Legal Services and Laws of Sri Lanka


SLR-2000 Vol.3-P50

SLR - 2000 Vol.3, Page No - 50

HALWAN AND OTHERS

v.

KALEELUL RAHUMAN
COURT OF APPEAL

S.N. SILVA, J.

CA APPLICATION NO. 780/88

WB NO. WB/ 165/86

WT NO. W TRIB/ 116/88

17TH MAY, 17TH JUNE, 19TH AUGUST AND

06TH SEPTEMBER 1991
Certiorari and Mandamus - Wakfs Board - Wakfs Tribunal - Muslim Mosque and Charitable Trusts or Wakfs Act No. 51 of1956as
amended by Acts 21 of 1960 and 33 of 1982 - Section 9D(1), 9G, 9H(1), 13, 14(1) - Trustees - Sheik of Beruwala -Thakkiya-
"Calipha" of Malwana - Appeal and JudicialReview-Judgmentsandorders-JudicatureActS.23-Article140ofthe
Constitution - Rule 47 of the Supreme Court Rules.

The Muslim Mosque and Charitable Trusts or Wakfs Act provides, inter alia, for the registration ofMosques,Muslimshrines
and places of religious resort. It also provides for the appointment of trustees of registered Mosques. In termsofsection
14(1) it is the duty of the Wakfs Board to confirm and appoint a person or persons to be a Trustee or TrusteesofaMosque
as soon as such a mosque is registered in terms of section 13. The Wakfs Board is also empowered torevoketheappointment
of a Trustee and to appoint new Trustees.
An appeal lies from the decision of the Wakfs Board to the Wakfs Tribunal in terms of section 9H(1) of the Act.

The Wakfs Tribunal is established in terms of section 9D(1) of the Amendment Act No. 33 1982 whereitisstatedthatthe
member of the Tribunal shall be appointed by the Judicial Service Commission, Section 9G providesthatinallproceedings
under the Act the Tribunal shall follow the procedure of a District Court. It is further providedthattheTribunalshall
have all the powers of a District Court as provided for in the Civil Procedure Code in regard to the execution of ordersand
judgments.

Under section 55A introduced by the Amendment Act No. 33 of 1982 every order made by the Tribunal is deemed tobeanorder
made by a District Court. This will attract the provisions of Section 23 of the
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Judicature Act and a party dissatisfied with an order willhavearightofappealtotheAppealCourt.Howeverthe
provisions in relation to appeals from judgments of the District Court have not been brought in but onlytheprovisionsin
relation to appeals from orders havebeenmadeapplicable.TheprovisionsoftheCivilProcedureCodethatrelate
exclusively to appeals from any order of an original court and the common provisions with regard to appealsfromanyorder
and any judgment of such court, will apply mutatis mutandis, to and in relation to an appeal from an order of the Tribunal.

Unlike in England where the basis of review by the Prerogative writs is the common while appeals are in terms of thestatute
in Sri Lanka both remedies are statute based. In our context it is appropriate to describe the appellate jurisdiction asthe
ordinary jurisdiction and review by wayofwritsofcertiorari,prohibitionandmandamus(videsection140ofthe
Constitution) as the extraordinary jurisdiction.

A party dissatisfied with judgment or order, where a right of appeal is given either directly or with leave obtainedhasto
invoke and pursue the appellate jurisdiction. When such a party seeks judicial review by way of an applicationforawrit,
he has to establish an excuse for his failure to invoke and pursue the appellate jurisdiction. Such excuse should bepleaded
in the petition seeking judicial review and be supported byaffidavitsandnecessarydocuments.Thesameprincipleis
applicable to instances where the law provides for a right of appeal from adecisionororderofaninstitutionoran
officer, to a statutory tribunal. The reason is that such appellate procedureasestablishedbylawbeingtheordinary
procedure should be availed of before recourse is had totheextraordinaryjurisdictionbywayofjudicialreviewas
provided in Article 140 of the Constitution.

