015-SLLR-SLLR-1985-V1-NICHOLAS-v.-MACAN-MARKAR-LIMITED.pdf
NICHOLAS
v.
MACAN MARKAR LIMITED
COURT OF APPEAL.
SENEVIRATNE, J. (PRESIDENT) AND SIVA SELLIAH. J.
C. A. APPLICATION No. 97/80.
SEPTEMBER 6. 10. 11. 12 AND 13. 1984.
Writ of Certiorari – Dispute re identity of tenant – Certificate of tenancy, s. 35 (2) of theRent Act – Entry of tenant's name in Rent Register of Rent Board, s.37 of RentAct – appeal to Rent Board of Review – Appeal on question of law – What is aquestion of law ?
Nicholas. His name was also directed to be entered In the Rent Register of the RentBoard under s. 37 of the Rent Act as tenant. But on appeal to the Board of Review thisdecision of the Rent Board was set aside. The petitioner then applied to the Court ofAppeal to have the decision of the Board of Review quashed by certiorari.
Held –
The duty of the Board of Review is to consider the appeal to it ‘upon matters of law*.The finding of the Rent Board that Nicholas was the tenant is an inference of fact. Itcannot be said the Rent Board had acted without any evidence or that its finding wasinconsistent with the evidence and contradictory of it. The Rent Board of Review is notentitled to substitute its own view of the facts for the view of the facts of the RentBoard.
Cases referred to:
Sangaralingam v. Colombo Municipal Commissioner (1976) 78 NLR 501, 502.
A. T. S. Paul v. Wijerama and Others (1972) 75 NLR 361.
R v. Medical Appeal Tribunal ex pane Gilmore – Gilmore's Application [1957) 1AUER 796.
Anisminic Ltd. v. Foreign Compensation Commission and Another [1969] all ER208
Edwards v. Bairstow [ 1956] AC 14. [1955] 3 All ER 48.
Mahawithana v. Commissioner of Inland Revenue [1962] 64 NLR 217.
Global Plant Ltd. v. Secretary of State for Health and Social Security [1971] 3 AllER 385
Caledonian (Ceylon) Tea & Rubber Estates Ltd. v. Hillman,(1977) 79NLR(Vol. 1)421.425.
Bank of Ceylon v. Collettes Ltd. [1984] 2 SLR 253.
Kalawana Election Petition – Rajapakse v. Gunasekera (1984] 2 SLR 1.
Ceylon Transport Board v. W.A. D. Gunasinghe [1968] 72 NLR 76.
Inland Revenue v. Fraser [1942] 24 Tax Cases 498.
APPLICATION for Writ of Certiorari.
H. L. de Silva. P C. with Bimal Rajapakse for petitioner.
S. J. Kadiragamar. Q.C. with D. S. Wijesingheand K. Thevarajahfor respondent.
Cur. adv. vult.
December 13. 1984.
SENEVIRATNE, J. (President)
The petitioner has filed this application on 5.2.80 for a Mandate in thenature of a Writ of Certiorari to quash an order of the Rent Board ofReview made on 20.1 1.79. The petitioner C. Nicholas was theoccupier (for the present I will describe him as such) of Flat No. 47,Galle Face Court 2, of which the 1st respondent was the owner andadmittedly the landlord as defined in section 48 of the Rent Act No. 7of 1972. C. Nicholas, who was an employee (Mills Manager) of
George Steuart & Co., Ltd., occupied this flat on 15 1.74. The 1strespondent refused to accept Nicholas as the tenant of Flat No. 47.and insisted that it recognised George Steuart & Co., Ltd. as itstenant. George Steuart & Co., Ltd. denied that it was the 1strespondent's tenant of this Flat. As a result of this dispute Nicholasmade an application to the Rent Board on 29.6.76 for a certificate oftenancy.’This Application marked 'A' was considered both by the RentBoard and the Board of Review.
