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Monday, May 27, 2013

Origin & Development of Equity Court.


Before the 1066 Norman Conquest of England, there was no unified national legal system in the region- just collection of oral customs which ware peculiar to each domain.

     The Norman Conquest of 1066 is vitally significant in the development of the law in England. They prepared and paved the way for the development of the common law and English Courts. Common law is that part of law of England which before the judicature Act 1873-75 was adjudicates by the Common Law Court. As for Example:-
1.      Kings or Queens Bench Court.
2.      Common Pleas Courts.
3.      Exchequer at West minister Court.

     In the earlier times the common law court’s provided no remedy in many cases where one was required. So the custom grew applying for redress to the King in Parliament or Court of Kings Bench. The Court of Kings Bench was created by the Normans King. As an outcome of the decision of those courts various right and obligation were founded which led to the commencement of common law principles. However, if it was unfair or unjust there was right granted petition the king directly. As for example, if a man had no thing in writing and the debtor was dead he would have no remedy at common law. For that reason aggrieved person going to the king for justice. And king referred or give the authority to do justice with own opinion and good conscience to the Chancellor. The Chancellor was known as king’s prime minister.

    Courts of Chancery were created to hear those cases. The principles of equity and good conscience have developed in these courts of chancery. In 1348 the king completely assigned his equity jurisdiction to the Chancellor. The Chancellor solved, discloses or issued decree in the name of king. But in 1414 a decree was made on his own authority and this practice continued so that there came to be a Court of Chancery as independent institution.

     The Court of Chancery were known as the Court of Equity, which could apply the principles of equity and award equitable remedies for this reason equity court get much more popularity over Common Law Court. That’s why the conflict arises between the Common Law Court and Equity Court. In Earl of Oxford case 1615, King James first gives his consent in fever of Equity Court. In 1616 the Equity Court gets priority over the Common Law Court.

     In 1800 Lord Nottingham brought the principles of Equity in a particular shape. For that Lord Nottingham is called as the father of modern equity. In 1873 the judicature Act of 1873 removed the separation between the Common Law Court and Equity Court. All courts are now empowered to apply both of rules.  

Tuesday, May 21, 2013

Prospective Overruling in Bangladesh.


A court does not make law, but finds or discovers the true law. It necessarily follows that a law declared by the court to be invalid becomes invalid from the time of its enactment. In other words, the judicial pronouncement operates retrospectively as also prospectively. Retrospective overruling often causes administrative inconvenience or result in great hardship by disturbing vested rights acquired on the basis of the rule found invalid. To avoid the situation, the American Supreme Court developed the doctrine of prospective overruling whereby a decision of the court operates only in respect of future transaction and does not affect past and closed transactions. However, prospective overruling creates a situation where people similarly placed are dealt with differently simply because of the difference in the time of occurrence. Hence the court resorts to the doctrine of prospective overruling when the normal retrospectively not merely creates inconvenience, but results in grave injustice or involves extremely burdensome sorting out process for courts or administrators. The Indian Supreme Court applied the doctrine of prospective overruling in the case of Golak Nath V. Punjab, AIR 1967 SC 1643. In Summon Gupta V. J&K, AIR 1983 SC 1235 the court declared the absolute power of the government to nominate candidates for admission to medical collage to be violate of the equality clause, but refused to disturb the existing nominations as the candidates had already covered a substantial part of the course. In Bangladesh the Appellate Division while declaring the amendment of Art.100 of the Constitution void in Anwar Hossain Chowdhury v. Bangladesh ordered “this invalidation, however, will not affect the pervious operation of the amended Articles and judgments, decrees, orders etc. rendered or to be rendered and transaction past and closed.”

Free and Compulsory Education System under the Constitution of Bangladesh.


The right to education has been recognized since the universal declaration of human right (UDCHR). And it’s a fundamental responsibility of Bangladesh Government such as Article ‘15’ of the Constitution provide that the provision of the basic necessities of life including food, clothing, shelter, education and medical care. Government must be ensured this responsibility. But 45% of children do not finish primary school education for their financial problem. So Constitution of Bangladesh provides free and compulsory education and mandates the state to adopt effective measure for this purpose—
  1.   Establishing a uniform, mass-oriented and universal system of education to all children. [Article—17(a)]

  2.       Relating education to needs of society and providing properly trained and motivated citizen. [Article—17(b)]
  3.       Removing illiteracy within such time as may be determined by law. [Article—17(c)]

Wednesday, May 15, 2013

General Condition of Liability under the Law of Tort.


