WICKRAMASEKERA v. OFFICER -IN-CHARGE ,POLICE STATION AMPARA

036-SLLR-SLLR-2004-V-1-WICKRAMASEKERA-v.-OFFICER-IN-CHARGE-POLICE-STATION-AMPARA.pdf


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Wickramasekera v Officer-in-Charge, Police Station, Ampara
(Bandaranayake, J.)
257
WICKRAMASEKERAv
OFFICER-IN-CHARGE, POLICE STATIONAMPARASUPREME COURTBANDARANAYAKE, J.
YAPA, J., ANDJAYASINGHE, J.
S.C. REFERENCE NO. 1/2003
C.A. (PHC) NO. 75/96
H.C. AMPARAI APPEAL NO. 6/95
M.C. AMPARAI NO. 48650
28 JANUARY, 19 AND 20 FEBRUARY, 2004
Constitutional Law-Article 125 of the Constitution – Jurisdiction of the Courtof Appeal under Article 138(1) of the Constitution to entertain an appeal froma decision of the Provincial High Court made in the exercise of the appellatejurisdiction of the High Court under Article 154P(3)(b) of the Constitution -Section 9 of the High Court of the Provinces (Special Provisions) Act, No. 19of 1990.
The Magistrate convicted the accused-appellant (the accused) for contraven-tion of a regulation published in the Gazette dated 26.3.1992 and ordered afine and the forfeiture of 75 cubic feet of timber from the accused.The accusedappealed to the High Court under the Code of Criminal Procedure Act. Theappeal was dismissed. From that order the accused sought to appeal to theCourt of Appeal. The question arose whether in view of section 9 of the HighCourt of the Provinces (Special Provisions) Act, No. 19 of 1990, the Court ofAppeal has .jurisdiction to entertain the appeal under Article 138 of theConstitution, read with Article 154P(6) of the Constitution.
It was argued that the Court of Appeal and the Supreme Court have concur-rent jurisdiction to entertain the appeal from the Provincial High Court.
Held:
Article 138(1) is an enabling provision which distinctly states that:
‘The Court of Appeal shall have and exercise subject to the provi-sions of the Constitution or of any law an appellate jurisdic-tion”^
The Court of Appeal does not have appellate jurisdiction underArticle 138(1) of the Constitution read with Article 154(P) 6 inrespect of the decisions of the Provincial High Court made in theexercise of its appellate jurisdiction and it is the Supreme Court that
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has appellate jurisdiction in respect of appeals from the ProvincialHigh Court as set out in section 9 of the High Court of the Provinces(Special Provisions) Act, No. 19 of 1990.
Cases referred to:
Abeygunasekera v Setunga – (1997) 1 Sri LR 62
Sumanadasa v Hathurusinghe – (1995) 2 Sri LR 17
Martin v Wijewardane – (1989) 2 Sri LR 409
Swastika Textile Industries Ltdv Thantirige Dayaratne – (1993) 2 Sri LR348
Weragama v Eksath Lanka Wathu Kamkaru Sangamaya and others -(1994) 1 Sri LR 293
Thottuvarambath Velyaudhan v Pottanyil Abuoobackeer Haji (1980)
MAD LJ (Cr) 54
Mariam Beebee v Seyed Mohamed – (1965) 68 NLR 36
Gunaratne v Thambinayagam and others – (1993) 2 Sri LR 355
Abeywardane v Ajith de Silva D.B. – (1998) 1 Sri LR 134 at 139Reference under Article 125 of the Constitution
Ranjith Abeysuriya P.C. with Kumarasiri Iddamalhena and Thanuja Rodrigo foraccused-appellant
P.P. Surasena, Senior State Counsel for respondent
Cur.adv.vult
March 30, 2004
SHIRANI BANDARANAYAKE, J.The Court of Appeal has referred this matter in terms of Articles 01125 of the Constitution as it involves interpretation of the provisionsof the Constitution.
