(a)the Attorney - General, on behalf of the State in respect of any court; who is also authorized to depute his power of appointing a registered attorney on behalf of the State in respect to any court to any person by a written document to be signed by the Attorney-General, and to be filed in that court;
(b)persons holding general powers of attorney from parties not resident within the local limits of the jurisdiction of the court within which limits the appearance or application is made or act done, authorizing them to make such appearances and applications, and do such acts on behalf of such parties; which power, or a copy thereof certified by a registered attorney or notary shall in each case be filed in the court.
(c) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the court within which limits the appearance or application is made or act done, in matters connected with such trade or business only, where no other agent is expressly authorized to make such appearances and applications and do such acts.
A corporation registered in India having its registered office and principal place of business there with a branch establishment in Colombo is not a party resident within the jurisdiction of the District Court of Colombo for purposes of section 25 (b) of the Civil Procedure Code.
The Bank of Chettinad Ltd., Vs. Thambiah (35 N.L.R. 190)
Where judgment was entered of consent against a defendant who appeared by an Attorney whose power of attorney was found to be invalid. Held, that the irregularity did not vitiate the proceedings unless the irregularity affected the merits of the case or the jurisdiction of the court.
Kumarihamy Vs. Punchi Menika (38 N.L.R. 385)
An agent with a special authority to represent his principal in matters in connection with a particular trade or business is a recognized agent within the meaning of section 25(b) of the Civil Procedure Code. Section 25(b) was not intended to refer only to persons who hold general powers of attorney authorizing them to represent the principal in every conceivable kind of transaction and in connection with every kind of legal proceeding.
Lanka Estates Agency Ltd. Vs. Corea. (52 N.L.R. 477)
A proxy given by a person to a proctor must be signed only by that person himself or by a recognized agent as defined by section 25 of the Civil Procedure Code. A person holding a power of attorney as the agent of a party is debarred by section 25(b) from appointing a proctor on behalf of his principal if the principal is resident within the jurisdiction of the court at the time when the action is instituted there.
William Silva Vs. Sirisena (68 N.L.R. 206)
Once it is admitted that a power of attorney bears the signature of the party who authorized it, is not necessary for the court to be unduly critical in its examination of the document.
Arumugam Vs. Valliamma (76 N.L.R. 500)
Recognized agent is defined in Section. 5 of the code as including the persons designated under that name in Section 25 and no others. No person other than those designated as recognized agents in subsections (a), (b) and (c) of Section 25 can be recognized agent of a party. Subsection (b) designates one class of recognized agents namely, those holding general powers of attorney, from parties not resident within the local limits of the jurisdiction of the court where the application is made or act done., authorizing them to make such appearances and applications and do such acts on their behalf. A proctor duly appointed by a recognized agent of a party may, inter alia, make an application to court.
A defective proxy can be rectified and the acts done thereon ratified by the principal where the defects are curable. The question is whether the proctor had in fact the authority of his client to do what was done on his behalf although in pursuance of a defective appointment. If in fact he had his client’s authority to do so, then the defect is one which in the absence of any positive legal bar, could be cured. On the contrary if in fact he did not have such authority the acts done and the appearances made on his behalf by the attorney-at-law would be void and of no legal effect.
Failure to file the powers of attorney or certified copies thereof in court in compliance with Section 25(b) of the Civil Procedure Code is only an irregularity which can be cured later by tendering them to court.
Any notary can certify a copy of a power of attorney as a true copy for the purposes of Section 25 (b) of the Civil Procedure Code and not only the notary who attested it.
Udeshi Vs. Mather (1988 (1) S.L.R. 12)(Sri Skantha’s Law Report Vol. IV page 40)
The plaintiff company’s attorney in Colombo was “recognized agent” within the meaning of Section 25 (b) of the Code and his affidavit was sufficient and satisfied the requirements of Section. 705 (1) of the code.
