Legal Services and Laws of Sri Lanka


SLR-1997 Vol.1-P88

SLR - 1997 Vol.1, Page No - 88
MALEGODA
v.
JOACHIM
SUPREME COURT.
G. P. S. DE SILVA, C.J.,
PERERA, J. AND
WIJETUNGA, J.
S.C. APPEAL NO. 110/95
H. C. COLOMBO NO. 33/91
M.C. COLOMBO NO. 65573
NOVEMBER 20, 1996.

Appeal - Jurisdiction of the High Court to entertain an appeal - Right of Appeal - Urban Development Authority Law No. 41of
1978 as amended, Sections 19D(1) and 19H(1) - Article 154P(3) (b) of the Constitution.

The appellant appealed to the Court of Appeal against an order made by the Magistrate in proceedings under Section 19D(1)of
the Urban Development Authority Law No. 41 of 1978, as amended by Act No. 41 of 1988. TheAppealwhichwasfiledinthe
Magistrate's court was forwarded to the High court of Colombo . The High Court Judge heard the appeal.

Held:
As at the date the appeal was filed, the appellant's statutory right of appeal was to appeal to the CourtofAppeal,hence
the High Court had no jurisdiction to hear and determine the appeal. Article 154P(3) (b) of the Constitutiononlyconferred
forum jurisdiction to hear appeals but does notcreateacorrespondingrightinanypersontoinvoketheappellate
jurisdiction. A right of appeal is a statutory right and must be expressly created and granted by statute.

Cases referred to:
1.Gunaratne v. Thambinayagam (1993) 2 Sri LR 355, 360.
2. Martin v Wijewardena (1989) 2 Sri L.R. 409.
3. Perera v The Commissioner of National Housing 77 NLR 361 at 366.

APPEAL from the judgment of the High Court of Colombo.
Faisz Musthapha, PC., with Amarasiri Panditharatne for appellant.
Romesh de Silva, PC., with Harsha Amerasekera for substituted respondent.

December 16, 1996
G. P. S. DE SILVA, C.J.,
The predecessor of the substituted petitioner-respondent instituted these proceedings in the Magistrate's Court intermsof
section 19D (1) of the Urban Development Authority Law No.41of1978asamendedbytheUrbanDevelopmentAuthority
(Amendment) Act
No. 41 of 1988 to eject the appellant and two others from unit (F) 132 of the 1st floor ofthecondominiumpropertynamed
Liberty Plaza. The Magistrate by his order dated 6.4.90 allowed the application and made absolute the order nisi.

The appellant filed in the Magistrate's Court a petition of appeal against the order of the Magistrate. Itistobenoted
that the petition of appeal was addressed to the Court of Appeal. The journal entry dated 18.4.90 shows thattheMagistrate
had made order (1) "accept appeal" (2) "enter in appeals register", (3) "forward to the High Court, Colombo, forpreparation
of briefs to be transmitted to the Court of Appeal" - (vide J. E. 18.4.90). It is Common groundthattheappealhadbeen
lodged in the Magistrate's Court on the 18th April 1990. However, the appeal was by an error, listed for argument beforethe
High Court of the Western Province (Colombo). Written submissions were filed, oral submissions were madeon22.3.95before
the High Court and the High Court on 24.5.95 dismissed the appeal.
The appellant filed an application for special leave to appeal to this court against the order of the HighCourtandleave
was granted on the following matters:- (a) Did the High Court havejurisdictiontotakecognizanceofand/orhearand
determine the appeal from the order of the Magistrate's Court(b) if not, should this matter be referredtotheCourtof
Appeal for decision in respect of the appeal against the order of the Magistrate's Court?
It was the submissions of Mr. Musthapha for the appellant that the High Court had no jurisdiction to hear anddeterminethe
appeal. With this submission I agree. The right of appeal against an ordermadeinproceedingsundersection19D(1)is
conferred by section 19H(1) of the amending Act No. 41 of 1988. Section 19H(1) is in the following terms:-"Anypersonwho
is dissatisfied with an order under section 19E(3) or 19F(1) by a Magistrate's Court may before the expiry of a period of14
days from the date of such order, appeal to the Court of Appeal against such order." It is clear therefore that the rightof
appeal was to the Court of Appeal and not to the High Court.

