Substantive and Procedural Law

1. Introduction:
Statute law is either substantive or procedural. Substantive law confers the rights
procedural law is the mode by which a legal right is enforced. The distinction
between substantive and procedural law is drawn by each system along the lines
of expediency. The distinction between these two is very important as every
lawyer has to get in touch with them in their daily routine.
2. Law of Procedure:
I. Definition:
Noun
A body of law that sets forth the methods, rules, and procedures for court cases.
Origin
Roman law
Procedural law is the body of law that deals with the technical aspects, such as
duties and procedures for obtaining redress for a wrong. Procedural law is the
rules of conducting a legal action. This is in contrast to “substantive law,” which
refers to the actual laws by which a crime may be charged, or which governs how
the facts of the case will be accepted and presented.
(i) According to Salmond:
“The law of procedure may be defined as that branch of law which governs the
process of litigation. It is the law of actions and includes all legal proceedings
whether civil or criminal.
Criticism:
Salmond has ignored that less spectacular and unattractive side of procedural law,
which goes under the name of “conveyancing” such as sale deeds, partnership
deeds, cheques and other bills of exchange.
II. Elements of Procedural Law:
Following are the elements of judicial procedure or procedural law.
(i) Summons:
This is to give opportunity to all the parties interested, to present themselves
before the Court and making the case heard.
(ii) Pleading:
Pleadings bring to light the matters in-issue between the parties. In civil law, it
consists of plaint, written statement and replication. In criminal law, it includes
complaint and written statement.
(iii) Proof:
Proof is the process by which the parties supply the Court with data necessary for
the decision of the case.
(iv) Judgment:
A judgment is the decision of the Court. It may be in the form of decree or order.
(v) Execution:
It is the use of the physical force of the state in enforcing the judgment.
3. Substantive Law:
Substantive law is the set of laws that govern how members of a society have to
behave. Substantive law defines rights and responsibilities in civil law, and crimes
and punishments in criminal law. It may be codified in statutes or exist through
precedent in common law.
(i) According to Salmond:
Substantive law relates not to the process of litigation but to its purpose and
subject-matter.
4. Distinction Between Substantive and Procedural Law:
(i) According to Holland:
Substantive law determines rights and procedural law determines remedies.
Criticism:
Salmond criticizes this view on the grounds:
(a) The whole law of remedies does not belong to procedure as a right to
recover damages is a remedial right, but it belongs to substantive law and not to
the law of procedure.
(b) According to Holland, there can be no right in the realm of procedure but
the law of procedure also creates rights i.e. a right of appeal is both a matter of
substance and procedure.
(ii) According to Salmond:
The difference between substantive law and procedural law is one of form and not
substance. A rule belonging to one class may, by a changed form, pass over into
the other without materially affecting the practical issue, he refers to three classes
of such cases.
(a) Equivalency of exclusive evidential fact:
An exclusive evidential fact is practically equivalent to a constituent element in the
title of the right to be proved. The rule of evidence is that a contract can be proved
only by a writing. This corresponds to a rule of substantive law that a contract is
void unless it is reduced to writing. In one case, the writing is the exclusive
evidence of title. In other case the writing is a part of the title itself.
(b) Equivalency of conclusive evidential fact to fact proved:
A conclusive evidential fact is equivalent to and tends to take the place of the fact
proved by it. Procedural law says that the child under the age of 8 cannot have a
criminal intention and substantive law exempts such a child form punishment.
(c) Equivalency of limitation of actions to prescription of rights:
The limitation of action is the procedural equivalent of the prescription of rights.
The legal procedure destroys the bond between right and remedy and substantive
law destroy the right itself.
5. Other Distinctions Between Substantive and Procedural Law:
(i)Substantive law is concerned with the ends which the administration of justice
seeks.
Procedural law deals with the means and instruments by which those ends can be
achieved.
(ii) substantive law which is concerned with matters outside the court, like
fundamental rights and liabilities of the members of the society.
The procedural law deals with the affairs inside the court like appealing,
presenting evidence, representation of counsel, pleading, reviewing etc.
(iii) Substantive law alludes to the law that deals with the subject matter of the
case and states the rights and obligations of the parties concerned.
By procedural law, we mean the law that prescribes the methods, procedure and
machinery for the enforcement of rights and obligations.
(iv) Substantive law is related and connected with public at large.
Procedural law is connected with the parties before the Court.
(v) Substantive law relates to matters outside the Court.
Procedural law deals with matters inside Courts.
(vi) Substantive law is substance in nature.
Procedural law is subordinate in nature.
(vii) What facts constitute a wrong is determined by substantive law?
What facts constitute proof of a wrong is a question of procedure?
(viii) Substantive law, which states the rights and obligations of the citizens.
The procedural law creates the mechanism for the enforcement of the law.
(xi) Substantive law is governed by the act of parliament.
The statutory law regulates the procedural law.
(x) . The substantive law pertains to the rights and duties of parties concerned and
punishment for the wrongdoer.
The procedural law is all about the initiation and prosecution of civil and criminal
proceedings.
6. Conclusion:
To conclude, I can say, that the substantive law which defines our rights and
duties is of course important to all of us and the law of procedure is a working
machine. Simply put, the two types of law differ in the sense that procedural law
oversees the litigation process of the case, whereas the substantive law deals with
the objective and subject matter of the litigation. While procedural law expresses
how the law is implemented, substantive law explains the forbidding and
mandating conducts as per law. In short procedural law, is nothing but an add-on
of substantive law.
Topic: Evidence, its kinds and various
rules of its valuation

