The Doctrine of Laches: Principles and Application in Pakistan

THE DOCTRINE OF LACHES: THE DOCTRINE OF LACHES: PRINCIPLES AND APPLICATION IN PAKISTAN By Haroon Yazdani Advocate This article analyses the doctrine of laches and rudiments thereof. The doctrine of laches finds its footing in equity, as opposed to common law; therefore, it has developed in a manner distinct to the latter. The doctrine, in essence, deals with the refusal to extend discretionary and/or equitable relief vested in a Court, as prayed for by a claimant, on the ground that such relief, if allowed, shall prejudice the opposite party. This prejudice must be attributable to the lethargy and idleness of the claimant, amounting to a waiver to exercise his rights. With such history, the claimant, therefore, shall be precluded from seeking discretionary or equitable relief, as a right in favour of the opposite party shall have accrued due to the tardiness, coupled with unreasonableness, of the claimant. This is determined by the Court, by using a scale on which the balance of equities is judged upon. The article further examines the principles and guidelines of the defence of laches, and the difference between laches and statutory limitation. The aspect of quantifying time for laches is also touched upon. The application of the doctrine of laches in Pakistan has been restricted to the constitutional jurisdiction of Courts, and the practice is not in complete conformity with the law laid down on the subject. While concluding, the article also poses questions that may need to be addressed as the doctrine develops and its use increases. Introduction Equity permeates the vacuum that law leaves behind in its wake. It treads upon paths untrodden, travels upon territories untraveled, traverses upon regions untraversed; albeit always complementing law in its letter and spirit, following it in instances, but not otherwise.1 Historically, in common law jurisdictions, two parallel court systems existed, i.e. Court(s) of law and Court(s) of equity. The former would decide cases based upon previous decisions of Court(s), while the latter would resolve matters based upon good conscience. The Court(s) of equity could dispense remedies such as injunctions, specific performance, and writs; while the Courts of law could award damages. The doctrine of laches found its way into jurisprudence in order to perpetuate equity, and as a consequence, prevent inequity. This doctrine originated and grew in the Courts of equity; though after the merger of both the court systems into one, the regular courts would exercise jurisdiction and grant combined reliefs, rather than as they would individually. Laches became an instrument for the Courts to measure whether equitable relief was to be granted or not. This was an effort to prevent injustice and prejudice that could be caused to the party against whom such relief was claimed, due to a failure to act and unreasonableness of the claimant. The U.S. Supreme Court in Brown v. County of Buena Vista2, while examining the development of the doctrine, held that the law of laches, similar to the principle of 'limitation of actions', had been dictated by experience, as with the lapse of time, the memories and lives of witnesses diminish, along with the evidence and other means of proof. This rule was held to be necessary for the peace and welfare of the society at large; a deviation therefrom would allow an influx of evils intended to be excluded. Over the course of jurisprudential development, this doctrine has evolved to a great extent, yet leaving room for debate as to the parameters of its application. This article considers firstly, an analysis of the doctrine of laches and its main principles. Secondly, as it is important to make a distinction between this doctrine and statutory limitation, the article thereon discusses the same. Thirdly, the application of this doctrine in Pakistan is explored along with the scenarios where it would or would not apply. Towards the end, the article refers to the issue of quantifying reasonability of 'time' in this doctrine whilst drawing a comparison with statutory limitation. Definition of Laches "Laches, is an old French word for slackness or negligence."3 This equitable doctrine surfaces from the word 'laches' or 'lasches' and this meaning was endorsed in the case of Partridge v Partridge.4 It has been further explained in the succeeding manner: "Negligence, consisting in the omission of something which a party might do, and might reasonably be expected to do, towards the vindication or enforcement of his rights. The word is generally the synonym of 'remissness, "dilatoriness, "unreasonable or unexcused delay,' the opposite of 'vigilance,' and means a want of activity and diligence in making a claim or moving for the enforcement of a right - or for refusing relief, where that is discretionary with the court."5 The doctrine of laches is embosomed within the Latin maxim "vigilantibus, non dormientibus, jura subveniunt"6, defined literally as "the laws assist those who are vigilant, not those who sleep over their rights". To oversimplify for understanding, it can be said that delay defeats equity. In the general sense, laches entails neglect that is unreasonable and for an inexplicable length of time, thereby occasioning disadvantage to the other party.7 The Principles of