SUMANADASA V. HATHURUSINGHE

004-SLLR-SLLR-1995-2-SUMANADASA-V.-HATHURUSINGHE.pdf


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Sumanadasa v. Hathurusinghe
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SUMANADASA
v.
HATHURUSINGHE
COURT OF APPEALGUNASEKERA, J„
YAPA, J.
C.A. NO. 66/93
C. (N.W.P.) NO. 246/93M.C. GALGAMUWA 7023/M
DECEMBER 15, 1994 AND JANUARY 13,1995.
Maintenance – Appeal to Provincial High Court – Order set aside – Appeal to theCourt of Appeal – Jurisdiction of the Court of Appeal to hear such appeals -Thirteenth amendment to the Constitution, Articles 138(1), 154P3, 154P3 (b),154P6 – High Court of the Provinces (Special Provisions) Act, No. 19 of 1990, S. 9.
An application for maintenance was dismissed by the Magistrate's Court,Galgamuwa. On appeal to the Provincial High Court of the North WesternProvince, the High Court set aside the Order.
Thereafter an appeal was lodged in the Court of Appeal. It was contended that,as the High Court exercised its powers under Article 154P 3(b) of theConstitution, the appellant had no right of appeal.
Held:
On a proper construction of Article 154P (3)(b), Article 154P(6) and Article138(1), it is clear that a right of Appeal to the Court of Appeal has been expresslycreated. Article 154P3 (b) confers appellate and Revisionary jurisdiction on theHigh Court and Article 154 P(6) provides that any person aggrieved by a decisionof the High Court in the exercise of its jurisdiction under paragraph 3(b) mayappeal therefrom to the Court of Appeal in accordance with Article 138.
Article 154 (PX6) itself has not limited the right of Appeal given by it to ordersmade by the High Court by way of appeal.
Cases referred to:
Piayadasa Guneratne v. Alan Thambinayagam 1992 S.C. Appeal No. 21/92,S.C. Minutes 25.11.1992 (B.A.LJ.) Vol. IV Part II, Page I.
2. Abeygunasekera v. Setunga, S.C. Reference 1/94. C.A. 18/92 (P.H.C.) H.C.Colombo No. 22/91 M.C. Mount Lavinia No. 68129. Decided on 8.6.1994.
APPEAL from the Provincial High Court of the North Western Province.
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[1995] 2 Sri LR.
Sanath Jayatileka for appellant.Sunil F. A. Cooray for respondent.
Cur. adv. vult.
May 12, 1995.
YAPA, J.
In this case the respondent filed an application for maintenance forherself and the child on 28.10.91 in the Magistrate's Court ofGalgamuwa. After the evidence was taken on behalf of therespondent and the appellant, the Learned Magistrate by his orderdated 25.08.93 dismissed the application for maintenance by therespondent, and gave two reasons for his finding. Firstly, LearnedMagistrate stated that the application for maintenance was not filedwithin 12 months of the birth of the child and that there was noevidence before Court to prove that the child was maintained by theappellant at any time within the 12 months period. Secondly, theLearned Magistrate stated that there was no evidence to corroboratethe evidence of the respondent.
Being aggrieved by this order of dismissal the Respondentappealed to the provincial High Court of the North Western Provinceto have the order of the Learned Magistrate set aside. After theappeal was argued by Counsel the Learned Provincial High CourtJudge by his judgment dated 18.10.93 set aside the order of theLearned Magistrate and directed the appellant to pay theRespondent a sum of Rs. 500/- per month as maintenance to thechild. The Learned High Court Judge in his judgment stated that theLearned Magistrate was in error when he held that he could notentertain the application, for the reason that he had alreadyentertained it, and had proceeded to inquire into it, and further theLearned High Court Judge held that there was material tocorroborate the evidence of the Appellant-Respondent. It is from thisjudgment of the Learned Provincial High Court Judge that theAppellant has appealed to this Court.
When this appeal was taken up for hearing on 06.12.94 theLearned Counsel for the Respondent raised a preliminary objectionand stated that this Court has no jurisdiction to hear and determinethis appeal, as the appellant had no right of appeal to this Court in
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this case. Thereafter both the Counsel for the Appellant and theRespondent agreed to submit written submissions to this Court, sothat this Court would be able to make an order in regard to thepreliminary objection taken.
In the written submissions filed with regard to the preliminaryobjection raised by the Learned Counsel for the Respondent, it wasstated that when the High Court heard the appeal in the presentcase, it was exercising its powers under Article 154 P(3)(b) of theconstitution and that under the law the appellant had no right ofappeal under any provision of law, to the Court of Appeal, against thesaid judgment of the Provincial High Court dated 18.10.93. Further itwas submitted that under Section 9 of the High Court of theProvinces (Special Provisions) Act No. 19 of 1990 the right of appealagainst the judgment of the Provincial High Court lies to the SupremeCourt and that under Section 10 of said Act the jurisdiction of theSupreme Court is an exclusive jurisdiction. In support of thiscontention the Learned Counsel has cited the case of PiyadasaGuneratne v. Alan Thambinayagam 11 >. The Learned Counsel for theAppellant on the other hand, argued that in view of Article 154 P(6) ofthe Constitution and that as the appeal has been lodged accordingto the rules made by the Supreme Court, under Court of Appeal(Procedure for appeals from the High Courts established by Article154 P of the Constitution) and therefore the Court of Appeal hasjurisdiction to hear the appeal. It was also submitted that the HighCourt of the Provinces (Special Provisions) Act No. 19 of 1990 doesnot take away the right of appeal granted by the Constitution andfurther it was contended that the decision in the case of PiyadasaGuneratne v. Alan Thambinayagam (Supra) has no bearing on thequestion at issue. Finally the learned Counsel referred to the case ofAbeygunasekera v. Setunga (2), where it has been held that an appeallies to the Court of Appeal from an order of the Provincial High Courtmade in the exercise of its revisionary jurisdiction.
It is to be noted that in the case of Piyadasa Guneratne v. AlanThambinayagam (Supra) what was held by the Supreme Court wasthat Section 9 of Act, No. 19 of 1990 would not confer a right of
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appeal in respect of revisionary orders of the High Court. In doing sothe Court had regard to the fact that the power of revision is anextraordinary power distinct from the appellate jurisdiction of theCourt which is a statutory right and must be expressly created andgranted by statute, and further that Section 9 of Act, No. 19 of 1990refers to orders made in the exercise of the appellate jurisdiction ofthe High Court.
In the present case we are concerned with the question whetherthe Court of Appeal has the right to entertain and hear an appealfrom an order of the High Court excising its appellate jurisdiction. Todetermine the question in issue it is necessary to examine whetherthe appellate jurisdiction of the Court of Appeal provided underArticle 138(1) of the Constitution to entertain appeals lodged in theexercise of the right of appeal granted by Article 154 P(6) of theConstitution has any limitations. To decide this matter one has tointerpret the provisions of Article 154 P(3)(b), Article 154 P(6) andArticle 138(1) of the Constitution.
Article 154 P(3) says…
“Every such High Court shall –

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”.
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Sumanadasa v. Hathurusingha (Yapa, J.)
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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.
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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.