FERNANDO v. SYBIL FERNANDO AND OTHERS

001-SLLR-SLLR-1997-V3-FERNANDO-v.-SYBIL-FERNANDO-AND-OTHERS.pdf


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Fernando v. Sybil Fernando and Others
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FERNANDO
v.
SYBIL FERNANDO AND OTHERS
SUPREME COURT.
DR. AMERASINGHE, J„
PERERA, J. AND
DR. BANDARANAVAKE, J.
S.C. APPEAL NO. 2/97.
A. NO. 56/89 (F).
C. COLOMBO 3356 L.
MAY 14, 1997.
Civil Procedure Code – Notice of appeal signed by party not by the registeredattorney – Is the defect curable? sections 24, 27(1) and (2). 755(1), 759(2) CivilProcedure Code..
A litigant has a statutory right to act for himself unless the law provides otherwise(section 24 CPC). But so long as an instrument of the appointment (proxy) undersection 27(1) CPC of a registered Attorney-at-Law is in force, a litigant who hasexecuted such an instrument must act through his registered attorney until allproceedings in the action are ended and judgment satisfied so far as regards thatlitigant: while the proxy is in force, he cannot himself perform any act in courtrelating to the proceedings of the action. When the instrument (proxy) is filed, itshall be in force, unless revoked, or until the client or registered attorney dies orbecome incapable to act or until all proceedings in the action are ended andjudgment satisfied so far as regards the client (section 27(2) CPC). Wheretherefore there is an attorney on record, the notice and petition of appeal must besigned by such attorney and by no one else; if it is signed by the party himself orby some other attorney, it is not in conformity with the law and must be rejected.
The provision in section 755(1) CPC, that every notice of appeal "shall be signedby the appellant or his registered attorney” must be confered with reference to thecontent and other clauses of the Code.
Where the notice of appeal is signed by the appellant himself when he had aregistered attorney on record, the lapse is fatal and is not curable in terms ofsection 759(2) CPC.
Per Dr. Ameraslnghe, J.
‘There is substantive law and there is the procedural law. Procedural law is notsecondary: The maxim ubi ius ibi remedium reflects the complementarycharacter of civil procedure law. The two branches are also interdependent. Itis by procedure that the law is put into motion, and it is procedural law whichpuls life into substantive law, gives it remedy and effectiveness and brings itinto action”.
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2 .
"The concept of the laws of civil procedure being a mere vehicle in which partiesshould be safely conveyed on the road to justice is misleading, for it leads to theincorrect notion that the laws of civil procedure are of relatively minor importance,and may therefore be disobeyed or disregarded with impunity.
■Judges, do not blindly devote themselves to procedures or ruthlessly sacrificelitigants to technicalities, although parties on the road to justice may choose toact recklessly. On the contrary, as the indispensable vehicle for the appointmentof justice, civil procedural law has a protective character. In its protectivecharacter, civil procedural law represents the orderly, regular and publicfunctioning of the legal machinery and the operation of the due process of law. Inthis sense the protective character of procedural law has the effect ofsafeguarding every person in his life, liberty, reputation, livelihood and propertyand ensuring that he does not suffer any depriviation except in accordance withthe accepted rules of procedure.'
Cases referred to:
Mohideen Ali v. Cassim (1960) 62 NLR 457, 459.
Jinadasa and Another v. Sam Silva and Others (1994) 1 Sri LR 232, 266
Kandiah v. Vairamuttu (1958) 60 NLR 1,3.
Seelawathie and Another v. Jayasinghe (1985)2 Sri LR 266, 268,269,271.
Hameed v. Dean and Others (1988) 2 Sri LR 1.
Romanis Baas v. Ravenna Kader Mohideen and Another (1881) 4 SC C 61.
Silva v. Andiris (1916) 4 CWR 310.
Reginahamy v. Jayasundera (1917) 4 CWR 390.
Letchemanan v. Christian (1898) 4 NLR 323.
Gunasekera v. De Zoysa et al (1951) 52 NLR 357.
Fernando v. Fernando (1900) 2 Leader LR 66.
Kadirgamanadas et al v. K. Suppiah ef a/ (1953) 56 NLR 172.
Tilekeratne v. Wijesinghe (1908) 11 NLR 270.
Assauw v. Billimoria (1892) 2 CLR 86.
Perera v. Perera and Another (1981) 2 Sri LR 41.
Silva v. Cumaratunga {1938) 40 NLR 139.
Arulampalam v. Daisy Fernando (1986) Vol. 1 Colombo Appellate LawReports 651.
Manamperi Somawathie v. fluwanes/W(1990) 1 Sri LR 223,225, 226.
Read v. Samsudin (1895) 1 NLR 292, 294.