Inquiry was held by the Rent Board on 4.6.77. At the inquiry held bythe Rent Board, Nicholas the petitioner gave evidence, and anotherwitness Mrs. Mutucumaraswamy gave evidence and corroboratedNicholas on one matter pertaining to his evidence. That is, that sheknew Nicholas, and as he was searching for a flat, she took Nicholasto the office of the 1st respondent company and introduced Nicholasto the company. According to Nicholas Mrs. Mutucumaraswamyintroduced him to Mackie Marcan Markar, a member of his company.Nicholas produced several documents A1 – A24 to support this case.
Nicholas's case was that the flat was obtained by him for hisresidence, and that he informed the 1 st respondent that his employerGeorge Steuart & Co., Ltd., will pay the rent. This was said toguarantee the payment of rent which was a substantial amount. Theadvance payment of three months rent for this flat, a sum of Rs.2,058.75 cents has been paid by Nicholas by his cheque dated
(A4 (a)/B4(a)). But the 1st respondent has issued thereceipt for this cheque in the name of his employer George Steuart &Co., Ltd. and refused to issue a receipt in the name of Nicholas eventhough George Steuart & Co. Ltd. requested the 1 st respondent toissue a receipt in his name. It was proved that the rent for this flat wasdeducted from the pay of Nicholas by his employer firm, and was paidto the 1 st respondent company by a cheque issued by George Steuart& Co.. Ltd. (A6/B6). Even though George Steuart & Co., Ltd.^quested the 1 st respondent to recognise Nicholas as the tenant ofthe flat on whose behalf this firm was paying the rent, the 1strespondent refused ro do so, stating that in books of the 1strespondent George Steuart & Co., Ltd. has been entered as the
tenant of Flat No. 47 (A 10) at the inquiry before the Rent Board noevidence was led on behalf of the 1 st respondent company. The 1 strespondent company did not even produce the alleged books in whichGeorge Steuart & Co., Ltd. was said to be entered as the tenant of
Flat No. 47. The Rent Board having considered the evidence ofNicholas, Mrs. Mutucumaraswamy and the documents A1 – A24 byits order dated 15.7.77 came to the finding-
that the correspondence showed that George Steuart & Co.,Ltd had, obtained the Flat for Nicholas ; as such Nicholas wa|the tenant of this Flat;
that the main defence of the respondent-company was thatGeorge Steuart & Co., Ltd. was entered in their books as thetenant, but that the books were not produced ,
The Rent Board placed great stress on the fact that the said bookswere not produced and even observed that it can be, that the allegedbooks have been made to suit their purpose, and also that as thesealleged Rent Registers were not produced the Rent Board cannotcome to a decision whether there were such books, As such the RentBoard made two orders on 15.7.7 7 –
(1} to issue a certificate of tenancy in respect of premises No. 47to Nicholas – Section 35 (2) of the Rent Act:
to enter the name of Nicholas as tenant in the Rent Register;
This second order seems to be an order made under section 37 (6) ofthe Rent Act, under which section the Rent Board 'can enter aperson's name in the Rent Register as tenant*. That is the RentRegister maintained by the Board under Section 37 (1) of the RentAct.
The respondent to the application made by Nicholas, that is 0. L. M.Macan Marker Limited, which is also the 1st respondent to thisapplication, appealed to the Rent Board of Review on 28.10.77against the order of the Rent Board; Section 40 (4) of the Rent Actsets down that—
'Any person who is aggrieved by any order made by any Rent-
Board; may appeal against the order to the Board of
Review.'
