Whether Ex-post facto sanction/retrospective ratification can be granted for legal and illegal actions
De Smith states that an authority cannot generally ratify a decision encroaching on individual rights but recognizes
that some of the cases reveal difficult marginal problems of interpretation. Retrospective ratification and ex post facto
sanction can indeed be extended to lawful acts, however, when the act itself has been undertaken by bypassing a
statutory requirement, the question turns on whether the said statutory requirement was ‘mandatory’ or ‘directory’.
When a statute provides a certain manner of exercising power or states a method of doing things in a particular way,
then it is presumed that the act must be done in that manner only or not at all. If the act falls outside the purview of
the Statute, then under the concept of enumerated powers, the act would be void ab initio and as such the question
of ex-post facto sanction does not arise. (Ref: Superstructure built on a void base has to fall.)
Wade suggests that the courts will not permit ratification generally in matters of substance but denies that there is any
rigid rule.
1 Halsbury's Laws of England (4th ed) para 31: An act which is wrongful only because of lack of authority may be
justified by ratification. On the contrary it would appear however that an invalid act of the delegate encroaching on
individual rights cannot be validated with retrospective effect by ratification. The case of Co-operative Retail Services
Ltd. v Taff-Ely Borough Council [1979] JPL 466 highlights the above. The Council could not ratify the purported grant
of planning permission by a district clerk since an ultra-vires act could not be ratified; quaere whether in any case
council had power to grant planning permission.
As a general rule the law does not allow ratification or ex post facto sanction of an unauthorised governmental act.
Similarly an authority cannot ratify the act of a person to whom it could not have validly delegated its power. Any
principle of agency must give way to that of delegatus non potest delegare. This would then turn on whether the
authority sanctioned acts in furtherance of being vested with the power to do so. Actual delegation of power is
required for ex post facto sanction to be sought. If the authority acted ultra-vires the powers granted to his office from
the outset, or acted in a manner inconsistent with the procedures provided in the governing Act, then ex post facto
sanction cannot be sought. The cases below highlight the principles relating to ex-post facto sanction and
retrospective ratification as applied by the Courts of Pakistan, the United Kingdom and South Africa. Furthermore
case law regarding the validity of acts, vires of the parent statute, has been provided below for reference.
2000 C L C 925 [Karachi] MUHAMMAD USMAN versus K.B.C.A
The Plaintiff while constructing his building deviated from the approved site plan. An injunction was sought against
the Authority for not interfering in such construction by the plaintiff. The contention raised by the plaintiff was that
such deviations were compoundable at the cost of certain penalty. Where deviations were of such a nature which the
Authority could have approved as a part of the original plan under the Regulations, regularisation in such matter was
ex post facto condonation. One could not deviate from the approved plan deliberately with a view to get the same
regularised afterwards on payment of penalty. Where the plaintiffs had made deviations from the approved plan, they
were not entitled to the assistance of the Court in shape of equitable relief of injunction to continue such deviations
2001 C L C 2019 [Lahore] INTEGRATED TECHNOLOGIES & SYSTEMS LTD versus INTERCONNECT
PAKISTAN (PVT.) LIMITED through Acting Chief Executive
Non-compliance of the provisions of S.21, Companies Ordinance, 1984 by the company cannot be justified on the
basis of any rules, which do not have the sanction of law. The question of ex-post facto sanction was addressed with
regard to just the statutory annual general meeting of the company. It was held that Ex post facto approval cannot be
accorded to an annual general meeting held by a company after the expiry of the statutory period for holding of such
meeting. Such approval substantiates the ground in support of petition under S.305 of the Ordinance that the
company had failed to hold two consecutive annual general meetings.
P L D 2002 Karachi 464 Syed MURAD ALI SHAH versus GOVERNMENT OF SINDH through Home Secretary
and 7 others
This case concerned offences of corruption by public servants. The question considered was the lodging of F.I.Rs. in
local Police Stations against petitioners/civil servants for having committed acts of corruption and misconduct etc. It
was found that only Anti-Corruption Establishment of Sindh Government had jurisdiction in terms of S.3 of Sindh
Enquiries and Anti-Corruption Act, 1991, to inquire into any allegation of corruption against a civil servant and then
initiate proceedings for his prosecution. F.I.Rs. in question were suffering from basic legal defects: they were without
jurisdiction as Anti-Corruption Police Stations were available at Karachi; that no prior permission had been accorded
by Competent Authority for their prosecution in terms of R.11(2) of the Rules; and that no exercise in terms of S.3 of
Sindh Enquiries and Anti-Corruption Act, 1991 had been carried out. In such an instance, Ex post facto approval of
Government/Anti-Corruption Committee for investigation of said F.I.Rs, would not help the prosecution as according
to R.11(2) of the Rules, prior permission was necessary. The High Court quashed all such F.I.Rs being registered
without jurisdiction.
