INTRODUCTION
It is a general rule that all persons who suffer from a tort can sue and all persons who commit a tort can be sued in tort. This rule is based on equality before the law guaranteed by Article 25 of the Constitution of Pakistan 1973. Certain persons or bodies cannot sue, whilst others cannot be sued in tort.
CROSS-REFERENCE
- Article 25 of the Constitution of Pakistan 1973
- Section 83 of CPC 1908
- Forfeiture Act 1870
- In-Solvency Act 1920
DEFINITION OF THE TERM “SUE”
According to Oxford Dictionary of Law:
To claim remedy in the civil court by issuing court proceedings.
DISABILITY TO SUE AND TO BE SUED
The law under this category falls into two further groups (I) those who cannot sue, and (II) those who cannot be sued.
(I) WHO CAN NOT SUE:
Ordinarily, all persons are entitled to sue in torts, but the following seven are the personal capacity exceptions to this rule and they cannot sue in torts due to personal disability.
1. AN ALIEN ENEMY:
An alien enemy means a person of the enemy’s nationality or a person residing in ex-territory.
In England: An alien enemy cannot sue.
In Pakistan: An alien enemy can sue by obtaining permission from the Central Government.
2. FELONS OR CONVICTS:
A convict is a person who is sentenced to death or penal servitude on any charge of treason or felony.
In England: A felon or convict who is sentenced to death, cannot sue for any damage to his property or for recovery of a debt. But a person, who has been sentenced to a term of imprisonment only, can sue in his own name for torts to property.
In Pakistan: A felon or convict may sue for torts both to his person and property.
3. INSOLVENTS OR BANKRUPTS:
A person who has been adjudicated Insolvent under Insolvency Act 1920 has no legal personality and can not sue in tort.
In England: An insolvent or a bankrupt cannot sue for forts in respect of his property, but he can sue for torts to a person, i.e., assault, defamation, etc.
In Pakistan: The same rule is followed.
4. SPOUSES: (Husband and Wife Act 1962)
Before the law, husband, and wife form one person and hence a wife can not sue her husband for a tort nor can a husband sue his wife.
In England: neither a wife can sue her husband, nor can a husband sue his wife, however, by Married Women’s Property Act, 1882, a wife may sue her husband for protection and security of her separate property, but the husband has no such corresponding right against wife.
In Pakistan: Both husband and wife can sue each other in tort.
5. CORPORATION:
A corporation is a fictitious person and can act or become liable only through its agents or servants provided the act done is within its scope of authority
In England: A corporation cannot maintain an action for personal wrongs, but a corporation may sue for libel or any other wrong affecting its property or business
In Pakistan: The same rule is followed.
6. INFANT/CHILD IN HIS MOTHER’S WOMB:
An infant may sue his next friend for any wrong done to him.
In England: An infant can maintain an action for injuries sustained when he was in the mother’s womb.
In Pakistan: The same rule is followed.
7. FOREIGN STATE:
Under section 84 of The Code of Civil Procedure a foreign state may sue in any court in Pakistan provided that such state has been recognized by the Central Government and provided also that the object of the suit is to enforce a private right vested in the Head of State or in any officer of such State, in his public capacity.
(II) WHO CAN NOT BE SUED:
All persons are liable to be sued, but the following nine classes of persons this rule and, therefore, cannot be sued in torts.
1. THE KING:
No action for a personal wrong will lie against the sovereign. The reason is that the king can do no wrong. This law has been considerably modified by the Crown Proceeding Act of 1947 and is no longer a good law.
2. FOREIGN SOVEREIGN:
In England: Foreign sovereigns cannot be sued unless they submit themselves to the jurisdiction of the British Court and waive their privilege
In Pakistan: Foreign sovereigns can be sued with the prior consent of the Central Government.
3. AMBASSADORS AND DIPLOMATS:
In England: Foreign ambassadors, their families, and servants cannot be sued (unless they submit themselves to the jurisdiction of a court and waive their privilege.
In Pakistan: The same rule is followed. This is called immunity in Pakistan and it is regulated by the Diplomatic and Councilor Privilege Act 1976.
4. PUBLIC OFFICIALS:
An action will not lie against a public official for torts committed by them in their official capacity, but they are liable for tortious acts committed by them in their private capacity. This immunity is based on the respondeat superior.
5. INFANTS:
Ordinarily, infancy per se is no defense to an action for torts. A minor is liable for torts in the same manner and to the same extent as an adult. If there is sufficient maturity of understanding in an infant, he will be liable.
6. LUNATICS:
A person certified as a Lunatic under the Lunacy Act of 1912, was no legal personality and he cannot sue and be sued in the tort. A person sane enough to be accountable to the Criminal Law would probably be liable for any kind of tort. But a lunatic will not be liable for those torts in which some mental condition of the mind of the wrong-doer forms an essential ingredient of liability.
CONCLUSION
It is concluded that all the persons cannot sue nor they can be sued by another person in the Tort Law. Some persons are immune to being sued and some are not eligible to sue others in this regard.
Frequently Asked Questions
Who cannot sue under the law of torts?
(2019-A, 2018-A, 2017-A)
Who has the capacity to sue and be sued in tort law?
(2016-S)
Who can sue under the law of tort explain.
(2014-A)
