087-NLR-NLR-V-33-WIJEYESEKERE-v.-COREA.pdf
DBIEBERG J.—Wijeyesekere e. Core a.
' 349
1931Present: Drieberg J.
WIJEYESEKEEE v. COEEA.
In the Matter of an Application for Leave to Appealto the Privv Council.
PrivyCouncil—Electionpetition—Interlocutoryorder dismissing petition
—Application for Icarctoappeal—Ceylon(State Council Elections)
Order-in-Council. 1031. Article7"—PrivyCouncil ll/ipcah Ordinance,
No. 31 of 1000. Rule -J.
Thejudicial powersconferred by Articleofthe Ceylon (State
Council Elections) Onlrr-in-t mined. 1931. on the Chief Justice or anyother Judge oftheSupreme Courthe maynominateto actin a
particular matterdonot imply ajurisdictionin theSupremeCourt
as such.
An Appeal does not lie to His Majesty in Council from an ordermadeby a Judge of the Supreme Courtactingin exerciseof such
powers.
Where a. person appliesforconditional leave toappeal to thePrivy
-Council, the notice served on the respondent must contain an intimationof the day on which such leave will be applied for.
^^PPLICATION for conditional leave to appeal to the Privy Council-
Petitioner in person in support.
H. V. Perera, for respondent.
December 23, 1931. Drieberg J.—
• The petitioner filed an election petition in which he asked for a-declaration that the respondent was not duly elected, that the electionwas void, that the petitionerwasduly elected,andfor a scrutiny.On
August 7 last, the petitionwasdismissed ontheground that itwas
presented out of time. The petitioner moved to have this order Vacatedand on November 16 his application was refused.
On November 21 the petitioner moved for conditional leave to appealto His Majesty in Council against the order of Novemebr 16.
The application must fail, if for no other reason, because the petitionerhas failed to observe the requirements regarding notice to the respondent.Eule 2 of Schedule 1 of the Appeals (Privy Council) Ordinance, No. 31 of1909, requires that ‘‘ application to the Court for leave' .to appeal shall bemade by petition within thirty days from the date of the judgment to beappealed from, and the applicant shall, within fourteen days from' the!date of such judgment, give the opposite party notice of such intendedApplication ”,
it was not stated in the petition that notice had been served, nor wasthe usual practice followed of filing a copy of the -petition with the.acknowledgment of receipt no.ted on it by the respondent’s prootor.
In answer to an inquiry by me whether he had given the respondentnotice of his application, the petitioner produced a copy of a telegram•which he says he sent the respondent on November 21 in these words: —“ Appealing Privy Council and Full Court against November 16 order ”,
350
DRIEBERG J.— Wijeyesekere v. Corea.
and a Post Office receipt of a telegram dispatched from Kochchikade■where the petitioner lives, on November 21; it is a,bare acknowledgmentof 50 cents paid for an inland or foreign telegram with no mention ofwhom it is directed to.
This affords insufficient evidence, if any evidence at all, of the receiptby the respondent of a telegram in terms of the alleged copy; even ifsuch a telegram was received by the respondent I cannot hold that itcomplies with the requirements of rule 2. The form of notice adopted inpractice includes an intimation of the day on which the petitioner willmove in the Supreme Court, and this is absolutely necessary in orderthat the respondent may be present or arrange for his representation onthe day stated or any other day to which the hearing is adjourned. A.mere notice by a petitioner that he is appealing against the order is, in.my opinion, not sufficient. '• The petitioner has elected to act without aproctor, but I cannot regard this as a reason for relaxing in any way therequirements of the rule and relieving him from the duty of showingthat the respondent has had due notice of his application.
The petitioner asked that the Court should issue notice of theapplication to the respondent but this would serve no good purpose,for the respondent has to be noticed within fourteen days of the order-sought to be.appealed from.
I do not wish, however, to base my order on this ground alone.Whether an appeal to the Privy Council will lie from such an order as-this is a question of importance and I may well deal with it.
Rule 1 (a) of Schedule 1 of Ordinance No. 31 of 1909 provides that anappeal shall lie as of right from any final judgment of the Court in certaimcases. The word “Court” is defined in section 2 of the Ordinance as meaningthe Supreme Court consisting of not less than three Judges or not less-' than two Judges or of a single Judge “ according as the matter in questionis one which by virtue of the Ordinance or Ordinances constituting the-Supreme Court or any rules made thereunder properly appertains to aCourt of not less than three Judges or to a Court of not less than twoJudges or to a single Judge ”. The Supreme Court was created by theCharter of 1833 and its jurisdiction, original and appellate, and by whatnumber of Judges that jurisdiction could be exercised is laid down inthe Charter and in the Courts Ordinance. These are the Ordinancesconstituting .the Supreme Court.
