Legal Services and Laws of Sri Lanka
SLR - 2000 Vol.2, Page No - 340
PARAMESWARY AND OTHERS
COURT OF APPEAL.
P. C. JAFFNA 713.
28TH JANUARY, 2000.
Constitution, Articles 138, 154P, 154P(3) (b) - Thirteenth Amendment-JurisdictionoftheCourtofAppealexercising
Revisionary Jurisdiction over Orders of Primary Court - Is the Jurisdiction of CourtofAppealousted-Isjurisdiction
vested only in the High Court - Concurrent or parallel Jurisdiction-High Court of the Provinces (Special Provisions)Act19
of 1990 - S. 12(a) - Transfer of case - "Expedient to do".
On the preliminary objection that the Court of Appeal has no jurisdiction to entertain the transfer application -
(1) Despite Article 138 of the Constitution, Article 154P(3)b gave the High Court of aProvinceaparallelorconcurrent
jurisdiction to hear applications by way of an appeal or Revision regardingordersmadebyaPrimaryCourtwithinthe
Province. In effect both ' courts were conferred concurrent jurisdiction in respect of these matters.
(2) The High Court of the Provinces (Special Provisions) Act No. 19 of 1990 - certified on 15.5.1990 - was brought intomake
provision regarding the procedure to be followed in and the right to appeal to and fromtheHighCourtestablishedunder
Article 154P of the Constitution.
(3) After conferring by S.4 - S.5 of Act No. 19 of 1990 - aright of appeal from an order made by thePrimaryCourttothe
High Court established under Article 154P, S.5 of Act 19 of 1990 provided similarprocedurestobeadoptedintheHigh
Court, as followed in
the Court of Appeal with regard to such appeal or revision relating to orders made by Primary Courts.
(4) When S. 12(a) of Act, No. 19 of 1990 - provides for a transfer of a case filed in the Court of Appeal to theappropriate
High Court, the main consideration which should attract the attention of the Court of Appeal whendecidingwhetheracase
before it should be transferred should be the convenience of parties. Easing the workload of the Court ofAppealcannotbe
an adequate ground - that would be a most unfortunate selfish ground.
Per Wigneswaran, J.
"To order the transfer of this case to the High Court of NorthernProvinceholdenatVavuniyawouldbetheheightof
insensitivity on the part of this Court. The Primary Court which made the impugned order is the Primary Court of Jaffna.The
very fact that there is no High Court functioning in Jaffna but only in peripheral Vavuniyamustnodoubtbetakeninto
consideration in consonance with the difficulty faced by persons to obtain security clearance tostaybeyond24hoursat
"High Court functioning in a peripheral area (at Vavuniya) being called upon to overlook the workofanappropriateCourt
(in Jaffna) for certain exigencies cannot be considered as the appropriate High Court established under the Law intermsof
S.12 of 19 of 1990."
APPLICATION in Revision from the Order of the Primary Court of Jaffna, under Article 138 of the Constitution.
P. Sivaloganathan for Petitioner.
S. Mahenthiran for 1st and 3rd Respondents.
Cur. adv. vult.
May 30, 2000.
This Revision Application was filed on 14.10.1998 before this Court in respect of an order made by the PrimaryCourtJudge,
Point Pedro dated 14.9.1998. Counsel for the Petitioner having supported this matter on 21.10.1998 theCourtissuednotice
on the Respondents returnable on 27.11.1998.
On 27.11.1998 the Counsel for the Respondents moved for two months' time to fileobjectionsstatingthattheRespondents
were residing in Jaffna and communication with themwasdifficult.Consequently29.1.1999wasfixedasthedatefor
objections. On that day Counsel for Respondents moved for further time to file objections. The date was extended until02/
03 / 1999. Thereafter owing to the proceedings in the original Court being in Tamil the casewastransferredtobeheard
before this Bench by the President of the Court of Appeal on 07.09.1999.
A preliminary objection was taken up by the Counsel for the Respondents on 16.12.1999 stating that this caseshouldnotbe
entertained by this Court. Written submissions were called for and thereafter filed by the respective Counsel.
