ADR IN CIVIL JUSTICE SYSTEM OF BANGLADESH

Introduction:

Disputes are a fact of life. A. D. R. means Alternative Dispute Resolution, mostly applied to civil cases. When a civil case is instituted in a court of competent jurisdiction, the scenario usually is, that a long time is taken to serve the process, the defendants beat the law and submit their written statement/s after a long delay beyond the permissible statutory period of two months, lawyers and judges do not take any interest in screening out a false and frivolous case at the first hearing of the case under Order X CPC (in fact no such first hearing takes place), they seldom try to shorten the disputed questions of fact and law by application of Orders XI and XII of the CPC and mostly ignore the elaborate procedure of discovery, interrogatories, notice to produce etc. contained in those Orders, the issues of a case are seldom framed following the Code of Civil Procedure, the case takes several years to reach a settlement date and on the date of positive hearing half a dozen or more ready cases are fixed for hearing, resulting in the hearing of none. It delivers formal justice and it is oblivious of the sufferings and woos of litigants, of their waste of money, time and energy and of their engagement in unproductive activities, sometimes for decades.

Most of us who are or were in the judiciary and were or are practicing in the Bar think that nothing can be done about it, or, at least, we have no role to play in the matter, either individually or collectively. We are drifting into a stage of aimlessness, inertia, inaction and helplessness. Many conscientious judges and lawyers have done what they could under the circumstances, but their sincerity has been drowned into the general morass of malfunctioning of the court system.

What is Alternative Dispute Resolution (ADR?)

Alternative Dispute Resolution refers to the means of settling disputes without going through legal procedures. Through ADR settlement of disputes can be done in many formal and informal ways but here ADR emphasis is mainly on the settlement of disputes by local community initiatives. It is an age-old tradition of society through which disputes are resolved amicably and which concerned parties accept. Normally authority does not challenge it. It is not institutionalized, but both the community members and the disputants accept it. There are different ways to resolve disputes. Some are resolved formally, others informally, and some are resolved as time passes by.

 Objectives of ADR

In the recent past the alternative dispute resolution system (ADR) has been developed in the USA and the rate of success of ADR is significantly high, as the parties have been able to come forward to sit together to talk together and finally resolving their disputes. The prime aim of alternative dispute resolution system in civil justice delivery system in Bangladesh is closing the hostility between the disputing parties and restoration of harmony. In this system a high degree of public participation and co-ordination is badly needed. A general sense of satisfaction develops which helps in enforcement of the decision, when people’s participation is ensured as to tending evidence, asking questions and making opinions. Thus the reconciliation can be eased, which is the fundamental objective of ADR system.

 Different forms of ADR and their application in civil justice system:

Negotiation, mediation and arbitration are the most common features of ADR techniques in Bangladesh. Let us discuss the three important ways of dispute resolution.

Mediation” is voluntary process where a natural mediator attempts to help the disputing parties to reach an agreement that is acceptable to both sides and that will bring the dispute to an early conclusion without having to go to Court.^[1]

Arbitration” means a process of adjudication of a dispute or controversy on fact or law or both outside the ordinary civil courts, by one or more persons to whom the parties who are at issue refer the matter for decision.^[2]

“Negotiation” is a non-binding procedure in which discussions between the parties are initiated without the intervention of any third party with the object of arriving at a negotiated settlement of the dispute.^[3]

  “Med-Arb” is a procedure which combines, sequentially, conciliation/mediation and where the dispute is not settled through conciliation/mediation within a period of time agreed in advance by the parties, arbitration.^[4]

Laws pertaining to ADR in Bangladesh:

a) Code of Civil Procedure,1908

For the first time in our legal system the provision with regard to ADR has been introduced by amending the Code of Civil Procedure. In chapter V of Artha Rin Adalat Ain, the provisions of ADR have also been incorporated. Surely, this concept is a denovo in our civil justice delivery system. Now ADR has come within the domain of civil procedure code.
By the recently enacted sections 89A/89B of CPC, the ADR system (mediation and arbitration) has been introduced, the two terms ‘mediation’ and ‘arbitration’. Section 89A lays down that except in a suit under the Artha Rin Adalat Ain, 1990 (Act. no 4 of 1990)

after filing of written statement, if all the contesting parties are in attendance in the court in person or by their respective pleaders, the court many by adjourning the hearing, mediate in order to settle the dispute or disputes in the suit or refer the dispute or disputes in the suit to the engaged pleaders of the parties, or the party or parties, where no pleader or pleaders have been engaged, or to a mediator form the panel as may be prepared by the District Judge under subsection 10, for undertaking efforts for settlement through mediation. Similarly, the term ‘settlement conference’ has been used to denote mediation process in the part V of Artha Rin Adalat. The provisions have been made in this regard that the court can mediate the suit matter after filing the written statement by the defendant or defendants, by adjourning the subsequent procedures of the suit

The government by amending the Code of Civil Procedure expands the avenue for shalishi. By The Code of Civil Procedure (Amendment) Act, 2003 two new sections were incorporated (section 89A, 89B) in the code. It empowers the court to solve the matter through mediation or conciliation before the beginning of the trial except case under Artha Rin Adalat Ain. However there remain some limitations too, it will not exempt the disputant parties from the appearance before the court. This law is only relating to the pending cases,

 The Civil Procedure Code (Amendment) Act, 2002 has been enacted to introduce Alternative Dispute Resolution (ADR) system for early and consensual disposal of civil suits. Section 89A and 89B have been inserted to allow parties to settle their disputes in suits, through mediation or arbitration. In the mediation procedure, the court may take initiative to settle the dispute in the suit by itself or by making reference to independent mediators. Under section 89B parties will be allowed to withdraw pending suits and have those settled through arbitration. The provisions have been made effective from 1st July 2003.

