1) “What is an interlocutory decision?”

In S.Rajendra Chettiar and others v S.Narayanan Chettiar [2011] BALR 25, [2011] 2 SLR 70, Shirani Bandaranayake J referred to the following observations made in the matter of: Salaman V/s Warner, (1891) 1 QB 734:

“If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory.”

2) “Evidence Obtained by Undesirable Methods- Whether Admissible? The test to be applied in considering whether evidence is admissible is whether it is relevant to the matter in issue. If it is, it is admissible and the court is not concerned with how it was obtained.”

In the matter of: R V/s Sang, [1979] 2 All ER 1222, it was observed that, the House of Lords would sanction the exclusion of such evidence only where the accused had been lured into incriminating himself by deception after the commission of an offence.

Similarly, in the matter of: R V/s Christou, [1992] 4 All ER 559, the police operated for about 3 months by establishing a shop of jewelers and putting up the shady image of being interested in buying ‘stolen property’. The object was to recover stolen goods and to obtain evidence against those involved in theft and handling. All the transactions in the shop were filmed and conversations recorded. The evidence so collected was admitted at the trial. The court reasoned, “the trick was not applied to the appellants [accused persons]: they voluntarily applied themselves to the trick. It is not every trick producing evidence against an accused which results in unfairness”.

3) “The court never orders a defendant to give particulars of facts and matters which the plaintiff has to prove in order to succeed.”

In the matter of: Weinberger V/s Inglis, (1916-17) All ER Rep. 843, it was observed that (Astbury, J.):

“… As a general rule, the court never orders a defendant to give particulars of facts and matters which the plaintiff has to prove in order to succeed, and this is especially the case where a defendant has confined himself to putting the plaintiff to the proof of allegations in the statement of claim, the onus of establishing which lies upon him.”

4) “Disobeying the order of the court does not put a bar on a party’s right of being heard.”

In the matter of: Hadkinson V/s Hadkinson, 1952 (2) All ER 567, Lord Denning observed that:

“… I am of the opinion that the fact that a party to a cause has disobeyed an order of the court is not of itself a bar to his being heard, but if his disobedience is such that, so long as it continues, it impedes the course of justice in the cause, by making it more difficult for the court to ascertain the truth or to enforce the orders which it may make, then the court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed.”

5) “Many a time, what seems to be an open and shut case, upon hearing the accused persuades the decision maker to reach a different conclusion.”

In the matter of: John V/s Rees, (1969) 2 All ER 274, Megarry, J., observed that:

“… It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. ‘When something is obvious,’ they may say, ‘why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.’ Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were of unanswerable charges which, in the end, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.”

6) “Where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by the statute only must be availed of.”

In the matter of: Wolverhampton New Waterworks Co. V/s Hawkesford, (1859) 6 CB (NS) 336, Willes, J., observed that:

“… There are three classes of cases in which a liability may be established founded upon a statute. One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law: there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, and the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy: there, the party can only proceed by action at common law. But there is a third class, viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The present case falls within this latter class, if any liability at all exists. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.”

7) “If there is a conflict between the earlier clause and the later clauses of a deed and it is not possible to give effect to all of them, then the rule of construction is well established that it is the earlier clause that must override the later clauses of the deed and not vice versa.”

In the matter of: Forbes V/s Git, [1922] 1 AC 256, Lord Wrenbury, observed that:

“… If in a deed an earlier clause is followed by a later clause which destroys altogether the obligation created by the earlier clause, the later clause is to be rejected as repugnant and the earlier clause prevails. In this case the two clauses cannot be reconciled and the earlier provision in the deed prevails over the later.”

8) “There are degrees of proof within the standard of proof.”

There is a strong and marked difference as to the effect of evidence in civil and criminal proceedings. In the former a mere preponderance of probability, due regard being had to the burden of proof, is a sufficient basis of decision: but in the latter, especially when the offence charged amounts to treason or felony, a much higher degree of assurance is required.

In the matter of: Bater V/s Bater, [1950] 2 All ER 458 [459], it was observed that:

“… It is true that by our law there is a higher standard of proof in criminal cases than in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. So also in civil cases there may be degrees of probability.”

Similarly, in the matter of: Hornal V/s Neuberger Products Ltd., [1956] 3 All ER 970 [977], it was observed that:

“… Just as in civil cases the balance of probability may be more readily fitted in one case than in another, so in criminal cases proof beyond reasonable doubt may more readily be attained in some cases than in others.”

Lastly, in the matter of: Hawkins V/s Povells Tillary Coal Co. Ltd., (1911) 1 K.B. 988, it was held that, proof does not mean proof of rigid mathematical demonstration (absolute certainty or accuracy of statements), because that is impossible; it must mean such evidence (such degree of probability) as would induce a reasonable man to come to a just conclusion in the matter. In the matter of Hawkins (Supra) it was observed that:

“… Proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion.”

