Wong

- vs -

Chin

Judgment

Wan Suleiman FJ

(delivering the Judgment of the Court)

1. The appellant is the landlord of No 18, Jalan Engan, Batu Pahat, Johore, controlled premises under the Control of Rent Act, 1966. On 29 May 1979 appellant applied to the Rent Tribunal, District of Batu Pahat for possession of the ground floor, which was occupied by the respondent, for the purpose of development under s 18 of the Act.

2. At the hearing before the Tribunal, the respondent was absent, nor did counsel appear on her behalf. On 20 January 1981 the Tribunal gave its decision in favour of appellant.

3. The respondent appealed and on 7 October 1981 the appeal was dismissed by the Rent Appeal Board.

4. The respondent then applied to the High Court at Muar for an order of certiorari to quash the decision of the Appeal Board. The motion was duly heard on 18 July 1982 and the decision of the Rent Appeal Board was quashed. We are unfortunate in not having the benefit of any grounds of judgment.

5. Six grounds on which the relief was claimed were set out in the Statement filed pursuant to Ord. 51 r 1(2) of the Rules of the High Court 1980 and are set out hereunder:

   (1)	The Rent Tribunal in arriving at its decision made on 20 January 1981 failed to comply with the provisions of r 8(j) of the Control of Rent (Johore) (Rent Tribunal) Rules, 1967 in that it failed to state the reason or reasons for making the decision thereby rendering the Appeal Board’s decision made on 7 October 1981 null, void and of no effect;
   (2)	The Rent Tribunal failed to comply with the provisions of r 8(j)(ii) of the Control of Rent (Johore) (Rent Tribunal) Rules, 1967 in that it failed to notify its decision to the parties concerned within the period stipulated in the said rule thereby rendering the Appeal Board’s said decision null, void and of no effect;
   (3)	The Rent Tribunal failed to comply with the provisions of r 9(4) of the Control of Rent (Johore) (Rent Tribunal) Rules, 1967 in that it failed to state the grounds on which the Tribunal arrived at its decision thereby rendering the Appeal Board’s said decision null, void and of no effect;
   (4)	The Respondent Wong Yet Eng obtained the Order of the Rent Tribunal dated 20 January 1981 by misleading the Tribunal into believing that one Kee Kong (holder of NRIC No 0041706) a material witness who gave evidence at the hearing of the Respondent’s application on 8 December 1980 was at the material time connected with Syarikat Kim Trading Co of No 30A Jalan Keruing, Taman Batu Pahat, Batu Pahat, Johore thereby rendering the Appeal Board’s said decision null, void and of no effect;
   (5)	The Appeal Board failed to comply with the provisions of r 10(3) of the Control of Rent (Johore) (Rent Tribunal) Rules, 1967 in that it failed to hear and determine the appeal within the period stipulated in the said rule, thereby rendering the Board’s said decision null, void and of no effect;
   (6)	There was a denial to the Applicant of natural justice at the hearing before the Appeal Board in that the Applicant’s Counsel could not have presented the Applicant’s case fully and adequately without a Statement of the grounds of the decision made by the Rent Tribunal.

6. Out of these as Mr. Das for appellant correctly indicated, grounds 1 to 4 were directed against the Rent Tribunal. He therefore argued that the learned Judicial Commissioner must have granted his order on the basis of grounds (5) and (6) only, these grounds being the only ones directed against the Appeal Board.

7. Section 15 of the Act says that “... any decision made by the Appeal Board shall be final and shall not be questioned in any Court.” No doubt with The South East Asia Firebricks ( [1980] 2 MLJ 165) case in mind, both sides concede that certiorari will lie if the error goes to jurisdiction or if the Appeal Board had done or failed to do something in the course of the enquiry as to render its decision a nullity.

8. The fact that the Appeal Board did not hear within six weeks does not go to jurisdiction, but is merely a breach of procedural rules, says Mr. Das. He relies on Ta Teik Onn v Ong Ewe Te  [1982] 1 MLJ 33 where an identical point was raised. The Appeal Board in that case, where there was an identical rule, in the State of Perak for the Board to hear and determine the appeal within six weeks from the receipt of the memorandum of appeal, had done so more than two years later. BTH Lee J was of the view that such non-compliance did not go to the foundation of the jurisdiction of the Appeal Board.

9. Continuing to treat this as a breach of the rules of procedure, we were referred to the Privy Council decision in Capt Kamarul Azman v Wan Abdul Majid [1983] 2 MLJ 4 where the sole question in the appeal was whether the fact that the oath was not administered by the person prescribed in the Rules of Procedure rendered the Court martial improperly conducted, with the consequence that it had no jurisdiction to try the appellant. It was held that failure to observe these mandatory provisions, though a serious matter, was an error of procedure which did not go to the jurisdiction of the court, so that the appeal was dismissed.