 ADR system is gaining popularity. This procedure will help to reduce the huge backlogs of civil cases in courts. Public confidence in the judiciary will thereby increase. Access to justice will be expanded. The provisions will also help develop a new culture of consensual settlement of disputes doing away with the existing adversarial procedure. It will help protect and preserve cohesion and fraternity in society. Of the mediator here the advocate or any other person may be hired for mediation.

b) Artha Rin Adalat Ain, 2003

In our legal system, money lent by financial institutions/banks to individuals, private limited companies, public limited companies, corporations, partnership firms, societies, co-operatives, proprietorship firms etc. when due for default, is realised through money suits, suits for foreclosure, mortgage by instituting the same to competent civil courts. The civil courts were burdened with other businesses and such suits of banks consumed time for disposing of. The delay caused made the bank sector suffer for non-realisation of dues in time and the bankers gathered bitter experience in realising the same. To remove this difficulty, the government enacted a special piece of legislation named “The Artha Rin Adalat Ain, 1990″ which had gone under some changes by way of amendments since its inception. The law brought changes to a great extent in the administration of justice delivery system for regulating those suits but it failed to fulfil the expectation of the legislators/bankers to recover the dues expeditiously from the defaulters. The thinkers on the subject gave second thoughts to frame a new law and ultimately the legislature passed “The Artha Rin Adalat Ain, 2003″ (hereinafter Adalat) by repealing the earlier one.

The law came into force on 1st May 2003 except sections 46/47 which came into operation on 1st May 2004. Within a short span of time, the law has gone under an amendment by the Artha Rin Adalat (Amendment) Ain, 2004 which reflects weak draft of the law.

I have been working as a Judge of the Adalat for more than two years. I have taken no pain to apply the laws during my business hours but at the same time I have seen that some provisions of the laws are acting as barriers in discharging my responsibilities. I shall make an endeavour to focus on those and other allied subjects in this writing.

There is no such legal provision in the Environment Court Act, 2000 like the present one. Therefore section 4 (4) and section 4 (10) should be omitted, and the provisions if so omitted, there would be no practical difficulty to appoint the Joint District Judges to the Adalat like the Environmental Courts.

Section 19 has provided provisions for setting aside the ex parte decree but it does not make any provision for notifying the plaintiff bank like Order 9 Rule 13 of the Code of Civil Procedure 1908. As a result, the plaintiff remains ignorant about restoration of the suit. This anomaly should be removed by inserting appropriate provision. Section 20 of the law has given finality to the order, judgment and decree of the Adalat. In spite of that the defaulter(s)/borrower(s) is/are challenging the same in the writ jurisdiction of the High Court Division under Article 102 of the Constitution of the People’s Republic of Bangladesh and obtaining stay orders from the High Court Division.

In a recent discussion on “Money Loan Court Act 2003” organized by the Association of Bankers, Bangladesh (ABB), the Governor of Bangladesh Bank asked the banks to take special measures to recover bad loans as the defaulters filed 1,768 writ petitions in the High Court for such loans amounting to Tk 6445 core. He told that the banks cannot recover the loans due to stay orders from the court, and asked the monitoring cells of banks to take up these issues seriously and hire efficient lawyers to move the cases of loan default.The Daily Star dated June 2, 2006). It is observed from regular business of court that the banks have been refraining from taking any step against the stay orders in writ petitions. It is seen that the banks let them (the defaulters) do the same with consent. This attitude of the bank should be changed and effective steps should be taken to face the legal battle with the defaulters.

Apart from the aforementioned barriers, the law has been playing a very vital role in realising the loan from the defaulter(s). Its achievement in loan recovery has been so immense that the scenario of defaulting loan has improved significantly with number of pending Artha Rin Suits reducing with expectancy rate. The loan defaulting culture would further be reduced if the barriers can be removed as soon as possible.

c) Family Courts Ordinance, 1985:

Generally disputes relating to property, family matter i.e. distribution of property, dissolution of marriage, maintenance, guardianship could be dealt by shalish. The Family Courts Ordinance, 1985 speaks for the settlement of dispute through conciliation inside the Court before the formal proceeding of the trial started. The court may initiate a pre trial hearing to settle the disputes relating to dissolution of marriage, maintenance, and dower, restitution of conjugal rights as well as guardianship and custody of children. Besides, the Muslim Family Laws Ordinance 1961 empowers the Union Parishad to form an Arbitration Council for reconciliation between the parties wishing to dissolve their marital tie through Talaq and to deal with the polygamy.

“ADR in family court”

If ye fear a breach between them twain, appoint (two) arbiters, one from his family, and the other from hers; if they wish for peace, Allah will cause their reconciliation: for Allah hath full knowledge, and is acquainted with all things.^[5]

Settlement of Dispute through Mediation in family court is started in Dhaka Jugde Court from 2000. Then, it was expanded in different cities and districts. Family Court Ordinance 1985 in its section 10 and 13 is said about the Mediation process. The procedure provides in family court is-

i) When the written statement is filed, the Family Court shall fix a date ordinarily of not more than thirty days for a pre-trial hearing of the suit.^[6]

ii) On the date fixed for pre-trial hearing, the Court shall examine the plaint, the written statement and documents filed by the parties and shall also, if it so deems fit, hear the parties.^[7]

iii) At the pre-trial hearing, the Court shall ascertain the points at issue between the parties and attempt to affect a compromise or reconciliation between the parties, if this be possible.^[8]

iv) Then, where a dispute is settled by compromise or conciliation, the Court shall pass a decree or give decision in the suit in terms of the compromise or conciliation agreed to between the parties.^[9]

v) If no compromise or reconciliation is possible, the Court shall frame the issues in the suit and fix a date ordinarily of not more that thirty days for recording evidence.^[10]

vi) After the close of evidence of all parties, the Family Court shall make another effort to effect a compromise or reconciliation between the parties.^[11]

vii) If such compromise or reconciliation is not possible, the Court shall

pronounce judgment and, on such judgment either at once or on some future day not beyond seven days of which due notice shall be given to the parties or their agents or advocates, a decree shall follow.^[12]

Arbitration Act 2001.

