Grounds for an aggrieved person to exercise a right of appeal under Section 16 of the Judicature Act
"In order for an aggrieved person to exercise a right of appeal under Section 16 of the Judicature Act, following criteria must be satisfied.
1. There must be an order made by the High Court in a criminal case.
2. Leave of the Court of Appeal must first be obtained.
3. It must be an order in which the Attorney General has a right of appeal."
Ravi Karunanayake v. Attorney General
CA (PHC) APN 66/2010 decided on 26.5.2010
Sisira de Abrew J.
The accused petitioner and two others were indicted in the High Court of Colombo under the provisions of the Exchange Control Act. When the charges were read out to the accused, prior to pleading to charges, learned counsel for the accused objected to the jurisdiction of court and submitted that the High Court had, in terms of the provisions of the Exchange Control Act, no jurisdiction to hear and determine the case. The learned High Court Judge, by his order dated 23.2.2010, overruled the said objection and decided to proceed with the case. The 3rd accused petitioner (hereinafter referred to as the petitioner), on 11.3.2010, filed a petition of appeal addressed to the President of the court of appeal and the other judges of the Court of Appeal in the High Court. The learned High Court Judge, by order dated 17.3.2010, refused the application to stay the proceedings and decided to proceed with the case. The learned High Court Judge however forwarded the petition of appeal to the Court of Appeal. The learned High Court Judge in the said order further observed that the order dated 23.2.2010 was not a final order. The petitioner has filed the present petition dated 5.5.2010 to revise and set aside the order dated 17.3.2010.
Learned counsel for the petitioner contended that since the learned High Court Judge had decided to submit the petition of appeal to the Court of Appeal, she should stay the proceedings and forward the original case record to the Court of Appeal and that the only provision which empowers the trial court to reject a petition of appeal is Section 332 of the Criminal Procedure Code (CPC). That is to say if the appeal is not given in the manner prescribed in the CPC, it can be returned to the appellant for the purpose of it being amended. He relied on the judgment of the Supreme Court in Anurudda Ratwatte vs The Attorney General [2003] 2 SLR 39. He further contended that where a party dissatisfied with an order of trial court files a petition of appeal against such an order, High Court Judge is bound to stay the proceedings and forward the original case record to the court of Appeal. If this argument is correct, whenever a party dissatisfied with an order of the trial court whether it is a final order or not files a petition of appeal, the proceedings of the trial court must be stayed. If this procedure is adopted by trial courts, can the trial court conclude cases expeditiously? I say no. If the said procedure is adopted it will lead to an absurd situation and the public faith in the judicial system of this country will start eroding. Adoption of the said procedure will undoubtedly frustrate the smooth functioning of the trial court. Therefore if a party dissatisfied with an order of the High Court files a petition of appeal, the order appealed against, in my view, must be a final order. This contention is strengthened by the provisions of Section 331(2) pf the CPC which contemplates of a final order. It reads:
“In computing the time within which an appeal may be preferred, the day on which the judgment or final order appealed against was pronounced shall be included, but all Sundays and public holidays shall be excluded.”
Therefore it is seen if a party aggrieved by an order of the trial court files an appeal under Section 331 of the CPC, the order appealed against must be a final order. For the purpose of completeness, I may consider Section 16 of the Judicature Act No. 2 of 1978 which reads as
follows:
“A person aggrieved by a judgment, order or sentence of the High Court in criminal cases may appeal to the Court of Appeal with the leave of such court first had and obtained in all cases in which the Attorney General has a right of appeal under this chapter.”
Under this section a person aggrieved by an order of trial court in a criminal case can appeal to the Court of Appeal but to do so he must first obtain the leave of the Court of Appeal. However such person can’t appeal in all cases. He can appeal only in cases in which the Attorney General has a right of appeal. Thus in order for an aggrieved person to exercise a right of appeal under Section 16 of the Judicature Act, following criteria must be satisfied.
1. There must be an order made by the High Court in a criminal case.
2. Leave of the Court of Appeal must first be obtained.
3. It must be an order in which the Attorney General has a right of appeal.
The present petition of appeal does not satisfy the 2nd and 3rd criteria above and therefore cannot be considered under Section 16 of the Judicature Act.