James v. Chenneld 8 Ch. D. 506.
Velupillai v. The Chairman, V.D.C. Jafina( 1936) 39 NLR 464, 465.
Dulfa Umma et al v. UDC Matale (1939) 40 NLR 474, 478.
Re Coles and Ravenshear (1907) 1 KB 1,4.
Nothman v. Bamet London Borough Council (1978) 1 WLR 220, 228.
Re Vandenwalls Trusts (No 2) (1974) 3 All ER 205, 213.
Dupprt Sheets Ltd. v. Sirs (1980) 1 CR 181.
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Kiriwanthe and Another v. Navaratne and Another (1990) 2 Sri LR 343.
Macdugall v. Paterson (1851) 11 CB 755,773.
Morisse v. Royal British Bank (1856) 1 CB (NS) 67,84-85.
Re Ayre and Leicester Corporation (1892) 1 QB 136.
Sheffield Corporation v. Lurford (1929) 2 KB 180.
ReShuter(Ho2) (1960) 1 QB 142.
Annision v. District Auditor for the Metropolitan Borough of St. Pancras( 1962)1 QB 489.
Sharp v. Wakefield(1891) 1 AC173, 179.
35- Frome United Breweries v. Bath Justices (1962) AC 586, 605.
36, Fernando v. Perera and Others (1909) 1 Cur LR 51.
APPEAL from judgment of the Court of Appeal.*
Romesh de Silva PC with Ms. Saumya Amerasekare for the appellant.
P. A. D. Samarase)<era PC with Keerthi Sri Gunawardena for the respondents.
Cur. adv. vult.
June 4, 1997.
DR. AMERASINGHE, J.
Mr. U. E. S. B. Fernando, (hereinafter referred to as the appellant)instituted action against Mrs. Sybil C. M. Fernando and Mr. U. D. S.Fernando, presently in the United Kingdom by his Attorney, andMr. U. D. S. Fernando. The appellant had sought a declaration of titlebased on prescription to a certain land. After a heavily contested,long, and exhaustive hearing, the District Court pronouncedjudgment in favour of the defendants and dismissed the action of theappellant on the 22nd of February 1989.
The appellant was dissatisfied with the judgment pronounced bythe District Court and sought to appeal against that judgment andpurported to give notice of his appeal.
When the appeal came up for hearing on the 13th of March 1996,the Court of Appeal pointed out that the notice of appeal dated the28th of February 1989, had been personally signed by the appellant,and not by his duly appointed registered Attorney-at-Law. In thecircumstances, the notice of appeal, in terms of section 755 (1) of theCivil Procedure Code, seemed, in the opinion of the Court, to be
■ 1996 – 2 SLR 169
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defective. The appellant moved the Court of Appeal and soughtpermission to tender a fresh notice of appeal signed by a registeredAttorney-at-Law. However, the registered Attorney-at-Law who hadsigned the more recent notice was not the registered Attorney-at-Lawat the date when the notice of appeal in question was filed. Theearlier registered Attorney-at-Law, albeit some years after thestatutorily prescribed period for the filing of the notice of appeal, butbefore the matter came up for hearing, had become a CabinetMinister and, therefore, ceased to practice. After considering thesubmissions of learned counsel for the appellant and therespondents, on the 10th of May 1996, the Court of Appeal rejectedthe notice of appeal and dismissed the petition of appeal on theground that, since at the date of the notice of appeal there was a dulyappointed registered attorney, the notice of appeal should have beensigned by that attorney and not by the appellant personally.
Aggrieved by the decision of the Court of Appeal, the appellantsought special leave to appeal to this Court by his petition dated the19th of June 1996. On the 15th of January 1997, this Court grantedhim leave upon the following questions:
Whether a party is entitled to sign a notice of appeal undersection 755 (1) of the Civil Procedure Code, during thesubsistence of a proxy granted to an instructing attorney.
Whether in any event any such defect in the notice of appealcan be rectified after the lapse of the appealable period.
Section 24 of the Civil Procedure Code (CPC) states as follows:
"Any appearance, application, or act in or to any court, required orauthorized by law to be made or done by a party to an action orappeal in such court, except only such appearances, applications,or acts as by any taw for the time being in force only Attorneys-at-Law are authorized to make or do, and except when by any suchlaw otherwise expressly provided, may be made or done by theparty in person, or by his recognized agent, or by an Attorney-at-Law duly appointed by the party or such agent to act on behalf ofsuch party…”
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The instrument of appointment of a registered attorney issubstantially in terms of Form No. 7 of the First Schedule to the CPCand is commonly referred to by lawyers in Sri Lanka as a "proxy": Cf.per Basnayake, C.J. in Mohideen Ali v. Cassim0> at p. 419. The proxyis required to be filed in court – section 27(1) CPC -, and “when sofiled, it shall be in force until revoked with leave of the court and afternotice to the registered attorney by a writing signed by the client andfiled in court, or until the client dies, or until the registered attorneydies, is removed or suspended, or otherwise becomes incapable toact, or until all proceedings in the action are ended and judgmentsatisfied so far as regards the client(section 27(2) CPC).
