SEC 66 APPLICATIONS - PCPA

PRIMARY COURTS' PROCEDURE ACT (NO. 44 OF 1979) - SECT 66 APPLICATIONS

Duncan Abeynayaka – LLB, Attorney At Law

 

01. VELUPILLAI AND OTHERS V. SIVANATHAN (1993) 1 SLR 123

February 24, 1993.

ISMAIL, J.

Under section 66 (1)(a) of the Primary Courts Procedure Act, the formation of the opinion as to whether a breach of the peace is threatened or likely is left to the police officer inquiring into the dispute. The police officer is empowered to file the information if there is a dispute affecting land and a breach of the peace is threatened or likely. The Magistrate is not put on inquiry as to whether a breach of the peace is threatened or likely. In terms of section 66 (2) the Court is vested with jurisdiction to inquire into and make a determination on the dispute regarding which information is filed either under section 66 (1)(a) or 66 (1)(b).

However when an information is filed under section 66 (1)(b) the only material that the Magistrate would have before him is the affidavit information of an interested person and in such a situation without the benefit of further assistance from a police report, the Magistrate should proceed cautiously and ascertain for himself whether there is a dispute affecting land and whether a breach of the peace is threatened or likely.

Where the party to the dispute had initiated proceedings it was incumbent on the Magistrate to have ascertained for himself on the affidavit tendered by the respondent whether there was a dispute affecting either or both the extents of land described in the two schedules. The scope of the inquiry under this special jurisdiction is of a purely preventive and provisional nature pending the final adjudication of the rights of the parties in a civil court. The Magistrate is not involved in the investigation into title or right to possession which is the function of a civil court.

The expression “dispute affecting land" as interpreted in section 75 of the Primary Courts Procedure Act, includes “any dispute as to the right to possession of any land ..... or as to the right to cultivate any land....... ’.

The Magistrate would have been slow to find that there was a dispute affecting land owing to which a breach of the peace was threatened or likely if he had focussed his attention on the substance of the mere complaint and viewed it in the background of the attempt to obtain title.

The complaint of being prevented from tending the crops in the lands claimed to have been cultivated by the complainant, is not a dispute as to the “right to cultivate the land within the meaning of section 75 of the Primary Courts Procedure Act. This was a complaint relating to interference with cultivation rights which could have resulted in damage or loss of crop in regard to which the Commissioner of Agrarian Services is vested with jurisdiction under section 57 of the Agrarian Services Act.

The information did not disclose a dispute affecting land upon which the Magistrate's Court could have made a determination under Part VII of the Primary Courts Procedure Act.

 

02. KANAGASABAI V. MYLVAGANAM (1976) 78 NLR. 280.

September 24, 1976.

Sharvananda, J.

(1) The mere fact that a suit is pending in a civil court does not deprive the Magistrate of jurisdiction to make an order under Sections 62 and 63 of the Administration of Justice Law, No. 44 of 1973.

(2) It is sufficient for a Magistrate to exercise powers under Section 62 if he is satisfied on the material on record that there is a present fear that there will be a breach of the peace stemming from the dispute unless proceedings are taken under the section.

(3) The Magistrate’s jurisdiction under section 62 extends to disputes relating to the possession of business premises, and is not confined to disputes affecting agricultural or pastoral land.

(4) The inquiry under section 62 is directed to the determination as to who was in actual possession of the land on the date of the issue of the notice under Section 62 (1) irrespective of the rights of the parties or their title to the said land. On his reaching that finding the Magistrate may unless the facts fall with in section 63(3) make an order under section 63 (2).

 

03. RAMALINGAM V. THANGARAJAH (1982) 2 SRI LR 693.

October 19, 1982

SHARVANANDA, J.

