015-SLLR-SLLR-2010-V-2-S.-P.-GUNATILAKE-v.-S.-P.-SUNIL-EKANAYAKE.pdf
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S. P. Gunatilake v. S. P. Sunil Ekanayake
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S. P. GUNATILAKE V. S. P. SUNIL EKANAYAKESUPREME COURT
J.A. N. DE SILVA, C.J.
K.SRIPAVAN, J AND
EKANAYAKE, J.
S. C. APPEAL NO. 26/2009S. C. (CALA) 130 A//2008NCP/HCCA/65/2007
C. POLONNARUWA 5341/LJUNE 29th, 2010
Civil Procedure Code – Section 27 – appointment of a registeredAttorney-failure tofileproxy-subsequentfiling of proxy-validity-objection to jurisdiction – failure to take such objections at thefirst opportunity – consequences?
This is an appeal against the judgment of the Provincial (Civil) Appel-late High Court. The original Plaintiff died whilst the District Court ac-tion was pending and the Attorney-at-Law for the deceased Plaintiff onrecord filed a petition and affidavit to substitute the present substitutedPlaintiff in place of the Deceased Plaintiff. The District Court allowedthe substitution and after trial judgment was delivered in favour of thesubstituted Plaintiff. The Respondent appealed against the judgment.The substituted plaintiff filled an application for writ pending appeal.The District Court allowed the application and issued a writ in favour ofthe substituted Plaintiff. The Respondent preferred an appealed againstthe said order. The Court of Appeal refused leave and dismissed theapplication. The Respondent thereafter preferred a special leave toappeal application to the Supreme Court which was later refused.The final appeal was fixed before the Civil Appellate High Court ofAnuradhapura. In appeal the Respondent took up a preliminary objectionthat there was no proxy filed on behalf of the substituted Plaintiff inthe District Court, and there was no proper application before Courtto substitute him or even to represent him by an Attorney-at-Law. Thesubstituted Plaintiff submitted that the failure to object in the originalCourt coupled with the subsequent filing of a proxy cured any defectwhich may have invalidated the proceedings.
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The High Court of Appeal (Civil) Anuradhapura allowed the appeal onthe ground that no valid proxy had been before the District Court onbehalf of the substituted Plaintiff thereby rendering the judgment dated02.02.2002 of the District Judge null and void.
This appeal to the Supreme Court is against the aforesaid decision ofthe Civil Appellate High Court.
Held
Even when an Attorney is incapable of appearing or makingapplications due to the total failure to file proxy, such defaultshould not in any way affect the validity of the proceedings.
Per J. A. N. de Silva, CJ. –
“Mr. Iddawela’s name continued to be in the record as
being the Attorney for the Plaintiff. On 21/11/2001 the trialrecommenced and the record notice Mr. Iddawela as havingappeared for the substituted Plaintiff. No objection to this wastaken up by the Defendant. From that point onwards this Courtnotes no less than seventeen journal entries with Mr. Iddawela’sname appearing for the substituted Plaintiff, whilst the substitutedPlaintiffs presence in Court is also duly noted. At no time was anobjection taken to Mr. Iddawela’s appearance.”
“The aforementioned facts in my opinion, provides a sufficientlystrong indication that the substituted Plaintiff had at the materialtimes granted Mr. Iddawela the authority to appear and makeapplications on behalf of him, despite the substituted Plaintiff notfiling a proxy as an overt manifestation of the granting of suchauthority.”
The substituted Plaintiff by virtue of filing a proxy belatedly hassucceeded in ratifying the appearances and applications of theregistered Attorney and thereby supplying all such acts with legalvalidity.
Obiter:
Jurisdictional objections are required to be taken at the firstopportunity, the failure of which would constitute acquiescence tojurisdiction of the Court.
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S. P. Gunatilake v. S. P. Sunil Ekanayake
(J. A. N. De Silva CJ.)
