered by Stassen Exports Ltd.
Brooke Bond Ltd. in terms of Section 182 (1) of the Code of IntellectualProperty Act appealed to the District Court. After hearing the parties, on30 November, 1989 the District Court dismissed the appeal of BrookeBond Ltd.
Brooke Bond Ltd. then applied to the Court of Appeal for leave toappeal against the decision of the District Court. On the appointed day forthe hearing of the application for leave to appeal, learned counsel forStassen Exports Ltd. raised a preliminary objection. He submitted thatBrooke Bond Ceylon Ltd., had followed the wrong procedure : Theappeal was from a final judgment of the District Court. Therefore BrookeBond Ceylon Ltd. had, in terms of section 754 (1) of the Civil ProcedureCode, a right to appeal which it should have exercised. Instead, it hadmistakenly only sought leave to appeal to that Court. In the circumstancesthe Court of Appeal had no jurisdiction to entertain the application forleave to appeal.
The matter of the preliminary objection was argued on 19 February,1990. On 13 March, 1990 the Court of Appeal decided that Brooke BondCeylon Ltd. had followed the correct procedure in seeking the leave ofthe Court and overruled the objection.
By its petition dated 28 March, 1990, Stassen Exports Ltd., hereinafterrefened to as the Appellant, sought the leave of the Supreme Court toappeal from the decision of the Court of Appeal on the question of thepreliminary objection.
The matter of the application for leave was considered by this Courton 19 June, 1990. On that occasion, the Senior State Counsel whoappeared for the Registrar of Trade Marks, in support of his Motion dated14 May, 1990, stated that the Registrar, who had taken no part in theproceedings in the Court of Appeal, would abide by the decision of theSupreme Court in this matter. SeniorState Counsel indicated that, in thecircumstances, he need not further participate in these proceedings.Learned counsel for the Appellant and Brooke Bond Ceylon Ltd.,hereinafter referred to as the Respondent, had no objection to this. TheSupreme Court granted leave to appeal on 19 June, 1990.
Had the Respondent followed the correct procedure when it appliedto the Court of Appeal for leave to appeal or should it have taken thosesteps that are prescribed for lodging appeals as of right ?
The Respondent maintained that leave to appeal had been properlysought because section 754 (2) of the Civil Procedure Code providesthat “Any person who shall be dissatisfied with any order made by anyoriginal court in the course of any civil action, proceeding or matter towhich he is or seeks to be a party, may prefer an Appeal to the Court ofAppeal against such order for the correction of any error in fact or in law,with the leave of the Court Appeal first had and obtained."
it was not in dispute that the decision of the District Court in respectof which the appeal was sought to be preferred was a final judgment ofthat Court on the appeal against the order of the Registrar of Trade
Marks. It was not merely an order pronounced in the course of thataction. It was a finally decisive pronouncement of the District Court andnot merely an order which was interlocutory in nature. That being so, theAppellant maintained, the Respondent's case came under section 754
of the Civil Procedure Code which deals with the right of appealwhere there is a final judgment. Section 754 (1) provides that “ Anyperson who shall be dissatisfied with any judgment pronounced by anyoriginal court in any civil action, proceeding or matter to which he is aparty may prefer anAppealtothe Court of Appeal against such judgmentfor any error in fact or in law.”
The explanation of the Respondent for requesting leave to appeal interms of section 754 (2) was that the decisions of a District Court,whether they be final judgments or other orders, made under the Codeof Intellectual Property Act No. 52 of 1979, must follow the provisionsof the Civil Procedure Code governing interlocutory orders. The reasonfor this, the Respondent says, is that section 182 (3) of the Code ofIntellectual Property Act stipulates that "Every judgment or order of theDistrict Court under this Code shall be subject to an appeal to the Courtof Appeal and such appeal shall be subject to the same rules whichgovern interlocutory appeals from the District Courts."
Mr. Choksy, P.C submitted that although “ interlocutory’’ was notdefined, the word had a well – established meaning among lawyers andwas understood as relating to orders made by a Court in the course ofan action where there was no finality. He recalled the practice, in daysgone by, of the Registrar of the Supreme Court listing as a matter ofpriority “interlocutory", as distinguished from “final” appeals. He referredus to the observations of Nicholls, L.J. in Savings Investment Bank Ltd.v.Gasco Investment (Netherlands) BV and Others (1) with regard tothe meaning of the term “interlocutory”. There was no dispute about themeaning of the word “interlocutory”.
The Respondent submitted that, since section 182 (3) of the Codeof Intellectual Property states that every appeal, whether it be ajudgment or order shall be subject to the same rules which governinterlocutory appeals, the rules of procedure for preferring appeals frominterlocutory orders set out in section 754 (2) of the Civil ProcedureCode, and not the provisions of section 754 (1), which prescribes themode of appeal from final judgements, become applicable. If section
754 (2) prescribes the mode of preferring an appeal, then leave to appealmust be first had and obtained because that is the procedure prescribedby section 754(2).
•%
According to the Appellant, section 182(3) of the Code of IntellectualProperty does not say that appeals shall be subject to the law governingappeals from interlocutory orders. It had, albeit unnecessarily, by a pieceof what learned counsel for the appellant described as “ surplusage”,confirmed the general law set out in section 754 (1), namely, that adissatisfied person had a right of appeal. The legislature then added thatsuch appeals which were available as of right and not dependent upon theleave of the Court of Appeal, shall be subject to the rules governinginterlocutory appeals with regard to ancillary matters such as who had toapply for typewritten copies, how much was to be charged for furnishingthem, and what was to happen if an appellant did not apply for them or ifhe failed to pay for such copies and so on.
Why were both final and other orders made subject to the rulesgoverning interlocutory appeals? Mr. De Silva, P.C. explained that thiswas in order to impose on an appellant a lighter financial burden in thematter of fees for typewritten copies of the record for the brief in appealthan would have been the case had it been regarded as any other finalappeal. The charges were to be levied with uniformity in all cases ofappeals under the Code of Intellectual Property, whether they wereappeals from final judgments or intelocutory orders.
The Appellant and Respondent have placed different meanings onArticle 182 (3) of the Code of Intellectual Property. The Court of Appealagreed with the meaning attributed to that section by the Respondent.The Appellant disagrees with the decision of the Court of Appeal and it isthe delicate task of this court to interpret that section and decide whetherthe word “rules” in Article 182 (3) of the Code of Intellectual Propertyshould, as the Respondent suggests, be given its wider, " ordinary”meaning, or whether, as the Appellant says, it should be given anarrower, “technical” meaning.
The expression “ordinary" in explaining the meaning of words is oftenused by the Courts interchangeably with other words such as “genuine”“grammatical” “literal” “ natural” and “popular. ” W.F. Craies (Statute law7th Ed. by S.G.G. Edgar, 1971, at pp. 65 fin- 66) suggests that the word“primary" might be used instead of such words. Sir Rupert Cross(Statutory Interpretation 2nd Ed. By John Bell and Sir George Engle,1987) too uses the term “primary”. Sometimes, as Lord Simon ofGlaisdale did in Maunsellv. Olins (2) at p.391 reference is made to a“primary ordinary sense" and “secondary ordinary sense”. Some of thesewords may also be used in a pejorative sense. (E.g see Cross, op. cit. 65).“Ordinary” or “Primary” are sometimes used as the opposite of "technical.”(E.g. see The Interpretation of Statues by N.S. Bindra, Revised by TahirMahmood and Yudhishthira 201); but in a given context it may be saidthat the technical meaning is the ordinary, usual, or primary meaning ofthe word. For instance, Denman, J. In f?v. Slator(3)at p.272 says that “itaiways requires the strong compulsion of other words in an Act to inducethecourtto alter the ordinary meaning of a well-known legal term.” In Holt& Co . v. Collyer (4) Fry, J. said that if a word is of “a technical andscientific character, then it must be construed according to that which isits primary meaning, namely its technical and scientific meaning." Thepopular use of words in a technical context, Lord Robertson observed inThe Lord Advocate v. Stewart (5) “does not represent their primarymeaning but some half understanding of them” (See also F.A.R. Bennion,• Statutory Interpretation, 1984, at pp. 804—805). One ought, therefore, tobe cautious in the use of these words. In order to make myself as clearas I can, I shall endeavour to avoid using these terms, hoping that wherethey do appear, the meaning will be clear in their contexts.
Learned President's Counselforthe Respondent repeatedly remindedus that the duty of the Court is to construe the Act according to the intentof Parliament. I am in complete agreement with that proposition. I mustgive the difficult word the meaning intended by Parliament, whether thatbe its ordinary or technical meaning. However, there are two matters onwhich I should say something. The first is this: it has been suggested thatthe meaning intended by Parliament might be described as the “legal”meaning of the word. (E.g. see Bennion, op. cit. at p. 4 and p. 199). I wouldprefer not to follow that suggestion for the reason that the phrase “legalmeaning ” is sometimes used to refer to the meaning given by lawyers asa term of art. (E.g. see George Stephenson v. Henry TheophilusHigginson (6) Holt v. Collyer (4); The Lord Advocate v. Stewart (5).
The second matter is this: It would seem that not everyone agrees thatour task is to find the intention of Parliament.
Lord Simonds, In Magor and St. Mellons RDC v. Newport Corpn (7)expressed the view that “A general proposition that it is the duty of the
Court to find out the intention of Parliament cannot by any means be
supported." And Lord Scarman once observed (418 House of LordsDebates, col. 65 9 March 1981) that “We are to be governed not byparliament’s intentions but by parliament’s enactments. ”
Admittedly, the “Intention of the legislature” as Lord Watson in Salomanv. Saloman & Co. Ltd. (8) observed," is a common but very slipperyphrase, which, populary understood, may signify anything from intentionembodied in positive enactment to speculative opinion as to what thelegislature probably would have meant, although there has been anomission to enact it.” Yet, among other things, the search for legislativeintention provides an explanation for our expectation as judges, indischarging our duties as interpreters of the law, to find coherence andconsistency within and between enactments. (See Cross, op. cit. p. 26).This, as we shall see later on, is a matter of some importance in this case.
To say that we are looking for “the intention of Parliament’’ also,provides what Cross (op. cit. 28) describes as a“ perspective ororientationwithin which judicial decision making takes place.” It serves to drawattention to the relatively subordinate role of the judiciary. Article 4 (c) ofthe Constitution provides that the “Judicial power of the People shall beexercised by Parliament through the Courts, tribunals and institutions….”The phrase “ intention of Parliament” reminds us that, in its task ofascertaining the intention of Parliament, the role of the Judiciary is limited.As Lord Diplock said in Duport Steels Ltd. and Others v. Sirs and Others
(9) “ Parliament makes the laws, the judiciary interpret themthe role
of the judiciary is confined to ascertaining from the words that Parliamenthas approved as expressing its intention what that intention was, and
giving effect to itIt endangers continued public confidence in the
political impartiality of the judiciary, which is essential to the continuanceof the rule of law, if judges under the guise of interpretation, provide theirown preferred amendmentstostatuteswhichexperienceoftheiroperationhas shown to have had consequences that members of the court beforewhom the matter comes consider to be injurious to the public interest.”And so I am in complete agreement with the submission of learnedPresident’s Counsel for the Respondent that, in terms of what hedescribed as “ the fetters the Courts have placed on themselves indischarging their Constitutional functions”, it is not the role of this Courtto attempt to legislate under the guise of interpretation.
However, when learned President's Counsel for the Respondentsubmits that giving the wider meaning to the word will not cause any“injustice” or “prejudice” to the Appellant, whereas, giving the word “rules”the narrower meaning would non-suit the Respondent who has used hisTrade Mark for over fifty years, and that we may, therefore, give the word“rules” its wider meaning, I must say at once, that that is an irrelevantconsideration in executing my task of interpretation. Pollock, C. B. in
Miller v. Salomans (10) said: “I think, where the meaning of a statute
is plain and clear, we have nothing to do with its policy or impolicy, itsjustice or injustice, its being framed according to our views of right or thecontrary. If the meaning of the language used by the legislature be plainand clear, we have nothing to do but to obey it – to administer it as we findit; and I think, to take a different course is to abandon the office of Judge,arid to assume the province of legislation.” With great respect, I thinklearned Counsel for the Respondent had for a moment overlooked thedistinction between the meaning and the legal effect of section 182 (3)of the Code of Intellectual Property when he invited us to give the word“rules" the wider meaning to prevent hardship to his client. We oughtalways to observe the distinction. (E. g. cf. per Lindley, L. J. in Chatenayv. Brazilian Submarine Telegraph Co.) (11).
Admittedly, as we shall see, in trying to ascertain the meaning intendedby Parliament, a Court, bound by the “fetters” imposed upon itself, (ifinterpretative criteria should be so described) prefers to believe unlessthere are indications by Parliament to the contrary, that meanings morebeneficial or less burdensome or less harmful to the citizen are intendedby Parliament, rather than others which have an opposite effect. This ison the way to ascertaining the meaning of the difficult words. As LordSimon of Glaisdale said in Stock v. Frank Jones (Tipton) Ltd. (12) at p.953, “ if the words are capable of more than one meaning it is a perfectlylegitimate intermediate step in construction to choose between potentialmeanings by various tests (statutory, objective, justice, anomaly etc.)which throw light on what the draftsman meant to say.” But once themeaning has been ascertained by the application of the relevant canonsof construction and the meaning is clear, then the Court is no longerconcerned with the qualities or effects of what Parliament has said.Finnemore, J. in Holmes v. Bradfield Rural District Council (13) atpp. 7fin – 8, said: “Of course the mere fact that the results of applying a statutemay be unjust or even absurd does not entitle a court to refuse to put itinto operation. It is, however, common practice that, if there are two
reasonable interpretations, so far as the grammar is concerned, of thewords in an Act, the courts adopt that which is just, reasonable andsensible rather than one which is, or appears to them to be none of thosethings.”