Arbitration Law in Bangladesh

Bangladesh has enacted the Arbitration Act 2001 (the Act). It came into force on 10 April 2001, repealing the Arbitration (Protocol and Convention) Act 1937 and the Arbitration Act 1940, legacies of the British Raj in India. The new Act was again amended in 2004 in certain respects. Such legislative steps were urgent in the face of increasing foreign investment in Bangladesh in various sectors, especially in natural gas and power, and the ever-growing export trade with the rest of the world. The Act consolidates the law relating to both domestic and international commercial arbitration. It thus creates a single and unified legal regime for arbitration in Bangladesh. Although the new Act is principally based on the UNCITRAL Model Law, it is a patchwork quilt as some unique provisions are derived from the Indian Arbitration and Conciliation Act 1996 and some from the English Arbitration Act 1996.

In Bangladesh, the present law of arbitration is contained mainly in the Arbitration Act, 1940, there being separate Acts dealing with the enforcement of foreign awards.  There are also stray provisions as to arbitration, scattered in special Acts.  Three types of arbitration are contemplated by the Arbitration Act of 1940, namely (i) Arbitration in the course of a suit, (ii) Arbitration with the intervention of the court, and (iii) Arbitration otherwise than in the course of a suit and without the intervention of the court in practice, the last category attracts the maximum number of cases.

Under the Act of 1940, an arbitration agreement must be in writing, though it need not be registered.This also amounts to an “arbitration agreement” for the purposes of the Arbitration Act, 1940. Once an arbitration agreement is entered into for submitting future differences to arbitration, it is not, necessary to obtain the fresh consent of all the parties for a reference to arbitration at the time when the dispute actually arises.

Concluding Recommendation:

The key to success of A.D.R. in Bangladesh lies in the manner of its introduction. A.D.R. is no longer an unheard of concept of dispute resolution among judges, litigants and lawyers of Bangladesh. The Family Courts all over Bangladesh are actively engaged in A.D.R. The pilot family courts are only exclusively engaged in mediation, but other Assistant Judges, who received training in mediation, are also mediating apart from trying cases. The mediation output of all the Assistant Judges, taken together, is something to be proud of. The Ministry of Law only needs to collect maintain and update all relevant statistics in this regard. To make ADR more effective, extensive, and pro-active, coordination is needed among different agencies. Other initiatives are given below:

1)      Creating awareness about ADR

2)      Spreading the success story of ADR

3)      Encouraging NGOs to become involved in ADR

4)      Involving the Bar Associations in ADR

5)      Providing training for mediators

6)      Matching Government and NGO efforts.

7)      A. D. R. will have a-smooth transition if it is introduced on a pilot court basis. The performances, results, reactions among pilot court judges, practicing lawyers and the litigants should be carefully monitored and recorded and suitable adjustments in the A. D. R. project should be made at each stage of extension after an exhaustive study of the experiences gained.

[1] Hazel Genn, Mediation in Action: Resolving

[2] SK Golam Mahbub, Alternative Dispute Resolution in Commercial Disputes: The UK and Bangladesh Perspective 2005, at p. 21.

[3] P. C Rao, Alternative to Litigation in India, 1997, p.26

[4] ibid

[5]  found in http://www.guidedways.com/chapter_display.php?chapter=4&translator=2, last accessed on 18.04.2010

[6] Section 10  of the Family Court Ordinance 1985

[7] ibid

[8] ibid

[9] Section 14 (1 of the Family Court Ordinance 1985

[10] Section 14 (2) of the Family Court Ordinance 1985

[11] Section 13 (1) of the Family Court Ordinance 1985

[12] Section 13 (2) of the Family Court Ordinance 1985

Read More

All Important Cases on Company Law

Prepared By :

Mohammad Faysal Saleh Al Mahdi

University of Dhaka

[DEDICATED TO ALL BANGLADESHI LAW TEACHERS

AND STUDENTS]

Company Promotion

R v Kyslant 1931

Company issued shares and in the prospectus implied that it had paid a regular

dividend out of current earnings. In fact the dividend, had for some years been

paid out of reserves.

HELD : Duty to disclose as the facts must be complete enough to avoid giving a

misleading impression.

Promotion / Directors

Derry v Peek 1889

Derry and others set up a company to operate trams in Plymouth. The prospectus

setting out the details if the company said that a licence was required to operate

the trams but that the issuing of the licence was a formality. As it turned out they

were wrong and a licence application was refused.

HELD : Not fraudulent misrepresentation as the directors believed what they said.

Since the Misrepresentation Act 1967 such a statement would be considered as

negligent misrepresentation.

Ramsgate Victoria Hotel v Montefiore 1866

M applied for shares in the hotel company. He heard nothing and then after 5

months he received a letter of acceptance. By this time he had decided that he

did not want the shares.

HELD : The lapse of time was so great that the offer to buy the shares had lapsed.

Boston Deep Sea Fishing Co v Ansell 1888

Ansell was a managing director who obtained commissions from clients to whom

he had given company contracts. His employer found out and dismissed him. They

also sued to recover the lost commissions.

HELD : The dismissal was justified and Ansell was required to pay the commissions

he had received over to his employer.

Legal Personality

Salomon v Salomon 1897

S transferred to his own company the business of making boots and shoes. The

company bought the business for ™39,000 and issued shares and a debenture for

£10,000 secured by a floating charge on the assets. The business became

insolvent and the trade creditors argued that the company and Salomon were one

and the same. As a consequence, they claimed, his debenture was void since a

man cannot be a creditor of himself.

HELD : It is possible for the sole owner of a company to assert rights against it as a

secured creditor, because the company is a separate legal person distinct from its

members.

Macaura v Northern Assurance Co 1925

M was a landowner who sold timber from his estate to a company of which he

was the sole owner. he insured the timber that lay on his land in his own name as

the person insured under the policies issued by the insurance company. A few

weeks later the timber was destroyed by fire. M claimed on the insurance policy.

Northern Assurance claimed that the timber belonged to the company and as a

consequence it was not properly insured.

HELD : The timber belonged to the company and not to M. As a result his claim

failed as he did not have an insurable interest in the property.

LEE V LEE’s AIR FARMING LTD (1960)

L was a director and owned the bulk of the shares in a company engaged in aerial

crop-spraying. L appointed himself as the only pilot of the company

at a salary arranged by himself.

