THE YOUNG MEN’S BUDDHIST ASSOCIATION
AZEEZ AND ANOTHER
SUPREME COURTG. P. S. DE SILVA, C. J„
KULATUNGA, J. ANDRAMANATHAN, J.
S.C. APPEAL NO. 100/94
A. NO. 643/81F
C. KURUNEGALA NO. 4508/L
Computation of time – Judgment delivered on a day other than the day originallyfixed – Civil strife – Knowledge of date from newspaper report – Lex non cogit adimpossibilia – Actus curiae neminem gravabit.
"Where the judgment to appeal from which leave is sought was delivered on a dayother than that originally fixed owing to civil strife, knowledge of the date ofdelivery of judgment cannot be attributed to the exact date of a newspaper reportof the judgment. Reasonable time for verification of the report should be allowed.In view of all the facts, including conditions of civil unrest which prevailed in thecountry and the fact that the judgment was delivered on a date other than thedate which the court had fixed for delivery of judgment no lapse, fault or dSJaycan be attributed to the plaintiff – appellant in filing the application for leave toappeal late. The principle ‘lex non cogit ad impossibilia’ would apply in additionto the principle ‘actus curiae neminem gravabit'.
Cases referred to
State Graphite Corporation v. Fernando (1982) 2 Sri L. R. 590.
United Plantation Workers' Union v. Superintendent Craig Estate 74 N. L. R.499.
PRELIMINARY objection to entertainment of Appeal.
A. K. Premadasa, PC. with S. C. B. Waigampaya for appellant.
Faisz Musthapha, PC. with G. L. Geethananda for respondent.
Cur. adv. vult.
August 21, 1995.
KULATUNGA, J.This is an appeal to this Court with leave granted by the Court ofAppeal. At the hearing of the appeal Mr. Musthapha, President’sCounsel for the defendants-respondents raised a preliminaryobjection that the order of the Court of Appeal granting leave toappeal is invalid and without jurisdiction in that the application forleave to appeal was out of time. He submitted that the applicationhad been made after the expiry of the time for appeal.
In terms of Rule 21(1) of the Supreme Court Rules 1978 then inforce, an application for leave to appeal to the Supreme Court had tobe made within 14 days of the judgment from which leave to appealwas sought.
The plaintiff-appellant sued the defendants-respondents for adeclaration of title to the premises in suit and for ejectment anddamages. The defendants-respondents claimed that they werecarrying on business in partnership under the.name and style of“Abdulla & Brothers”; and that they were tenants of the premises. Uwas their position that the tenancy existed from 1940; rent receiptshad always been issued by the plaintiff-appellant in the name of thepartnership; hence there was a tenancy with the partners for the timebeiag.
The District Judge held that in the absence of clear evidence,there was no tenancy, particularly for the reason that there cannot bea contract of tenancy with a partnership, which is not a legal person.Accordingly, the Court gave judgment for the plaintiff-appellant. Thiswas reversed in appeal. The Court of Appeal held that the contract oftenancy was with the individual partners, for the time being. TheCourt allowed the appeal, set aside the judgment of the trial Courtand dismissed the plaintiff’s action.
The. appeal had been argued on 02.06.89 and judgment wasreserved for 04.08.89 on which day, it was not delivered due toconditions of civil unrest. An Emergency had been proclaimed on
It is not seriously argued that the period that followed wasnot subject to disruption of normal civil life. In this background thejudgment was delivered only on 25.08.89, in the absence of partiesor their Counsel. The Court of Appeal record does not show that thedate of the delivery of judgment was notified to the parties or theirregistered Attorneys, though it is possible that it might haveappeared in the list for that day.
The plaintiff-appellant (the Y.M.B.A., Kurunegala) states that itbecame aware of the judgment from a report in the “Ceylon DailyNews” of 06/10/89 whereupon they took steps to seek leave toappeal to the Supreme Court. The application for leave was filed on
Mr. Musthapha submits that even if time for leave to appeal has tobe computed from 06.10.89 when the plaintiff-respondent becameaware of the judgment, admittedly, the application for leave had beenfiled after 14 days from this date as well in that it has been filed on25.10.89 when it should have been filed on 20.10.89. Hence the saidapplication was invalid and the Court of Appeal had no jurisdiction toentertain it.