The duty of a court is to construe Acts of Parliament according to theintent or will of the legislature and to give the words their meaning, evenif that intention appears to the court just or unjust, right or wrong,injudicious, odd, absurd,.or inconvenient or whatever may be the ulteriorconsequences of so interpreting them, and to leave the remedy, if one beresolved upon, to others. Dislike of the effect of a statute is of noconsequence. (Cf Miller v. Salomahs (10) per Pollock, C. B.; Preston v.Buckley (14) per Blackburn, J.; The River Wear Commissioners v.William Adamson and others (15) per Lord O Hagen at p. 756 and perLord Blackburn at pp. 763, 764 and per Lord Gordon at p. 777, 778;Attorney-General v. Noyes and others (16) per JesselM. R.;the SussexPeerage Case (17) at. p. 143 per Tindall, C. J.; Hornsey Local Board v.Monarch Investment Building Society (18) per Lord Esher M. R; Cox v.Hakes (19) per Lord Herschell; David M'Cowan v. Baine and Johnstonand Others (20) per Lord Bramwell; Aron Satoman (Pauper) v. A.Saloman and Company Limited (8) per Lord Watson; Sutters v. Briggs(21) per Viscount Birkenhead L. C.; Inland Revenue Commissioners v.Collco Dealings; Samev. Lucbor Dealings Ltd. (22) per Vaisey, J.; EalingLondon Borough Council v. Race Relations Board (23) per Lord Simonof Glaisdale. See also Craies , op. cit. 28-29; Sir P. B. Maxwell, TheInterpretation of Statutes, (12th Ed. pp. 28-29). Indeed, although in ourRepublic sovereignty is , in terms of Article 3 of the Constitution, in thePeople, effect must be given to the meaning intended by Parliamentwhich, in terms of Article 4 (a) of the Constitution exercises the power ofthe People, even though the court (which in terms of Article 4 {c) of theConstitution is an instrument through which the judicial power of thePeople is exercised by Parliament) may believe that such a meaning wasopposed to the consciousness of the people. (Cf. per Devadoss, J. inOliyath Vazayil Abuvakkar and Others v. Oliyath Kunhikuttiyali andOthers (24). To do otherwise would, as Blackstone, when treating ofstatute law (Vol. I at p. 91), said, “set the judicial power above that of thelegislature which would be subversive of all Government.” (See also TheRiver Wear Commissioners Case, (15) at p. 776). The function of theCourt is to interpret the law, not to make it, jus dicere et non jus dare (Cf.perTek Chand J. (Broadway, J. agreeing) in Mirzav. Jhanda Ram (25)
Bindra, op. cit. p. 141; Craies, op. cit174.) A court may, at most, removethe dross so as to make the meaning of the legislature clearer. InCorocraft Ltd. v. Pan American Airways Inc. (26) Donaldson J. at p. 638said; The duty of the courts is to ascertain and give effect to the will ofParliament as expressed in its enactments. They are not legislators butfinishers, refiners and polishers of legislation which comes to them in astate requiring varying degrees of further processing." With the greatestrespect, I fully endorse the observations of Lord Scarman in WesternBank Ltd. v. Schindler (27) which learned President's Counsel for theRespondent quoted to us with regard to the limited choice of Judges inthe United Kingdom. Judicial legislation is not an option open to SriLankan Judges as well. We are not required, as are, for instance, theSwiss courts, to declare and insert into legislation words which the judgewould have put there as legislator.
“All this”, as Lord Simon of Glaisdale observed in Stock v. Frank Jones(Tipton) Ltd., (12) at p. 954, “is not to advocate judicial supineness: it ismerely respectfully to commend a self-knowledge of judicial limitationsboth personal and constitutional.”
In responding to Mr. De Silva's submission that to give the word “rules”the wider meaning would impose an additional burden on appellants, Mr.Choksy said that the dislike of a statutory provision is of no consequencein interpreting it. I agree. Mr. Choksy, P. C. relied on the decision in Stockv. Frank Jones (Tipton) Ltd. (12) and referred us to the judgment of LordEdmund – Davies in that case. At page 954 Lord Edmund – Davies saysthis: “dislike of the effect of a statute has never been an accepted reasonfordeparting from its plain language. Holt C.J. said nearly three centuriesago: “An Act of Parliament can do no wrong, though it may do severalthings that look pretty odd”. (City of London v. Wood (23) Accordingly,even if one regarded the policy implicit in” (the section) “as open tocriticism, the statutory language is clear beyond doubt and must prevail."Hard may be the law, but it must be given effect to. Hoc quidemperquamdurum es sedita lex scripta est. This, as Lord Simon of Glaisdale said inStock v. Frank Jones (Tipton) Ltd. (12) at p.954 “is farpreferable to judicialcontortion of the law to meet apparently hard cases with the result thatordinary citizens and their advisers hardly know where they stand.” Thisapplies equally to the appellant who may have to bear an additionalburden, if that is what Parliament has said so, as well as to the respondentwho, if that is the result of what Parliament has said may be non-suited.
As I have said our role as Judges is limited and the rectification ofimperfections belongs elsewhere. Perhaps there would be no difficulty inmaking the necessary alterations. As Lord Simon of Glaisdale observedin Stock v. Frank Jones (Tipton) Ltd. (ibid.) “Parliament is nowadays incontinuous session, so that an unlooked-for and unsupportable injusticeor anomaly can be readily rectified by legislation.”
How should I begin to ascertain what Parliament meant in enactingsection 182 (3)? Mr. Choksy P.C. forthe respondent, citing Maxwell (TheInterpretation of Statutes 12 Ed. by P. St. Langan, 1969, at p. 28), saidthat the intention of the legislature must be deduced from the languageused. With this I agree. A verbis iegis non est recedendum. (5 Coke 118).A court ascertains what the legislature has intended primarily by what ithas chosen to enact in the language it has used. (See Halsbury's Lawsof England, 4th Ed.Vol. 44 para. 856.) As Lord Parker C.J. said in Capperand Another v. Baldwin (29) “the intention of Parliament must be deducedfrom the language used.”
The principle that a court must ascertain the intention of the legislaturefrom the words it has used rests on the basis that, ordinarily, nothing canso well explain the meaning of the makers of an Act as their own directwords. Index animi sermo – language conveys the intention of the mind.(See Co. Rep. 118b) Cross (op.cit p.13) explains this in the following way:
: “It is the courts duty to give effect to the intention of Parliament but thiermain source of information on the matter is the wording of the statute; ifthis is not clear there is obviously a risk that the courts will be unable todo their work properly. On the other hand the draftsman will find it difficultto convey the parliamentary intent to the court unless he knows that theywill attach the same meaning to his words as that in which he employsthem. Hence the need for a common standard of interpretation and therecan hardly be a better standard that the ordinary or in appropriate cases,the technical, meaning of English words.”
What has the legislature chosen to say in section 182 (3), whetherthatbe expressly or by reasonable and necessary implication (cf per LordWatson in Saloman v. Saloman & Co. Ltd. (8) at p.38, or as a matter ofirresistible inference (cf. Halsbury, op.cit. para. 904 note 2)? In answeringthis, a court could follow the advice of Lord Wenslydale in Grey v. Pearson(30) and, as a starting point, give the words the meaning they bear whenthe disputed provision is construed according to the usual rules and
usages of grammar, syntax and punctuation and the accepted canons ofconstruction in interpreting a piece of prose, (cf. R. v. Halliday(31) perLord Shaw of Dumfemline; Mitchell v. Torup (32) per Parker C.B.; CfBennion, op.cit. p. 200; Halsbury, (op.cit) paras. 863, 865; Maxwell,op.cit. p.28). Lord Upjohn, however, in R. v.Schildkamp (33) expressedthe view that it is wrong to begin in this way. Counsel had submitted thatthe terms of the disputed subsection in that case were perfectly clear asa matter of language. His Lordship said (at p. 22 fin. – p. 23): “Looking at
that subsection alone, I agreeButthis, in my opinion is the
wrong approach to the construction of an Act of Parliament. The task ofthe court is to ascertain the intention of Parliament; you cannot look at asection, still less a subsection, in isolation, to ascertain that intention; youmust look at all the admissible surrounding circumstances before startingto construe the Act.”
In support of this view, Lord Upjohn quoted Lord Simonds who, inAttorney-General v. Prince Ernest Augustus of Hanover (34) at p. 461said —
“For words, and particularly general words, cannot be read inisolation: their colour and content are derived from their context. So itis that I conceive it to be my right and duty to examine every word ofa statute in its context, and I use ‘context' in its widest sense, which Ihave already indicated as including not only any other enactingprovisions of the same statues, but its preamble, the existing state ofthe law, other statutes in pari materia, and the mischief which I can, bythose and other legitimate means, discern the statute was intended toremedy.”
I have emphasised the phrase “legitimate means” because I shallhave to refer to this aspect of the matter later in my judgment.
Many years earlier, in 1877, Lord Blackburn in The River WearCommissioners Case, (15) at p. 763, had said —
"In all cases the object is to see what is the intention expressed bythe words used. But, from the imperfection of language, it is impossibleto know what that intention is without inquiring farther, and seeing whatthe circumstances were with reference to which the words were usedand what was the object, appearing from those circumstances whichthe person using them had in view; for the meaning of words variesaccording to the circumstances with respect to which they were used.”
Lest the phrase “person using them” might cause confusion, it mightbe explained that Lord Blackburn had said that he was endeavouring tostate the “principles on which the Courts of Law act in construinginstruments in writing" and that His Lordship had held that “a statute is aninstrument in writing”.
I am conscious of the fact that the canons of statutory interpretationdescribed as the “literal rule”, “mischief rule” and “golden rule” are nowsometimes fused in their application. I would, however, rather proceedcautiously, from the beginning without jumping in at the deep end or evenin the middle so that how I have proceeded all the way may be very clear.Admittedly, the colour of a word might change in its surroundings, (cf. perLord Scarman in Bromley LBC v. Greater London Council (35)). But itseems to me that we should begin to permit our chameleon-like word toroam about, changing its colour in this context or that, only if there is anambiguity. If a word has “no common or ordinary meaning so fixed anddefinite that by the mere use of the word you can determine in what sensethe legislature has used it,” then one ought to “search otherwise than inthe word itself what is the meaning in which the legislature has used it,since the natural and ordinary meaning of an ambiguous word cannot beascertained without the context." (See per Lord Halsbury in Grant v.Langston (36); per Viscount Reading C.J. in B. Aerodrome Limited v.Dell (37).)
As far back as 1844, in the Sussex Peerage Case (17), Lord ChiefJustice Tindall said —
“the only rule for the construction of Acts of Parliament is that
they should be construed according to the intent of the Parliamentwhich passed the Act. If the words of the statute are in themselvesprecise and unambiguous, then no more can be necessary than toexpound those words in their natural and ordinary sense. The wordsthemselves alone do, in such cases, best declare the intention of thelawgiver. But if any doubt arises from the terms employed by thelegislature, it has always been held a safe means of collecting theintention, to call in aid the ground and cause of making the statute andto have recourse to the preamble which according to Chief JusticeDyer (StoweI v. Lord Zouch (38)), is “ a key to open the minds of themakers of the Act, and the mischiefs which they intend to redress. ”
The word “ rules" in section 182 (3) of the Code of Intellectual Property,learned President’s Counsel for the respondent sugested, means thetotality of principles regulating the procedure or method to be observedin preferring appeals from the orders of a District Court laid down byParliament and by any other body authorized by it.
On the other hand, learned President’s Counsel for the appellantmaintained that, although the word “rules’ is capable of bearing such awide meaning, it also has a narrower, technical meaning : it denotes abody of principles laid down by a body or authority empowered by thelegislature to prescribe such principles. In this sense, the word “rules ”signifies a form of subordinate legislation as distinguished from the lawsmade by Acts of Parliament. Mr. De Silva, P.C. submitted that it is in thistechnical sense that the word “rules" is used by Parliament in section 182
of the Code of Intellectual Property.
Is the word “rules" capable at all of bearing such a meaning as the onesuggested by the appellant ? For the time being I shall seek an answerto that question before I attempt to answer the question whether that isthe meaning intended by Parliament in section 182 (3).
It must often happen that what is expressed in one place throws lighton the meaning intended elsewhere ; (cf. Bennion, op. eft. 851) andlearned President's Counsel for the appellant, citing the decision ofCross, J. in Registrar of Restrictive Trading Agreements v. W. H. Smith& Son and Others (39) invited us to consider the use of the word “rules”in other statutes.
When one looks at statutes in pari materia, it is clear that the legislaturedoes use the word “rules” in a narrow sense to describe a form ofsubordinate legislation. Mr. De Silva, P.C. pointed out that in dealing withthe subject of appeals from the decisions of District Courts in section 23of the Judicature Act, No. 2 of 1978 (which has since been amended bythe Judicature Amendment Act, No. 37 of 1979), the legislature granteda right of appeal to persons dissatisfied with the decision “ except wheresuch right is expressly disallowed by any written law, in accordance withany law, regulation or ru/e governing or controlling the manner and
procedure for so appealing to the Court of Appeal” The legislature
uses the words “any law, regulation or rule governing procedure" in theJudicature Act with regard to the question of appeals from (a) Primary
Courts in section 35 (1); (b) Magistrates’ Courts in section 31 ; and (c)Family Courts in section 27. Considering the company which the word“rule” was given in those sections—noscitur a sociis — it is difficult toresist the force of Mr. De Silva’s submission that the legislature knows ofthe difference between laws, regulations and rules and that it usesappropriate words to separately describe them because it intends tomake such differences clear.
Mr. De Silva, P.C. said that the legislature must be assumed to beaware of it own distinctions. Craies (op. cit. p. 174) observes that “if wefind that in previous legislation two different words have been designedlyused to express two distinct things, we may assume that in subsequentstatutes the legislature has not lost sight of the distinction uniformlyobserved in the preceding statutes. “ I should think that this would^especially be the case in the matter before us, since the Judicature Act,the Civil Procedure Code and the Code of Intellectual Property wereenacted by the same men at almost the same time and it may well be saidthat they were born of the same of legislative mind and actuated by thesame policy. (Cf. Bindra, op. cit p.318 ; J.G. Sutherland, Statutes andStatutory Construction, 3rd Ed. Vol. 2 section 5202 pp. 537 – 8). It mightbe said in the words of Cockburn, C.J. in Smith & Others v. Brown &Others{ 40) that “we see no reasonto suppose that the legislature in usingthe term in the enactment we are considering had lost sight of thedistinction uniformly observed in the preceding statutes.”