Subsequently, L was killed while crop-spraying and his widow claimed workers

compensation from the company as employer of her husband.

Question under the relevant Act was whether the relationship of employer and

employee could exist between L and the company.

HELD: Yes they were separate legal persons, thus even though L owned most of

the shares, he could still be an employee of the company. Thus his widow was

entitled to compensation.

Pre Incorporation Contracts

Kelner v Baxter 1886

Baxter and two others agreed on behalf of a company yet to be formed to

purchase trade stock for its business. Later the company was formed and

accepted and used the trade stock, but failed to pay for the stock.

HELD: The Company was not liable as it could not ratify a pre incorporation

contract with retrospective effect to a date before the company existed. Baxter

and friends were therefore unable to recover their money.

Company Name

Penrose v Martyr 1858

In this case a company secretary accepted a bill of exchange drawn on a limited

company. The name of the company was as written but the company secretary

omitted the words "limited"

HELD : The company secretary was held to be personally liable

Objects Clause /doctrine of ultra vires.

Introductions Ltd v National Provincial Bank Ltd 1968

The main object of the company was to provide accommodation for overseas

students. The objects clause included an express right to borrow money and a

declaration that each part of the objects clause was a main object. The company

changed its business to pig breeding and received a bank loan. When the business

became insolvent the liquidator claimed that the bank loan was ultra vires and

void.

HELD: The loan was ultra vires as the power to borrow money must be

subordinate to the main objects of the business. As a result the loan was

irrecoverable.

Ashbury Railway & Iron Co v Riche 1875

The objects were to make and sell railway carriages. The directors made an ultra

vires contract to build a railway.

HELD: Contract could not be valid even if it were subsequently approved by the

shareholders in general meeting.

Attorney-General -v- Great Eastern Railway Co; HL 1880

An Act of Parliament authorized a company to construct a railway. Two other

companies combined and contracted with the first to supply rolling stock. An

injunction was brought to try to restrain this, saying that such a contract was not

explicitly provided for in any of the Acts incorporating the companies.

HELD: The contract was not ultra vires, but was warranted by the Acts. Powers

conferred by statute are taken to include, by implication, a right to take any steps

which are reasonably necessary to achieve the statutory purpose: “whatever may

fairly be regarded as incidental to, or consequential upon, those things which the

Legislature has authorized, ought not (unless expressly prohibited) to be held, by

judicial construction, to be ultra vires.”

Re Cycling Touring Club (1907)

The Company’s business was to promote, assist and protect the cyclists on the

public roads. The Company by altering the object clause desired to include among

the persons to be assisted all tourists including motorists.

HELD: 1) The Club not allowed undertaking protection of motorists, as cyclists had

to be protected against motorists.

2) It was impossible to combine two businesses as one of the objects of the

company was to cyclists against motorists.

Ewing v Buttercup Margarine Co Ltd 1917

Ewing who traded under the name Buttercup Diary Company sued to restrain a

newly registered company called Buttercup Margarine Company Ltd from using

the name on the grounds that the general public might reasonably believe that

there was a link between the two businesses.

HELD: Ewing was successful.

John Wilkes (Footwear) Ltd v Lee International (Footwear) 1985

Lee International ordered several pairs of moccasins from Wilkes. The order was

placed on an old form that gave the company's former name. The order was

signed by one director.

HELD :The other director was not liable, in person; for the debt as he had not

authorised the making of the order.

Anglo Overseas Agencies ltd v Green 1961

This case is important for the view of Salmon J on the main objects rule of

construction. "Where a memorandum of association expresses the objects of a

company in a series of paragraphs and one paragraph. or the first two or three

paragraphs appear to embody the main objective of the company, all the other

paragraphs are treated as merely ancillary to this main objective.

Note : This main objective doctrine can be excluded by an appropriate provision

in the memorandum. See: Cotman v Brougham 1918

Cotman v Brougham 1918

The objects clause contained no fewer than 30 sub clauses that permitted the

rubber company to carry on almost any business. The memorandum stated that

every sub clause should be regarded as a substantive clause in its own right. The

company underwrote and was allotted shares in an oil company. When the oil

company was wound up the rubber company was placed on the list of

contributories.

HELD: The rubber company was held liable as the underwriting was held to be

intra vires the rubber company.

Re German Date Coffee Co 1882

The objects of the company were specific in that it was to make coffee from dates

using a German patent. The patent was never granted and coffee was made with

a Swedish patent. the company was solvent and the majority of shareholders

wanted it to continue. However two shareholders petitioned for a winding up on

the grounds that its objects had failed.

HELD: The substratum had failed as it was impossible to carry out the objects for

which the company was formed.

Re Kitson & Co 1946

The company objects were to carry out the business of general engineering and

inter alia to acquire a specified existing business. The existing business was

acquired and later sold.The company intended remaining in the general

engineering business and acquiring another business. Some shareholders

petitioned for a winding up order on the grounds that the substratum had gone ie

as in German Date.

HELD: The company was not wound up as the main object was to be an

engineering business. Note in German Date a main object was to acquire and to

work a particular patent.

Re Jon Beauforte (London) Ltd 1953

The company was authorised by its memorandum to carry on the business of

costumers and gownmakers. The company then started the business of making

veneered panels. This was ultra vires. Builders built the factory, coke suppliers

sold the company coke. The coke company knew from the correspondence that

the company was engaged in veneer production. They therefore were under

constructive notice of the contents of the memorandum.

HELD: They were unable to sue for the price of the coal as the transaction was

ultra vires

Bell Houses Ltd v City Wall Properties Ltd 1966

In this case the first object was to carry on the business of builders and

developers. Further into the object clause said " to carry on any other trade or

business whatsoever". The company entered into an agreement with another

company and in return for a fee agreed to introduce the other company to some

Swiss bankers. The other company refused to pay the introduction fee on the

grounds that the contract was outside of the objects clause.

HELD: The act of introduction was held to be within the objects clause and was

intra vires and not ultra vires.