Laches Lord Camden in Smith v. Clay8, while expressing the premise of laches, succinctly reasoned that the Court will not be active to entertain such claims where a party has delayed asserting a right, acquiesced, and intends to cause inconvenience to the other party by approaching the Court with a stale demand. It was further stated that the Court shall act upon conscience, good faith, and reasonable diligence; and where these are lacking, the Court shall refuse to approve such neglectful conduct. Essentially, laches is an equitable defence, besought by the opposite party, against the demand of the claimant to being entitled to equitable relief by the Court. The defence is rooted in the conduct of the claimant, coupled with tardiness, which prejudices the other party to the extent that it shall be inequitable, and unjust, to grant relief to the claimant at the expense of the other party.9 Subject to the facts and merits of each case respectively, the elements of the equitable defence of laches crystallize into the followin10: i) There should be an inordinate delay by the claimant in approaching the Court praying for discretionary or equitable relief. ii) The said delay must be unconscionable; and that too, to the extent that such delay creates a right, so to speak, in favour of the respondent, and adverse to the claimant. Such a delay amounting to a waiver, or acquiescence, shall preclude the claimant to exercise his claim, and he shall be estopped from doing so in these circumstances. Such a claim favouring the claimant, if acceded to, shall be inequitable. Through its leading judgment in Lindsay Petroleum Co. v. Hurd11, the Privy Council elucidated the functioning of the doctrine of laches. It was laid down that the doctrine does not suffer from arbitrariness, nor is it technical in nature. Rather, it is applicable where it is practically unjust to give a remedy due to the conduct of the party claiming it. This neglectful conduct may either be equivalent to a waiver, or it puts the other party in a place where it would not be reasonable to grant a remedy. The delay and lapse of time are material, and the validity of the defence based upon them must be tried upon equitable principles. The most vital aspects in cases relating to laches were the length of the delay, and the nature of acts or the omissions that took place during that time. It is reiterated that the defence of laches depends heavily on the peculiar facts and circumstances of each case. Therefore, the adjudication with regards to the reasonableness of duration of the time elapsed, conscionability of the delay, the degree of diligence exercised, the degree of change effected subsequently, and the overall balance of equities, rests solely upon the Court itself. While deciding whether to extend discretionary relief or withhold the same, the Court in these situations shall be guided by this precise backdrop and nature of the lis, and apply its judicious mind, coupled with good conscience.12 The doctrine of laches emanates from the conduct of the claimant itself. Hence, where a defence of laches is sought by the respondent, the onus to dispel the prima facie presumption of prejudice caused to the respondent rests on the shoulders of the claimant alone. Where it is established, after due consideration, that the claim suffers from laches, and that it shall be practically unjust to extend an equitable relief, the claim may be dismissed without touching upon, otherwise, the merits of ths case. Care, though, may be exercised in not dismissing a petitioner altogether in a slipshod manner, but instead deciding after hearing and due deliberations, thereby upholding the spirit of equity and justice. The Difference between Laches and Statutory Limitation It is important to discuss both concepts in detail, in order to ascertain the relationship and the distinctions between laches and statutory limitation(s). Firstly, it is to be appreciated that limitation is a creature of the statute, while laches is an equitable doctrine. There are claims for which a specific limitation period is provided under a statute, and there may be some for which no such period is stipulated. In cases where a limitation period has not been prescribed, and the relief being sought is equitable/discretionary in nature, a defence of laches may be sought, but not otherwise. This view is generally accepted but is debatable.13 The concept of statutory limitation therefore, entails a strict scheme with definite time intervals that need to be stringently adhered to. The claimant is stopped by statutory limitation to bring his claim to the Court after the effluxion of time specified, i.e. the claim is time-barred. This is the general outcome. However, this does not include circumstances where there is a reasonable explanation for the delay, including being prevented by a sufficient cause, or any of the other grounds available through the same statute of limitation, in which case the delay may be condoned by the Court. Pitted against the arbitrary time limits of statutory limitation, laches is more of a fact-sensitive and flexible defence. Mere delay would not bar the claimant as it would through statutory limitation; however, this will occur if the delay is paired with action or omission which makes it unconscionable to proceed, and unjust to grant relief. A delay of a single day