SENEVIRATNE AND OTHERS
COURT OF APPEALGUNAWARDENA, J.
C.A. 14/99RBR 5330
R.B. MATALE 2524/93NOVEMBER 17, 25, 1999
Writ of Certiorari – Decision of Rent Board of Review overturned thedecision of Rent Board – Jurisdiction – Primary facts – Jurisdictionalfact and non Jurisdictional fact – Difference – Question of law – Can theBoard of Review substitute Us own view?
The Petitioner sought to quash the decision of the Rent Board of Review,setting aside the order of the Rent Board, whereby die Rent Board hadheld that the Petitioner is the tenant and granted a certificate of tenancy.
It was contended that the Board of Review had no jurisdiction to interferewith or set aside the order of the Rent Board holding the Petitioner to bea tenant.
The question as to whether or not the Petitioner was in fact, a tenantwas a jurisdictional fact, i. e. the existence of the jurisdiction of theRent Board itself depended upon that fact.
Jurisdictional facts are matters which must exist as a conditionprecedent, so to say before a Court/Tribunal can properly takejurisdiction or cognizance of the particular matter or case. Nonjurisdictional facts are those which do not affect the power of a Tribunalto adjuciate concerning the subject matter in a given case.
A court dealing with an application for certiorari is ill adapted todeal with or consider and choose between disputed question of fact.
Since the decision of the Rent Board granting a certificate of tenancyimplies not only that a contract of tenancy subsists but also a decisionthat the Rent Board has jurisdiction to grant the relevant certificateor the decision granting the certificate of tenancy become a decisionon a question of law.
Surlyaratchi v. Seneviratne and others
(U. De Z. Gunawardena, J.)
The Board of Review has appellate powers in respect of the decisionof the Rent Board, and as such can substituted its own findings orviews for that of the Rent Board.
The Board of Review had overturned the decision of the Rent Boardon the paucity or inadequacy of evidence to maintain the finding. Bymisdirecting itself on the facts and consequently holding that landlord- tenant relationship exist between the Petitioner and the Respondentthe Rent Board has gone wrong on the law assuming or rather usurpingJurisdiction which it does not possess in terms of the law.
APPLICATION for a Writ of Certiorari.
Cases referred to :
Terry v. Huntington
R v. Fulham ■ Rent Tribunal – ex R Phillipe – (1950) 2 ALL ER 211
Woodhouse v. Peter Brotherhood – (1972) 2 All ER 520
A. K. Premadasa, P.C., with Ms. Nilani Somadasa for Petitioner.
P. A. D. Samarasekera P.C.. with Keertht Sri Gunawardena for Is'
Cur. adv. vult.
September 07. 2000.
U. DE Z. GUNAWARDENA, J.The petitioner has made this application for a writ ofcertiorari to quash the decision of the Rent Board of Reviewsetting aside the order of the Rent Board. Matale, whereby thesaid Rent Board had held the petitioner to be the tenant and onthat basis granted a certificate of tenancy to the petitioner inrespect of the premises bearing No. 10/3. Malwatta Road. Matale.
The only point raised by the Learned President's Counselfor the petitioner – tenant was that the Rent Board of Reviewhad no jurisdiction to interfere with or set aside the order of theRent Board holding or declaring the petitioner to be the tenantand on that basis granting a certificate of tenancy to the petitioner.Of course, no Court of law can review the decision of the RentBoard on this question as to whether or not a certificate of
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tenancy ought to be granted, if it was validly made within itsjurisdiction. Such a decision or declaration of the Rent Board,that is granting a certificate of tenancy to the petitioner wasbased, in the argument of the learned President's counsel forthe petitioner, on a factual finding to the effect that the petitionerwas the tenant of the Is1 respondent in respect of the relevantpremises. The decision granting the certificate of tenancy, beingbased on that factual finding, it was further argued, that decisionwas not appealable. It has to be recognized that in terms ofsection 40(4) of the Rent Act No. 7 of 1972. as the LearnedPresident's Counsel for the petitioner – tenant had pointed out,an appeal to the Board of Review from a decision of Rent Board,would lie only on a question of law. In other words, the argumentmeant that the power of the Rent Board, to decide whether ornot the petitioner was a tenant – that being, in the submissionof the learned President's counsel, a question of fact, wasexclusive:
But that argument is not tenable since the question as towhether or not the petitioner was, in fact, a tenant was ajurisdictional fact i. e. the existence of the jurisdiction of theRent Board itself depended upon that fact. In this regard SirWilliam Wade had made the singularly pertinent comment that" as to these jurisdictional facts, tribunal's decision cannot beconclusive, for otherwise it could by its own error give itselfpowers which were never conferred by Parliament."