Rolled Steel Products Holdings Ltd v British Steel Co 1985

RSP had two directors one of whom owed a substantial sum to a subsidiary of BS

through a company he owned. RSP entered into a guarantee to BS for the debt of

the company owned by one of the RSP directors. The objects clause of RSP stated

that it had the power of making a guarantee. At the board meeting at which the

guarantee was given the director concerned did not declare his personal interest

in it. BS received a copy of the board minutes

and should have realised that the decision to guarantee the debt was invalid.

HELD : The decision to give the guarantee was invalid.

Power and Objects problems

Evans v Brunner Mond & Co Ltd 1921

The chemical company made a donation for scientific education and research.

Evans claimed that the donation was ultra vires and void.

HELD: The donation was held to be intra vires as the purpose was incidental to

the main clause which was to "do all such business and things as may be

incidental or conducive to the above objects, or an of them"

Simmonds v Heffer 1983

A general donation by the League Against Cruel Sports Ltd to the Labour Party

(because of its commitment to animal welfare).

HELD: The donation was ultra vires as the money was in the form of a general

donation and could be used for any purpose. Note : A second donation to the

Labour Party to be used for the promotion of animal welfare was held to be intra

vires.

Relations between member and company

Hickman v Kent or Romney Marsh Sheep Breeders Assocn 1915

The articles provided that disputes between members and the association be

resolved by arbitration. Hickman brought an action against the company in the

courts.

HELD: The association was entitled to have the action stayed as the articles

constituted a contract between Hickman and the association in respect of their

rights as members.

Wood v Odessa Waterworks Co 1889

The company declared a dividend and passed a resolution to pay it by giving their

shareholders debenture bonds bearing interest. The articles provided that the

company declare a dividend to be "paid in cash"

HELD: The words meant paid in cash and in consequence a shareholder could

restrain the company from acting ultra vires.

Share Transactions

Scott v Brown Doering McNab & Co 1892

In this case the firm of solicitors Slaughter and May sought to recover money from

the stockbrokers, but were told, along with their client Mr Scott that it was an

indictable offence and illegal contract, to agree to purchase shares in the Steam

Loop Company in an attempt to create a false market in their shares.

HELD : The act of keeping up the shares was held to be a fictitious premium and

consequently illegal conduct.

Greenhalgh v Aderne Cinemas Ltd 1951

The articles stated that shares could not be transferred to a non member as long

as any other member was prepared to purchase them.

Articles were changed to allow the free transfer of shares to non members, as

long as an ordinary resolution was passed approving the transfer.

HELD : Such an alteration was valid as it was to the general good of the company.

Sidebotham v Kershaw, Lease & Co 1920

Proposed alteration of the company articles would permit the directors to

expropriate the shares of any member who carried out a competing business.

HELD ; Valid as it was for the company’s good.

Allen v Gold Reefs of West Africa Ltd 1900

Articles gave the company a lien on partly paid shares, in respect of all debts and

liabilities of the company.

A member dies with unpaid calls due on the shares. Articles were altered so as to

give the company lien on the fully paid shares.

HELD : Alteration valid as it was for the genuine protection of the company.

Veil of Incorporation

Gilford Motor Co Ltd v Horne 1933

Horne left the Gilford Motor Company in order to set up his own business. When

he left he agreed that he would not solicit any of his former employer’s

customers. As a way around this restriction he set up a company.

HELD: Horne was prevented by an Injunction from soliciting the clients of his

former employer. His company was also subject to the injunction as the Judge

went behind the veil of incorporation and ruled that the company and Horne

were one and the same.

Protection of a minority

Foss v Harbottle 1843

Foss was a shareholder in a company formed to buy land for use as a pleasure

park. Foss alleged that the defendants had defrauded the company. Foss and

others in the minority attempted to sue the defendants

HELD : Since the members of the company had not been consulted and since it

was possible that the company in membership could resolve to allow the

defendants to retain their alleged profit, the court would not permit the minority

to proceed with their action.

Duty of auditor to company

Saudi Banque v Clarke Pixey & Another 28 July 1989 Ch Div

Although it was foreseeable that banks, when considering whether to continue or

grant loan facilities to a company, might rely on the companies audited accounts,

the auditors did not owe a duty of care because the relationship between the

banks and auditors was not sufficient to create a duty of care.

Lifting the Veil Between a Holding Company and Its Subsidiaries

ADAMS v CAPE INDUSTRIES (1990)

CAPE was a UK-registered corporation involved in asbestos mining operations in

South Africa. The international marketing function was carried out through a

number of subsidiaries, one of which was CPC which was registered and carried

on business in the USA. A court judgement was given against CPC and the

claimant sought to enforce it against Cape by arguing that the veil between CPC

and Cape should be lifted accordingly.

HELD: There were no special circumstances to indicate that CPC was a mere

façade for CAPE. There was no indication of any “agency” situation as CPC

was an independent company under the control of the chief executive.

Furthermore, the “economic reality” argument accepted in the case of DHN FOOD

DISTRIBUTORS would not be extended to cover this particular case. Effectively,

the holding company (CAPE) could not be liable for its subsidiary’s (CPC)

debts under the circumstances.

Lifting the veil

GILFORD MOTOR COMPANY LTD v HORNE(1933)

An employee agreed not to solicit customers from his employer once he ceased to

be employed by him. Despite this, the employee formed a company and solicited

these customers after he left his employers.

HELD: The company was a mere sham (merely a front) and could not be used to

avoid the employee’s contractual obligation not to solicit customers.

DAIMLER v CONTINENTAL TYRE & RUBBER CO (1916)

A company incorporated in the UK was owed money. When it sued the creditor

for the debt, the creditor argued that it would not repay the amount owed as this

would be tantamount to “trading with the enemy” which was prohibited by law at

the time. The company argued that it was not an “enemy” company as it was

incorporated in the U K.

HELD: Control (shareholding) of the company was in “enemy” hands because

lifting the veil revealed only one British shareholder whilst the majority members

were German. Thus, the debtor was under no obligation to repay the debt. (The

veil was lifted to effectively give the company the same nationality as its

members).

