OF RECOGNIZED AGENTS AND ATTORNEYS-AT-LAW
24. Any appearance, application, or act in or to any court, required or authorized by law to be made or done by a party to an action or appeal in such court, except only such appearances, applications, or acts as by any law for the time being in force only attorneys-at-law are authorized to make or do, and except when by any such law otherwise expressly provided, may be made or done by the party in person, or by his recognized agent, or by a registered attorney duly appointed by the party or such agent to act on behalf of such party:
Provided that any such appearance shall be made by the party in person, if the court so directs. An attorney-at-law instructed by a registered attorney for this purpose, represents the registered attorney in court.
A minor holding a general power of attorney for his principal abroad is competent to act as his agent for the limited purposes mentioned in section 24 of the Civil Procedure Code.
Somasundaram Vs. Ibrahim Saibu (1 N.L.R. 297)
It was contended in appeal that the authority of the Proctor of a party to a suit was limited by the terms of the instrument of appointment and that as section 24 of the Civil Procedure Code provided that an Advocate instructed by a Proctor represents the Proctor in court the Advocate’s authority could never be greater than that given to the Proctor.
Held, that, despite the restricted terms of the proxy, the plaintiff was entitled to judgment in his favour in terms of the consent given by the defendant’s Counsel. An extension of the written authority contained in the proxy could be given orally or be inferred from the client’s conduct.
Mohideen Ali Vs. Hassim (62 N.L.R. 457)
A leave to appeal application is a step in the proceedings of the original court but according to section 756 (4) it originates in the Court of Appeal. Hence the proxy in an application for leave to appeal can be filed either by the registered attorney who filed proxy in the lower court or by any other attorney. Further, there is a long standing practice for an attorney not necessarily the registered attorney in the lower court to file proxy in the Court of Appeal.
This is a long standing and reasonable practice which has grown up since 1974 when the Administration of Justice Law, No. 44 of 1973 came into force, in the interests of the diligent and expeditious conduct of proceedings. The practice causes no prejudice and involves no breach of the provisions of the Civil Procedure Code and it has now become a cursus curiae.
Saravanapavan Vs. Kandasamydurai (1984 (1) S.L.R 268)
The notice of interim injunction and summons had been validly served on the three defendant companies in terms of section 471 of the Civil Procedure Code. The defendants could then have appeared in court through an Attorney-at-Law if they had given him a proxy under their seal. But in the proxy filed by the Attorney-at-Law granted to him by Losio (an employee of the first defendant company) and Wenzel (a Director of the third defendant company) the signatures of Losio and Wenzel had been super scribed over a rubber frank of the defendant companies. Losio and Wenzel have signed the proxy in their personal capacities and therefore have no status in law to participate in the proceedings. The proxy signed by them does not authorize the Attorney-at-Law to appear for the companies.
Gorden Frazer Co. Ltd Vs. Jean Marie Losio (1984 (2) S.L.R. 85)
When a party to a case has an attorney-at-law on record, it is the attorney-at-law on record alone and not the party who can lodge an appeal and take steps.
“It is recognized principle in court proceedings that when there is an attorney-at-law appointed by a party, such party must take all steps in the case through such attorney-at- law”
Seelawathie Vs. Jayasinghe (1985 (2) S.L.R. 266)
If there is an oral hearing, then a party is entitled to be legally represented unless the legislature expressly provides otherwise. And so, unless the legislature provides otherwise, a party can decide whether he will himself go into court or be legally represented in the exercise of his right.
Jinadasa Vs. Sam Silva (1994 (1) S.L.R. 232)
Section 24 of the Civil Procedure Code gives the freedom to a party to make any appearance or application or appear in court unless the law authorized that he should be expressly represented by an attorney-at-law. But once an attorney-at-law was duly appointed by the party concerned he foregoes his rights to tender and sign the Notice of Appeal when the registered attorney-at-law is alive and his proxy remains on record without being revoked.
Per Senanayake J.
“In my view the lapse referred earlier goes to the basic validity of the notice and petition of appeal and as such it is not curable in terms of Section 755 and Section 759 (2) of Act No. 79 of 1988 (Amendment). It is a well accepted principle of interpretation that the statute has to be read as a whole and that every clause should be construed with reference to the context and the other clauses of the Act, so far as possible to make a consistent enactment of the whole Statute”.
Fernando Vs. Sybil Fernando(1996 (2) S.L.R. 169) (Court of Appeal Judgment)
The provision in section 755 (1) CPC, that every notice of appeal “shall be signed by the appellant or his registered attorney” must be conferred with reference to the content and other clauses of the Code.
Where the notice of appeal is signed by the appellant himself when he had a registered attorney on record, the lapse is fatal and is not curable in terms of section 759 (2) CPC.
Per Dr. Amarasinghe J.
“ There is substantive law and there is the procedural law. Procedural law is not secondary: The maxim ubi ius ibi remedium reflects the complementary character of Civil Procedure Law. The two branches are also interdependent. It is by procedure that the law is put into motion, and it is procedural law which puts life into substantive law, gives it remedy and effectiveness and brings it into action.”
