DEEN And others
COURT OF APPEALWUETUNGA J. & S.N. SILVA J.
CA NO. 215/87 (Final)
D.C.COLOMBO No. 2979 7/T.
MARCH 01. 1988.
Registered attorney — Civil Procedure Code, Ss. 24. 27(2). 28 — Notice andpetition of appeal signed by appellant against order granting Probate of Lest Will— Ss. 755 (1) and (3) 759 (2) C.P.C. — Reservation of right to move in revision.
When there is an attorney-at-law appointed by a party such party must take allsteps in the case, through such attorney-at-law. The appointment under S. 24C.P.C. of the attorney-at-law remains valid in terms of s. 27(2) until allproceedings in the action are ended or until death or incapacity of the attorneyand in such latter event the party represented by such attorney should be given30 days notice under S. 28 C P.C. to appoint another attorney. The registeredattorney or counsel instructed by him alone can act for such party except wherethe law expressly provides that any particular act should be done by any parly inperson.
The provisions of law stating that the notice and petition of appeal "shall besigned by the appellant or his registered attorney" enable the party himself tosign only when there is no registered attorney. The defect caused by the party^signing when there was his registered attorney holding his proxy goes to thebasid validity of the notice and petition of appeal and as such it is not curable interms of the provisions of section 759(2) CPC.
The right to obtain review by revision on the question whether the order of courtrejecting the appellants application objecting to the grant of probate andgranting probate of the Last Will was a final judgment or only an order requiringleave to appeal was reserved in view of the fact that the dispute was regardingthe validity of a Last Will raised by a child of (he testator and no issues wereframed or evidence led on the question.
Cases referred to:
Seefawathie and another v. Jayasinghe (1985) 2 Sri LR266
Silva v. Cumaratunga 40 NLR 139
Anthonisz v. Derolis 6 NLR 161
Emmanuel v. Ratnasingham 34 NLR 126
APPEAL from order of the District Judge of Colombo
Lalanath de Silva for the appellant
5. Mahenthiran with S. K. Nageswaran for respondents.
Cur. adv. vult.
March 25. 19888. N.'SILVA. J:
At the commencement of the hearing of this appeal. Counselforth® Respondents raised two preliminary objections and urgedthat the appeal be rejected. It was decided to hear the parties inlimine on the two objections. The objections are:—
that the Appellant has a registered Attorney whoseappointment was valid at the time the appeal waspresented and that the notice of appeal and the petition ofappeal should be signed by such Attorney. The said noticeand the petition had been signed by the Appellant, incontravention of the provisions of Section 755(1) and (3)of the Civil Procedure Code:
that the order dated 10.2.1987 of the District Court fromwhich the appeal was preferred iS not a judgment withinthe meaning of Section 754(1) of the Civil ProcedureCode, and that the Appellant should, have made anapplication for Leave to Appeal to this Court instead ofpresenting .the appeal to the District Court. That in anyevent the Appellant did not have a locus standi to appealagainst the said order.
I will briefly set out the facts as are relevant to the twoobjections.
On 18.10.1984 the Respondents made an application to theDistrict Court to prove the Last Will of S. M. Mohideen Hadjiar.They moved for an Order Absolute in the first instance, grantingthem Probate. The Respondents being sons of the deceased arenamed as joint Executors of the Last Will. The Respondents andFousul Fathima, being the 5th daughter of the deceased, takeproperty iJhder the Last Will to the exclusion of the otherchildren. The appellant is the eldest daughter of the deceasedand she is not a beneficiary under the said Last will.
On 26.10.1984. the District Judge refused to make orderabsolute in the first instance, and directed that the otherbeneficiary named above be iiade a Respondent.
On 4.12.1984 the Appellant filed Petition supported by anAffidavit disputing the Last Will and objecting to the grant ofProbate. She also moved to be added as a Respondent. On thesame day the Respondents filed amended Petition pursuant tothe said direction of the District Judge.
On 28.1.1985 the District Judge entered decree nisi anddirected that it be published, which was done on 14.2.1985.Subsequently the matter was fixed for inquiry on several datesbut no issues were framed and no evidence was recorded.Counsel tendered written submissions and the Court by its orderdated 2.10.1987 refused the Petition of the Petitioner with costsand entered Order Absolute granting Probate to theRespondents.