to that of decades could constitute laches; hence no hard and fast rule exists. Both, though, serve the same purpose of deprecating stale demands and putting a clog on litigation, which would have otherwise been unending. The Supreme Court of Pakistan expounded thoroughly on the distinguishability of statutory limitation with laches in Pakistan Post Office v. Settlement Commissioner and others14. It was authoritatively held that laches and a statutory bar of limitation could not be equated, and absolutely no justification existed for doing the same. It was clarified therein that laches operates as a bar in equity, while statutory limitation operates as a legal bar to the grant of remedy. Thus, for laches, the dictates of equity and justice need to be weighed, whereas for statutory limitation, relaxations may be extended through the operation of the statute itself. It was further held that statutory limitation is, comparatively speaking, a harsher law, as the Court shall not be able to exercise discretion as it could while dealing with laches in equity. Therefore, the aspect of condonation of delay under the statute of limitation15 shall be on different and perhaps harder considerations than those in the case of laches. In the case of statutory limitation, the delay of each day needs to be explained, whereas there is no such strict requirement for laches. The Application of Laches and the Constitutional Jurisdiction of Courts The application of the doctrine in the Pakistani milieu commenced in accordance with common law jurisprudence. The foremost case, reported locally, that dealt with the question of laches and stood out as a guideline was John Objobo Agbeyegbe v. Festus Makene lkomi.16 The said case highlighted the dicta laid down in the Lindsay Petroleum Co.17 case (as has been discussed earlier). Therefrom, the doctrine developed further; yet, as it has developed, the applicability of this doctrine raises questions that need to be adverted to - the same are dilated upon hereinbelow. In practice, the doctrine of laches is seen to come into play when a petitioner approaches a constitutional court - that is, the High Court(s) and/or the Supreme Court of Pakistan in its original constitutional jurisdiction18, under the Constitution of the Islamic Republic of Pakistan 1973 (hereinafter referred to as 'Constitution') - for the grant of extraordinary discretionary relief. In such proceedings, especially before the High Court(s) under Article 199 of the Constitution, the preliminary question that is asked of the petitioner by the Bench is regarding laches. It is pertinent to mention here that this is mostly inquired of in limine.19 To address this, reference firstly must be made to the aforementioned landmark case Pakistan Post Office v. Settlement Commissioner and others20, wherein a three-member Bench of the Supreme Court of Pakistan held: "An occasion to meet the point of laches in writ petition arises when a specific plea is taken by the opposite-party in a written statement. When no such plea is taken or when taken, adequate time and opportunity is not afforded to the writ petitioner to meet it, the High Court would not be justified in dismissing the writ petition on the assumption that no explanation is offered by the counsel arguing the case." The view expounded by the Supreme Court is unequivocal and there may not be any other interpretation. This observation is principally justified from the fact that laches is a ground for defence which is put up by the opposite party. It is the latter against whom a right has accrued by the laches of the petitioner, and only he may raise such a plea, through his pleadings, to his benefit. An inquiry as to laches in limine, in the absence of the opposite party, shall be counter to the tenets of the doctrine itself. Any inference made at this stage regarding laches, with all humility, shall be based on nothing more than mere assumptions, stemming from extraneous circumstances and surmises. It is only the opposite party, acquainted with the precise facts of the case, which can raise such an objection, as a right may have developed in its favour. In these situations, the Court may judge upon the plea so raised as a preliminary issue of law emanating from the specific facts, rather than inquiring suo motu at the outset. The balance of equities needs to be adjudicated upon, which can only be done once the stance of both the parties is laid out before the Court. Even otherwise, the precedent referred to hereinbefore is binding upon the Courts21, and is prevailing law which has not been overruled or invalidated in any manner. The Peshawar High Court, in Muhammad Shafiullah v. Government of Pakistan and others22, while adhering to the aforementioned principle of vertical stare decisis23, adopted the dictum under discussion, and ruled that since the respondents had failed to specifically agitate the question of laches while submitting their written reply, it was too late to press the same at the time of closing arguments. It may also be appropriate to add here that the law of evidence24 places the burden of proving a fact, specifically in the knowledge of a person, upon him. Therefore, the fact of prejudice that may have been caused to a party, due to the laches of the claimant, is to be asserted and established by the same party itself. It would hence be