Provided, however, no appeal shall lie except upon a matter of law.*Section 40 (11) of the Rent Act sets down that –
'the decision of the Board of Review shall be final and conclusive.*
This Section 40(11) resulted in lengthy submissions made to thiscourt, to which reference will be made later. The Rent Board of Reviewheld that “the question that arises is whether the existence of a lawfulcontract of tenancy between the applicant respondent (Nicholas) andthe respondent-appellant (O.L.M. Macan Markar Ltd.) can be inferredon the documentary evidence which has been tendered in evidence",and came to the conclusion “that the documents further clearlyindicate that the respondent-appellant was at no time willing to givethe tenancy to the applicant-respondent or to accept him as the tenantof the said premises. One could not therefore, say that there was anagreement arrived at between the respondent – appellant and theapplicant-respondent, which would be necessary to create a lawfulcontract of tenancy". As such the Board of Review set aside thedecision of the Rent Board and dismissed the application of Nicholasfor a certificate of tenancy The present application is for a Writ ofCertiorari to quash that order of the Rent Board of Review made on20.11.79 – marked (D).
The petitioner has moved in this writ to quash the decision of theBoard of Review on the grounds set out in paragraph 10 of thepetition, which are as follows
the decision of the said Board of Review bears on record anerror of law. in that the Board of Review has made order withoutjurisdiction and/or in excess of the jurisdiction and in
' contravention of the statutory provisions in the law ;
the decision of the Rent Board in ordering the name of thepetitioner be entered in the Rent Register as a tenant is final andconclusive, and is not renewable by the Board of Review. (Thisground is a reference to section 37 (6) of the Rent Act).
Learned President's counsel for the petitioner stressed that asregards the appeal in respect of the order made under Section 35(2)of the Rent Act, to issue a certificate of tenancy, the respondent wasentitled only to appeal “upon matters of law*. The Board of Review hasreally made its decision on the facts and taken a different view of thefacts and the documents produced, and set aside the order of theRent Board. Learned counsel for the petitioner submitted that theBoard of Review did not have before it even a mixed question of factand law, but had only a decision of the Rent Board on questions of factwhich the Board of Review had no jurisdiction to set aside. Learnedcounsel submitted that the Board of Review could have set aside the
findings on questions of fact if there was no evidence before the RentBoard to come to the conclusion it had arrived at, or on the evidenceavailable before the Rent Board, no reasonable person can come tothat conclusion. Learned counsel for the petitioner amplified thesesubmissions by making these particular points, that for the Board ofReview to set aside the conclusion of the Rent Board the primary factsas found by the Board must be such that all such facts point out to acontrary conclusion and as such the decision of the Rent Board wasperverse, that There must be a manifest error of facts on the face ofthe record, or that there must be a manifest error of law on the face ofthe record. Such kind of errors were not present in the order of theRent Board. Learned Counsel further submitted that, even if two viewswere possible on the evidence, oral and documentary before theBoard, and the Board has taken a view that cannot be said to beunreasonable, the Board of Review had no power to set aside such aview. The submission was that the Board of Review had no power orjurisdiction to substitute its own view of the facts, in place of anotherreasonable possible conclusion on the facts made by the Rent Board.
The objections filed by the respondent to this application werethat –
the Rent Board of Review had jurisdiction to hear the saidappeal and to make the order marked (D);
the Board of Review addressed its mind to all vital questions offact and law including documentary and oral evidence in makingthe order (D) ;
the petition of the petitioner does not disclose any fundamental
lack of jurisdiction or any error on the face of the record, or anyfailure to follow the principles of natural justice to justify theinterference by this court by way of Writ of Certiorari, inparticular where the statutory provision makes the decision ofthe Board of Review final and conclusive ;*
In the course of the submissions of the learned Queen’s counsel forthe 1st respondent, the learned President's counsel for the petitionerinterposed, and stated as follows :
"I do not say that the Board of Review had no jurisdiction toentertain the appeal. I say that it had no jurisdiction to make theorder it made. The Rent Board on material before it held that therewas a contract of tenancy. The Board of Review on the same
material held that there was no contract of tenancy. A Tribunal asthis Board may err within the jurisdiction. Then a Writ of Certioraridoes not lie – Sangaralingam v. Colombo Municipal Commissioner
nr
* I will deal first with a submission made by the learned Queen'scounsel for the 1st respondent, which submission goes to the root ofthis application, and in respect of which if I hold with the 1strespondent, this application for the writ must fail in limine. The learnedQueen's counsel for the 1st respondent made this submission onSection 40 (11) of the Rent Act, which states that –
'The decision of the Board of Review on any appealshall be final and conclusive".