Although “ rules" is used in section 182 (3) of the Code of IntellectualProperty without its companions, "laws” and “regulations”, it does notnecessarily, therefore, become incapable of bearing the narrower meaning.The word “rules” is a free-standing technical legal term with a precisemeaning when it is used by the legislature, and, in my view, it has ameaning in law which exists for all purposes and not just for those ofparticular enactments. Exceptionally, it may, as we shall see, bear othermeanings in certain contexts. But that is another matter. “Rules" forinstance, is used in Article 136 of the Constitution (another documentenacted by Parliament at about the same time) standing by itself and notin the company of “laws” and “regulations”. Yet, when it provides in thatArticle that the Chief Justice with any three Judges of the Supreme Courtnominated by him may make “rules” regulatingthe practice and procedureof the Court with regard to the hearing of appeals and so on, thelegislature is once again using the word “rules” in its narrow, technicalsense. The Interpretation Ordinance (Cap. 2) does not define the word“rules”, but in section 17, when it deals with the general provisions withrespect to the power given to any authority to make rules, the word “rules”standing by itself, occurs in several places and clearly means subordinatelegislation.
In the Code of Intellectual Property itself the distinction between rulesin the sense of subordinate legislation and Acts of the legislature isrecognized. Section 190 (1) repeals the Trade Marks Ordinance and theMerchandise Marks Ordinance and in section 190 (2) states that“Notwithstanding the repeal of the aforesaid Ordinances (a) every rule orregulation made there under as is in force on the appointed date in so faras such rule or regulation is not inconsistent with the provisions of PartV of this Code shall be deemed to be a regulation made under this Codeand may be amended or rescinded by regulations made under this Code."The Code enacts similar provisions, in section 187 (3) with regard to therepealed Copyright Ordinance ; in section 188 (2) with regard to therepealed Designs Ordinance; and in section 189 (2) with regard to therepealed Patents Ordinance.
It seems clear from this examination of various enactments of thelegislature, including the Code of Intellectual Property itself, that the word“rules” is capable of bearing the meaning ascribed to it by the appellant.Therefore, I have two semantically balanced meanings which the word“rules” can reasonably bear in section 182 (3) of the Code of IntellectualProperty: One, a wide meaning, and the other, a narrow meaning. And so,it would seem that, as Lord Shaw of Dumfernline observed in R v.Halliday, (31) at p. 303, the application of the literal rule “does not go farin a case of difficulty.” I am not for a moment, therefore, suggesting thatthe point of commencement in the construction of statutes should beotherwise than its meaning ascertained by the application of the literalrule.
In such a situation the court cannot say non liquet – it is not clear- andrefuse to proceed further. The court must find the meaning intended byParliament (Cf. Bennion, op.cit.at p.4 and p. 208).
Where a word in a statute is capable of more than one meaning so faras the grammar is concerned, as it is the case in the matter before us, theCourt must decide whether they are all admissible, or whether oneparticular interpretation is to be preferred. (Cf. Cross, op.cit. at p. 70).
In the section before me, it cannot be held that both meanings areadmissible at the same time, for they lead to inconsistent, mutuallyexclusive results. One would require the respondent to obtain the leaveof the Court before preferring an appeal to that Court. The other does notimpose such a condition. One gives the Court of Appeal jurisdiction butthe other excludes such jurisdiction. The two meanings cannot co-existand both meanings cannot have been intended by the legislature.
Construing the words in their strict etymological sense, in thecircumstances of cases of this sort, is unproductive and thereforeinappropriate. I ought, instead, as an informed legal interpreter, guided bythe rules, principles, presumptions and canons which govern statutoryinterpretation, to give the words their meaning in the context in which theyare used. (Cf. R v. George Webb Hall (41) per Abbott, C. J.; The SussexPeerage Case (17) per Lord Tindall, C. J. ; Graham v. Ewart (42) atp. 563 per Coleridge, J. ; Rein v. Lane (43) per Blackburn, J. ; TheEdinburgh Street Tramways Co. v. Torbain (44) per Lord Blackburn;; TheDunelm (45) per Brett, M. R. ; Lumsden v. IRC (46) per ViscountHaldane, L. C; B Aerodrome Ltd. v. Dell (37) per Viscount Reading, C.J; Holmes v. Bradfieid Rural Development Council (47) per Finnemore,J.; Nestle Co. Ltd. v. IRC(48) per Evershed M. R.; A-G v. Prince ErnestAugustus of Hanover (34) per Viscount Simonds. See also Halsbury, op.cit. para. 871; Craies, (op. cit. 170). (Cf. also Cross, op. cit., chapter 111,esp. at p. 48 and p. 55; Bennion, op. cit. p. 4). As between competingmeanings, I should select the meaning to which the factors arising fromthe relevant interpretative criteria accord the greaterweight. (Cf. Bennion,op. cit. p. 202 fin. – p. 203).
Not all the criteria are relevant. For instance, the cannons of constructionrelating to “retrospectivity” and “vested interests" have nothing to do withthe matter before us and, therefore, I do not resort to them. Instead, I haveselected th *se that are applicable to the matter before this Court, mindfulin so doing that these guides to construction are merely aids and that theyhave no hierarchy or binding force. They are, as Lord Reid observed inMaunsell v. Olins{2) at p. 382, “our servants, not our masters. They areguides to construction, presumptions or pointers. Not infrequently one“rule" points in one direction, another in a different direction. In each casewe must look at all relevant circumstances and decide, as a matter ofjudgment, what weight to attach to any particular rule. ” (See also per LordSimon of Glaisdale in Maunsell’s Case (2) at p. 394 fin. – 395). Yet it is
much more than a question of approach and arbitrary preference forrelevant criteria. As Donaldson, J. said in Corocraft Ltd. v. Pan AmericanAirways Inc. (26) The duty of the courts is to ascertain and give effect tothe will of Parliament as expressed in its enactments. In the performanceof this duty the judges do not act as computers into which are fed thestatute and the rules forthe construction of statutes and from whom issueforth the mathematically correct answer. The interpretation of Statutes isa craft as much as a science and the judges, as craftsmen, select andapply the appropriate rules as the tools of their trade."
We should also bear in mind that The canons of construction
constitute a code of communication between the draftsman and the courtof construction. Observing the code on his side, the draftsman will uselanguage in such a way that its meaning represents what Parliamentmeans to say; and it is only by observance of the code by the court on itsown side that a divergence can be avoided between its interpretation ofwhat the words mean from what Parliament meant to say."(Per LordSimon of Glaisdale in Maunsell v. Olins, (2) at p. 391.)
I should first construe the word within the four comers of the Act inwhich it is found, for as Coke said in the Lincoln College Case (49). Theoffice of a good expositor of an Act of Parliament is to make constructionon all parts together and not of one part only by itself for no one can rightlyunderstand any part without perusingthe whole again and again – nemoenim aliquam partem rede intelligere potest antequam totum iterumatque iterumperlegerit. It is, he says (I Inst. 381 b) The most natural andgenuine exposition of a statute to construe one part of a statute by anotherpart of the same statute, for that best expresseth the meaning of themakers, and this exposition is ex visceribus actus. Indeed, it is improperto give an opinion as to the meaning of a clause unless the whole law isexamined. In civile est nisi tota lege perspecta una aliqua particula ejusproposita judicare vel respondere. Other parts of the Act must beconstrued which throw light on the intention of the legislature so that thecourt may, as far as possible, make a consistent enactment of the wholestatute. (See per Lord Herschell in John Carter Colquhoun v. HenryBrooks (50); per Lord Davey in Canada Sugar Refining Co. v. R (51) ;per Blackburn, J. in Rein v. Lane (43) per Lord Somervell of Harrow inAtty-Gen v. Prince Ernest Augustus of Hanover (34) at p. 473.
What does the word “rules” mean in the context of the Code ofIntellectual Property ? What does this equivocal word mean when it is
situated within the section of which it is a part and in relation to the restof the Act ?
The word “rule” is to be found in sections 187 (3), 188 (2), 189 (2) and190 (2) of the Code of Intellectual Property. Those sections provide that,notwithstanding the repeal of the Copyrights Ordinance, the DesignsOrdinance, the Patents Ordinance and the Trade Marks Ordinance,“every rule or regulation" made under those Ordinances in force on theappointed day shall be deemed to be a regulation made under the Code.
There can be no doubt that the word “rule” in sections 187,188,189 and190 of the Code of Intellectual Property signifies a variety of subordinatelegislation, namely, rules of court.
Maxwell (op.cit.p. 278) says that “It has been justly remarked that,when precision is required, no safer rule can be followed than always tocall the same thing by the same name.” At all events, as Cleasby, J. saidin Courtauld v. Legh (52) “it is a sound rule of construction to give thesame meaning to the same words occurring in different parts of an act oftheuseofthesame expression in every part of an Act. ” See also R. v. PoorLaw Commissioners (53) per Lord Denman, C.J.; Cf. In Re KirkstallBrewery Co, Ltd. and Reduced (54) (different statutes).
While it is reasonable to presume that the same meaning is implied bythe use of the same expression in every part of an Act, too muchimportance cannot be attached to such a presumption, forthe same wordmay, depending on its place in the scheme of the statute and the contextin which it is used, bear different meanings. (Halsbury, Laws of England4th Ed. 1983, Vol. 44 para. 873; Maxwell, op. cit.p. 279; Craies, op. cit.pp. 168-9). Indeed, it has been pointed out by Bindra (op. cit. at p. 313)that “cases are not lacking where the same word would carry differentmeanings even though used in the same section. (E.g. see Lindley, L.J.in Hornsey Local Board v. Monarch Investment Building Society (18) atp.9). For the present, therefore, I do not hold that the word “rules” insection 182 (3) bears the same meaning as it does in sections 187,188,189 and 190 although they are all to be found in the same Code.
Learned President’s Counsel for the Appellant subjected section 182(3) to comminution and argued that the first part of that section, whichprovides that “every judgment or order of the District Court under this
code shall be subject to an appeal to the Court of Appeal”, merely restatedthe general law applicable. Therefore, he suggested, this part of thesection was “surplusage”.
In terms of Article 754 (1) of the Civil Procedure Code and section 23of the Judicature Act a party dissatisfied by a final judgment of a DistrictCourt is generally entitled as of right, without leave, to appeal againstsuch a decision to the Court of Appeal. Yet this does not mean that thewords in section 182 (3) repeating the law.were superfluous. I am inagreement with learned President’s Counselforthe Respondent when hecited Bindra (op.cit) at p. 198 and said that, ordinarily, a Court cannot andought not to assume that words used by the legislature are superfluous.Since the decision in The King v. Berchet (55), it has been generallyaccepted that courts of law must assume that the legislature did not wasteits words or say anything in vain and that Acts of the legislature ought tobe construed to avoid surplusage. Courts are loath to regard subsequentlegislation as unnecessary, since, £s Forbes .J.observed in Murphy v.Duke (56) “Parliamentary time is sufficiently precious for Parliament notto pass unnecessary Acts of Parliament." Lord Witberforce too, albeit ina somewhat different situation, in Maunsellv. Olins (2) at p-387observedthat “Legislative time is a precious commodity.” (See also Bindra, op.cit.,at 196-9, 201; Halsbury (op.cit) para 861). A court may treat words assurplusage only if it appears that by attempting to give meaning to everyword we should have to make the Act of Parliament insensible or if it isclear that otherwise the manifest intention of Parliament will be defeated.(See per Coleridge, J. in R. v. East Ardsley inhabitants (57). See alsoFisherv. Valde Travers Asphalte Co. (58y.Stone v. Mayor, Alderman andBurgesses of Yeovil Corporation (59) per Brett. J. Cf. Craies op. cit.pp.106-107).
Learned President's Counsel for the Appellant seemed to have felt theforce of the submissions of Mr. Choksy, P.C., for in his reply, he did notrefer to the words as being “surplusage”. Instead, he submitted that thewords may have been included in section 182 (3) out of an abundance ofcaution. Indeed, as Mr. De Silva, P.C. submitted, section 182 (3) wouldnot be a unique instance where the legislature has restated the generalright of appeal. In this connection, he referred us to section 30 (5) of theEstate Duty Act Cap. 350; section 17 of the Trade Union Ordinance Cap.174; section 5 of the Insolvents Ordinance Cap. 103; section 27 A (6) ofthe Births and Deaths Registration Act Cap. 129; section 14(1) of the
Land Acquisition Act Cap. 295 and section 22 (1) of the Land SettlementOrdinance Cap. 299. If, as Mr. De Silva, P.C. submits, the words wereenacted in section 182 (3) out of an excess of caution, that does no harm.Abundans cautela non nocet. But that is another matter. Those wordscertainly neither defeat the intention of Parliament nor do they makenonsense of the section and, in the words of Lord Holt in Harcourt v. Fox(60), it might be said that “we should be very bold men when we areentrusted with the interpretation of Acts of Parliament to reject any wordsthat are sensible in the Act.” I therefore hold that the first part of section182(3) is an essential part of that section. I agree with learned President sCounselforthe Respondent that every word of section 182 (3) is relevantand that no part of it should be treated as “surplusage”. Mr. De Silva. P.C.agreed during the course of his reply that this should be the case.
I n any event, the comminution of th§ section and the excision of the f irstpart as being “surplusage" does not assist us in this case in arriving at themeaning of section 182(3), althoughthe technique of dividing a statutoryprovision may sometimes be of assistance in understanding its meaning.(E.g. see Bennion, op.cit. 168).
Whether one meaning or the other should be selected would partlydepend on the semantic level appropriate to the subject matter of thestatute. What is the audience addressed? In Maunsell v. Olins (2) at p.390 fin. – 391 Lord Simon of Glaisdale, after observing that the twostatutory situations, one dealing with ordinary people in their everydaylives, and the other dealing with technical branches of the law, were twoextreme situations, observed that "statutory language, like all otherlanguage, is capable of an almost infinite gradation of “register” – i.e., it willbe used at the semantic level appropriate to the subject matter and to theaudience addressed (the man in the street, lawyers, merchants, etc). Itis the duiy of a court of construction to tune in to such register and so tointerpret the statutory language as to give it the primary meaning whichis appropriate in lhat register (unless it is clear that some other meaningmust be given in order to avoid injustice, anomaly, absurdity orcontradiction), in other words, statutory language must always be givenpresumptively the most natural and ordinary meaning which is appropriatein the circumstances ”
“What Maxwell on Interpretation of Statutes, 12 th Ed. (1969), p. 28calls 'the first and most elementary rule of construction is that it “ is to be
assumed that the words and phrases of technical legislation are used intheir technical meaning if they have acquired one, and otherwise in theirordinary meaning. This ‘golden’ canon of construction has been sofrequently and authoritatively stated that further citation would be otiose.It is sometimes put that in statutes dealing with ordinary people in theireveryday lives, the language is presumed to be used in its primaryordinary sense, unless this stultifies the purpose of the statute, orotherwise produces some injustice, absurdity, anomaly or contradiction,in which case some secondary ordinary sense may be preferred, so asto obviate the injustice, absurdity, anomaly or contradiction, or fulfill thepurpose of the statute: while, in statutes dealing with technical matters,words which are capable of both bearing an ordinary meaning and beingterms of art in the technical matter of the legislation will presumptivelybear their primary meaning as such terms of art (or, if they mustnecessarilly be modified, some secondary meaning as terms of art.)” (PerLord Simon of Glaisdale in Maunsell v. Olins (2) at p. 390 fin. – p. 391.Cf. also per Lord Simon of Glaisdale in Stock v. Frank Jones (Tipton) Ltd.(12) at p. 953 fin -954.)