Notice and Petition of Appeal were presented to the DistrictCourt within the prescribed time. Both documents have beensigned by the Petitioner herself. It is to be noted that her originalPetition to the District Court, referred to above, was signed by anAttorney-at-Law, with a proxy from her. Hence that Attorney-at-Law is considered the registered Attorney in terms of Section 5of the Civil Procedure Code! That proxy continues in force andQounjfel for the Petitioner appeared in this Court on instructionsreceived from the registered Attorney.
The first objection is based on the provisions of Section755(1) (3), that read as follows:
755 (1) "Every Notice of Appeal shall be distinctly written ongood and suitable paper and shall be signed by theAppellant or his registered Attorney and shall beduly stamped"
"Every Appellant shall'within 60 days irom thedate of the judgment or decree appealed agajpstpresent to the original Court a Petition pf Appealsetting out the.
particulars required by Section 758. shall be signed
by the Appellant or his registered Attorney
Learned Counsel for the Respondents argued that theAppellant should sigq the Notice and the Petition of Appeal asrequired only if that Appellant did not have a registered Attorney.
If the Appellant ha% a registered Attorney the Notice and thePetition must be signed by that Attorney and no one else.Counsel based the argument on a decision of this Court in thecase of Seelawathie and another vs. Jayasinghe (V.n that case.Section 323 (1) of the Administration of Justice Law whichcontained an identical provision with regard to the signature on aNotice of Appeal was interpreted in the manner contended for byCounsel.
Counsel for the Appellant invited us to re-consider the decisionin the said case because that interpretation places anunwarranted restriction on the plain meaning of the provision. Healso contended that the previous decisions of the formerSupreme Court dealt with situations where the Petition of Appealwas signed by a Proctor when there was another's proxy onrecord, and as such do not constitute authority for the saiddecision.
The contention of the Counsel for the Appellant would becorrect if the words, "shall be signed by the Appellant or hisregistered Attorney" are taken in isolation and given a literal,construction. However, it is a well accepted principle <fF%interpretation that the statute has to be read as a whole and that,every clause should be construed with reference to the contextand the other clauses of the Act. Maxwell has stated thisprinciple with reference to a case decided as far back as 1505,as follows:
"It was resolved in the case of Lincoln College that the goodexpositor of an Act of Parliament should "make constructionon all the parts together, and not of one part only by itself."Every clause of a statute is to "be construed with referenceto tffe context and other clauses of the Act, so as, as far aspossible, to make a consistent enactment of the wholestatige[Maxwell on Interpretation of Statutes 12th Editionpage 47].
Indeed, in a law dealing with procedure it is imperative thatphrases such as the one at issue, be interpreted bearing in mindthe scheme of the Code, a«d having as the objective theavoidance of disorder and confusion in the procedure.
Section 24 of the Civil Procedure Code provides for a party toappoint a Proctor (Attorney-at-Law) "to act t>n behalf of suchparty" in making or doing "any appearance, application or adt inor to any Court required or authorised to be made or done bysuch party." The proxy which constitutes the appointment is inwriting signed by the party and filed in Courj. In terms of Section27(2) it remains valid until all proceedings in the action areended. The situations in which a proxy ceases to be in force atany previous state are specified in Section 27(2). Thesesituations relate to the death or other incapacity to act on thepart of the Attorney. In such event. Section 28 provides that nofurther proceedings shall be taken against the party representedby such Attorney until he has been given 30 days notice toappoint another Attorney. The necessary inference to be drawnfrom these provisions is that when a party gives a proxy to anAttorney all acts required to be done by that party will be doneon his behalf by the Attorney, except where the law expresslyprovides that any particular act should be done by the party inperson.
The’proxy of the Appellant which is filed of record is in the
sual form and authorises the Attorney to take all necessarysteps is connection with the case. In particular it authorises theAttorney to, if he considers it appropriate to appeal against anyorder and to take necessary steps in connection with suchappeal including the provision of security by hypothecation or bybond and so on. Therefore, as long as this proxy remains valid, itis only the registered Attorney who is authorised to act on behalfof the party in presenting and prosecuting the appeal. Theauthority flows from the appointment given by the Appellantherself. If she intended to act on her own it was incumbent onher, in the first instance, to revoke the proxy in the manner,provided for in Section 27(2) of the Civil Procedure Code.