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Cases referred to;
Paul Coir v. Waas – 2002 (1) SLR 13
L. J. Peiris & Co. Ltd. V. Peiris – 74 NLR 261
Attorney – General v. Silva – 61 NLR 500
TiUekeratne v. Wijesinghe – 11 NLR 270
Nelson De Silva v. Casinathan – 55 NLR 121
Jalaldeen v. Rajaratnam- 1986 (2) SLR 201 .
Udeshi v. Mather- 1998 (2) SLR 12
Kadirgamadas v. Suppiah- 56 NLR 172
APPEAL from the judgment of the Provincial High Court (Civil Appellate)of Anuradhapura.
Ananda Kasturiarachchi with Theja Malawarachchi for the Plaintiff-Respondent-Appellant.
W. Dayaratne, PC., with Ranjika Jayawardena for the Defendant-Appellant-Respondent.
Cur.adv.vult.
December 15th 2010J. A. N. DE SILVA CJ.
This is an appeal against the judgment of the provincialCivil Appellate High Court of Anuradhapura which theAppellant seeks to set aside. The facts of this case are asfollows.
One RP Anamraa (hereinafter referred to as the Plaintiff)instituted action in the District Court of Polonnaruwapraying for a declaration of title and the eviction of theDefendant- Appellant Respondent (hereinafter referred toas the Respondent). The case proceeded to trial where thePlaintiff and the land officer of the district secretariat gaveevidence. Thereafter the Respondent too gave evidence. On
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28.02.2001 Court was informed of the death of the Plaintiffand an order was made by Court for the appropriate stepsbe taken for substitution. On the following date of the trialthe Attorney at law for the deceased Plaintiff on record, oneMr. Iddawela, filed a petition and affidavit moving Court tosubstitute the present Appellant as the substituted Plaintiff(hereinafter referred to as substituted Plaintiff). TheRespondent filed objections but Court allowed the substitution.Subsequently further evidence was led by the Respondentand a judgment was found in favour of the SubstitutedPlaintiff, by the learned District Court Judge.
The Respondent gave notice of appeal and subsequentlyfiled a petition of appeal. The substituted plaintiff in themeantime filed an application for writ pending appeal. Thiswas objected to on various grounds. This learned districtJudge overruled the objections and issued a writ as prayedfor.
The Respondent appealed against the said order for writof execution to the Court of Appeal. The learned Judges of theCourt of Appeal refused leave and dismissed the application.The Respondent thereafter preferred a special leave to appealapplication to this Court which was later refused.
The substituted Plaintiff had also filed an applicationfor acceleration before the Court of appeal. However thatapplication too had been refused.
The final appeal was fixed before the Civil Appellate HighCourt of Anuradhapura where the substituted Plaintiff hadfiled a proxy as well as papers for substitution. In appealthe Respondent took up a preliminary objection that therehad been a failure to file a proxy on behalf of the substituted
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Plaintiff and therefore there was no proper application beforeCourt to substitute him or to represent him by an Attorneyat law.
The substituted Plaintiff objected on the basis that anobjection on the ground of a valid proxy not being filed hadnot been taken at any stage previously and that such anobjection cannot be raised for the first time in appeal. Thesubstituted Plaintiff also submitted that the failure to objectcoupled with the subsequent filing of a proxy cured anydefect which may have invalidated the proceedings.
After hearing submissions from both parties that learnedJudged of the Civil Appellate Court of Anuradhapura allowedthe appeal on the ground that no valid proxy had been beforeCourt thereby rendering the Judgment dated 2002-02-02of the learned District Court Judge null and void.
Being aggrieved of the said order the substituted Plaintiffmoved this Court to grant special leave to appeal and leavewas granted on the following questions.
[aj Did the Honourable Judge of the Civil Appellate HighCourt err in law when they allowed the appeal on theground that the petitioner was not properly substitutedin to the District Court?
Did the Honourable Judges of the Civil Appellate HighCourt err in holding that the petitioner was not properlysubstituted?
