FERNANDO, P.—United Industrial, Local Government and General Workers' 241
Union v. Independent Newspapers Ltd.
[In the Court of Appeal of Ceylon]
1972 Present: Fernando, P., Sirimane, 3., Samerawlckrame, 3.,and Siva Supramanlam, J.UNITED INDUSTRIAL, LOCAL GOVERNMENT ANDGENERAL WORKERS’ UNION, Applicant, andINDEPENDENT NEWSPAPERS LTD., Respondent
Application No. 9 of 1972S. C.109/1970—L T. Colombo, 2/31623
Court of Appeal—Leave to appeal thereto from a Supreme Court judgment involvinga question of general or public importance—jurisdiction to grant it in respectof a judgment delivered prior to 15th November 1911—Meaning of expression“judgment"—Court of Appeal Act, No. 44 of 1971. ss. 8 (1) (a),' 18—Interpretation of statutes—Two rules of construction—Retrospective legislationaffecting matters of procedure—Validity.
Leave to appeal under section 8 (1) (d) of the Court of Appeal Act on a questionof general or public importance may be granted by the Court of Appeal not onlyin respect of a judgment delivered by the Supreme Court on or after 15thNovember 1971, which was the day whon the Court of Appeal cameinto operation, but also in respect of a judgment delivered shortly prior to thatdate.
Where, in interpreting an enactment, two constructions are possible one ofwhich will cause injustice and the other will avoid that injustice and willkeep exactly within the purpose for which the enactment was made, the Courtwould adopt the second and not the first of those constructions.
A general rule is that a word is considered to be used throughout a statute inthe same sense. Accordingly, in order to understand the meaning of theexpression “judgment” in Section 8 (1) (d) of the Court of Appeal Act, themeaning of the expression “ judgment or order ” in Section 18 of that Actmay be considered.
Legislation affecting matters of procedure (e.g., venue) may be retrospective.
APPLICATION for leave to appeal from a judgment of theSupreme Court.
Nimal Senanayake, with Melvin Silva and Miss S. M. Senaratiie, forthe applicant.
Sinha Basnayake, with V. Basnayake, for the respondent.
Tennekoon, Q.C., Attorney-General, with H. A. O. de Silva, SeniorCrown Counsel, as Amicus Curiae.
Cur. adv. milt.
April 24, 1972. Fernando, P.—
This is an application by a trade union seeking to appeal from ajudgment of the Supreme Court, delivered on October 13, 1971,.varyingan award made by a Labour Tribunal.
242 FERNANTDO, P.— United Industrial, Local Government and General Workers'
Union v. Independent Newspapers Ltd.
Section 8 (1) (d) of the Court of Appeal Act, No. 44 of 1971, vesta in thisCourt a discretion to grant leave to appeal from any judgment of theSupreme court given in the exercise of its appellate jurisdiction in any-civil cause or matter in which is involved, in our opinion, a question ofgeneral or public importance.
Mr. Basnayake, for the employer-respondent, specifically stated at thehearing that he did not seek to argue that an application made to aLabour Tribunal in terms of Section 31B of the Industrial Disputes Actis not a “ civil cause or matter
We were satisfied, after Rearing Counsel on the point, that the appealdoes involve a question of general and public importance, viz., the scopeof the jurisdiction and powers of the Supreme Court where an appeal tothat Court is limited to consideration and decision of questions of law.Mr. Basnayake has, however, submitted that the jurisdiction vested in theCourt of Appeal under Act No. 44 of 1971 does not extend to the grantingof leave to appeal from judgments of the Supreme Court delivered beforeNovember 15, 1971, which was the date on which the Act came intooperation, and we must therefore examine this submission. As theimportance of the point raised by him is not confined to the presentapplication, we invited the Attorney-General to assist us thereon, andwe would take this opportunity of thanking him for his ready andvaluable assistance.
Inasmuch as Part II of the Court of Appeal Act was not in operationtill November 15, 1971, Mr. Basnayake submitted that the applicant hada right, between the date of delivery of the judgment of the SupremeCourt and the date of the operation of the new Act, to seek any remedy hehad by way of an appeal to Her Majesty in Council. He contended thatthe legislature could not have contemplated two Courts (the Privy Counciland the Court of Appeal) having concurrent jurisdiction. As to this, itseems to us that while the Privy Council could have entertained an appeal(provided the applicant had also obtained either the statutory leave orspecial leave to appeal) up to November 14, 1971, the day before ActNo. 44 of 1971 came into operation, the new Court of Appeal could nothave considered any question of leave to appeal until November 15, 1971,which was the earliest day the Court of Appeal could have been established.There were, therefore, no two Courts in existence which could haveentertained the applications at one and the same time.