The question in issue relates to a matter, where the accused-appellant-appellant (hereinafter referred to as the appellant) wascharged in the Magistrate’s Court of Ampara having contravenedRegulation 4 of Gazette No. 01 of 1992 dated 26.03.1992. TheMagistrate by his order, dated 02.05.1995 convicted the accusedand sentenced him to a fine of Rs. 100,000/-. Further, 2000 cubiccentimeters (75 cubic feet) of timber he had under his control was 10confiscated. From that order the appellant appealed to the High
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Court in terms of Article 154 and section 320 of the Code ofCriminal Procedure Act, No. 15 of 1979. The Judge of the HighCourt, by his order dated 30.05.1996, dismissed the appeal andaffirmed the conviction and sentence. Thereafter the appellantappealed to the Court of Appeal against the order of the High Courtin terms of Article 154P of the Constitution.
In the Court of Appeal, learned Senior State Counsel for thecomplainant-respondent-respondent (hereinafter referred to as therespondent) took up a preliminary objection that the Court of 20Appeal has no jurisdiction to entertain the appeal preferred by theappellant as it is a matter that has to be referred to the SupremeCourt in terms of section 9 of the High Court of the Provinces(Special Provisions) Act, No. 19 1990. Accordingly the Court ofAppeal referred to following question to be considered by theSupreme Court.
“Does the Court of Appeal have appellate jurisdiction interms of Article 138(1) of the Constitution read withArticle 154(P) 6 in respect of decisions of the ProvincialHigh Court made in the exercise of its – appellate juris-30
diction, or is it the Supreme Court that has jurisdictionin appeals from the Provincial High Court as set out insection 9 of the High Courts of the Provinces (SpecialProvisions) Act, No. 19 of 1990.”
Learned President’s Counsel for the appellant submitted thatthe Court of Appeal as well as the Supreme Court will have con-current jurisdiction to hear and determine appeals from theProvincial High Court in the exercise of appellate jurisdiction.
The contention of the learned President’s Counsel for the appel-lant was that in terms of Article 154(P) 6 of the Constitution, a per- 40son who is aggrieved by a decision of the Provincial High Courtwould have a right of appeal to the Court of Appeal. LearnedPresident’s Counsel submitted that in terms of the amendment toArticle 138 of the Constitution, the Court of Appeal could hear anappeal from the High Court of the Provinces, “in the exercise of itsappellate or original jurisdiction”. In support of this contention,learned President’s Counsel cited the decision in Abeygunasekerav SetungaW and Sumanadasa v HathurusingheW.
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Article 138 of the Constitution provides for the appellate juris-diction to the Court of Appeal. In terms of Article 138(1) of theConstitution,
‘The Court of Appeal shall have and exercise subjectto the provisions of the Constitution or of any law, anappellate jurisdiction for the correction of all errors infact or in law which shall be committed by any Court ofFirst Instance, tribunal or other institution and sole andexclusive cognizance, by way of appeal, revision andrestitutio in integrum, of all causes, suits, actions, pros-ecutions, matters and things of which such Court ofFirst Instance, tribunal or other institution may havetaken cognizance:
Provided that no judgment, decree or order of anyCourt shall be reversed or varied on account of anyerror, defect or irregularity, which has not prejudicedthe substantial rights of the parties or occasioned a fail-ure of justice.”
Article 138 of the Constitution was amended by the ThirteenthAmendment to the Constitution by the substitution of the words“committed by any Court of First Instance” of the words “committedby the High Court, in the exercise of its appellate or original juris-diction or by any Court of First Instance,” thus incorporating thedecisions of the High Court in the exercise of its appellate or origi-nal jurisdiction, being amenable to the appellate jurisdiction of theCourt of Appeal.
The Thirteenth Amendment to the Constitution enabled the HighCourts to be established in the provinces by virtue of Article 154(P)of the Constitution. However, no provision was made with regard tothe procedure to be followed in such High Courts. In order to pro-vide for the lacuna in the law with regard to the procedure to be fol-lowed in at the High Court of the Provinces, the High Court of theProvinces (Special Provisions) Act, No. 19 of 1990 was enactedwhich made provision “regarding the procedure to be followed in,and the right to appeal to and from, the High Court establishedunder Article 154(P) of the Constitution”.