JONES v LIPMAN (1962)

X had entered into a contract with Y for the sale of X’s land. X then changed his

mind and in order to avoid the contract he formed a company to which he

conveyed his land (arguing that as he was now no longer the owner, he could not

comply with the contract).

HELD: The company was a mere façade or front for X, so Y was entitled to specific

performance to give him ownership of the land.

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দেনমোহর স্তীর বিশেষ অধিকার

দেনমোহর কি ?
দেনমোহর হল কিছু টাকা বা অন্য কিছু সম্পওি যা বিয়ের প্রতিদানস্বরুপ স্তী স্বামীর কাছ থেকে পাওয়ার অধিকারী ।

দেনমোহর নির্ধারন পদ্বতি :
বর ও কনের দিক বিবেচনা করে দেনমোহর নির্ধারিত হয় । দেনমোহর কত হবে তা নির্ণয়কালে স্তীর পিতার পরিবারের অন্য মহিলা সদস্যদের ক্ষেএে যেমন স্তীর বোন, খালা, ফুফুদের ক্ষেএে দেনমোহর কত ছিল তা বিবেচনা করা হয় । তাছাড়া স্তীর পিতার আর্থ সামাজিক অবস্হানের ভিওিতে দেনমোহর নির্ধারন করা হয় । অপরদিকে বরের আর্থিক ক্ষমতার দিকও বিবেচনায় রাখা হয় । এসব দিক বিচার বিবেচনা করেই মূলত দেনমোহর নির্ধারন করা হয় । কিন্তু কোনো অবস্হাতেই স্বামী ন্যূনতম ১০ দিরহাম বা সমপরিমান অর্থ অপেক্ষা কম নির্ধারন করতে পারবেন না ।

দেনমোহরের প্রকার ভেদ :
দেনমোহর বাবদ দেয় অর্থ দুই ভাগে বিভক্ত
১ . তাৎক্ষণিক দেনমোহর : তাৎক্ষণিক দেনমোহর স্তী চাওয়ামাএ স্বামী পরিশোধ করতে বাধ্য থাকে । এ ক্ষেএে স্তী দেনমোহর না পাওয়া পর্যন্ত স্বামীর সঙ্গে বসবাস ও দেহমিলনের সুযোগ দিতে অস্বীকার করতে পারেন ।
২ . বিলম্বিত দেনমোহর : দেনমোহরের যে অংশটুকু স্বামীর মৃত্যুর পর কিংবা স্বামী স্তীর মধ্যে বিয়ে বিচ্ছেদ বা তালাকের পর স্তী পেয়ে থাকে ।

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Law Letter : Abusive police remand to extract confessional statement

NONE of Bangladeshi laws admits involuntary confession in judicial proceedings. Yet law enforcement agencies have been arbitrarily arresting thousands of innocent citizens for decades, in most cases either for political end or for getting bribes. The magistrates have been ordering remands indiscriminately for extracting confessions, where violence and torture are endemic.

In such a situation both the police and the lower judiciary are on the verge of their doom by losing public confidence. The higher judiciary is more cautiously restrained than proactive as a custodian of the citizen's constitutional guarantees. The law regarding confessions makes it clear that while recording of confessional statements, the Magistrate must follow the format what may be admissible as a confession. Our Constitution makes it clear that no one must be subject to cruel, degrading and inhuman treatment.

The Constitution of Bangladesh also guarantees fundamental rights to life and personal liberty, equality before law, protection of law, safeguards against arrest and detention, and freedom of movement. What is now necessary is the proper and effective implementation of these laws, and if necessary, their amendment, in order to ensure that a person on trial is innocent until it can be proven that he is guilty.

The Executive must understand the spirit of good governance propelled by the constitutional rule of law. It must learn to live and operate within the bounds of law. It is incumbent upon the Executive to act together with Parliament and the judiciary in working out legal safeguards against the self-serving and sectarian use of police powers. It would be rewarding for those innocent victims who despair in police remand, if the government reviews the human rights record of police officials. The citizens of Bangladesh will not achieve dignified human existence unless the ongoing barbarous acts of torture under police remand in the name of extracting confessional statements are dealt with proper law, and their perpetrators are brought to justice.

Humayun Kabir

Student of  Law & Justice, Jahangirnagar University
.

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Dower and Dowry:

Dower and Dowry: 

Its effect on the empowerment of muslim women

Dr. Taslima Monsoor

The Mahr/Dower is something that is paid by the husband to his wife. It is paid to the wife only as an honour and respect and to show that he has a serious desire to marry her and is not simply entering into the marriage contract without any sense of responsibility and obligation or effort on his part. It is also a provision for her rainy days and socially it became a check on the capricious exercise by the husband of his unlimited power of divorce. Dowry is a new phenomenon for the Muslim communities in Bangladesh, with enlarged effects after independence. For the Hindu community also, its impact was not so widespread before liberation. 

Some authors in Bangladesh are claiming that dowry has become an essential criterion for marriage in every community and is near universal in Bangladeshi society. The simple gesture of jamai ador or special affection shown to the bridegroom has been transformed to the shape of daabi or demand by the bridegrooms. Even poor men are taking this chance of exploiting the bride's family to improve their fate from poverty and unemployment. This is making marriage a commercial transaction, giving more value to property and money than the bride herself.

The right of Dower/Mahr

Allah says in the Qur'an:

"Wa aatoo an-nisaa'a saduqaatihinna nihlatan... And give the women their dower with a good heart... "

This verse is addressed to the husband because it is their responsibility to pay the dower. This verse shows that the dower must be given to the wife and should not be given to the guardians. There are other verse which shows the obligation to pay dower to the wife.

Regarding dower there are 3 different views. One is that in its incidents it is similar to Donatio propter Nupteas of the Romans. Second that it is given by the husband to the wife as a mark of respect; and Third that it is a device to control the unfettered power of the husband to divorce his wife. According Islamic law where there is a marriage there is a dower. It is a bridal gift. It is a token of respect to the bride.