1. Introduction:
Evidence or evidential facts are adduced by the court in order to
prove the facts in issue. It is the probative force of these
evidential facts, which prove the principal facts. Evidence is the
most important stage of litigation, where the parties have to
prove their assertions (claims) and it helps the Court in
determining and ascertaining the truth of the facts. Evidence can
be the most important part of a trial. It can either convict the
accused, or set them free. There are specific types of evidence,
and ways this evidence may be used during a trial. What
evidence is and how it may be used will be explained here.

2. Definition of Evidence:

I. According to Salmond:
“Evidence may be defined as any fact which possesses probative
force.”

II. According to Phipson:

“Evidence, as the term is used in judicial proceedings means the
facts testimony and documents which may be legally received in
order to prove or disprove the fact under enquiry.”
III. According to Article 3 Of Q.S.O 1984”
“Evidence includes all statement which the Court permits to be
made before it by witness in relation to matters of fact under
enquiry.”
3. Kinds of Evidence:
Following are the different kinds of evidence.
I. Judicial or Extra-Judicial Evidence:
(i) Judicial Evidence:
Judicial evidence is that which is produced before the
Court. It consists of all facts which are directly brought
to the knowledge and observation of the Court. It
includes all evidences given by witnesses in the court, all
documents produced in the court and all things
personally examined by the court.
(ii) Extra-Judicial Evidence:
Extra-Judicial evidence is that which does not come
directly under judicial cognizance (knowledge, notice)
and it includes all evidential facts which are known to
the Court only by way of inference (deduce) from some
form of judicial evidence.

Example:
If a document is actually produced before the Court, it is judicial
evidence. If it is known to the Court only through a copy or
report of a witness who has heard it, it is extra-judicial evidence.

II. Personal or Real Evidence:

 (i) Personal Evidence:
Personal evidence is the testimony of witness. It may
be either oral or written and judicial or extra-judicial.

(ii) Real Evidence:

Anything which is believed for any other reason than
that someone has said so, is believed on real
evidence. In other words, real evidence is any
physical thing that has a direct connection to the crime
or civil action. It can be a tape recording or a computer
printout or a photograph.
III. Primary and Secondary Evidence:
(i) Primary Evidence:
Primary evidence is the immediate evidence of
the principal fact. A document is the primary
evidence of its contents.

(ii) Secondary Evidence:

Secondary evidence is evidence which may be
given under circumstances in the absence of
that better evidence which the law requires to
be given first. If may be in the form of a report
or an oral account of the original evidence or a
copy of a document. Secondary evidence
should not be allowed when primary evidence
is available as it is inferior to primary
evidence.
IV. Direct and Circumstantial Evidence:
 (i) Direct Evidence:
Direct evidence is testimony relating immediately to
the principal fact. It is an evidence of a fact
perceived by witness with his own senses.
(ii) Circumstantial evidence:
Circumstantial evidence is that evidence which
relates to a series of facts others than the fact-in-
issue, but which are closely connected with that in
such a way that it leads to some definite conclusion.
It is more important in criminal law, because it’s
very rare that direct evidence may be found in
criminal law.
Example:
If ‘A’ says that he saw ‘B’ committing the murder, the evidence
of ‘A’ is direct evidence but if he says that he saw ‘B’ leaving
the place where the murder was committed the evidence of ‘A’
is circumstantial evidence.
V. Original And Hearsay Evidence:
(i) Original evidence is that which possesses an
independent probative force of its own i.e., witness states
that he has seen or heard with his own eyes or ears.
(ii) Hearsay evidence:
Hearsay evidence is not based on the personal
knowledge of the witnesses. He makes the statement on
the basis of the statement of another person. As a general
rule, it is inadmissible evidence but there can be certain
exceptions to the general rule. In Pakistan, Article 71 of
 Q.S.O provides the general rule that hearsay is no
evidence.
VI. Character Evidence
This is a testimony or document that is used to help proving that
someone acted in a particular way based on the person’s
character. While this can’t be used to prove that a person’s
behavior at a certain time was consistent with his or her
character, it can be used in some workplace investigations to
prove intent, motive, or opportunity.
VII. Digital Evidence
Digital evidence can be any sort of digital file from an electronic
source. This includes email, text messages, instant messages,
files and documents extracted from hard drives, electronic
financial transactions, audio files, video files. Digital evidence
can be found on any server or device that stores data, including
some lesser-known sources such as home video game consoles,
GPS sport watches and internet-enabled devices used in home
automation.
VIII. Forensic Evidence
Forensic Evidence is scientific evidence, such as DNA, trace
evidence, fingerprints or ballistics reports, and can provide proof
to establish a person’s guilt or innocence. Forensic evidence is
generally considered to be strong and reliable evidence and
alongside helping to convict criminals, its role in exonerating
(acquit) the innocent has been well documented. The term
“forensic” means “for the courts”. Its used in workplace
investigations and generally limited to serious cases that may
end up in court.
XI. Prima Facie Evidence
Meaning “on its first appearance” this is evidence presented
before a trial that is enough to prove something until it is
successfully disproved or rebutted (denied or refused) at trial.
This is also called “presumptive evidence”.
4. Evaluation of Evidence:
The law of evidence deals with the production of evidence and
its evaluation. Many rules have been laid down to weigh the
value of the evidence produced in the Court.
I. Conclusive Proof:
It consists of fact which can be such probative force that they
cannot be contradicted. When one fact is declared by law to be
the conclusive proof of another fact, the Court shall on proof of
regard the other as proved.