The arguments placed by the learned Counsel for the Respondents are as follows:
1. The Thirteenth Amendment to the Constitution of this country devolved judicialpowerearliervestedintheCourtof
Appeal (Article 138) to the Provincial High Courts. (Article 154P).
2. Proviso to Section 12(a) of Act No. 19 of 1990 empowered this Court to transfer cases falling within the jurisdiction of
High Courts to the appropriate High Courts.
3. Not to transfer such cases to the appropriate High Courts would (i) equate oneoftheSuperiorCourts,theCourtof
Appeal, to the High Courts, (ii) unduly burden the work-load of the Court of Appeal (iii)deprivetheHighCourtofthe
Northern Province holden at Vavunia of the devolved judicial matters falling within its jurisdiction.
4. Judgment of this Court in C. A. Revision 686/97 (Primary Court, Jaffna Case No. 139) was also referred to.
These arguments would presently be examined.
Article 138 of the Constitution of the Democratic Socialist Republic of Sri Lanka certified on 31.8.1978 reads as follows:
(1) The Court of Appeal shall have and exercise subject to the provisions of the Constitution or ofanylaw,anappellate
jurisdiction for the correction of all errors in fact or in law which shall be committed byanyCourtofFirstInstance,
tribunal or other Institution and sole and exclusive cognizance, by way of appeal, revision and restitutioinintegrum,of
all causes, suits, actions, prosecutions, matters and things of whichsuchCourtofFirstInstance,tribunalorother
institution may have taken cognizance:
Provided that no judgment, decree or order of any court shall be reversed or variedonaccountofanyerror,defector
irregularity, which has not prejudiced the substantial rights of the parties or occasioned a failure of justice.
(2) The Court of Appeal shall also have and exercise all such powers and jurisdiction, appellate and original, asParliament
may by law vest or ordain.
By the Thirteenth Amendment certified on 14.11.1987 the following new Article 154P was incorporated into the Constitution:
(1) There shall be a High Court for each Province with effect from the date on which thisChaptercomesintoforce.Each
such High Court shall be designated as the High Court of the relevant Province.
(2) The Chief Justice shall nominate, from among Judges of the High Court of Sri LankasuchnumberofJudgesasmaybe
necessary to each such High Court. Every such Judge shall be transferable by the Chief Justice.
(3) Every such High Court shall:
(a) exercise according to law, the original criminal jurisdiction of the High Court ofSriLankainrespectofoffences
committed within the Province
(b) notwithstanding anything in Article 138 and subject to any law,exercise,appellateandrevisionaryjurisdictionin
respect of convictions, sentences and orders enteredorimposedbyMagistratesCourtsandPrimaryCourtswithinthe
(c) exercise such other jurisdiction and powers as Parliament may, by law, provide.
(4) Every such High Court shall have jurisdiction to issue, according to law-
(a) orders in the nature of habeas corpus, in respect of persons illegally detained within the Provinceand
(b) orders in the nature of writs of certiorari, prohibition, procedendo,mandamusandquowarrantoagainstanyperson
exercising, within the Province, any power under
(i) any lawor
(ii) any statutes made by the Provincial Council established for that Province, in respect ofanymattersetoutinthe
Provincial Council List.
(5) The Judicial Service Commission may delegate to such High Court, the power to inspect and report on,theadministration
of any Court of First Instance within the Province.
(6) Subject to the provisions of the Constitution and any law, any person aggrieved by a final order,judgmentorsentence
of any such Court in the exercise of its jurisdiction under paragraphs (3) (b) or (3) (c) or (4) may appeal therefrom tothe
Court of Appeal in accordance with Article 138.