The Ceylon (State Council Elections) Order-in-Council, 1981, Article 75,in dealing with election petitions, did not bring them within thejurisdiction of .the Supreme Court; it in no way extended the jurisdictionof the Supreme Court.' What it did was to create a special tribunal forthe purpose, called the Election Judge, who is the Chief Justice or anyJudge of the Supreme Court nominated by him for the purpose.
Article 75 (5) provides for interlocutory matters connected with an1election petition being dealt with by any Judge of the Supreme Courtunless otherwise ordered by the Chief Justice. I cannot regard the judicial'powers conferred by the Order-in-Gouncil on the Chief Justice or on anyother Judge whom he may nominate or permit to act as- implying ai
DRIEBERG J.—Wijeyesekere v. Cprea.
351
jurisdiction in the Supreme Court as such, and the order sought to bo.appealed from is not an order made by the Court within the meaning ofsection 2 of Ordinance Xo. 31 of 1909.
I may here refer to the judgment of Lord Blanesburgh in the case of.Strickland v. Grima in which he deals with the Question of appeals tothe Privy Council from orders suc]i as this made by special tribunalscreated for the purpose of dealing with questions regarding elections toColonial Legislative Assemblies. Dealing with the case of Theberge v.Laudry 2, where a candidate who had been found guilty of corrupt practicesby the Superior Court of Quebec sought leave to appeal to the Privy■Council, he said ** In .that case, which dealt, a$ this does, with questionsrelating to the membership of legislative bodies, it is pointed out that^decisions upon such matters are not decisions of mere ordinary civil.rights: that such an enactment as this Article 33 creates an entirely noveljurisdiction, the history of which, in cases where the Legislative Assemblyit not itself then' created for the first time, has been that the Assemblyhas, by its own consent, concurred in vesting in the Court the jurisdictionhitherto inherent in itself of determining the status of those who claimto be its members. The jurisdiction is extremely special: it is of a.character that ought, as soon as possible, to become conclusive, in order-that the constitution of the Assembly may be distinctly and' speedily•known. There is another reason for finality in such a jurisdiction. Itconcerns what, according to British ideas, are normally the rights andprivileges of the Assembly itself, always jealously maintained and guardedin complete independence of the Crown so far as they properly exist, and,.as Lord Cairns adds in delivering the judgment of the Board in Theberge v.Laudry3, “it would be a result somewhat surprising, and hardly inconsonance with the general scheme of the legislation, if, with regard torights and privileges of this kind, it were to be found that in the last.resort the determination of them no longer belonged to the LegislativeAssembly, no longer belonged to the Superior Court which the LegislativeAssembly had put in its place, but belonged to the Crown in Council,with the advice of the advisers of the Crown at Home, to be determinedwithout reference either to the judgment of the Legislative Assembly, orof that Court which the Legislative Assembly had substituted in itsplace …. Their Lordships have to consider, not whether thererare express words here taking away prerogative, but whether there was■ever the intention of creating this tribunal with the ordinary incidentof an appeal to the Crown. ”
“ It is true that these words were spoken in a case where the special•tribunal had been created with the consent of the Legislative Assembly,and not as, in this instance, where the Assembly is itself brought' into•existence by the Letters Patent, which also confer this jurisdiction on the .Court of Appeal. But, as it appears to Their Lordships, His Majesty,in these Letters Patent is merely adopting principles, to which all LordCairns' reasoning applies. He assumes that any. enlightened Legislativebody would itself choose just such a tribunal as he himself prescribes for 1
1 (1930) A. C. 285, 296.a (1876) 2 A. C.102.
9 2 A. C. 108.
26/33
352 DRIEBERG »T.—Fonseka v. Government Agent, Central Province.
the. determination of .all such questions:accordingly, he creates a
jurisdiction in terms of finality which leave no room for any review byhimself. ”
In Strictkland v. Grima (xupra) the Malta Constitution Letters Patent,1921} Article 33, provides “ all questions which may arise as to the rightof any person to be or remain a member of the Senate or the LegislativeAssembly shall be referred to and decided by our Court of. Appeal inMalta
In connection with the observation that questions relating to themembership of Legislative bodies are not concerned with mere ordinarycivil rights, it should be remembered that under section 52 of the. Charterof 1833 appeals to the Privy Council lie of right only from rules or orders-made in civil suits or actions.
The application is refused.
Application refused.