In an inquiry into a dispute as to the possession of any land, where a breach of peace is threatened or is likely under Part VII of the Primary Courts Procedure Act, the main point for decision is the actual possession of the land on the date of the filing of the information under section 66; but, where forcible dispossession took place within two months before the date on which the said information was filed the main point is actual possession prior to that alleged date of dispossession. Section 68 is only concerned with the determination as to who was in possession of the land or the part on the date of the filing of the information under section 66. It directs the Judge to declare that the person who was in such possession was entitled to possession of the land or part thereof. Section 68(3) becomes applicable only if the Judge can come to a definite finding that some other party had been forcibly dispossessed within a period of two months next proceeding the date on which the information was filed under section 66. The effect of this sub-section is that it enables a party to be treated to be in possession on the date of the filing of the information though actually he may be found to have been dispossessed before that date provided such dispossession took place within, the period of two months next proceeding the date of the filing of the information. It is only if such a party can be treated or deemed to be in possession on the date of the filing of the information that the person actually in possession can be said not to have been in possession on the date of the filling of the information. Thus, the duty of the judge in proceedings under section 68 is to ascertain which party was or deemed to have been in possession on the relevant date, namely, on the date of the filing of the information under section 66. Under section 68 the Judge is bound to maintain the possession, of such person even if he be a rank trespasser as against any interference even by the rightful owner. This section entitles even a squatter to the protection of the law, unless his possession was acquired within two months of the filing of the information.

That person is entitled to possession until he is evicted by due process of law. A Judge should therefore in an inquiry under Part VII of the aforesaid Act, confine himself to the question of actual possession on the date of filing of the information except in a case where a person who had been in possession of the land had been dispossessed within a period of two months immediately before the date of the information. He is not to decide any question of title or right to possession of the parties to the land. Evidence bearing on title can be considered only when the evidence as to possession is clearly balanced and the presumption of possession which flows from title may tilt the balance in favour of the owner and help in deciding the question of possession.

On the other hand, if the dispute is in regard to any right to any land other than right of possession of such land, the question for decision, according to section 69(1), is who is entitled to the right which is subject of dispute. The word “entitle" here connotes the ownership of the right. The Court has to determine which of the parties has acquired that right, or is entitled for the time being to exercise that right. In contradistinction to section 68, section 69 requires the Court to determine the question which party is entitled to the disputed right preliminary to making an order under section 69(2).

The procedure of an inquiry under Part VII of the Act is suigeneris. The procedure to be adopted and the manner in which the proceedings are to be conducted are clearly set out in Sections 66, 71 and 72 of the Act. Section 66(2) mandates that the special jurisdiction to inquire into disputes regarding which information had been filed, under Section 66(1) should be exercised in the manner provided for in Part VII. The proceedings are of a summary nature and it is essential that they should be disposed of expeditiously. The importance of a speedy completion of the inquiry which culminates in the order under Section 68 or 69 is underscored by the specific time-schedule prescribed by the provisions of the Act. Section 66(3), requires the Court to appoint a date “which shall not be later than three weeks from the date on which the parties were produced or the date fixed for their appearance under Section 66(1) directing the parties to file affidavits setting out their claims and annex thereto any documents on which they rely. When such affidavits are filed the Court is required on application made by parties to grant them time not exceeding two weeks to file counter affidavits with documents, if any. Sub-section 6 provides that where no application has been made for filing counter affidavits or on the date fixed for filing counter affidavits the Court should endeavour, before fixing the case for inquiry to induce the parties to arrive at a settlement of the dispute and if there is no such settlement Court should fix the case for inquiry on a date not later than two weeks of the date fixed for filing affidavits or counter affidavits as the case may be. Section 67 specially postulates that the inquiry should be concluded within three months of its commencement and the Judge should deliver his order within one week of its conclusion. It is incumbent on the Judge to conform to these time limits and to discountenance any elaborate and prolonged inquiry in breach of the time limits.