Science House Ltd. Vs. IPCA Laboratories Ltd.(1989 (1) S.L.R. 155)
Discourtesy to court is much more than a matter of good manners. It is axiomatic that every attorney must encourage respect for the administration of justice by treating the courts and tribunals of the country not only with candour and fairness, but also with respect and courtesy. An attorney who is discourteous to court acts in a manner prejudicial to the administration of justice in that he undermines the work of the Court. He renders himself unfit to be an officer of the Court. As an officer of the Court, and as a privileged member of the community who has been conditionally allowed to practice his profession to assist in the administration of justice, every attorney must act with courtesy to Court. It is a duty recognized by Rule 15 of the Supreme Court (Conduct of and Etiquette for Attorneys-at-Law) Rules of 1988.
The relationship of attorney and client is much more than an ordinary contractual relationship. It does not terminate automatically on the non payment of fees. Nor can it be abruptly terminated. An attorney is ordinarily justified in withdrawing if the client fails or refuses to pay or secure the proper fees or expenses of the attorney after being reasonably requested to do so, provided his right of withdrawal is not exercised at a moment at which the client may be unable to find other legal assistance in time to prevent damage being done. The attorney must give his client reasonable warning that he will withdraw unless the client fulfills his obligations.
Even an instructing attorney has a right of audience and must appear in terms of his or her undertakings to the client. An attorney appointed by proxy formulated in terms of the Civil Procedure Code has every right to conduct the case in Court. Where an attorney intends to function in a contentious civil matter only as a Registered Attorney, and not also as Counsel, he or she should ensure that an Attorney who is to appear as Counsel is retained and instructed. Otherwise the registered attorney would be acting in contravention of Rules 15 and 16 of the Supreme Court (Conduct of and Etiquette for Attorneys-at-Law) Rules of 1988.
Deniel Vs. Chandradeva (1994 (2) S.L.R. 1)
The proxy has been signed by the Directors of the Tea Small Holders Factories Ltd., but the name of the appellant company was Tea Small Factories Ltd. But the name of the company was later amended to read as “Tea Small Holders Factories Ltd.” The defect in the proxy stands rectified by the amendment of the name of the appellant.
Tea Small Factories Ltd.,Vs. Weragoda (1994 (3) S.L.R. 353)
Once a court accepts and acts on a proxy or a power of attorney presumably because no defect appears on the face of such document, any party who desires to question the authority of that document has the onus of showing, the want of authority. This rule is based on the presumption – omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium.
Cinamas Ltd., Vs. Soundararajan (1998 (2) S.L.R. 16)
A power of attorney purported to have been executed out side the country in the presence of two witnesses and a notary public could be admitted under section 85 of the Evidence Ordinance without evidence as to the signature of the Notary and identity of the witnesses.
Brunswick Exports Ltd. Vs. Hatton National Bank(Bar Journal 1994 Vol. V Part II page 1)
The complaint, a German national, sought the services of the two respondents Attorney-at-Law, inter alia, to purchase lands in Sri Lanka. The complainant established contact with the respondents with the help of one Indralal Perera who had been working with him in Abu Dhabi. The 1st respondent was at the material time in 1990-1991 an Attorney-at-Law of about 3 years experience working as a junior under the 2nd respondent, an Attorney-at-Law who had been practicing from about 1969. The respondents located two lands. They represented that the price of the first land would be Rs. 880,000 and the second land with a house would cost Rs. 725,000. The complainant also selected a quantity of antique furniture priced at Rs. 215,000 according to the seller.
Pursuant to the said arrangement it was agreed that the complainant should remit funds for encashment by the 1st respondent at Deutsche Bank in Colombo to finance the contemplated purchases. Accordingly, between January and May, 1991, the complainant remitted a sum of DM 9800,000, which the 1st respondent encashed. This amount was approximately Rs. 2,500,000. Those monies were admittedly handed over to the 2nd respondent by the 1st respondent.
