1956Present : Weerasooriya, J., and Sansoni, J.
IvANDASWAMY el a!., Petitioners, and KAN DA VAX AM el al.,
C. 5SG—Application for Conditional Leave to appeal to the PrivyCouncil in S.C. 293, D.G. Point Pedro 3,955.
Privy Council—A pplicalioii for conditional leave to appeal—Hot ice to opposite party—Power of Proctor to yive such notice without client’s authority—The .Appeals(Privy Council) Ordinance (Cap. .*li), Schedule, Rule.2.
Where a Proctor, whose proxy did not empower him to act for his clientfor the purpose of takings steps to appeal to the Privy Council, purported,without any other authority from his client, to give notice to the oppositeparty in terms of Rulo 2 of tho Schedule to the Appeals (Privy Council)Ordinance—
Held, that the notice was invalid. Hoc could such notice bo made valid byany subsequent grant of authority after the expiry of tho period of fourteendays prescribed under tho Rule.
jAl I* P LI GAT ION for conditional leave to appeal to the Privy Council.
S. J. V. Chehxinayakam, Q.C.. with A. Nagendra, for the plaintiffs-pet itioners.
C. Thiagalingam, Q.C., with V. Arulambalam and G. Chellappah,for the 1st and 2nd defendants-respondents..
Cur. ado. vull.
May 30, 19n0. Weerasooriya, J.—
This is a joint application by tho plaintiffs and tho 3rd and 4thdefendants for conditional leave to appeal to Her Majesty in Councilagainst the judgment of this Court which is reported in 57 New LawReports, page 241. The facts of the case are fully sot out in that judgment,
Tho respondents to the present application are tho. 1st and 2nddefendants, and several objections were taken on their behalf by Mr.Thiagalingam against the granting of the application.
One of these objections was that no notice of their intended applica-tion for leave to appeal was given by the applicants in terms of Rulo 2of the rules in the Schedule to The Appeals (Privy Council) Ordinance
3J’ > D 65079 (0/57)'
(Cap! 85). On the 5th November, 1955, which is within the period offourteen days allowed for such notice under Rule 2, a registered letter- was posted to the 1st and 2nd defendants (who are husband and wife)giving them notice of the intended application. This letter is signed byProctor Subramaniam as proctor for the plaintiffs and by ProctorsICandiah and Mylvaganam as proctors for the 3rd and 4th defendants.While proxies in favour of these proctors had been granted by theplaintiffs and the 3rd and 4th defendants rcsjiectively for the jmrposeof the action, it was conceded by Mr. Ghelvanayakam who appearedfor them at the hearing of this application that the authoritygranted by thoso proxies did not empower the proctors to act for themfor the purpose of the requisite notice under Rule 2. In the originalapplication and supporting affidavit filed by the applicants it was notstated that the proctors, in purporting to give on their behalf the noticein the registered letter referred to, acted on any authority other thanthe authority derived.from the proxies already granted in their favour.
After the 1st and 2nd defendants had filed a statement of objections,which included the particular objection under consideration, a jointcounter-affidavit dated the 5th February, 1956, was filed by the appli-cants in which it is staled that they had “ duly authorised ” their proctorsto send the notice dated the 5th November, 1955. This vague statementleaves it open to conjecture whether the applicants relied on suchauthority as was conferred in the proxies previously granted by themto the proctors who signed that notice, or whether an express authorityto send the notice had been given by them to the proctors. No affidavit-lias been filed by the proctors themselves as to the nature of the authorityunder which they purported to act in giving that notice. In the circum-stances I hold that the applicants have not made out to the satisfactionof this Court that at the time when the notice dated the 5th November,
was sent the proctors who signed it-had any authority to act onbehalf of the applicants for the purpose of such notice.
Mr. Ghelvanayakam submitted, however, that even if that noticehad been given without the authority of the applicants, the subsequentratification by them of the act of the proctors lias had the effect ofmaking it the act of the aj)plicants. The purported ratification is con-tained in the same affidavit of t-lie applicants dated the 5th February,
which, however, is long after the expiry of the period of fourteendays within which t-he notice under Rule 2 had to be given.
