Capacity to Sue: Who Can and Cannot File a Lawsuit
Capacity to Sue: Who Can and Cannot
Introduction
Every person living in a civilized state has certain rights granted by law. Infringement of these rights gives rise to the right to sue the person who infringed them. This right to sue is known as the capacity of an individual, indicating the competence of parties to sue and the liability to be sued. In torts, some persons can sue but cannot be sued, others cannot sue but can be sued, and yet another group can neither sue nor be sued. This document discusses those persons or bodies who cannot sue, and those who cannot be sued in tort.
General Rule
As a general rule, every person who suffers a tort can sue, and a person who commits a tort can be sued. This general rule is based on equality in law and equal protection in law, guaranteed as a fundamental right by Article 21 of the Constitution of Pakistan, 1973.
Exceptions: Persons Who Cannot Sue
(i) Alien Enemy
An alien enemy means a person of alien nationality and includes a person of any nationality who is at war with the state. An alien enemy in England cannot sue in an English Court except under an express license of the Queen. An alien enemy residing in Pakistan can, however, sue with the permission of the Federal Government under Section 83 of the Civil Procedure Code.
Illustration: An Indian citizen cannot file a suit in Pakistan for the enforcement of their fundamental rights.
(ii) Child
A child cannot sue for injury caused when in its mother’s womb.
Case Law: (1890) 28 LR IR 69
A woman, while pregnant, was injured in a railway accident, and the child, when born, was found to be deformed. The infant claimed damages from the railway company.
Held: The court held that the infant child could not maintain an action.
(iii) Convict
A convict is a person against whom a judgment of death or penal servitude has been pronounced on any charge of treason or felony.
(iv) Husband and Wife
A married woman could not sue for any tort committed by a third person unless her husband joined her as a plaintiff. Now, with the change in the law by the Law Reform (Husband and Wife) Act 1962, husband and wife can sue each other.
Position in Pakistan: In Pakistan, husband and wife can file suit against one another because they are considered separate legal personalities.
(v) Bankrupts
A bankrupt is under a disability to sue for wrongs in respect of their property, as all their property vests in a trustee.
(vi) Unincorporated Association
An unincorporated association cannot sue in its name. Companies not registered under the Companies Ordinance 1984, or firms not registered under the Partnership Act 1932, cannot sue.
Persons Who Cannot Be Sued
Foreign Sovereign
Foreign sovereigns cannot be sued. It is a fundamental principle that the king can do no wrong.
Case Law: Mighel vs. Sultan of Johore (1894).
Under international law, a sovereign can waive their immunity.
Ambassadors or Diplomats
Ambassadors and diplomats cannot be sued in the country where they are posted. This immunity is available to them under international law.
Public Officials
Public officials cannot be sued in their representative capacity for the torts committed by them or by their representatives.
Corporation
A corporation incorporated under the Companies Ordinance 1984 cannot be sued for torts requiring physical thought, like the tort of assault.
Trade Union
A trade union registered under the Industrial Relations Ordinance 2008 cannot be sued for torts committed by them in the course of an industrial dispute.
Crown
The King or his servant cannot be sued for torts committed by them.
Position in Pakistan
Under the Constitution of Pakistan 1973, the President, Prime Minister, Governors, Chief Ministers, and Ministers cannot be sued for torts committed by them while they hold office.
Conclusion
In conclusion, it is a general principle that all persons have the capacity to sue and are liable to be sued, subject to certain limitations under the law of torts. Some persons cannot sue but can be sued for torts, and vice versa.