T.O. Tai

- vs -

Ong

Judgment

B.T.H. Lee J

1. This is an application by the applicants for an order of certiorari to quash an order made by the Rent Appeal Board for the District of Larut and Matang, Perak (“the Appeal Board”) dated 1 August 1979, dismissing a claim by the applicants heard before the Rent Tribunal for the District of Larut and Matang (“the Rent Tribunal”) given on 8 February 1977.

2. For an understanding of the issues raised in this case, reference may be made to the statement filed pursuant to Ord. 53, r 1(2) of the English Rules of the Supreme Court, 1965 and the Rules of the Supreme Court, 1957, which is as follows:—

   1.	The name and description of the applicants are Tai Teik Onn and Koh Keng Thong both of No 18, Theatre Street, Taiping in the State of Perak. The applicants are the tenant and sub-tenant of the premises No 18, Theatre Street, Taiping, erected upon Lot 1209 in the Township of Taiping. The registered owner of said premises is Ong Ewe Te (f) who at all material times is the landlord (hereinafter referred to as ‘the said landlord’).
   2.	On 8 February 1977 the Rent Tribunal for the District of Larut and Matang (hereinafter referred to as ‘the Rent Tribunal’) made an Order upon the hearing of an application pursuant to s 18 of the Control of Rent Act 1966 which said application was made by the Landlord.
   3.	The applicants herein appealed to the Rent Appeal Board for the District of Larut and Matang (hereinafter referred to as ‘the Rent Appeal Board’) against the said Order of the Rent Tribunal made on 8 February 1977. The Rent Appeal Board by an Order dated 1 August 1979 ordered that:— (a) the appeal by the applicants herein be dismissed, (b) the second applicant Koh Keng Thong vacate and give up occupation of premises No 18, Theatre Street, Taiping forthwith, (c) the landlord pay to the second applicant a sum of $5,280 as compensation being four years rent at $110 per month, (d) the landlord do deposit the said sum of $5,280 in court.
   4.	The relief sought is an Order of Certiorari to remove into this Honourable Court for the purposes of its being quashed the Order of the Rent Appeal Board dated 1 August 1979 and that all necessary and consequential directions be given.
   5.	The grounds upon which the said relief is sought are: — (1) The Rent Appeal Board lacked jurisdiction when it dismissed the appeal by the applicants against the Order that the applicants herein vacate and give up occupation of the premises No 18, Theatre Street, Taiping as there was no evidence that funds were available at the filing of the application for the purpose of putting into effect the development. (2) The Rent Appeal Board was wrong in law in that it failed to consider that the Rent Tribunal closed the hearing without hearing the respondents in the Rent Tribunal application as to their defences.

3. When the case came up for hearing before this court, counsel for the applicants added a third ground relying on r 10(3) of the State Subsidiary Legislation, 1967 — Perak PU 6, which reads:

   The Appeal Board shall, within six weeks from the receipt of the memorandum of appeal, hear and determine the appeal.

4. It will be convenient and perhaps logical to deal first with the third and last ground mentioned by counsel on behalf of the applicants.

5. It falls for observation that the Notice of Appeal was filed on 25 February 1977 (exh “RAB 1”) and the Memorandum of Appeal was filed on 16 March 1977 (exh “RAB 2”) and the hearing of the Rent Appeal Board from the decision of the Rent Tribunal was on 16 March 1979, after a period of more than two years from the date of filing of the Memorandum of Appeal.

6. Counsel for the respondent objected to the third ground and cited Ord. 53, r 3(1), which reads:

   Copies of the statement and of the affidavits in support of the application for leave under r 1 must be served with the notice of motion or summons under r 2 and, subject to para (2), no grounds shall be relied upon or any relief sought at the hearing of the motion or summons except the grounds and relief set out in the said statement.