For the above reasons I hold that a party dissatisfied with an order of the High Court in a criminal case can file a petition of appeal under Section 331 of the CPC only if the order is a final order.
Learned counsel contended that the learned High Court Judge should have acted under Section 333 of the CPC. To act under this section there must be a petition of appeal filed in compliance with Section 331 of the CPC. To file such a petition of appeal there must be a final order. I must now consider the order made by the learned High Court Judge on 23.2.2010 is a final order or not. The present petition of appeal has been filed under Section 331 of the CPC (vide P5). Therefore if the order dated 23.2.2010 is not a final order the petition of appeal should fail.
Learned counsel for the appellant cited Anurudda Ratwatte and others vs Attorney General (supra) and contended that the order refusing bail was one made in the course of the trial and therefore it was an interim order. He further contended that appeal filed against the said order was entertained by the Supreme Court. In the said case the application for bail made during the pendency of the trial was refused by the trial-at-bar. Thus with the refusal of the application for bail, release of the accused on bail came to an end. Thus as far as the release of the accused on bail is concerned the order refusing bail was a final order. Therefore the contention that the order refusing bail is an interim order should fail. In fact the Supreme Court held thus: “the impugned order was a final order (in respect of bail) appealable under Section 451(3) of the code”. For these reasons I hold that the above contention of the learned counsel for the petitioner to be untenable.
In order to decide whether an order is a final order or not I am guided by some judicial decisions. In Shubrook vs Tufnell [1882] 9 QBD 621 Jessel MR and Lindely LJ held that an order is final if it finally determines the matter in litigation. Justice Dheerarathne in Ranjith vs Kusunawathi [1998] 3SLR termed this as order approach. In Salaman vs Warner & others [1891] 1QB 734 Court of Appeal in England held that the final order is one made on such application or proceeding that, for whichever side the order was given, it will, if it stands, finally determine the matter in litigation. This is the application approach (vide Ranjith vs Kusumawathi (supra).
Justice Ranjith Silva in the case of Sunil Samarakoon vs NDR Yapa –CA 539/99(F)-decided on 2.3.2009 (unreported) observed thus: “Having considered both the order approach and the application approach I am of the opinion that the best approach would be what I term as common approach that is an approach common to both parties.”
In Bozson vs Altrincham Urban District Council [1903] 1KB 547 at 548 Lord Alverstone CJ dealing with a question whether an order was a final order or interlocutory order laid down the following test: “It seems to me that the real test for determining this question ought to be this: Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order, but if it does not, it is then, in my opinion an interlocutory order”. Swinfen Eady L.J (with whom Pickford and Bankes LJJ agreed) in Isaac & Sons v. Salbstein (1916) 2 KB 139 at 147 approved the test of finality stated by Lord Alverstone C J.
Having considered the above judicial decisions, I would like to follow the view expressed by Lord Alverstone CJ in Bozson vs Altrincham Urban Council (supra). In the instant case after the order dated 23.2.2010, the case had not come to an end. The evidence of witnesses had been recorded. Thus I ask the question: Does the order dated 23.2.2010 finally dispose of the rights of the parties? It does not. I therefore hold that the order dated 23.2.2010 is not a final order and that the petition of appeal dated 11.3.2010 (P5) filed by the petitioner is not a petition of appeal in terms of Section 331 of the CPC. Therefore the learned High Court Judge is not bound to act under Section 333 of the CPC. The decision of the learned High Court Judge to forward the petition of appeal to the Court of Appeal does not mean that he should act under Section 333 of the CPC. For these reasons I hold that the learned High Court Judge was right when she, by order dated 17.3.2010, refused to stay the proceedings and decided to proceed with the case.
For the aforementioned reasons I hold that there is no merit in the petition of the petitioner. I therefore refuse to issue notice on the respondents and dismiss the petition. I direct the Registrar of this court to annex a copy of this judgment to the file in which the petition of appeal dated 11.3.2010 [case No. HC Colombo 4648/04] is registered.
Petition dismissed.
Judge of the court of Appeal
Upaly Abeyrathne J.
I agree.
Judge of the court of Appeal
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