It was not in dispute that (1) the proxy filed in this matter was inforce when the notice of appeal was filed; and (2) that the notice ofappeal was signed by the appellant personally and not by theattorney whose proxy had been filed. In the circumstances, was thenotice of appeal defective?
Section 754 of the Civil Procedure Code prescribes the legal modeof preferring an Appeal. Section 754(3) states that "Every appeal tothe Court of Appeal from any judgment or decree of any originalcourt, shall be lodged by giving notice of appeal to the original courtwithin such time and in the form and manner hereinafterprovided,” Section 754 (4) goes on to state that "The notice ofappeal shall be presented to the court of first instance, for thispurpose by the party appellant or his registered attorney within aperiod of fourteen days from the date when the decree or orderappealed against was pronounced … and the court to which thenotice is so presented shall receive it and deal with it as hereinafterprovided If such conditions are not fulfilled, the court shallrefuse to receive it.” Section 755 (1) states that “Every notice ofappeal … shall be signed by the appellant or his registeredattorney…”
The emphasis is mine.
Learned counsel for the appellant submitted that, upon a plainreading of section 755(1) of the Civil Procedure Code, a Notice ofappeal may be signed either by the appellant or by his registeredattorney. On the other hand, learned counsel for the respondents
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submitted that, since there was a registered attorney on record at thetime the notice was lodged, the notice had to be signed by thatattorney.
A litigant has a statutory right to act for himself unless the lawprovides otherwise: (section 24 CPC). Therefore, there is no difficultyin understanding why, in section 755 (1), it is stated that a notice ofappeal may be signed by the appellant or his registered attorney: ifhe had been acting for himself at the trial, he may himself sign thenotice of appeal. A litigant may, however, elect to act through aregistered Attorney-at-Law. If he elects to act through a registeredAttorney-at-Law, he must formally appoint such an attorney in writingand file the instrument of such appointment in court: (section 27(1)(CPC). When so filed, such an instrument shall be in force, unlessrevoked, or until the'' client or registered attorney dies or becomesincapable to act or until all proceedings in the action are ended andjudgment satisfied so far as regards the client: (section 27 (2) CPC).
So long as such an instrument of the appointment of a registeredAttorney-at-Law is in force, a litigant who has executed such aninstrument must act through his registered attorney until allproceedings in the action are ended and judgment satisfied so far asregards that litigant: While the proxy is in force, he cannot himselfperform any act in court relating to the proceedings of the action: Seethe decision of the present Supreme Court in Jinadasa and Anotherv. Sam, Silva and Othersm at p.266. That was also the view of theformer Supreme Court:tSee Kandiah v. Vairamuttu0'at p. 3. That hasalso been the view of the present Court of Appeal: See Seelawathie. and Another v. Jayasinghew Hameed v. Deen and Others™.
Where, therefore, there is an attorney on record, the notice andpetition of appeal must be signed by such attorney and by no oneelse: if it is signed by the party himself or by some other attorney, it isnot in conformity with the law and must be rejected.
This was the view taken by the former Supreme Court when it wasconstruing rule 2 of the Rules and Orders of the 12th of December1843 whioh was in terms identical with section 755 of the CivilProcedure Code of 1889 which provided that “All petitions of appeal
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shall be drawn and signed by some advocate or proctor, or else thesame shall not be received": See Romanis Bass v. Ravenna KaderMohideen and Another®.
It was also the view taken by the former Supreme Court inconstruing section 755 of the Civil Procedure Code of 1889. In Silvav. Andirism and in Reginahamy v. Jayasundera“> petitions of appealfiled by a proctor who was not the proctor on record were rejected.
Letchemanan v. Christian(9) was not concerned with appeals;however, it did show the importance attached to the orderly conductof proceedings: It was held in that case that no proctor was entitledto appear for a client unless he had a proxy signed by such client: itwas not open for the proctor on record to employ another proctor toact for him, for there cannot be more than one proctor at the sametime on record.
Gunasekera v. De Zoysa et alw is not contrary to the principlelaid down by the court. In that case a proctor who was not the proctoron record, initiated proceedings for revision. The Court, followingFernando v. Fernando"", entertained the application on theground that an application for revision constituted an entirelyindependent proceeding in which the party could not be representedby a pleader other than an advocate duly instructed by aproctor whose proxy or letter of appointment had to be filed in theSupreme Court.