In this connexion what I said with reference to the provisions of section 62 of the Administration of Justice Law No.44 of 1973 (now repealed) in Kanagasabai Vs. Mailvanaganam, apply equally well to the Section 66 and 68 of the Act which correspond to them:-

“Section 62 of the Administration of Justice Law confers special jurisdiction on a Magistrate to make orders to prevent a dispute affecting land escalating and causing a breach of the peace. The jurisdiction so conferred is a quasi-criminal jurisdiction. The primary object of the jurisdiction so conferred on the Magistrate is the prevention of a breach of the peace arising in respect of a dispute affecting land. The section enables the Magistrate temporarily to settle the dispute between the parties before the Court and maintain the status quo until the rights of the parties are decided by a competent civil Court. All other considerations are subordinated to the imperative necessity of preserving the peace....... At an inquiry under that section the Magistrate is not involved in an investigation into title or right to possession, which is the function of a civil Court. The action taken by the Magistrate is of a purely preventive and provisional nature in a civil dispute, pending final adjudication of the rights of the parties in a civil Court. The proceedings under this section are of a summary nature and it is essential that they should be disposed of as expeditiously as possible .......”

The scheme embodied in this Part is geared to achieve the object of prevention of a breach of the peace. Section 68(2) enjoins the Judge to decide the dispute which gave rise to the threat to a breach of the peace, provisionally and to maintain the status quo until the right of parties are decided by a competent Civil Court. Section 72 prescribes the material on which the determination and order under section 68 and 69 of the Act is to be based. The determination should, in the main, be founded on “the information filed and the affidavits and documents furnished by the parties”. Adducing evidence by way of affidavits and documents is the rule and oral testimony is an exception to be permitted only at the discretion of the Judge. That discretion should be exercised judicially, only in a fit case and not as a matter of course and not be surrendered to parties or their counsel. Under this section the parties are not entitled as of right to lead oral evidence. Section 72 provides:-

“A determination and order under this Part shall be made after examination and consideration of -

(a) the information filed and the affidavits and documents furnished;

(b) such other evidence on any matter arising on the affidavits or documents furnished as the Court may permit to be led on that matter;

(c) such oral or written submissions as may be permitted by the Judge of the Primary Court in his discretion.

The information, affidavits and documents of parties will identify their respective positions in regard to the issue of possession at the time of the filing of the information, for the purpose of the determination and order under section 68. If the question of possession or dispossession by any of the parties at the relevant time is disputed then the Court may permit oral evidence of the parties and their witnesses directed to that question only, for the purpose of ascertaining the true position.

It is imperative that the Judge should so contain the inquiry and not allow parties to enlarge or convert the inquiry into a full scale trial of civil issues, as in a civil case.

…that the provisions as to time limits in Section 66 or 67, though the word ‘shall’ there suggests that they are mandatory, should be construed as being directory and that non-compliance by Court of the provisions of Section 66 or 67 of the Act does not divest the Court of the jurisdiction conferred, on it by Section 66(2) to make the determination and order under Section 68.

 

04. ARLIS V. ABEYNAYAKE (1980) 2 S.LR 84

November 12, 1980.

K. C. E. DE MAVIS, J.

Section 67 (2) of the Primary Courts Procedure Act which requires the judge to deliver his order within one week of the conclusion of the inquiry is clear in laying down a definite period of time within which the order must be delivered and the judge ceases to have jurisdiction after the expiry of such period. Accordingly an order delivered after the expiry of such period will be set aside.

 

05. DAVID APPUHAMY V. YASSASSI THERO [1987] 1 SRI L.R. 253

January 16. 1987.

WIJETUNGA, J.

Under the Primary Courts Procedure Code Act the formation of the opinion as to whether a breach of the peace is threatened or likely is left to the police officer inquiring into the dispute and if he is of such opinion he is required to file an information regarding the dispute with the least possible delay. Where the information is thus filed in a Primary Court, such court is vested with jurisdiction to inquire into and make a determination or order on the dispute.

An 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, the Court will have jurisdiction to proceed with the matter and make a valid order.

An ex parte order made in default of appearance of a party will not be vacated if the affected party fails to give a valid excuse for his default.