2005 C L D 1208 [Karachi] Messrs RAZO (PVT.) LIMITED versus DIRECTOR, KARACHI CITY REGION
EMPLOYEES OLD AGE BENEFIT INSTITUTION and others
It was held that the Board of Directors of a company could confer authority/power on a Director or officer or Secretary
of a private limited company in pursuance of a resolution of the Board of Directors in a meeting duly convened with
prospective effect. However such power/authority could not be conferred retrospectively nor is there any provision in
law which could enable the Board of Directors to confer such authority/power retrospectively and also to ratify the
acts, wrongfully and/or illegally done, by Director/Principal Officer/Secretary of a private limited company. Ratification
essentially presupposed the existence of a relationship of principal and agent and no such relationship existed
between the petitioner Company and its Director. (Action of ratification of Board of Directors in ratifying the acts of its
Director) ratification by the Board of Director with respect to the actions of its Director in filing Constitutional petition
without authority/power, would have no basis unless it could be established that Director had been empowered or
authorized by Articles of Association of Company to ratify illegal or unauthorized act of Director, Secretary or Principal
Officer. Illegal/ unauthorized act of Director of petitioner-Company in filing/instituting petition without authority or
power, could not be ratified or clothed with legality by a subsequent Resolution by the Board of Directors conferring
on him the authority to file/institute, defend, compound or abandon the legal proceedings.
2009 CLD 1687 [Karachi] Muhammad Suleman Kanjiani vs Dadex Eternit Ltd
Sec 196 (2) (j) of The Companies Ordinance, 1984 requires a resolution of the Board of Directors for incurring
expenditures. Getting ex post facto sanction of the Board of Directors for the capital expenditure already incurred at
the instance of the Chief Executive Officer of the company, not only appeared to be against the intent of law, but also
amounted to ‘One Man Rule’ depriving the company of the expertise of the Directors on board.
English and South African Case Law:
The concept of ex post facto sanction can be seen in English case law from the early 1800’s. The best reconciliation
of the cases discussed is that they reject a common law power of ratification but recognise that such a power can be
conferred by statute or valid delegated legislation.
St Leonard Vestry v Holmes [1885] 50 IP 132.
Day J appears to have rejected any possible argument based on ratification “It is important that the vestry should
exercise a discretion in each case, and it is not enough that the inspector does what he pleases, and then relies on
his acts being afterwards approved by the vestry.” The Court clearly held that the act of the sub-committee was not
the act of the vestry itself because there had been no effective delegation to the sub-committee. (Hence it can be
argued that since there had been no effective delegation to the VC, his actions, which were in violation of statutory
procedure, cannot be ratified)
Barnard v National Dock Labour Board [1953] 2 QB 18.
A port manager purported to suspend the plaintiff dock workers. The power of suspension was vested in the local
dock labour board. The Court of Appeal held that the board could not delegate its power to suspend to the port
manager. The board had also contended that it could ratify the manager's decision. Denning LJ dismissed that
contention on the ground that ratification could have no greater force than a prior delegation and that since there was
no power to delegate there was no power to ratify.
Bowyer, Philpott & Payne Ltd v Mather. [1919] 1 KB 419
A local authority had statutory locus-standi to sue for a penalty for breach of the Public Health Act, 1875 and was
expressly empowered to authorise an officer or member to institute proceedings. Mather, the authority's inspector of
nuisances instituted proceedings on 17 May 1918 against the company in respect of a pig's carcass. A committee of
the local authority met on 22 May and purported to approve the inspector's action. At the hearing of the information
the company argued that the inspector had no authority to institute proceedings and that the meeting of the
committee on 22 May did not cure the defect. The inspector argued that the institution of proceedings took place in
effect when the committee made its decision. The Justices held that even if the inspector had no authority initially to
institute proceedings the subsequent approval cured any defect. They ordered the company to pay the penalty.
On appeal the Divisional Court quashed the conviction. The Court held that the validity of the institution of
proceedings had to be judged by what happened on 17 May not 22 May. This finding thus raised squarely the
question of ratification ie retrospective validation. The Court unanimously held that the power to authorise was·
limited to cases where the officer was authorised before the proceedings were instituted. The competent principal in
the shape of the local authority at the time, the inspector, took his action. The principal was legally capable not only of
bringing the proceedings but of authorizing the inspector to do so. In other words there was an express power of
delegation.
Firth v Staines [1897] 2 QB 70.