When notice of appeal or a leave to application is filed, it is a first step taken to invoke the jurisdiction oftheCourt.
It is incumbent on a petitioner to disclose this fact. Under Rule 47 where there is an averment that the jurisdiction ofthe
Court of Appeal has not been invoked in respect of the same matter and it is falseandincorrecttheapplicationcanbe
dismissed. Hence for non-disclosure and the false and incorrect averment, the application can be dismissed.

Cases referred to :
1. Preston v. Inland Revenue Commissioners (1985) All ER 327, 337

2. R. V. Secretary of State (1986) 1 All ER 713, 723, 724

3. R.V. Epping and Harlow General Comrs (1987) 3 All ER 257,262
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APPLICATION for Writs of Certiorari and Mandamus.

H.L. de Silva, P.C. with Javid Yusuf for Petitioners

K. Kanag-Iswaran, P. C. with M.S.A. Hassan & Farook Thahir for 1st to 5th Respondents.
Cur. adv. vult.
November 01, 1991.

S.N.SILVA,J.
The eleven petitioners filed this application for Writs of Certiorari and Mandamus. The Writs of Certiorari are to quashthe
orders dated 03. 01. 1988 (P4) and 06. 04. 1988 (P5) made by the Wakfs Board and the Wakfs Tribunal respectively.

The petitioners claim to be the persons elected as Trustees of the Ulahitiwela Jumma Mosque, Malwana, by the Jamath,on22.
12. 1985. They made an application to the Wakfs Board in terms of section 14(1) of the Muslim MosqueandCharitableTrusts
or Wakfs Act No. 51 of 1956 as amended by Act, Numbered 21 of 1960 and 34 of 1982. The 1st to 5th Respondentsfiledanother
application opposing the application of the petitioners for confirmation as Trustees and moving that theBoardconfirmsas
Trustees the persons nominated by a person styled the Sheik of Beruwala. There is a sharp conflictintheclaimsmadeby
both parties. Whilst the petitioners state that the mosque was constructed during the period beginning in 1979 and endingin
1985, the 1st to 5th respondents state that the place of worship is in fact a Thakkiya about 80 years old constructed bythe
Sheik being the spiritual leader of a particular religious order. It is submitted by these RespondentsthattheSheikand
his successors reside in Maligahena, Beruwala and nominate the Trustees of the Thakkiya on the advise of a person styledthe
"Calipha" of Malwana.

The Wakfs Board inquired into the application, objections and counter application and, by its order `P4' refused
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to confirm the petitioners as the Trustees. The Board further directed that nominations be calledforfromtheSheikfor
persons to be appointed as Trustees. It appears that the main basis of thedecisionoftheBoardisthatbothparties
admitted that upto 02. 06. 1985 the practice had been for theTrusteestobeappointedbytheSheik.Thepetitioners
appealed from that order to the Wakfs Tribunal established under section 9D of the Act. Theappealwasarguedbeforethe
Tribunal and both parties were represented by Counsel. Counsel for the petitioners submitted thatsection14(1)(a)ofthe
Act applies only in respect of thefirstappointmentofTrusteesuponregistration.TheTribunalheldagainstthis
submission and dismissed the appeal. The order of the Board was confirmed by the Tribunal.
The Petitioners filed this application on 22. 07. 1988 and it was supported for notice on 29.07.1988.Onthatdaythe
Court directed the issue of notice. It is also recorded that "a stay order is entered in terms of paragraph 'c'. It is tobe
noted that the petition does not contain a prayer for interim relief and that paragraph'C'isaprayerforcosts.The
Respondents appeared on 27. 10. 1988 and moved for time to file objections. On 29. 11. 1988 it was directed thatthematter
be listed for hearing, in January, 1988. It appears that this order was not complied with. On 22. 11.1989thepetitioners
tendered an amended petition without notice to the respondents. In the amended petition there is a prayer forastayorder
in respect of the order marked `A 1' dated 04. 08. 1988 made by the Wakfs Board appointing five persons astrusteesonthe
basis of the previous orders 'P4' and `P5'. The motion for amendment was supported on 23. 11. 1989 and whentherespondents
were not present the amendment was allowed. A stay order was issued as prayed for in theprayertotheamendedpetition.
This stay order has thereafter been extended from time to time. The respondents have filed furtherobjectionstothestay
order and to the amended petition on the basis that they did not receive prior notice of it.
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When this matter was argued, learned President's Counsel for 1st to 5th respondents raised apreliminaryobjectiononthe
ground that the petitioners cannot seek to challenge the orders marked `P4' and 'P5' by way ofjudicialreviewsincethey
have a right of appeal to this Court from the order (P5) of the Tribunal. It was further submitted that the petitionershave
sought to exercise that right of appeal, firstly by filing a notice of appeal dated 14. 04. 88 in the Tribunalandsecondly
by filing a leave to appeal application on 22. 07. 88 in this Court (CA/LA 86/88).Afurthergroundrelieduponbythe
respondents is that the averments in the petition and affidavit that the jurisdiction of this Court has notbeenpreviously
invoked is incorrect. It is submitted that the petitioners had to make a full disclosure regarding the stepstakenbythem
to file appeals from the impugned order and that the application should fail for a contravention of Rule 47oftheSupreme
Court Rules. Learned Counsel also complained of the manner in which the amended petition was filed and interim relief onthe
amended petition obtained, without notice to them.