Section 68 of the Primary Courts Procedure Act requires the judge of the Primary Court to make a declaration as to who is entitled to possession. Before he could make such a declaration he should make a determination as to who was in possession of the land on the date of the filing of the information under s. 66. Further the Magistrate should evaluate the evidence if there is a dispute regarding identity of the land.

The expression “proceedings" in Rule 46 of the Supreme Court rules means so much of the record as would be necessary to understand the order to be revised and to place it in its proper context.

 

06. ALI V. ABDEEN [2001) 1 SRI L.R. 413

May 25 2001
U. de Z. GUNAW ARDENA, J.

(i) The Primary Court Judge was under a peremptory duty to encourage or make every effort to facilitate dispute settlement before assuming jurisdiction to hold an inquiry into the matter of possession and impose on the parties a settlement by means of Court order.

(ii) The making of an endeavor by the Court to settle amicably is a condition precedent which had to be satisfied before the function of the Primary Court under section 66(7) began to consider who had been in possession.

(iii) The fact that the Primary Court had not made an endeavor to persuade parties to arrive at an amicable settlement fundamentally affects the capacity or deprives the Primary Court of competence to hold an inquiry into the question of possession.

Discussed

Conditio praecedens adimpleri debet prius quam sequatur ejfectus. It means that the condition-precedent must be fulfilled before the effect can follow. To explain the matter further, it is pertinent to consider the effect, respectively, of the operation of sections 66(6) and 66(7) of the relevant Act, which , merits quotation, in this context, and are as follows: sec 66(6): on the date fixed for filing affidavits and documents . . . the court shall before fixing the case for inquiry make every effort to induce parties and persons interested (if any) to arrive at a settlement of the dispute'''” sec. 66(7) : where the parties and persons interested (if any) do not arrive at a settlement, the court shall fix the case for inquiry'''”

It is to be observed that the Primary Court Judge was under a peremptory duty to encourage or make every effort, so to say, to facilitate dispute settlement, before assuming jurisdiction to hold an inquiry into the matter of possession and impose on the parties a settlement by means of the court order. It was obligatory on the Primary Court as a condition-precedent to holding an inquiry, to have made a conscious endeavor to have composed or ironed out the differences between the parties-a duty which, in this instance, had been neglected. The making of an effort by the court was such a duty as should have been done or performed before the court could have validly embarked upon an inquiry in pursuance of or rather in compliance with sec. 66(7) set out above. That is a preliminary requirement which has to be fulfilled before the jurisdiction of the Primary Court exists to hold an inquiry under section 66(7). When Parliament has enacted that provided a certain situation exists, then a tribunal may have certain powers it is clear that the tribunal will not have those powers unless that situation exists. The making of an endeavor by the court to settle amicably is a condition precedent which had to be satisfied before the function of the Primary Court under sec. 66(7) began, that is, to consider who had been in possession. Since the Primary Court had acted without jurisdiction in proceeding to determine the question of possession, its decision is, in fact, of no force or avail in law.

 

07. TUDOR V. ANULAWATHIE AND OTHERS [1999] 3 SRI L R 235

May 27, 1999.

GUNAWARDANA, J.

1. The ultimate object of s. 68, and s. 69 being to restore the person entitled to the right to the possession of land to the possession thereof or to restore the person entitled to the right (other than the right to possession of land) to the enjoyment thereof - the said provision of the law must be rationally construed to authorise by necessary implication if in fact they had not in terms done so, the removal of all obstructions if the need arise, in the process of restoring the right to the person held to be entitled to such right.

"It is true that there is no specific provision in the Primary Courts Procedure Act expressly enabling the Court to Order removal of obstructions in the way of restoration of the right to the person entitled thereto in terms of the determination made by the Court nor is there a prohibition either against the Court exercising such a power or making such an order . . . but the Courts are not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the Code."

2. The correctness of the finding by the Primary Court cannot be tested for want of reasons, which finding lacks the aura of moral persuasiveness - a quality which a reasoned Order alone can have.