In Mason v. Bolton's Library Ltd. (61) at p. 90 Farwell, C.J. said: “ Itis a stringent rule of construction that in construing an Act of ParliamentLor a deed containing technical words, the words must be given theirechnical meaning. ” In George Stephenson v. Henry TheophilusHigginson (6) Lord Truro said : “ In construing an Act of Parliament, Iapprehend every word must be understood according to the legalmeaning unless it shall appear from the context that the legislature hasused it in a popular or more enlarged sense. “ In Holt& Co. v. Collyer (4)Fry, J. said : “In my view the principle upon which words are to beconstrued in instruments is very plain – where there is a popular andcommon word used in an instrument, the word must be construed primafacie in its popular and common sense. If it is a word of a technical or legalcharacter it must be construed according to its technical or legal meaning.If it is a word which is of a technical and scientific character, then it mustbe construed according to that which is its primary meaning, namely itstechnical and scientific meaning.” In The Lord Advocate v. Stewart andAnother (5)Lord Robertson said :" The principle that in statutes words
are to be taken in their legal sense hasa special cogency when the
words in question represent only legal conceptions. The popular use ofsuch words does not represent the primary meaning of the words butsome half understanding of them”. (See also per Bowen, J. in R.v. Slator
at p. 274; Bennion, op. cit. section 366 at at pp. 804—805 and section368 at p. 809; Craies, op. cit 165; Bindra, op. cit. 203,205,322,323,325,327 ; Earl T. Crawford, The Construction of Statutes , 1940, pp. 317,319—320 ; Halsbury, op. cit para. 867.
What is the subject matter and the audience addressed in the matterbefore us ? The difficult section is contained in the Code of IntellectualProperty. The Code deals with highly technical matters, on which ordinarycitizens, I suppose, consult their lawyers, rather than with everydayaffairs. Therefore, I am inclined to hold that the word "rules” in section 182(3) of the Code of Intellectual Property was intended by Parliament to bearits technical meaning. In the circumstances, it would seem to be quiteillegitimate to stretch the meaning of the word and to give it an extendedmeaning in the absence of the strong compulsion of other words in theCode of the Intellectual Property to induce me to alter its meaning. (Seeper Denman, J. in R. v. Stator (3) at p. 272. There are no words at all inthe Code which even remotely suggest that any other meaning iswarranted. One might, adopting the words of Lord Greene, M.R. inJenkins v. IRC (62) with slight modifications, say that in this case thedistinction between “laws” and “reles” is “the veriest a.b.c. in legal
language ; and nobody familiar with the language of lawyerscould
have the slightest doubtwhat” the word ‘rules’ “was intended to
mean. It seems to me to be quite illegitimate to take a word which has a
technical and precise meaning and then argue that it has some
extended meaning. If the legislature wished to give the wordsome
unusual and extended meaning of this sort, I ask myself why in the worldit did not do so. The Legislature is the masterof the draftsmanship of” thisAct “ and if it intends to use a word which is to have the widest possiblescope it is a little short of carelessness or incompetence in drafting toselect for the purpose a perfectly familiar word which to everyone has aquite limited scope.”
I do not wish to suggest that the technical meaning must always begiven to words in an Act of Parliament. What I do say is that where anenactment uses a term which has both an ordinary and a technicalmeaning, the question of which meaning the term is intended to have isdetermined by the context. If the context is technical, the presumption isthat the technical meaning of the term is the appropriate one unless thecontext warrants the wider meaning given to the word loquitur ut vulgus,that is, according to the common understanding and acceptance of theterm in common parlance.
Thus in The Fusilier (63) Dr. Lushington, in construing the word“belonging” in a statutory phrase “belonging to such ship” held that“nothing is more common than to say of passengers by a ship, that theyare persons belonging to the ship.”
Unwin v. Hanson' (64) provides another example. The words to beconstrued in that case related to the cutting of trees in the country. At p.119 Lord Esher, M.R. concluded that in the circumstances “lopping" and'lopping” were used in language which everybody conversant with thecutting of trees in the country knows and understands. To hold otherwise,the Masterof the Rolls said, would be “mere pedantry”. See also Maxwell,op. cit. p. 81.
It may, in the context of a particular statute, be improper to presumein the first place that the meaning intended by the legislature was thetechnical, legal meaning of the word. Thus in Graham v. Ewart (42) atpp. 562-564, Coleridge, J. was satisfied that, in the context of that case,it was the popular and not the technical meaning that was appropriate. HisLordship said : “ Now, when it is clear from the context of an insturmentin what sense words are used in'that instrument, the sound rule ofconstruction is to attribute to them that meaning, even though the wordsbe technical and have technically a different meaning; for it is only so thatou can effectuate the intention, and this rule certainly applies to an actof parliament of this description. I confess it seems to me wiser toascertain from the context, whether the legislature has in fact used thewords in their strictly technical, or in some larger and popular sense, andso to ascertain its real intention, than to presume that it must have usedthem in the former and so defeat it.”
Coleridge, J. explained at p. 563 that the presumption in favour of thepopular meaning, as against the technical meaning of a word, wasappropriate to an Act of Parliament of the description he was construing.The Act was a private Act of Parliament which was concerned with theseigniorial rights of a lord of a manor and it was decided that the provisionin question saved to the lord an exclusive right of hunting, shooting ,fishing and fowling over a certain allotment. The object of the law was topreserve an existing right unimpaired. In the circumstances the under-standing of the rights by those affected, rather than lawyers, was ofparamount consideration. In many private Acts of Parliament the law ischanged purely for the benefit of the promotor or it is more in the natureof a private conveyance rather than the solemn act of the legislature orthe Act may express in the words of certain parties, rather than in thewords of Parliament, their arrangements to which the legislature hasgiven its sanction. (Cf. per Lord Halsbury, L. C. in Herron v. Rathmines& Rathgar Improvement Commissioners (65); Bennion, op. cit. 85-86;736).
In the case before us, the word “rules” is contained in a public, generalAct of Parliament which is of a technical nature, and, since there are nowords in the Code of Intellectual Property that compel me to give the wordany other meaning, it would seem that it is the narrower, technicalmeaning that I should select as the meaning intended by Parliament. Itshould, it seems, prevail, although it be contrary to common usage andalthough it may not be the popular sense. (See per Lord Simon ofGlaisdale in Maunsell v. Olins(2) at p-391; Bindra, op. cit 170; Craies, op.'cit 170; Crawford 317,319-320; Halsbury, op. cit para 871).
It may be observed, en passsant, that in the matter before us Mr.Justice Wijeyaratne (with whom Wijetunga, J. agreed) in the Court ofAppeal at page 5 of the judgment of the Court recognized the distinctionbetween rules and laws when he said: “In short, the Civil Appellate Rules1938 ceased to operate after the enactment of the Administration ofJustice Law, No. 44 of 1973 which laid down express laws in its sections315-356 for procedure in appeals and even rules were made thereafter-by gazette notifications as set out above."
The matter might have ended there but for the fact that, during thecourse of the argument before this court, I inquired whether the word“rules” was ever used by the legislature in its wider sense. LearnedPresident’s Counsel for the Respondent satisfied me that it was indeedsometimes used by the legislature in a wider sense. He referred to section2 of the Evidence Ordinance, and to sections 4 (proviso), 285 (2) and 777of the Code of Civil Procedure to demonstrate that the word “rules” issometimes used by the legislature in an ordinary, wider, sense, todescribe laws as distinguished from subsidiary legislation. He furtherreminded us that lawyers used the word rules in expressions such as“hearsay rule” and “rules of procedure” to describe “laws". Perhaps it isin this wide sense that the word is used in R. Dworkin s paper “Is law asystem of rules?” published in The Philosophy of Law p. 38 in which hediscusses the famous American case on statutory interpretation Riggs v.Palmer (66). Lord S carman in Western Bank Ltd. v. Schindler (27) at
p. 355 fin. also uses the word in its wider sense when he says that wecannot as judges in some other countries, like Switzerland, “insert in tolegislation rules which the judge would have put there had he been thelegislator.” And so, in this case, it would not be possible to say as Bowen,J. did in R v Slator(3). at p. 274: ‘There is no such popular use of theterm among lawyers, and if there is among persons ignorant of the law,it is an incorrect use of the term.” The word “rules" has both a technicalmeaning and a wider meaning and lawyers use the word in both senses.
At this stage of the proceedings before us, once again, the scalesbecame evenly balanced and the meaning of the word “rules” remaineduncertain.
In the hope that I might thereby find a solution, I shall now examine thedifficult section in the light of its legislative history, In the application of theinformed interpretation rule, the Court has the power, and indeed a dutyto consider such aspects of the legislative history, that is the process ofenactment and reenactment by which the provision has been arrived atin its present form, as may be necessary to arrive at its legal meaning.(See The River Wear Commissioners Case (15) at p. 778 fin. – 779 perLord Gordon; Bennion, op. cit. 514; Halsbury, op. cit. para. 894).
Mr. De Silva, P. C. also relied on the legislative history of the section.
Learned Counsel for the Respondent, citing Bindra (op. cit.) at pp.397-398, submitted that every Act of Parliament must be construed byreference to the law subsisting at the time it was enacted. In the passagecited, Bindra, quoting the words of Justice Narsimham in RamachandraDeb. v. Bhalu Patnaik (67) says that it is proper to consider “(1) the stateof the law which it proposes or purports to alter; (2) the mischief whichexisted; and (3) the nature of the remedy provided, and then to look at thestatutes in pari materia as a means of explaining this statute. These arethe proper modes of ascertaining the intention of the legislature.”
In considering the legislative history of section 182 (3), I might look atthe long title of the Act in which it is found for guidance as to legislativeintention (See per Lord Simon of Glaisdale in Ealing London BoroughCouncil v. Race Relations Board, (23) at p. 361; Cross, op. cit. pp.122,124) even though long titles, as all of us who have played the role ofdraftsman know, are essentially vestigial and often completely useless asstatements of purpose.
The long title to the Code of Intellectual Property Law of 1979 statesthat it was “An Act to revise, consolidate, amend and embody in the formof a Code the law relating to Copyright, Industrial Designs, Patents,Marks, Trade Names and Unfair Competition and provide for the betterregistration, control and administration thereof and for matters connectedtherewith or incidental thereto.”
Codification is a rare event in Sri Lanka. When it does take place, theproper course is to examine the language of the Code and to ask what isits meaning, uninfluenced by any consideration derived from the previousstate of the law (Cf. per Lord Herschell, L. C. in The Governor andCompany of the Bank of England v. Vagliano Brothers (68) at p. 144; perCozens-Hardy, M. R. in Bristol Tramways &c. Carriage Co. Ltd. v. FiatMotors Ltd. (69). When I examine section 182 (3) of the Code ofIntellectual Property in this way, I derive no assistance with regard to themeaning of the section.;
Although the previous law should not be looked at in the first place,where there is a doubt, however, as $ is in the case before us, it may beconsidered forthe purpose of aiding in the constaiction of the provisionsof a code (See per Lord Herschell in Bank of England v. Vagliano (68) atp. 145; Cf. Yorkshire Insurance Co. Ltd. v. Nisbet Shipping Co. (70) perDiplock, J; R. v. Titterton (71) per Lord Russell of Killowen, C. J; Craies,op. cit. 140,364-5; Maxwell, op. cit. 25-27; Sutherland, op. cit. Vol. II sec.5203 p. 540).
What was the previous law? Immediately before the passing of theCode of Intellectual Property in 1979, there were several separate piecesof legislation governing certain aspects of the law of Intellectual Property.Trade Marks was governed by the Trade Marks Ordinance, No. 15 of1925 (Cap. 150 of the Legislative Enactments). The subject of appealswas dealt with in section 50 of that Ordinance in the following terms:
"Every judgment or order by the District Court under this Ordinanceshall be subject to an appeal to the Supreme Court, and such appeal shallbe subject to the same rules which govern interlocutory appeals fromDistrict Courts; and the minimum stamp duties chargeable in the SupremeCourt under the provisions of the enactment for the time being in forcerelating to stamps shall, so far as the same may be applicable, becharged in all proceedings relating to or in connection with such appeal.”
This was in exactly the same words as section 33 of the Trade MarksOrdinance, No. 14 of 1888.
Section 190 of the Code of Intellectual Property Act, No. 52 of 1979repealed the Trade Marks Ordinance of 1925.
In section 182 (3) of the Code of Intellectual Property the Act providesas follows:-
“Every judgment or order of the District Court under this Code shall
be subject to an appeal to the court of Appeal and such appeal shall
be subject to the same rules which govern interlocutory appeals from
District Courts".
Section 182 (3) of the Code refers to an appeal to the Court of Appealwhereas section 33 of the 1888 Ordinance and section 50 of theOrdinance of 1925 refer to an appeal to the Supreme Court. This wasbecause there was no Court of Appeal at the time: Appeals were thenmade from the District Court to the Supreme Court until the Court ofAppeal was established by the present Constitution in 1978. Section 33Bf the 1888 Ordinance and section 50 of the Ordinance of 1925 were alsoemended with regard to the provisions regarding stamp duties. The Codeof Intellectual Property deals with the subject of stamp duties in section184.
What were the prevailing laws relating to appeals from the orders andjudgments of District Courts in general and the mode of preferring suchappeals?
From the time of the passing of the Trademarks Ordinance of 1888until the passing of the Administration of Justice Law, No. 44 of 1973,every person dissatisfied with an order or judgment of a District Courtcould appeal as of right. That was a right given by section 73 of the Courtsand their Powers Ordinance, No. 1 of 1889. There were no separatemodes of preferring appeals depending, on the one hand, whether thedecision of the District Court was a final judgment or, on the other,interlocutory in character. When section 33 of the Trade Marks Ordinanceof 1888 or section 50 of the Trade Marks Ordinance of 1925 had to be
construed, the words “Every judgment ororder of the District Court
shall be subject to the same rules which govern interlocutory appeals
from District Courts” were understood to mean that final judgments andorders were both subject to the same subordinate legislation, namely theRules of Court, regulating appeals governing orders that were not finalin nature, that is, interlocutory orders.
