S 44 Evidence Act – Manner in which lack of competency may arise – Civil appeal – Contention on appeal that trial Court had no jurisdiction to try the case – Defect in jurisdiction must appear on the face of the proceedings: RENGASAMY V ANNAMALAI  1 MLJ 46 FM CIVIL APPEAL NO 22 OF 1955 CA KL (Malaysia)
The Malayan Law Journal
RENGASAMY V ANNAMALAI
 1 MLJ 46
FM CIVIL APPEAL NO 22 OF 1955
DECIDED-DATE-1: 21 OCTOBER 1955
MATHEW CJ, WHYATT CJ (S) AND WILSON J
Civil appeal – Contention on appeal that trial Court had no jurisdiction to try the case – Defect in jurisdiction must appear on the face of the proceedings
This was an appeal from the decision of the High Court ordering inter alia “that the defendant do return to the plaintiff the eating-shop … with all chattels and fittings as described in the agreement dated the 30th day of July, 1951.” At the appeal, counsel for the appellant contended that the agreement annexed to the plaint was a tenancy agreement and that the respondent should have applied to the Rent Control Board under s. 12 of the Control of Rent Ordinance 1948 for permission to the institution of the present suit and as the respondent had omitted to do so, the High Court had no jurisdiction. This point was not raised before the trial Court.
(1) the appellant can only succeed on the jurisdiction issue if the defect
in jurisdiction was patent on the face of the proceedings;
(2) in this case the defect in jurisdiction was not patent on the face of
the proceedings and therefore the appeal must be dismissed.
Cases referred to
Farquharson v Morgan (1894) 1 KB 552
Buggin v Bennett 4 Burr 2037
HL Wrigglesworth for the appellant.
AK Sen for the respondent.
LAWYERS: HL Wrigglesworth for the appellant.
AK Sen for the respondent.
JUDGMENTBY: MATHEW CJ
(with whom Whyatt C.J.(S.) and Wilson J. agreed):– This is an appeal from the decision of the High Court ordering inter alia:—
“That the defendant do return to the plaintiff the eating-shop at No.
25 Camp Road, Port Swettenham, with all chattels and fittings as
described in the agreement dated the 30th day of July, 1951.”
Mr. Wrigglesworth for the appellant has contended that the agreement annexed to the plaint was a tenancy agreement, and that the respondent should have applied to the Rent Control Board under section 12 [*47] of the Rent Control Ordinance, 1948 for permission to the institution of the present suit and, having omitted to do so, the High Court was without jurisdiction. This point has been raised for the first time before us. The case proceeded in the Court below on the basis that the two points for decision were:–
(a) was the agreement extended? and
(b) did the plaintiff tender to the defendant the $ 1,000 due under
clause 7 of the agreement?
I can see no reason for disagreeing with the learned trial judge as to his findings on these two issues.
Mr. Wrigglesworth agreed that to succeed on his main ground of appeal it was necessary for him to satisfy this Court that the agreement annexed to the plaint must be capable of being construed as a landlord and tenant agreement without reference to the evidence which was recorded in the High Court. He has submitted that exclusive possession of the coffee-eating-house business premises flowed irresistably from the letting of the business and that there could not be a letting of the business without a letting of the premises. The agreement refers throughout to the letting of the business, and clause 3 deals with rent as follows:–
“The said renter shall on the first day of each and every month during
the continuance of this agreement without fail pay to the vendor the
said rent of $ 150 (dollars one hundred & fifty only) for the use of
the furniture and fittings as enumerated herein below and for the
conduct of the said business.”
Clause 4 allows the appellant to collect the rent from the upstairs sub-tenants of the respondent and to enjoy them for himself. In my view, it is unnecessary to decide this point one way or the other, and I will content myself with saying that it is doubtful whether the agreement can be construed in the sense that the appellant would have it.
The decisive point in this appeal is whether the appellant is entitled to benefit from the jurisdiction issue. I think the answer is to be found in Farquharson v Morgan (1894) 1 KB 552. The first part of the head-note reads:–
“Where total absence of jurisdiction appears on the face of the
proceedings in an inferior Court, the Court is bound to issue a
prohibition, although the applicant for the writ has consented to or
acquiesced in the exercise of jurisdiction by the inferior Court.”
A clear distinction is drawn in this case between patent and latent defects in jurisdiction. Lopes L.J. says (at p. 559):–
“The result of the authorities appears to me to be this: that the
granting of a prohibition is not an absolute right in every case where
an inferior tribunal exceeds its jurisdiction, and that, where the
absence or excess of jurisdiction is not apparent on the face of the
proceedings, it is discretionary with the Court to decide whether the
party applying has not by laches or misconduct lost his right to the
writ to which, under other circumstances he would be entitled.”
In Davey L.J.’s judgment, he quotes from Lord Mansfield’s judgment in Buggin v Bennet 4 Burr 2037 the following passage (p. 562):–
“If it appears on the face of the proceedings that the Court below have
no jurisdiction, a prohibition may be issued at any time, either before
or after sentence; because all is a nullity; it is coram non
judice. But where it does not appear on the face of the proceedings,
if the defendant will lie by and suffer that Court to go on under an
apparent jurisdiction, as upon a contract made at sea” (he was dealing
with an Admiralty case), “it would be unreasonable that this party who,
when defendant below, has thus lain by and concealed from the Court
below a collateral matter, should come hither after sentence against
him there and suggest that collateral matter as a cause of prohibition
and obtain a prohibition upon it after all this acquiescence in the
jurisdiction of the Court below.”
The learned Lord Justice continues:–
“The reason of the distinction between cases in which the excess of
jurisdiction appears on the face of the proceedings, and where it does
not so appear, is explained by Coleridge J. in Marsden v Wardle (3
E & B 695 at p 701). ‘There is reason’ says the learned Judge ‘for
refusing the writ after judgment in the Courts where the proceedings
set forth the detail of the matter, and the party has the opportunity
of moving before judgment. Then if he chooses to wait and take the
chance of judgment in his favour, he may be held incompetent to
complain of excess of jurisdiction if judgment is against him. There
is, however, good reason for departing from this principle where the
defect is apparent on the face of the proceedings below; because the
complaint in that case does not rest on the evidence of the
complainant; and, if such a defective record were allowed to remain and
to support a judgment, it might become a precedent: that which was in
truth an excess of jurisdiction might be considered to have been held
to be legal’.”
In this case the defect in jurisdiction is not patent on the face of the proceedings, and I would require far more extended argument than we enjoyed before I were satisfied that in fact there was any defect in jurisdiction.
I would dismiss the appeal with costs and order the deposit to be paid to the respondent’s solicitor.
Solicitors: Sm Yong & Co; AK Sen
LOAD-DATE: June 3, 2003