Question of law and fact.pdf

TOPPERS LAW COLLEGE

INTRODUCTION: All questions which arise for consideration and determination in a court of justice are of two kinds, i.e., question of law and question of fact. 1. QUESTION OF LAW All questions:-i. which have already been answered by the law; ii. or by the court and became judicial precedent for similar cases; iii. or is to be answered by the court without recording the evidence is question of law. According to Salmond the question of law is used in three distinct, though related, senses:-i. Question which the law itself has authoritatively answered. ii. Question as to what the law is on certain point which is answered by judge. iii. In general sense question of law for the judge but question of fact is for the jury. i.

QUESTION AUTHORITATIVELY ANSWERED BY LAW:

1. Question which court is bound to answer in accordance with a rule of law; 2. a question which the law itself has authoritatively answered; 3. to the exclusion of the right of the court to answer the question as it thinks fit in accordance with what is considered to be the truth and justice of the matter. Illustration of question of law:  Whether the holder of a bill of exchange has been guilty of unreasonable delay in giving notice of dishonor is a question of law to be determined in accordance with certain fixed principles laid down in the bills of Exchange Act.  The question whether a child accused of crime has sufficient mental capacity to be criminally responsible for his acts is one of fact, if the accused is over the age of ten years, but one of law if under 10 years of age. ii.

QUESTION ARISES OUT OF UNCERTAINTY OF LAW:

 In this second sense, a question of law is a question as to what law is.  Thus, an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter.  Question of law in this sense arises, not of the existence of law, but out of its uncertainty. ZEESHAN HUSSAIN ADIL: ENGLISH JURISPRUDENCE (Q&A-LL.B-I, Session 2012-13)

2-D

TOPPERS LAW COLLEGE  If the whole law could be definitely ascertained, there would be no question of law in this sense; but all questions to be answered in accordance with that law would still be question of law in the former sense.  When a question first arises in a court of justice as to the meaning of an ambiguous statutory provision, the question is one of law in this second sense; it is a question as to what the law is.  The business of the court is to determine what, in its own judgment and in fact, is the true meaning of the words used by the legislature.  But when this question has once been judicially determined, the authoritative answer to it becomes a judicial precedent which is law for all other cases in which the same statutory provision come in question. ILLUSTRATION  In judicial precedent the word “Sufficient Cause” has been explained that “pursuing remedy in a wrong forum on mistaken advice on counsel is not sufficient cause within the meaning of S. 5 of Limitation Act, 1908. PLD 2006 Lah. 26. Therefore, it is now a judicial precedent that mistaken advice is not “Sufficient Cause” within the meaning of Sec. 5 of Limitation Act, 1908. iii. QUESTION OF LAW DETERMIEND BY JUDGE: In the third sense a questions of law is for the judge, but the questions of fact are for the jury. However, in Pakistan instead of jury Local Commission is issued by the Court, under section 75 of The Code of Civil Procedure Act, 1908, if necessary for the determination of the question of fact. In Pakistan Superior Courts amicus curiae is appointed, for getting help for the determination of question of law and fact. In short, a question of law is one which is determined by the court without recording any evidence. 2. QUESTION OF FACT Introduction: Salmond described question of fact in two senses, i.e; (a) in general sense (b) in narrower sense. (a) In general sense question of fact includes all questions;  Any question which is not predetermined by a rule of law;  or any question except a question as to what the law is;  or any question that is to be answered by the jury. (b)

In narrower sense the expression question of fact does not include all questions that are not questions of law, but only some of them. In this sense a question of fact is opposed to a question of judicial discretion.  Difference between judicial discretion and question of fact:--

ZEESHAN HUSSAIN ADIL: ENGLISH JURISPRUDENCE (Q&A-LL.B-I, Session 2012-13)

2-D

TOPPERS LAW COLLEGE 

   



Judicial discretion includes all question as to what is right, just, equitable, or reasonable—so far as not predetermined by authoritative rules of law but committed to the liberum arbitrium of the courts. A question of judicial discretion pertains to the sphere of right, as opposed to that of fact in its stricter sense. It is a question as to what ought to be, as opposed to a question of what is. Matters of fact are capable of proof, and are the subject of evidence adduced for that purpose. Matters of right and judicial discretion are not the subject of evidence and demonstration, but of argument, and are submitted to the reason and conscience of the court. In determining questions of fact the court is seeking to ascertain the truth of the matter; in determining question of judicial discretion it seeks to discover the right or justice of the matter.

EXAMPLE The Companies Act empowers the court to make an order for the winding-up of a company if ,inter alia, the company is unable to pay its debts or the court is of opinion that it is just and equitable that the company should be wound up. The first of these questions is one of pure fact, whereas the second is a question of judicial discretion.  Question of fact and matter of opinion: A question of fact is one capable of being answered by way of demonstration—a question of opinion is one that cannot be so answered. The answer to it is a matter of speculation which cannot be proved by any available evidence to be right or wrong. EXAMPLE: The past history of a company‟s business is a matter of fact; but its prospects of successful business in the future is a matter of opinion. Many of the question which courts decide “on the facts‟ and which are not governed by fixed legal rules are question of opinion in this second sense. Whether the defendant drove without due care, whether accused reacted to the deceased‟s provocation as would a reasonable man, whether a flat has been so substantially altered as to suffer a change of identity—all these are strictly neither questions of law nor of fact; they are matters for evaluation. PRIMARY AND SECONDARY FACTS: A distinction is also drawn between primary and secondary facts;  Primary facts are proved by oral, documentary and other evidence; secondary facts can be inferred from primary facts. ZEESHAN HUSSAIN ADIL: ENGLISH JURISPRUDENCE (Q&A-LL.B-I, Session 2012-13)

2-D

TOPPERS LAW COLLEGE  The importance of the distinction is that an appellate tribunal can be said to be in as good a position as the trial court with regard to secondary, though not primary, facts. (3) MIXED QUESTION OF FACT AND LAW There are also mixed questions which are partly questions of fact and partly of law. EXAMPLE: Whether a partnership exists between A and B is partly one of fact (viz., what agreement has been made between them) and partly one of law (viz., whether such an agreement is sufficient to constitute the legal relation of partnership). CONCLUSION  Question of law is one which is answered by law or judicial precedent and judges.  Question of fact is one which can be proved through recording evidence. It excludes the discretion of the court to decide the matter.  Mixed question of law and fact is determined by law and fact.

Explain the terms „question of law‟, „question of fact, and mixed question of law and fact. (Ann. 2007) Q. Explain the term „Question of law” and “Question of fact‟. What do you understand by “mixed question of law and fact”? (Sup. 2006) Q. What do you understand by the term „Question of Law‟ and „Question of Fact‟? Also discuss the mixed question of law and fact. (Ann. 2010) Q.

ZEESHAN HUSSAIN ADIL: ENGLISH JURISPRUDENCE (Q&A-LL.B-I, Session 2012-13)

2-D