Destiny had different plans for Tivanka - Part 2

Continued from 17.03.07

The action thus taken was essentially based on a pragmatic consideration. The backlog was split in half by the appeals filed in the later years, where no steps have been taken to retain counsel being transferred to the Provincial High Courts and the appeals of the preceding 5 years being retained in the Court of Appeal, since some preliminary steps have been taken in many of these matters.

As regards Applications in Revision and Interlocutory Appeals the Court of Appeal has retained all pending matters for determination by that Court and the President of the Court of Appeal has made an order, in terms of Section 5D(1) to transfer on only applications filed after 1.3.2007, to the Provincial High Courts.

The transfer is prospective, since in revision matters and interlocutory appeals counsel have already been retained and preliminary steps taken and a transfer would put the litigant to a further travail of having to retain counsel before the High Court once again.

I have to now deal with the second matter referred above with regard to right of parties to invoke the jurisdiction of the Appellate Court. In regard to appeals, this is considered a right of appeal and as regards revision application this is considered as locus standi, since revision is not restricted to a party in the original action.

It had been contended in the past that if a Court is vested with the appellate and revisionary jurisdiction it carries with it a right of party to invoke such jurisdiction. In the case of Martin vs Wijewardena 1989 2 SLR page 409, a Divisional Bench of the Supreme Court considered this question, and it was held that;

"A right of appeal is a statutory right and must be expressly created and granted by statute. It cannot be implied. Article 138 is only an enabling Article and it confers the jurisdiction to hear and determine appeals to the Court of Appeal. The right to avail of or take advantage of that jurisdiction is governed by the several statutory provisions in various legislative enactments."

In relation to the High Courts of the Provinces as well, there should be a specific right of appeal in a party.

Section 5A(2) of Act No. 54 of 2006, addresses this issue and provides that the sections in the Judicature Act No. 2 of 1978 (Section 23 and 27), which deals with the right of appeal to the Court of Appeal would be read and construed as including a reference to the Provincial High Court and that 'any person aggrieved by any judgement, decree or order of the District Court or Family Court may invoke the jurisdiction of the Provincial High Court established for that purpose.

Similarly as regards Revision this section provides inter alia that Section 753 of the Civil Procedure Code which deals with the revisionary power of the Court of Appeal would apply to the Provincial High Court.

Thus the legislative scheme of Act No. 54 of 2006 avoids a laborious exercise of enacting a new law with regard to the right to invoke the jurisdiction and adopts a simple method of making the same law as in relation to the Court of Appeal applicable to the High Courts.

This necessarily leads me to the final matter to be considered with regard to the time limits and procedure.

As stated above Section 5A(2) of Act No. 54 of 2006 makes all the relevant provisions of the Civil Procedure Code and Rules of the Supreme Court (being written law in terms of the definition in Article 170 of the Constitution) applicable in relation to Court of Appeal to be operative in relation to the Provincial High Courts that is now vested with concurrent jurisdiction.

This would avoid the long process of argument which arises when new procedures are created. The procedures have been applicable for more than two decades in regard to the Court of Appeal and the law that has been settled by several judgements would facilitate easy disposal of matters in the Provincial High Courts without undue delay arising from arguments with regard to matters of procedure.

I would now deal with certain specific matters of significance in regard to the appellate and revisionary jurisdiction in civil matters, which as noted above would be in common as to both the Court of Appeal and the Provincial High Courts. There are basically two types of appeals;

(i) final appeals - appeals from judgments or orders having the effect of a final judgement.

(ii) interlocutory appeals - appeals from orders not being in the nature of a judgment as specified above the distinction between a judgement and order is contained in the definition of the two terms in Section 754(5) of the Civil Procedure Code.

The definition in a sense tags the question, since a judgement is defined as including an order having the effect of a final judgement. Therefore the mere terminology contained in the particular decision describing it as judgement or order is not the deciding factor. The deciding factor is its effect.

The procedure with regard to the filing of the two types of appeals are entirely different leading to objections being raised that the wrong procedure has been followed and the rejection of appeals.

Hence the question whether the decision has the effect of a final judgement has to be carefully considered at the outset. Siriwardena vs Air Ceylon Ltd., 1984 1 SLR page 286 is a leading decision on this matter. The Supreme Court specified the following four criteria to determine whether the decision has the effect of a final judgement, they are.

i) It must be an order finally disposing of the rights of the parties;

ii) The order cannot be treated as a final order (judgement) if the suit or the action is still left alive for the purpose of determining the rights and responsibilities of the parties in the ordinary way;

iii) The finality of the order must be determined in relation to the particular suit;

iv) The mere fact that a cardinal point in the suit has been decided or even an important issue determined in the case is not enough to make an order a final one.