Example:
Article 128 of Q.S.O., provides that if a child is born during
wedlock not earlier than expiration of six lunar months from the
date of marriage or within 2 years after its dissolution and the
mother remains unmarried, it shall be conclusive proof that he is
legitimate son of that man.

II. Presumptive Proof:

It means such proof which may be considered sufficient if there
is no other proved fact to the contrary. In such a case, it raises a
conditional or rebuttable presumption.

Example:
The presumption of innocence is a rebuttable presumption.

III. Insufficient Evidence:

If law prescribes a certain amount of evidence to be absolutely
necessary and evidence produced does not come up to the
necessary standard, the evidence is considered to be insufficient.
The courts are not allowed to act upon such evidence. According
to English law the evidence of one witness is not sufficient to
hold a person guilty of the offence of treason.

Example:
In Hudood cases, testimony of one witness is insufficient.
Moreover, a will requires to be attested by two witnesses and if
a will has been attested only by one witness, no court will take
cognizance of it.

IV. Exclusive Evidence:

In such case, certain facts alone are recognized as being the only
evidence of certain other facts. No other evidence is permitted
by law.
Example:
A written contract can generally be proved by the production of
writing itself.

V. No Evidence:
There are certain facts which have absolutely no probative force
at all. They can neither be produced in the Court nor acted upon.

Example:
The bad character of accused is irrelevant in criminal proceeding
and it becomes relevant only if evidence has been given to show
that he possesses a good character.