Learned Queen’s counsel submitted that in view of Section 40(11),there can be no appeal from an order of the Board of Review nor canthere be an application for any writ in respect of an order of the Boardof Review. Learned Queen's counsel contention was that the phrase"final and conclusive" should be interpreted as follows
No more proceedings after the order of the Board of Review asbetween the parties and the Board of Review. Learned Queen'scounsel contended that the phrase 'final and conclusive* in section40( 11) of the Rent Act covered the phrase or was equivalent to thephrase – "shall not be called in question in any court or any otherexpression of similar import' in Section 22 of the Interpretation(Amendment) Act No. 18 of 1972. Placing this interpretation on thewords 'final and conclusive' in Section 40( 11) of the Rent Act, thelearned Queen's counsel submitted that the present applicationcannot stand, as the exceptions set out in the proviso to the Section22 of the said Act are not present in respect of this Application.
Learned President's counsel for the petitioner submitted that theyvords in Section 22 of the Interpretation (Amendment) Act No. 18 of1972 relied on by the learned Queen's counsel cannot be consideredas embracing the phrase 'final and conclusive". The phrase "final andconclusive" – was one of the several ouster clauses introduced intomodern legislation, and this phrase merely meant – not subject toappeal, not appealable, and this phrase did not exclude the judicialreview by way of writs, and was in no way equivalent to the ousterclauses, such as 'shall not be called in question in any court or anyother expression of similar import' Learned Queen's counsel for the
1st respondent submitted that the word "final" meant 'no moreproceedings" and “conclusive" meant – was ultimately or finallybinding on the parties.
I will now consider the law pertaining to this submission?Maxwell – Interpretation of Statutes (12th Ed.) at page.153-Chapter 7 -Presumptions Against Ousting EstablishedJurisdiction – states as follows :
‘A strong leaning exists against construing a statute so as to oustor restrict the jurisdiction of a superior court".
H.W.R. Wade – Administrative Law (5th Ed.) at page 598 – 'finalityclauses'-
'Many statutes provide that some decision shall be final. Thatprovision is a bar to any appeal. But the courts refuse to allow it to
hamper the operation of judicial reviewstatutory
restrictions on judicial remedies are given the narrowest possibleconstruction, sometimes even against the plain meaning of thewords. This is a sound policy, since otherwise administrativeauthorities and tribunals would be given uncontrollable power andcould violate the law at will. 'Finality is a good thing, but justice isbetter".
Lord Atkin cited in Judicial Review of Administrative Action – De.Smith (4th Ed.) at page 366 –
"It is clear, furthermore, that a finality clause does not affect theirpower to award a declaration that a decision or order made by astatutory body is invalid. Even such words as 'final and conclusive'are in effect to abridge or attenuate judicial review. The onlypracticable effects of a finality clause appear to be to take away aright of appeal where one already exists".
Even our Interpretation (Amendment) Act No. 18 of 1972 has not.completely taken away the powers of judicial review of the Court ofAppeal, but has only restricted the grounds on which judicial reviewcan be done.
A case decided before the Interpretation (Amendment) Act No. 18of 1972 – (date of operation 11.5.72) held that the mere use of theword ''final" did not exclude the powers of judicial review of tfeSupreme Court – the case of A. T. S. Paul, Petitioner v. E. M.
Wijerama and. 9 Others, Respondents – Application for Mandate inthe nature of Writs of Prohibition. Certiorari and Mandamus (2) – Thiscase decided as follows –
'Section 18 of the Medical Ordinance which provides that adecision of the Medical Council under the Medical Ordinance shallbe subiect to appeal to the Minister whose decision shall be final isnot a bar to certiorari proceedings to quash a purported decision ofthe Medical Council made without due and proper inquiry and inbreach of principles of natural justice".
