notwithstanding anything in Article 138 and subject to anylaw, exercise, appellate and revisionary jurisdiction in respect ofconvictions, sentences and orders entered or imposed byMagistrate’s Courts and Primary Courts within the Province.”
Article 154 P(6) says…
"Subject to the provisions of the Constitution and any law, anyperson aggrieved by a final order, judgment or sentence of anysuch Court in the exercise of its jurisdiction under paragraph(3)(b) . . ., may appeal therefrom to the Court of Appeal inaccordance with Article 138”.
Sumanadasa v. Hathurusingha (Yapa, J.)
Article 138(1) says…
"The Court of Appeal shall have and exercise subject to theprovisions of the Constitution or of any law, an appellatejurisdiction for the correction of all errors in fact or in law whichshall be committed by the High Court in the exercise of itsappellate or original jurisdiction or by any Court of FirstInstance, tribunal or other institution and sole and exclusivecognizance, by way of appeal, revision and restitutio inintegrum, of all causes, suits, actions, prosecutions, mattersand things of which such High Court, Court of First Instance,tribunal or other institution may have taken cognizance".
On a proper construction of these relevant provisions it is clear thata right of appeal to the Court of Appeal from an order of the HighCourt has been expressly created and granted by virtue of Article154 P(6) and Article 138(1) of the Constitution. Further it is to benoted that as submitted by the learned Counsel for the respondent,this right to the Court of Appeal has not been affected or limited byvirtue of Section 9 or 10 of the High Court of the provinces (SpecialProvisions) Act, No. 19 of 1990.
These provisions of the Constitution referred to above wereconsidered recently by the Supreme Court in the case ofAbeygunasekera v. Setunga (Supra) cited by the Learned Counselfor the appellant. In that case it was stated that “Article 154 (3)(b)conferred "appellate and revisionary" jurisdiction on the High Court.Article 154 P(6) provides that any person aggrieved by a decision ofthe High Court in the exercise of its jurisdiction inter alia, underparagraph (3)(b) may appeal therefrom to the Court of Appeal inaccordance with Article 138. Thus Article 154 (P)(6) itself has notlimited the right of appeal given by it to orders made by the HighCourt by way of appeal. However, that Article refers back toArticle 138 which spells out the jurisdiction of the Court of Appealand the manner of its exercise.” The Supreme Court thereafterinterpreting these provisions decided that the Court of Appeal hasjurisdiction to hear an appeal against the decision of the High Court,whether given by way of an appeal or in the exercise of its revisionaryjurisdiction.
Sri Lanka Law Reports
[1995] 2 Sri LR.
Therefore we hold that the appellant in this case has the right toappeal to this Court from the judgment of the Provincial High Courtheard by way of an appeal from the Magistrate’s Court. Accordinglywe overrule the preliminary objection raised by the learned Counselfor the respondent and we direct that this case be fixed for argumenton a date suitable to Counsel.
GUNASEKERA, J. -1 agree.
Preliminary objection overruled. Case fixed for argument.