It is true that Article 154P (3) (b) of the Constitution enacts that a High Court for eachProvinceshall"notwithstanding
anything in Article , 138 and subjecttoanylaw,exercise,appellateandrevisionaryjurisdictioninrespectof
convictions, sentences and orders entered or imposed by magistrates Courts and Primary Courts within the provinces." Butthe
point to be noted is that while Article 154 P confers appellate jurisdiction on the High Court (forumjurisdiction)yetit
does not create a corresponding right in any person to invoke the appellate jurisdiction. It iswellsettledlaw"thata
right of appeal is a statutory right and must be expressly created and granted by Statute." Gunaratnev.Thambinayagamand
Others(1). The right of appeal to a High Court for each ProvincefromordersmadebyMagistratesCourtswasexpressly
created and granted by section 4 of the High Court of the Provinces (Special Provisions) Act No. 19 of 1990.ThisActcame
into operation only on the 15th of May 1990. Therefore on the 18th of April 1990, which was the date onwhichthepetition
of appeal was filed in the Magistrate's Cwt, there existed no right of appeal to the High Court established byArticle154P
of the Constitution.

Mr. Musthapha cited the case of Martin v Wijewardena (2), which is of relevance to the matters in issue in this appeal.That
was a case where the following preliminary question of law arose for consideration:- "Does Article 138oftheConstitution
confer any rights on any aggrieved person to appeal to the Court of Appeal from any order made by the AssistantCommissioner
of Agrarian Services in terms of section 18(1) of Act No. 58 of 1979 when such a right has notbeenspecificallyconferred
by Statute?".

Jameel J., having set out the provisions of Article 138 expressed himselfinthefollowingterms:-"Article138isan
enabling provision which creates and grants jurisdiction to the CourtofAppealtohearappealsfromcourtsoffirst
instance, tribunals and other institutions. It defines and delineates the jurisdiction of the Court of Appeal. Itdoesnot,
nor indeed does it seek to create or grant rights to individuals viz-a-viz appeals. it only deals withthejurisdictionof
the Court of Appeal and its limits and its limitations and nothing more. It does not expressly nor by implicationcreateor
grant any rights in respect of individuals (at page 413)... Article 138 is onlyanenablingArticleanditconfersthe
jurisdiction to hear and determine appeals to the Court of Appeal. The right toavailofortotakeadvantageofthat
jurisdiction is governed by the several statutory, provisionsinvariousLegislativeEnactments."(atpage419).This
reasoning would apply with equal force to the conferment of jurisdiction on the High Court established byArticle154P.As
stated earlier, the right of appeal to a High Court of the Province was conferred only by the HighCourtoftheProvinces
(Special Provisions) Act No. 19 of 1990 which was brought into operation on a date subsequent to the filing ofthepetition
of appeal in this case.
Mr. Romesh de Silva for the respondent stressed the fact that no objection to the jurisdictionoftheHighCourtofthe
Western Province to hear and determine this appeal was ever taken either in the written submissions or at the hearing ofthe
appeal. In my view the failure to take such objection is of no avail to the respondent, asthisisclearlyacasewhere
there was a patent want of jurisdiction in the High Court of the Western Province to hearanddeterminetheappeal.(see
Perera v The Commissioner or National Housing(3)).

I accordingly hold that the High Court of the Western Province had no jurisdiction to hearanddeterminetheappeal.The
appeal is allowed, the judgment of the High Court is set aside and the Court of Appeal isdirectedtohearanddetermine
this appeal. There will be no costs.

PERERA, J. - I agree.

WIJETUNGA, J. - I agree.

Appeal allowed.


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