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Report No. 54

Basic Principle departed from

1J.51. It appears to us that the wide language of section 100, and the somewhat liberal interpretation placed judicially on it, have practically resulted in giving a good by to the basic principle1 that on questions of fact, decisions of the Courts of first instance should be final, subject to one appeal.

1. See "Main principle, etc." supra.

Proper role of High Court

1J.52. This situation necessitates a restatement of the proper role of the High Court. We state below what, in our view, is its proper role.

High Court not an ordinary Court of last resort

1J.53. Standing as it does at the apex of a hierarchy, the High Court is no ordinary court of last resort. Its special position does not fit easily into the well-worn epigram that trial courts search for truth and appellate courts search for error.

1J.54. This is our basic approach to the role of the High Court. We do not conceive of second appeals as "yet another dice in the gamble."

1J.55. There should be one authoritative and dignified tribunal in various appellate matters1 to give decisions which are recognised as binding all over the State, and which keep alive the immense unity of the law.

1. Cf. Lord Birkenhead's Description of the Privy Council, (1927) 63 LJ 304.

Litigants to be discouraged from persistent appeals

1J.56. The question could perhaps be asked, why the litigant who wishes to have justice from the highest Court of the State should be denied the opportunity to do so, at least where there is a flaw in the conclusion on facts reached by the trial Court or by the Court of first appeal.

1J.57. Our answer to this would be, that even litigants have to be protected against too persistent a pursuit of their goal of perfectly satisfactory justice. An unqualified right of first appeal may be necessary for the satisfaction of the defeated litigant; but a wide right of second appeal is more in the nature of a luxury.

1J.58. The rationale behind allowing a second appeal on a question of law is that there ought to be some tribunal having a jurisdiction that will enable it to maintain, and, where necessary, re-establish, uniformity throughout the State on important legal issues, so that within the area of the State, the law, in so far as it is not enacted law should be laid down, or capable of being laid down, by one court whose rulings will be binding on all courts, tribunals and authorities within the area over which it has jurisdiction. This is implicit in any legal system where the higher courts have authority to make binding decisions on question of law.

Justification for appeal on question of law

1J.59. When a case involves a substantial point of law, the general interest of society in the predictability of the law clearly necessitates a system of appeals from courts of first instance to a central appeal court. As has been observed,1 "The real justification for appeals on questions of this sort is not so much that the law laid down by the appeal court is likely to be superior to that laid down by a lower court as that there should be a final rule laid down which binds all future courts and so facilitates the prediction of the law. In such a case the individual litigants are sacrificed, with some justification, on the altar of law-making, and must find such consolation as they can in the monument of a leading case".

1. Douglas Payne Appeals on Questions of Fact, (1958) Current Legal Problem 181, 188.

1J.60. There is, in our view, no justification for allowing second appeal on question of fact, and we should specifically state that procedural defects of the nature mentioned in clause (c) of section 100 cannot constitute a sufficient basis for invoking appellate jurisdiction in second appeal, unless they raise substantial questions of law.

The Code of Civil Procedure, 1908 Back

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