Several sections of the Civil Procedure Code provide thatcertain acts will be done by the party or his Proctor (Attorney-at-Law). These formulations being jimilar to what is contained, insection 755(1) and (3) are fouBd. for instance, in section 91(filing motions). Section 101(2) (admitting the genuineness ofdocuments.) section 151 (stating the case at the begirring of trialand calling witne&es) and section 224 (signing an applicationfor*a Writ of Execution). It is unthinkable that in all thosesituations, a party who has a registered Attorney couldhimselfattend to the particular act. Therefore phrases such as "by thatapplicant in person or his Advocate or Proctor" (Section 91). "bythe other party or his Proctor" (Section 101). "in person or by hisproctor or Counsel" (Section 151). "signed by the applicant orhis Proctor" (Section 224), "signed by the party or his registeredAttorney" (Section 755(1) and (3) have to be construed on thebasis that the party will perform the act required or permitted bythe respective provisions only if he has no registerd Attorney. Ifthe party has a registered Attorney that act has to be done bysuch registered Attorney or by Counsel duly instructed in thatbehalf.
Instances where the Petition of Appeal is signed by a Proctor,at a time when another subsisting proxy is in record have beenconsidered in a series of cases that date back prior to the turn pithe century. In the case of Silva vs. Cumaratunga (2) MaartenszJ. summed up these decisions as follows:—
The ratio decidendi in the old case with which I respectfullyagree, was that this Court cannot recognize two proctorsappearing for the same party in the same cause."
Jp the case of Seelawathie and another vs. Jayasinghe (Supra)Seneviratne. J. considered the provisions of Section 323(1) ofthe Administration of Justice Law which required the notice ofappeal to be signed "by the Appellant or his registered Attorney".On the application of the principle enunciated in the old casesand bn the basis that the provision should be interpreted in amanner not to cause disorder in Court proceedings, it was heldthat the party could sign the notice of appeal, onty when he hasno registered Attorney. Sen^iratne, J., at page 270 furtherobserves as follows:—
"When a party to a case has an Attorney-at-Law on record,it is the Attorney-at-Law on record alone, who must Jakesteps, and also whom the Court permits to take steps. It is arecognised principle in Court proceedings that when thereis an Attorney-at-Law appointed by a party, such party musttake all steps in the case through such Attorney-at-Law.Further, the principle established in court is that if a party isrepresented by an Attorney-at-Law such a party himself isnot permitted to address court. All the submissions of theparty must be made through the Attorney-at-Law whorepresents such party."
We are in respectful agreement with the said decision andobservations.
Counsel for the Appellant did not invite this Court to act interms of. Section 759(2) of the Civil Procedure Code. In. anyevent the lapse referred to above goes to the basic validity of theNotice and Petition of Appeal and, as such it is not curable interms of the provisions of Section 759(2).
For the reasons stated above we uphold the first preliminaryobjection. In view of the finding with regard to this objection itwould not be necessary to consider the second preliminaryobjection5raised by the Respondents. Accordingly the notice ofappeal dated 12.2.1987 and the petition of appeal dated12.3.1987 are rejected and the appeal is dismissed withoutcosts.
Counsel for the Appellant at the conclusion of 4iissubmissions made an application that in the event of the firstpreliminary objection being upheld this Court should reservethe right to the Appellant to move in Revision. In the cas^ofAnthonisz vs. Derolis (3) and Emmanuel vs. Ratnasigghamf4)the petitions of appeal were rejected but the Supreme Courtthought it fit to reserve to the Appellant to move in Revision. Inthe case of Spelawathie and another vs. Jayasinghe (Supra), theCourt did not reserve such a rijfit because on a perusal of theproceedings it was found that the Appellants are not entitled torelief. This is a testamentary case in which the validity of the LastWill is being disputed by one of the children of the deceased. Asnoted above several children of the deceased did not takeproperty under this Last Will.
Further, the proceedings reveal that no issues were framed andno evidence was recorded in the District Court. In thecircumstances we think it fit to reserve to the Appellant the rightto move in revision if so advised.
Wljetunga, J. I agree.
Right to move in revision reserved.
HAMEED V. DEEN AND OTHERS