The Court of Appeal considered the objection and allowed leave toappeal on the. basis that the delay was “not unreasonable”. Mr.Musthapha submits that the Court adopted a wrong principle inentertaining the application, which was in breach of the mandatorytime limit for appeal. He relied on State Graphite Corporation0v.
Fernando(1) as authority for the right of a party to object to an appealon the ground that the order of the Court of Appeal granting leave toappeal is invalid. In that case this Court rejected the objection for thereason that leave had been validly granted.
Mr. A. K. Premadasa, President’s Counsel for the defendants-respondents submitted that once the Court of Appeal grants leave toappeal, this Court cannot hold that such leave was wrongly granted.In any event, he submitted that in view of the unsettled conditions inthe country, the Court of Appeal was justified in excusing the delay.In view of the decision in the State Graphite Corporation case(Supra) I cannot agree with the first submission made by Counsel.But the second submission made by him deserves consideration.
There is no doubt that the period of 14 days prescribed by Rule21(1) is mandatory and time would normally run from the date of thejudgment i.e. 25.08.89. Any delay has to be justified by theapplication of the principle “lex non cogit ad impossibilia”. Theprinciple “actus curiae neminem gravabit" also appears to beapplicable. I am of the view that in the instant case time began to runafter the plaintiff-appellant became aware of the judgment, on seeinga news report.
In United Plantation Workers' Union v. Superintendent CraigEstates (S) it was held that the day on which the order of a LabourTribunal is made (after giving the parties notice of the particular dayon which its order or decision will be made) will determine thecommencement of the appealable period of 14 days specified ins. 31D(3) of the Industrial Disputes Act. In the absence of suchnotice, no time will run against a party adversely affected by theorder till notice of such order is given to him by the Secretary of theTribunal, as required by Regulation 33 of the Industrial DisputesRegulations 1958; and an appeal (filed within 14 days of such noticegiven by the Secretary) will nevertheless be heard in accordance with ^the principle "actus curiae neminem gravabit”.
Mr. Musthapha submits that even assuming that in this case timerugs from 06.10.89 when the plaintiff-appellant became aware of thejudgment from a newspaper report, the application for leave is out of
time as it was filed after 14 days from that date. I do not think that insuch a case we can be so strict in considering the excuse for thedelay, as in the case of an appeal from a Labour Tribunal order wherethe aggrieved party officially receives a copy of the order from theSecretary of the tribunal.
Mr. Musthapha relies on the fact that the plaintiff-appellant hadknowledge of the judgment on 06.10.89 from a newspaper report. Buta newspaper report is not authentic. The plaintiff-appellant had tocome down to Colombo and verify it. He also had to obtain a certifiedcopy of the judgment. This has to be done on a working day. It isobserved that the 7th and the 8th of October, 1989 immediatelyfollowing the day on which the plaintiff-appellant read about thejudgment in a newspaper, are a Saturday and a Sunday. Those daysmust be excluded, in considering the excuse for the delay.
I am of the view that taking into consideration all the facts,including conditions of civil unrest which prevailed in the country andthe fact that the judgment was delivered on a date other than thedate which the Court had fixed for delivery of judgment, no lapse,fault or delay can be attributed to the plaintiff-appellant in filling theapplication for leave to appeal on 25.10.95; hence the principle “lexnon cogit ad impossibilia" would apply, in addition to the principle"actus curiae neminem gravabit".
For the foregoing reasons, the preliminary objection is rejectedand the appeal is set down for hearing on the merits. Costs will abidethe final decision of this case.
G. P. S. DE SILVA, C.J. -1 agree.RAMANATHAN, J. -1 agree.
Preliminary objections rejected.
} Appeal set down for hearing.