A distinction between the mode of preferring appeals from finaljudgments and other orders was made with regard to appeals fromDistrict Courts for the first time by the Administration of Justice Law of1973. However, Section 317 of the Administration of Justice Law readwith section 356 of that law made it clear that leave to appeal was onlyrequired in respect of “orders” and not in respect of “judgments”. Therefore,even under the provisions of the Administration of Justice Law, from1973-1977, leave to appeal was not required in any Trade Mark casewhere, as in the matter before us, the appeal was from a final judgment.
Section 23 of the Judicature Act, No2 of 1978 provided that “Any partydissatisfied with any judgment, decree or order pronounced by a DistrictCourt may, except where such right is expressly disallowed by any writtenlaw, in accordance with any law* regulation or rule governing orcontrolling the manner and procedure for so appealing, appeal to theCourt of Appeal against any such judgment, decree or order from anerror in law or in fact committed by such court”
The Judicature (Amendment) Act, No. 37 of 1979 replaced section 23of Act No. 2 of 1978 with a new section containing the following words:-
“Any party who shall be dissatisfied with any judgment, decree, ororder pronounced by a District Court may (excepting where such rightis expressly disallowed) appeal to the Court of Appeal against anysuch judgment, decree, or order from any error in law or in factcommitted by such court”
These words were similar to those used in section 73 of the Courts andtheir Powers Ordinance of 1889.
The old Civil Procedure Code, No. 2 of 1889 which was repealed bythe Administration of Justice (Amendment) Law, No. 25 of 1975 witheffect from 1 January, 1976, did not require leave of the appellate Courtto be first had and obtained as a condition precedent to an appeal to thatcourt. The old Civil Procedure Code was revived by section 2 of the Civil
Courts Procedure (Special Provisions) Law, No. 19 of 1977. However,Section 109 of Law 20 of 1977 amended section 754 of the old CivilProcedure Code. In section 754 (1) it permits an appeal as of right fromdecisions of an original court from final judgments. With regard to orders,as distinguished from final judgments, however, section 754 (2) providesthat an appeal may be preferred only with the leave of the Court of Appealfirst had and obtained.
Up to the time of the passing of the Code of Intellectual Property in1979, there is no doubt that in preferring an appeal from the finaljudgment of a District Court in a matter relating to Trade Marks, no leaveto appeal was necessary.
As we have seen, certain modifications had been made to section 50of the Trade Marks Ordinance of 1925. However, these changes do notaffect the mutual status of those sections. Section 50 of the Trade MarksOrdinance of 1925 and section 182 (3) of the Code of Intellectual Propertyof 1979 are in pari materia since they deal with the same subject matter
the same lines. The relevant wofos in section 50 of the Trade MarksOrdinance have been reenacted ipsissimis verbis in section 182 (3) of theCode of Intellectual Property of 1979. The coincidence of languagebetween section 50 of the Ordinance of 1925 and section 182 (3) of theCode of Intellectual property conveys to my mind a strong impression thatParliament did not intend to change the law. In the circumstances, then,and, in the absence of contrary indications, i must presume this to be thecase. In this connection one might recall that Wallis, C.J. (Ayling,Kumaraswami and Sastri, JJ. agreeing) in Govinda Iyer v. Emperor (72)drew attention to the presumption against the alteration of the scope ofsections of a repealed statute that are enacted again: The Chief Justicesaid: "I may add that, where sections are repealed and reenacted inslightly differentform, there is a presumption against implied, as contrastedwith express alterations in the scope of the section."
It appears from its long title that the Code of Intellectual property wasboth a consolidation and codification. Where from the long title a law isstated to be a codification or consolidation of previous enactments, withor without amendments, unless the contrary intention appears, thecodifying or consolidating Act must be presumed not to be intended tochange the law. (See Bennion. op. cit. at pp. 517 and 519).
Craies says (op.cit. 136) that “in construing consolidation Acts priorstatutes repealed but reproduced in substance are regarded as in pahmateria. As such they must be taken together as forming one system andas interpreting and enforcing each other. (See R. v. Holland Palmer (73)per Gould, J.; Bennion, op.cit p. 517; Craies, op.cit 134. Those provisionsof the earlier laws which are incorporated into a code are construed as aContinuation of the law as it existed. (J.G. Sutherland, Statutes andStatutory Construction, 1943, Vol. 1 sec. 2019 p.482). It must beassumed, as a matter of coherence and consistency, that uniformity oflanguage and meaning was intended, (Bennion, op.cit.p. 516. But Cf. perLord Simon of Glaisdale in Maunsell v. Olins (2) at p. 394), and novelmeanings must be rejected. In Hornsey Local Board v. Monarch InvestmentBuilding Society (18), Lindley, L.J. at p. 9 said: “If one constructionproduces consequences which follow from the constructions put uponother enactments of the same sort, while the rival construction introducesa startling novelty, no lawyer would, adopt the latter construction.” Thewider meaning certainly introduces a startling novelty and must, therefore,be rejected.
The fact that the Trade Marks Ordinance has been repealed is of noconsequence in this connection. In Ex parte Copeland (74) Knight Bruce,L.J., on a question of construction arising upon a subsequent statute on
the same branch of the law said“it is perfectly legitimate to use the
former Act though repealed.” For this I have the authority of LordMansfield, who in R.v. Loxdale (75) thus lays down the rule, “Where thereare different statutes in pari materia, though made at different times, oreven expired and not referring to each other, they shall be taken andconstrued together as one system and explanatory of each other.” Cf.Barras v. Aberdeen Steam Trawling and Fishing Co. Ltd. (76) perViscount Buckmaster; Powell v. C/e/and(77) per Evershed, C.J; Beamanv. ARTS Ltd. (78); Ealing Corpn. v. Ryan and Another (79) per Ashworth,J. See also Maunsell v. Olins (2) per Lord Reid at p. 382 and per LordWilberforce at p. 387. See also Craies, op.cit. 134; Bennion, op.cit. 517;Halsbury, op.cit para 885).
Mr. Choksy, P.C. surmised that, section 182 (3) repeated the samewords used by the legislature in 1888 and in 1925, “possibly because thedraftsman believed that the words in the old Trade Marks Ordinance,fitted in with the new leave to appeal concept”. I am unable to agree. Inthe words of Lord Morris of Borth-Y- Gest in Davies Jenkins and Co. Ltd.v. Davier. (80) "It is .veil r.ccepted. that beliefs and assumptions ofthose whr 'r.iPV} A :ir v '** ' ■• sake the law.”
Mr. De Silva's explanation for the repetition of the words in section 182(3) was that a mistake had been committed. I should like to respond to thissubmission in the words of Grove, J. in Richards v. McBride (81) : “Wecannot assume a mistake in an Act of Parliament. If we did so, we shouldrender many Acts of Parliament uncertain by putting different constructionson them according to our individual conjectures, the draftsman of the Actmay have made a mistake. If so the remedy is forthe legislature to amendit." This matter needs no further consideration: Mr. De Silva, P.C. said inhis reply that, since he accepted my suggestion that the existence of avalid set of rules, in the sense of subordinate legislation was not acondition precedent to making section 182(3) intelligible, it was no longernecessary to depend on the argument based on mistake. Albeit withoutthe earnestness shown in his earlier address to us, he did say, sotto voce,in his reply to the submissions of Mr. Choksy, P.C. that he suspected theDraftsman to have made a mistake.
.V
Mr. Choksy, P.C. explained tliat the same words used in the TradeMarks Ordinances of 1888 and 1925 were repeated in the Code ofIntellectual Property because f lexiUility had to be maintained to make theprevailing laws governing procedure, enacted from time to time,automatically applicable without the amendment of section 182(3). I findit difficult to accept this, for it involves a recognition of the position that animportant right, namely the right of appeal, will be left to be altered fromtime to time casually, by implication. If Parliament intended that changesof this nature should automatically follow other provisions, I should, inaccordance with the canons of construction which I shall refer to, assume,in the absence of express provisions to the contrary, that it would have,in the clearest terms, made such appeals subject to the provisions of lawfor the time being in force. Where the legislature intends to make theprovisions of the Civil Procedure Code for the time being in forceapplicable, it does so, not by some oblique reference, but rather in theclearest possible terms. For instance, in section 17 of the Trade UnionsOrdinance (Cap. 174) it stated that “An appeal shall lie to the Court ofAppeal against an order made by a District Court under section 16 andthe provisions of the Civil Procedure Code shall apply accordingly in allmatters relatingtoor connected with such appeal."lnthe Land AcquisitionAct (Cap. 295), after restating in section 14(1) the right to appeal to theCourt of Appeal from the orders of a District Court or Primary Court, thelegislature states in section 14(2) that “Every appeal under sub-section
shall be presented within the time and in the manner provided by the
Civil Procedure Code for appeals against decrees in civil suits.” TheEstate Duty Act, No. 13 of 1980 provides another example. In section 30(5) of the Estate Duty Act is said that “Any party aggrieved by any decreeororderof the District court made on an appeal as herein before providedmay appeal against such decree or order in accordance with the provisionsof law for the time being in force relating to appeals from judgments andorders of the District Court."
In any event it cannot be assumed that important changes in the law,such as those taking away or qualifying rights of appeal will be made bymerely procedural provisions. In Laxman Pandu and others v. ChiefMechanical Engineer, Western Railway (82) the Court said: “Now, a rightof appeal is both an important right and in certain circumstances it mayimpose a disability and I do not think that pure procedural provisionsshould be read or construed as either conferring that right or imposing thatdisability.”
Mr. Choksy, P C. argued that section 23 of the Judicature Act does notgive an immutable right of Appeal. 4 am in agreement with him. With'respect to legislation, Parliament is omnipotent so long as it acts withinthe framework of the Constitution. It has given a right of appeal and it cantake that right away or curtail it. However, the legislature in section 23 ofthe Judicature Act, before and after amendment, provides that thegeneral right of appeal exists except where such right is “expresslydisallowed". The legislature did not want it to be taken away byimplication.
If there was any doubt as to whether that right could be taken away bysubordinate legislation, that uncertainty was removed by the Judicature(Amendment) Act, No. 37 of 1979 which replaced the words “exceptwhere such right is expressly disallowed by any written law, in accordancewith any law, regulation or rule governing or controlling the manner andprocedure for so appealing” with the words “excepting where such rightis expressly disallowed”.
Neither section 182(3) nor any other provision of the Code of IntellectualProperty expressly takes away the general right of appeal given bysection 23 of the Judicature Act.
The Respondent's case is that the word “rules” in section 182 (3) ofthe Code of Intellectual Property should be given the wider of the two
meanings it is capable of bearing: According to the Respondent “rules"means the entire body of the law. Therefore when section 182 (3) of theCode of Intellectual Property states that appeals from every judgment ororder of a District Court are subject to the same rules which governinterlocutory appeals, it means that even final appeals from the DistrictCourt in Trade Mark matters are governed by the law as set out in section754 (2) of the Civil Procedure Code which, in prescribing the mode ofappeal in cases of interlocutory appeals, requires that the leave of theCourt of Appeal be first had and obtained. According to this view, section182 (3) of the Code of Intellectual Property departed from the generalprinciple that where a decision of a District Court is final, leave to appealis a matter of right and is not contingent upon leave to appeal having beenobtained.
No doubt, in certain instances, the legislature has departed from thegeneral principle that every aggrieved litigant has an appeal as of rightfrom a final judgment and required such a person to first obtain leave.However, when that has been'its intention, as learned President’sCounsel for the Appellant pointea out, the legislature was wont to do soin clear and unmistakable words. At about the time the Code of IntellectualProperty was enacted, the preferred formula, Mr. De Silva, P.C. said, was“with the leave of the Court of Appeal first had and obtained.” (E.g. seesection 13 (3) (b) of the Judicature Act, No. 2 of 1978 with regard toappeals from orders made in the exercise of Admiralty Jurisdiction;section 15 (a) (ii) of the Judicature Act with regard to appeals by theAttorney-General from an order of acquittal by a High Court on a questionof fact alone or on a question of mixed law and fact; section 16 (1) of theJudicature Act with regard to appeals from the judgment, order orsentence of a High Court by an aggrieved party). Indeed this seems tohave been a formula which had been used even earlier. (E.g. see section62 (1) of the Marriage and Divorce (Muslim) Act, No. 13 of 1951 (Cap 134)with regard to appeals from orders of the Board of Quazis made undersection 60 of that Act).
The legislature expresses itself deliberately and positively in this wayand not, as is alleged by the Respondent, by an ambiguous and obliqueprovision, as in the case before us, when it wishes to curtail the right ofappeal. It does so because it must know that curtailing the right of appeal,given by section 23 of the Judicature Act read with section 754 (1) of theCivil Procedure Code, brings about a substantial change in the law and
that such changes cannot successfully be brought about unless thelegislature expresses its intention with irresistible clearness. The legislatureknows that we, the interpreters of the law, observing on our side thecanons of the Code I have referred to earlier, will not presume that itmakes substantial changes in the law casually, or, as Chief JusticeCockburn said in Smith and Others v. Brown and Others (40) “as it wereby a side-wind”. (See Bennion, op.cit. at p. 317; Craies 122). As LordDevlin said in National Assistance Board v. Wilkinson (83) “It is a well-established principle of construction that a statute is not to be taken aseffecting a fundamental alteration in the general law unless it uses wordsthat point unmistakably to that conclusion”. If a change in the law is notexpressly and clearly indicated, then there is a presumption that thelegislature did not intend to overthrow fundamental principles, infringerights or depart from the general scheme of the law (Bindra, op.cit.p. 210fin. – 211). Therefore where, as in the case before me, a Court has tochoose between two possible meanings, it must select the one that“escapes the necessity of attributing to the legislature a great and suddenchange of policy.” (Vasudeva Mudaliar v. Srinivasa Pillai, (84), at p. 433(P.C.). The court must preferthe meaning that leaves the law unchangedunless the legislature has clearly said so. In Ananti v. Chhanu and Others(85) the Court said “We do not think that the legislature could haveintended to alter the law … by the use of language that is capable of twointerpretations.” If the arguments on a question of interpretation are fairlyevenly balanced, the interpretation should be chosen which involves theleast alteration to the existing law. (Cf. George Wimpey & Co. Ltd. v.