In the particular case the impugned decision of the District Court was one where an amendment of a decree was allowed. The appellant considered this to be an order and filed an interlocutory appeal.

It was held following the criteria stated above that the order had the effect of a final judgment and the proper procedure should have been to have filed a final appeal in the matter. This decision brings into sharp focus the need to have a clear perception of the two terms "Judgement" and "Order" as defined in Section 754(5).

Over the years a cursus curiae has evolved that in all matters with regard to amendment of pleadings, issues, admission of evidence and writs of execution the proper procedure is by way of an interlocutory appeal.

Having dealt with the issue as to the distinction between a judgment and an order I would now deal with briefly the procedure of a final appeal from a judgment which is lodged in the original Court itself.

This is a two stage procedure, firstly a notice of appeal has to be filed within 14 days (Section 754(4)). In computing the period of 14 days the date the judgement is pronounced, Sundays and public holidays and the date on which the notice is presented are excluded in computing the period. There has been a dispute as to whether Saturdays are to be excluded.

The decision in Dharmadasa vs Kumarasinghe 1981 2 SLR page 113 that Saturdays are to be included in computing the period of 14 days was overruled in Natchiya vs Marikkar - 1982 2 SLR page 714.

Thus Saturdays are to be included in calculating the period of 14 days. However, since the day of presenting the notice is excluded, a question arises when the 14th day, a Friday a notice presented on the next Monday is valid. In Sri Lanka State Trading (Consolidated Exports) Corporation vs Dharmadasa - 1987, 2 SLR page 235, it was held that a notice presented on Monday is out of time, since the intervening Saturday although a non-working day has to be included in calculating the period of 14 days.

This view has been departed from in the decision in Selenchina vs Mohamed Marikkar - 2000 3 SLR page 100. The basis of this decision is that Saturday being a non-working day the notice cannot be presented on that day and the notice presented on the following Monday is valid.

The contents of the notice of appeal are contained in Section 755(1) of the Civil Procedure Code. The notice has to be signed by the appellant or his registered attorney. It was held in the case of Seelawathie vs Jayasinghe - 1985 2 SLR page 266, and Hameed vs Deen 1988 2 SLR page 1, that where proxy had been filed by the appellant in the original court, the notice of appeal must necessarily be signed by the registered attorney and that it is invalid if signed by the party personally.

In Samaranayake vs Meddewatte - 1991 2 SLR at page 495 it was held that where the registered attorney is incapacitated from signing due to illness, it was proper for his name to be written by another attorney, with his consent.

Section 754(4) empowers the original court to reject a notice of appeal that is not in compliance of the said provisions.

There is also a requirement that the notice of appeal should be accompanied by security for the Respondent's costs (section 755(2)(a)) and that such security should be hypothecated in favour of the Respondent (section 756(1)) There are no rules of the Supreme Court with regard to security and the rules made under the Administration of Justice Law on 17.12.1973 are applicable and where the cause of action is Rs. 10,000 or more the security is Rs. 750.

It was held in the case of Martin vs Duduhamy - 1991 2 SLR page 279 that the requirement to hypothecate security is peremptory but that the omission may be excused in terms of Section 759(2). It is incumbent on the appellant to place necessary material before the Court and invite the exercise of its discretion in this regard. If the appellant fails to do so the appeal may be rejected.

The second stage of a final appeal is to file a petition of appeal within 60 days of the judgement. The petition is also filed in the original court (Section 755(3) and (4)). The petition has also to be signed by the registered attorney if there had been a proxy. All days are taken into account in computing 60 days, other than the date of the judgment.

If a person has no right of appeal in the matter this has to be brought to the notice of the original Court and in terms of proviso to section 755(5) the judge has to express his opinion thereon and submit the petition to the President of the Court of Appeal to be decided in the manner stated in the proviso. Regrettably, this expeditious procedure is not availed of when the right of appeal is disputed.

I would now deal with the matter of interlocutory appeals where the procedure is completely different. There is no right in a party to an interlocutory appeal and as such the procedure is by way of leave.

Hence the aggrieved party has to present the petition for leave in the Court of Appeal and now in the relevant Provincial High Court. (Section 757(1). The petition has to be supported with an affidavit and presented within a period of 14 days of the order. The computation of the period is on the same basis as stated above.

There has been a significant amendment effected by Act. No. 38 of 1998 as regards the procedure of an application for leave to appeal. The previous procedure was for the application to be supported and notice to issue.

After the amendment in terms of Section 757(2) the Registrar issues notice immediately upon the petition being field indicating the date on which the Respondent would be heard in opposition to the application for leave.

