A Void Order
by
Khushbakht Ibrar
“He clapped the glass to his sightless eye, and I’m damned if I see it’ he said”
Sir Henry John Newbolt “Admirals All”
Introduction:
The basic authority of the courts is to hear and to decide controversies coming from the provisions of the Constitution that defines the judicial power. Within the limits fixed by the constitutional provisions, the jurisdiction of the courts have been further limited and defined by acts of parliament. In the exercise of the constitutional powers, courts has been established, and their territorial jurisdiction, and specified the classes or kinds of controversies that these courts are authorized to decide has been decided. But in addition to the statutes creating the courts and defining the kinds of controversies that those courts are authorized to decide, there are numerous other statutes that control or limit in one way or another conduct of the courts in deciding cases. These statutes differ widely in their scope, their language, and their purposes. In most instances the limitations imposed by these statutes are not truly jurisdictional in character; the limitations do not deprive the courts of authority to decide the subject matter of particular controversies, but prescribe a rule of conduct that the courts are directed to follow in deciding controversies that fall within their jurisdiction.
Chairman district screening committee, Lahore vs. Sharif Ahmed Hashmi
The expression void in the strict and accurate sense, held, would mean “absolutely null” i.e. incapable of rectification or confirmation and of no effect whatever. (PLD 1976 258)
Void judgment is defined by Black’s Law Dictionary, Sixth Edition, p. 1574 as one which has no legal force or effect, invalidity of which may be asserted by any person whose rights are affected at any time and at any place directly or collaterally. One which from its inception is and forever continues to be absolutely null, without legal efficacy, ineffectual to bind parties or support a right, of no legal force and effect whatever, and incapable of confirmation, ratification, or enforcement in any manner or to any degree. A judgment is a “void judgment” if court that rendered judgment lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process.
Orders founded on void orders are also void:
And if on the basis of void order subsequent orders have been passed either by the same authority or other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them must, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little foundation as the void order on which they are founded. Every proceeding which Is founded on a void order is also bad and incurably bad, you cannot put something on nothing and expect it to stay there. It will collapse. (ref. Lord Denning in MacFoy v United Africa Co. Ltd. [1961]).
Pritchard [1963] Upjohn LJ confirmed that:
- A fundamental defect in proceedings will make the whole proceedings a nullity;
- A nullity cannot be waived;
- It is never too late to raise the issue of nullity; and
- A person affected by a void order has the right – ex debito justitiae (“as of Right” … i.e. a litigant is entitled to it merely upon the asking for it – as opposed to something which may be a matter of judicial discretion or determination) to have it set aside.
When the word “void” is used in relation to orders which are good on their face it must, therefore, have a more restricted meaning than it has in relation to marriages, contracts and other transactions inter parties. It can only mean that when an application is made to set it aside the Court has no option or discretion in the matter and must do so. In such a case the applicant is entitled ex debito justitiae to have the order set aside, but it is not accurate to say that the order is a nullity, because it is good on its face and valid until set aside
The limited sense:
It appears that even the expressions “nullity” and ‘void’ may have, depending upon the context, a limited sense. Thus if an order, though void, is capable of legal consequences and is necessary to have it set aside, it is a ‘nullity’ in the sense that it was liable to be quashed by the court. (Boddington v. British Transport Police (1998) 2 All ER 203,209)
In Bellinger v Bellinger [2003] the House of Lords confirmed that:
- A void act is void from the outset; and
- No Court – not even the House of Lords (now the Supreme Court) has jurisdiction to give legal effect to a void act no matter how unreasonable that may seem because doing so would mean reforming the laws which no Court has power to do because such power rests only with Parliament. The duty of the Court is to interpret and apply the law not reform it
Importance:
Lord Denning in MacFoy v United Africa Co. Ltd. [1961] and Firman v Ellis [1978] states that A ‘void’ order or claim has no legal effect ab initio (from the beginning/outset) and therefore does not need to be appealed, although for convenience it may sometimes be necessary to have it set aside, whereas a ‘voidable’ order or claim has legal effect unless and until it is set aside.
In Wands worth London Borough Council v. Winder [1985] A.C. 461), it is therefore held that, a void order or claim does not have to be obeyed, and can be ignored and its nullity can be relied on as a defense when necessary.
Lord Greene in Craig v Kanssen [1943] held that a ‘void’ order can be set aside by the Court which made the order, because the Court has inherent jurisdiction to set aside its own void order.
Lord Denning in MacFoy v United Africa Co. Ltd. [1961], states that a void order is incurably void, and all proceedings based on the invalid claim or void act are also void. Even a decision of the higher Courts (High Court, Court of Appeal and Supreme Court) will be void if the decision is founded on an invalid claim or void act, because something cannot be founded on nothing.
In Crane v Director of Public Prosecutions [1921, it was held that If an order is void ab initio (from the beginning) then there is no real order of the Court.
In MacFoy v United Africa Co Ltd. [1961] Lord Denning confirmed that:
(i) A void order is automatically void without more ado;
(ii) A void order does not have to be set aside by a Court to render it void – although for convenience it may sometimes be necessary to have the Court set the void order aside;
(iii) A void order is incurably void and all proceedings based on the void order/invalid claim are also void.