Reference was made to a certain decision 1 of the Privy Council onappeal from the Supreme Court of Canada and a number of decisions ofthe Privy Council as well as of Indian Courts in regard to questions thatarose as a result of the abolition in Canada and India of the right to prefer, appeals to the Sovereign in Council. We did not consider it necessary toanalyse these decisions because neither in Canada nor in India was thelegislation of the same pattern as in our Court of Appeal Act. While in
» (1947) A. O. 127.
FERNANDO, P.—United Industrial, Local Government and General Workers' 243
Union v. Independent Newspapers Ltd.
Canada the jurisdiction of the Privy Council to hear pending appeals wasspecially preserved, in India its Constitution made provision for thetransfer of those appeals to the new Federal Court.
It is now well-established that a right to appeal is in the nature of avested right, and that legislation which takes away that right is not onedealing only with procedure. All counsel reminded us of the words ofLord Macnaghten, in Colonial Sugar Refining Company v. Irving1, that“ to deprive a suitor in a pending action of an appeal to a superior tribunalwhich belonged to him as of right is a very different thing from regulatingprocedure. In principle, their Lordships see no difference betweenabolishing an appeal altogether and transferring' the appeal to a newTribunal. In either case there is an interference with existing rightscontrary to the well-known general principle that statutes are not to beheld to act retrospectively unless clear intention to that effect ismanifested”. We would observe, with respect, that a judgment of aFull Bench of the Madras High Court stated the relevant principlecorrectly when Rajamannar C.J. in. Veeranna v. China Venkanna2 statedthat—
“ It must now be taken as well established that the institution of the'suit carried with it the implication that all appeals then in force arepreserved to the parties thereto till the rest of the career of that suit.But there are exceptions to the application of this rule. One exceptionis where by competent enactment such right of appeal is expressly orimpliedly taken away with retrospective effect. Another exception is .that a right of appeal is lost if the Court to which an appeal then lay,that is, at the time of-the institution of the suit, is subsequentlyabolished.”
If the position here had merely been an abolition of the right to preferappeals (whether directly or after obtaining leave) to the Privy Council,then Mr. Basnayake’s contention would have been well-founded. ButAct No. 44 of 1971, which terminates the jurisdiction in Ceylon of thePrivy Council has also set up this new Court of Appeal. After the Actcame into operation no appeal to Her Majesty in Council was available tothe applicant. That being so, the grant of an appeal to this Court, ifSection 8 (1) does grant it, can hardly be said to involve interference witha vested right of appeal and therefore to require express enactment. Theposition in this matter is different to that in the Colonial Sugar RefiningCompany case. There, if the provision for appeal to the High Court ofAustralia had applied to the action, it would have taken away the rightof appeal to Her Majesty in Council which was otherwise available. Butif, upon a proper construction, Section 8(1) gives an appeal in this case itdoes not take away a right of appeal to Her Majesty in Council for otherprovisions of the Act make such an appeal unavailable. It would , infact give an appeal where no appeal would otherwise be available.Rightly apprehended, it seems to us that the question before us cannot
1 (1905) A. O. at 372.* A. I. R. (1958) Mad. at 880.
244 FERNANDO, P.—United Industrial, Local Government and General Workers'
Union v. Independent Newspapers Ltd.
be determined by attempting to decide whether Section 8 of Act No. 44of 1971 has or has not retrospective operation. The essential questionis: What is the meaning of the expression “judgment” appearing inclause (d) of Section 8 (1) of the Act ?
The legislature, if it intended to restrict the right of aggrieved personsto appeals against judgments delivered after the Act came into operation,could without any difficulty have made its intention obvious by the useof appropriate qualifying words. In the absence of any qualification,we see little justification ourselves to place a restriction on the right ascontended for by the respondent.
Assuming that the applicant could have obtained the statutory leave toappeal under the Privy Councils (Appeals) Ordinance, it had a bare 32days in which not only to obtain that leave from the Supreme Court, butalso to have its appeal registered in the office of the Privy Council. Itis undeniable, if one has regard to the relevant Pules of the Privy Councils(Appeals) Ordinance, that the time available was insufficient for it to havepursued the question of statutory leave. There was no time limit inthe matter of the granting of special leave by the Privy Council itself, butthere again it would be unreasonable to conclude that it could haveobtained a hearing of its application by the Privy Council before the dateof the operation of the Court of Appeal Act. The legislature must bepresumed to have been aware of these difficulties. In these circumstancesit is not inappropriate for us to consider the application of a well-acceptedprinciple of interpretation which was stated by Lord Cairns in Hill v. Eastand West India Dock Company1 in the following words :—
“Where there are two constructions, the one of which will do, as itseems to me, great and unnecessary injustice, and the other of whichwill avoid tEat injustice, and will keep exactly within the purpose forwhich the statute waa-passed, it is the bounden duty of the Court toadopt the second and not to adopt the first of those constructions.”
