Appeals

Question 1

two types of appeals

Answer 1

application for leave to appeal
final appeal

Question 2

final appeal sections

Answer 2

754
755
758
769
774

Question 3

754 (1)

Answer 3

754. (1) Any person who shall be
     dissatisfied with ANY JUDGMENT pronounced
     by any original court in any civil action,
     proceeding or matter to which he is a party
     may prefer an appeal to the Court of
     Appeal AGAINST SUCH JUDGMENT for any error in fact or in lawany person who is dissatisfied with order made by original court
     proceeding or matter to which he is party
     judgement for any error in fact or law

Question 4

754 (2)

Answer 4

(2) Any person who shall be dissatisfied
with any ORDER made by any original court
IN THE COURSE OF ANY CIVIL ACTION, proceeding, or matter to which he is or seeks to be aparty, may prefer an appeal to the Court of Appeal AGAINST SUCH ORDER for the correction of any error in fact or in law, with the leave of the Court of Appeal first had and
obtained.

Question 5

754 (3)

Answer 5

(3) Every appeal to the Court of Appeal
from any judgment or decree of any original
court, shall be lodged by giving notice of
appeal to the original court within such time
and in the form and manner hereinafter
provided.

notice of appeal to the original court before the time prescribed

Question 6

754 (4)

Answer 6

14 days from the date the judgement pronounced
exclusive of the judgement date
day the petition was presented
Sundays and public holidays

Question 7

754 (5)

Answer 7

judgement means judgment” means any judgment or order having the effect of a final
judgment made by any civil court;
and
order means the final expression of
any decision in any civil action, proceeding or matter which is not a judgment.

Question 8

755 (1) - contents of notice of appeal

Answer 8

duly stamped, signed by the petitioner, good and suitable paper
(a) name of the court from which the appeal is preferred
(b) number of the action
(c) names and addresses of the parties to the action
(d) names of the appellant and respondent
(e) nature of the relief claimed

Question 9

755 (2)

Answer 9

proof of service of copy of the notice on the respondent

Question 10

755 (3)

Answer 10

60 days from the delivery of judgement
to the original court
circumstances and objections
signed by appellant or his attorney
no stamp duty

Question 11

755 (4)

Answer 11

when the petition of appeal is filed
original court shall forward the petition, papers and proceedings of the case,
speedily as possible
can retain an office copy
certificate from the registrar of courts (dates (institution, decision and notice of appeal), whose favor)

Question 12

Section 758 (1) - contents of petition of appeal

Answer 12

in good and suitable paper
(a) name of the court the case is pending
(b) names of the parties to the action
(c) names of the appellant and respondent
(d) address to the court of appeal
(e) plain and concise statement of ground appeal and objections
(f) demand or the relief claimed

Question 13

Section 758 (2)

Answer 13

not confined to the grounds mentioned
not rest on any ground not set forth

Question 14

Section 769

Answer 14

appellant and respondent to be heard

Question 15

Section 774 (1)

Answer 15

pronouncing the judgement

Question 16

Section 774 (2)

Answer 16

(a) points of determination
(b) decision of the judges
(c) reasons which have led to the decision
(d) the relief, if any

Question 17

Cases

Selenchina v Marikkar

Question 18

Gunarathna v Thambinayagam

Answer 18

right of appeal is a statutory right expressely granted and created by the statute

Question 19

Municipal Council of Colombo v Piyasena

Answer 19

a petition of appeal filed 65days from the date of judgment was held to be out of time.

Question 20

Seelawathie v Jayasinghe

Answer 20

when a party to a case has an attorney at law on record it is such attorney at law and not the party who can lodge an appeal and take steps.

Question 21

Keerthiratne v Udena Jayasekara

Answer 21

the filing of a notice of appeal must be followed by presentation of the peition of appeal within 60 days. both steps are imperative and mandatory. the responsibility is on the attorney at law on record and not on the petitioner.

Question 22

Peter Singho v Costa

Answer 22

in computing the time limits for filing the notice of appeal and petition of appeal only the date on which the judgement was pronounced can be excluded.
illness of the appallant four days after the date on which the notice of appeal was presentedd is not a satisfactory explanation. such failure is fatal

Question 23

Manamperi Somawathie v Buwaneswari

Answer 23

A party appellant could present a notice of appeal personally and sing the petition of appeal only when there is no registered attorney of his on reord at the relevant time

Question 24

Samaranayake v Meddegewatta

Answer 24

where the registered attorney at law incapacitated from signing by illness and his name was signed on the petition of appeal by another with his consent there is sufficient compliance with the requirements of Section 755 (3) of the CPC.
the fact that the appellant also signed the peition does not invalidate the peition.

Question 25

application for leave to appeal

sections

Answer 25

section 754 (2)
section 754 (5)
section 756
758 (1)

Question 26

cases

Answer 26

Anushka Wettasinghe v Nimal Weerakkodi 1981 (2) SLR 423.
Rashid Ali v Mohammad Ali 1981 (2) SLR 29
Kiriwanthe v Nawaratne

Question 27

Anushka Wettasinghe v Nimal Weerakkodi

Answer 27

The granting of leave to appeal will depend on the circumstances of each case. But the guidelines are:
1. The court will discourage appeals against incidental decisions when an appeal may effectively be taken against the order disposing of the matter under consideration at its final stage.
2. Leave to appeal will not be granted from every incidental order relating to the admission or rejection of evidence for to do so would be to open the floodgates to interminable litigation. But if the incidental order goes to the root of the matter it is both convenient and in the interests of both parties that the correctness of the order be tested at the earliest possible stage, then leave to appeal will be granted.
3. Another test is, will a decision of the appellate tribunal on the incidental order obviate the necessity of a second trial?
4. the main consideration is to secure finality in proceeding without undue delay or unnecessary expenses

Question 28

Rashid Ali v Mohammad Ali

Answer 28

court does not expect a person to do the impossible and situation where the parties are left no time to obtain documents are required by Rule 46 in view of the great urgency of the matter of the Court may permit the petitioner to comply with the requirement subsequent to filing of the petition. Although the rule 46 has a mandatory effect any omission can be rectified at a later stage with permission of court.

Question 29

Kiriwanthe v Nawaratne

Answer 29

that the observance of rule 46 is mandatory and the failure on the party of the petitioners to comply with the said Rule is a fatal irregularity which would disable the petitioner from maintaining his application
A failure to comply with the rule is curable by subsequent compliance where the court holds that initial compliance was impossible by reason of circumstances which are beyond the control of the applicant. The court may also permit the amendment of papers filed or the filing of additional papers in terms of Rule 50.
Need to keep the channel of procedure open for justice to flow freely and smoothly and the need to maintain the discipline of the law. At the same time the court will not permit mere technicalities to stand in the way of the court doing justice.