Learned President's Counsel for the petitioners submitted that the jurisdiction ofthisCourtisnotinvokedbymerely
filing an application for leave to appeal or by serving a notice of appeal, if nothing further is done by theappellantsto
prosecute the appeal. It was further submitted that there is an ambiguity in the provisions of section 55A of theActwhich
provides for an appeal and that the petitioners cannot be faulted for not resorting to that procedure.

I have carefully considered the submissions both oral and written, addressed by learnedPresident'sCounselregardingthe
preliminary objection raised by learned President's Counsel for the 1st to 5th Respondents.
The Muslim Mosque and Charitable Trusts or Wakfs Act provides inter alia, for the registrationofMosques,Muslimshrines
and places of religious resort. It also provides for the appointment of Trustees of registered Mosques. In terms of
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section 14(1) it is the duty of the Walfs Board to confirm and appoint a person or persons to be a Trustee or Trusteesofa
Mosque as soon as such a Mosque is registered in terms of Section 13. TheWakfsBoardisalsoempoweredtorevokethe
appointment of a Trustee and to appoint new Trustees. The petitioners admit the jurisdiction of the Board inthematterof
confirmation and appointment of Trustees. They invoked the jurisdiction of the Board in this regard by their applicationfor
confirmation as trustees. When objections were raised they participated in a protracted inquiry before theBoardinregard
to the matter. When the Board held against the Petitioners they appealed to the Tribunal in terms ofsection9H(1)ofthe
Act.

The Walls Tribunal is established in terms of section 9D(1) of the Amendment Act No. 33 of 1982 where it is statedthatthe
members of the Tribunal shall be appointed by the Judicial Service Commission. Section 9G provides thatinallproceedings
under the Act the Tribunal shall follow the procedure of a District Court. It is further providedthattheTribunalshall
have all the powers of a District Court as provided for in the Civil Procedure Code is regard to the execution of ordersand
judgments.

Section 55A also introduced by the Amendment Act No. 33 of 1982 states as follows:
"55A. Every order made by the Tribunal shall be deemed to be an order made by a District Courtandtheprovisionsofthe
Civil Procedure Code governing appeals from orders and judgments of a District Court shall, mutatis mutandis,applytoand
in relation to appeals from orders of the Tribunal".

This section contains two main elements. The first is substantive in nature. It deems every order made by the Tribunal tobe
an order made by a District Court. This will attract the provisionsofsection23oftheJudicatureActandaparty
dissatisfied with an order will have a right of appeal to this Court. The second element is procedural in nature and it
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states that the provisions of the Civil Procedure Code "shall mutatis mutandis, apply to and in relationtoordersofthe
Tribunal".
The submission of learned President's Counsel for the petitioners is that the words preceding the foregoing words thatrefer
to "the provisions of the Civil Procedure Code governing appeals from orders and judgments ofaDistrictCourt"havethe
effect of introducing provisions in relation to both types of appeals,namely,appealsfromjudgmentsandappealsfrom
orders as found in the Civil Procedure Code. This submission ignores the basic division in the content ofthesection.The
substantive element deems every order of the Tribunal to be an order of a District Court. The procedural element cannothave
the effect of altering the substantive element and the section willnothavetheeffectofintroducingbothappellate
procedures with regard to orders of a Tribunal.Statutoryprovisionsshouldbeinterpretedsoastoremovepossible
ambiguilty and not to introduce or advance an ambiguity. The words relied uponbylearnedPresident'sCounselshouldbe
considered in the light of the provisions of the Civil Procedure Code that are made applicable andinthecontextofthe
remaining portions of the section and not in isolation.