In Gilmore's Application (3) the Court of Appeal considered theeffect of the provision of Section 36(3) of the National Insurance(Industrial Injuries) Act, 1946, which provided that any decision of aMedical Appeal Tribunal on a question arising under the Act "shall befinal" Gilmore's Case (supra), was an application for a Writ ofCertiorari to quash the decision of such a tribunal. In that applicationfor a Writ of Certiorari, it was granted by all parties that the award ofcompensation by the Medical Appeal Tribunal had on the face of it anerror of law, and the question that arose was whether Section 36(3)was a bar to the Court to grant a Writ of Certiorari to quash thataward. The Court of Appeal held that the writ should be granted asthere was an error of law on the face of it.
Denning, L’.J. in his judgment laid down as follows :
'I find it very well settled that, the remedy by certiorari is never tobe taken away by any statute except by the most clear and explicitwords. The word "final" is not enough. That only means 'withoutappeal'. It does not mean "without recourse to certiorari'. It makesthe decision final on fact, but not on the law. Notwithstanding thatthe decision is by a statute made "final" certiorari can still issue forexcess of jurisdiction or for error of law on the face of the record"(Page 801C).
The case of Anismimc Ltd. v. Foreign Compensation Commissionand Another (4) was an appeal to the House of Lords, in which it wasconsidered whether a more strongly worded ouster clause would oustthe judicial jurisdiction of a superior court. Section 4(4) of the ForeignCompensation Commission Act 1950 laid down that :
"the determination of the Foreign Compensation Commissioncould not be called into question in any Court of law". The House ofLords by majority decision held that when the Commission rejected
the appellant's claim for compensation they took into considerationa factor which they had no right to take into account andaccordingly their decision was a nullity. (Page 217C).
This case distinguished an error going to the jurisdiction of thetribunal, from an error within the jurisdiction of the tribunal. It held that*a review of a decision for an error of law apparent on the face of therecord and within jurisdiction can be excluded by a no certiorariprovision, but an error going to jurisdiction rendered the tribunal'sdecision a nullity notwithstanding a no certiorari clause. The appealwas allowed and the decision of the tribunal set aside. In view of thisexposition of the law in the authoritative texts and the decisions, bothof the Supreme Court and the Courts of England, I hold that the words"final and conclusive' in Section 40{ 11) of the Rent Act, does not barthe present application for a Writ of Certiorari to quash the order of theRent Board of Review.
In this Application the function of this Court is to make a judicialreview of the order made by the Rent Board of Review. There is a finedistinction between, ‘appeal’ and ‘judicial review”. When hearing anappeal the court is concerned with the merits of the decision in appeal.The question before court is whether the decision subject matter ofthe appeal is right or wrong. In the case of judicial review the questionbefore the court is whether the decision or order is lawful, that is,according to law. As such in this application for a writ, it is not thefunction of this court to decide whether the order of the Rent Board isright or wrong, or whether the order of the Rent Board of Review isright or wrong. The function of this court in this instance is to decidewhether on the principles applicable to judicial review, the order of theRent Board of Review should be allowed to stand or should be setaside.
Bairstow) (supra) on which the decision of the competent authoritywill not be disturbed unless it is perverse (or is such that noreasonable authority properly instructed in the law could havearrived at) or is erroneous because a wrong legal approach has been( adopted. In some cases the Courts have adopted a slightly widerjurisdiction to hold inferences or conclusions of fact to be erroneousin law if they are clearly unreasonable*.
