123-NLR-NLR-V-48-ARUNACHALAM-Appellant-and-MUTTUTAMBY-et-al.-Respondents.pdf
374
JAYETILEKE J.—Arunachalam V. Muttutamby.
1947Present: Keuneman A.C.J. and Jayetileke J.
ARUNACHALAM, Appellant,' and MUTTUTAMBY et al,
Respondents.
S. C. 12.6—D. C. Jaffna, 724.
Compromise—Authority of Counsel—Absence of client—Matters within theaction—Express consent—Restitutio in integrum.
Unless he has the express consent of his client the authority of anadvocate to enter into a compromise is confined to matters which areraised within the action.
PPEAL from a judgment of the District Judge of Jaffna.
H. V. Perera, K.C. (with him H. W. Thambiah, Ii. W. Jayewardene andSharvanandan), for tenth defendant, appellant.
N. E. Weerasooria, K.C. (with him P. Navaratnarajah), for plaintiffs,respondents.
Cur. adv. vult.
July 25, 1947. Jayetileke J.—
There are two matters before us : — (1) an application for restitutio inintegrum dated March 21, 1945, in respect of a consent decree enteredby the District Judge on September 30, 1944, (2) an appeal against an
JAYEHLEKE J.—Arunachalam v. Muttutamby.
375
order made by the District Judge on September. 26, 1945, dismissing anapplication by the tenth defendant to have the said consent decree setaside. The question that arises for our decision in both matters isindentical, and we think we should deal with the application for restitutioin integrum as it is earlier in date. The facts which gave rise to thisapplication shortly stated are these : —
The plaintiffs alleged in their plaint that, at a meeting of the congrega-tion held on September 25, 1937, they and the first, second, third, fourth,fifth, sixth, and seventh defendants were appointed trustees of theKirupahara Sri Subramaniaswamy Kovil, and that the eighth, ninth,tenth, eleventh, and twelfth defendants, claiming to be trustees of thesaid temple, were in wrongful possession of the temple and its tempora-lities. They prayed that they and the first, second, third, fourth, fifth,sixth, and seventh defendants may be declared the lawful trustees of thetemple, and that the eighth, ninth, tenth, eleventh and twelfth defendantsmay be ejected from the temple and its temporalities. The first, second,third, fourth, fifth, seventh, eighth, ninth, tenth, and twelfth defendantsfiled an answer in which they denied that a meeting of the congregationwas held on September 25, 1937, to appoint trustees. They alleged thatthey were hereditary trustees of the temple and that at a meeting of thecongregation held on January 20, 1943, they and the second, fifth, andninth plaintiffs, all the defendants and one Arumugam Muthuthambywere appointed trustees of the temple. They prayed for a dismissal ofthe plaintiff’s action. The action came up for trial on August 30, 1944.On that day some of the plaintiffs and some of the defendants includingthe tenth defendant were not present in Court. Messrs. Kulasingham,Sambandan and Subramaniam instructed by Mr. Navaratnarajahappeared for the plaintiffs and Messrs. Ponnambalam and Shanmukaminstructed by Mr. Somasunderam appeared for the defendants who hadfiled answer. While issues were being framed Counsel appearing on bothsides informed the District Judge that the case was settled. Thereupon,the District Judge recorded the following terms of settlement: —
The temple in question is declared a public charitable trust.
That a scheme be settled by this Court for the management ofthis temple and its temporalities including the election of trustees,the qualification of voters, the qualification of trustees and the holdingof meetings, &c.
The proceedings of the meetings of worshippers held on January1, 1943, and January 20, 1943, are both held to be null and void and allbusiness transacted by those two meetings is held to be illegal and ofno force.
In view of the settlement arrived at now, the plaintiffs withdrew
C. 520 Jaffna without costs.
After the scheme of management has been adopted by Courtand after the trustees are duly appointed as per scheme that will beadopted by Court, the Court will enter a vesting order according to law.
No costs.
376JAYETILEKE J.—Arunachalam v. Muttutamby.