Here are two theories with regard to the basic principle of liability in the law of torts or tort. They are:
# Wider and narrower theory- all injuries done by one person to another are torts, unless there is some justification recognized by law.
# Pigeon-hole theory- there is a definite number of torts outside which liability in tort does not exist.

The first theory was propounded by Professor Winfield. According to this, if I injure my neighbor, he can sue me in tort, whether the wrong happens to have a particular name like assault, battery, deceit or slander, and I will be liable if I cannot prove lawful justification. This leads to the wider principle that all unjustifiable harms are tortious. This enables the courts to create new torts and make defendants liable irrespective of any defect in the pleading of the plaintiff. This theory resembles the saying; my duty is to hurt nobody by word or deed. This theory is supported by Pollock and courts have repeatedly extended the domain of the law of torts. For example, negligence became a new specific tort only by the 19th century AD. Similarly the rule of strict liability for the escape of noxious things from one’s premises was laid down in 1868 in the leading case if Rylands v. Fletcher.

The second theory was proposed by Salmond. It resembles the Ten Commandments given to Moses in the bible. According to this theory, I can injure my neighbor as much as I like without fear of his suing me in tort provided my conduct does not fall under the rubric of assault, deceit, slander or any other nominate tort.

The law of tort consists of a neat set of pigeon holes, each containing a labeled tort. If the defendant’s wrong does not fit any of these pigeon holes he has not committed any tort. The advocates of the first theory argue that decisions such as Donoghue v. Stevenson shows that the law of tort is steadily expanding and that the idea of its being cribbed, cabined and confined in a set of pigeon holes in untenable. However salmond argues in favor of his theory that just as criminal law consists of a body of rules establishing specific offences, so the law of torts consists of a body of rules establishing specific injuries. Neither in the one case nor in the other is there any general principle of liability. Whether I am prosecuted for an alleged offence or sued for an alleged tort it is for my adversary to prove that the case falls within some specific and established rule of liability and not fro for me to defend myself by proving that it is within some specific and established rule of justification or excuse. For salmond the law must be called The Law of Torts rather that The Law of Tort.
So tort is different from crime and breach of contract. In tort the category of responsibility is liability. Liability of Tort are arise the following way---

1.    Wrongful Act:
In case of tort there must be a wrongful act or omission on the part of defendant. An act which prima facie looks innocent may become tortious, if it invades the legal right of another person. Every act are liable for tort, in this respect motive is not essential. In Rogers v. Ranjendro Dutt, the court held that, the act complained of should, under the circumstances, be legally wrongful, as regards the party complaining. That is, it must prejudicially affect him in some legal right; merely that it will however directly, do him harm in his interest is not enough.
A legal right, as defined by Austin, is a faculty which resides in a determinate party or parties by virtue of a given law, and which avails against a party (or parties or answers to a duty lying on a party or parties) other than the party or parties in whom it resides. Rights available against the world at large are very numerous. They may be divided again into public rights and private rights. To every right, corresponds a legal duty or obligation. This obligation consists in performing some act or refraining from performing an act.

Liability for tort arises, therefore when the wrongful act complained of amounts either to an infringement of a legal private right or a breach or violation of a legal duty.
Every wrongful act is not a tort. To constitute a tort :-
# There must be a wrongful act committed by a person;
# The wrongful act must be of such a nature as to give rise to a legal remedy and
# Such legal remedy must be in the form of an action for un-liquidated damages.

Tort Law- Distinctions Between Tort and Crime.


Crime and tort both are wrongful act. But two have many distinctions. Some main distinctions are given below:

  1. In tort general domain of law is civil law whereas crime is criminal.
  2. Tort is an infringement or provision of private right or civil right belonging to an individual’s (injury against the individual) whereas crime is a breach of public rights and duties, which affect entire community.
  3. In torts (civil case) the parties are known as plaintiff and defendant whereas in criminal case parties are known as complainant and accused.
  4.  In tort the wrong doer has to compensate the injured party whereas in crime, wrong doer punished by the state in the interest of society.
  5.  In tort the action is brought about by the injured party himself whereas in crime the proceedings are conducted in the name of state.
  6.   In tort damages are paid for compensating the injured whereas I crime the accused in a proceeding is fine or punishment by the state.
  7. The damages in tort are un-liquidated whereas in crime punishment or fine is liquidated.
  8. The offence of tort is private interest only and victim is injured whereas the offence of crime to all society; public interest.
  9.  In tort category of responsibility is liability whereas in crime responsibility is guilt.
  10. In case of torts permissible appeals by the defendant or plaintiff whereas in crime appeals by the defendant only.
  11.   In case of tort damages generally given by money whereas in crime it can be fine or punishment or both. 

Tort Law- Essential Feature or Requirements of Tort.

