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Getting to court
28/11/2006 The Star ARTICLES OF LAW By BHAG SINGH
THE system of courts that exist in the country enables offenders to be tried
and for disputes between parties to be resolved in accordance with the law.
As far as offences are concerned, the initiation of prosecution for an
offence has to come from or with the consent of the public prosecutor. Under
the Constitution, the Attorney General is the main person responsible.
However, where what is involved is not an offence or a crime, the initiation
and commencement of an action is always in the hands of an aggrieved party.
Every aggrieved person has a right to seek relief in the courts. However, as
a reader found out, this is not an absolute and unrestricted right. Why?
Whilst in theory it may be said that everyone has a right to commence an
action in court, the right is in some ways a qualified and restricted one.
This is because the right to seek relief in the various courts is not a
completely unlimited and unqualified one.
Of course, for the purposes of an ordinary civil dispute, any party can file
an action in court on the basis of contractual rights, tortious wrongdoing
or where any other cause of action is disclosed for the purpose of
commencing proceedings.
So long as the filing fee is paid for the Summons or Writ of Summons and the
documents or cause papers, as they are called, are drawn up substantially in
the form prescribed by the rules of the High Court or the Subordinate
Courts, the action can be filed.
At the time that such papers are filed in court, the officer in the Registry
of the Courts is neither required nor in a position to verify as to whether
the person initiating the action has a basis or for that matter good grounds
to do so. The filing of the Writ of Summons or a Summons is therefore in a
way an administrative act.
However, where a claim filed in court is without basis, it is open to the
defendant to apply relying on the prescribed procedures to strike out the
plaintiff's claim so that the matter does not proceed any further than it
has already done.
If it transpires that a claim is struck out because there was no basis for
commencing the action at all, can the person who is sued counter sue the
person who has sued him?
A person cannot sue another who has sued him simply because such a person
has failed. However, a person who is sued but successfully strikes out the
claim in the early stages or after trial is entitled to costs of the action.
Whether a person who has been sued can successfully sue the person who has
sued him can only be done on the basis of malicious prosecution. This
requires underlying facts and a basis which goes far beyond a litigant
having presented a weak case or having negligently handled it.
On the other hand, there are also situations where a person may indeed not
have an immediate personal right to go to a court. An example is the
Industrial Court.
It is a court established under the Industrial Relation Act 1967, which is
an act to provide for the regulation of the relations between employers and
workmen and their trade unions, and the prevention and settlement of any
differences or disputes arising from their relationship, and generally to
deal with trade disputes and matters arising therefrom.
In so far as individuals seeking to enforce their rights are concerned, the
relevant part of this Act is that which relates to representations on
dismissal and pursuant to which the Industrial Court can order a workman to
be reinstated and, as an alternative order, compensation to be paid to the
workman in lieu of reinstatement.
However, an individual has no immediate right of audience in this court as a
matter of personal preference. This is because a workman who is aggrieved or
a person who is being wrongfully dismissed cannot go direct to the court.
Such an aggrieved person has to make representations to the Director General
of Industrial Relations who will endeavour to reconcile the parties
involved. If he is not successful, then he reports to the Minister. In doing
so it would invariably involve submitting a report and recommendation.
It is then for the Minister to consider the matter and decide whether the
aggrieved party should be referred to the Industrial Court for adjudication.
If the Minister refuses to do so, then the matter comes to an end, unless
the Minister's decision is challenged in court.
A different situation arises particularly in the area of contract where
parties may between themselves agree that any dispute that arises be
referred for arbitration. Here, it is more a case of the parties mutually
giving up their right to go to the court rather than being prevented by
anyone else from doing so.
However, where there is such an agreement and one party in disregard of such
an agreement goes to the court, the act of the other in holding such a party
to what has been agreed to may appear as if that other party in question is
being wrongfully prevented from going to the court.
This perception arises because section 29 of the Contract Act 1950. However,
there is an exception to this section because it is also provided that “this
section shall not render illegal a contract by which two or more persons
agree that any dispute which may arise between them in respect of any
subject or class of subjects shall be referred to arbitration, and that only
the amount awarded in the arbitration shall be recoverable in respect of the
dispute so referred”.
Thus access to the court is dependent on a variety of factors.
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