Did the Honourable Judges of the Civil Appellate HighCourt err in holding, that (due to) the proxy of thesubstituted Plaintiff had not been filed of record at thetime of the substitution the proceedings became illegaland void ab inito?
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Did the Honourable Judges of the Civil Appellate HighCourt err is not considering that the Respondent hadacquiesced and/or accepted the substituted Plaintiff inall subsequent proceedings in the District Court and(was) thereby stopped from objecting to the appeal on theground of proxy?
Did the Honourable Judges of the Civil Appellate HighCourt err in holding that there was a valid final appeal forthe exercise of appellate jurisdiction?
I would first consider the question of the validity of theproxy as it appears to be the central issue from which allother issues flow. Several authoritative judgment of this Courtand of the Court of Appeal were placed before this court andI shall consider their applicability in due course.
Section 27 of the Civil Procedure Code reads as follows.
The appointment of a registered Attorney to make anyappearance or application, or do any act as aforesaid,shall be in writing signed by the client, and shall befiled in Court; and every such appointment shall containan address at which service of any process which underthe provisions of this Chapter may be served on a regis-tered Attorney, instead of the party whom he represents,may be made.
When so filed, it shall be in force until revoked withthe leave of the Court and after notice to the reg-istered Attorney by a writing signed by the clientand filed in Court, or until the client dies, or until theregistered Attorney dies, is removed, or suspended, orotherwise becomes incapable to act, or until all proceedingsin the action are ended and judgment satisfied so far asregards the client.
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No counsel shall be required to present any documentempowering him to act. The Attorney-General may appointa registered Attorney to act specially in any particular caseor to act generally On behalf of the State.
The form of an appointment of a registered Attorney isfound in the 1st Schedule to the civil procedure code.
Now section 27(1) states with clarity that a party in orderto be represented by an Attorney must make such appoint-ment in writing and such document is further required to befiled in Court.
This Court has on several occasions dealt with thequestion of a defective proxy being filed of record and theymay be of assistance in deciding the question before us, i.e.total absence of a proxy.
The latest of these authorities is the case of Paul Coirv. Waas 2002 (1) in which Justice Wigneswaran cites withapproval a passage from Justice Thamotheram’s judgment inthe case of LJ Peiris & Co. Ltd v. Peiris,2).
“The relationship of a Proctor and client may well be acontract of agency but there is no law requiring that thecontract should be in writing. A proxy is a writing givenby a suitor to Court authorizing the Proctor to act onhis behalf. It does not contain the terms of the contractbetween the suitor and the Proctor. That contract is adistinct one and has nothing to do with the proxy which isan authority granted by virtue of that contract. ”
Thamotheram J also proposes the following questions tobe answered to ascertain compliance with section 27(1).
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“(1) Is there a contract of agency between the Proctor and
his client? No writing is required to establish this.
Is there a writing, appointing a client’s Proctor giving
him authority to act on the client’s behalf for the purposes
mentioned in Section 27 of the Civil Procedure Code?
Is this writing signed by the client?”
Therefore both justices seek to draw a distinctionbetween the actual contract of agency between the Attorneyand the client and the proxy which is to be filed in Court.
I see no reason to hold a position contrary to the learnedjustice’s assertions.
Therefore it is now necessary to consider as to whetherthe default of not filing a proxy could be cured by the belatedfiling of proxy in view of the authority given by contractpreviously to the proctor to appear and make applications onthe client’s behalf.
In Paul Coir v. Waas (supra) the Justices were of theview that the proxy is not the contract of agency between theproctor and the suitor and that the two were distinct andseparate. They held further that existence of such an agencydepended on the validity of the contract.
In AG v. Silva(3) the application had been made by aproctor without a proxy. The said proctor filed a proxy afterthe objection was taken and a submission was made thatthe previous defective acts of the proctor were rectified bysuch subsequent filing of proxy. HNG Fernando J in hisjudgment suggests that such rectification may be allowedunder two circumstances. Namely, when the defect is pointed
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out at the earliest time and the Plaintiff is then made to file afresh plaint.