Kadirgamanadas et at v. K. Suppiah et a/."21 is also distinguishablefrom the other cases. In that case the proctor who presented thepetition of appeal had not been appointed in writing by some of theappellants, as required by section 27 of the Civil Procedure Code, atthe date of the filing of the petition of appeal. He was so appointedafter the appealable time had expired. The proctor, however, had,without any objection from any of the parties represented all theappellants at various stages of the proceedings earlier. The Courtwas satisfied that the proctor had been authorized by the appellantsto file the appeal on their behalf although they had omitted to appointhim in writing as required by section 27 of the Code. Thatrequirement, the Court held, following Tilekeratne v. Wijesinghe"3),
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was merely directory and the irregularity in the appointment wascured by the subsequent filing of a written proxy. The decisions inReginahamy (supra) and Silva v. Kumaratunga (supra) were,therefore, inapplicable.
In Tilekeratne (supra) the plaintiff granted a proxy to a proctor,which by oversight, was not signed by the plaintiff. The proctor actedon the proxy without any objection in the lower court. When the casewas taken up in appeal, the defendant's counsel objected to thestatus of the proctor in the case. The court held that the mistake inthe proxy could be rectified at that stage by the plaintiff signing it,and that such signature would be a ratification of all acts done by theproctor in the action.
In Assauw v. Billimorial'4), the petition of appeal of a defendantcommencing "The petition of appeal of the defendant by his proctor"who was named, was signed "for" that proctor by another and wasalso countersigned by an advocate. Burnside, CJ. (Lawrie andWithers, JJ agreeing) said: "Now, we have held that the proctor whosigns the petition must be the proctor on the record authorized to doevery act in the cause until his authority has been revoked in aregular way and a new appointment made, and I pause here formyself to say I repudiate any suggestion or authority which wouldgive countenance to the position that one proctor may sign anotherproctor's name for him, and that his right to do so should not rest onhis bare assertion one way or the other of the parties themselves. Icannot conceive anything more calculated to prejudice andendanger the interests of suitors or to jeopardize the fair fame ofhonourable members of the profession and subject it to the acts ofothers less scrupulous.” However, since the petition had beenendorsed by an advocate, the requirement of section 755 – thatpetitions of appeal shall be drawn and signed by some advocate orproctor – was held to be satisfied. Burnside CJ said: “The apparentobject of the law is to guard against frivolous or vexatious orinsufficient appeals, and I think that it is sufficiently secured underour interpretation of the section in question."
That object ceased to exist in 1973, although the protectiveelement alluded to by Burnside, CJ. remained. The Administration of
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Justice Law No. 44 of 1973 stated in section 318 that “An appealagainst any judgment may be lodged by giving notice of appeal tothe original court within such time and in the form and mannerprescribed herein. Section 323 (1) of that Law stated that “Everynotice of appeal shall contain the particulars prescribed by rules ofthe court, shall be signed by the appellant or his registeredattorney and shall bear a stamp of the prescribed denomination." InSeeiawathie v. Jayasinghe, (supra) the notice of appeal had beensigned by some of the parties and not by their attorney on record.The appeal proceedings had been taken under the provisions of theAdministration of Justice Law, The President of the Court of Appeal,Seneviratne, J. at pp. 268-269 said:
"Learned Counsel for the appellant submitted that the plainmeaning of these phrases is quite clear, particularly in view of theuse of the word “or"; on the plain meaning and understanding ofthe section either the appellant or his registered attorney can filethe petition of appeal. Learned counsel for the appellant goesfurther and submits that the appellant can sign and file a petitionof appeal even though he has a registered attorney in view of theprovision – section 323 (1) of the Administration of Justice Law,and as such the notice of appeal was a valid one and should beaccepted … I am of the view that section 323 (1) and the likesections in the present Code should be interpreted firstly in' relation to the principles set out by the long series of authorities,and secondly in a manner not to cause disorder in courtproceedings. Further, permitting such a practice would lead todisorder and confusion in court proceedings. The words “shall besigned by the appellant or his registered attorney" should beunderstood and interpreted to mean that the petition of appeal canbe signed by the appellant when he has no registered attorney onrecord …"
Admittedly, in Perera v. Perera and Another™, Soza, J. did say: “Itis only the registered attorney who has the authority, can sign it solong as his proxy is there on record. The appellant himself can signit, but no one else. However, as pointed out by Seneviratne, J. inSeeiawathie, {supra) at p. 271, Soza, J. was not deciding whetherwhen there was a registered attorney on record, the party himself
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could sign a petition of appeal: His Lordship was deciding whetheran attorney who was not the registered attorney could sign thepetition of appeal. And as regards that matter, it has long beenestablished that a court cannot recognize two registered lawyers onrecord appearing for the same party in the same cause: See Silva v.Curnaratungam.