5. Conclusion:
To conclude, I can say, that evidence is the source of
proving or disproving any fact and it has been classified into
many kinds. Many rules have been laid down for the production
of evidence and for the valuation of evidence and it just renders
the task of proof easier.
Topic: Interpretation of Statutes
1. Introduction:
A statute has to take effect through the interpretation of the
Courts. So, one of the most important functions of the Court is
the construction of statute. There are certain rules of
interpretation of statute, which Courts follows while interpreting
it. A Statute is the ‘will of the legislature’. The legislature will
follow the procedure laid down or prescribed in the enactment of
laws. If there is any procedural defect in the legislative process,
it may be cured immediately by appropriate legislative action
i.e., by amendment to the existing provision or inserting a new
one in its place, without challenging in the courts. Courts are
under a duty to interpret the Statute irrespective of ambiguity or
lack of clarity or otherwise, in order to discharge its basic duty
of doing justice. In this process, the courts have attempted to
find out the intention of the legislature from the words used in
the four corners of the relevant provisions. It follows that no part
of it can be ignored or omitted in finding out the legislative
intent. The courts have no power to vary the words of a Statue
by following the maxim, “A verbis Legis non Est Recedendem”
(you must not vary the words of a Statute). Lawyers and the
courts are engaged in this exercise in a vast number of cases
when the words used in the Statutes or expressions are
ambiguous in order to resolve the inconsistencies or make the
Statute workable as per the intent of the legislature.
2. Meaning Of Interpretation:
Salmond observed:
“By interpretation or construction is meant, the process by
which the courts seek to ascertain the meaning of the legislature
through the medium of authoritative form in which it is
expressed”.
3.Interpretation of Statutes is required for two basic
reasons:
1. Legislative Language – Legislative language may be
complicated for a layman, and hence may require
interpretation; and
2. Legislative Intent – The intention of legislator or
Legislative intent assimilates two aspects: a. the concept of
‘meaning’, i.e., what the word means; and b. the concept of
‘purpose’ and ‘object’ or the ‘reason’ or ‘spirit’ pervading
through the statute.
4.Rules Of Interpretation:
I. Grammatical Interpretation:
In grammatical interpretation only the verbal expression of law
is taken into consideration and the Courts do not go beyond the
literal meaning.
“Sussex Peerage Case”
It was observed that “if the words of statute are in themselves
precise and unambiguous, then the words themselves alone can
best declare the intention of the law-giver.”
(i) Defects in Grammatical Interpretation:
Prof. Salmond refers to three logical defects by which
grammatical interpretation may be affected.
(a) The language of the statute may be ambiguous.
(b) The language may be inconsistent with each other and
thereby destroy and nullify their meaning.
(c) The law may be incomplete so the grammatical interpretation
may not be possible.
II. Golden Rule:
The literal interpretation means to ascertain the general purpose
of the statute. In difficult cases, the Court may go beyond the
words of the statue and takes help from other sources. This rule
is called the Golden Rule.
III. Mischief Rule: Mischief rule is a principle used for the
interpretation of a statute. This principle is used by the courts to
determine the intention of the legislators. This principle aims at
finding out the mischief and defect in a statute and to implement
a remedy for the same. This rule of interpretation is known as
mischief rule.
“Heydons’ case”
This mischief rule takes its origin from the above cited case in
which four things were observed.
(i) What was the common law ( the part of English law that is
derived from custom and judicial precedent rather than statute)
before the making of the Act?
(ii) What was the mischief and defect for which the common
law did not provide?
(iii) What remedy the parliament has resolved and appointed to
cure the disease?
(iv) The true reason of the remedy and judges shall suppress the
mischief and advance the remedy.
IV. Logical Interpretation:
In logical interpretation, the Courts are allowed to depart from
the letter of the law and try to find out the true intention of the
legislation. It only applies when grammatical is not possible.
(i) According to Gary:
“Logical interpretation calls for the comparison of the statute
with other statutes and with the whole system of law and for the
consideration of the circumstances in which statute was passed.”
V. Strict And Equitable Interpretation:
When two possible meanings could be given to statute because
of its ambiguity and the adoption of a meaning which is more
obvious and constant with the popular use of the language the
interpretation will be strict.
Equitable:
When Court rejects the natural and most known interpretation in
favour of another which conforms the intention of the
legislation, though it may not fit for the ordinary use of
language, the interpretation is equitable interpretation.
VI. Restrictive and Extensive Interpretation:
Equitable interpretation is either restrictive or extensive. The
rule of restrictive interpretation is applied to penal and fiscal
statutes. In such cases, Courts applied a construction which
imposes a lesser penalty on the subject. In extensive
interpretation judge may stretch the word from narrower to the
wider sense of which it is inherently capable of.
VII. Historical Interpretation:
The method of historical interpretation is adopted when
language of a statute gives no clue to the intention of the
legislation. Historical interpretation is a method of legislative
interpretation which takes into account circumstances prior to
the enactment of the legislation in question.
VIII. Sociological Interpretation:
The jurists of the sociological school are prepared to give a lot
of freedom to the judges while interpreting a statute. They
determine the correct interpretation, Court can properly refer to
the history of social movements and require into the social
needs, objects and purposes which were agitating the society at
the time of legislation and which the statute had in view.
IX. Rule Of Casus Omissus (case omitted-not provided for
legislation):
It is not the business of the Court to fill up the gaps in a statute.
That is the function of a legislation.
X. Whole Construction:
The statute must be read as a whole and construction should be
put on all parts of the statute every clause of the statute should
be construed with reference to the context and other clauses of
the Act.
XI. In Accordance With Policy Of Statute:
The interpretation of a statute be in accordance with the policy
and object of the statute in question.
XII. Plain Construction:
If the language of the statute is clear, it must be enforced
although the result may seem harsh or unfair or inconvenient
XIII. Rule Of Ejusdem Generis: Where a law lists specific
classes of persons or things and then refers to them in general,
the general statements only apply to the same kind of persons or
things specifically listed.
XV. No Retrospective Effect:
The general rule of interpretation is that no law is to have
retrospective effect i. e., not deal with the past events, unless a
specific intention to that effect is given in the statute itself.
XVI. Rules Of Presumptions:
While interpreting a statute, certain presumptions have to be
taken into consideration by the Courts.
(i) Legislation is not mistaken:
It is always to be presumed that the legislature does not make
mistakes, and if it does make a mistake, it is not for a Court to
correct the same.
(ii) Legislation knows the practices:
Another presumption is that legislation knows the practice.
(iii) Legislation not intends inconvenience:
Another presumption is that the legislation does not intend what
is inconvenient or unreasonable.
(iv) Legislation not intends alteration in existing law:
Another presumption is that the legislation does not intend any
alteration in the existing law except what is expressly declares.
A statute should not be interpreted as affecting a fundamental
alteration in the general law unless it uses words which point to
that conclusion.
(v) Legislation not interfere with vested rights.
It is a proper rule of construction not to interpret an Act of
Parliament as interfering with or injuring persons rights without
compensation.
(vi) Statute not violate International law:
Another presumption is that statutes do not violate the Principles
of International law. The judges may not pronounce an Act
without authority that is against International Law.
XVII. Technicalities To Be Deprecated :
The Courts must look at the substance and not the form and
technicalities must be deprecated.
XVIII. In Favour Of Accused:
All penal statutes must be construed in favour of the accused.
4. Conclusion:
To conclude, I can say, that it is the duty of the legislation to
enact and make laws and it is the duty of the Courts to interpret
it and apply it, according to certain well-known rules of
interpretation. Where once certain words in an Act of Parliament
have received a judicial construction in one of the superior
Courts, it uses in the same meaning unless the legislation alter it
in the subsequent statute.
This function has to be performed by the judiciary for the
purpose of applying the provision of the Statute to a case before
it, as otherwise justice cannot be done justly or fairly and the
litigants as consumers of law are bound to suffer. Statutes are
therefore to be construed according to the intention of the
legislature which made it. The duty of the court is “to act upon
the true intention of the legislature”.
Lecture no#12
Topic: Possession : Meaning, Definition and Kinds of
possession
Semester V
University of Lahore
According to Salmond, in the whole range of legal theory,
there is no conception more difficult than that of
Possession. Possession is the most basic relation between man
and a thing. Possession is an evidence of ownership.
1) Meaning:
"Possession" means physical control over a thing or an
object. It expresses the closest relation of fact that can exist
between a thing and the person, who possess it. In law,
possession includes not only physical control over a thing but
also an intention to exercise that physical control.
Example: A has an article in his hand. In other words, he is in
possession of that article. The person who is in possession is
called a 'Possessor'. In human life, consumption of material
things is very essential and it would be Impossible without the
possession of the material things. Therefore, the concept of
possession is of utmost practical importance in human life.