This Act also made provision for the appeals to be brought in
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before the Court of Appeal as well as the Supreme Court from theHigh Court. Whilst section 9 of the Act refers to appeals toSupreme Court from High Court, section 11 provides for appeals toCourt of Appeal from the High Court.
Section 9 of the Act is in the following terms:
“Subject to the provisions of this Act or any other law,any person aggrieved by-
fa) a final order, judgment, decree or sentence of aHigh Court established by Article -154(P) of theConstitution in the exercise of the appellatejurisdiction vested in it by paragraph (3) ofArticle 145(P) of the Constitution or section 3 ofthis Act or any other law, in any matter or pro-ceeding whether civil or criminal which involvesa substantial question of law, may appeal there-from to the Supreme Court if the High Courtgrants leave to appeal to the Supreme Court exmero motu or at the instance of any aggrievedparty to such matter or proceedings:”
Article 154(P)(3) of the Constitution refers to the power of theHigh Court and paragraph 3(b) of the said Article reads as follows:
“Notwithstanding anything in Article 138 and subject toany law, exercise, appellate and revisionary jurisdictionin respect of convictions, sentences and ordersentered or imposed by Magistrate’s Courts andPrimary Courts within the Province;”
Section 11 of the High Court of the Provinces (SpecialProvinces) Act, No. 19 of 1990 on the other hand refers to para-graph 3(a) or 4 of Article 154(P) of the Constitution.
Paragraph 3(a) of Article 154P of the Constitution reads as fol-lows:
“Every such High Court shall –
(a) exercise according to law, the original criminaljurisdiction of the High Court of Sri Lanka inrespect of offences committed within theProvince;”
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Learned President’s Counsel for the accused-appellant in hissubmission relied on the decision in Abeygunasekera v Setunga(supra) and Sumandasa v Hathurusinghe (Supra) where theSupreme Court and the Court of Appeal respectively had taken theview that the Court of Appeal has the jurisdiction to hear an appealagainst a decision of the High Court whether by way of appeal orrevision.
Jurisdiction of the Court of Appeal to hear an appeal wasderived in terms of Article 138 read with Article 154(P) (6) of the 130Constitution. Article 154(P)(6) states that,
“Subject to the provisions of the Constitution and anylaw, any person aggrieved by a final order, judgementor sentence of any such Court, in the exercise of itsjurisdiction under paragraphs (3)(b) or (3)(c) or (4) mayappeal therefrom to the Court of Appeal in accordancewith Article 138”.
The decision in Abeygunasekera’s case (supra) was based onthe premise that the authority to entertain appeal in terms of Article154(P)(6) is restricted under Article 138 of the Constitution, which mospells out the jurisdiction of the Court of Appeal and the manner ofits exercise.
It has been decided by this Court that Article 138 which createsand grants jurisdiction to the Court of Appeal to hear appeals fromCourts of First Instance, Tribunals and other Institutions is anenabling provision (Martin v WijewardaneW- Further the decisionsin Swasthika Textile Industries Ltd. v Thantrige DayaratneW andWeragama v Eksath Lanka Wathu Kamkaru Sangamaya and oth-ers<5> clearly referred to the fact that the jurisdiction of the Court ofAppeal under Article 138 is not an entrenched jurisdiction as thisArticle is “subject to the provisions of the Constitution or of any law”. 150
An enabling provision, permits the omitted details of importanceto be carried out by means of a subsequent provision provided forthat purpose. Bindra in his work in Interpretation of Statutes (EightEdition, pg. 651) citing Thottuvarambath Velayudhan v PottanyilAbuoobacker Haj(6) states that,
“if a statute is passed for the purpose of enabling
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something to be done, but omits to mention in terms ofsome details of great importance (if not actually essen-tial) to the proper and effectual performance of thework which the statute has in contemplation, it isbeyond doubt that Courts are at liberty to infer that thestatute by necessary implication empowers that thedetails be carried out.”