The doctrine of ratification lias been explained by Timlal, C.J., inlyilson v. Tumman 1 in the following terms :—
That an act done, for another, by a person, not assuming to actfor himself, but for such other person, though without any precedentauthority whatever, becomes the act of the principal, if subsequentlyratified by him, is the known and well-established rule of law. In thatcase the principal is bound by his act, whether it be for his detrimentor his advantage, and whether it be founded on a tort or a contract,to the same extent as by, and with all the consequences which followfrom, the same act clone by his previous authoiily. ”
1 (1SJ3) G M <0 O. 230 at 212.
But Bowstcad in his Law of Agency 1 states that ratification can onlytake place in accordance with and subject to certain rules and qualifica-tions, one of which is that where it is essential to the validity of an actthat it should be done within a certain time, the act cannot be ratifiedafter the expiration of that time, to the prejudice of any third person.It has, thus, been held that where a person purporting to act on behalf ofa landlord, but without his authority, gives a tenant notice to quit,such notice cannot bo made binding on tho tenant by the landlord’sratification after the notice had begun to operate—J farm v. Walters2.So also, where two partners had agreed that on the death of one of themtho survivor shall have the option of purchasing the sha're of the deceasedon giving notice to his executors within three months after death and,one of the partners having subsequently died, a solicitor purportingto act on behalf of the surviving partner, but without his authority,gave notice to the executors of the deceased partner, within the prescribedtime, of the intention of the surviving partner to exercise the option,it was held that such notice could not be ratified after the expirationof the time so as to bind the executors—Dibblns v. Dibbins 3.
It is clear, therefore, that the ratification by the applicants on tho 5thPebruary, 1956, of the notice given on the 5th November, 1955, cannothave the effect contended for by Mr. Chelvanayakam. Consequentlythe applicants must bo regarded as having failed to give the requisitenotice in terms of Rule 2. Tho provisions of this rule are peremptoryand the Court has no pow er to extend the time for the giving of suchnotice unlike where an act is required to be done within a prescribedtime under the Appellate Procedure (Privy Council) Order, 1921, whichhas been made under Sections 3 (b) and 4 (1) of the Appeals (PrivyCouncil) Ordinance and which contains express provision (Rule IS) forextending the time allowed by that Order for doing any act notwith-standing that the time has expired. In the result, the present applicationfor conditional leave to appeal cannot be maintained.'
There arc certain decisions of this Court which have held that an actdone as a step in a pending action by a proctor purporting to do it onbehalf of a party to the action, who had, however, omitted to grant aproxy authorising such act, may be ratified by the subsequent grantingof a proxy even though after the expiry of the time for doing such act.
In Kadirgamadas el al. v. Sttppiah el al.* the proctor who had filed thepetition of appeal on behalf of some of the appellants had no proxyin his favour at the time he filed the' appeal. But it was held, followingthe decision in Tillekeralne v. Wijesinghe 5, that the subsequent filingof a proxy, even after the appealable time had lapsed, cured tho irregu-larity. In the present case no proxy has been granted even subsequentlyby the applicants in favour of the proctors who sent the notice datedtho 5th November, 1955, authorising them to represent the applicantsfor the purposes of proceedings under tho Appeals (Privy Council)Ordinance. Moreover, the decision in each of the two eases referredto went on the basis that, notwithstanding the absence of the proxy, the
1 (11th ed) 36.
3 (1830) 10 B. <h Q. 626.
3 (1896) 2 Ch. 348.
3 (1908) 11 y, L. R. 270.
« (1953) 56 N. Ii. R. 172.
Court was satisfied that the proctor had, at the material time, theauthority of the client on whoso behalf ho purported to act. The subse-quent granting of the proxy did not, therefore, strictly amount to aratification (of an act done without precedent authority) as explainedin Wilson v. Turn? nan (supra), and these decisions do not appear to be adeparture from the rule stated by Bowstead that where it is essentialto the validity of aiiact that it should be done within a certain time theratification of it must also be within that time. I have already statedmy reasons for holding that the notice dated the 5th November, 1955,was not sent with the authority of the applicants and cannot bo regardedas a notice given by them.
The conclusion which I have reached makes it umiccessary for me toconsider the other objections raised by Mr. Thiagalingam.
The application for conditional leave to appeal is refused with costs.
Sansoni, J.—I agree.
KANDASWAMY et al., Petitioner, and KANDAVANAM et al., Respondents
1956Present : Weerasooriya, J., and Sansoni, J.