The concept of tort is to redress a wrong done to a person or trespass for direct injuries and action. And remedy of tort given by the damages.
  • Ø  Tort is a civil wrong, which different from Crime.
  • Ø  Tort will different from breach of Contract and Quasi Contract.
  • Ø  Tort is not against of morality.
  • Ø  In case of tort, there must be wrongful act or omission, in this respect motive is not essential.
  • Ø  The act or omission must be not supported by law, in this respect legal loss or legal damage is only considered.
  • Ø  The actual loss or actual damage are not considered in case of tort.
  • Ø  The main feature of tort(for plaintiff :p), it provide Un-liquidated damages.

Law of Tort- Definition of Tort.


The term tort is the French equivalent of the English word ‘wrong’ and of the Roman law term ‘delict’. The word tort is derived from the Latin word ‘tortum’ which means twisted or crooked or wrong and is in contrast to the word rectum which means straight. Everyone is expected to behave in a straightforward manner and when one deviates from this straight path into crooked ways he has committed a tort. Hence tort is a conduct which is twisted or crooked and not straight. As a technical term of English law, tort has acquired a special meaning as a species of civil injury or wrong. It was introduced into the English law by the Norman jurists.
Tort now means a breach of some duty independent of contract giving rise to a civil cause of action and for which compensation is recoverable. In spite of various attempts an entirely satisfactory definition of tort still awaits its master. In general terms, a tort may be defined as a civil wrong independent of contract for which the appropriate remedy is an action for un-liquidated damages. Some other definitions for tort are given below:
  1. According to Winfield and Jolowicz- Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is repressible by an action for un-liquidated damages.
  2. According to Salmond and Hueston- A tort is a civil wrong for which the remedy is a common action for un-liquidated damages, and which is not exclusively the breach of a contract or the breach of a trust or other mere equitable obligation.
  3.  According to Freser- Tort is such type of wrong, which infringes the personal right.
  4. According to Under Hill- Tort will arise by the breach of duty and the remedy of tort is damages.
  5. Sir Frederick Pollock- Every tort is an act or omission (not being merely the breach of a duty arising out of a personal relation, or undertaken by contract) which is related in one of the following ways to harm (including reference with an absolute right, whether there be measurable actual damage or not), suffered by a determinate person:-

a)      It may be an act which, without lawful justification or excuse, is intended by the agent to cause harm, and does cause the harm complained of.

b)      It may be an act in itself contrary to law, or an omission of specific legal duty, which causes harm not intended by the person so acting or omitting.

c)      It may be an act violation the absolute right (especially rights of possession or property), and treated as wrongful without regard to the actor’s intention or knowledge. This, as we have seen is an artificial extension of the general conceptions which are common to English and Roman law.

d)     It may be an act or omission causing harm which the person so acting or omitting to act did not intend to cause, but might and should with due diligence have foreseen and prevented.

e)      It may, in special cases, consist merely in not avoiding or preventing harm which the party was bound absolutely or within limits, to avoid or prevent.

Law Study HelpTort is a civil wrong arise by the wrong done or breach of duty and remedy of tort are given un-liquidated damages or compensation.

Saturday, May 11, 2013

The Person Who Can’t File a Suit.


The law of tort does not like the law of crime and contract. Torts recognize some personal incapacity as ground of general exemption. Sometime persons cannot be sued and cannot file a suit against some person.

o  The person who cannot file a suit:

1.      Alien Enemy:
Alien enemy is person, who is an enemy of nationality. Or a person residing or carrying business in a country at war with foreign country. In England or India this person cannot sue in his own right. No alien enemy residing in Bangladesh without such permission, or residing in a foreign country, shall sue in any of such Courts (Section- 83 of the CPC, 1908).

2.      Felons or Convicts:
A convict person found guilty of a crime and punished or sentenced by a court. In a case of Tort a convicts cannot file a suit. The property of a convict or felons may be attached/ forfeited in Bangladesh through court proceeding (Sections-126, 127, 169 of Penal Code).

3.      Insolvent or Bankruptcy:
A insolvent is defined as a person, who is deemed or unable to pay its debts. A insolvent person cannot file a suit for his property, though there is no problem to his suing for a wrong his person or reputation.

4.      Husband & Wife:
In eye of law husband and wife is one person. According to common law a wife cannot sue her husband for a tort, nor husband his wife. This exception was introduced by the Married Women’s Property Act, 1882.

5.      Child in the Mother’s Womb:
If a woman gave birth of a disable child, the child cannot sue for this. For example, a woman who is with child in her womb and injured by a railway accident as a result of which the child was born deformed. The court held that the child is not  entitled to get compensation as he was not in existence in time of accident and no question of ‘duty of care’ may arise as against mother.