On an examination of the provisions of the Civil Procedure Code with regard to appeals it is seenthatsection754(2)and
section 756(2), (3), (4), (5), (6) and (7) apply exclusively in relation to applications for leave to appeal fromordersof
an original court. Section 754(1), (3) and (4) 755, 756(1) and 757 apply exclusively in relation toappealsfromjudgments
of the original court. The other provisions are applicable in relation tobothtypesofappeals.Forinstance,section
758(1) with regard to the contents of a petition is applicable to both types of appeals. The provisions from section765to
767 with regard to appeals notwithstanding lapse of time apply to bothtypesofappeals.Similarlytheprovisionswith
regard to hearing of appeals in Chapter 61 are applicable to both types of appeals. These provisions are thusapplicableto
orders and judgments of an original court.
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The effect of the words "mutatis mutandis" appearing in section 55A and referred above is to make the relevant provisionsof
the Civil Procedure Code applicable with due alteration of detail. What is relevant has to be determined bythesubstantive
element of the section which deems every order of theTribunaltobeanorderoftheDistrictCourt.Thereforethe
provisions of the Civil Procedure Code that relate exclusively to appeals from any order of an original court and thecommon
provisions with regard to appeals from any order and any judgment of such court, willapplymutatismutandis,toandin
relation to an appeal from an order of the Tribunal.

The Petitioners have in fact filed a notice of appealintheTribunalfromtheordermarked`P5'.Accordingtothe
proceedings of the Tribunal (X2), on 15. 08. 1988 the Tribunal rejected this notice because apetitionofappealhadnot
been filed within a period of 60 days. The Petitioners also filed a leave to appealapplication,(CA/LA86/88),asnoted
above on 22. 07. 1988 being the same date on which this application was filed.Theapplicationforleavetoappealwas
submitted to a Judge as required by section 756(5) of the Civil Procedure Code and anorderwasmadethatitshouldbe
supported in open court within two weeks. It appears that this application has notyetbeensupportedfortheissueof
notice. Thus it is seen that the petitioners have had recourse to both types of appeals. They have failedtopursueeither
appeal with diligence. The leave to appeal application which appears to have been filed out of time is yet inabeyance.The
question that arises for consideration is whether the Petitioners canhaveandmaintainthisapplicationforWritsof
Certiorari in view of the right of appeal they have in terms of section 55A of the Muslim MosqueandCharitableTrustsor
Wakfs Act read with section 23 of the Judicature Act.
Learned President's Counsel for the Respondents has cited several recent decisions in England where ithasbeenheldthat
judicial review will not be granted (by way of an
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application for a Writ of Certiorari) in instances where an alternativestatutoryremedyisavailable.Inthecaseof
Preston v. Inland Revenue Commissioners(1), Lord Temple man observed that ''judicial review should not begrantedwherean
alternative remedy is available ...Judicialreviewshouldnotbeallowedtosupplantthenormalstatutoryappeal
procedure." In the same case Lord Scarman (at p330) observed that it is "a proposition of great importance that aremedyby
way of judicial review is not to be made available where an alternative remedy exists",andthat"itwillonlybevery
rarely that courts will allow the collateral process of judicial review to be used to attack anappealabledecision".In
the case of R. v. Secretary of State(2) at 723/ 724, Donaldson M.R. observed that". . .Itiswellestablishedthat,in
giving or refusing leave to appeal for judicial review account mustbetakenofalternativeremediesavailabletothe
applicant. This aspect was considered by this Court very recently ... and it was held thatthejurisdictionwouldnotbe
exercised when there was an alternativeremedybywayofappeal,saveinexceptionalcircumstances.Bydefinition,
exceptional circumstances defy definition, but, where Parliament provides an appeal procedure, judicial review willhaveno
place . . .". In the case of R. v. Epping and Harlow General Comrs(3), DonaldosonM.R.hasobservedthat"Butitisa
cardinal principle that, save in the most exceptional circumstances that jurisdictionwillnotbeexercisedwhereother
remedies were available and have not been used". '