In Maxwell’s Interpretation of Statutes (11th ed., at page 193) the sameprinciple is enunciated in this way :—
“A sense of the possible injustice of an interpretation ought not toinduce judges to do violence to well-settled rules of construction, butit may properly lead to the selection of one rather than the other oftwo reasonable interpretations. Whenever the language of the legisla-ture admits of two constructions and, if construed in one way, wouldlead to obvious injustice, the Courts act upon the view that such aresult could not have been intended, unless the intention had beenmanifested in express words.”
We think that to place on the expression “judgment” the restrictivemeaning of a judgment delivered on or after the date the new Act cameinto operation would be to work injustice on persons like the applicantwho immediately before the time the Act came into operation had certain
• L. R. (1884) 9 A. 0. at 466.
FERNANDO, P.—United Industrial, Local Government and General Workers' 245
Union v. Independent Newspaper a Ltd.
rights vested in them to pursua remedies before another Court, but who,immediately after that Act came into operation, lost those rights byreason of the abolition of the jurisdiction of that Court if they are leftwithout the benefit of recourse to the Court that was, for all practicalpurposes, its substitute.
What compelling reason is there to think that the legislature intendedto deprive a small class of persons who had, before the date of the operationof the Court of Appeal Act, certain remedies of appeal to the PrivyCouncil open to them of those remedies without also providing analternative remedy ? We are not unmindful in this context of the factthat in the case of appeals in civil causes or matters (clause (d) of Section8 (1)), the remedy provided for in the new Act is of a more limited naturethan that previously enjoyed ; but that is a result of the expression ofthe will of the legislature, and therefore can make no difference to theapplication in cases like that now before us of the principle abovereferred to. Moreover, since the expression “judgment” in the severalclauses of Section 8 (1) must obviously have one and the same meaning,if the meaning contended for by the respondent is the right one, we haveonly to consider the plight of an unfortunate person who had, say, on theday before the Act came into operation, had his appeal against a convictionfor murder and sentence of death dismissed by the Court of CriminalAppeal to conclude that it is wholly unreasonable to infer that thelegislature intended to deprive that unfortunate person of a right he hadenjoyed on the day of the dismissal of his appeal leaving him withouta possibility of access to the substitute Court.
Yet another approach to the question v.e have to consider on thisapplication, an approach suggested to us by the learned Attorney-General,commended itself to us as being appropriate. That was an approachon the basis of the construction of identical expressions appearingin a statute which was well-expressed by Jessel M R. in Spencer v.Metropolitan Board of Works1 in the following words
“We ought to find out the meaning (of the section) from the sectionitself. -If we cannot, then I agree with the principle that as ageneral rule a word is to be considered as used throughout an Act ofParliament in the same sense, and that therefore we may lookthrough the other sections to see in what sense the word is there used.”
Commending the application of this ride of construction to the situationwe have here, the learned Attorney-General pointed out that the expression<“ judgment or order ” as used in Section 18 of the Act undeniably includesjudgments or orders delivered both before as well as after Act No. 44of 1971 came into operation. He therefore suggested that the legislaturecould not. have intended to place a different meaning on the expression“ judgment ” where it occurs in Section 8. That approach has the merit
(1382) 22 Ch. D. at 162.
Qunaaekera v. De Fonseka
not only of not violating the principle governing the vested substantiveright to appeal but also of recognising the rule of construction thatlegislation affecting matters of procedure (e.g.. venue) may be retrospective.
The expression “judgment” in clause (d) of Section 8 (1) of the Courtof Appeal Act covers, in our opinion, not only judgments deliveredon or after the day that Act came into operation but extends to thosedelivered prior to that date. We are not unmindful of the situationsthat can arise if endeavours are made to appeal or to apply for leaveto appeal to this Court in cases where judgments have been deliveredlong before the day above referred to, but there are other considerationswhich can govern our approach to any such endeavour, and it wouldbe quite unprofitable to enlarge here upon the nature of thoseconsiderations.
We would grant leave to appeal as prayed for, with costs to theapplicant.
UNITED INDUSTRIAL, LOCAL GOVERNMENT AND GENERAL WORKERS’ UNION, Applicant, and I