This argument seems to suggest that Fernando J wasof the view that the totality of proceedings that took placeunder the default constituted a nullity. His lordship refers tocircumstances in which undesirable consequences wouldflow if unreserved rectification were to be allowed. Bothexamples cited relate to the default of the party institutingthe proceedings. Would similar consequences ensue if theopposite party would be in default? If this were so would nota defaulter be in a position to profit from his default. If aparty Defendant’s default were to be brought to the attentionof Court in the twilight stages of a trial would then the entireproceedings have to be recommenced?
If this were to be so, we would have disparate conse-quences where the Plaintiff defaults and in circumstanceswhere the Defendant defaults. This should not be so. Rulesof procedure must be certain, unambiguous and equal inapplication to all parties to an action. They form the founda-tion of fair play.
Hence it is my view that this difference can be obviatedby taking the position that it is not the proceedings there-unto that are rendered a nullity, but all appearances andapplications made by the proctor or the counsel as hisagent.
In Tillekeratne v. Wijesinhe(4>, the Plaintiff had granted aproxy to a proctor, which by oversight, had not been signedby the Plaintiff. The proctor acted on the proxy without anyobjection in the lower Court. When the case was taken up inappeal, the defendant’s counsel objected to the status of theproctor in the case.
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It was held by his lordship Hutchinson CJ that therequirements in section 27 of the Civil Procedure Code weremerely directory and that the mistake in the proxy could berectified at this stage by the Plaintiff signing it. It was furtherheld that such signature would be a ratification of all the actsdone by the proctor in the action.
The case of Nelson De Silva v. CasinathaniSI was alsosubmitted for our consideration, which seem to take theposition that even though the proxy was held to be bad as theobjection had not been taken in the lower Court and sincethe defect did not affect the merits of the case. Court didnot reverse the decree.
The said line of thinking offers much attraction due toits simplicity. However I am concerned as to whether thewording of section 27 permits such liberties. Section 27 doesnot reveal whether an objection to the non conformancewith the provision needs to be taken at the first availableopportunity and if so whether the failure to raise an objectionat that time estoppes the raising of the objection later.
There are certain objections which must be raised at theearliest opportunity available. The objection to the jurisdic-tion of a Court is one.
In Jalaldeen v. Rajaratnam{6) it was held that
“An objection to jurisdiction must be taken at the earliestopportunity. Further, issues relating to the fundamentaljurisdiction of the Court cannot be raised in an obliqueor veiled manner but must be expressly set out. Theaction was within the general and local jurisdiction of the
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5. P. Gunatilake v. S. P. Sunil Ekanayake
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District Court. Hence its decision will stand until thewronged party has matters set right by taking the courseprescribed by law. ”
In my view this is because of the effect of the failuregiving rise to the objection, that such promptness isrequired.
If a Court inquires into a matter for which it has nojurisdiction all subsequent acts constitute a nullity. Ifjurisdictional objections are permitted at the very end ofproceedings and upheld, all proceedings would have to beheld void thus wasting precious judicial time and resourcesand causing grave injustices. Therefore jurisdictionalobjectional objections are required to be taken at the firstopportunity the failure of which would constitute acquies-cence to jurisdiction of the Court.
A similar analysis may be useful in respect of the presentquestion. The Respondent argues that the proceedingsconstitute a nullity due to the failure of the Plaintiff to filea valid proxy, whilst the appellant submits that the omis-sion can be cured. Thus if I were to be persuaded by thesubmissions of the Respondent that the default of the Plaintiffamounts to a nullity according to the same analysis as aboveI would have to hold that the Respondent would be precludedfrom raising the objection to file proxy at this late stage.
Having discussed the authorities on the legal questionconsequences of failure to file a valid proxy I would nowproceed to examine the provisions of section 27. Section 27(1)throws light on the purpose of filing a proxy. The purposeis to appoint a registered Attorney to appear or make any
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application before court. It is mandatory that the proxycontain an address for the process to be served.
