GUNAWARDANE AND OTHERS

Vs.

MUTHUKUMARANA AND OTHERS

SUPREME COURT
ALUWIHARE, J.
MALALGODA, J.
DEHIDENIYA, J.
SC/APPEAL/111/2015 WITH 113/2015 AND 114/2015
SC/SPL/LA/190/14, 185/14 AND 178/14
CA/PHC/APN/107/2009, 185/2010 AND 204/2006
PCA HAMBANTOTA/HCA/13/2008
PCA COLOMBO/MCA/123/2009
PCA AVISSAWELLA/69/2005
MC TANGALLE 63486
MC MOUNT LAVINIA 39758
MC KADUWELA 36421
JULY 4, 2018

Revisionary jurisdiction of the Court of Appeal-Articles 138 and 154P(3) (b) of the Constitution-High Court of the Provinces (Special Provisions) Act, No. 19 of 1990, section 9

The appellants in all three appeals sought to challenge an order made by the Court of Appeal upholding a preliminary objection which resulted in the refusal of their revision applications. The common question of law on which special leave to appeal was granted in all three appeals is as follows:

Having failed to exercise the right to file an appeal in terms of section 9 of the High Court of the Provinces (Special Provisions) Act No. 19 of 1990 as amended, could a person invoke the revisionary jurisdiction of the Court of Appeal referred to in Article 138 of the Constitution of the Republic of Sri Lanka in order to canvass a decision made by a Provincial High Court exercising its appellate powers?

Held:

1. Although revisionary jurisdiction shares characteristics of appellate jurisdiction, they are not one and the same. A party can invoke revisionary jurisdiction even when there is a right of appeal,

whether or not that right has been availed of as well as when there is no right of appeal. This in itself is sufficient evidence that appellate jurisdiction and revisionary jurisdiction are two distinct jurisdictions.

2. Since revision is a distinct remedy and not a subset of appellate jurisdiction, the removal of appellate jurisdiction does not result in ousting or negating revisionary jurisdiction.

3. The revisionary jurisdiction of the Court of Appeal is a Constitutional mandate, whose genesis lies in Article 138 of the Constitution. Owing to its genesis in the Constitution, any restriction or modification to this jurisdiction must be introduced by way of express wording.

4. The removal of the appellate jurisdiction of the Court of Appeal in respect of decisions of the Provincial High Court in the exercise of its appellate jurisdiction, and the conferment of a right of appeal to the Supreme Court by section 9 of the High Court of the Provinces (Special Provisions) Act, No. 19 of 1990, does not result in ousting or negating the revisionary jurisdiction of the Court of Appeal in respect of such decisions.

Cases referred to:

1. Merchant Bank of Sri Lanka v. Wijewardena [2010] BLR 233
2. Australanka Exporters Private Ltd v. Indian Bank [2001] 2 Sri LR 156
3. Mariam Beebee v. Seyed Mohamed (1965) 68 NLR 36 at 38
4. Somawathie v. Madawela [1983] 2 Sri LR 15
5. Gunarathna v. Thambinayagam [1993] 2 Sri LR 355
6. Attorney General v. Podisingho (1950] 51 NLR 385
7. Sunil Chandra Kumar v. Veloo [2001) Sri LR 91
8. K.A. Patman v. Inspector of Police, Dodangoda (1971) 74 NLR 115
9. Atapattu v. People's Bank [1997] 1 Sri LR 208
10. Weragama v. Eksath Lanka Wathu Kamkaru Samithiya [1994] 1 Sri LR 293
11. In Re Reference under Article 125(1) of the Constitution (2008) BLR 160 SC
12. In Re 19th Amendment to the Constitution [2002] 3 Sri LR 85
13. Somawathie v. Madawela and others [1983] 2 Sri LR 15

14. Coloquhoun v. Brooks (1888) 21 QBD 52 at 65
15. Martin v. Wijewardena [1989] 2 Sri LR 409 at 419
16. Gunaratne v. Thambinayagam [1993] 2 Sri LR 355 at 361

APPEAL from the Judgment of the Court of Appeal.

Niranjan De Silva with Kalhara Gunawardena for the 1st, 2nd and 5th Respondent-Respondent-Petitioner-Petitioner-Appellants in SC/ APPEAL/111/2015.

Saliya Peiris, P.C., with Lisitha Sachintha for the Substituted 4A Respondent-Appellant-Respondent-Respondent-Respondent in SC/ APPEAL/111/