A distinction of course has to be drawn between jurisdictionaland non – jurisdictional facts which is clear in principle andfundamental in importance. Jurisdictional facts are matterswhich must exist, as a condition precedent, so to say, before aCourt or tribunal can properly take jurisdiction or cognizanceof the particular matter or case. On the other hand, facts whichdo not affect the power of a tribunal to adjudicate concerningthe subject matter in a given case are non – jurisdictional facts.
As Hale C. B. had said in Terry v. HuntingtonUl: "if theyshould commit a mistake in a thing that were within their power.
Surlyaratchl v. Senevlratne and others
(V. De Z. Gunawardena, J.)
that would not be examinable here." Application of this conceptof non – jurisdictional facts has been explained in "AdministrativeLaw" by Wade and Forsyth, in relation to a rent tribunal itself,as follows: -" A rent tribunal's findings as to the state of repair ofthe property, the terms of tenancy and the defaults of landlordor tenant will probably not affect its jurisdiction in any way andwill therefore be immune from jurisdictional challenge."
In R. v. Fulham121 an order made by the Rent Tribunalreducing the rent was quashed as the tribunal had, it was held,made a mistake of law by erroneously treating payment made bythe tenant as a premium when, in fact, such payment had beenmade in respect of some work done by the landlord. The RentTribunal would have had the power to reduce the rent only if apremium had in fact, been paid. A premium had to be paid inorder to find the jurisdiction of the Rent Tribunal. Since thepayment that had been made was not, in fact, a premium, thetribunal had acted in excess of its powers in making an orderfor reduction of rent. In that instance, the question whether ornot a premium had been paid being a jurisdictional or collateralfact, the Court had to inquire into the fact whether or not thatfact existed, for the inferior tribunal i. e. Rent Tribunal (Fulham)couldn't have given itself jurisdiction by a wrong decision uponthe question whether or not the payment was a premium.
The written submissions made on behalf of the petitionerherself sets out the correct legal position although suchsubmissions had stultified and subverted the petitioner's owncase. The relevant excerpt from Wade cited by the LearnedPresident's Counsel for the petitioner was as follows:- "Findingsof fact are the domain where a deciding authority or a tribunalcan fairly expect to be master in his own house, provided onlythat the facts are not collateral or jurisdictional".
What has to be understood from the above excerpt, citedstrangely enough, by the Learned President's Counsel for thepetitioner – tenant, is this: that there is a distinction betweenthe central or the main question that the tribunal has the power
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to decide by itself conclusively, and other questions, which areknown as jurisdictional or collateral, upon which the jurisdictionitself of the tribunal depends.
A Court dealing with an application for certiorari is ill -adapted to deal with or consider and choose between disputedquestions of fact. In proceeding for judicial review the Courtcannot undertake such an exercise as such, where there is aconflict of evidence in regard to a fact upon which a point of lawarises. Although the Court will, in the generality of cases, refrainfrom interfering in cases of conflict of evidence, yet the court willseek to ascertain whether "there was evidence before thetribunal which would justify a reasonable tribunal reaching thesame conclusion."
In the case in hand, the Rent Board of Review had overturnedthe decision of the Rent Board of Matale on the paucity orinadequacy of evidence to sustain the finding of the Rent Boardi. e. that the petitioner was a tenant of the respondent in respectof the premises in question referred to above and as such wasentitled to be granted a certificate of tenancy. The main question,before the Rent Board, in this matter was whether or not thecertificate of tenancy ought to be granted to the petitioner. Butthe jurisdictional fact, that is, the fact upon which the jurisdictionof the Rent Board depended, to decide the main matter, was asto whether the petitioner was entitled to tenancy rights in relationto the relevant building or to put in another way whether therewas a contract of tenancy between the petitioner and the lslrespondent in respect of the aforesaid premises.
