“ WHO
CANNOT BE SUED”
(i) Foreign
Sovereign
Foreign
Sovereign cannot be sued. It is a fundamental principle that king can do no
wrong.
(ii) Ambassadors or
Diplomats
Ambassadors or
Diplomats cannot be sued in a country where they are posted. This immunity is available
under the international law to them.
(iii) Public
Officials
Public officials
cannot be sued in their representative capacity for the torts committed by them
or by their representatives.
(iv) Infants and Lunatics
Infants and lunatics cannot be sued for torts committed by them.
(v) Corporation
The
corporation incorporated under company’s ordinance 1984 cannot be sued for tort
requiring physical though like tort of assault.
(vi) Trade Union
Trade
union registered under industrial relation ordinance 2002 cannot be sued for
torts committed by them in the course of industrial dispute.
(vii) Crown
King
or his servant cannot be sued for torts committed by them.
Ø Position
in Pakistan
Under
constitution of Pakistan 1973, the president, Prime Minister, Governors, Chief
Minister and Minister cannot be sued for torts committed by them while they
hold their office.
5. CONCLUSION
It is
general principle that all persons have capacity to sue and liable to be sued.
It is subject to certain limitation under the law of torts. There are some
persons who cannot sue and cannot be sued for torts.
“ MAXIMS”
Discuss
the following maxims.
a)
Ubi
Jus Ibi remediam.
b)
Injuria
sine Damnum.
c)
Damnum
sine injuria.
1.
UBI JUS
IBI REMDESIUM
Meaning
Jus
means legal authority to do or to demand something and remedium means the right
of action. So it means there is no wrong without a remedy.
Importance of Maxim
Ubi Jus Ibi Remedium
The
law of tort is said to be a development of the maxim ubi-jus-ibi Remedium. This
maxim led the chancellor to intervene in the administration of justice in order
to give a relief where the common law inadequate and to help the litigant by
offering facilities in evidence and the procedure which the ordinary courts did
not secure.
Conditions
a) If a
person has destroyed, lost or waived his right to an equitable remedy by his
own act this maxim will not apply.
b) It
will not apply where the right and remedies fell within the exclusive domain of
law.
c) It
will not apply if there is a moral infringement being incapable of enforcement.
Limitation
Following
are the limitation of the maxim
a) Where
rights and remedies both with in the jurisdiction of common law.
b) The
courts are not authorized to question the act of state.
Ø Example
If a person files a suit against
sovereign or diplomat, he cannot be given relief because diplomats have
immunity from such proceedings.
“Position in
Pakistan”
The
maxim is applicable in Pakistan. The specific performances of the contract,
ratification of the instrument, rescission of contract, cancellation of the
instrument are its examples. The civil procedure code entitles a civil court to
entertain all kinds of suit unless they are prohibited.
2.
INJURIA
SINE SAMNUM
(i) Meaning
Injuria means injury and damnum means
damage. So it means without damage. Every violation of legal right is
actionable without the proof of damage.
(ii) Explaining
There
is a legal loss without actual loss. Every person has an absolute right to the
protection of his body, property and reputation. Whenever a person sustains an
injury he may bring an action without proving special damage.
(iii)Instances
1
Trespass
to person
2
Trespass
to property
(iv)Case
law
Ashby vs. White
1703
Ø Facts
The plaintiff
give his vote in favour of a candidate x in parliamentary. The defendant white
as returning officer excluded the vote of the plaintiff Ashby form the count
that he was not a qualified voter. The candidate x was elected. The plaintiff
field an action.
Ø Held
It was held that
violation of legal right of the plaintiff was actionable though he had suffered
no damage.
(v) Importance
The
maxim injuria sine damnum signifies the general liability theory. In accordance
with this theory every violation of a legal
right would be a legal right would be a tort even though it is not tort.
3.
DAMNUM
SINE INJURIA
(i) Meaning
It
means damage without violation of legal right.
(ii) Explanation
It is just
reverse of injuria sine damnum. There is a legal loss without actual loss. It
is not actionable per se.
(iii)Principles
Following
are principles for this maxim.
a)
Proof of damage in itself is not
actionable as a tortuous wrong in the
absence of proof of violation of some legal right.
b)
Proof of malice would not make an act as
tortuous wrong if the act has been done in exercises of some legal right.
(iv)Case
law
Mayor
of Bradford vs. Pickles
Ø Facts
The
plaintiff wanted to purchase some land for starting a scheme of water supply
for the inhabitants of the town. The defendant wanted to sell his land to the
plaintiff but the plaintiff corporation refused to purchase the land.
Pickles the defendant sank a shaft on his land with the intention of diverting
underground water from a spring that supplied the plaintiff corporation works.
Resultantly the water which percolated through his land from corporation’s land
on a higher level was discoloured and diminished when it passed again to the
lower land of the corporation.
Ø Held
The
case of the plaintiff was dismissed and it was held that pickles was not liable
because he was increasing his lawful right.
4.
DISTINCTION
BETWEEN INJURIA SINE DAMNUM AND DAMNUM SINE INJURIA
(i) As to
Nature
Ø Injuria sine damnum is an infringement of legal
right without any actual loss.
Ø Damnum sine injuria is an actual loss without
infringement of any legal right.
(ii) As to
Procedure
1 Injuria
sine damnum is actionable.
2 Damnum
sine injuria is not actionable.
(iii)As to
Proof
1
In injuria sine damnum proof of an
infringement of a legal right is sufficient.
2
In damnum sine injuria proof of actual
loss is meaningless in absence of any infringement of a legal right.
(iv)As to
Remedy
1
There is always a legal remedy in
injuria sine damnum.
2
There is no legal remedy in damnum sine
injuria.
(v) As to
Loss
1
Injuria sine damnum there is no
pecuniary loss.
2
In damnum sine injuria there may be some
pecuniary loss.
(vi)As to
Right
1 Inuria
sine damnum deals with legal right.
2 Damnum
sine injuria deals with moral rights.
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