10. We must confess to being quite unable to follow some of Mr. Lee’s counter to this ground for whilst maintaining that this failure to comply with what he too regards as a requirement of procedure made the decision of the Appeal Board a nullity, he also cited in support the decision of this Court in Mersing Omnibus Co Sdn Bhd v Minister of Labour & Manpower [1983] 2 MLJ 54 . There the appellant was out of time and neither sought an extension of time nor accounted for the delay to the satisfaction of the learned Judge. It was held that leave should not be granted to appellants to apply for certiorari and the learned Judge had no jurisdiction to do so. We can only conclude that Mr. Lee finds support in this authority for the proposition that failure to comply with the procedural requirement as to time by the Tribunal nullifies the decision of the Appeal Board.

11. He cites two passages from Halsbury’s Laws of England 4th Ed vol 1. At page 26 para 24 there appears the following passage:

    Waiver and estoppel. It is a general principle of law that an excess of statutory power cannot be validated by acquiescence in or failure to object to the excess, or by the operation of an estoppel. Hence it is possible for a public authority to plead the invalidity of its own conduct.

12. At page 10 para 27 under the heading ‘Validity’ there appears this passage:

    Validity. If an act or decision, or an order or other instrument, is invalid, it should, in principle, be null and void for all purposes; and it has been said that there are no degrees of nullity. Such an act can therefore be successfully impeached in collateral proceedings, and no legally recognised rights founded on the assumption of its validity should accrue to any person even before the act is declared to be invalid or set aside in a court of law.

13. Mr. Lee says that r 10(3) is mandatory, and even if one were to assume that it was directory there must be substantial compliance with the statutory provision. Where the period prescribed is six weeks within which to hear the appeal and come to a decision, doing so some two years later is no substantial compliance, he submits. He cited a number of authorities wherein non-compliance with mandatory statutory requirements rendered decisions so made null and void.

14. In the 12th Ed of Maxwell on Interpretation Statutes, at pages 314/315 is a most enlightening passage which reads:

    It is impossible to lay down any general rule for determining whether a provision is imperative or directory. “No universal rule”, said Lord Campbell LC “can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed.” And Lord Penzance said, “I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.

15. It is plain that the object of r 10(3) in fixing a time limit for hearing and determining the appeal is to ensure that appeals are speedily dealt with. But the composition of the Appeal Board as prescribed by s 15(3) of the Act makes the unusual practice of fixing of a time limit for completion difficult to implement. We can safely assume that the rule making authority was aware of that. Taking everything into consideration we are inclined to take the view that this requirement is directory rather than mandatory and that non-compliance does not nullify the Board’s decision.

16. In Ground 6, respondent’s complaint is that there was denial of natural justice at the hearing before the Appeal Board because without a statement of the grounds on which the Rent Tribunal came to its decision, counsel for respondent was unable to present his case fully and adequately.

17. We are however inclined to agree with Mr. Das that an application for recovery of possession under s 18 for the purpose of development is unequivocal. When a Rent Tribunal makes an order allowing the application it can be on one ground, and one ground only. It would be inappropriate to make comparison between the various grounds on which a Court could make orders for recovery of possession on an application under s 16 with an application to the Rent Tribunal under s 18, but where the latter hears and determines the application under s 13 (1) (a), to determine fair rent, or under s 13 (1) (b) and s 20 to apportion and determine fair rent, or under s 13 (1) (c) for increase of rent, the real importance of giving a reason or reasons for its decision becomes obvious, and only in such instances could respondent have good reason to complain.

18. We would therefore allow this appeal with costs.

Cases

South East Asia Firebricks Sdn Bhd v Non-metallic Products Manufacturing Employees Union [1980] 2 MLJ 165; Tai Teik Onn v Ong Ewe Te [1982] 1 MLJ 33; Capt Kamarul Azman v Wan Abdul Majid [1983] 2 MLJ 4; Mersing Omnibus Co Sdn Bhd v Minister of Labour & Manpower [1983] 2 MLJ 54

Legislations

Control of Rent (Johore) (Rent Tribunal) Rules, 1967

Control of Rent Act 1966: s.18

Authors and other references

Halsbury’s Laws of England 4th Ed vol 1

Maxwell on Interpretation Statutes, 12th Ed

Representation

C Das for the appellant.

Lee Buck Heng for the respondent.