Learned President's Counsel for the Petitioners has submitted that these observations should be understood in the contextof
the particular cases. He referred to the following passages appearing in Administrative Law byH.W.R.Wade,6thEdition
(1988) pages 709 and 712:
"Such a discretionary power (i. e. declining to intervene) (brackets supplied) may make inroad upon the rule of law andmust
therefore be exercised with the greatest care."
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"First principles dictate that there should be no rule requiring the exhaustion of administrativeremediesbeforejudicial
review can be granted. A vital aspect of the rule of law is that illegal administrativeactioncanbechallengedinthe
Court as soon as it is threatened. There is therefore no need first to pursueanyadministrativeprocedureorappealin
order to see whether the action will in the end be taken or not. An administrative appealonthemeritsofthecaseis
something quite different from judicial .' determination of the legality of the whole matter."

The learned author has followed the preceding passage with extracts of someofthedictacitedabove.Thissectionis
preceded with the following comment by the author:

"Recently the case law has produced a crop of judicial statements which conflict with this rule just explained" (p 714).
Upon an examination of the dicta he makes the following comment:

"None of these dicta appear to recognise that appeal and review have radically different purposesthat appealisconcerned
with merits while review is concerned with legalitythat review is the primary mechanismforenforcingtheruleoflaw
under the inherent jurisdiction of the Court while appeal is a statutory adjunct with no such fundamental role." (p715).

The foregoing dicta comments and observations have all been made in relation to instances where an appeal lies as apartof
the administrative machinery, to a statutory tribunal and not (as in this instance) to a Superior Court. However inalater
section of the same book (page 945 and 946) Professor Wade repeats the same observation (without elaboration) with regardto
instances where the statute gives a right of appeal to the High Court. He has not (in this section) cited any instancewhere
relief has been granted by way of judicial review to
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an aggrieved party who has not pursued a statutory right of appeal to a Superior Court. Learned President's Counselforthe
Petitioners has also not drawn my attention to any such case.
The observations of Professor Wade (appearing in the 1988 edition of his work and referred above)shouldbeunderstoodin
the context of the basis and evolution of the two reliefs - appeal andjudicialreview,inEngland.Theinstrumentsof
judicial review being the prerogative Writs of Mandamus, Certiorari and Prohibition and the ordinary remedy ofdamageswere
granted by the Kings Bench Division and available to persons who wished to dispute the legalityofadministrativeactsof
Justices of peace and of such other authorities as there were. The Crown is yet the nominalplaintiffinapplicationsfor
these remedies.

The basis of this review is the Common law. Procedural innovations were made most significantly by the Supreme CourtActof
1981 which unified remedies of prerogative writs with the remedies of declarationandinjunctionbypermittingasingle
application to be made for such remedies to the High Court. On the other hand, an appeal is entirely statute based. It isin
this context that Professor Wade has described the remedy by way of appeal as a "statutory adjunct with nosuchfundamental
role".