The universally accepted authoritative decision on this aspect of thelaw is the decision in the case of – Edwards (Inspector of Taxes) v.Bairstow and Another (supra). The respondents were assessed forpayment of income tax in respect of a transaction which was ‘anadventure in the nature of trade*. The Commissioners of Income Taxto whom the appeal was made discharged the assessment on theground that the transaction was not an "adventure in the nature oftrade*. The Crown stated a case for the opinion of the High Court onthe ground that the decision of the Commissioners was erroneous inpoint of law. From the High Court, this case stated went to the Courtof Appeal. Both the High Court and the Court of Appeal held that thecase stated for determination was purely a question of fact, and it wasnot open to either court to interfere with it. From the Court of Appealthis matter went up in appeal to the House of Lords. The House ofLords allowed the appeal, and laid down on what principles it wouldallow an appeal even where the case stated showed questions of factand showed no misconception of law.
Viscount Simonds at page 53 (E) said :
"For it is universally conceded that, though it is a pure finding offact, it may be set aside on grounds which have been stated in
various ways but are, I thinkthat the
commissioners have acted without any evidence, or on a view of thefacts which could not reasonably be entertained".
The oft quoted dictum on this aspect of the law is set out in thejudgment of Lord Radcliffe, Page 57 (H) ;
'When the Case comes before the court, it is its duty to examinethe determination having regard to its knowledge of the relevantlaw, If the Case contains anything ex facie which is bad law andwhich bears on the determination, it is, obviously, erroneous in pointof law. But, without any such misconception appearing ex facie, itmay be that the facts found are such that no person acting judiciallyand properly instructed as to the relevant law could have come to
the determination under appeal. In those circumstances, too, thecourt must intervene. It has no option but to assume that there hasbeen some misconception of the law, and that this has been
responsible for the determination I do no*
think that it matters much whether this state of affairs is describedas one in which there is no evidence to support the determination,or as one in which the evidence is inconsistent with, andcontradictory of, the determination, or as one in which the true andonly reasonable conclusion contradicts the determination*.
Lord Radcliffe'finally summed up as follows :
‘The court is not a second opinion, where there is reasonable
ground for the first . . . . . . Their duty is no more
than to examine those facts with a decent respect for the tribunalappealed from and, if they think that the only reasonable conclusionon the facts found is inconsistent with the determination come to,to say so without more ado*, (page 59 E).
The House of Lords applying these principles held ‘that the finding thatthe transaction was not 'an adventure in the nature of trade' must beset aside because the Commission had acted either without evidenceor on a view of the facts that could not reasonably be entertained.',and 'the assesment must be confirmed*. The principles laid down inthe Bairstow case (supra) have been followed in the case of D. S.Mahawithana, Appellant v. Commissioner of Inland Revenue (6). Thiscase considered the taxability of profits from an adventure in thenature of a trade in the instance of a case stated to the Supreme Courtunder Section 78 of the Income Tax Ordinance. The principles laiddown in Edwards v. Bairstow (supra) have been followed in anotherleading case Global Plant Ltd. v. Secretary of State for Health andSocial Security (7).
As the Rent Act gives the right of appeal to the Board of Review,’upon matters of law*, a like section which is relevant to the*interpretation of this section is Section 31 (D) (2) of the IndustrialDisputes Act, which is as follows :
'The appeal to the Supreme Court from an order of the LabourTribunal can be made only on questions of law*.
In view of Section 44 of the Rent Act and Section 31 (D) (2) of theIndustrial Disputes Act, the question arises, what are questions of law.and what are questions of fact ? The cases referred to above, the
Bairstow Case, an appeal the Global Plant Ltd. Case, an appeal. Re
Gilmore's Application (supra)-application for writ ot certiorari
Amsminic Case, (supra) an appeal, dealt with the issue what are
questions of law and questions of fact.
