004-SLLR-SLLR-1996-V-2-ARTHUR-v.-MOOSAJEES-LIMITED-AND-OTHERS.pdf
ARTHUR
V.
MOOSAJEES LIMITED AND OTHERS
SUPREME COURTG.P.SDE SILVA, C.J.
DR. AMERASINGHE, J.
RAMANATHAN, J.
S.C. 109/95C.A. 1222/86JUNE 20, 1996.
Ceiling on Housing Property Law 1 of 1973 – S. 13, 39, Application topurchase- Application rejected- Appeal to Board of Review under S. 39 ofLaw 1 of 1973 – can the Petition of appeal be signed by an Attorney-at-Law.- Judicature Act 2 of 1978 – S.41 (1).- Evidence Ordinance-S.114.
The Appellant, the Tenant of the premises made an application to the 2ndRespondent Commissioner of National Housing, under S.13 of Law 1 of1973 to purchase the premises. This application was rejected. Thereafterthe Tenant lodged an appeal under S.39 of the said law signed by hisAttorney-at-Law to the Board of Review, this appeal was rejected on theground that the Petition of appeal should be signed by the Appellant him-self. The Court of Appeal upheld the decision of the Board of Review, anddismissed the application of the Tenant. On appeal:
Held:
There is no prescribed form for lodging an appeal nor is there a prohi-bition in the CHP Law against an Attorney-at-Law signing a Petition ofappeal.
S.41 (1) of the Judicature Act, states that every Attorney-at-Law shall beentitled to assist and advise clients and to appear plead or Act in everyCourt or other institution. These words are clearly wide enough to enablean Attorney-at-Law to sign a Petition of appeal lodged in terms of S.39 (1)of the CHP Law.
The burden is on the 1st Respondent to establish that there was nosuch authority for the Attorney-at-Law to sign the Petition of appeal.
Per G.P.S. de Silva, C.J.
"A party is not bound by a concession made by counsel on a matterwhich relates directly to the construction of a statute”.
The Board of Review has misconstrued S. 39 (1) and rejected theappeal, the decision to reject the appeal is ultra vires the statute. The
principle is 11 no estoppel can legitimate action which is
Ultra Vires.1'
AN APPEAL from the judgment of the Court of Appeal.
Rohan Sahabandu for Appellant.
P.A.D. Samarasekara, P.C., with J.A.de Almeida for the 1st Respondent.
Cur. adv. vult.
July 05, 1996.
G. P. S. DE SILVA, C .J.
The Appellant is the tenant of the premises in suit owned by the1 st Respondent. He made an application to the Commissioner of Na-tional Housing under section 13 of the Ceiling on Housing PropertyLaw to purchase the premises. After inquiry, the Commissioner ofNational Housing rejected the application. Against this order the Ap-pellant preferred an appeal to the Board of Review (section 39(1) ofthe Ceiling on Housing Property Law).
At the hearing of the appeal before the Board of Review, Counsel forthe 1 st Respondent raised a preliminary objection, namely, that therewas no valid appeal inasmuch as the petition of appeal has been signedby an Attorney-at-Law and not by the person "aggrieved by the deci-sion." The Board of Review upheld the objection and dismissed theappeal. Thereupon the Appellant moved the Court of Appeal by way ofan application for a Writ of Certiorari to have the order dismissing hisappeal quashed. The Court of Appeal refused his application and hencethe present appeal to this court.
It seems to me that the preliminary objection taken before the Boardof Review is of a highly technical nature and is devoid of merit. In thefirst place, there is no prescribed form for lodging an appeal nor isthere a prohibition in the Ceiling on Housing Property Law against anAttorney-at-Law signing a petition of appeal. It is not denied that theappeal has been filed within time; the grounds of appeal have beenindicated in the petition. Thus the essential requirements of section 39(1) have been complied with.
In affirming the order of the Board of Review, the Court of Appeal hasoverlooked a very relevant provision of the law, viz. section 41 (1) of theJudicature Act. In terms of that provision "every Attorney-at-Law shallbe entitled to assist and advise clients and to appear, plead or act inevery court or other institution established by law for the administra-tion of justice ….“ It seems to me that these words are clearly wideenough to enable an Attorney-at-Law to sign a petition of appeal lodgedin terms of section 39 (1) of the Ceiling on Housing Property Law. Thefirst step taken by a "person aggrieved" is to file a petition of appeal.More often than not, a party would seek legal advice at this stage. Itwould not be in accord with either reason or logic to take the view thata petition of appeal signed by an Attorney-at-Law is invalid unless thereis a specific provision in the Ceiling on Housing Property Law to thecontrary.
The Board of Review made the observation that there was no evi-dence that the Attorney-at-Law who signed the petition of appeal hadthe authority of the "person aggrieved." Here, the Board of Reviewhas misdirected itself. The presumptions set out in section 114 of theEvidence Ordinance applies and the burden is on the 1st Respond-ent to establish that there was no such authority. This the 1st Re-spondent failed to do.
In the written submissions filed on behalf of the 1st Respondent ithas been pointed out to us that at the hearing before the Board ofReview, counsel who appeared for the Appellant has conceded thatthere is no valid appeal before the Board. It is urged that this is animportant fact which has been suppressed in the application for aWrit of Certiorari filed before the Court of Appeal and that this amountsto a lack of uberrima fides. It seems to me that this submission is notwell founded. A party is not bound by a concession made by Counselon a matter which relates directly to the construction of a statute.The failure to refer to the concession made by Counsel in the appli-cation for a Writ of Certiorari has no relevance to the maintainability ofthe application.
The next point urged in the written submissions filed by the 1stRespondent is that the Appellant is estopped from raising the ques-tion of the validity of the appeal since his counsel has "concededthe point in the lower tribunal." The Board of Review has misconstruedsection 39(1) of the Ceiling on Housing Property Law and rejectedthe appeal. The decision to reject the appeal is ultra vires the stat-ute. The principle is"no estoppel can legitimate action which
is ultra vires" (H.W.R.Wade, Administrative Law, 6th Edn. page 262).Thus this submission is not acceptable.
For these reasons, the appeal is allowed with costs, and the judg-ment of the Court of Appeal is set aside. I direct that a mandate in thenature of a Writ of Certiorari do issue to quash the decision of theBoard of Review dated 23.8,86 (P4).
The appeal is remitted to the Board of Review for decision on the mer-its.
DR. AMERSINGHE, J. -1 agree.
RAMANATHAN, J. -1 agree.
Appeal Allowed.