SOMAWATHIE

Vs.

SIRIPALA AND OTHERS

COURT OF APPEAL
DE SILVA, J.
WENGAPPULI, J.
CA/PHC/APN/78/2018 (REV)
PHC HAMBANTHOTA 47/2000
JUNE 2, 2018, DECEMBER 13, 2018

Article 138 and 154P(4)(b)of the Constitution-Revision-Retrospective applicability of a judgment of the Supreme Court

The petitioner invoked the revisionary jurisdiction of the Court of Appeal seeking to nullify an order made by the Provincial High Court on the basis that the High Court had no jurisdiction to make an order on a dispute in relation to state land that had been brought before the court under Article 154P(4)(b) of the Constitution. The petitioner founded her contention on the reasoning contained in the judgment of the Supreme Court in Superintendent, Stafford Estate and two others v. Solaimuthu Rasu (2013] 1 Sri LR 25 and on the basis that the said judgment which laid down procedural law ought to be retrospectively applied in her favour. The order of the Provincial High Court is dated 11.12.2002 and the Rasu judgment was pronounced on 17.07.2013.

Held:

1. Even if changes were made to the procedural laws where a "vested right" is affected, such instances have been treated as an exception to the applicability of amended statutory provisions retrospectively. Section 48 of the Land Development Ordinance confers certain "vested rights" in parties in respect of their succession rights, upon the death of the permit holder. The dispute in this case is on succession rights. As such, the petitioner is not entitled to relief since the "vested rights" of the other respondents are adversely affected by a retrospective application of the Rasu judgment.

2. The issue before the court is the retrospective applicability of a judgment as opposed to the retrospective applicability of a statutory amendment. None of the parties to the instant application were parties to the Rasu judgment. A judgment of court, when it

lays down its view differently at a subsequent stage, will have retrospective effect of the change it brings about only among parties to that litigation.

Cases referred to:

1. Superintendent, Stafford Estate and two others v. Solaimuthu Rasu [2013] 1 Sri LR 25
2. De Silva v. Weersinghe [1979] 1 Sri LR 334
3. Sendiris v. Assistant Commissioner of Agrarian Services and Another [1991] 1 Sri LR 212
4. Gunatilake v. Walker Sons & Co Ltd 79 (2) NLR 563
5. Rajadurai v. Emerson (1995) 2 Sri LR 30
6. Mulgirigala Co-operative Stores Society Ltd v. Chariis 52 NLR 567
7. Ram Banda v. River Valleys Development Board 71 NLR 25
8. National Westminster Bank PLC (Respondents) v. Spectrum Plus Ltd and others and others (Appellants) (2005) UKHL 41
9. Siebe Gorman & Co Ltd v. Barclays Bank Ltd (1979] 2 Lloyd's Rep 142

APPLICATION in Revision from the Order of the High Court of Hambanthota.

Dr. Sunil Coorey with Heshan Pietersz for the Petitioner.

Ravindra Sumapathipala for the Petitioner Respondent.

Ganga Wakishta Arachchi, S.S.C., for the 1st Respondent and Respondent-Respondent.

cur. adv. vult.

October 14, 2019

WENGAPPULI, J.

The Petitioner, with her petition addressed to this Court, invokes its revisionary jurisdiction and seeks to nullify an order made by the Provincial High Court of the Southern Province holden in Hambantota in case No. HCA 47/2000, on the basis that it had no jurisdiction to make an order on a dispute in relation to State land that had been brought before Court under Article 154P(4)(b) of the Constitution. The Petitioner founded said contention on the reasoning contained in the judgment of the Supreme Court in Superintendent, Stafford Estate and two others v. Sofaimuthu Rasu.1

It is stated that the Petitioner is the eldest female child in her family whereas the Petitioner-Respondent is the eldest of the males. The State land in respect of which the dispute arose was developed by the father of the Petitioner, who had been issued with a permit under the provisions of Mahaweli Authority Act read with Land De