The Civil Procedure Code No. 2 of 1889 which was repealed bythe Administration of Justice (Amendment) Law No. 25 of 1975 witheffect from the 1st of January 1976, was revived by section 2 of theCivil Courts Procedure (Special Provisions) Law No. 19 of 1977 witheffect from the 15th of December 1977. The present Civil ProcedureCode amends and consolidates the law from 1889. The appeal in thematter before me was lodged under the provisions of that Codewhich in section 755 (1) provides, inter alia, that every notice ofappeal “shall be signed by the appellant or his registered attorney”.
In Seelawathie, Seneviratne, J. had before him the provisions ofthe present Code, and although the matter before the Court related tothe provisions of the Administration of Justice Law, His Lordshipnevertheless did say that the principles enunciated in relation to theprovisions of the Administration of Justice Law were applicable to“the like sections in the present Code.” And that has been the way inwhich the phrase “shall be signed by the appellant or registeredattorney" has been construed and applied. In Arulampaiam v. DaisyFernando1'* the notice of appeal was signed by an attorney who wasnot the attorney on record. The Court of Appeal, following Silva v.Kumaratunga (supra) held that “the mistake is fatal to its validity or toits being entertained" and that the Court in the circumstances had nopower to grant relief. In Hameed v. Deen and Others (supra) thenotice and petition of appeal were signed by the appellant althoughhe had a registered attorney on record. The Court rejected thesubmission that the earlier decisions should be re-considered on theground that they dealt with situations in which there were in thosecases two proctors purporting to act for the appellant. It held that thephrase “shall be signed by the appellant or his registered attorney"had to be construed with reference to the context and other clausesof the Act. It said at p.5: “Indeed, in a law dealing with procedure it isimperative that phrases such as the one at issue, be interpretedbearing in mind the scheme of the Code, and having as the objective
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the avoidance of disorder and confusion in the procedure." Theappeal was dismissed. In Manamperi Somawathie v. Buwanesirim,the Court of Appeal rejected a notice of appeal and petition of appealsigned by the appellant, since the proxy of the appellant’s attorneywas in force. It stated at pp. 225-226 that once a registered attorneyis on record the, party should "necessarily act through the registeredattorney. Any other interpretation would cause confusion in theoriginal courts and in the administration of justice. If a party ispermitted to file legal documents and motions when the registeredattorney was on record, that would disrupt the smooth working incourts."
Learned counsel for the appellant submitted that the right toappeal from a decision of a lower court with which a party isdissatisfied is a basic and valuable right that should not be denied ontechnical grounds. A person who is dissatisfied with a decision of aCourt should be able to sign his own notice of appeal and not becompelled to have it signed by his registered Attorney-at-Law. Toreject an appeal on the ground that the notice was signed by theaggrieved party was unjust. Reliance for that view was placed on thefollowing observations:
(1) Per Bonser, J. in Read v. Samsudinm at p. 294 quoting thefollowing observations of Jessel, Mr. in James v. Chenneldm:
“It is not the duty of a Judge to draw technical conditions in theway of administration of justice but where he sees that he isprevented from receiving material or available evidence merely byreason of technical objections, he ought to remove the technicalobjections out of the way upon proper terms as to costs andotherwise."
{2) Per Abrahams, CJ. in Velupillai v. The Chairman U.D.C.m): at p.465.
“I for one refuse to be a party to such an outrage upon justice. Thisis a Court of Justice, it is not an academy of law."
(3) Per Abrahams, CJ. in Dulfa Umma etal. v. U.D.C. Matale,a>: at p.478
“Civil procedure should be a vehicle which conveys a litigantsafely, expeditiously and cheaply along the road which leads to
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justice and not a juggernaut car which throws him out and then
runs over him leaving him maimed and broken on the road."
What practitioners seek for their clients when they resort to thecourts is to use the machinery of justice to obtain a just result, andwhat the clients seek to avoid is unnecessary and prejudicialexpense, delay and technicality in the process of attaining that justresult: Halsbury, 4th Ed. Vol. 37 paragraph 3.
According to some people, substantive law creates rights andobligations and determines the ends of justice embodied in the law,whereas procedural law is an adjunct or an accessory to substantivelaw. The submissions of learned counsel for the appellant are, Isuppose, meant to make us turn in that direction. The classicexpression of that view is stated by Collins MR in Re Coles andRavensheat3® at p. 4. "Although I agree that a court cannot conductits business without a code of procedure, I think that the relation ofrules of practice to the work of justice is intended to be that ofhandmaid rather than mistress, and the court ought not to be so farbound and help by rules, which after all are only intended as generalrules of procedure, so and to be compelled to do what will causeinjustice in the particular case." See also per Lord Denning inNothman v. Barnet London Borough Councill™a p. 228. ReVanderwall’s Trusts(Z5> at p. 213. The Changing Law. 1953, p. 106; TheFamily Story, 1981, p. 174.