safe to infer that a defence of laches must be raised through pleadings as it is factual in nature; if it has not been done so, such a ground may not be entertained afterwards or in any other manner. It shall be equivalent to going beyond pleadings. Nevertheless, without prejudice to the generality of the foregoing discussion, it is submitted that the Supreme Court, to do complete justice, while exercising its powers under Article 187 of the Constitution, may approach the matter appropriately, all the while exercising caution so as to not trample over it, thereby nullifying the doctrine completely. A full bench of the Supreme Court has held in Jawad Mir Muhammadi and others v. Haroon Mirza25 that a defence of laches does not operate as a bar to constitutional jurisdiction per se. The question of delay must be examined with reference to the facts of each case. Such a question requires serious consideration, and unless there is a plausible and satisfactory justification explaining the delay in filing of the constitution petition, the same cannot be ignored or overlooked, subject to the specific facts of a case. Yet, the plea of laches is only available to a respondent who acts bona fide under the confidence that what he is doing is legal and proper. The plea of laches cannot be raised by a respondent whose own conduct has been on account of manipulation contrary to law.26 Once a defence of laches has been validly raised, in the manner elaborated hereinbefore, there may be two options available to the claimant against the opposite party. Firstly, the claimant may choose to consider getting the laches condoned. With regards to the condonation of laches, no yardstick or hard and fast rule exists to condone the same. This view is fortified by the following observations, inter alia, made in the Pakistan Post Office case27: "In the cases of laches, however, the principles of condonation would be totally different. It being in the field of equity, it will not be denied: where either the negligence is not culpable vis-a-vis the merits of the case; or, when there is no equity in favour of the party who would be the gainer in case the condonation is denied." The Court must be inclined to condone laches if the factors mentioned in the above-quoted dictum are present. It must be taken into consideration that there have been instances where laches of days, and up to years, have been condoned. However, this is based upon the precise facts of each case respectively. No specific formula in the form of a mathematical equation can be created for application, owing to the distinguishable nature of each and every case. In the aforementioned case, the Court has observed that condonation of laches should be on lenient terms as compared to condoning delay under statutory limitation which is stricter. This approach, visibly, is defensive in nature, as it beseeches the magnanimity of the Court to oblige the claimant who is powerless and now at the mercy of another prerogative, which the Court may or may not exercise in his favour, although equity is at the heart of the verdict. In S.A. Jameel v. Secretary to the Government of the Punjab and others28, the Supreme Court echoed the principle that laches has to be examined on equitable principles as the Court exercising its constitutional jurisdiction is discretionary in nature. Such discretion is based upon equity and shall be exercised in favour of the party equity leans towards, instead of the party guilty of culpable negligence, in which case the party shall be non-suited. However, once again this rule is subjective, varying with the facts of each case. Reference may also be made to Member (S&R)/Chief Settlement Commissioner v. Ashfaque Ali29 decided by the Apex Court, propounding similar principles. The second option available would be to rebut the defence raised. A primary way of achieving this could be by establishing before the Court that the claimant has been prosecuting the cause diligently, hence his conduct does not deprive him from such discretionary relief. This may be established through the chain of facts specific to the case. Countering the notion of laxity is crucial. Therefore, if the claimant has been persistently pursuing the claim before different fora, exhibiting diligence, and/or running from pillar to post, a defence of laches in such cases shall fail. It shall also be helpful in dispelling the notion of prejudice caused to the opposing party. If no such prejudice has been caused, and there is no equity leaning in their favour, laches shall not come to their rescue. Recurring cause of action is another ground that can be taken against a defence of laches. Recently, in Pakistan Telecommunication Employees Trust v. Federation of Pakistan30, the Supreme Court held that the annual deduction of zakat gives rise to a fresh cause of action every time to challenge its validity, hence laches does not apply to it. Such inference has earlier been applied to similar recurring causes such as the denial of pension31, and salary which accrues every month. In the same manner, it may also be applied to cases with facts on the same footing. The Supreme Court, in Umar Baz Khan v. Syed Jehanzeb32, has held that a bar of laches could not be overemphasised in a case where the relief claimed was based on a recurring cause of action. At this juncture it shall be pertinent