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Present: LasceUes C.J., Wood Benton and Grenier JJ:.
THE KING v, JAYETILLEKE.
3—1). G. (Grim.) Kurunegala, 3,435.
Petition-drawer—Drawing petition for filing in Court—No offence under‘
s. 5 of Ordinance No. 12 of 1848—Contempt of Court.
A petition-drawer who drew a petition for a person called upon toshow cause why she should not be appointed guardian ad litem overa minor was held not to have committed an offence under section5 of Ordinance No. 12 of 1848.
The section applies to the case of a proctor who practises withoutthe prescribed annual certificate; it has no application to the caseof a person who is not a proctor.
Lascejxes C.J.—“ It doe* not follow that because a prosecutionsuch as the present one has failed the Courts are powerless toprevent unauthorized persons from doing work which shouldproperly be done by proctors. To such persons to act as proctorsmay amount to a contempt of Court, and in any case it is open toa Court to decline to accept pleadings or other documents drawn,by unauthorized persons
fjl HE facts are set out in the judgment of Lascelles C.J.
Allan Drieberg (with him J. Joseph), for the appellant.—Drawinga petition is not an offence under section 5 of Ordinance No. 12 of1848. The section refers only to the case of a proctor who carries-on the business of a proctor without a stamped certificate.
The accused did not act as proctor. He professed to act as a~petition-drawer only. The Ordinance does not affect petition-drawers. The observations of Hutchinson C.J. in In re Wijesinghe1are not correct.
Walter Pereira, X.C., S.-G., for the Crown.—The accused is not aproctor; he professed to act as a proctor. The accused is guiltyof an offence under section 1, though he may not be guilty undersection 5. Section 289 of the Penal Code provides a penalty foroffences under section 1. (Chief Justice.—The accused did not pro-fess to act. as a proctor!) The accused* drew up a petition, whichis a pleading, for filing in Court. Only parties or their recognizedagents can do it. Sections 24 and 25 of the Civil Procedure Code-say who recognized agents are.
Gur. adv. vult.
i (1910) 14 N. L. R. 43*.
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1912. March 1, 1912. Lascelles C.J.—
The King v. This is an appeal against the conviction of the appellant under
JayetUUke section 5 of Ordinance No. 12 of 1848, in that “he, as a proctor, andwithout having previously obtained a stamped certificate under theOrdinance No. 12 of 1848, did carry on proceedings in a Court, towit, the Court of Requests of Kurunegala, to wit, by drawing forone Dissanayake Mudianselage Ukku Menika, for reward, a pleadingintended to be used in the said Court of Requests of Kurunegala.to .wit, a petition dated September 20, 1911,’’ and that he therebycommitted an offence under the said section of the said Ordinance.
The accused in this case is a petition-drawer, and it appears thatwhen one Ukku Menika was called upon to show cause why sheshould not be appointed guardian ad litem over a minor relation,she got the accused to draw the petition which is the subject of thepresent charge. The petition bears the mark of Ukku Menika, andit purports to be' drawn by the accused. The substance of thepetition is that, as the petitioner had no interest in the first res-pondent or his property, she declined to be guardian ad litem overhim, and she begged that the application to have Her so appointedshould be dismissed. In my opinion the conviction under section 5of Ordinance No. 12 of 1848 is clearly wrong. The title of the Ordi-nance is “ for making provision in certain respects touching theadmission of advocates- and proctors; and for the annual registrationof practising proctors,” and the preamble to the Ordinance recitesthat “ for the better regulation of proctors practising in this Island,it is expedient that every such proctor should be required to takeout annually a certificate that the person named therein is a proctor,and authorized to practise as such. ” The body of the Ordinanceis in strict conformity with the title and preamble. Section 1 dealswith the admission of advocates and proctors. Section 2 providesfor the granting of a certificate annually , to proctors. Section 3 setsout the procedure which is required in order that a proctor mayobtain an annual certificate. Section 4 provides that when aproctor has not procured an annual certificate within the prescribedtime, the Registrar or District Judge shall not afterwards grant acertificate without an order from the Supreme Court. Then comessection 5, which runs as follows:—-
“ Any person who, as a proctor, after the twenty-fifth day ofMarch next ensuing, shall sue, prosecute, defend, or carry on anyaction or suit, or any proceedings in any Court, without havingpreviously obtained such stamped certificate as aforesaid which shallbe then in force, shall be incapable of obtaining any taxation of anybill of costs due to him, or of maintaining any action or suit for therecovery of any fee, reward, or disbursement for on in respect ofany business, matter, or thing done by Him as a proctor as aforesaid• whilst he shall have been without such certificate as aforesaid, andshall also incur and be liable to a fine not exceeding twenty pounds. ”
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From the language of the section, and especially from the ex- 1912.pression “ shall be incapable of obtaining any taxation of any bill Lasobxxes-of costs due to him, or of maintaining any action or suit for the C.J.recovery of any fee, reward … in respect of any business. The King v-matter, or thing done by him as a proctor as aforesaid whilst he shall JayetiUehehave been without such certificate as aforesaid . . . it isabundantly clear that the section applies to the case of a proctor whopractises without the prescribed annual certificate, and that it hasno application to the case of a person who is not a proctor.