Admittedly, courts of law are concerned with ensuring justiceaccording to law; however, in my view, civil procedure law cannot beconsigned to a place of inferiority as being 'merely technical andtherefore relatively unimportant’ or as serving no other purpose thanconveying a particular litigant in a safe, expeditious and economicalmanner on his way to the fair resolution of his dispute by a court oflaw. To consign civil procedural law to a place of inferiority and toregard it as something unimportant, or antithetical to the substantivelaw is erroneous: Such a relegation is unwarranted. It was noexaggeration for Sir Maurice Amos (A Day in Court at Home andAbroad, (1926) Cambrigde Law Journal 340) to claim that“Procedure lies at the heart of the law". The Evershed Committee inits final report on Supreme Court Practice and Procedure (1953)Cmd. 8878 para. 1 observed that “the shape and development of the
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substantive law of England have always been, and, we think, alwayswill be, strongly influenced by matters of procedure.” The Committeecited the celebrated aphorism of Sir Henry Maine that “substantivelaw has at first the look of being gradually secreted in the intersticesof procedure."
There is the substantive law and there is the procedural law.Procedural law is not secondary: The two branches arecomplementary. The maxim ubi ius, ibi remedium reflects thecomplementary character of civil procedure law. The two branchesare also interdependent, Halsbury (ibid.) points out that the interplaybetween the two branches often conceals what is substantive andwhat is procedural. It is by procedure that the law is put into motion,and it is procedural law which puts life into substantive law, gives itsremedy and effectiveness and brings it into being.
The concept of the laws of civil procedure being a mere vehicle inwhich parties should be safely conveyed on the road to justice ismisleading, for it leads to the incorrect notion that the laws of civilprocedure are of relatively minor importance, and may, therefore bedisobeyed or disregarded with impunity. The expression of a concernthat the laws of civil procedure must not be a juggernaut car thatthrows its passengers out to be run over by it, I suppose, wasfiguratively meant to say that with greater force. However, with greatrespect, all that the dictum does is to obscure the role of the laws ofcivil procedure: The English word “juggernaut” is derived from theHindi word “Jagganath” and the Sanskrit word “Jaganatha" meaningthe lord or protector of the world. It was a title of Krishna, the eighthavatar of Vishnu. There had been for a long time, especially at Puri inOrissa, an annual pageant in which an image of this deity wasdragged in procession on an enormous car under which devoteesthrew themselves to be crushed.
Judges, do not blindly devote themselves to procedures orruthlessly sacrifice litigants to technicalities, although parties on theroad to justice may choose to act recklessly. On the contrary, as theindispensable vehicle for the attainment of justice, civil procedurallaw has a protective character. In its protective character, civilprocedural law represents the orderly, regular and public functioning
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of the legal machinery and the operation of the due process of law. Inthis sense, the protective character of procedural law has the effectof safeguarding every person in his life, liberty, reputation, livelihoodand property and ensuring that he does not suffer any deprivationexcept in accordance with the accepted rules of procedure:Halsbury, Ibid.
The protective character of the civil procedure laws, as such, wasneither referred to by learned counsel for the respondents nor by anyof the authorities cited by learned counsel for the appellant or therespondents. However, learned counsel for the respondents didstrongly submit that, in the interests of the administration of justice,there must be order, and therefore there must be compliance with theprovisions of section 755 (1) of the Civil Procedure Code whichprescribes the requirements of a notice of appeal should be strictlyobserved. Seelawathie (supra) at p. 269; Hameed (supra) at p. 5;and Manamperi (supra) at pp. 225-226, expressly support that view.See also per Burnside, CJ. in Assauw, (supra). And, no doubt, thatwas the fundamental reason, although unstated, for the otherdecisions which held that where there is a registered attorney onrecord the party who appointed him must act through him and notpersonally or through some other attorney. I find myself in agreementwith that principle and the reasoned exposition of that principle in thedecisions in Assauw, Seelawathie, Hameed and Manamperi.