2) Definition:
It is very difficult to define the term Possession. Some Jurists
have given different definitions.

John Salmond:
 Salmond defines Possession as, "possession is the
continuing exercise of a claim to the Exclusive use of an object."
Savigny:
Savigny defines Possession as, "intention coupled
with physical power to exclude others from the use of material
object.
O.W. Holmes:
Holmes defines Possession as, "To gain Possession a
man must stand in a certain physical relation to the object and to
the rest of the world, and must have certain intent."
Maine:
Maine defines the possession as, "physical detention
coupled with the intention to hold the things detained as one's
own.
Sir Frederick Pollock:

Sir Frederick Pollock defines Possession as, "In

common speech a man is said to possess to be in possession of
anything of which he has the apparent control from the use of
which he has apparent power for excluding others."
Jhering:
The best among them is the definition given by
Jhering. According to him, "whenever a person looked like an
owner in relation to a thing, he had possession of it unless
Possession was denied to him by rules of law based on practical
convenience."

3) Elements of Possession
 From the above definition we could see in that possession
has two essentials -

1) Actual power over the object possessed.

2) Intention of the possessor to exclude any interference from
others.
According to John Salmond, both corpus and animus must
be present to constitute Possession. Ownership is a legal concept
whereas Possession is factual as well as legal concept.
The term CORPUS and the term ANIMUS, both the terms
borrowed from the Roman Law.

3) Modes of acquiring possession:

There are two modes of acquiring possession:
i) Delivery and ii) Possession.
i) Delivery: Delivery completes through a voluntary act from
one person to another. The transferor gives actual possession to
the transferee. It is usually a lawful mode of possession. In
actual delivery the thing is physically delivered.
ii) Taking: Taking implies an Act exclusively on the part of the
person who physically takes the Possession. Sometimes it is said
to be unilateral act. Transferee acquires the possession without
the knowledge or consent of the former Possessor of the thing. It
may or may not be lawful. If it is lawful then it is legal
possession.
4) Kinds of possession:
Following are the important types of possession:
1. Corporeal Possession
Objects which have physical or materialistic proof, and which
our senses can perceive are corporeal possession. Thus, it is the
persistent exercise of a claim on the use of material or tangible
objects. For Example, House, car, cycle, pen, etc.
2. Incorporeal Possession
Objects which don’t have any physical or materialistic proof,
and which our senses cannot perceive are incorporeal objects.
Thus, it is the persistent exercise of a claim on the use of
immaterial or intangible objects. For example,
Trademark, copyright, etc.
3. Mediate Possession
Mediate possession of an object is the possession of a thing
through a mediator (middleman) like an agent, friend or servant.
It is also called indirect possession. For example: If a landlord
let his house to a tenant. The tenant is bound to hand over the
house to the landlord whenever he decides. So, the landlord has
the mediate possession of the house through the tenant.
4. Immediate Possession
When the possessor himself possesses the property or thing, we
call it immediate possession or direct possession. For
example: when I buy a pen from a shop and keep it for
myself. The pen is in the immediate possession of mine.
5. Constructive Possession
Constructive Possession is the authority over an object without
having actual possession or charge of that material. In other
words, we can say that constructive possession is not actually a
possession but it is a possession in law and not possession in
fact. For example, The delivery of my key by my car
driver. Here my driver was the constructive possessor of my car
until he delivers me the key.
6. Adverse Possession
Adverse possession is a legal doctrine that allows a person to
claim a property right in land owned by another. The statutory
period for adverse possession may be as short as three years or
as long as twenty years.
For example, Continuous use of private land or agricultural
field of an unused piece of land.
7. De facto Possession
De facto possession means the possession which exists in reality
even though they are not officially recognized by laws.
An example of something de facto is a rule that people always
follow even though it is not an official procedure, a defacto
procedure.
For example, A common law spouse can be considered as a de
facto wife or de facto husband though they don’t have a legal
proof, yet they live like a married couple.
8. De Jure Possession
De jure is a Latin word meaning “in law”; lawful, legitimate or a
matter of law. De jure possession is legally recognized
possession regardless of whether it exists in reality or not. Legal
possession may exist with or without property in possession. It
is also known as juridical possession meaning possession in the
eyes of law. (Or a possession which gives the transferee a right
over the thing which the transferee may set up even against the
owner.)
For example, an owner of the house could cease a man to live
in a house. It is a case of De jure possession.
5) Possessory Remedies:
Possessory Remedies are those which exist for the protection of
Possession even against ownership. In many legal systems,
possession is temporary. Even the true owner, who retakes his
own, must first restore possession to the wrongdoer and then
proceed to secure a possession on the ground of his ownership.
6) Relevant case law:

a) Elves v. Brigg Gas Co. 1886 Chancery Division.

Fact:
In this case the plaintiff was the owner of the land. He
gave his land to defendant Company on lease for the purpose of
excavation and erection of gas works thereon. During the course
of excavation one of the man of the defendants Company found
a pre-historic boat buried 6 feet below the surface.
Issue:
Issue before the Court was whether the boat belonged to
the landlord or lessee.
Held:
It was observed that the landlord was entitled to the boat against
the Company though it was discovered by the Company. It was
observed that it was immaterial that the landlord was not aware
of the existence of the boat. He was in possession of the ground
not merely of the surface. Hence everything that lay beneath the
surface down to the center of the earth consequently in
possession of the landlord.
b) South Staffordshire Waterworks Co. V. Sharman, 1896.

Fact:
In the instant case Plaintiff Company appointed
defendant servant to clean out a pond upon their land and in
doing so he found certain gold ring at the bottom of it. Dispute
arose between plaintiff Company and the defendant servant as to
the possession of the gold ring.
Issue:
To whom the Gold ring belong?
Held:
The plaintiff Company was in first possession of the gold
ring and is not the defendant, who acquired no title to them. It
was observed that the possession of land carries with it in
general possession of everything which is attached to or under
the land.
7) Conclusion:
Possession is the most basic relation between man and a
thing. Possession is a proof or an evidence of ownership there is
no fixed or precise definition of possession because it is legal as
well factual concept. Law provides remedies to person having
possession.
Lecture no # 7
Topic: Primary and secondary functions of
courts of law
Semester VI
University of Lahore