Section 27(2) adverts to the circumstances in which theproxy “loses its force.” The first of which is revocation withthe leave of Court. When such revocation is granted,unless fresh prosy is filed, the case is considered to be equiv-alent to a situation where a party remains unrepresented.However proceedings may continue on that footing. Obviouslythe proceedings that had thus far transpired would remainunaffected.
The other methods by which a proxy loses its force arethe death of the client, the suspension or removal of theAttorney etc. The death of the client occasions the demise of theagency relationship and therefore requires little explanation.The other grounds support the inference drawn earlier aseach of those instances render the “Attorney” incompetentto “appear or make application before Court”. Yet theconsequences are the same. Once the Attorney meets withsuch incapacity he is no longer the client’s representative.The client is considered to be unrepresented then on. Theforegoing analysis lends little support to the proposition thatthe “loss of force” of a proxy touches on the validity of theproceedings in toto.
Therefore it stands to reason that even in the case ofan Attorney when he is incapable of appearing or makingapplication due to the total failure to the file proxy.
such default should not in any way affect the validity of theproceedings.
The case of Udeshi v. Mather*7'1 is of assistance atthis point. Atukorale J’s judgment in my view clearly
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lays down the conditions in which the doctrine ofrectification would not apply. Accordingly the first is asituation where some other legal bar stands in the way ofcuring the default. But more importantly the fundamen-tal question to be asks is whether the proctor had in factthe authority of his client to do what was done although in. pursuance of a defective appointment.
The case of Kadirgamadas v. SuppiaHn is of directauthority. In the said case the petition of appeal was filedon behalf of the defendant. The proctor had not beenappointed In writing as required by section 27 of the civilprocedure code. He had however without objection fromany of the parties, represented all the defendants at variousstages of the proceedings. It was held by Gunasekera J thatthe irregularity of the appointment of the proctor was curedby the subsequent filing of a written proxy.
Therefore an analysis of the facts thus far established isnecessary to ascertain whether the proctor had in fact theauthority.
The journal entry dated 28.02.2001 confirms that Courtwas informed of the Plaintiff's death, and that Court haddirected that appropriate steps be taken. On the next date,that being 28-03-2001, Mr. Iddawela who had hithertoappeared for the Plaintiff filed a petition and an affidavitmoving Court to order substitution.
On 25-06-2001 the Respondent filed his objections to thesubstitution. However the learned District Court permitted thesubstitution and fixed a date for further trial. Mr. Iddawela’sname continues to be in the record as being the Attorney forthe Plaintiff.
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On 21-11-2001 the trial recommenced and the recordnotes Mr. Iddawela as having appeared for the substitutedPlaintiff. No objection to this was taken up by the Defendant.
From that point onwards this court notes no less thanseventeen journal entries with Mr. Iddawela’s name appearingfor the substituted Plaintiff, whilst the substituted Plaintiffspresence in Court is also duly noted. At no time was anobjection taken to Mr. Iddawela’s appearance.
On 28-05-2008 on the direction of Court the petitionerfiled a proxy naming the same Mr. Iddawela as his Attorney.
The aforementioned facts in my opinion, provides asufficiently strong indication that the substituted Plaintiffhad at all material times granted Mr. Iddawela the authorityto appear and make applications on behalf of him,
despite the substituted Plaintiff not filing a proxy as an overtmanifestation of the granting of such authority. The factsof the substituted Plaintiffs regular presence at all Curtproceedings and the retaining of Mr. Iddawela in the CivilAppellate High Court proceedings is highly suggestive of this.
Therefore I hold that the substituted Plaintiff by virtueof filing a proxy belatedly, has succeeded in ratifying theappearances and applications of the registered Attorney andthereby supplying all such acts with legal validity. Hencethis appeal is allowed. We set aside the judgment of the CivilAppellate ■ High Court dated 16th September 2008. Thejudgment of the learned District Court Judge is restored. Weorder no costs.
SRIPAVAN, J – I agree.WKANAYAKE, J. – I agree.appeal allowed.