*
A long line of cases of the Supreme Court dealing with Section 31(D) (2) of the Industrial Disputes Act have laid down, what arequestions of fact and questions of law Such a leading caseis – Caledonian (Ceyicm) Tea & Rubber Estates Ltd. v. J. E. Hillman(8), the recent cases are- Bank of Ceylon v. Collettes Ltd. (9)Kalawana Election Petition – (Rajapakse v. Gunasekara) (10). A closestudy of the principles set down in these English and Ceylon casesreferred to above show that the principles adopted by a superior courtin considering a writ against an order of an inferior tribunal or court oran appeal on questions of law from an inferior court or tribunal arealmost the same or have come closer. However De Smith JudicialReview of Administrative Action (4th Ed )-Page 129-states asfollows :
'The criteria adopted, by the courts for distinguishing betweenquestions of law and questions of fact have not been
uniform Moreover, criteria applied in one
branch of the law may be largely irrelevant in another: it may beunwise to rely upon the fine distinctions drawn in income taxappeals or workmen’s compensation appeals as authoritativeguidance in appeals from other inferior tribunals or applications forcertiorari to quash determinations of the national insurancecommissioners or medical appeal tribunals for error of law on theface of the record. (In respect of this opinion) the relevant note 9 tothis passage states as follows – Nevertheless, the importantdecision of the House of Lords in Edwards v. Bairstow (supra) a taxcase in which the concept of a question of law was given a broadinterpretation, has been influential in other contexts, it has beenapplied, eg. in R. v. Medical Appeal Tribunal, exp. Gilmore (supra)a case of certiorari to quash for patent error of law, and in
ratingand arbitration cases, and in a case involving
the scope of the obligation to pay social security contributions(Global Plant Ltd. v. Secretary of State for Social Services (supra)and in a case concerning the registration of common
land and in unfair dismissal cases). Subject
to these qualifications, it is possible to make some meaningful
generalisations about the tests applied by the courts to discriminatebetween law and fact in administrative law. But we must first enteranother linguistic maze".
The above observations were made as a prelude to consider theorder made by the Rent Board of Review in respect of which thisapplication has been made. The duty of the Board of Review was toconsider the appeal "upon matters of law" (Either party has omitted tobrief this court with the petition of appeal filed ,in the Rent Board ofReview). The Rent Board of Review has gone on the premise that theRent Board had before it a question of law to be decided, that is,whether there was a lawful contract of tenancy between the petitionerand the 1 st respondent. The Board of Review had also held that thiswas dependant on the construction of documents as to whether fromthe documents produced a lawful contract can be inferred. It hasposed to itself the question – can a lawful contract be inferred fromthe documents ? The documents filed in this case are commonbusiness letters. The documents are not that kind of documentscontaining a contract clothed in legal terms and phraseology. TheBoard of Review has stated as follows : "The Rent Board has arrived attheir decision that the documents tendered indicate that theappellant-respondent is the tenant of the premises in question. Ananalysis of the documents, however, indicates that such an inferenceis not justified on a plain reading of the documents". Thus, it is clearthat the Rent Board has come to one conclusion "on a plain reading ofthe documents", and the Board of Review has come to a differentconclusion, "on a plain reading of the documents’. The Rent Boardhas taken into account that the petitioner Nicholas gave evidence.The Rent Board has taken into account that the sheet anchor of the1st respondent’s case was that their books or registers had GeorgeSteuart & Co. as tenant, but that those books were not produced. TheBoard of Review has not taken into account that Nicholas gaveevidence It has glossed over the non production of the documents bythe 1 st respondent. Further, the Rent Board of Review has held thafGeorge Steuart & Co. has acquiesced in the 1 st respondent deemingit to be the tenant. This is an erroneous conclusion on the facts anddocuments as George Steuart & Co. has consistently denied that itwas the tenant of the 1 st respondent. The Rent Board of Review hasreferred to and based its decision on three cases – firstly, the case ofCeylon Transport Board. Appellant v. W. A. D. Gunasinghe. (11). Inthis case Weeramantry, J. held that where a Labour Tribunal makes a