Therefore the jurisdiction granted to Court of Appeal in terms ofconstitutional provisions could be exercised, in terms of the provi-sions of a subsequent amendment. The Thirteenth Amendmentwhich brought in a new judicial dimension to the then existing judi-cial structure did not vary this situation as similar provisions wereadopted in Article 154(P)(6) where it states that “subject to the pro-visions of the Constitution and any law”, an appeal could be lodgedin the Court of Appeal in accordance with Article 138. The addition-al provisions, which were necessary for the effective functioning ofthe High Courts of the Provinces were brought in by way of theSpecial Provisions Act, No. 19 of 1990.
Accordingly, the right of appeal to and from the High Courtsestablished under Article 154(P) of the Constitution will have to bedecided in terms of the provisions enlisted in High Court of theProvinces (Special Provisions) Act, No. 19 of 1990, as provided byArticle 138 as well as Article 154(P)(6) of the Constitution.
As adverted to earlier sections 9 and 11 refer to the appeals tothe Supreme Court and the Court of Appeal respectively from theHigh Court of the Provinces. Section 10 of the High Court of theProvinces (Special Provisions) Act, No. 19 of 1990 which' deal withthe powers of the Supreme Court on appeals, clearly states that theSupreme Court would exercise appellate jurisdiction vested in it byparagraph (3)(b) of Article 154(P) of the Constitution or section 3 ofthe aforementioned Act.
It is to be noted that Article 154(3)(b) of the Constitution of whichreference is made in section 9 of High Court of the Provinces(Special Provisions) Act, No. 19 of 1990, provides for the appellateas well as revisionary jurisdiction in respect of convictions, sen-tences and orders entered or imposed by Magistrate’s Courts andPrimary Courts within the Province. However, section 9 of the High
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Court of the Provinces (Special Provisions) Act does not make ref-erence to revisionary jurisdiction and deals only with appellate juris-diction.
Unlike an appeal which could be made by any party who is dis-satisfied with any judgment, decree or order pronounced in a LowerCourt except when such right is expressly disallowed, the power jn 200revision is an extra ordinary power which is quite distinct from theappellate jurisdiction. In Marian Beebee v Seyed MohamecP)Sansoni, C.J., delivering the majority decision of the DivisionalBench stated that,
“The power of revision is an extraordinary power whichis quite independent of and distinct from the appellatejurisdiction of this Court. Its object is the due adminis-tration of justice and the correction of errors, some-times committed by the Court itself, in order to avoidmiscarriages of justice. It is exercised in some cases 210by a Judge of his own motion, when an aggrieved per-son who may not be a party to the action brings to hisnotice the fact that unless the power is exercised injus-tice will result.”
In Gunaratne v Thambinayagam and others<8) the question thathad to be decided was whether there is a right of appeal from theHigh Court to the Supreme Court in the exercise of its revisionaryjurisdiction. This Court' after considering the applicability of Articles154(P)(3)(b), 154(P)(6) and sections 9 and 12 of the Act, No. 19 of1990 correctly decided that section 9 of the Act, No. 19 of 1990 220does not give a right of appeal to the Supreme Court from an orderof the High Court in the exercise of its revisionary jurisdiction.
In Abeygunasekera v Setunga and others (supra) the questionin issue was whether the Court of Appeal has the appellate juris-diction in terms of Article 138(1) of the Constitution as amended bythe Thirteenth Amendment in respect of a decision of the ProvincialHigh Court made in the exercise of. its revisionary jurisdiction.
After considering Articles 154(P)(3), 154(P)(6) 138(1) of theConstitution and section 9 of Act, No. 19 of 1990, Kulatunga, J. heldthat the Court of Appeal had jurisdiction to hear an appeal against a 230decision of the High Court whether given by way of appeal or revision.
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Discussing the aforementioned provisions in the Constitutionand the Act, Kulatunga, J. was of the view that,
“It is thus clear that the expression 'appellate jurisdic-tion’ in section 9 of Act, No. 19 of 1990 has a restrict-ed meaning. If so, this Court cannot enlarge the right ofappeal granted by that section. It is a matter forParliament. As such, I am unable to agree that thecase of Gunaratne v Thambinayagam (supra) hasbeen wrongly decided. In the instant case, we are not 240concerned with the question whether a statutory rightof appeal granted by ordinary law is subject to any lim-itation. The question is here is whether the appellatejurisdiction of the Court of Appeal under Article 138(1)of the Constitution to entertain appeals made in termsof Article 154(P)(6) is restricted and excludes thepower to entertain appeals from revisionary orders ofthe High Court. If it is so restricted then, it also meansthat the right of appeal granted by Article 154(P)(6) isrestricted by Article 138(1).”250
The Court of Appeal in Sumanadasa v Hathurusinghe (supra)had not taken into consideration the applicability of Article 125where the Supreme Court has the sole and exclusive jurisdiction tohear and determine any question relating to the interpretation of theConstitution.