Thereafter, the District Judge made the following entry in therecord : —
“ Mr. Advocate Ponnambalam agrees to the above settlement onbehalf of the defendants for whom he appears and who are absenttoday. Mr. Kulasingham consents to the above settlement on behalfof the plaintiffs who are absent today.”
On November 7, 1944, the tenth defendant filed an affidavit and movedto have the decree entered in the case set aside on the ground that hislawyers had no authority from him to consent to the case being settledon the above-mentioned terms. The District Judge dismissed theapplication on the ground that Mr. Ponnambalam had the impliedauthority of the tenth defendant to consent to a reasonable settlement.While the inquiry into his application was pending in the District Courtthe tenth defendant made an application to this Court to have the consentdecree set aside by way of restitutio in integrum. In addition to his ownaffidavit in which he alleged that he and his Proctor were not presentat the trial, he filed an affidavit from Mr. Ponnambalam in which the'latter has stated the circumstances under which he made the compromise.He says that, as the tenth defendant was not present in Court, he appliedto the District Judge for an adjournment to enable him to consult thetenth defendant, but the District Judge refused his application, and he,thereupon, made the compromise on his own responsibility. On thematerials before us, there can be no doubt that Mr. Ponnambalam madethe compromise on his own responsibility in the absence of his clientand of his Proctor. There is ample authority that this Court has thepower to give relief by way of restitutio in integrum in a case where acompromise has been made by a person who had no authority to make it.Where Counsel is employed to conduct a case the ordinary rule is thathe has implied authority, subject to any express instructions to thecontrary, to compromise or abandon the claims of his client in respect ofall matters within the scope of the suit or matter but not in respect ofanything beyond the scope thereof—(Bowstead on Agency—9th edition,;page 75).
In Strauss v. Francis' Blackburn J. said : —
“ Mr. Kenealy has ventured to suggest that the retainer of Counselin a cause simply implies the exercise of his power of argument andeloquence. But Counsel have far higher attributes, namely, theexercise of judgment and discretion on emergencies arising in theconduct of a cause, and a client is guided in his selection of Counselby his reputation for honour, skill, and discretion. Few Counsel,I hope, would accept a brief on the unworthy terms that he is simplyto be the mouthpiece of his client. Counsel, therefore, being ordinarilyretained to conduct a cause without any limitation, the apparentauthority with which he is clothed when he appears to conduct thecause is to do everything which, in the exercise of his discretion, he maythink best for the interests of his client in the conduct of the cause;
L. R. 1 Q. B. 379 at p. 381.
JAYETXLEKE J.—Arunachalam v. Muttutamby.
377
and if within the limits of this apparent authority he enters into anagreement with the opposite Counsel as to the cause, on every principlethis agreement should be held binding. ”
In Swinfen v. Lord Chelmsford1 Pollock CJB. said: —
“We are of opinion that, although Counsel has complete authorityover the suit, the mode of conducting it, and all that is incident to it,such as withdrawing the record, withdrawing a juror, or calling awitness, or selecting such as in his discretion he thinks ought to becalled, and other matters which properly belong to the suit, and themanagement and conduct of the trial, he has not, by virtue of hisretainer in the suit, any power over matters that are collateral to it.For instance, we think, in an action for a nuisance between the adjoininglands, however desirable it may be that litigation should cease, by oneof the parties purchasing the property of the other, the Counsel have noauthority to agree to such a sale, so as to bind the parties to the suitwithout their consent, and certainly not contrary to their instructionsand we think such an agreement would be void. ”
In the case before us, express authority has been given by the tenthdefendant in his proxy to his Proctor to make a compromise. It reads : —“ and generally and otherwise to take all such lawful ways andmeans and to do and perform all such acts, matters and things as maybe useful and necessary in and about the premises as our said Proctoror his or their substitute or substitutes may consider necessary towardsprocuring or carrying into execution any judgment, or order, or adefinitive sentence, or final decree to be made and interposed herein ;and from any judgment order or decree interlocutory or final of thesaid Court, to appeal and every bond or recognizance whatsoevernecessary or needful in the course of proceedings, for the prosecutionof such appeal, or for appearance or for the performance of any order orjudgment of the Said Court, for and in our name and as our act anddeed, to sign and deliver and to appoint, if necessary one or moresubstitute or substitutes Advocate or Advocates both in the DistrictCourt and in the Supreme Court and again at pleasure to revoke suchappointment anew ; and also if the said Proctor shall see cause thesaid action or suit to discontinue, compromise, settle or refer toarbitration; and every such compromise, settlement, or reference inour name and our behalf to settle and sign, I hereby promising to releaseall kinds of irregularities and to ratify, allow, confirm, all and whatsoeverthe said- Proctor or Proctors or his or their substitute or substitutes orthe said Advocate or Advocates shall do herein. ”
The question that arises for our decision is whether the compromisethat was made on August 30, 1944, by Mr. Ponnambalam is within thelegitimate scope of his authority. What is within the authority of Counselis thus stated by Lord Halsbury in Volume 2 of the Laws of Englandat page 398 : —
“ The authority of Counsel at the trial of an action extends, unlessit is not expressly limited, to the action and all matters incidental to itand to the conduct of the trial, such as withdrawing the record or a1 29 L. J. Exch. 382 atp. 397.