finding of fact for which there is no evidence – a finding which is bothinconsistent with the evidence and contradictory of it – the restrictionof the right of the Supreme Court to review questions of law does notprevent it from examining and interfering with the order based on sucha'finding if the Labour tribunal is under a duty to act judicially. TheRent Board of Review though it relied on this case has not shown thatthere was no evidence for the finding of the Rent Board and that thefinding was inconsistent with the evidence and contradictory of it. Inmy view what the Rent Board of Review has (tone is that it has on thesame material substituted the finding of facts and the opinion of theRent Board, with its own finding of facts and its opinion. What theRent Board of Review has done is to come to a different conclusion onthe facts of the case, from that of the Rent Board, and to give thatfinding a legal decoration or embellishment by reference to threecases – Gunasinghe 's. Case, the Bairstow Case and an Income Taxcase – Inland Revenue v. Fraser (12). The main question before theRent Board Was to determine, who was the tenant of Flat No. 47,whether it was the petitioner or George Steuart & Co. It wasestablished and admitted that the 1 st respondent was the landlord. Itwas established that the party who in fact paid rent was GeorgeSteuart & Co. and that it did so after deducting the same from thesalary of the petitioner. It was proved that the advance rent was paidby a cheque issued by the petitioner. The occupier of the premiseswas Nicholas, and under the Rent Act, the tenant has to be anoccupying tenant. In these circumstances the Rent Board had to makea decision as to who was the tenant. The term 'tenant* is a legal term,but a commonly understood and a known term. The order of the RentBoard shows that it correctly directed itself as to who is a 'tenant*. Itsfinding from the facts that Nicholas was the tenant, is an inference offact as set out in the judgment of Viscount Simonds in the BairstowCase (supra) *What are the characteristics of an adventure in thenature of trade is a question of law, but. assuming that the tribunal isCorrectly directed on the law. its inference from the facts whether aparticular transaction is, or is not, an adventure in the nature of trade,is an inference of fact*. Viscount Simonds – further states (Para. F) -'It is a question of law what is murder; a jury finding as a fact thatmurder has been committed has been directed on the law and actsunder that direction'. I hold that the decision of the Board of Review isnot in accordance with the principles of the cases cited by it in thecourse of the order, nor in accordance with the principles set out
in the cases referred to in the course of the judgment. The Rent Boardproperly directing itself as to who is a 'tenant* has drawn an inferenceof fact that the petitioner'was the tenant of the said premises. Itcannot at all be said that there was no evidence to pome to thisfinding, or that this finding is inconsistent with or contradictory of theevidence before the Rent Board. As stated earlier, what the RentBoard of Review has done is to substitute its own view of facts in placeof the findings of the Rent Board. I hold that the Rent Board of Reviewhas acted without jurisdiction or in excess of jurisdiction in holding thatthe petitioner was not the tenant of the. 1 st respondent in respect ofFlat No. 47 Gatle Face Court 2.
Due to these reasons, I grant a Mandate in the nature of a Writ ofCertiorari in terms of Article 140 of the Constitution, and quash thefindings of the Rent Board of Review.
Before I part with this judgment. I must make the observation thatthe Rent Board has made two orders. The first order was to grant acertificate of tenancy to the petitioner under section 35 (2). The RentBoard has made the second order to enter the name of the petitionerm the Rent Register. This order has to be interpreted, as an order toenter the petitioner's name in the Rent Register under Section 37 (1)of the Rent Act, and has to be considered, as an order made underSection 37 (6). The said section states that – 'the decision of theBoard shall be final and conclusive*. If so, the order under Section37 (6) will not be an appealable order under Section 40 (4) of theRent Act. The application made by the petitioner to the Rent Board fora certificate of tenancy marked *A‘ does not include an application toenter his name in the Rent Register under Section 37 (6) of the RentAct. The Rent Board has made that second order in consequence ofthe order made under Section 35 (2) of the Act. I will not express anopinion as counsel were not heard on this aspect of the matte/referred to by me.
Application for Writ of Certiorari is allowed with costs fixed at Rs.
1,500.
SIVA SELUAH, J. – I agree.
Application for Writ of Certiorari allowed.