JAYANTHA GUNASEKARA VS. JAYATISSA GUNASEKARA AND OTHERS

JAYANTHA GUNASEKARA VS. JAYATISSA GUNASEKARA
AND OTHERS

COURT OF APPEAL
SISIRA DE ABREW. J
SALAM. J
LECAMWASAM. J
CA PHC APN 17/2006 (DB)
HC AWISSAWELLA 55/04
MC AVISSAWELLA 65720
FEBRUARY 25,2011
MARCH 3,4,2011
MAY 16,2011

Constitution Article 154 (P) 3 (b) - Primary Courts Procedure Act - Section 2, Section 66, Section 68-Section 76-High Court exercising revisionary jurisdiction -Appeal to Court of Appeal- Does the filing of an appeal ipse facto stay the execution of the judgment of the High Court? - Cassus omissus clause in the Primary Courts Procedure Act -Applicability of the provisions of the Civil Procedure Code - Stare decisis - Obiter dicta -Ratio decidendi - Approbation  reprobation - Principles

The petitioner sought to revise the judgment of the Provincial High Court entered in the exercise of its revisionary jurisdiction under Art 154 (3) b. The High Court set aside the order made by the Primary Court under Section 68 (3) by which order the Magistrate had determined that the petitioner had forcibly been dispossessed of the subject matter by the respondent. The respondent moved in revision, the High Court held that the respondent is entitled to possession. The petitioner preferred an appeal to the Court of Appeal. The respondent sought to enforce the judgment of the High Court.

The petitioner contended that, on the lodging of the appeal to the Court of Appeal the order of the High Court to execute the order was automatically stayed.

Held:

(1) Mere lodging of an appeal against the judgment of the High Court in the exercise of its revisionary power in terms of Section 154 P (3) (b)of the Constitution to the Court of Appeal does not automatically  stay the execution of the order of the High Court.

Per Abdus Salam.J

"In the case of Kanthilatha and Nandawathie the decision reached is on the assumption that the cassus omissus clause is applicable and therefore the approach reached by inadvertence needs to be set right. Further in Kathilatha's case obiter dictim has been given prominence ignoring the ratio decedendi; the judgment of Sillem (7) relied and referred to in Edward vs. de Silva (8) is a criminal matter arising from a statutory offence".

Per Abdus Salam.J

"In any event to rely on the decision in Attorney General vs. Sillem for our present purpose may amount to destructive analysis of Chapter VII of the Primary Courts Procedure Act than the ascertainment of the true intention of the Parliament and carry it out by filling in the gaps - obviously to put off the execution process until the appeal is heard would tantamount to prolong the agony and to let the breach of the peace to continue for a considerable length of time".

Held further:

(2) In view of the decision in Kayas vs. Nazeer (3) the cassus omissus clause (Section 78 of the Primary Courts Procedure Act) has no application to proceedings under Cap VII of the Act.

(3) The High Court set aside the order of the Magistrate solely based I on the purported failure to endeavour to settle the matter prior to the inquiry. This was one of the objections taken by the respondent. The Magistrate has taken meaningful steps to settle the matter, on that aspect of the matter the learned High Court Judge has erred when he came to the conclusion that such an attempt is not in compliance with the provisions of the Primary Courts Procedure Act.

(4) The objection to jurisdiction must be taken at the earliest possible opportunity. If no objection is taken and the matter is within the plenary jurisdiction of the Court, court will have jurisdiction to proceed with the matter and make a valid order.

It is the respondent before the High Court Judge who had benefitted by that argument. He has not adverted the Magistrate to the non compliance of Section 66 (6) before the commencement of the inquiry.

APPLICATION in revision of an order of the Provincial High Court of Avis

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