Thus despite Article 138 of the Constitution, Article 154 P (3) (b) gave High Court of a Province aparallelorconcurrent
jurisdiction to hear applications by way of an appeal orrevisionregardingordersmadebyPrimaryCourtswithinthe
The High Court of the Provinces (Special Provisions) Act No. 19 of 1990 certifiedon15.5.1990wasbroughtin"tomake
provision regarding the procedure to be followed in and the right to appeal to, and from theHighCourtestablishedunder
Article 154 P of the Constitution"
After conferring by. Section 4 a right of appeal from an order made by the Primary Court to the High Court establishedunder
Article 154 P of the Constitution, Section 5 of the said Act No. 19 of 1990 provided similar procedures to be adopted inthe
High Court as followed in the Court of Appeal, with regard to such appeal or revision relatingtoordersmadebyPrimary
Section 12 of the said Act No. 19 of 1990 referred to procedure to be adopted in case an appeal or application in respectof
the same matter is filed in Court of Appeal and in the High Court. The said section is as follows:
(a) Where any appeal or application is filed in the Court of Appeal and an appeal orapplicationinrespectofthesame
matter has been filed in a High Court established by Article 154 P of the Constitution invoking jurisdiction vestedinthat
Court by paragraph (3) (b) or (4) of Article 154 P 'of the Constitution, within the timeallowedforthefilingofsuch
appeal or application, and the hearing of such appeal or application by such High Courthasnotcommenced,theCourtof
Appeal may proceed to hear and determine such appeal or application or where it considers it expedient to do so, directsuch
High Court to hear and determine such appeal or application:
Provided, however, that where any appeal or application which is within the jurisdiction of a High Court established
by Article 154 P of the Constitution is filed in the Court of Appeal, the Court of Appeal may if itconsidersitexpedient
to do so, order that such appeal or application be transferred to suchHighCourtandsuchHighCourtshallhearand
determine such appeal or application,
(b) Where the Court of Appeal decides to hear and determine any such appeal or application,asprovidedforinparagraph
(a), the proceedings pending in the High Court shall stand removed to the Court of Appeal for its determination.
(c) No appeal shall lie from the decision of the Court of Appeal under this section to hearanddeterminesuchappealor
application or to transfer it to a High Court.
(d) Nothing in the preceding provisions of this section shall be read and construed as empoweringtheCourtofAppealto
direct a High Court established by Article 154 P of the Constitution to hear and determine any appeal preferred to theCourt
of Appeal from an order made by such High Court in the exercise of the jurisdiction conferredonitbyparagraph(4)of
Article 154 P of the Constitution.
It is to be noted that the power given under Article 138 of the Constitution to the Court of Appealtohearanddetermine
applications in revision against orders made by Primary Courts was not inanywaytakenawaybyeithertheThirteenth
Amendment or Act No. 19 of 1990. In effect both Courts were conferred concurrent jurisdiction in respect of these matters.
When section 12(a) and its proviso in Act No. 19 of 1990 speaks of considering "it expedient to do so" the phrase must
be properly understood. "Expedient" as an adjective means suitable or advisable. As a noun itmeansthatwhichservesto
promote. It also connotes the means suitable to an end. It would be unethical to define the phrase "expedient todoso"as
that which serves to promote a selfish end. The main consideration which should attract the attention of the Court ofAppeal
when deciding whether a case before it should be transferred to an appropriateHighCourtshouldbetheconvenienceof
parties. Easing the work-load of the Court of Appeal cannot be an adequate ground. That would be a mostunfortunateselfish
ground. Further, the alleged equation of a Superior Appellate Court to the High Court of a Province neednotbeconsidered
demeaning or debasing. The whole purpose of the Thirteenth Amendment establishing a HighCourtineveryprovincewasto
confer jurisdiction in respect of certain matters in the High Court granting it concurrent jurisdictionwiththeCourtof
Appeal. When concurrent or parallel jurisdiction is given by Law to two Courts the question of a superior and inferiorCourt
would not arise. As far as the jurisdiction granted to the two Courts in certain mattersgoes,theyareequal.Eventhe
question of depriving the High Court of the Northern Province of a devolved judicial matter need not concernusunlessthe
Court of Appeal arbitrarily wishes to arrogate to itself jurisdiction in preference to the High Court forsomequestionable
The only consideration, to our mind, that should receive our attention when we deem a mattertobe"expedienttodoso"
should be the convenience of parties. So long as the law had not detracted nor taken away a particular jurisdiction fromthe
Court of Appeal and conferred it exclusively on the High Court, it might be assumed that both Courts couldhearsuchcases
subject to convenience of parties. If parties have a ready forum closer to them such a forum is to be preferredratherthan
the forum far away from their residences.