A vestry had statutory power to delegate discretionary powers to a committee subject to the condition that the acts of
such a committee be submitted to the vestry for approval. On 15 October a committee given delegated powers,
authorised the vestry's sanitary inspector to serve notice on an owner of premises requiring him to abate a nuisance
and in default to take proceedings. On 19 October the inspector served the notice requiring the owner to provide
proper ventilation for his drains. The owner neglected to do so and on 3 November the inspector took out summons
against the owner. On the same day, after the summons had been issued the vestry approved the committee's
resolution and the proceedings which resulted. At the hearing, the magistrate held that as the committee's resolution
had not been approved before the notice was served the notice was invalid.The prosecutor appealed to the Divisional
Court which held that the Wright J’s judgment appears to support a much wider view of ratification. His Lordship held
that the case was to be decided according to the ordinary principles of ratification which required the satisfaction of
three conditions: that the agent purported to act for the principal; that at the time the act was done there was a
competent principal; and thirdly, that at the time of ratification the principal was legally capable of doing the act
himself
Secretary of State in Council of India v Kamachee Boye Sahaba, (1859) 13 Moo PC 22; 15 ER 9.
A seizure by the East India Company of a rajah's property was ratified by the Crown with the result that the rajah's
widow was unable to recover the property. The ratification was held to be a good basis for a plea of Act of State.
Buron v Denman (1848) 2 Ex 167; 154 ER 450.
Dliberated certain slaves, the lawful property of B, an alien slave trader. D's action was ratified by ministers of the
Crown. B sued D for trespass in respect of the slaves and D pleaded Act of State. The charge to the jury was given
by Parke B· who indicated that his brother judges Alderson, Rolfe and Platt BB had no doubt that the ratification was
as effective as a prior command and supported the plea of Act of State. Parke B himself concurred in this view but
expressed doubts about it. He conceded that the law recognised the principle of ratification in relation to actions
between individuals but thought that where the Crown was involved different considerations should apply.
If an individual ratified a trespass the nature of the act remained unchanged, the party injured could sue both agent
and principal; if on the other hand the Crown ratified a trespass, the plaintiff was deprived of his right to sue the agent
and was left with an inferior moral right to proceed against the Crown. The example which supported his reasoning
was as follows: In the case of a tenant from year to year, who has, by law, a right to a half-year's notice to quit, if
such notice be given by an agent, without the authority of the landlord, the tenant is not bound by it.
Lupacchini NO & another v Minister of Safety and Security 2010 (6) SA 457 (SCA).
Action had been instituted by trustees of a trust, but one of them was authorised by the Master to act as a trustee
only after the action was instituted. Section 6(1) reads as follows: ‘Any person whose appointment as trustee in terms
of a trust instrument, section 7 or a court order comes into force after the commencement of this Act, shall act in that
capacity only if authorized thereto in writing by the Master’.
It was not in issue that institution of the action in these circumstances was in contravention of s 6(1). In deciding that
the proceedings instituted by a trustee without authorisation was a nullity, Nugent JA analysed a number of decisions
and came to the conclusion that ‘. . . [there are] no indications that legal proceedings commenced by unauthorised
trustees were intended to be valid. On the contrary, the indications seem . . . to point the other way’.
An important consideration in reaching that conclusion, said Nugent JA, is the fact that there is no criminal sanction
stipulated in respect of a trustee who acts without authorisation, leading to the inescapable inference that the
legislature intended such acts to be a nullity, ‘because otherwise a contravention of the prohibition would have no
consequences at all’.
Waisbrod v Potgieter & others 1953 (4) SA 502 (W) at 507H.
Held that if a liquidator litigates without the prescribed authority, the court may refuse to allow him his costs out of the
company’s assets and he may have to pay such costs himself. Retrospective sanction of unauthorised litigation is
available to the liquidator in appropriate instances, either from the creditors or members under s 386(3) Company’s
Act.
Neugarten & others v Standard Bank of South Africa Ltd 1989 (1) SA 797 (A).
The absence of consent by all the members of a company for security furnished by that company for an obligation of
another company controlled by one or more of the directors of the first-mentioned company, in contravention of s
226(2)(a) of the Act, was considered and resolved as follows: ‘The transactions set out in ss (1) of s 226 are
prohibited or illegal only in the absence of the consent of all the members. The question in any specific case is
whether such consent has been given: if it has, the transaction is not prohibited or illegal. Consequently, to postulate
that the transaction is prohibited and illegal is to beg the question. If the requisite consent is given to the
transaction in initio, it is a valid transaction. If the transaction is subsequently ratified by the non-consenting members,
the ratification relates back to the original transaction and the position is the same as if consent had originally been
given.’
Smith v KwaNonqubela Town Council 1999 (4) SA 947 (SCA).