Previously, an application for interim relief could not be included in a leave to appeal matter and as such the party had to duplicate the procedure by filing a separate Revision applications to secure interim relief. The amendment provides that an application for interim relief may be included in the petition for leave to appeal.

The section is silent as to the manner in which the application for interim relief has to be considered. However, it is to be noted that Rule 2(1) of the Court of Appeal (Appellate Procedure) Rules of 1990 would apply in the matter of interim relief. This is a general provision and should be applicable in such an instance.

This requires that every application for interim relief shall be made with notice to the adverse party and where no such notice has been given the court may grant interim relief only if the matters referred to in the proviso are satisfied and that too limited only to a period of 2 weeks.

After leave to appeal is granted all proceedings in the original court are stayed, unless the Court of Appeal or the High Court directs otherwise. (Sections 757(5). By the amendment effected by Section 16 of Act No. 2 of 1990, proviso was included in regard to applications for leave to appeal in matters under the Debt Recovery (Special Provisions) Act No. 2 of 1990, where there is no automatic stay and the Court may order a stay only upon the appellant giving security in cash or by way of a guarantee to satisfy the entire claim or part of the claim as deemed appropriate by the Court.

Section 759(2) contains a general provision to cure any mistake, omission or defect on the part of an appellant in complying with the provisions referred to above other than the time limits. A special application has to be made for such cure by the party in default and it is granted only if the Respondent has not been materially prejudiced.

As regards default as to time a special application has to be made in terms of Section 765 for an appeal notwithstanding lapse of time.

Three matters have to be satisfied to secure relief - they are;

i) that the party was prevented by causes not within his control from complying with the period;

ii) that there is good ground of appeal;

iii) that nothing has occurred since the date of the decree to render it inequitable to the judgement creditor.

The aspect of Revision is characterized by a qualification that it is a discretionary jurisdiction power cannot be invoked as of right. Therefore a primary question arises as to whether revision will lie where an alternative remedy by way of appeal is available.

The leading judgement on this aspect is that in Rustom vs Hapangama reported in 1978-79-80 1 SLR page 352. The test is whether there are special circumstances that warrant the exercise of such jurisdiction. Hence special circumstances that warrant the exercise of revisionary jurisdiction should be pleaded and supported in the application.

The procedure in such an application is not contained in the Civil Procedure Code and is governed by Rule 3 of the Court of Appeal (Special provisions) Rules 1990. The procedure is by way of petition supported by an affidavit and accompanied by original documents or certified copies "material" to the application.

Such an application has first to be supported for notice and is liable for dismissed for non compliance with the rules. In the case of Kiriwanthe vs Navaratne 1992 SLR page 393 it was held that the rules must to be complied but law does not require or permit an automatic dismissal of the application for default. However, an excuse or explanation for the default may be pleaded and considered before an order of dismissal is made.

I would now deal with certain general matters with regard to the basis of review exercised by the Appellate Court. The underlying principle is that a judgement will not be reversed or varied solely on the basis of any error, defect or irregularity. The Appellate Court has to consider its impact.

The proviso to section 5A(2) of Act No. 54 of 2006 contains the same provision as in the Constitution, that no judgment or decree of the District Court be reversed or varied on account of any error, defect or irregularity which has not prejudiced the substantial rights of the parties or occasioned failure of justice.

As regards the review of findings of fact the decision in De Silva and others vs Senaratne 1981 2 SLR page 7 contains useful guidelines as to when findings on questions of fact can be reversed by the Appellate Court. There are also such guidelines contained in the judgment in the case of Collettes vs Bank of Ceylon 1984 2 SLR 253.

In conclusion I wish to state that I have taken pains to set out some of the vital matters with regard to jurisdiction and procedure at a juncture when we shift the hearing of civil appeals hitherto based only in Colombo to the Provinces. There are also training programmes for judges and lawyers, all to ensure that the quality of justice would not be impaired by the steps we take.

Finally I wish to state that this event rekindles the memory of Tivanka, a close personal friend for well over 20 years. He joined the Attorney General's Department in 1969 shortly after my entry there.

We maintained at all times the best of relations January of 1988 was a watershed period for both of us. I was awaiting an appointment to the Court of Appeal and he was awaiting his call to the Inner Bar.

We were notified of our respective appointments at about the same time and excitedly discussed as to how we should celebrate the elevation of our respective careers. His swearing in as President's Counsel took place on the 29th January and the ceremonial welcome to me in the Court of Appeal was on the 1st February. Sadly, he could not attend my ceremonial welcome to which he was looking forward with the same anxiety as that of his call to the Inner Bar.

I would conclude by wishing Tivanka freedom in his passage through samsara.