Chief settlement commissioner, Lahore vs. Muhammad Fazil Khan
A void order is one which was passed by an authority either lacking jurisdiction or was made in complete disregard of the mandatory provision of law. Absence of the jurisdictional facts also renders the order void. PLD 1975 SC 331
Sharif Ahmed Hashmi vs. Chairman screening committee, Lahore
A void order is only a type of an illegal order, it is describes as void because it is so illegal that it does not exist in the eye of law but this does not alter the fact that it was passed, and by describing it as void, courts cannot alter the fact that the order was passed. The void order must be struck down provided there is no statute or principle of law which would make it unjust or inequitable to strike down the void order. 1978 SCMR 367
In Lubben v. Selevtive Service System Local Bd. No. 27, 453 F.2d 645, 14 A.L.R. Fed. 298 (C.A. 1 Mass. 1972, it was held that A void judgment is one which, from its inception, was a complete nullity and without legal effect.
In U.S.C.A. Const. Amend. 5 – Triad Energy Corp. v. McNell 110 F.R.D. 382 (S.D.N.Y. 1986), it was stated that a Void judgment is one where court lacked personal or subject matter jurisdiction or entry of order violated due process,
In Fed. Rules Civ. Proc., Rule 60(b)(4), 28 U.S.C.A., U.S.C.A. Const. Amend. 5 – Klugh v. U.S., 620 F.Supp. 892 (D.S.C. 1985) it is clearly mentioned that Judgment is a void judgment if court that rendered judgment lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process,
In Loyd v. Director, Dept. of Public Safety, 480 So. 2d 577 (Ala. Civ. App. 1985), A void judgment is one which, from its inception, is and forever continues to be absolutely null, without legal efficacy, ineffectual to bind the parties or to support a right, of no legal force and effect whatever, and incapable of enforcement in any manner or to any degree –
In Ward v. Terriere, 386 P.2d 352 (Colo. 1963) it was mentioned that Void judgment which is subject to collateral attack, is simulated judgment devoid of any potency because of jurisdictional defects.
In People v. Wade, 506 N.W.2d 954 (Ill. 1987) it was held that Void judgment is one entered by court without jurisdiction of parties or subject matter or that lacks inherent power to make or enter particular order involved and such a judgment may be attacked at any time, either directly or collaterally.
In Lucas v. Estate of Stavos, 609 N. E. 2d 1114, it was held that A void judgment has no effect whatsoever and is incapable of confirmation or ratification.
In Mills v. Richardson, 81 S.E. 2d 409, (N.C. 1954),it was held that A void judgment is one which has merely semblance, without some essential element, as when court purporting to render is has no jurisdiction.
In B & C Investments, Inc. v. F & M Nat. Bank & Trust, 903 P.2d 339 (Okla. App. Div. 3, 1995), it was stated that a Decision is void on the face of the judgment roll when from four corners of that roll, it may be determined that at least one of three elements of jurisdiction was absent:
- Jurisdiction over parties,
- jurisdiction over subject matter, or
- Jurisdictional power to pronounce particular judgment that was rendered.
In Sanchez v. Hester, 911 S.W.2d 173, (Tex.App. – Corpus Christi 1995), it was stated that while voidable orders are readily appealable and must be attacked directly, void order may be circumvented by collateral attack or remedied by mandamus,
In Orner v. Shalala, 30 F.3d 1307, (Colo. 1994) it was stated that when rule providing for relief from void judgments is applicable, relief is not discretionary matter, but is mandatory.
In FRITTS v. KRUGH. SUPREME COURT OF MICHIGAN, 92 N.W.2d 604, 354 Mich. 97 it was held that a “void judgment” as we all know, grounds no rights, forms no defense to actions taken there under, and is vulnerable to any manner of collateral attack (thus here, by ). No statute of limitations or repose runs on its holdings, the matters thought to be settled thereby are not res judicata, and years later, when the memories may have grown dim and rights long been regarded as vested, any disgruntled litigant may reopen the old wound and once more probe its depths. And it is then as though trial and adjudication had never been. Certiorari is an appropriate remedy to get rid of a void judgment, one which there is no evidence to sustain.
Conclusion:
To conclude, it is well settled principle of law that wrong and void orders do not create any right. Expression void in the strict or accurate sense means “absolute null” that is to say incapable of rectification or confirmation and of no effect whatever. As order is to be treated as void only when it is made by a court, tribunal or other authority which has no jurisdiction either as regards the subject matter, the pecuniary value or the territorial limits when the dispute arise. Such an order would amount to usurpation of power unwarranted by law and accordingly it would be nullity. When the basic order is without lawful authority and void ab initio, then the entire superstructure raised thereon falls on the ground automatically.
References:
https://www.supremecourt.gov/DocketPDF/18/18-7070/76529/20181218092909982_00000008.pdf
https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2503&context=uclrev
https://academic.oup.com/clp/article-abstract/34/1/43/345138?redirectedFrom=PDF
https://www.casemine.com/search/in/void%2Border%2Bat%2Bany%2Btime
https://info.fmotl.com/VoidOrders.htm
http://voidjudgements.net/detailsvoid.htm
Judicial review of public actions, Pg. 381 chap 2 vol. 1
Judicial review of public actions, Pg. 385 chap 2 vol. 1