O.A.C. (86) per Lord Reid at p. 191; Maxwell, op.cit.pp. 116 -122). I,therefore, as a matter of legal policy, choose the narrower meaning of theword “rules” as the meaning of that word intended by Parliament.
Parliament used exactly the same words relevant to this case in theboth the old Trade Marks Ordinances of 1888 and 1925 and in the Codeof Intellectual Property of 1979. The argument of learned President'sCounsel amounts to this; in 1979 Parliament used the same words as itdid in the old Trade Marks Ordinances of 1888 and 1925 but changed the,meaning by making it necessary for leave to appeal to be obtained. If itwere the intention of parliament to restrict the right of appeal, nothingwould have been easier than using apt language, as it has done in othercases, to that end. The usual formula I have referred to earlier would haveprovided a safe anchor in clear Parliamentary intention. (Cf. per Evershed,
J. in Powell v. Cleland (77). I find it impossible to believe that
Parliament would have left the change in the law in such an importantmatter as a citizen’s right of appeal to be discovered by implication. Theexplanation of learned President’s Counsel for the Respondent that thefailure to use the usual formula or words to that effect was due to “aproblem of draftsmanship”, is, in my view, inadequate and, therefore,unacceptable. In Ishar Singh v. Allah Rakha and another (87) Jai Lai, J.said: “The primary rule of the interpretation of statutes is that the intentionof the legislature is to be gathered from the language used in the statute.The words used in the present case are unambiguous and it is not opento me to enter into speculation as to what the real intention of thelegislature was. It may be as was contended before me, that the sectionhas been badly drafted and that it does not express the real intention ofthe legislature or that the law laid down in the section is unjust, but theseare matters with which I am not concerned.”
In Stock v. Frank Jones (Tipton) Ltd. (12) which Mr. Choksy, P. C. citedin another connection, Viscount Dilhorne at p. 951 said: "If it were the case
that it appeared that an Act might have been better draftedit is
not open to the court to remedy the defect. That must be left to thelegislature."
I respectfully agree with those observations of Justice Jai Lai andViscount Dilhorne.
I n any event, since the narrower meaning of the word “rules” in section182 (3) of the Code of Intellectual Property is more beneficent and lessonerous to a citizen than the other meaning, for the narrower meaningrelieves him of the need to first obtain the leave of the Court beforeappealing, I am obliged to lean towards that construction. (Cf. State v.Jamnabai Manji Keshavji (88); Bindra, op cit. 255).
Moreover, I ought not to overlook the presumption against the impositionof a statutory detriment to legal rights. When I asked Mr. Choksy, P. C„about this, he responded by quoting Maxwell (op. cit) p. 36 as saying that“A construction which would leave without any effect any part of thelanguage of a statute will normally be rejected. Thus, where an Act plainlygave an appeal from one quarter sessions to another, it was observedthat such a provision, though extraordinary and perhaps an oversight,could not be eliminated.”
Maxwell at p. 36 was dealing with the principle that every word in astatute must be given a meaning. I had earlier intimated to learnedCounsel, that I accepted the correctness of the proposition that everyeffort should be made to make a disputed provision meaningful andoperational. For reasons of arrangement I shall refer to this matter later.However, the principle that statutes giving a right of appeal are liberallyconstrued in furtherance of justice, and that an interpretation that willwork a forfeiture of that right is not favoured, is a totally different matter.That is a matter dealt with by Maxwell (op. cit.) later in chapter 7 p. 153et seq. The principle is very clear: If two constructions are possible andone takes away a right of appeal, the court should adopt the constructionthat saves the right. This was the submission of learned President'sCounsel for the Respondent; and being an argument from authority,albeit persuasive only and not binding, I accept the principle he suggestsas one that should guide this Court. Argumentum ab auctoritate estfortessemum in lege (Coke Litt. 254). I have consulted the followingdecisions in this connection: (Samidorai Thennavarayar v. VaiihilingaThennavarayar (89) per Jagadisan J; Tayillath Vamanan Naipbudiri v.Ammarmankandyil Narayana Kurup and Others (90) per Mehon, C. J;Commissioner of Income Tax Bombay v. M/s Filmistan L td. Bombay (91)PerTendolkar, J. I have also consulted Bindra, op, cit. 552,557; Craies,op. cit. 122,123; Crawford, op. cit. Vol 111 section 6807 p. 334; Halsbury,op, cit. para. 907 and 946; Maxwell, op. cit., 153-156).
Admittedly, in this case, the wider construction does not operate totake away the appeal as of right and to shut parties out from the seat ofjustice. However, there is in principle no distinction between abolishinga right of appeal and restricting that right. In both cases, a court is obligedto adopt a construction that is more favourable to the litigant. In NagendraNath Bose v. Mon Mohan Singha Roy and Others (92) the law had beenamended so that an appeal would lie only if the condition imposed by theamendment, namely, that a certain deposit of money be first made, hadbeen complied with. Graham, J. at pp. 100-101 said:
“If there were no authority on this point I am bound to say that thereseems to be a good deal to be said for the view that the provision inquestion relates rather to a matter of procedure than detracts from anysubstantive right. It cannot be said that the right of appeal is takenaway, or even prejudiced in any way. It remains intact subject only tothe provision which is in the nature of a formality, that an appeal willonly be admitted if the condition laid down in sub – s. (5) is compliedwith. There is, however, authority in a recent decision of this Court forthe contrary view: Sheikh SadarAli v. Sheik Dolliluddin Ostagar (93).In that case the decision of the Privy Council in the Colonial SugarCompany's Case (94) was referred to as conclusive authority for theview that rights of appeal are not matters of procedure, and that theright to enter the Superior Court of Appeal is deemed to arise to alitigant before any decision has been given by the inferior Court. If thatbe so it would seem to follow that the substantive right of appeal whichthe litigant possesses must be deemed to be prejudicially affected bya new provision which has the effect of attaching to it any clog ordisability.”
In the same case Mitter, J. at p. 102 said:
"It is argued however for the opposite party that the right of appealis not taken away but only conditions are imposed on the exercise ofthe right. We can see no difference in principle between abolishing aright of appeal and putting a restriction on the right of appeal which hadpreviously been unrestricted. Before the amendment an appeal hadmerely to be filed in properform in orderto be admitted but now unlessthe entire sum recoverable in execution is deposited the appeal will notbe admitted. This imposes a new burden on the judgment debtorseeking to set aside the sale.”
However, in Badruddin Abdul Rahim v. Sitaram Vinayak Apte (95)Fawcett,J. at p. 373 seems to draw a distinction between cases in whichthere is an abolition of a right of appeal and those in which the right ismerely restricted. He was prepared to concede that the presumptionagainst retrospectivity would apply where there was an abolition, but notwhere the right is restricted “ in a reasonable manner.” In the case beforehim, a clause in the Letters Patent governing the procedure of the HighCourt of Bombay had been amended so that no appeal to what he calleda D/V/s/on Senc/i would lie in the exercise of a second appellate jurisdictionwithin the same court on a question of law unless a single Judge declaredthat it was fit to be so heard. This alteration, Fawcett, J. said was a merechange in procedure which was primafacie retrospective. Mirza, J. atpp.374-375 agreed that the change was merely procedural, being “ intendedto regulate the procedure of the High Court regarding the constitution ofits appellate Benches and does not primarily contemplate the creation ofa substantive right in favour of the disappointed party to the appeal beforea Bench of one Judge."
In distinguishing the decision of the Privy Council in The ColonialSugar Refining Co. Ltd. v. Irving (94) Mirza, J. at p. 375 stated as follows:
“The matter there did not relate merely to a procedural law. A right ofappeal from one tribunal to anothertribunal which is differently constitutedstands on a different footing from the right to appeal from the judgmentof a tribunal where only one judge constitutes the tribunal, to the sametribunal, where two or more judges constitute the same tribunal. Theformer creates not merely a remedial but a substantive right; the latterseems merely to regulate the procedure of the same tribunal. Asubstantive right to appeal to a higher tribunal had already beenconferred by the Order in Council of 1860 on the aggrieved party and theAct of 1903 could not, in the absence of a provision to that effect, takeaway that right and substitute for it another.”
In the matter before us, the question does not concern the mereregulation of procedure of appeals within the same tribunal, but rather,what Mirza, J. described as “a right of appeal from one tribunal to anotherwhich is differently constituted.” And that sort of situation, Mirza, J. saidaffected “substantive" “rights. The amendment in Badurddin's Caseenabled the Judge in apropriate circumstances, (as for instance, wherethe Judge, as Mirza, J. explained at p. 375, “feels some hesitation ordoubt about his own decision or is of opinion that the point is of suchimportance that more than one Judge should express an opinion on it”),to permit a matter to be heard by two or more Judges. Moreover, theclause for interpretation in Badruddin’s Case was in Letters Patent andnot in legislation and Fawcett, J. at p. 372 expressed the view that “ If thisquestion arose out of an Act eitherof the All India Legislature or of a locallegislature, or even an Act of Paliament, then in the absence of clearwords in the enactment, there would be a good deal to support Mr.Patwardhan’s argument.” Patwardhan’s argument was that his client'sright of appeal was not merely a matter of procedure but a substantiveright and that therefore the amendment of the Letters Patent did notoperate retrospectively to take away the right of appeal.
Asthe narrower meaning leaves a litigant's right of appeal unimpaired,in the absence of contrary indications in the Code of Intellectual Property,
I hold that the word “rules" in section 182 (3) was intended by Parliamentto mean “ rules of court."
What was the mischief sought to be remedied by this alleged changeof the law governing appeals? Learned President's Counsel for theRespondent explained that, in general, in an effort to reduce the LawsDelays, and to reduce ‘the consumption of time and money", Parliamenthas shown a trend since 1974, which, he says is “increasing”, towardslimiting the number of appeals by giving the Court the right to control,through the leave to appeal procedure, the matters it is prepared toentertain. Specifically in relation to such matters as Trade Marks, for thesake of “commercial stability” and in the interests of the economy, rightsof appeal had to be controlled to expedite decisions. Mr. Choksy, P.C.says that, although section 182 (3) may not have been “felicitouslydrafted”, this was the design.
Mr. De Silva, P. C. inquired whether labour disputes, in the interestsof industrial peace, and family law cases, in the interests of domesticstability, were less favoured by the State than matters regarding casesrelating to intellectual property. He submitted that, in any event, theParliamentary history of legislation is not a permissible aid in construinga statute. I am in agreement with him. It is not what Lord Simonds InAttorney – Generalv. Prince Ernest Augustus of Hanover(34) at p. 481described as a “legitimate means” for discerning the mischief sought tobe remedied. In Escoigne Properties Ltd. v. I.R.C. (96) Lord Denningsaid …. in this country we do not refer to the legislative history of anenactment as they do in the United States of America. We do not lookat the explanatory memoranda which preface the Bills before Parliament.We do not have recourse to the pages of Hansard. All that the courtscan do is to take judicial notice of the Previous state of the law and of theother matters known to well – informed people."
All the relevant approaches to the construction of section 182 (3) ofthe Code of Intellectual Properly tend (some more, others less strongly,perhaps, but in cumulation decisively) to the conclusion that the word“rules” in that section must be given its narrower technical meaning,namely, “ rules of court”.
Finally, I should like to refer to the judgment of the Court of Appeal inthe matter before this court. After stating the facts of the case and the
arguments of learned Counsel for the appellant, Wijeyaratne, J. (withwhom Wijetunga, J. agreed) deals with the question of the historicalchanges in appellate procedures brought about by the Administration ofJustice, Law. No. 44 of 1973, the Civil Procedure (Special Provisions)Law, No. 19 of 1977 and Civil Procedure Code (Amendment) Law, No. 20of 1977. Wijeyaratne, J. also describes the various rules framed underthose laws and the rules framed under Article 136 of the Constitution of
His Lordship expresses the view that the Civil Appellate Rules of1938 ceased to be effective after the enactment of the Administration ofJustice Law, No. 44 of 1973, that the Civil Procedure Code (Amendment)Law, No. 20 of 1977 made provisions with regard to interlocutoryappeals, and that a new Constitution was enacted in 1978 under whichcertain rules were framed.
The Court of Appeal referred to the rules framed under variousprovisions of law.
The rules referred to by Wijeyaratne, J. were the Civil Appellate Rulesof 1938 and the rules framed under the Constitution of 1978. Hedescribes what these rules were. With great respect, the rules HisLordship refers to have nothing at all to do with the right to appeal fromthe decisions of a District Judge in Trade Mark matters. After consideringthe provisions of the Adminstration of Justice Law, Wijeyaratne, J.concludes that the Civil Appellate Rules 1938 ceased to operate afterthe enactment of the Administration of Justice Law, No. 44 of 1973.
The Respondent submits that the Court of Appeal was right in itsfinding that the Civil Appellate Rules of 1938 are no longer applicable.Mr. Choksy, P.C. argued that if the Civil Appellate Rules of 1938 did notexist, and if the Judges of the Supreme Court had failed to frame therelevant rules in the exercise of their rule-making functions in terms ofArticle 136 of the Constitution, then section 182 (3) would become“meaningless” and “unworkable”. Mr. De Silva, P.C. said that if therewere no rules of court, the section would be “meaningless”. Mr. Choksy,P.C, for the respondent said that if there are no such rules, the word“rules” in section 182 (3) must be given the wider meaning, since it isa principle of statutory interpretation that the words of a statute must begiven some meaning.
I agree with learned President Counsel for the Respondent that thesection under consideration should be so construed that it must havean effect rather than being rendered nugatory. At any rate, unless thewords imperatively require it, it is my duty to prefer such a construction.Ut res magis valeat quam pereat. (Cf. Dr. Lushingrton in The Beta (97).As Mr. Choksy, P.C. submitted, we must construe section 182 (3) of theCode of Intellectual Property in such a way that the intentions of thelegislature may not be treated as vain or, as Mr. Choksy, P.C. said, “leftto operate in the air”. (Cf. Curtis v. Stovin (98) per Bowen, L. J.; Hankeyv. Clavering (99) per Lord Greene, M.R.; Craies, op. cit. p. 69).