“The concept of the laws of civil procedure being a mere vehicle in which parties should be safely conveyed on the road to justice is misleading, for it leads to the incorrect 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 sacrifice litigants to technicalities, although parties on the road to justice may choose to act recklessly. On the contrary, as the indispensable vehicle for the appointment of justice, civil procedural law has a protective character. In its protective character, civil procedural law represents the orderly, regular and public functioning of the legal machinery and the operation of the due process of law. In this sense the protective character of procedural law has the effect of safeguarding every person in his life, liberty, reputation, livelihood and property and ensuring that he does not suffer any deprivation except in accordance with the accepted rules of procedure.”
Fernando Vs. Fernando (1997 (3) S.L.R. 1)(Bar Journal 1997 Vol. VII Part I page 24)
Plaintiff-respondent instituted action for ejectment of the defendant-appellant from the land in question. The defendant-appellant filed answer denying the averments in the plaint and prayed for a dismissal of the action. The case was taken up for trial on 9.11.1989, adjourned for 24.5.1990, defendant-appellant was absent on 24.5.1990. However, she had sent a letter to the counsel and the registered Attorney requesting them to seek a postponement on the ground of ill health. The counsel produced the letter and stated that a medical certificate would be produced before the next date of trial. The counsel for the plaintiff-respondent had objected; thereafter the Court refused the application and fixed the case for ex-parte trial. On 24.2.1992 the defendant’s application for vacation of the ex parte decree was refused. It was contended that, the District Court erred in deciding to hold an ex-parte inquiry when she was represented by her Attorney-at-law.
Held that,
1.perusal of section 24 of the Civil Procedure Code demonstrates the fact that an appearance of a party may be by an Attorney-at-law. When a client requests an Attorney-at-law to make an application it is an application the Attorney-at-law makes on behalf of the party he represents for the due administration of justice.
2.when Court decides to refuse an application made by counsel for the adjournment of proceedings the Court has only one option - inform the counsel that he should proceed with the trial inter-partes.
3.appearance may be by the party in person or by his Counsel or his registered Attorney and where the defendant is absent but is represented by Counsel or by Attorney-at-law and the Court is satisfied on the evidence adduced by the plaintiff, Court must enter a final judgement and not an order nisi. Judgement must be considered as being pronounce inter-partes and not ex-parte.
“ Registered Attorney present in Court when he is called to do so if he does not desire to enter an appearance for an absent party whose proxy he has filed shall definitely state to Court that he is not entering an appearance and that otherwise his appearance in Court must be deemed an appearance for the party.”
4.the trial Judge erred in law by deciding to hold an ex-parte trial offending section 84 read with section 24 of the Civil Procedure Code.
Isek Fernando Vs. Rita Fernando (1999 (3) S.L.R. 29)
The object of the Civil Procedure Code is to prevent civil proceedings from being frustrated by any kind of technical irregularity or lapse which has not caused prejudice or harm to a party. A rigid adherence to technicalities should not prevent a Court from dispensing justice.
The Court should not approach the task of interpretation of a provision of law with excessive formalities and technicality. A provision of law has to be interpreted contextually giving consideration to the spirit of the law.
In this case the proxy has been given in the name of one Prasanna Gunawardena, his Consultants and his assistants as registered Attorneys-at-Law. Although the Civil Procedure Code does not recognize a status called “Consultants”, if an Attorney-at-Law wishes to have that appellation at the end or the beginning of his name in addition to his status, as registered Attorney, it does not thereby invalidate the proxy filed, as long as a duly appointed Attorney-at-Law is empowered to act by a party in the case. There is nothing irregular or improper in this appointment.
The petition has been subscribed to by Prasanna Gunawardena and Company. However, the description of the petition should correspond with the names given in the proxy and if the petition has been subscribed to as Prasanna Gunawardena and Company, the proxy too should have been given in the said Company’s name instead of Prasanna Gunawardena, his Consultants and his registered Attorneys as evidenced by the proxy.
The proxy therefore is flawed and defective which flaw or defect is traceable to the proxy and not so much to the subscription of the petition.
The important question that has to be determined is whether Prasanna Gunawardena and Company, had in fact the authority of his client to do what was done on his behalf, on the strength of the proxy given to the subscriber by his client.
There is no doubt that Prasanna Gunawardena and Company, had ample authority. The defect or the flaw is curable under the law, and does not affect the validity of the petition, however the petitioner should rectify the defect in the proxy in conformity with the relevant provisions of the Civil Procedure Code.
Distilleries Company Ltd Vs. Kariyawasam (2001(3) S.L.R. 119)
An alternative final scheme of partition was considered in the presence of Attorney-at-Law of the parties and agreed to adopt the same. Subsequently the petitioner moved to set aside the said order on the ground that they were not present in court at the time the Attorney-at-Law accepted the alternative plan.
Gamini Amaratunga J. held that;
The Attorney-at-Law for the petitioners had acted with the authority granted to him by the proxy. Therefore the application to set aside the order was dismissed.
Charles Perera Vs. Shantha Gunasekara (C.A. No. 2044/2001, D.C. Colombo 14123/P, C.A. Minute dated 23.6.2004)
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