to add that assertion of fundamental rights33 as guaranteed in the Constitution cannot be denied through the application of laches. The Courts must ensure protection and implementation of fundamental rights; therefore an equitable doctrine cannot curtail, deny, infringe, undermine, or usurp the exercise of fundamental rights. The said dicta was applied by the apex Court in Pakistan Muslim League (N) through Khawaja Muhammad Asif and others v Federation of Pakistan through Secretary Ministiy of Interior and others34 . The Supreme Court therein further held that it depends upon a citizen to exercise such rights whenever he wishes so, and no time limit can be prescribed for claiming them. The Constitution grants supreme importance to fundamental rights and they cannot be disturbed by any legislative device or executive measures; however reasonable restrictions may be imposed by law in public interest. Assailing an order on the ground of the same being void may repel a defence of laches, if the order being void is also improper and unjust besides being illegal. The Court may not, as of rule, hesitate to set aside the order under challenge despite the objection regarding laches. But if the order is just and proper, notwithstanding being otherwise void, the delay in approaching the Court shall be fatal. The said principle, as laid down in the Pakistan Post Office case35, and relied upon in Masooda Begum through Legal Heirs v. Government of Punjab through Secretary Forest, Lahore and others36, is based upon the analogy that injustice cannot be allowed to be perpetuated with the blessings of the Court in its discretionary jurisdiction. Discretion of the Court must always be exercised in aid of justice rather than falling prey to technicalities, and perpetuating inequity and injustice as a result.37 Hence laches would also lose its relevance in cases where mala fide is asserted and brought to the notice of the Court.38 A Division Bench of the Sindh High Court in Abdul Khalique Soomro and others v. Government of Sindh and others39 identified instances where delay is not an absolute bar on the exercise of discretionary constitutional jurisdiction under Article 199 of the Constitution. They are, where the delay is explained; where there is a patent want of jurisdiction; where there is a provisional order and delay cannot be computed until a final order is made; where the Government has been extending hopes to the petitioner from time to time; or where an impugned order becomes vulnerable if continued beyond a specified temporary period, like an order of requisition of premises. On the contrary, the Division Bench also observed that the Court would refuse to grant relief under Article 199 of the Constitution where the opposite party has been induced to alter its position, where other interests have come into being, or where a suit, had it been brought on the same cause of action, would have been barred by statutory limitation. Dismissing a claim based upon laches, without examining the dictates of justice with respect to the contesting parties, in addition to the examination of law and jurisdictional points involved in the case, shall be unwarranted: Reliance may also be placed upon State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others40 in which the Supreme Court has comprehensively discussed the dynamics of laches while upholding the pronouncements made in the judgments op cit. Quantifying Time in Laches While concluding in the Pakistan Post Office case41, the Supreme Court observed as under: "Before parting with this judgment it needs to be observed that although the question of applicability of the Article 181 of the Limitation Act to the filing of writ petition has not been argued at the bar, it might nevertheless require examination in a proper case. It has been held by this Court in Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1, that such proceedings before the High Court are of civil nature and C.P.C. applies except when excluded. Whether similar argument cannot be raised regardings limitation might need examination." Before continuing discussion on the observation cited above, it would be appropriate to state here that the Supreme Court, in Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others42, observed that an ordinary person filing a petition, by invoking jurisdiction of the High Court under Article 199 of the Constitution43, has to approach the Court within reasonable time. The apex Court further observed that although no definition of the term 'reasonable time' is available in any instrument of law, however, the Courts have interpreted it to be 90 days. Reference in this behalf was made to Manager, Jammu and Kashmir State Property v. Khuda Yar.44 With utmost respect and humbleness, it is contended that imposing a tangible limit of time, thus bounding laches within certain parameters, goes against the spirit of the doctrine itself. 