RIGHT OF APPEAL

Sri Lanka Law Reports     -     1989 - Volume 2 , Page No - 409

MARTIN VS WIJEWARDENA 

MARTIN v. WIJEWARDENA

SUPREME COURT

RANASINGHE, C.J., JAMEEL, J. AND AMERASINGHE, J.

S.C. REF NO. 1/89

C.A. NO. 43/86

A.T. KALUTARA NO. 18/109A

MAY 30, 1989

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Agrarian Services Act, No. 58 of 1979 – Sections 18(1) and (2) – Failure of tenant-cultivator to pay rents – Forfeiture of tenancy rights – Right of appeal – Constitution, Article 138 – Appellate jurisdiction of Court of Appeal

Held:

1. A right of appeal is a statutory right and must be expressly created and granted by statute. It cannot be implied. Article 138 is only an enabling Article and it confers the jurisdiction to hear and determine appeals to the Court of Appeal. The right to avail of or take advantage of that jurisdiction is governed by the several statutory provisions in various Legislative Enactments.

2. Section 18 of the Agrarian Services Act, No. 58 of 1979 does not provide for nor does it create a right of appeal in a tenant cultivator who is aggrieved by the Order of the Commissioner to pay up his arrears to the landlord before a stipulated date. Further, Article 138 of the Constitution does not confer on such a tenant cultivator a right of appeal.

3. While the Agrarian Services Act, No. 58 of 1979 s. 5(6) provides for an appeal (on a point of law only) from a decision of the Commissioner given at an eviction inquiry, no such right of appeal is provided for a party aggrieved by the Order of the Commissioner of Agrarian Services at an inquiry into the non-payment of rent. No appeal lies from any Orders made under section 18 of the Agrarian Services Act.

4. Cases referred to:

1. Anchapulle v. Baker 31 NLR 149

2. Silva v. Silva 16 NLR 57

3. I.P. Police v. Fernando 30 NLR 482

4. Sudharman de Silva v. A.G. [1986] 1 Sri LR 9

5. Cassim v. Abdursak 38 NLR 428

6. Culanthavelu v. Somasundaram 2 Bal. 122

7. Suppiah v. Lokubanda 4 CWR 127

8. Shockman v. John CWR 93

9. Saunders v. Park 1 Bal. 22

10. King v. Ratnam 30 NLR 212

11. In Re Wijesinghe 16 NLR 312

12. Kanagasunderam v. Podihamine 19 CLW 53 (V.B)

13. A.G. v. Sellim 11 ER 1200

14. King v. Joseph Hansom 106 ER 102

15. In Re Albert Godamune 38 NLR 74

16. Sangarapillai v. Chairman, Municipal Council, Colombo 32 NLR 92

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Reference

Reference under Article 135 of the Constitution to the Supreme Court.

Appearances:

• P.A.D. Samarasekera, P.C. with Kanchana Abeypala for tenant-cultivator respondent-appellant.

• C.J. Ladduwahetty for landlord complainant-respondent.

Cur. Adv. vult.

JUDGMENT – JAMEEL, J. (27 June 1989)

The landlord complainant-respondent had complained to the Commissioner of Agrarian Services, Kalutara, that rents properly due to him from the tenant cultivator respondent-appellant were in arrears.

After inquiry, the Assistant Commissioner (Inquiries) issued a notice under Section 18(1) of the Act No. 58 of 1979 directing the appellant to pay to the respondent, on or before 31.1.1986, all arrears found due.

The appellant failed to make payment as directed and his rights as tenant cultivator became forfeit, by operation of law, under Section 18(2) of the Act.

Notwithstanding the absence of provisions for proceedings before the Assistant Commissioner, the appellant complained that he went to the house of the respondent on 31.1.1986 to make payment, but the respondent was not at home, and so he was unable to pay in due time. After inquiry, the Assistant Commissioner concluded that on his own admission the appellant had forfeited his tenancy rights. It was from this order that the appellant filed an appeal to the Court of Appeal.

The respondent raised a preliminary objection, and the Court of Appeal framed and forwarded the following question for decision by the Supreme Court:

“Does Article 138 of the Constitution confer any rights on any aggrieved person to appeal to the Court of Appeal from any order made by the Assistant Commissioner of Agrarian Services in terms of Section 18(1) of Act No. 58 of 1979, when such a right has not been specifically conferred by statute?”

Key Reasoning of the Court:

• Article 138 is an enabling provision creating jurisdiction in the Court of Appeal. It does not create or grant a right of appeal to individuals.

• The Judicature Act and relevant procedural laws designate who may appeal from decisions of District Courts, Magistrates Courts, High Courts, and other tribunals.

• Appeals are a statutory right, not a constitutional implication.

• The Agrarian Services Act expressly provides appeals in certain instances (e.g., eviction inquiries under s. 5(6)) but not under section 18(1).

• Therefore, no appeal lies against the Assistant Commissioner’s order under section 18(1).

Decision

For the above reasons, the Supreme Court answered the question in the negative.

• Section 18 of the Agrarian Services Act does not create a right of appeal.

• Article 138 of the Constitution does not confer such a right either.

RANASINGHE, C.J. – I Agree

AMERASINGHE, J. – I Agree

Held: No right of appeal lies from section 18(1) orders of the Agrarian Services Act to the Court of Appeal.

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