In Sri Lanka both remedies are statute based. Article 138(1) of the Constitution vestsanappellantjurisdictioninthis
Court "for the correction of all errors in fact and in law which shall be committed by any Court of First Instance,Tribunal
or other. . .". Similarly Article 140 vests in this Court "full power and authority to inspect andexaminetherecordsof
any Court of First Instance or Tribunal or other institution and grant and issue, according to law, orders in thenatureof
Writs of Certiorari, Prohibition, Procedendo Mandamus and Quo warranto against the Judge of any Court of FirstInstance,or
tribunal or other institution or any other person." There is
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a cursus curiae that in granting these orders the Court will follow the applicable principles of EnglishLaw.Howeverthis
practice does not alter the basis ofjurisdictionwhichremainsstatutory.Inthisstatutoryscheme,whereaparty
dissatisfied with a judgment or order has a right of appeal either directly or with leave obtained as in this instances,the
appellate jurisdiction of this court extends to the correction of "all errors in fact or inlaw"committedbytheCourt,
tribunal or institution that delivered the judgment or order. Therefore the observations of Professor Wadethatappealand
review are two distinct procedures, appeal being concerned with merits and review being concerned withlegality(asstated
at p. 36, 715 and 946) are not quite appropriate in our statutory context.Theappellatejurisdictionsaveininstances
where it is restricted to questions of law will encompass the merits and the legality of the impugned order. Inourcontext
it is appropriate to describe the appellate jurisdiction astheordinaryjurisdictionandreviewbywayofWritsof
Certiorari, Prohibition and Mandamus (vide Article 140 of theConstitution)astheextraordinaryjurisdiction.Aparty
dissatisfied with a judgment or order, where a right of appeal is given eitherdirectlyorwithleaveobtained,hasto
invoke and pursue the appellate jurisdiction. When such party seeks judicial review by way of an application foraWritas
provided in Article 140 of the Constitution he has to establish an excuse for his failure to invoke and pursue theappellate
jurisdiction. Such excuse should be pleaded in the petition seeking judicialreviewandbesupportedbyaffidavitsand
necessary documents. In any event, where such a party hasfailedtoinvokeandpursuetheappellatejurisdictionthe
extraordinary jurisdiction by way of review will be exercised only in exceptional circumstances suchas,wherethecourt,
tribunal or other institution has acted without jurisdiction or contrary to the principles of naturaljusticeresultingin
an order that is void. The same principle is in my view applicable to instances where the law provides for a right ofappeal
from a decision or order of an institution or an officer, to a statutory tribunal. The
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reason is that such appellate procedure as established by law being theordinaryprocedureshouldbeavailedofbefore
recourse is had to the extraordinary jurisdiction by way of judicial review as provided in Article 140 oftheConstitution.
The remedy by way of judicial review should not be allowed to supplant the normal statutory appeal procedureandshouldbe
available only in exceptional circumstances as noted above.

In this case the petitioners have neither pleaded nor established any excuse for not pursuing the right ofappealtheyhad
in respect of the order `P5'. They have also failed to plead anyexceptionalgroundsthatwarranttheexerciseofthe
extraordinary jurisdiction of this Court. For that matter, they possibly cannot plead lack of jurisdictiononthepartof
the Board or the Tribunal, being the persons who invoked the jurisdiction of these institutions. There is also noallegation
of a violation of the principles of natural justice.

The other matter to be considered is the failure of the petitioners to make disclosureoftheattemptsmadebythemto
invoke the jurisdiction of this Court. As noted above they filed a notice of appeal in the Tribunal whichwasrejected.In
addition they filed a leave to appeal application in this very court which hasnotbeensupported.Thesemattersshould
necessarily be disclosed. Rule 47 of the Supreme Court Rules provides that thepetitionandaffidavit"shallcontainan
averment that the jurisdiction of the Court of Appeal has not been invoked in respect ofthesamematter.Wheresuchan
averment is found to be false and incorrect the application may be dismissed."

The submission of learned President's Counsel for the petitioners is thatamerefilingofanoticeofappealoran
application for leave to appeal is not an invocation of the jurisdiction of this Court. I cannot accept this submission.The
filing of a notice of appeal or a leave to appeal application are the first steps taken to invoke thejurisdictionofthis
Court. Therefore it was incumbent on the Petitioners to disclose these
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matters in the application for judicial review. The petitioners have failed to do so and have evenobtainedinterimrelief
from this Court without such disclosure. In these circumstances I am of the view that the provisions ofRule47shouldbe
applied against the petitioners and that this application should in any event be dismissed on that ground.
For the reasons stated above I uphold the preliminary objections raised by learned President's Counselforthe11to5th
respondents and dismiss this application without going into themerits.Thepetitionerswillpaytothe1stto5t''
respondents a sum of Rs. 2500/- by way of costs.

Application dismissed.


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