Laws on Dower

Prompt Dower becomes payable immediately after the marriage and must be paid on demand. The wife claiming the prompt dower stands as an unsecured creditor. If the prompt dower is not paid she could refuse to stay with her husband and also can take legal action. In Nuruddin Ahmed v. Masuda Khanam it was held that prompt dower may be considered a debt always due and able to be demanded and payable upon demand. The wife is under the Muslim law entitled to refuse herself to her husband until and unless the prompt dower is paid.

Where the wife felt that possible way to win or retain the affection of her husband was to act on his suggestion and to remit the dower. It was held that she did not act as a free agent and it would be inequities to hold that a woman who remits dower in such circumstances is bound by it.

It was held in the case of Rahim Jan v. Md. that the wife can refuse to live with her husband if dower is not paid on her demand and consummation does not affect this right of the wife. But after cohabitation, the proper course for the court is to pass a decree for restitution of conjugal rights conditional on payment of prompt dower this was held in the leading case of Anis Begum v. Md. Istafa Wali Khan. 

In Rabia Khatoon v. Muktar Ahmad It was held that the right of refusing herself is lost on consummation. Thus if the husband files a suit for restitution of conjugal rights before consummation nonpayment of prompt dower is a complete defence.

Deferred Dower becomes payable at the termination on dissolution or marriage either by death or divorce. If by divorce than dower can be recovered by compromise or suing in the family court. If by death than dower can be recovered from her husband's estate / compromise / suing.

Islamic law does not fix any maximum amount of dower, but makes it obligatory for the husband to pay whatever amount has been specified and whatever amount is assessed if not specified. Fixing of excessive amounts of dower is being used in South Asia as a means to control and check the husband's unilateral and unlimited power of divorce, as he has to pay the full amount of dower at the time of divorce. But it also acts as a status matter, in which case there is not intention to pay the stipulated amount in full. Attempts have been made to curb the fixation of excessive amounts of dower in India which go against the interests of Muslim women, but no similar provision has been made in Pakistan or later in Bangladesh. There has been some confusion over dower and dowry after the Dowry and Briadal Gifts (Restriction) Act of 1976 in Pakistan, but this has now been clarified.

The real scenario

It was found in a study of the metropolitan city of Dhaka that 88% of Muslim wives did not receive any dower at all. If this is the situation in the capital city, one can anticipate an alarming situation in the rural remote areas. Why are women not receiving their legal right of dower? To inquire into this one has to probe into the causes for not giving dower. Here the same causes for which the women in Bangladesh are being subordinated come in, as women are dominated in the patriarchal family and in the wider socio-religious arena. What needs to be ascertained here, in particular, seems to be whether the women's right to dower is being enlarged or reduced by local customary conventions.

Defining dowry

There is considerable debate what constitutes dowry in its various forms. The confusion is more acute as in the societal context dowry is differently defined than in anti-dowry law. In a patriarchally dominated social context dowry refers to property given to the bridegroom and his family but the anti-dowry law regards it as the exclusive property of the bride. The modern phenomenon of dowry, property given or agreed to be given to the bridegroom or his relatives, does not tally with the earlier concepts of bride-price and with the customary concepts of giving property to the bride herself.

Dowry and brideprice have received substantial attention in the anthropological literature. In fact, there is now a large volume of ethnographic and theoretical literature on dowry and bride-price. Much of this literature concerns the problems of the wide-spread switch from bride-price to dowry as marriage pre- stations.

Outgrowth of dowry 

The modern phenomenon of dowry in South Asia is its abuse as an inducement for a man to marry a woman or, with the same effect, demands of dowry payments by a man or his family. The result is a tendency to regard it as a groom-price, which is distinguished from the traditional kanyadan (gift of the virgin) or bride-wealth. This modern feature of dowry means the transmission of large sums of money, jewellery, cash, and other goods from the bride's family to the groom's family. The emergence of dowry and the switch from brideprice have been explained by some authors as the cause of the decline of the earning capabilities and productivity of women. According to this view the system of dowry is closely linked with women's role in productive activities. Where women are regarded as an unproductive burden, a dowry is given to the bridegroom's side to compensate them. However, the present spread of dowry cannot be explained only with variables like non-participation of women in economic activity.

The confusions 

The dowry system is not recognised in the religion or the law of the Muslim societies but has spread into it. Conversely, Islamic law provides dower to enhance the status of women. Why should Muslim women, who are supposed to be protected by dower, become victims of dowry 

It is important to note that until now authors confuse dower with dowry. Perhaps the aspect of women's property or stridhanam in Hindu law and dower as the exclusive property of the wife are seen as synonymous. When dowry is regarded as stridhanam or pre-mortem inheritance for women, contradictions arise and the equation of dowry with stridhanam has been disputed by several authors. They argue that the situation is absolutely reverse, as dowry is not a gift to the wife or her exclusive property but the property of her in-laws. The anti-dowry law stated that property given as dowry belongs to the wife but later on amended the law. However, the misconceptions still lingers on that she has been paid dowry than why should she be a part and parcel of the succession?

Thus, the recent emergence of dowry among Bangladeshi Muslims is more due to simple greed and commercialisation of marriage than the impact of traditional culture, the urge of hypergamy and the undermining of the women's productive role. The impact of men coming into contact with a wider cash economy by going abroad has also been shown to be a significant variable for their raised expectations in marriage.

Curse of dowry

Dowry deaths are a common phenomenon in South Asia. These deaths of women are usually caused by the same persons who are legally and socially supposed to protect them, i.e. their husband or in-laws. It has been rightly pointed out that dowry deaths are gruesome reminder of the authoritativeness of patriarchy. In one study, dowry demands have been identified as one of the major causes of murder of women in Bangladesh. The authors have established their finding by a table gathered from different media sources, showing that almost 50% of all murders of women in Bangladesh in the years 1983-1984 were for dowry causes.

Laws on dowry

India was first in South Asia to make an attempt to control the dowry problem by passing the Dowry Prohibition Act of 1961. Subsequently, Pakistan made relevant legislative enactments, which significantly were only applicable for the Western wing of the country. After independence in Bangladesh the problems of dowry became so horrendous that activist women and some enlightened males were demanding legislation to stamp out this social evil. It was not considered right to treat women as a commodity to be transferred in marriage for consideration of property and money when the religious and official family laws did not regard women as chattels. Moreover, the Constitution of Bangladesh apparently provides sexual equality. The commodisation of women was seen as neo-patriarchy, which should not be tolerated any longer. Under such pressure, the government passed the Dowry Prohibition Act of 1980. 