Jamis v. K annangara - [1989] 2 Sri LR. 350 (not followed).

 

08. LOKU BANDA V. UKKU BANDA (1982) 2 S L R 704

October 27. 1982

SOZA, J.

Rasnekkumbura belonged in equal shares to Loku Banda, Ukku Banda and Warsakone. Loku Banda was an ande cultivator of Ukku Banda's lot. Disagreement arose and the matter was referred to the Conciliation Board. All three agreed to a survey and by survey Plan No. 1016 Lot 1 was allotted to Ukku Banda, Lot 2 to Warsakone and Lot 3 to Loku Banda.

On 1.4.76 Ukku Banda cultivated his land but was dispossessed by Loku Banda on 2.4.76. On 8.4.76 Loku Banda was ousted.

The Magistrate inquired into the matter and declared that Loku Banda was entitled to cultivate Lot 1 as ande cultivator while Ukku Banda was entitled to receive his landlord’s share until a judgment was given by a competent Court.

The Court of Appeal reversed the Magistrate's Order on the footing that the right to cultivate was an aspect of possession.

1. That the right to cultivate can vest in a person different from the person who has the right to possession.

2. What the Magistrate had to decide was who was entitled to the right to cultivate.

3. The Magistrate's finding that Loku Banda had an ande right to cultivate Lot 1 was correct as ande rights are protected by the Agricultural Lands Law and therefore not wiped out by the certificate of the Conciliation Board.

 

09. PUNCHI NONA V PADUMASENA AND OTHERS 1994 (2) SRI. L R 117.

October 14, 1994.

ISMAIL, J.

Section 68(3) becomes applicable only if the judge can come to a definite finding that some other party had been forcibly dispossessed within a period of two months next preceding the date on which the information was filed. The distinction in section 69 is that it requires the Court to determine the question as to which party is entitled to the disputed right preliminary to making an order under section 69(2) of the Act.

Where the information is filed under section 66(1) (a) of the Primary Courts Procedure Act by a police officer, a Primary Court is vested with jurisdiction to inquire into the dispute. The Police Officer is empowered to file the information only if there is a dispute affecting land and a breach of the peace is threatened or likely. However, when an information is filed by a party to the dispute under section 66(1) (b) it is left to the judge to satisfy himself that there is a dispute affecting land owing to which a breach of the peace is threatened or likely.

The jurisdiction conferred on a Primary Court under section 66 is a special jurisdiction. It is a quasi-criminal jurisdiction. The primary object of the jurisdiction so conferred is the prevention of a breach of the peace arising in respect of a dispute affecting land. The Court in exercising this jurisdiction is not involved in an investigation into title or the right to possession which is the function of a civil court. He is required to take action of a preventive and provisional nature pending final adjudication of rights in a Civil Court.

In an information by a private party under section 66(1) (b) it is incumbent upon the Primary Court Judge to initially satisfy himself as to whether there was a threat or likelihood of a breach of the peace and whether he was justified in assuming such a special jurisdiction under the circumstances. Failure to so satisfy himself deprives the judge of jurisdiction.

 

10. K.D.WIJETHUNGA VS SENARATH MUDALIGE PABILIS SINGHO CA/PHC/30/2009

29.03.2017

L.T.B. Dehideniya J.

In an action filed under section 66(1)(b) of the Primary Court Procedure Act, the Primary Court Judge has to be satisfied that the breach of the peace is threatened or likely. In the present case the learned Magistrate has considered the two complaints made by the Respondent and the daughter regarding the incident. The Appellant contest the truthfulness of the contents of the statements on the basis that the Respondent has failed to tender any inquiry notes or details of charges filed against the Appellant by the police on this statements. I believe that the Court has to be mindful of the fact that the Respondent was not charged for making a false statement to the police too. The application before the High Court being a revision application and not being an appeal, the learned High Court Judge need not consider the correctness of the conclusions of the Magistrate based on facts. Revision is not to correct the errors committed by the lower courts.