The next attack upon the purported ratification was along these lines; it was not authorised by law; an unauthorised
act is invalid; an invalid act cannot be ratified. The launching of legal proceedings is not an administrative act but a
procedural one open to any member of the public. Watson apparently believed on insubstantial grounds that he had
the necessary authority to act on behalf of the town council. He was wrong. His expressed intention was to act on
behalf of the town council and not on his own behalf. It is a general rule of the law of agency that such an act of an
“unauthorised agent” can be ratified with retrospective effect..’.
The cases below highlight the principle that where any statute provides a procedure for doing a thing in a
particular manner that thing should be done in that particular manner and in no other manner. This
proposition, thought not directly related, has some merit. However, reference is made to PLD 2004 SC 261
where the Court found that a statutory instrument should not be treated as invalid because of a failure on the
part of public functionaries to publish it in the official Gazette as required by Statute.
PLD 1971 217 [Lahore] Evacuee Trust Property, West Pakistan v., Muhammad Din
No maxim of law is of more general and uniform application than expressio unius est exclusio alterius, or which is
shortly put expressio unius alterius exclusia a maxim meaning express mention of one thing implies the exclusion of
another. It is never more applicable than in the construction and interpretation of statutes (Broom Leg.
Max). Whenever a statute limits a thing to be done in a particular form, it necessarily includes in itself a negative, viz.,
that the thing shall not be done otherwise. The expression of a condition excludes the doing of the act authorised,
under other circumstances than those so defined. It is, indeed, a principle of logic and of common sense, and not
merely a technical rule of construction.
1992 SCMR 46 Hakim Ali v. Muhammad Saleem and others
When law required the doing of a thing in a particular manner then it could be done in that manner only and no
other manner of doing such an act could be resorted to.
1998 C L C 435 [Lahore] Jalil Ahmad vs Public Service Commission
In this case the provision of law under consideration was couched in negative language and was found to be clearly
absolute and mandatory. It is also a settled principle of interpretation of statutes that where the words employed in
the statute are clear, the said words best declare the true intention of the Legislature.
2007 CLC 315 [Karachi] Muhammad Hanif through Attorney and others versus Karachi Building Control
Authority through chief executive and another
In order to determine whether a particular provision in the statute was mandatory or directory, The Court found that
each statute had its own complexion, which could be determined by examining the intent, purpose and object for
which it was enacted, and the mischief it intended to suppress. Where a statutory provision was couched in a
negative tone, it was generally construed to be mandatory. Enactment could create or recognize a right, impose an
obligation, cast a duty, provide a mechanism, manner and/or consequences to claim, observe and perform the same.
Where "may" was used in a provision, it was generally taken to be an expression of permissive tone and enwrap
certain degree of discretion as against "shall", which expression was generally used where some persuasive force
was intended, it carried some degree of imperative character. Another litmus test was the provision of consequences
in case of breach thereof. In case consequences were provided, provision was generally construed to be mandatory,
otherwise conceived as directory. Where a statute was enforced to check and curb a mischief and advance some
public good then interpretation that suppressed the mischief and advanced the cause and objective of the Statute,
should be adopted. Reference was placed on Muhammad Saleem and 5 others v. Administrator, Karachi
Metropolitan Corporation, K.B.C.A. (K.M.C.), Karachi and 2 others 2000 SCMR 1748.
2012 C L D 1556 [Sindh] United Bank Limited vs Banking Court No II.
It is settled principle of law that where any statute provides a procedure for doing a thing in a particular manner that
thing should be done in that particular manner and in no other manner. In the instant case, the Banking Court ought
to have proceeded to pass judgment and decree forthwith upon dismissal of the application for leave to defend filed
by the respondents 2 and 3 as particularly provided in section 10(11) of the Ordinance. By not doing so, the Banking
Court did not follow the procedure which has been particularly prescribed by the Ordinance.
PLD 2004 Supreme Court 261 Saghir Ahmed through legal heirs vs Province of Punjab through Secretary,
Housing and Physical planning Lahore and others.
The Provincial Government seems to have followed it as a rule of practice not to notify its approval of a Housing
Scheme under section 3 of the Act in the official Gazette, and has treated the same as an internal matter. The
departmental construction of a statute, although not binding on the Court, can be taken into consideration. It depends
on the language employed in a particular statute as to whether the provisions regarding publication of a statutory
instrument or a notification in the Official Gazette are to be treated as mandatory or directory. The legal certainty also
requires that ordinarily a statutory instrument should not be treated as invalid because of a failure on the part of public
functionaries to publish it in the official Gazette. There may be many things done on the basis of such an
instrument. It would seem unfortunate were these things held to be invalid if it were at some stage discovered that
there had been a failure by a public authority to go meticulously by the manner and mode of publication of an
instrument or notification in the Official Gazette.
(by Zoe Richard – Internee)