1. Introduction:
Courts are important because they help to protect our
constitutional rights to equal protection and due process
under the law.
Both criminal and civil courts provide the opportunity for
the parties to have their cases heard by neutral judges
and/or juries. This process ensures that all cases are
decided in a fair and logical manner.
Courts provide a forum to resolve disputes and to test and
enforce laws in a fair and rational manner.
Courts are an impartial forum, and judges are free to
apply the law without regard to the states wishes or the
weight of public opinion but in line with human rights.
Court decisions are based on what the law says and what
the evidence proves; there is no place in the courts for
suspicion, bias or favoritism.
Courts exist to do justice, to guarantee liberty, to enhance
social order, to resolve disputes, to maintain the rule of
law, to provide for equal protection to all regardless of
background and to ensure the due process of law.
In sphere of law, Court of law has to perform two-fold
functions primary and secondary. The primary function of
a Court of law is the administration of justice. It has to
enforce rights and punish wrongs. But in addition to this,
other functions are also performed by Court of law, which
are known as secondary functions.
2. Function of Courts of Law:
The functions of Court of law may be classified into two
categories.
I. Primary Functions
II. Secondary Functions
3. Primary Functions:
The primary function of Court of law is the administration
of Justice.
I. Meaning of Administration of Justice:
(i) According to prof. Salmond:
“The administration of justice implies (suggests) the
maintenance of right within a political community by
means of the physical force of the state.”
(ii) According to George Washington:
“Administration of justice is the firmest pillar of Govt.
Law exists to bind together the community. It is sovereign
and cannot be violated with impunity (exemption from
punishment).
II. Classification of Administration of Justice:
Administration of justice is divided into two parts.
(i) Administration of Civil Justice:
Administration of Civil Justice is dealt with civil
proceedings. The object of civil justice is to enforce
rights.
Kinds of rights:
There are two rights connected with the civil justice
(a) Primary
(b) Secondary
(a) Primary Rights:
Primary rights are those rights which exist as such. It
arises out of a conduct. All fundamental rights are
primary rights. A primary right may be enforced by
specific enforcement.
Illustration:
If ‘A’ enters into a contract, his right to have the contract
performed is primary right.
(b) Sanctioning or Secondary Rights:
Sanctioning rights are those rights, which come into being
after the violation of a primary right sanctioning rights are
The right to be compensated by damages by the wrong-
doer.
The right to exact the imposition of pecuniary penalty on
the wrong-doer by penal action
Illustration:
‘A’ enters into a contract, his right to have the contract
performed is primary right. If contract is broken, his right
to damages for the loss caused to him for the breach of
contract is sanctioning right.
(ii) Administration of Criminal Justice:
Administration of criminal justice is dealt with in criminal
proceedings. The object of criminal justice is to punish
the wrong-doer. From very ancient time, a number of
theories have been given concerning the purpose of
punishment, which may be broadly divided into two
classes. The view of one class is that the end of criminal
justice is to protect and add to the welfare of the state and
society. The view of other class is that the purpose of
punishment is retribution.
(I) Kinds of Punishment
(a) Capital Punishment– This is one of the oldest form
of punishments. It is given for certain crimes. It is death
penalty.
(b) Deportation or Transportation– This is also a very
old form of punishment. It was practiced in Subcontinent
during the British Rule. The criminal is put in a different
society. Critics of this punishment believe that the person
will still cause trouble in the society where he is being
deported.
(c) Corporal Punishment– Corporal punishment is a
form of physical punishment that involves the deliberate
infliction of pain on the wrongdoer. Critics say that it is
highly inhuman and ineffective.
(d) Imprisonment– This type of punishment serves the
purpose of three theories, Deterrent, Preventive and
Reformative.
(i) Under Deterrent Theory, it helps in setting an
example.
(j) It disables the offender from moving outside, thus
serving the purpose of Preventive Theory.
(k) If the government wishes to reform the prisoner, it
can do so while the person is serving his imprisonment,
thus serving the purpose of Reformative Theory.
1. Solitary Confinement– Solitary confinement is a
form of imprisonment in which a prisoner is isolated from
any human contact. It is an aggravated form of
punishment. It is said that it fully exploits and destroys
the sociable nature of men. Critics say that it is inhuman
too.
2. Indeterminate Sentence– In such a sentence, the
accused is not sentenced for any fixed period. The period
is left indeterminate while awarding and when the
accused shows improvement, the sentence may be
terminated. It is also reformative in nature.
4. Secondary Functions:
Courts are primarily established to perform the essential
or primary functions, but once they established, they have
also to perform secondary functions. These are
miscellaneous (different) and indeterminate (not exactly
defined) in character and number and tend to increase
with the advancing complexity of modern civilization.
They fall chiefly into four groups.
I. Actions against the State:
If a subject claims a debt or any other right against the
State, or raises an action for breach of a contract against
the State, he can file a petition of right in a court of law.
The court will investigate the claim and pronounce
judgment in accordance with law. So, courts of law can
exercise adjudication, upon claims made by citizens
against the state itself. In England the crown Proceedings
Act, 1947 provides that where a person has a claim
against the crown, that claim can be enforced. In Pakistan
claims may be put up against the state through the process
of writ petitions, by virtue of Article 199 of the
constitution of Pak 1973.
II. Declaration of Rights:
Another function of the Courts is the declaration of the
rights of individuals. This is done where the rights of the
parties are uncertain. A litigant may claim the assistance
of a Court of law not because his rights have been
violated, but because they are uncertain.
Examples:
Examples of declaratory proceedings are the declaration
of legitimacy and authoritative interpretation of wills.
III. Administrations:
In certain cases, Courts of justice undertake the
management and distribution of the property of a
deceased person and also of minors whose property is put
under the Court of wards. Other examples are the
administration of a trust, liquidation (winding up) of a
company by the Court etc.
IV. Titles of Right:
In certain cases, judicial decrees are employed as the
means of creating, extinguishing and transferring rights.
Example of such functions are decree of divorce,
appointment or removal of trustees etc. in such cases, the
judgments of the Courts operate not as the remedy of a
wrong but as a title of right.
5. Conclusion:
To conclude, I can say that as the Lord Bryce writes
“There is no better test of the test of the excellence of a
Government then the efficiency of its judicial system “and
judicial system is run through the Courts of law. They
have to perform primary and secondary functions, but the
object of both these functions is the welfare of the citizen.
Moreover, the secondary functions of courts of law are of
civil as opposed to criminal nature.
Lecture no#9ws
Topic: Ownership and its kinds
Semester VI
University of Lahore