9) “Doctrine of Adverse Possession”

In the matter of: Perry V/s Clissold, 1907 AC 73 (PC), it was held that:

“… It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the Statute of Limitations applicable to the case, his right is forever extinguished, and the possessory owner acquires an absolute title…”

10) “When an agreement is invalid every part of it including the clause as to arbitration contained therein must also be invalid.”

In the matter of: Heyman V/s Darwins Ltd., (1942) AC 356, the question that arose for adjudication before the House of Lords was whether repudiation of a contract by a party thereto had the effect of annulling the arbitration clause contained therein. It was held that it had not. It was in this context that the law as to the circumstances under which an arbitration clause in an agreement would become unenforceable came in for elaborate discussion. Summing up the law on the subject Viscount Simon, L.C., observed:

“… If the dispute is whether the contract which contains the clause has ever been entered into at all, that issue cannot go to arbitration under the clause, for the party who denies that he has ever entered into the contract is thereby denying that he has ever joined in the submission. Similarly, if one party to the alleged contract is contending that it is void ab initio (because, for example, the making of such a contract is illegal), the arbitration clause cannot operate, for on this view the clause itself also is void. But, in a situation where the parties are at one in asserting that they entered into a binding contract, but a difference has arisen between them whether there has been breach by one side or the other, or whether circumstances have arisen which have discharged one or both parties from further performance, such differences should be regarded as differences which have arisen “in respect of” or “with regard” or “under” the contract and an arbitration clause which uses these, or similar, expressions should be construed accordingly.”

Lord Macmillan with whom Lord Russel agreed observed:

“… If it appears that the dispute is whether there has ever been a binding contract between the parties, such a dispute cannot be covered by an arbitration clause in the challenged contract. If there has never been a contract at all, there has never been as part of it an agreement to arbitrate. The greater includes the less. Further, a claim to set aside a contract on such ground as fraud, duress or essential error cannot be the subject matter of a reference under an arbitration clause in the contract sought to be set aside.”

Thus, the position of law is that an arbitration clause embodied in an agreement is an integral part thereof and that if that agreement is non est either because it was never legally in existence or because it was void ab initio, then the arbitration clause would also perish with it.

11) “A pure question of law can be examined at any stage, including before the court of last resort.”

In the matter of: Connecticut Fire Insurance Co. V/s Kavanagh, 1892 A.C. 473, by Lord Watson it was observed that:

“… When a question of law is raised for the first time in a court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice to entertain the plea. The expediency of adopting that course may be doubted when the plea cannot be disposed of without deciding nice questions of fact in considering which the court of ultimate review is placed in a much less advantageous position than the courts below.”

12) “A taxing statute is to be strictly construed.”

In the matter of: Cape Brandy Syndicate V/s Commissioners of Inland Revenue, [1921] 1 K.B. 64 [71], Rowlatt, J. observed that:

  • In a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax.
  • There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used.

13) “When a statute provides a particular thing to be done in a particular manner then it is mandatory to do the same in the manner provided and not otherwise.”

In the matter of: Taylor V/s Taylor, (1875) LR 1 Ch D 426, and in the matter of: Nazir Ahmad V/s King Emperor, AIR 1936 Privy Council 253, it was held that:

‘‘..If a statute has conferred a power to do an act and has laid down the method in which the power is to be exercised, the statute necessarily prohibits doing so in any manner other than the one prescribed’’.

14) “A party cannot approbate and reprobate at the same time.”

In the matter of: Dexters Ltd. V/s Hill Crest Oil Co., (1926) 1 KB 348 (358), Scrutton L.J. observed that:

“… So in my opinion, you cannot take the benefit of a judgment as being good and then appeal against it as being bad… It startles me to hear it argued that a person can say the judgment is wrong and at the same time accept payment under the judgment as being right…”

15) “Unless they reveal a contrary intention all statutes are to be interpreted as ‘always speaking statutes’.”

In the matter of: Comdel Commodities Ltd. V/s Siporex Trade S.A., [1990] 2 All ER 552 [HL], Lord Bridge observed that:

“… When a change in social conditions produces a novel situation, which was not in contemplation at the time when a statute was _rst enacted, there can be no a priori assumption that the enactment does not apply to the new circumstances. If the language of the enactment is wide enough to extend to those circumstances, there is no reason why it should not apply…”

In the matter of: McCartan Turkington Breen (A Firm) V/s Times Newspapers Ltd., [2000] All ER 913, it was observed that:

“… Unless they reveal a contrary intention all statutes are to be interpreted as “always speaking statutes”. This principle was stated and explained in R v. Ireland, R v. Burstow [1997] 4 All ER 225 at 233, [1998] AC 147 at 158. There are at least two strands covered by this principle. The first is that courts must interpret and apply a statute to the world as it exists today. That is the basis of the decision in R v. Ireland where ‘bodily harm’ in a Victorian statute was held to cover psychiatric injury. Equally important is the second strand, namely that the statute must be interpreted in the light of the legal system as it exists today…”

16) “How the word “include or includes” used in the interpretation clauses of a statute is to be read and interpreted?”