In deciding which of the two opposing constructions given to thewords 'shall be signed by the appellant or his registered attorney" insection 755 (1) of the Civil Procedure Code, should be adopted, Icannot overlook the fact that the courts, having been left to do so bythe legislature, have worked out the details for themselves. While I amnot bound by the decisions of the Supreme Court, when it was notthe apex judicial body, nor by the decisions of the present Court ofAppeal, I do regard the opinions expressed by those courts on theissues before me with the greatest respect: they are of very greatpersuasive value, for those courts have, for cogent reasons, held thatso long as there is a proxy in force, the party who gave that proxy isbound to act through his attorney: and therefore, where there isregistered attorney, a notice of appeal must be signed by hisattorney: A notice of appeal signed by a party himself is invalid if
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there is an attorney on record. I find no reason to depart from such aview.
I find no difficulty in understanding why a litigant who has freelyelected to act through an Attorney-at-Law, should be bound to actthrough that person and not through any other Attorney-at-Law norpersonally. The protective character of the laws of civil procedure,among other things, requires orderliness so that there might be clarityand certainty and no confusion. If a party is dissatisfied with hisregistered attorney, he is at liberty to revoke the proxy filed in courtand either appoint some other attorney or act for himself. If theregistered attorney dies, or is removed or suspended or otherwisebecomes incapable, he may either appoint some other attorney oract for himself. However, that must be done in the manner prescribedby sections 27 and 28 of the Civil Procedure Code, for justice, in myview, requires that the work of a court must be conformable to laws,including civil procedure laws.
Learned counsel for the appellant submitted that the rejection ofthe notice of appeal was unjust. It is a principle of legal policy thatlaw should be just and that court decisions should further the ends ofjustice. The court, when considering, in relation to the facts of a casebefore it, which of the opposing constructions of the enactment wouldgive effect to the legislative intention, would presume that thelegislator intended to observe this principle. The court wouldtherefore strive to avoid adopting a construction which leads toinjustice. However, in the exercise of his or her constitutional duties, ajudge – whatever freedom others, including, perhaps, those inacademies of law may have – cannot be guided by his or hersubjective, private notions of what justice requires. The peopleexpect that their judicial power shall be exercised by judges inaccordance with the law of Article 4 (c) of the Constitution. In DupprtSteels Ltd. v. Sirs1261 Lord Scarman said:
‘In the field of statute law the judge must be obedient to the will ofParliament as expressed in its enactments. In this field Parliamentmakes, and unmakes, the law: the judged duty is to interpret andto apply the law, not to change it to meet the judge's idea of whatjustice requires. When one is considering law in the hands of the
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judges, law means the body of rules and guidelines within whichsociety requires its judges to administer justice. Legal systemsdiffer in the width of the discretionary power granted to judges; butin developed societies limits are invariable set, beyond whichjudges may not go. Justice in such societies is not left to theunguided, even if experienced, sage sitting under the spreadingoak tree.
If people and Parliament come to think that the judicial power isconfined to nothing other than the judge's sense of what is right…confidence in the judicial system will be replaced by fear of itbecoming uncertain and arbitrary in its application."
Reference might also be made to the observations of Lord JusticeScrutton in his lecture "The Work of the Commercial Courts", (1921-23) 1 Cambridge Law Journal 6 at pp. 8-9:
“Now the second thing that you want in a judicial system is what Imay call accuracy in results of fact, settled principles of law whichyou proceed. You will observe that I have said nothing about theresults being just, because justice is not what we strive after in theCourts, paradoxical as it may seem … We are not trying to dojustice, if you mean by justice some moral standard which is notthe law of England. The oath which every Judge takes is: I will doright to all manner of people without fear or favour or prejudice,according to the laws and customs of this realm. And it is the lawsand customs of the realm that the Judges have to administer.Sometimes hard cases make bad law. If once you allow the lawsand customs which you have to administer to be diverted by theparticular view you take of the particular case, another Judge maythink otherwise on the same facts, and there ceases to be anycertainty in the law. If the laws and customs you have to administerare wrong, it is for Parliament to put them right – not for theJudges. It is important that the Judges should interpret the settledlaws without altering them according to their views of right orwrong in the particular cases. And that is why I have not used theword ‘Justice’."
The observations of Bonser J. and Abrahms CJ. ought to be readin the context of the specific circumstances of the cases before thecourts in which they were stated. The circumstances of those cases
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do not have any resemblance to the matter before us. Moreover, theattractive view presented by learned counsel for the appellant, basedthough it is on the dicta of two of the most eminent judges whograced the judiciary, is not as simple, plain, or straight forward as itmay seem to be, for civil procedure law fulfils many legal and socialfunctions and has several objectives which may be conveniently,although not exhaustively, grouped according to the character whichit assumes as the indispensable instrument for the attainment ofjustice Halsbury, 4th Ed., Vol. 37 paragraph 3. I have referred to thecomplementary and protective character of civil procedure law. Imust turn now to another aspect that is relevant to the matter beforeme.