'Reasonability' of time is open to interpretation by the Courts, yet no specific figure can be said to be 'reasonable' for several reasons. Firstly, it would be equal to assigning a set value to something that is variable. In this case, the reasonability would cease to be adjudged in the backdrop of each and every case respectively. Rather, it would be a victim to a capricious time limit, hence vitiating an equitable doctrine and making it parallel to statutory limitation. Lathes is not a rule of law but instead concerns a practice of sound and proper exercise of discretion by the Court. Secondly, it is not the reasonability of time elapsed alone that constitutes laches. Rather, the second ingredient relating to balance of equities, i.e. the conduct of the claimant and unconscionability thereof (as discussed in detail above), also conclusively needs to be present. These are indeed sine qua non in establishing a defence of laches. Lastly, as far as the applicability of Article 181 of the Limitation Act 190845 goes, it is crystal clear that no time limit is provided in Article 199 of the Constitution of the Islamic Republic of Pakistan 1973 for filing a petition (writ petition) under the same. Admittedly, the petition is not an application within the scope of Article 181 of the Limitation Act 1908. In this regard, it can be stated that introducing a time limit through legislation would be questionable when the Constitution itself has not bound the filing of a petition by time. A statute cannot read into the Constitution, and assume what is not present, and neither can it prohibit or assign constraints to it. What is not expressly prohibited by the Constitution, and is thus permissible, cannot be done away with through legislation. Even otherwise, the Constitution, being the supreme law, shall in every manner take precedence over every statute, including the statute of limitation. Regarding the observation as to the applicability of the Code of Civil Procedure46, it is undoubtedly providing a procedural framework for the said proceedings. That is contradistinctive from the operation of a statute of limitation wherethrough the entitlement to a remedy or relief may be extinguished by the effluxion of time. Thus, the question as to the applicability of Article 181 of the Limitation Act 1908 can safely be answered in the negative. In the case of M.H. Abidi v. State Life Insurance Corporation47, a Division Bench of the Sindh High Court observed as follows: "However, where limitation is invokeable he must act within prescribed period. But no period, as may constitute laches, can be quantified. In the absence of a bar of limitation, the period within which remedy is to be sought has, however, invariably to be a reasonable one." This view of the Sindh High Court was quoted in Masooda Begum's case48, thus having received validation by the Supreme Court. Abdul Khalique Soomro's case49 also bolsters the argument by propounding therein that the provisions of Limitation Act do not apply to the constitutional petition(s) and that each case should be decided with respect to its own circumstances, without adhering to any fixed period, either long or short. Further, the Supreme Court, in Dr. Muhammad Tahir-ul-Qadri v. Federation of Pakistan and others50, has expounded that a bar of limitation is not applicable to the proceedings under Article 199 or 184 of the Constitution. However, such proceedings may be initiated promptly and within a reasonable time so as to steer free from the question of laches. In this view of the matter, it is argued that, quantifying time for laches would react against the equitable doctrine itself, thereby rendering it unreasonably unjust, and its fact-sensitivity toothless. Conclusion and Further Debate Even though this equitable doctrine has much use while adjudicating upon a constitutional petition, the practice of doing so has yet to be brought in consonance with the law laid down by the Supreme Court. In the presence of such precedents, there is negligible, if not nil, room to manoeuvre; yet continuously it may be observed that a chasm exists between law laid down on the subject and what goes on in practice. These deficiencies may be attributed to the jurisprudential infancy of the doctrine of laches in our jurisdiction, and an overall lack of academic debate in this regard. These shortcomings need to be surmounted along with paving new ways for jurisprudential development, albeit in the right direction. For what has been explicated above, it shall only be prolix and superfluous to reiterate the same while concluding. Rather, to make room for further academic debate, the succeeding questions of law emerging from the use of the doctrine shall need to be addressed fittingly after the foundations of it are set. Firstly, it must be the subject of discourse that whether the doctrine of laches does/may apply to all sorts of equitable remedies51. Presuming if it does apply, it must be considered whether the time frame for such remedies provided under the statute of limitation shall take precedence over laches, or a defence of laches may be set up in a claim being within the period of limitation. Whether such an equitable defence of laches can be put up in response to a claim for legal relief-such as damages, as opposed to equitable relief alone-may also be brought into question, and if so, an enquiry as to the parameters and/or standards to be adopted in those cases shall also need to be determined. The above queries identify critical concerns that may be sought to be resolved in the future by leaving the same to be dealt with by the conscience of tomorrow; but the guidelines for doing so shall indubitably rest within the principles of the doctrine itself, and the roots thereof, i.e. equity, justice, and public policy.