Since the decision of the Rent Board granting a certificateof tenancy to the petitioner implies not only that a contract oftenancy subsists between the petitioner and the Is* respondentbut also a decision that the Rent Board has jurisdiction to grantthe relevant certificate – the decision granting the certificate oftenancy becomes a decision on a question of law. As explainedabove, granting a certificate of tenancy could not have beenchallenged in the Board of Review, if the order granting the
Surlyaratchl v, Senevlratne and others
(U. De Z. Gunawardena, J.)
certificate had been validly made within the jurisdiction of theRent Board and the'Rent Board, could have had the jurisdictionto grant the certificate only if there was the relationship oflandlord and tenant, between the petitioner and the 1strespondent. By misdirecting itself on the facts, and consequentlyholding that landlord – tenant – relationship exists between thepetitioner and the respondent, the Rent Board has gone wrongon the law by assuming or rather usurping a jurisdiction whichit does not possess in terms of the Law. It is to be rememberedthat in R. v. Fulham Rent Tribunal ex. P. Philippe (Supra),referred to above, it was held that the tribunal had made amistake of law and acted in excess of its jurisdiction by treatinga payment as a premium when, in fact, that payment had beenmade in respect of some work done by the landlord. The ordermade by the Rent Tribunal reducing the rent was quashed sincethe payment was not, in law, a premium.
In Woodhouse v. Peter Brotherhood131 which is persuasivein this regard, it was held that the question in issue, i. e. theright conclusion to be drawn from primary facts involved theinterpretation pf the Contracts of Employment Act 1963 and,therefore was one of Law.
Once the primary facts are ascertained, the decision as towhether or not a landlord – tenant relationship exists betweenthe parties is a matter of legal inference. The tribunal has toconsider, on the ascertained facts, whether the facts satisfy thelegal definition of the relationship of landlord and tenant or of acontract of tenancy.
It is significant to note that the one and only point that wasraised in this case by the petitioner was that the decision of theRent Board, Matale, to grant a certificate of tenancy to thepetitioner being one based on a finding of fact viz. that thepetitioner was the tenant in respect of the relevant premises -no appeal could have been preferred therefrom to the rent Boardof Review. It is to be observed that in the case of R. v. Fulhamreferred to above it was held that the Rent Tribunal, by erroneouslytreating as a premium a payment that had, in fact, been made
Sri Lanka Law Reports
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by the tenant as a premium (and so assuming the power toreduce the rent) had made a mistake of law and acted in excessof its powers. Likewise, the Rent Board of Matale had. bymistakenly treating the petitioner as the tenant in respect of thepremises in question and so granting a certificate of tenancy tothe petitioner, had made a mistake of law. As explained above,by its own error, that is by treating the petitioner as the tenant,when, in fact, the facts did not warrant such a finding, the RentBoard of Matale had assumed or exercised powers or functionswhich were never conferred upon it by law (Parliament). It isalso to be remembered that the Board of Review has appellatepowers in respect of the decisions of the Rent Board of Mataleand as such, (unlike a Court exercising powers under the judicialreview procedure) can substitute its own finding or view for thatof the Rent Board Under the judicial review procedure it isinconvenient and almost impossible decide questions of facts.
Of course, on the question, as to whether or not the petitionerwas a tenant, the facts were disputed but 1 need not say anythingmore than that the facts before the Rent Board of Review weresuch as to "justify a reasonable tribunal reaching the sameconclusion" as the one that the Rent of Board of Review did. i. e.the evidence did not warrant a finding that the petitioner was atenant in respect of the premises in question. It is worthrepeating that the only point that demanded consideration, onthe submissions made by the learned President's counsel forthe petitioner, was as to whether or not the appeal from thedecision of the Rent Board, Matale granting a certificate oftenancy to the petitioner was on a question of law. In other wordsthe decision of the Board of Review refusing a certificate oftenancy to the petitioner was not challenged as being unwarrantedon the totality of evidence.
For the reasons set out above 1 refuse the application madeby the petitioner and it is hereby refused.
U. DB Z. GUNAWARDENA, J.Application dismissed.
SURIYARATCHI v. SENEVIRATNE AND OTHERS