In Abeygunasekera’s Case (supra) Kulatunga, J. has taken theview that Article 154(P)(6) itself has not limited the right of appealgiven by it to orders made by the High Court by way of appeal, butthat Article 154(p)(6) refers back to Article 138 which spells out thejurisdiction of the Court of Appeal and the manner of its exercise. 260
Be that as it may, it is to be borne in mind that Article 138 is anenabling provision, which distinctly states that,
‘The Court of Appeal shall have and exercise subjectto the provisions of the Constitution or of any law, anappellate jurisdiction(emphasis added).”
More importantly, in Abeygunasekera’s case the Court was ofthe view that the expression “appellate jurisdiction” in section 9 of
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Act, No. 19 of 1990 has only a restricted meaning and therefore no
consideration was given to the applicability and the effect of section9 of the High Court of the Provinces Act, No: 19 of 1990.
As has been adverted to earlier, High Court of. the Provinces(Special Provision) Act came into being in 1990 to make provisionregarding the procedure to be followed in and the right to appeal toand from the High Court established under Article 154(P) of theConstitution.
Section 9 of the High Court of the Provinces (Special Provision)Act, No. 19 of 1990 clearly specifies that any person aggrieved bya final order, judgment, decree or sentence of a High Court estab-lished by Article 154(P) of the Constitution in the exercise of theappellate jurisdiction in terms of Article 154(P)(3)(b) of theConstitution or section 3 of the Act or any other law whether it iscivil or criminal which involves a substantial question of law couldappeal to the Supreme Court.Therefore it is of vital importance thatin deciding the appellate jurisdiction from an order of the HighCourt, due consideration should be given to the provisions in sec-tion 9 of Act, No. 19 of 1990.
It is to be noted that the provisions in Article 154(P)(3)(b) andArticle 154(P)(6) of the Constitution and the provisions in section 9of Act, No. 19 of 1990 provides for a right of appeal from an orderof the High Court to the Provinces.
The cumulative effect of the provisions of Article 154(P)(3)(b),154(P)(6) and section 9 of Act, No. 19 of 1990 is that there is a rightof appeal to the Supreme Court from the High Court established interms of Article 154(P) of the Constitution in the exercise of theappellate jurisdiction. In fact in Abeywardane v Ajith de SilvaW afive Judge Bench of this Court, while deciding that a direct appealdoes not lie to the Supreme Court from the order of the High Courtin the exercise of its revisionary jurisdiction, stated that,
“The cumulative effect of the provisions of Articles154(P)(3)(b), 154(P)(6) and section 9 of Act, No. 19 of1990 is that, while there is right of appeal to theSupreme Court from the orders, etc, of the HighCourt established by Article 154(P) of theConstitution in the exercise of the appellate juris-
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diction vested in it by Article 154(P)(3)(b) or section3 of Act, No. 19 of 1990 or any other law, there is noright of appeal to the Supreme Court from the orders inthe exercise of the revisionary jurisdiction (emphasisadded).”
For the foregoing reasons, the question referred to this Court bythe Court of Appeal is answered as follows:
“The Court of Appeal does not have appellate jurisdic-tion in terms of Article 138(1) of the Constitution readwith Article 154(6) in respect of decisions of theProvincial High Court made in the exercise of its appel-late jurisdiction and it is the Supreme Court that hasthe jurisdiction in respect of appeals from theProvincial High Court as set out in section 9 of the HighCourt of the Provinces (Special Provisions) Act, No. 19of 1990.
In all the circumstances of this case, there will be no costs.
YAPA, J.-I agree
JAYASINGHE, J. -I agree
Reference answered in the negative.
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