7. No application to amend the statement was made by the applicants under Ord. 53, r 3(2), which reads:

   The court or judge may on the hearing of the motion or summons allow the said statement to be amended, and may allow further affidavits to be used if they deal with new matter arising out of any affidavit of any other party to the application, and where the applicant intends to ask to be allowed to amend his statement or use further affidavits, he must give notice of his intention and of any proposed amendment of his statement to every other party, and must supply copies of such further affidavits.

8. Alternatively, it was also suggested in the argument before this court that r 10(3) was only directory and not mandatory, and counsel cited Maxwell — Interpretation of Statutes, 12th Edn, page 320 et seq in support thereof.

9. Counsel for the applicants contended that the Rent Control Rules are statutory. It lacks jurisdiction when the Rent Appeal Board dismissed the appeal, since it failed to hear the appeal within six weeks, and cited Chan Siew Kim v Woi Fung Sheng Tim Medical Store [1978] 1 MLJ 144 at page 146. The passage reads:

   The word ‘jurisdiction’ in the law and doctrine of procedure constitutes and connotes the juridical expression of the right and obligation of an authority on which the law confers jurisdictional functions ....

10. Briefly stated, the Rent Appeal Board must follow the procedure.

11. In my view, the remedy of the parties if they are dissatisfied that the hearing was not heard in time may possibly lie elsewhere. However that may be, I do not think that non-compliance with such matters can possibly be said to go to the foundation of the jurisdiction of the Rent Appeal Board. Apart from this, a possible remedy, as it seems to me, would have been a remedy by way of mandamus as in the case of Seereelall Jhuggroo v Central Arbitration and Control Board [1953] AC 151. Here again, I think this contention fails.

12. That brings me to a consideration of the allegation mentioned in Ground No 1 viz.:

    The Rent Appeal Board lacked jurisdiction when it dismissed the appeal by the applicants against the Order that the applicants herein vacate and give up occupation of the premises No 18, Theatre Street, Taiping as there was no evidence that funds were available at the filing of the application for the purpose of putting into effect the development.

13. The principle applying to such cases about which much has been said and more written, is set out in a recent case in which their Lordships in South East Asia Fire Bricks Sdn Bhd v Non-Metallic Mineral Products Manufacturers Employees Union [1980] 2 MLJ 165; [1980] 2 All ER 689 (“Fire Bricks”)[1], considered the effect of s 29(3)(a) (now s 32(3)(a) of the Industrial Relations Act, 1967, said that the section did prohibit the High Court from quashing an award of the Industrial Court by certiorari proceedings, if it merely made an error of law on the face of the record which did not affect its jurisdiction, and following the House of Lords decision in Anisminic, said:

    (1) when words in a statute oust the power of the High Court to review decisions of an inferior tribunal by certiorari, they must be construed strictly; (2) it has the power if the inferior tribunal has acted without jurisdiction or ‘if it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity’; (3) but if the inferior tribunal has merely made an error of law which does not affect its jurisdiction, and if its decision is not a nullity for some reason such as breach of the rules of natural justice, then the ouster will be effective; and (4) the decision of Lord Denning MR in Pearlman v Harrow School [1979] 1 QB 56, 70 that the distinction between an error of law which affected jurisdiction and one which did not should be discarded, was not accepted. The court can correct an error of law of the inferior tribunal if the tribunal acted in excess of its jurisdiction as opposed to merely making an error of law in its judgment by misinterpreting the statute in question (see the dissenting opinion of Geoffrey Lane LJ in Pearlman v Harrow School (supra) at page 74); and referring to the Anisminic’s case, where Lord Reid said at page 171: It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity .... But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly.

14. Counsel for the applicants says the "Rent Appeal Board lacked jurisdiction ....", and referred to Lee Kwee Foh Ltd v Yeong Choon Foong [1969] 1 MLJ xxv .