The real need of women in Bangladesh is to be protected from violence and economic deprivation. Dowry problems involve both aspects of the need, i.e. freedom from economic deprivation and violence. Demands for reforms to control these problems were already made earlier and the Dowry Prohibition Act, 1980 and the Cruelty to Women (Deterrent Punishment) Ordinance, 1983 were enacted in response to growing evidence of cruelty against women. Recently a more comprehensive enactment (the Repression Against Women and Children (Special Enactment) Act xviii of 1995 has repealed the Cruelty to Women (Deterrent Punishment) Ordinance, 1983 and enhanced the punishment. More recently The Women and Children Repression Prevention (Special Provision) Act 2000 exaggerated punishments in most cases upto death penalty for crime against women and children. We need to assess whether these legislation has been beneficial to women and seek to find out whether women are actually able to use the legal remedies available under these new statutes.

Concluding remarks

Dowry deaths are a common phenomenon in South Asia. These deaths of women are caused by the same persons who are legally and socially enjoined to protect them, i.e. their husbands or in- laws. It has been rightly pointed out that the dowry deaths are a gruesome reminder of the authoritativeness of patriarchy. Legislation and other NGO intervention cannot stamp out this social evil unless there is a shift in the attitude of the people of South Asia.

As the roots of the problem of dowry appear to be social, remedies can only be achieved by changes of attitude in society; this can be attempted by legislation, but will need to be supported by education and legal awareness. The parents of a bride should understand that by giving dowry they may not be giving their daughter any happiness; it has been claimed that it is only increasing her misfortune. The parents of the bride are not in fact giving the dowry to their daughter but to their son-in-law and his family; this increases greed for more dowry. Parents should rather safeguard their daughters from economic deprivation and violence by educating them about their rights within marriage as the dower right.

Dr. Taslima Monsoor is Dean and Associate Professor of Faculty of Law, University of Dhaka.

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ডুবে যাওয়া জমি (সিকস্তি) ও জেগে উঠা জমি(পয়োস্তি)

ডুবে যাওয়া জমি (সিকস্তি) ও জেগে উঠা জমি(পয়োস্তি) কিঃ-

সিকস্তি শব্দের শাব্দিক অর্থ হলো ভাঙ্গা৷ যদি কোনো জমি/ভূমি ভেঙ্গে নদীগর্ভে বিলীন হয়ে যায় তবে তাকে সিকস্তি বলে৷

পয়োস্তি শব্দের শাব্দিক অর্থ হলো সংযুক্ত বা একত্রিভূত হওয়া যাকে আইনী ভাষায় পয়োস্তি বলে৷ কোনো জমি সাগর বা নদীর গতিপথের পরিবর্তনের কারণে কিংবা নদীর পানি সরে যাওয়ার ফলে জেগে উঠলে অথবা নদী গর্ভে বিলীন হয়ে যাওয়া জমি পুনরায় ভেসে উঠলে তাকে পয়োস্তি বলা হয়৷

{১৮২৫ সালের বেঙ্গল এলুভিয়ন ও ডিলুভিয়ন রেগুলেশন এর (৪ ধারা)}৷

তবে এই পয়োস্তি বা জেগে ওঠা জমি দুই ধরনের হতে পারে ৷

(ক) ভেঙ্গে যাওয়া জমি পুনরায় জেগে ওঠা এবং

(খ) নতুন কোনো জমি জেগে ওঠা৷

সিকস্তি ও পয়োস্তি সংক্রান্ত অধিকার

নদী গর্ভ থেকে জমি জেগে ওঠার পর অতিরিক্ত খাজনা প্রদান করে ঐ জমি ফেরত পাবার অধিকার ৷

জমি নদী গর্ভে বিলীন হলে কর মওকুফের জন্য রাজস্ব কর্মকর্তার নিকট দরখাস্ত দাখিলের অধিকার ৷

নদী ভাঙ্গার ফলে পরবর্তীতে জমি/চর জেগে উঠলে তার নকশা সম্বন্ধে নোটিশের মাধ্যমে জানার অধিকার ৷

নদী গর্ভ থেকে জমি জেগে উঠলে পূর্বের মালিকের জমি ফেরত পাবার অধিকার ৷

পয়োস্তি জমির জন্য খাজনা প্রদানের পর রশিদ পাবার অধিকার ৷

অন্য কাগজ পত্র হারিয়ে গেলে খাজনার রশিদের মাধ্যমে মালিকানা দাবীর অধিকার ৷

(১৯৫০ সালের স্টেট একুইজিশন এন্ড টেনান্সি এক্ট এর ৮৬ ধারা)
লংঘন:

নদী গর্ভ থেকে ডুবে যাওয়া জমি জেগে ওঠার পর তা জমির মালিককে ফেরত প্রদান না করা।

নদী গর্ভ থেকে ডুবে যাওয়া জমি জেগে ওঠার পর সেই জমির জন্য খাজনা মওকুফের জন্য আবেদন দাখিলের সুযোগ না দেওয়া।

নদী ভাঙ্গার ফলে পরবর্তীতে জমি/চর জেগে উঠলে তার নকশা জানতে না দেয়া।

পয়োস্তি জমির জন্য খাজনা প্রদানের পর রশিদ প্রদান না করা।

জমি সংক্রান্ত অন্যান্য কাগজ পত্র হারিয়ে গেলে খাজনার রশিদের মাধ্যমে মালিকানা দাবী করতে না দেওয়া।
প্রতিকার: 

উপজেলা ভুমি রাজস্ব অফিসারের নিকট লিখিত দরখাস্ত দাখিল করতে হবে৷

সাহায্যকারী সংগঠন:

"জাতীয় আইন সহায়তা প্রদানকারী সংস্থা"
(প্রত্যেক জেলার জেলা জজ সাহেবের অফিস)

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