Correspondence
| Date | 01 November 1955 |
| Author | P. S. Atiyah |
| Published date | 01 November 1955 |
| DOI | http://doi.org/10.1111/j.1468-2230.1955.tb00325.x |
CORRESPONDENCE
To
the Editor of the
Modern
Law Review.
My Lord,
The
Jus
Tertii
and
the
Right
of
Reply
I
am grateful to Mr. Jolly for illustrating the confusion which surrounds
this subject by his reply to my article,2 thereby affording me the chance
to attempt to clarify one or two points.
Mr.
Jolly objects, first, to my main conclusion,
viz.,
that the
jus
tertii
(strictly
so
called) is no valid defence, and, secondly, to my view that it
would not be necessary for
a
defendant pleading
jus
tertii
to prove some
particular person to be the true owner.
The latter point may logically be taken first as the first conclusion depends
largely on the inconvenient results which follow if
I
am right on the latter
point.
Mr.
Jolly’s objection here is that “it is trite learning that a right cannot
exist independently of a legal person” and that
a
defendant would not,
therefore, be able to plead
jus
tertii
unless he were able to identify the
tertius
by name. The answer to this objection is that it misconceives the
nature of the defence.
It
is trite learning, too, to use Mr. Jolly’s phrase,
that the rights of
a
person who is not
a
party to litigation can only be
relevant insofar as they affect the rights
of
those who are parties.
Jus
tertii
is not pleaded to show that
X
or
Y
or
Z
is the owner, but to show
that the plaintiff is not the owner.
As
Mr. Jolly himself insists, the defence
is simply
a
traverse of the plaintiffs title.
It
follows that the only fact
in issue is the plaintiffs title, and one way
of
disproving that title is to
show that
a
third person,
it
matters
mot
who,
is the true owner. In other
words the defence is substantially lack
of
title in the plaintiff and not title
in
a
third person.
With regard to the first objection, it appears, after his first assault (if
I
understand him rightly) that Mr. Jolly’s only dispute with me is over
terminology. Nothing further, therefore, need be said, except that it seems
to me to be grossly misleading, and consequently dangerous, to refer to
a
defence as
jus
tertii
when the
tertizl.9
does not come into the picture
at
all.
Mr. Jolly finally accuses me of bringing an over-academic approach to
the problem. With respect
I
am surprised at this suggestion, coming from
someone with Mr. Jolly’s academic achievements, and would submit that
nn the contrary my article was an attempt to show how the theoretical
defence of
jus
tertii
breaks down in practical application.
P.
S.
ATIYAH.*
1
18
M.L.R.
371.
18
M.L.R.
97.
*
B.A.,
B.C.L.(OXOII.),
Lecturer in
Law
in the University College
of
Khartoum.
595
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