In the matter of: Dilworth V/s Commissioner of Stamps, (1899) AC 99, Lord Watson made the following classic statement:

“… The word “include” is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. But the word “include” is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to “mean and include”, and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions…”

17) “Mischief Rule of Interpretation of Statutes”

The literal construction should not obsess the Court because it has only prima facie preference, the real object of interpretation of statutes is to 􀂦nd out the true intent of the law maker and that can be done only be reading the statute as an organic whole, with each part throwing light on the other.

In the Heydon’s Case, (1584) 76 ER 637, Lord Coke observed that four (4) things are required to be discerned and considered before arriving at the real statutory meaning of a provision in a statute /legislation:

  • What was the law before the statute or legislation was passed?
  • What was the defect/ mischief for which the statute/ legislation had not provided?
  • What remedy the legislature has appointed?
  • The reason of the remedy?

18) “Golden Rule of Interpretation”

In the matter of: Grey V/s Pearson, (1857) LR 6 HL Cas 61, substantiating on the Golden Rule of Literal Interpretation, it was observed that:

“… I have been long and deeply impressed with the wisdom of the rule, now, I believe, universally adopted, at least in the Courts of Law in Westminster Hall, that in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther. This is laid down by Mr. Justice Burton, in a very excellent opinion, which is to be found in Warburton V/s Loveland [Warburton V/s Loveland, (1831) 2 Dow & Cl 480: 6 ER 806]…”

19) “Quicquid plantatur solo, solo cedit: What is attached to or erected on the land, becomes part of the land.”

In the matter of: Green V/s Green, 90 U.S. (23 Wall.) 486, it was held that growing trees are immovable property however ‘standing timber’ is not an immovable property. This is because, in the case of growing trees they require further nourishment from the soil but in the case of standing timber such wood can be cut at once for the use in housebuilding or other such purposes.

Further, in the matter of: Holland V/s Hogdson, L.R. 7 C.P. 328, it was held that, the looms fixed to the floor of a mill by nails are to be treated as immovable property.

Moreover, in the matter of: Leigh V/s Taylor, 1902 AC 157, it was held that, certain valuable capacities affixed by a tenant to the walls of a house for ornamental purposes and for the better enjoyment of them as chattels, do not become part of the house, but are part of the personal estate of the tenant for life.

20) “Ideas cannot be copyrighted.”

In the matter of: Jeffreys V/s Bosey, (1854) 4 HLC 815, it was held that for a copyright, there should be a work and not a mere idea. Idea does not have any copyright protection. To claim copyright, the work should be in a material form which involves the ideas translated.

21) “Cause of action comprises of every fact which is necessary to be proved.”

In the matter of: Read V/s Brown, (1889) 22 QBD 128, it was observed that:

“… Every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.”

22) “Rule as to evidence beyond pleadings: When pleadings are silent on an issue, the party is precluded from adducing evidence in respect of that issue.”

It is settled law that a party cannot adduce evidence and set a case inconsistent with its pleadings. No amount of proof can substitute pleadings which are the foundation of a claim of a litigating party. Therefore, when pleadings are silent on an issue, the party is precluded from adducing evidence in respect of that issue.

In the matter of: Throp V/s Holdsworth, (1876) 3 Ch. D. 637, it was observed that:

“… The whole object of pleadings is to bring parties to an issue, and the meaning of the rules was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to definite issues, and thereby to diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.”

23) “Claim for damages on breach of contract: Reasonable Compensation Principle”

In the matter of: Hadley V/s Baxendale, (1854-9) Ex. 341 (354), it was held that:

“… Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.”

24) “What is a debt?”

In the matter of: Commissioner of Wealth Tax V/s Pierce Leslie & Co. Ltd., AIR 1963 Mad 356, relying upon the report in the matter of: Webb V/s Stenton, (1883) 11 QBD 518, it was observed that the essential requisites of a debt are:

  • An ascertained or readily calculable amount;
  • An absolute unqualified and present liability in regard to the amount with the obligation to pay forthwith or in future within an ascertained time;
  • The obligation must have accrued and be subsisting and should not be that which is merely accruing.

Thus, a contingent liability or a contingency debt is neither a liability nor a debt. A debt is a debitum in praesenti, solvendum in futuro.