The first land was sold by the owner to Indralal Perera for a sum of Rs. 320,000 only, paid by the 2nd respondent, on a deed attested by the 1st respondent. Regarding the second land, its price was in fact Rs. 525,000 and not Rs. 725,000. The respondents paid two advances of Rs. 25,000 and Rs. 75,000 for that land but nothing more, with the result that the complainant had to pay a sum of Rs. 450,000 to complete the purchase having had to forfeit the advance of Rs. 215,000 for antique furniture which sum the complainant himself paid to the owner Nandasena before purchasing the same.
In the result, the 2nd respondent failed to make due payments of monies provided by the complainant and received by the 2nd respondent for specific purpose and failed to render a true and proper account of the monies remitted by the complainant.
A rule was issued against the respondents in terms of section 42(2) of the Judicature Act, No. 2 of 1978 on the grounds of deceit / and or malpractice.
Shirani A. Bandaranayake J. held that;
1.The charges against the 1st respondent had not been made out to the satisfaction of the Court, but the 2nd respondent is guilty of deceit and malpractice under section 42 of the Judicature Act.
2.If the conduct of the Attorney-at-law is also criminal in character, as in this case, the Attorney-at-law will be disenrolled even though there is no conviction.
Laurentius Van Kessel Vs. Shobha Samaratunga, Attorney-at-Law (2002 (2) S. L. R. 85)
The plaintiff respondent instituted action against the defendant petitioner seeking a divorce and custody of the child. The defendant-petitioner filed answer denying the allegations of malicious desertion and counter claimed a divorce. The trial was fixed for 30.5.2001. The defendant petitioner sought to amend the answer on 25.5.2002. The trial Judge refused the application. On leave been sought, it was contended that the plaint in its caption or in the body does not state that it is an action of the plaintiff by his attorney, therefore the defendant was not aware when she filed her answer that it was filed through an attorney and this fact came to light only when the defendant’s Attorney-at-Law perused the record at a later stage and therefore the defendant is entitled to amend the answer. The failure to state either in the caption, or in the body of the plaint that the plaintiff has filed his action by his attorney is a fatal defect.
Gamini Amaratunga J. held that;
1.The caption clearly shows that at the time of filing action both parties were resident in the U.K.
2.In terms of section 24 of the civil procedure code a party can make an appearance through his recognized Agent duly appointed by him. In the case, the proxy filed by the registered attorney is a proxy given to him by ‘J’ the Power of Attorney holder.
3.In terms of section 25(b) persons holding a general Power of Attorney, from parties not resident within the local limits of the jurisdiction of Court, shall file in Court a copy of the Power of Attorney or a copy thereof certified by a registered attorney.
4.Section 42 is not applicable, the action has not been brought in a representative capacity, but by the holder of a Power of Attorney, a recognized Agent.
“In the absence of any specific requirement in the Code to have such particulars either in the caption or in the body of the plaint, this Court is unable to add a new requirement to actions filed through recognized Agents.”
The plaintiff has complied with section 25(b) by filing a copy of the Power of Attorney along with plaint.
5.It appears on the face of the plaint, that at the time the plaint was filed, the plaintiff was resident in the U.K; this was sufficient notice for the defendant to ascertain whether the action has been filed through an attorney or not.
Wijesundara Vs. Wijesundara (2003 (1) S. L. R. 374)
The defendant-petitioner through his power of attorney holder sought to revise the consent judgment entered on the basis that there never was a settlement. The plaintiff-respondent contended that –
(i)The purported affidavit of the power of the attorney holder is not in conformity with section 183A.
(ii)That the petitioner is not entitled to make the revision application through his power of attorney holder, as the petitioner resides within the local limits of the jurisdiction of the court.
On leave being sought,Wimalachandra J, held that;
‘If the principal and the power of attorney holder reside within the jurisdiction of court, the power of attorney holder is not entitled to act on behalf of the principal.’
Umma Anina Vs. Jawahar (2004 (2) S. L. R. 1)
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