Thus the only matter to receive our consideration in this connection should be whether parties would be prejudiced byhaving
this matter decided in this Court.
The learned Counsel for the Petitioner has drawn our attention to paragraph 7 of the Petition dated 14th day of October1998
which reads as follows:
"The Petitioner is compelled to make this application to your Lordships' Court direct as there is no HighCourtfunctioning
in Jaffna, the High Court holden in Vavuniya is beyond the reach of the Petitioner as he has to come toColomboandobtain
security clearance to enter Vavunlya and no more than a day will be permitted for his stay in Vavunlya forsecurityreasons
and as your Lordships' Court is vested with concurrent appellate and revisionary jurisdiction to enablethemtomakethis
application in respect of this matter".
With the passing of the Emergency (Miscellaneous Provisions and Powers) Regulation No. 1 of 2000 on 03.05.2000, publishedin
Gazette Extra Ordinary No. 1130/8, under Section 5 of the Public Security Ordinance, the position of a litigant, residentin
the Northern Province has become even more pathetic. He has to face inter alia ad hoccurfews,restrictionsonmovements
control over communications including telecommunications and daily news publications. The very fact thatthereisnoHigh
Court functioning in Jaffna but only in peripheral Vavunia must no doubt be taken into consideration in consonancewiththe
difficulty faced by persons to obtain security clearance to stay beyond 24 hours in Vavuniya. To orderatransferofthis
case to the High Court of Northern Province holden at Vavuniya would be height of insensitivity on the partofthisCourt.
We are aware that in cases such as C. A. Revision No. 686 /97 which was referred to
by the learned Counsel for the Respondent, the relevant recordshavestillnotreachedtheappropriateHighCourtof
Northern Provinces holden in Vavunia even after eight months since the order was made. We are satisfied thatlitigantsfrom
the Jaffna Peninsula would be adversely affected if we were to make order transferring this applicationtotheHighCourt
holden in Vavuniya.
Even though learned Counsel for the Respondents had in paragraph 28 of his written submissions referred to the factthathe
had attended Courts in Vavuniya and had not encountered any difficulties in conducting his professional duties there, weare
not sure that he had made such visits to Vavunia after the passing of Regulation No. 1 of 2000. In any event, this Courthas
already considered this matter and issued notice on theRespondents.Further,therehadbeennoconnectedapplication
pending in the High Court holden at Vavunia when suchstepsweretakenbeforethisCourt.Furthermore,aHighCourt
functioning in a peripheral area (at Vavuniya) being called upon to overlook theworkofanappropriateHighCourt(in
Jaffna) for certain exigencies cannot be considered as the appropriate High Court establishedunderthelawintermsof
Section 12 of Act No. 19 of 1990.
Therefore we are of opinion that even though the Thirteenth Amendment devolved judicial power earlier vested in the Courtof
Appeal to Provincial High Courts and proviso to Sec. 12(a) of Act No. 19 of 1990 empowered thisCourttotransfercertain
types of cases to the appropriate High Court if considered expedient to do so, yet the use of discretionbythisCourtto
transfer such cases must consider inter alia the convenience of parties. We are of opinion that when an order to transferis
made by this Court under the provisions of Act No. 19 of 1990 it must not be founded on the convenience
of the Court of Appeal but on adequate grounds favourable to the litigants.
There would not be any beneficial results that may accrue to the litigants by such a transfer in this instance. In factthey
would be greatly prejudiced under the present circumstances if a transfer is ordered.
We therefore refuse the application made by the learned Counsel for the Respondents to transfer this case to theHighCourt
of Northern Province holden at Vavuniya and dismiss the preliminary objection raised by the learned Counsel.
TILAKAWARDANA, J. - I agree.
Preliminary objection overruled. Application to transfer case refused.