INTRODUCTION
Ownership is a basic and fundamental jurisprudential concept. As a
concept of jurisprudence, it has various views to various people.
Ownership has a special place both in legal and social interests of our
society. Ownership appears in our legal system when we look at the
claims, privileges, powers and immunities with regard to the things we
own. For example, the one who owns a house has the claims, powers,
privileges over it. Ownership is not an abstract concept only found in our
books but it is seen in our day-to-day activities.
Jurists have defined ownership in different ways. All of them accept the
right of ownership as the complete or supreme right that can be exercised
over anything.
Thus, according to Hibbert ownership includes four kinds of rights within
itself.
 Right to use a thing
 Right to exclude others from using the thing
 Disposing of the thing
 Right to destroy it.
Austin while defining ownership has focused on the three main attributes
of ownership:
  Possession
 Enjoyment
 Disposition
Salmond’s Definition:
For Salmond what constitute ownership is a bundle of rights which resides
in an individual. Salmond’s definition thus points out two attributes of
ownership:
1. Ownership is a relation between a person and right that is vested
in him
2. Ownership is incorporeal body or form.
Ownership is defined by the Black’s law dictionary as the collection of
rights allowing one to use and enjoy property.
So, we can say: Ownership refers to the legal right of an individual, group,
corporation or government to the possession of a thing.
The subject of ownership is of two types material and immaterial things.
Material ownership is that which is tangible like property, land, car,
book, etc. Immaterial ownership is that which is intangible like
copyright, trademark, etc.
Concept of ownership:
 Ownership may either be absolute or restricted, that is, it may be
exclusive or limited. Ownership can be limited by agreements or by
operation of law.
 An owner is not allowed to use his land or property in a manner that
it is injurious to others. His right of ownership is restricted.
 The owner has a right to possess the thing that he owns. It is
immaterial whether he has actual possession of it or not. The most
common example of this is that an owner leasing his house to a
tenant.
  Law does not confer ownership on an unborn child or an insane
person because they are incapable of conceiving the nature and
consequences of their acts.
 The right to ownership does not end with the death of the owner;
instead, it is transferred to his heirs.
 Restrictions may also be imposed by law on the owner’s right of
disposal of the thing owned.

Kinds of Ownership

Ownership could be classified as follows:

1.Corporeal ownership:

Corporeal ownership is that ownership of material objects. Material

objects are those which can be perceived and felt by the senses and which
are tangible. Tangible assets are physical; they include cash, vehicles,
equipment, buildings and investments.

Example: Ownership of Land, goods, house, a table or a machine etc.

2. Incorporeal ownership:

Incorporeal ownership is that which is intangible in nature.

Intangible assets do not exist in physical form. Incorporeal ownership is
the ownership of a right. Incorporeal ownership includes ownership over
intellectual objects.

Example: Copyright, reputation and etc.

3. Sole ownership:

When a property is owned by only one legal owner it is called sole

ownership.
Example: A person owns a car.

4. Co-ownership:

When a property is owned by two or more legal owners it is called co-

ownership or joint ownership.

Example: Partnership of business between three partners.

5. Legal ownership:

It is the legal claim or title to an asset or property. Therefore, a person

who has legal ownership on a property can transfer its ownership to
another party.

Example: When a debt is verbally assigned by X to Y, X remains the

legal owner of it but Y becomes its equitable owner. There is only one
debt as before though it has now two owners.

6. Equitable ownership:

We do not consider equitable ownership as true ownership because it is

only the benefit of the property that the buyer will use and enjoy.
Example: If MR. X is the legal owner of a property and MR.Y is the
equitable owner. Then MR.X is not entitled to the use and enjoyment of
the property whereas, MR.Y doesn’t own the property but has the right to
use and enjoy it, something which MR.X cannot do.

7. Trust and beneficial ownership:

Trust ownership is an instance of duplicate ownership. Trust property is

that which is owned by two persons at the same time. The relation
between the two owners is such that one of them is under an obligation
to use his ownership for the benefit of the other. The ownership is called
beneficial ownership. The ownership of a trustee is nominal and not real,
but in the eye of law the trustee represents his beneficiary. The former is
called the trustee and his ownership is trust ownership. The latter is
called the beneficiary and his ownership is called beneficial ownership.

Example:

If a property is given to X on trust for Y, X would be the trustee and Y

would be the beneficiary. X would be the legal owner of the property
and Y would be the beneficial owner. X is under an obligation to use the
property only for the benefit of Y.

8. Vested and Contingent Ownership:

Ownership is either vested or contingent. It is vested ownership when
the title of the owner is already perfect. According to law vested
ownership has the complete and full ownership on the property. It is
contingent ownership when the title of the owner is yet imperfect but is
capable of becoming perfect on the fulfillment of some condition. In the
case of vested ownership, ownership is absolute. In the case of
contingent ownership, it is conditional.

Example: Two people sharing ownership of a property. If one dies the

other gets the gain of vested ownership of the property.

9. Absolute and Limited Ownership

An absolute owner is the one in whom are vested all the rights over a
thing to the exclusion of all. When all the rights of ownership, i.e.
possession, enjoyment and disposal are vested in a person without any
restriction, the ownership is absolute. But when there are restrictions as to
user, duration or disposal, the ownership will be called a limited
ownership.

For example, Prior to the enactment of the Hindu Succession Act, 1956, a
woman had only a limited ownership over the estate because she held the
property only for her life and after her death; the property passed on to the
last heir or last holder of the property. Another example of limited
ownership in English law is life tenancy when an estate is held only for
life.

10. Common ownership and Joint Ownership

Co-ownership is of two kinds. It may be owned in common or joint

ownership. In case of common ownership, the owners’ share in the
property can be inherited by their respective heirs whereas in case of joint
ownership, in case of death of any one of the owners, his or her share is
transferred to the other owner. This is the fundamental point of difference
between the two.

CONCLUSION:
We may in conclusion say that:
1. Ownership is a right which comprise of powers, claims, privileges etc.
2. Ownership is in respect of a thing may be corporeal or incorporeal.
3. The right relating to or connection with ownership can be limited or
restricted by law.