The learned District Judge appears to have doubted the appli-cability of section 5 of Ordinance No. 12 of 1848, Taut he consideredthat he was bound by the decision of this Court in In the Matter ofa Ride served on D. J. Wijeyesinghe for Contempt of Court 1. Inthat case the observations of Hutchinson C.J. with regard to theapplicability of section 5 to a case like the present were obiter, andwere not necessary for the decision of the case. But whatever mayhave been the view then taken of the construction' of section 8,
I am clearly of opinion that it has no application whatever to thepresent case.
The learned Solicitor-General contended that, even if the convic-tion under section 5 were not sustainable, it could, nevertheless, besupported under section 1 of Ordinance No. 12 of 1848 and section289 of the Penal Code. The former section provides for theadmission of advocates and proctors, and enacts that “ no personnot duly-authorized to act as an advocate or proctor previouslyto the time when this Ordinance shall come into operation shall beentitled to act as an advocate or proctor who has not obtained'such written authority as aforesaid. ”
In order to bring the appellant within the prohibition contained inthis section, it is necessary that he should have “ acted as a proctor. ”
It seems to me that it would be straining the language of the sectionto hold that a person who prepares a petition, such as that whichforms the ground of this charge, is acting as a proctor, and I amunable to adopt the suggestion that the conviction can be supportedunder section 1 of Ordinance No. 12 of 1848 and section 289 of thePenal Code. It does not follow that because a prosecution such asthe present one has failed, the Courts are powerless to preventunauthorized persons from doing work which should properly bedone by proctors. For such persons to act as proctors may amountto a contempt of Court, as was held in In the Matter of a Rule servedon D. J. Wijeyesinghe for Contempt of Court and in any case.it isopen to a Court to decline to accept pleadings or other documents- .drawn by unauthorized persons.
In my opinion the appeal should be allowed, and the convictionset aside-
i 11910) 14 N. L. R. 4$.
The King v.JayetUleke
Wood Benton J.—
X agree. Sections 24 and 25 of the Civil Procedure Code definethe classes of agents who have a right to act in civil cases. Thedefinition of “ pleader ” in section 3 of the Criminal Procedure Codedoes the same as regards criminal cases. These enactments aresufficient to enable the Courts to decline to permit, and, if need be,to treat as a contempt, the attempted intervention of unauthorizedpersons in civil or criminal proceedings before them. The presentcase cannot, in my opinion, be brought either under section 1 orunder section 5 of Ordinance No. 12 of 1848.
I agree on all points with the rest of the Court. I reserved thecase, not because I had any doubts as to the prosecution beingfounded upon an Ordinance which had no manner of application toa person in the position of the appellant, but because the Crownpresented the case in the Court below as a test case, and adecision by a Bench of two or more Judges is always desirable insuch circumstances.
THE KING v. JAYETILLEKE