It is evident that Article 154P (3) (b) of the 13th Amendment has vested an appellate and revisionary jurisdiction in the High Court. Article 154P3 (c) left an opening to widen the jurisdiction of the Provincial High Court by stating that the Court could ‘exercise such other jurisdiction and power as Parliament may by law provide’. In pursuance of this Article an additional jurisdiction has been vested in the High Court with the enactment of the Arbitration Act No 11 of 1995 which is an alternative dispute resolution system. It empowers the High Court to entertain applications for enforcement or setting aside of arbitral awards entered under the Arbitration Act. The next development of the High Court was the enactment of the High Court of the Provinces (Special Provisions) Act No.10 of 1996 which enables to establish special Provincial High Courts to hear and determine commercial disputes of which the monitory value exceeds a sum of Rs. 3 million. Such a High Court is now functioning only in Colombo, Western Province.
Litigants’ Rights of Appeal and Revision
Some Courts provide relief to litigants as Courts of First Instance, while some other courts function as Appellate Courts. An original court is a forum to which an application for relief could be made by a litigant for the first time. In civil matters, a litigant is expected to have valid course of action before he is entitled to go before an original court. In criminal matters a crime or an offence has to be committed for a legal mechanism to take place. In general, a person affected by an order of a lower court or a tribunal has the option of appealing against such order. However, an appeal can be furnished to a higher court only in circumstances where there is a statutory right of appeal. If there is a no such right, no appeal could be forwarded. In such circumstances, the only remedy available to the affected person is to make an application for revision.
When one exercises the right of appeal, such right has to be statutorily conferred in clear terms. Therefore, if a litigant is unable to show that such a right has been statutorily and expressly provided for, then he would not be in a position to satisfy the court that he has a right of appeal. The mere fact that a particular court can hear appeals does not mean that there is an automatic right of appeal to such court unless such a right is statutorily provided for in express terms.
The word ‘judgement’ encompasses not only a judgement which finally disposes the rights of the parties, but also all those orders made in the course of civil proceedings which have the effect of a final judgement. Sharvananda J., in the case of Daintee Limited v William, articulated the following guidelines which would help determining whether a particular order has the effect of a final judgement.
- It must be an order finally disposing the rights of the parties.
- The order cannot be treated to be a final order if the suit or action is still left a live suit or action for the purpose of determining the rights and liabilities of the parties in the ordinary way.
- The finality of the order must be determined in relation to the suit.
- The mere fact that a cardinal point in the suit has been decided or even a vital and important issue determined in the case, is not enough to make an order, a final one.
On the other hand the power of ‘Revision’ is an extraordinary right which is independent and distinct from the appellate jurisdiction of the Court. Revision Applications are essentially applications which are heard before an appellate court vested with revisionary jurisdiction. Basically, an application for revision is made to correct an incorrect or an improper order of a lower court or a tribunal it is a discretionary remedy exercised by court, when existence of special circumstances are shown.. Its object is the due administration of justice and the correction of errors, sometimes committed by the court in order to avoid miscarriages of justice. It is exercised in some cases by a judge on its motion, when an aggrieved person who may not be a party to the action, brings to his notice the fact that, unless the power is exercised, injustice will result’.
Appellate and Revisionary Jurisdiction of the Provincial High Court from the Orders of the Magistrate’s Court
Prior to the Thirteenth Amendment, right of appeal or revision was to the Court of Appeal from any Judgement or final order pronounced by any Magistrate’s Court or Primary Court. This right was provided for in terms of Article 138 of the Constitution, read with section 320(1) of the Code of Criminal Procedure Act in the case of the Magistrate Court. At present there are two courts which exercise the original criminal jurisdiction. They are (1) Provincial High Court established by Article 154P of the Constitution and (2) the Magistrate’s Court situated in the respective judicial zones of the island.
With the Thirteenth Amendment, Article 154 P (3) of the Constitution provided that notwithstanding anything in Article 138, and subject to any law, High Court shall exercise appellate and revisionary jurisdiction in respect of convictions, sentences and orders entered or imposed by Magistrates Courts and Primary Courts within the Province. Further section 4 of the High Court of the Provinces (Special Provisions) Act, No.19 of 1990, has granted a right of appeal to a party aggrieved by any conviction sentence or order entered or imposed by a Magistrate’s Court or a Primary Court to the Provincial High Court. Therefore, it would appear that both the Court of Appeal and the Provincial High Court have been vested with appellate and revisionary jurisdiction in respect of orders made by the Magistrate’s Court and the Primary Court. In the case of the Court of Appeal, appellate and revisionary Jurisdiction is broader, whereas the jurisdiction of the Provisional High Court is limited. Since there is overlapping of jurisdiction, it is evident that provision has been made by section 12 of the High Court of the Provinces (Special Provisions) Act of 1990 to resolve the matter.