6.      A minority:
A minority are unable to make file a suit, because minority is a bar to take a legal action. Only a majority can file a suit. 

Thursday, May 9, 2013

Appointment of judges of Supreme Court & Subordinate courts.


Supreme Court:
The present court structures particularly the Supreme Court & Subordinate courts. The Supreme Court is established by the Constitution “There shall be a Supreme Court (to be known as the Supreme Court of Bangladesh) comprising the Appellate Division and the High Court Division.” – Article 94.

The Supreme Court shall consist of Chief Justice, too be known as the Chief justice of Bangladesh, and such number of other judge (বিচারপতিঃ- সুপ্রিম কোর্টের Judge দেরকে বিচারপতি বলা হয়) as the president may deem if necessary to appoint to each division. The Chief Justice, and the Judges appointed to the Appellate Division, shall sit only in that division and other Judge shall sit only in the High Court Division.

প্রধান বিচারপতি (Chief Justice) হবেন সুপ্রিমকোর্টের আপিল বিভাগের প্রধান। রাষ্ট্রপতি (প্রধানমন্ত্রীর কোন উপদেশ ছাড়াই) প্রধান বিচারপতি কে নিয়োগ দিবেন। এবং প্রধান বিচারপতির সাথে পরামর্শ করে অন্যান্য বিচারকদের নিয়োগ দিবেন।

The Chief Justice and other Judges shall be appointed by the president, and a person shall not be qualified for appointment as a Judge of Supreme Court unless he/she is a –
      o   Citizen of Bangladesh.
      o   He/she is not less than ten years, been an advocate of the Supreme Court;
      o   Or is not less than ten years, held judicial office in the territory of Bangladesh.

রাষ্ট্রপতি তাকেই Chief Justice or Justice হিসেবে নিয়োগ দিবে যার সুপ্রিম কোর্টে দশবছর ওকালতি করার অভিজ্ঞতা আছে, আথবা বাংলাদেশের যে কোন কোর্টের বিচারক হিসাবে দায়িত্বপালনের ১০ বছরের অভিজ্ঞতা আছে।

Subordinate Court:
Subordinate judiciary has both civil and criminal side has their legal basis in the Civil Courts Acts, 1887 and Criminal Procedure Code, 1898.  Appointments of persons to office in the (subordinate court) judicial service or as magistrates exercising judicial functions shall be made by the president in accordance with rules made (such as BJSC examination or BCS examination) by him in that behalf – Article 115

Subordinate court এর বিচারক ও ম্যাজিস্ট্রেটদের রাষ্ট্রপতি নিয়োগ দিবেন সেই সব বিধান অনুসারে যা রাষ্ট্রপতি দ্বারা উক্ত উদ্দেশ্যে প্রণীত। যেমন বাংলাদেশ জুডিশিয়াল সার্ভিস কমিশন পরিক্ষার মাধ্যমে subordinate court এর judge and magistrate দের নিয়োগ দেওয়া হয়।

Wednesday, May 1, 2013

What are the element of judicial procedure?


Element of Judicial Procedure:
The following are the different stages of judicial procedure­­­:-

1.      Summons:
Summon is a document issued from the office of a court of justice. Calling upon the person to whom it is directed to attend before a judge or officer of the court for certain purpose in specific time. It enables the parties interested in litigation to present their case before the court for the settlement of a claim.

2.      Pleadings:
Pleadings mean the complaint or written statement filed respectively by the plaintiff and defendant. The object of pleading is to narrow the parties to definite issues. Actually pleadings are the backbone of litigation. The Code of Civil Procedure, 1980 defines ‘pleading’ as meaning a ‘plaint’ or ‘written statement’. Pleadings are statement of the parties in written setting out their contention of claims or counter claims. Thus, pleasing are written statements filed by each party to case.

3.      Proof:
It is the process by which by which the parties to the dispute supply the materials by adducing evidence to enable the court to arrive at the right conclusion on the struck in case.

4.      Judgment:
A judgment contains the statements given by the judge about the grounds of a decree or order. It embodies the decision. Judgment of courts other than Small Causes Courts Shall contain
a.       A concise statement of the case;
b.      The points for determination;
c.       The decision thereon;
d.      The reason for decision.

5.      Execution:
It is process by which the court enforces its decree. It is that act of completing, or carrying into effect, the judgment, which compels the defendant to do or to pay what has been adjudged. It may be by attachment and sale of any property, by arrest and detention in prison of the defendant or by appointing a receiver. A decree may be executed either by the court, which passed it, or by the court to which it is sent for execution.