A great deal of time has been spent in this case in the Court of Appealand in this Court on the question whether, and, if so, what subordinatelegislation governed appeals in Trade Mark cases. That issue was somagnified and exaggerated as to hide from view and disguise the matterto be determined in this case. With great respect, I am unable tounderstand the relevance of the existence or abrogation of the CivilAppellate Rules, or for that matter any rules, to the question to be decided.Although learned President’s Counsel for the Appellant in the Court ofAppeal, and for some time before this Court, relied upon the existence ofrules forthe validity of his argument with regard to the meaning of section182 (3), he agreed with me in the course of his reply that the section wouldnot be rendered meaningless if in fact there was no subordinate legislation.Section 182 (3) or any other law could have been passed without anyexisting rules or other subordinate legislation, such as regulations madeby a Minister or rules made by a Court. Subordinate legislation by wayof rules and regulations are required for a variety of reasons: legislationrequires far more detail than Parliament itself has time or inclinationfor ; some details of the overall legislative scheme may need to betentative or experimental and delegated legislation through rules andregulations would afford an easy means of adjusting the scheme onaccount of new developments or for other reasons, including anemergency, without further recourse to the long, difficult and uncertainprocess of submitting the matter for the approval of the Cabinet ofMinisters and then obtaining the approval of Parliament. Further, it is notusually possible to see how the legislation would operate in practice, forthe exact terms of a law cannot be known until the legislation is passed.Important amendments may be introduced atthe last moment.Therefore,after consultation with the persons concerned when the skeleton of thelaw is visible, rules and regulations to provide the flesh and blood andbring the scheme into full workable operation would be provided by theresponsible Minister in the case of regulations, or by a Court of Law orother authority designated by Parliament (Cf. Bennion, op. cit. p. 132).The existence or absence of any rules has nothing whatsoever to do withthe matter which was before the Court of Appeal and that which is beforethis Court.
After stating that it had been argued that the Civil Appellate Rules wereyet in force, Wijeyaratne, J. states as follows at p. 4 of the Judgment ofthe Court of Appeal:
“It should be remembered that what is conserved are rules relatingto exercise of jurisdiction by a Court which is vested with jurisdiction.We are concerned here with rules relating to procedure in appeals andnot rules relating directly to the exercise of jurisdiction though it maybe argued that rules relating to appellate procedure also relate tojurisdiction of courts.".
Section 754 (1) of the Civil Procedure Code lays down the procedureto be followed where a dissatisfied litigant wishes to appeal from a finaljudgement of a District Court. It is the foundation of the jurisdiction of theCourt of Appeal in the case of appeals from final judgments of the DistrictCourt in Trade Mark cases in terms of section 182 (3) of the Code ofIntellectual Property. The jurisdiction fails in this case because the termsof section 754 (1) of the Civil Procedure Code have not been compliedwith.
Learned President’s Counsel forthe Respondent does not dispute thefact that if there was no leave to appeal required, there was no jurisdiction.However, he submits that because (1) the Respondent had been usinga certain Trade Mark for over fifty years ; (2) the Respondent did not gobefore the wrong Court; (3) no prejudice will be caused by this Courtdoing as he recommends, this Court should “request” the Court of Appealto entertain a petition from the Respondent by way of revision in termsof Article 13 of the Constitution. Learned President’s Counsel for theRespondent cited the decisions in Juanis v. Engo Nona (100) andFernando v. Fernando (101) in support of his submission. Those caseswere decided before the present Constitution and provide no guidance asto what we may now do. In terms of Articles 118 and 127 of theConstitution, this Court is the “highest and final superior Court of recordin the Republic" to which shall be submitted for correction all errors in factor in law committed “by the Court of Appeal or any Court of First Instance,tribunal or other institution". In the exercise of its Appellate Jurisdiction
the Supreme Court may “affirm, reverse or vary” any order or judgmentdecree or sentence of the Court of Appeal, where an appeal lies to theSupreme Court; but the Court has no power to make requests of the sortsuggested by Mr. Choksy, P. C.
In conclusion, in expressing the decision of the Court of Appeal,Wijeyaratne, J. states as follows
'The present Civil Procedure Code was enacted in 1977 and theCode of Intellectual Property Act in 1979. Therefore when section 182(3) of the Code of Intellectual Property Act, No. 52 of 1979 provided thatappeals shall be “governed by the rules which govern interlocutoryappeals from the District Court”, obviously they refer to the procedurelaid down in sections 754 (2) and 756 (2), (3), (4), (5), (6) and (7) andany rules relative thereto framed by the Chief Justice and other Judgesof the Supreme Court under Article 136 of the Constitution. Hence theAppellant-petitioner has followed the correct procedure in this appeal.”
With great respect this is a non sequitur. The dates of the enactmentof the Civil Procedure Code and the Code of Intellectual Property do notlogically lead to the conclusion arrived at by the Court of Appeal.
For the reasons stated in my judgment I set aside the judgment of theCourt of Appeal and allow the appeal with costs.
A. G. De SILVA, J.—I agree.
KULATUNGA, J.
The appellant (Stassen Exports Ltd.) was, despite the objections of therespondent (Brooke Bond Ceylon Ltd.) successful in obtaining a decisionfrom the Registrar of Trade Marks in terms of the provisions of section105-107 of the Code of Intellectual Property Act, No. 52 of 1979 for theregistration of a Trade Mark “ Spring Brand ” for use in the tea trade. Therespondent’s appeal to the District Court against the Registrar’s decisionwas dismissed whereupon the respondent seeking to avail himself of theright of appeal under section 182(3) of the Act applied for leave of theCourt of Appeal under section 754(2) read with section 756(2) to (6) of theCivil Procedure Code (Cap. 101). Such leave was sought in view of theprovisions of section 182(3) which reads—
" Every judgment or order of the District Court under this Code shallbe subject to an appeal to the Court of Appeal and such appeal shall
be subject to the rules which govern interlocutory appeals from District
Courts".
The appellant took a preliminary objection to the application for leaveto appeal on the ground that the appeal being from a final judgment, theright of appeal is unqualified and requires no leave for its exercise ; thatthe appeal should have been lodged under section 754(1) (read with sub-sections (3) to (5) thereof and sections 755, 757 and 758) of the CivilProcedure Code. The relevant provisions requires the giving of a noticeof appeal to the District Court with security for the respondent's costs ofappeal. This has to be followed by a petition of appeal to be presented tothe District Court. It was the appellant's position that sections 754(2) and756(2) to (6) pertaining to leave to appeal have no application to anappeal under section 182(3) of Act No. 52 of 1979.
It was submitted that whenever the legislature intended to impose therequirement of leave to appeal it did so expressly by the use of the words“ with the leave of the Court of Appeal first had and obtained ” e.g. section13(3){b) of the Judicature Act, No. 2 of 1978. More examples were citedbefore us namely sections 15(a) and 16(1) of the said Act and section62(1) of the Muslim Marriage and Divorce Act (Cap. 115). It wascontended that in the absence of specific provision, section 182(3) of ActNo. 52 of 1979 cannot be construed as requiring an aggrieved party toobtain leave to appeal in terms of section 754(2) and 756(2) to (6) of theCivil Procedure Code.
It was argued that section 182(3) of Act, No. 52 of 1979 repeated thelanguage of section 50 of the repealed Trade Marks Ordinance (Cap.150) which was in existence at a time when there was no requirement ofgetting leave to appeal from any decision of a District Court. An appealwas then subject only to the Civil Appellate Rules 1938 (SubsidiaryLegislation (1956) Vol. I) relating to the furnishing of typewritten copies ofthe record and the fees payable therefor; that the said Rules were keptin force by section 3(2) of the Administration of Justice Law, No. 44 of1973 pending the making of new rules; no such rules were made until therepeal of the Administration of Justice Law. Various chapters of theAdministration of Justice Law were repealed between 1977 and 1979 butsection 3(2) was not repealed and hence Civil Appellate Rules 1938remained in force even after the promulgation of the 1978 Constitution asno rules on the subject of typewritten copies of records have been madeby the Supreme Court under Article 136 of the Constitution.
It was therefore urged that the words" rules which govern interlocutoryappeals from a District Court ” in section 182(3) of the Act No. 52 of 1979bear the same construction as under section 50 of the repealed TradeMarks Ordinance and refer to the Civil Appellate Rules 1938 and not tothe provisions of sections 754(2) and 756(2) to (6) of the C.P.C..
It was submitted that in the circumstances, the absolute right of appealunder section 23 of the Judicature Act of 1978 remain untouched and theappeal was bed for non-compliance with section 754(1) and the otherrelevant provisions of the C.P.C..
The Court of Appeal held that in the context of the provisions of theAdministration of Justice Law and the Civil Procedure Code relating toappeals from orders given in the course of an action which do not disposeof the rights of parties (which orders are now described as interlocutoryorders) and the rules made under the A.J.L. and Article 136 of theConstitution. The Civil Appellate Rules 1938 have become absolute.Consequently, the words “ rules which govern interlocutory appeals ” insection 182(3) of Act No. 52 of 1979 refer to the procedure laid down insections 754(2) and 756(2) to (7) of the C.P.C. and any rules relativethereto made under article 136 of the Constitution. In the result, the Courtmade order over-ruling the preliminary objection. The appellant haspreferred this appeal against that order.
When Mr. H. L. de Silva, P.C., learned Counsel for the appellant wasmaking his submissions before us on 30.07.90,Mr. Choksy, P.C., learnedCounsel for the respondent said that the Supreme Court has made rulesrelating to copies of records in appeals to the Court of Appeal andproduced a copy of the Supreme Court (Court of Appeal—AppellateProcedure—Copies of Records) Rules 1978 published in Gazette(Extraordinary) No. 18/6 of 10th January, 1979. On 31.07.90, Mr. H. L. deSilva, P.C., informed us that he would not press his argument based onthe survival of the Civil Appellate Rules, 1938 but maintained that theorder appealed from is nevertheless wrong particularly forthe reason thatif section 182(3) of Act No. 52 of 1979 is construed as requiring leave toappeal, it would involve an implied repeal of the unlimited right of appealunder section 754(1) of the C.P.C. which is not permissible in the absenceof clear language. He submitted that the words in section 182(3) areinsufficient to derogate from the plenary right granted by section 23 of theJudicature Act which provides inter alia, “ any party who shall be
dissatisfied with any judgment, decree or order pronounced by a DistrictCourt may (except where such right is expressly disallowed) appeal to theCourt of Appeal"
Learned Counsel for the parties addressed us at length on theinterpretation of section 182(3) of Act No. 52 of 1979. We listened withinterest to their submissions in support of which each of them relied uponsubstantially the same rules of construction but with a different emphasis.This was the position until the last dayxif the hearing when in the courseof his reply to Mr. Choksy’s submission, Mr. H. L. de Silva.informed us thathe was abandoning some of the grounds which he had earlier urgedbefore us in support of the appeal. Notwithstanding such fluctuations inthe argument each Counsel endeavoured to discover the intention or thesupposed intention of Parliament in enacting section 182(3). It seems tome that the relevant question is, what is the construction that we shouldput on that section primarily in the light of the words used and bearing inmind the rules of interpretation relied upon by Counsel. I shall now set outthe submission of Mr. H. L. de Silva, P.C., and the counter submissionsof Mr. Choksy, P.C.. This will be followed by a summery of Mr. H. L. deSilva’s reply to Mr. Choksy’s counter submissions and my owndetermination of this appeal.
Submissions –
Despite the failure of the argument based on the survival of the CivilAppellate Rules, 1938 it is submitted –
that when the legislature used the word “interlocutory” the legisla-ture assumed the existence of rules. If no rules existed the wordinterlocutory" is a mistake and should be disregarded, though suchmistake is not to be lightly assumed. The Court has a limited powerto add to or ignore statutory words to prevent a provision from beingabsurd ortotally unreasonable (Bindra Interpretation of Statutes 6thEd. 19; Cross Statutory interpretation 2nd Ed. 96);
that in this context the word “rule” should be given its legal meaningof subsidiary law. It has been used in that sense in section 49 of theCourts Ordinance (Cap. 6), section 15 (1) of the A. J. L. and Article136 of the Constitution and it should be understood accordinglyunless it appears form the context that the legislature has used itin a popular or more enlarged senese (Bindra 191);
that giving the word 'rule' a wider meaning to include the leave to iappeal provisions of the C. P.C. would qualify the aboslute right ofappeal which existed for 100 years and would in some wayradically amend Section 754(1) of the C.P.C. and wouldderogate from the plenary right of appeal under Section 23 of the 'Judicature Act. Even if two interpretations are possible one thatleaves the law unaltered is to be preferred against that whichdrastically alters it Ananti v. Chhannu (85).
Counter Submissions –
We cannot assume a mistake in an Ad* of Parliament and cannot. add to or take away from a statute unless it is’cTear that the legislatureintended something which it has failed precisely to express (Bindra180). Every word in a statute should be given a meaning. A constructionwhich would leave without effect any part of the language of a statutewill normally be rejected (Maxwell 12th Ed. 36). The words of a statuteshould generally be understood in the sense which they bore when it.was passed. Every Act of Parliament should be construed with referenceto the state of the law and of judicial decisions subsisting when it came _into operation, and when it is to be applied ; it cannot otherwise be •rationally construed. (Bindra 326 ; Maxwell 36 ; Halsbury 4th Ed. Vol.
44 para 899). Mr. Choksy cited Savings and Investment Bank v. Gasco(102) in which the Court had to decide whether contempt proceedingsfor breach of an interlocutory injunction constitute "interlocutoryproceedings" within R.S.C. Ord. 41, para 5 (2). This decision thoughnot directly in point here, is helpful on the question as to how wordsshould generally be understood. Nicholls, L.J. thought thatcomprehensive definitions of “interlocutory" and "final" are probablyimpossible and said (p. 992) -'
"But the essence of-'the'distinction seems to me to lie in the •
. connotation, implicit in the phrase, that in general "interlocutory^,proceedings" are proceedings other than the trial of the action or the 'equivalent hearing in the case of an originating summons or other -originating process. The trial of an action or the equivalent stage of .
• other originating process would, in general, be regarded as
finalBroadly, that is how, as it seems to me, the terms
'interlocutory' and 'final' would be understood by lawyers'.
It was argued that the present C.P.C. which came into force in 1977incorporated specific provisions pertaining to 'interlocutory appeals" (as
defined in judicial decisions) and in this regard followed the provisions ofChapter IV of the A.J.L. 1973. The Code of Intellectual Property Actwas enacted in 1979. Therefore, whatever be the history of Section182 (3) of the Act and however it may have been interpreted in adifferent statutory context, it must be interpreted today in the light of theprovisions of the C.P.C. pertaining to interlocutory appeals and in thecontext of the absence of the Civil Appellate Rules 1938 and that alawyer advising his clients is entitled to so understand the section. Mr.
