‘Give me a pound of flesh cut off nearest his heart’

by Justice P.H.K. Kulatilaka

[Part 3]

To proceed in a court case a certificate of non settlement has to be filed in court. This underscores how important for parties to settle their differences without proceeding to litigation. There had been many instances where the disputants were able to settle their conflicts amicably leaving the Board premises with a shake hand.

Civil disputes

A court case civil or criminal is an unbearable headache to litigants. Of course there are complex civil disputes which require a judicial decision to resolve them. There are serious crimes which require court cases to decide whether an accused person is guilty or not and impose punishment.

Consent judgement is the best judgement. Even after a court case was instituted the legislators had been wise enough to provide the litigants another chance for settlement. Section 408 of the Civil Procedure Code provides for adjustment of action out of court.

Once the parties notify it to court by motion it will pass a decree in accordance therewith.

G. P. S. de Silva a former Chief Justice while addressing the Judicial Officers at their annual conference said, ‘A settlement if it is genuine and obtained with the consent of the parties is the best judgment that one can give … so that the parties don’t leave the Court with disagreement’.

Land disputes and breach of the peace Applications relating to land disputes leading to crime made under the provisions of the Primary Courts’ Procedure Act are a common occurrence in the Magistrate’s court.

Mediation is not provided for these matters. Nevertheless section 66 makes it mandatory for the court to make effort to induce parties to arrive at a settlement. In the appropriate cases court may with the consent of parties visit the land which is the subject matter of the action. At the outset the parties should understand that the order made in these applications is not a final order for the reason that the finality lies in the District Court which has the power to adjudicate upon The title of the parties.

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I was much impressed by a recent T.V advertisement. Apparently it appeared to be a boundary dispute. To settle the dispute a massive fruit bearing jak tree had to be cut down. Then a lady shed tears saying “oh, this tree fed the mouths of so many people”.

Then one of the disputants said ‘If it is necessary to cut the tree avoid it and have the boundary fence on my side’. This gives a vision for us to stimulate.

Co-owned lands, it is advisable to settle. A final partition decree in a partition case awards each party his due share. No doubt that partition title is the best title to the ownership of land. Albeit, it is a time consuming affair.

Lots of procedures are involved. When there are large number of parties, if one of them dies substitution has to be made.

The law permits co-owners to enter into amicable settlements without coming to court. They are called amicable settlements.

Even after coming to court the Partition Act provides that with the consent of parties a settlement order can be entered. In Soma Rasaputra vs Jayanthi de Silva [Bar Association Law Journal, vol.v ], then Chief Justice while confirming the consent terms entered in the District Court, underscored the practice of inducing settlement of partition actions as it is every way salutary and beneficial to all parties.

The judges do explain to the litigants their inherent right to settle their disputes. Compounding of criminal offences There are many minor offences which might well be made the subject of a lawful compromise without causing injustice to either party. To achieve this it is necessary to strike a balance between two contending principles in criminal justice. On the one hand is that of vindicating the criminal law in the interest of justice and not merely to the private advantage of the aggrieved party; on the other hand is that of encouraging reparation on the part of the offender.

Compoundable

In fact compoundable offences specified in section 266 of the Code of Criminal Procedure Act are more or less the same offences caught up in the second schedule to the Mediation Boards Act. Those offences that could not be settled by mediation find their way to this forum. Nevertheless, the litigants are offered a second chance to compound such offences with the consent of the Magistrate when a prosecution is pending in that court.

The complainant has the right at any time before trial to compound an offence but after the defendant has pleaded the Magistrate may refuse to allow the charge to be withdrawn. It was so held in the case of Louis vs, Davith [1892] 2 CLR 57].

Offence of cheating is not a compoundable offence. But dishonest misappropriation of property where the loss is to a private person is compoundable. Very often where the parties to a cheating case are willing to compound, in appropriate cases the Magistrate may permit the prosecution to amend the charge of cheating to a charge of dishonest misappropriation. It is imperative that the offender make all payments prior to the Magistrate make the order compounding the case. It is because compounding order has the effect of an acquittal of the accused. The Magistrate becomes functus after making the order.

The law permits these settlements, compromises and compounding of offences with a view to achieve social justice.

The judges who make these orders are conscious of the fact that they have to be fair, just and reasonable. They are judicial orders. As Hon. G.P.S. de Silva former Chief Justice said ‘Parties don’t leave the court with disagreement'.

Concluded

The writer is a former Director of the Sri Lanka Judges’ Institute.