In its remedial or practical character, civil procedure law deals withthe actual litigation process itself in accordance with the practice andprocedure of the courts; and in this sense it enhances the importanceand application of the rules, practices and procedural modes andmethods for the conduct of the judicial process Halsbury ibid.
Learned counsel for the appellant submitted that the Court ofAppeal erred in refusing to permit the rectification of the notice ofappeal by accepting the new notice tendered to court signed by anattorney whose proxy had been filed. Section 759(2) of the CivilProcedure Code states that “In the case of any mistake, omission ordefect on the part of any appellant in complying with the provisions ofthe foregoing sections, the Court of Appeal may, if it should be ofopinion that the respondent has not been materially prejudiced, grantrelief on such terms as it may deem just.” It was argued that therequirement relating to the signing of the notice was directory and notmandatory, and since such a failure did not materially prejudice therespondent, the Court of Appeal ought to have exercised itsdiscretion and accepted the new notice. Learned counsel citedKiriwanthe and Another v. Navaratne and Another127' in support of hissubmissions.
Kiriwanthe was concerned with the failure to comply with Rule 46of the Rules of the Supreme Court. The Court was of the view that, inthe light of the object and purpose of the rule, strict compliance wasnot necessary and that substantial compliance was sufficient. There
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should, in its view, have been a determination whether the defaulthad been satisfactorily explained, or cured subsequently withoutunreasonable delay, followed by an exercise of judicial discretioneither to excuse the non-compliance or to impose a sanction.Dismissal was not the only sanction, A failure to comply with the rulewas curable by subsequent compliance where the court holds thatinitial compliance was impossible by reason of circumstances whichare beyond the control of the applicant.
Where a court is given in terms of a power to exercise a certainjurisdiction, this may be construed as imposing a duty to act. This willarise where there is no justification for failing to exercise the power, Insuch cases, as it is often put, ‘may’ is held to mean shall: e.g. seeMacdugall v. Paterson™ at p. 773; Morisse v. Royal British Bank™ atpp. 84-85. Re Eyre and Leicester Corporation™- SheffieldCorporation v. Lux ford™] Re Shuter(M1; Annison v District Auditor forthe Metropolitan Borough of St. Pancras(331. In the matter before theCourt of Appeal, however, there was ample justification for notexercising its power to grant relief and for rejecting the petition ofappeal and the notice upon which such petition was founded. As wehave seen, the defect was not of a purely formal or technical nature:A notice of appeal is a crucial step in the proceedings and such astep could, for the reasons explained, only have been taken by theattorney on record. In Hameed (supra) at p. 7 the Court of Appeal,quite correctly in my view, said: "Counsel for the Appellant did notinvite this Court to act in terms of section 759(2) of the CivilProcedure Code. In any event the lapse referred to above (that theappellants instead of their attorney on record had signed the noticeof appeal) goes to the basic validity of the notice and petition ofappeal and, as such it is not curable in terms of the provisions ofsection 759(2)."
Discretion is to be exercised, as Lord Halsbury puts it in Sharp v.Wakefield™ at p. 179, according to the rules of reason and justiceand not according to private opinion, according to law, and nothumour.” See also per Lord Atkinson in Frome United Breweries v.Bath Justicesm at p. 605.
The notice of appeal had to be presented to the court of firstinstance within a period of fourteen days from the date when thejudgment was pronounced. The notice of appeal was filed on the
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28th of February 1989 within the stipulated time, but the defect wassought to be 'cured by the filling of a new notice only on the 13th ofMarch 1996. There was no question of impossibility of compliance,nor was there any explanation as to why the notice of appeal was notsigned by the attorney on record. In the circumstances, the decisionin Kiriwanthe had no application to this case and the Court of Appealwas justified in holding that it should not entertain the new notice ofappeal. There was in the circumstances of the case no obligation onthe Court of Appeal to exercise the power vested in it by section759(2) of the Civil Procedure Code.
In Silva v. Cumaratunga (supra) it was held that when the petitionof appeal was not signed by the proctor whose proxy was on recordat the date on which the petition was filed the petition should berejected and the court has no power to give relief. The court notedthat in Fernando v. Perera and Other<36). the Supreme Court hadremitted the petition of appeal to the District Court to be signed bythe proctor on record but added that “the authority for this procedureis not stated in the judgment and I do not think it should be followed.Besides in this case the proxy of the proctor on record when theappeal was filed has been revoked and he cannot now be asked tosign the petition of appeal." In the matter before me too, the proxy ofthe attorney on record when the appeal was filed had been revokedand could not be signed by him later when the defect wasdiscovered.
For the reasons stated in my judgment, I dismiss the appeal. Eachparty shall bear his own costs,
PERERA, J. – I agree.
DR. SHIRANI BANDARANAYAKE, J. -1 agree.Appeal dismissed.