L. de Silva states that hitherto no leave has been applied for in appealsunder Section 182 (3). Mr. Choksy, P.C. states that appeals inIntellectual property matters are coming up only now in view of recentdevelopments in the economy and hence the Court had hitherto nooccasion to consider this question^ think that the proper course wouldbe to decide the question without paying regard to these statements ofCounsel as to their experience in litigation in this sphere.
The contention that "rules of procedure" in Section 182 (3)should be narrowly construed limiting its application to Subsidiary-Law isuntenable. If it is right, then the section has no meaning because therewere no such rules when the Act was passed ; hence Parliament did notrefer to 'rules' in the sense of subsidiary law; or it should be soconstrued. What is moreforl 1 years after the Act, no rules applicable tointerlocutory appeales have been made by the Supreme Court. This isbecause 'rules' in this context include the rules of procedure enacted bythe C.P.C. ; in fact no rules e.g. relating to the furnishing of copies ofrecords are required because an applicant seeking leave to appeal has ofnecessity to obtain them from the District Court to be filed with hisapplication. An appellant is entitiled in his capacity of a party to theproceedings before the District Court to obtain copies of records.Further in the context of the law of evidence and civil procedure the term'rules' include substantive law e.g. Section 2 of the Evidence Ordinance(Cap. 14) ; The proviso to Section 4 of the C.P.C. ; Sections 285(2),511 and 777 of the C.P.C.. Maxwell p. 320 under the heading'Rules ofProcedure" says "enactments regulating the procedure in Courts areusually construed as imperative".
The right of appeal in Section 23 of the Judicature Act is notabsolute. Article 138 of the Constitution in conferring appellatejurisdiction on the Court of Appeal provides that its exercise shall besubject to the provisions of the Constitution or of any law. Although this
jurisdiction cannot be easily taken away, it may be regulated by law -e.g. by a provision for getting leave. Such provision is not a fetter orburden on the right of appeal. Every person can file an application forleave to appeal. Such procedure would be reasonable and appropriateparticularly for avoiding laws delays in intellectual property matterswhere a dispute could hold up trading and commercial transactionswhich are vital to the economy. In any event, the Court should construethe statute according to the words used. If it is suggested that thestatute has a wider sweep or that it exceeds the legitimate interest, thenit. is for the legislature to correct it by an amendment. Stock v. FrankJones (Tipton) Ltd. (12). The Court cannot say that it will reject thelegislation unless there is manifest absurdity.
Reply to Counter Submissions –
In reply Mr. H. L. de Silva, P.C. said –
that he would not challenge the comprehensiveness of the term'rules' which in a particular context may mean the law of civilprocedure or evidence. However, in Section 182 (3) "rules" hasa technical meaning. He informed us that he is giving up hissubmission based on the ground that the word "interlocutory" inthe section is a mistake and hence it should be disregarded butreiterated his submission for an unlimited right of appeal. In doingso he emphasised that the section contemplates rules which theSupreme Court may have made (touching interlocutory appeals).The fact that no such rules have been made does not render thesection meaningless because in the absence of express wordsrequiring leave to appeal, the right of appeal against a finaljudgment remains unaffected ;
that in 1979 the legislature should be presumed to have knownthat an appellant under the corresponding Section 50 of therepealed Trade Marks Ordinance was (by the use of similar wordsas found in Section 182 (3)) afforded a benefit namely a lowerrate of fees for copies of the record ; that the legilsative history isrelevant – Maxwell 12th Ed. p.64,66 ; Registrar of RestrictiveTrading Agreements v. W. H. Smith & Son Ltd. (39) in which itwas held that the word 'officer' in Section 15 (3) of the .Restrictive Trade Practices Act, 1956 had a narrower meaning ofa person in charge of the affairs of the company as a whole at thecentre and did not include a branch manager for the purposes of
an application under Section 15 to summon him to attend and beexamined before a Judge. Counsel drew our attention to p. 1552where Cross J. said –
'Further the words 'director, manager, secretary or other officer'appear to derive from Section 455 (1) of the Companies Act,1948, which says that unless the context otherwise requiresthe expression 'officer' in relation to a body corporate includesa 'director, manager or secretary'. It would, therefore, benatural to give the same meaning to the words in the Act of1956 as they would be given in the Act of 1948”.
that giving a wider meaning to 'rules' would necessarily conflictwith the right of appeal under Section 23 of the judicature Actand curtail the right under Section 754( 1) of the C.P.C.Jt wouldconfer a new power on the Court of Appeal to grant leave even inappeals from final judgements ; that in the absence of expressprovision deeming appeals under Section 182(3) to beinterlocutory appeals, this Court should give the term 'rules' thenarrower meaning which would preserve the unlimited right ofappeal ; that in the context, the rationale given by Mr. Choksy tojustify the requirement of leave to appeal namely the need toavoid law's delays in intellectual property matters is whollyuntenable.
I have set out the case for the parties, their submissions and theappellant's reply in some detail in deference to the able arguments ofcounsel and in particular Mr. de Silva's complaint that the interpretationof Section 182(3) of Act No. 52 of 1979 upholding the procedureadopted by the respondent is obviously wrong, is contrary to well knownrules of interpretation and is derogatory of rights of litigants enjoyed for100 years. In determining the issue the following dicta of the House ofLords and citations from Halsbury and Bindra appear to be relevant. InStock v. Frank Jones (Tipton) Ltd. (1 2) Viscount Dilhorne said –
'It is now fashionable to talk of a purposive construction of astatute, but it has been recognised since the 17th century that it isthe task of the judiciary in interpreting an Act to seek to interpret it'according to the intent of them that made it'. If it were the case that itappeared that an Act might have been better drafted or thatamendments to it might be less productive of anomalies, it is notopen to the Court to remedy the defect. That must be left to theLegislature".
At page 953 – 954 Lord Simon sets out certain guidelines which hedescribes as being 'essential to the proper judicial function in theconstitution to bear in mind" one of which is 'that Parliament isnowadays in continous session, so that an unlooked — for anunsupportable injustice or anomaly can be readily rectified bylegislation ; this is far preferable to judicial contortion of the law to meetapperently hard cases with the result that ordinary citizens and theiradvisers hardly know where thay stand.
All this is not to advocate judicial supineness ; it is merely respectfullya self-knowledge of judicial limitations, both personal andconstitutional'
Halsbury 4th Ed. Vol. 44 para 862 comments thus –
"There is a strong presumption that Parliament does not makemistakes. If blunders are found in legislation, they must be correctedby the legislature, and it is not the function of the Court to repairthem".
Bindra 6th Ed. p. 400 states –
"The rule of construction is 'to intend the legislature to have meantwhat they actually expressed'. The meaning of the Act is to beinterpreted not with reference to what itsframers intended to do, butwith reference to the language which,they did in fact employ".
I am in respectful agreement with the above quoted views. Mr. H. L.de Silva submits that Section 182(3) of Act No. 52 of 1979 does notrequire the obtaining of leave to appeal because the Legislature hasfailed to use the well known formula for imposing such requirement andthat giving "rules" a narrower meaning would not make the sectionunworkable. Mr. Choksy submits that such perfection in drafting cannotbe always expected ; that where the legislation is not so perfect theCourt has to interpret the statute ; that in the instant case the wordsused, when construed in the light of the applicable principles lead to theresult that the correct procedure of an appeal under Section 182(3)requires the leave of the Court of Appeal to be obtained ; that thisconstruction is reinforced by the fact that the section refers to "everyjudgement or order" ; and that such construction cannot be said toprejudice the substantive rights of the respondent.
I have to compare Mr. Choksy's submission with the very attractivesubmission of Mr. de Silva and consider whether the former can bepreferred without doing violence to the applicable rules of interpretation
in particular the construction which favours the preservation of rights. Ido not think that in this case, we can gather what in fact was theintention of Parliament. The words used are not helpful to ascertain thelegislative intent in that sense. Therefore, we have to construe thestatute and give it a meaning, objectively ; and the Parliament will bepresumed to have intended the meaning implicit in such construction.
Mr. Choksy's submission is supported by the passage in Bindra 6thEd. p. 400 and the views of Viscount Dilhorn and Lord Simon in Stockv.Frank Jones (Tipton) Ltd,, 'Supra) and Savings and Investment Bank v.Gasco (Supra) (dicta ofNicholls LJ) which I have referred to earlier in this .judgment. Nicholls LJ emphasised how the expression "interlocutoryproceedings” would be understood by lawyers. The House of Lords .considered it important to safegard ordinary citizens and their advisorsagainst efforts by Judges to meet apparently hard cases which ought tobe left to the Legislature.
In the instant case how may lawyers understand the terms in Section182 (3) after its enactment in 1979 ? Mr. de Silva suggests that sinceno leave to appeal was being sought even after 1979 lawyers hadunderstood the section as unqualified ; if no leave was being sought thiscan be due to the force of habit whereby lawyers merely continued withthe practice prior to 1979 ; but if one applied one's minds to the wordsone would, in the state of the law and judicial decisions as in 1979,ordinarily understand them as imposing the requirement of leave toappeal. On the other hand, Mr. de Silva's analyses, despite its force,does not appear to reflect how lawyers in general would understand thesection in the usual course. Thus, before Mr. de Silva concluded hisargument he went through the motions of abandoning the argumentbased on the survival of the Civil Appellate Rules, 1938, mistake of theLegislature and the redundancy of the word 'interlocutory'. At the finalstage, he had to reformulate his submission to make it persuasive in viewof the strong submissions which had been made against hisconstruction. I do not think that lawyers who do not have the benefit of afull argument in Court which was available to the learned Counsel whoappeared in this appeal can fairly be required to go through suchmotions in advising their clients. In this context, I am also of the view thatthe decision in Registrar of Restrictive Trading Agreements v. W. H.Smith & Son Ltd., relied upon by Mr. de Silva is not of assistance.
However, the vital issue for decision is whether the constructionplaced by the Court below is an erosion or diminution of a right or leads toan implied repeal of Section 754 (1) which is not permitted by any rule ofinterpretation. In view of the fact that there was much controversy onthis issue I am compelled to examine the relevant rules closely. Theserules are discussed under the heading 'encroachment on rights'(including vested rights). Statutes which encroaches on rights whetheras regards person or property are subject to a strict construction andshould be interpreted, if possible, so as to respect such rights. Penalstatutes and statues which impinge on individual liberty are subject tothe same construction and in the absence of clear language, theconstruction which preserve the right will be given. Statutes whichimpose burdens e.g. revenue statutes, are also strictly construed infavour of the subject – Maxwell 12th Ed. 238, 251,252, 256 ; CrossStatutory Interpretation 2nd Ed. 177, 180, 182.
An incident of this approach to legislation is the presumption that astatute does not retrospectively abrogate vested rights. Maxwellstates –
"In the words of Craies on Statute Law, a statute is retrospective'which takes away or impairs any vested right acquired under existinglaws, or creates a new obligation, or imposes a new duty, or attachesa new disability in respect to transactions or considerations alreadypast" (p. 216).
In the absence of clear provisions, a statute will not be held to beretrospective. If two views are open it will be construed as prospectiveonly.
'If there is any ambiguity about the extent of (the) derogation (by astatute from common law rights), the principle is clear that it is to beresolved in favour of maintaining common law rights unless they areclearly taken away" Re "Wonderland" Cleethorps (1965) AC 58Viscount Simonds at p. 71, cited in Maxwell p. 252.
The right of appeal is not a common law right. It is granted by statute.One finds this right discussed under the rule against retrospectivity. Inthis context, Bindra 6th Ed. 205 states –
'There is no difference in principle between abolishing a right ofappeal and putting a restriction on that right",and proceeds to cite – the decision in Nagendranath v. Mon MohanSingh[92) where it was held that Section 174(5) of the Bengal Tenancy2-
Amendment Act (4 of 1928) which required the making of a depositewas not retrospective in operation and does not apply to appeals arisingout of proceedings instituted before coming into operation of theenactment.
At p. 101 the Court observed –
". . . . The substantive right of appeal which the litigant possesses
must be deemed to be prejudicially affected by a new provision which
has the effect of attaching to it any clog or disability "
»
In Badruddin Abdul Rahim v: Sitaram Vinayak Apte(95) the courtconsidered an alteration in Cl. 15 of the Letters Patent Bombay HighCourt which provided that no appeal from the judgment of one Judge ofthe Court lies to a Division Bench, if it is made in the exercise of secondappellate jurisdiction, except in any case where such a single Judgedeclares that it is a fit one for appeal. It was held that the alteration isretrospective in application. Fawcett, J. Said (p. 373) –
"The alteration in Cl. 15 does not entirely abolish a former right ofappeal ; it merely restricts it in a reasonable manner. The appellantcan exercise the right of appeal if he persuades the Judge that it is a fitcase for appeal".
. Mirza, J. said (p.375) –
"We have been asked to construe retrospectivity of the amendedCl. 15 strictly as it would deprive the applicant, it is said, of a valuable .right of appeal to a Bench of two or more Judges. I do not agree thatthe clause as amended is unreasonable or imposes an unnecessaryburden on the applicant".
In the instant case, we are not dealing with a common law right or avested right in the context of the rule against retrospectivity. We aredealing with the statutory right of appeal. The issue relates not to theabolition of the right but to the regulation of its exercise. It is in this lightthat we have to consider whether the construction relied upon by therespondent is a disallowance of the right of appeal or leads to animplied repeal of Section 754(1) of the C.P.C..As submitted by Mr.Choksy, anybody can apply for leave to appeal. As the right of appeal isenshrined in Article 138 of the Constitution it cannot be easily takenaway. But it may be regulated by the requirement to obtain leave toappeal. That does not constitute a disallowance or a reduction of thesubstantive right.
In this view of the matter, I see no evil in attempting a rationale to theconstruction upheld by the Court below. After all one of the theories asto the nature of law regards it as based on reason. Complementary tothis theory is the social interests theory. G. W. Paton Jurisprudence 4thEd. 117, 136. Law is, therefore, not a mere abstraction ; so thatstatutory disciplines in litigation, particularly in spheres which are vital tothe life of the community, should be welcome in the social interest andought not to be challenged in the same manner as one would challengean encroachment of a common law or a vested right.
For the above reasons, I have no difficulty in adopting theconstruction of Section 182(3) relied upon by the respondent.Accordingly, I affirm the judgment of the Court of Appeal and dismiss theappeal with costs payable by the appellant.
Appeal dismissed