- Bookmark
- Share
- CaseIQ
Eastern Tavoy Minerals Corporation, Ltd., In Re
Factual and Procedural Background
An application was made on behalf of Clyne Gordon Stewart under Section 38 of the Companies Act for the rectification of the register of the Eastern Tavoy Minerals Corporation Limited. Mr. Harcourt, claiming to be a director of the company, sought the right of audience on behalf of the company by virtue of a power-of-attorney executed in his favour by two directors of the company. This power-of-attorney authorized him to represent the company and conduct proceedings in the High Court. An objection was raised by the applicant disputing Mr. Harcourt's right of audience.
Legal Issues Presented
- Whether a person holding a power-of-attorney from a company has the right of audience to appear and plead on behalf of the company in court proceedings.
- Whether the provisions of Order 3, Rule 1 and Rule 2 of the Civil Procedure Code (CPC) allow a recognized agent to plead on behalf of a party.
Arguments of the Parties
Mr. Harcourt's Arguments
- He claimed the right of audience as a director of the company.
- He relied on a prior decision by Panckridge, J., in a suit against the Eastern Tavoy Minerals Corporation, where he was allowed to plead based on Order 3, Rule 1 of the CPC.
- He produced a power-of-attorney executed by two directors, authorizing him to appear and act on behalf of the company.
Applicant's Arguments
- Objected to Mr. Harcourt's right of audience, contending that the power-of-attorney does not confer such a right.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Hurohand Ray Gobourdhan Das v. B.N Ry. Co. (1915 28 IC 838) | Recognized agents have no right of audience or power to plead on behalf of their principals. | The court relied on this precedent to hold that Mr. Harcourt, as a recognized agent, had no right of audience and could not plead on behalf of the company. |
Court's Reasoning and Analysis
The court analyzed the provisions of Order 3, Rule 1 and Rule 2 of the CPC, which allow parties to appear in person or by recognized agents holding powers-of-attorney for appearances, applications, or acts. However, the court distinguished pleading from these acts, holding that pleading is not encompassed within the rights granted to recognized agents under these rules. The court found support in the authoritative judgment of the late Sir Lawrence Jenkins, C.J., in Hurohand Ray Gobourdhan Das v. B.N Ry. Co., which held that recognized agents have no right of audience to plead for their principals. Consequently, the court concluded that Mr. Harcourt could not be heard on the application as he lacked the right of audience, although he was permitted to file an affidavit under the power-of-attorney.
Holding and Implications
Mr. Harcourt has no right of audience to plead on behalf of the company and cannot appear in court for this purpose.
The court allowed the power-of-attorney and an affidavit filed by Mr. Harcourt to be accepted, but refused to hear him in oral pleadings. This decision directly affects the parties by limiting the rights of recognized agents to plead, without setting any new precedent beyond reaffirming established authority.
1. On an application made on behalf of Clyne Gordon Stewart under Section 38 of the Companies Act, for the rectification of the register of the Eastern Tavoy Minerals Corporation Limited, Mr. Harcourt, who says that he is a director of the company, has claimed the right of audience on behalf of the company by virtue of a power-of-attorney executed in his favour by two persons, who, as directors of the company, have sealed it with the common seal of the company. The power-of-attorney nominates and constitutes
“F.L Harcourt, a director of the company, to appear for and on behalf of the company, to conduct and represent the company in the proceedings in an application made by C.G Stewart in the High Court and for the proper prosecution of the said proceedings to do all such acts and deeds as he may deem necessary and the company hereby agrees to ratify all his acts and deeds as made for and on behalf of the company.”
2. It has been objected on behalf of the applicant that this gentleman has no right of audience. Mr. Harcourt has informed me, though he has not produced the Court Minutes or any judgment by my learned brother, that Panckridge, J., in a suit against the Eastern Tavoy Minerals Corporation, Limited, allowed him to plead, basing his decision upon O. 3, R. 1 of the CPC. That order and rule provide that
“Any appearance, application or act in or to any Court may…. be made or done by the party in person or by his recognized agent.”
3. Rule 2 says that
The recognized agents of parties by whom such appearances, applications and acts may be made or done are:
(a) persons holding powers-of-attorney, authorising them to make and do such appearances, applications and acts on behalf of such parties.”
4. To plead is not to make or do an appearance, or an application or an act and is not in my judgment within the order and rules cited. I am glad to find that in this matter I am supported by so high an authority as the late Sir Lawrence Jenkins, C.J, who held that a recognised agent as such has no right of audience.
5. The matter on which he had to consider the question was Hurohand Ray Gobourdhan Das v. B.N Ry. Co. . 1915 28 IC 838.. In the Small Cause Court, Sealdah, the plaintiff was represented by his authorized agent. The Judge of the Small Cause Court held that though a recognised agent may appear, act and apply on behalf of a plaintiff or defendant “the law does not give him any power to plead on behalf of his principal.” The learned Chief Justice and Chatterjea, J., held that a recognized agent as such has no right of audience. I hold that Mr. Haroourt has no right of audience and I cannot hear him on this application. This does not prevent his filing an affidavit which he desires to do under the power-of-attorney produced by him. The power-of-attorney and the affidavit may therefore both be filed.
V.S
6. Order accordingly.
Alert