378
JAYETIL.EKE J.—Arunachalam v. Muttutamby.
juror, calling or not calling witnesses, consenting to a reference or astet process or a verdict, undertaking not to appeal or on the hearingof a motion for a new trial consenting to the reduction of damages. ”
In Mathews v. Munster1 the headnote is as follows : —
“ On the trial of an action for malicious prosecution the defendant’sCounsel, in the absence of the defendant and without his expressauthority, assented to a verdict for the plaintiff for £350 with costsupon the understanding that all imputations against the plaintiff werewithdrawn. Held that this settlement was a matter within theapparent authority of Counsel and was binding on the defendant. ”
It appears to me to be clear from the authorities that Counsel’sauthority to compromise is confined to matters which are raised withinthe action. In Kempshall v. Holland' which was an action for breach ofpromise of marriage it was held that, although the plaintiff’s Counselmay settle with the defendant’s Counsel that money be paid by thedefendant to the plaintiff and that judgment be entered for the defendant,he cannot, without the express consent of the plaintiff, settle that thedefendant’s letters shall be giVen up and that the plaintiff shall no longermolest him.
In Ellender v. Wood3 the plaintiff sued the defendant for breach ofpromise of marriage coupled with seduction. Prior to the institution ofthe action, the defendant had, by a deed, entered into an agreement topay the plaintiff an allowance of £2/10 a week during her life in considera-tion of her agreeing not to molest or in any way annoy him. At the trial,a settlement of the action and all claims against the defendant wasarranged by plaintiff’s Counsel, in the absence of the plaintiff and withouther. consent, on the terms of the defendant paying to the plaintiff £100and costs. The plaintiff disputed the validity of the compromise on theground that her Counsel’s authority did not extend to the release of herclaims against the defendant on the deed. It was held that, though theagreement had been set up by the defendant in a counter claim, theplaintiff’s claims under the deed were not distinctly raised in the actionand, therefore, her Counsel had no authority to consent to a release ofthose claims.
The present action is essentially one for ejectment of the defendantsfrom the temple and its temporalities. The questions that arose for thedecision of the Court were (1) whether the plaintiffs were the trustees ofthe temple, (2) whether the defendants were in wrongful possession.Mr. Perera urged that the matters dealt with in clauses 1, 3, and 5 of theterms of settlement were not raised in the action and that they did notcome properly within the authority of Counsel to compromise. I thinkthere is considerable substance in his contention and I agree with it.Though some of the terms of the settlement are binding on the parties,I think it is desirable that the whole of the settlement should be set asideand the parties placed in statu quo ante. I would, accordingly, set asidethe decree entered in the case and send the case back for trial in due
1 U887) L. R. 20 Q. B. D. 141.• 14 R. 336 C. A.
» 4 T.L. B. 680.
DIAS J.—Mary Fernando v. Francis Fernando.
379
course. The tenth defendant will be entitled to the costs of this applica-tion. I make no order as to the costs of this appeal. The costs of theabortive trial and of the inquiry will be in the discretion of the trialJudge.
Keuneman A.C.J.—I agree.
Sent back for trial.