15. It was suggested in argument, and I think correctly, by counsel on behalf of the respondent that the expression “Rent Appeal Board lacked jurisdiction ....” has been ingeniously but inaptly described. More accurately, it is an error of fact which does not affect jurisdiction. Furthermore, in Lee Kwee Foh, the question arose in, I think, slightly different circumstances and is therefore distinguishable. The fund was not set aside, whereas in the case before this court, respondent admitted he had a sum of $52,072 (exh “RT”, p 3). This was the figure at the date of application, but the contractor was not asked what was the cost of the application at the time of application. There was a time lapse when the application was made, but the date of hearing was later; the sum would no doubt be within the sum of $52,000. The facts being different, the one case is no authority in the other. These are questions of fact which the Rent Appeal Board had dealt with. Section 15(1) of the Control of Rent Act in terms provide that the decision of the Rent Appeal Board shall be final and not questioned except on a jurisdictional point.

16. Where the proceedings are regular upon their face and the inferior tribunal has jurisdiction, the superior court will not grant the certiorari on the ground that the court below has jurisdiction to decide a matter, it cannot be deemed to exceed or abuse its jurisdiction, merely because it incidentally misconstrues a statute nor will certiorari be granted to quash the decision of an inferior court within its jurisdiction on the ground that the decision is wrong in matters of fact (see Colonial Bank of Australasia v Willan (1874) LR 5 PC 417, R v Nat Bell Liquors Ltd [1922] 2 AC 128).

17. There is however one other case to which perhaps I might usefully refer and to which Lord Fraser referred with approval in Fire Bricks and that is the case of Mak Sik Kwong v Minister of Home Affairs (No 2) [1975] 2 MLJ 175 and Chan Siew Kim v Woi Fung Sheng Tim Medical Store, supra, both of which were decided by Abdoolcader J. Like Lord Fraser, I would similarly quote the passage appearing in Mak Sik Kwong (No 2) where Abdoolcader J held that a provision in the Control of Rent Act, 1966, which he construed as an ouster clause, was effective to exclude certiorari except for “manifest defect of jurisdiction in the authority that made the decision or manifest fraud in the party procuring it”.

18. I now turn to the last of these grounds. It was urged that the Rent Appeal Board was wrong in law in failing to consider that the Rent Tribunal erred when it closed the hearing without hearing the applicants in the Rent Tribunal application and thereby failed to consider the defences of the applicants.

19. It is not disputed that the applicants’ case was set out in a statement under Ord. 53, r 1(2) and they are represented by counsel. In addition, there is an application by the applicants, but no reply was filed by the respondent. The applicants have produced evidence by way of affidavit. It falls for observation that at the hearing before the Rent Tribunal, counsel for applicants cross-examined the building contractor and at the end of the hearing thereof made a short submission (see The Pahang South Union Omnibus Co Bhd v The Minister of Labour and Manpower [1981] 2 MLJ 199 and the authorities cited at pages 10, 11 and 12 therein).

20. That being the position, it is my view that the applicants concerned had a reasonable opportunity of presenting their case and in any event there is no breach of natural justice.

21. For the reasons I have endeavoured to set out, I am of the opinion that certiorari cannot lie, and I affirm the decision of the Rent Appeal Board with costs.

[1]  Following the House of Lords decision in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (“Anisminic”)

Cases

Chan Siew Kim v Woi Fung Sheng Tim Medical Store [1978] 1 MLJ 144; Seereelall Jhuggroo v Central Arbitration and Control Board [1953] AC 151; South East Asia Fire Bricks Sdn Bhd v Non-Metallic Products Manufacturing Employees Union [1980] 2 MLJ 165; [1980] 2 All ER 689; Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147; Pearlman v Harrow School [1979] 1 QB 56; Lee Kwee Foh Ltd v Yeong Choon Foong [1969] 1 MLJ xxv; Colonial Bank of Australasia v Willan (1874) 5 LR PC 417; R v Nat Bell Liquors Ltd [1922] 2 AC 128; Mak Sik Kwong v Minister of Home Affairs (No 2) [1975] 2 MLJ 175; Pahang South Union Omnibus Co Bhd v Minister of Labour & Manpower [1981] 2 MLJ 199.

Authors and other references

Maxwell — Interpretation of Statutes, 12th Edn

Representations

BS Lim for the applicants.

VW Balasingam for the respondent.