Appellate and Revisionary Jurisdiction of the Provincial High Court from Orders of the Labour Tribunals
Previous law relating to appeals from the Labour Tribunals was that a workman, trade union or an employee dissatisfied with the order of a Labour Tribunal had a limited right of appeal ‘on a question of law’ to the Court of Appeal. This right of appeal was provided in terms of section 31D (2) of the Industrial Disputes Act No. 43 of 1950 as amended. However in relation to the revisionary jurisdiction, it has been held in the case of Thameena v Koch that the revisionary powers of the Supreme Court do not extend to revision of orders made by Labour Tribunals.
Today, in terms of section 3 of the High Court of the Provinces (Special Provisions) Act of 1990, the Provincial High Court has been given both the appellate and revisionary jurisdiction in respect of orders made by Labour Tribunals within the Province. Further, section 4 of the said Act referred to above has provided a right of appeal to any dissatisfied person from an order made by a Labour Tribunal to Provincial High Court. Hence, the Provincial High Court has been conferred by High Court of the Provinces (Special Provisions) Act of 1990, with wider jurisdiction than the appellate jurisdiction that was conferred on the Court of Appeal in that under this law there is no limitation that the right of appeal has to be confined to ‘questions of law’. It would also appear that revisionary jurisdiction has now been given to the Provincial High Court from orders made by Labour Tribunal. Here again as stated earlier, in the event of any overlapping of jurisdiction between the Court of Appeal and the Provincial High Court, the matter has to be resolved by the application of section 12 of the High Court of the Provinces (Special Provisions) Act of 1990.
Apart from the above, Industrial Disputes (Amendment) Act No.32 of 1990 has introduced several procedural changes relating to Labour Tribunal. In terms of section 4 of this Amending Act, any person dissatisfied with an order of a Labour Tribunal may appeal to the Provincial High Court within the stipulated time. This is a statutory duty on the High Court to dispose of that appeal within 6 months. A new section 31DD was inserted to the principal enactment through section 5 of the Amending Act. In terms of the said section, any party who is aggrieved by a decision of the Provincial High Court in the exercise of its appellate or revisionary jurisdiction may tender an appeal from that order to the Supreme Court after obtaining leave from the High Court. The jurisdiction sought to be conferred on the High Court at present is much wider as section 3 of the High Court of the Provinces (Special Provisions) Act of 1990 and section 31DD (1) of the Industrial Disputes (Amendment) Act No.32 of 1990, conferred on the High Court an appellate and revisionary jurisdiction. The jurisdiction sought to be conferred on the Supreme Court by section 31DD (1) of the Industrial Disputes (Amendment) Act No.32 of 1990 against judgements of the High Court of the province made in the exercise of its appellate and revisionary jurisdiction is also wider than the appellate jurisdiction conferred on the Court of Appeal by section 9 of the High Court of the Provinces (Special Provisions) Act in so far as it is now not confined to the questions of law and also broke new ground in regard to revision.
In the case of Swasthika Textile Industries Ltd v Tantrige Dayaratne, the Supreme Court had to consider the jurisdiction of the High Court of the Province to hear appeals from orders of Labour Tribunals. The Supreme Court observed that section 3 of the High Court of the Provinces (Special Provisions) Act No.19 of 1990 read with Articles 111, 138 and 154P (3) (c) of the Constitution conferred concurrent appellate and revisionary jurisdiction on the High Court in respect of orders of Labour Tribunals; and section 31D (3) of the Industrial Disputes Act as amended by Act No.32 of 1990, made that jurisdiction exclusive thereby taking away the jurisdiction of the Court of Appeal in that respect. Those provisions were enacted in the exercise of the powers conferred by the Constitution and the question of compliance with Article 82 did not arise nor were they inconsistent with the Constitution, and the question of compliance with between the provisions of those amending Acts and the Constitution, those provisions cannot by any process of interpretation be treated as inoperative or ineffective. In so far as the validity of those provision is concerned.
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