[1955] EACA 137

## APPELLATE CIVIL

### Before DE LESTANG, J.

## THE QUEEN, Complainant

#### $\mathbf{v}$

# THE CHAIRMAN AND MEMBERS OF THE CENTRAL RENT CONTROL BOARD, Respondents

## EX PARTE CORBETT LIMITED

## Civil Proceeding No. 14 of 1955

Prerogative writ—Writs of certiorari and mandamus—Landlord and tenant— Increase of Rent and Mortgage (Restrictions) Ordinance, 1940—Civil Procedure and Practice—Use and function of writs in Kenya—When writs lie— What record should contain—Whether affidavit evidence admissible—Assessment of standard rent by Rent Control Board-Whether assessment reached on wrong principles—Whether denial of natural justice—Or error of law on face of record—Procedural obligations of Rent Control Board—Manner in which Board may obtain its information—Certiorari a discretionary remedy -Effect of long delay in applying-Appeal competent in law against assessment—Increase of Rent (Restriction) Ordinance, 1949, section 5 (1) $(p)$ — Board's power of review-Review refused without error on face of decision-Whether certiorari competent—Mandamus—No demand or refusal—Whether mandamus competent.

Until January, 1953, a Mr. and Mrs. Norburn were joint owners of a block of flats situate in Nairobi. In 1948, Mr. Norburn applied to the Rent Control Board to assess the standard rent, under the provisions of the Increase of Rent and Mortgage Interest (Restrictions) Ordinance, 1940. He supplied the valuation officer of the Board with a blue-print of the flats containing figures of the superficial areas; stated that the market value of his interest was £9,000 and attended at the flats with the officer. The officer thereupon calculated the gross valuation and upon this assessment the Board, without summoning Mr. Norburn to attend, assessed the standard rent. No appeal was filed. In January, 1953, the flats were conveyed to a private limited company, Messrs. Corbett Ltd., of which<br>Mr. Norburn was a director. In the second part of 1954, tenants of the flats -complained to the Board of rent overcharged, and, as a result, in February, 1955, the company applied to the Board to review its previous assessment of the standard rent. The Board, after hearing the tenants and the company refused the application. The company applied to the Supreme Court, on 26th February, 1955, for "an order *nisi* by way of certiorari and mandamus directed to" the chairman and members of the Board. The Board appeared.

Held (1-7-55).—(1) An "order of certiorari and mandamus" is not a remedy known to the law of the Colony and what was probably meant was a writ of certiorari and a writ<br>of mandamus. Such writs run in the Colony but they are separate remedies with different functions.

(2) The writ of certiorari has a double function; first, to prevent inferior courts and tribunals from exceeding their jurisdiction and, second, to correct errors of law appearing<br>on the face of the tribunal's record. It cannot be used for any other purpose.

(3) In an application for a writ of certiorari to issue the record must contain, at least, the document which initiates the proceedings, the pleadings and the adjudication, but not the evidence, nor the reasons unless the tribunal chooses to incorporate them.

(4) Where certiorari is granted on the ground of excess of jurisdiction, affidavit evidence is admissible but this is not so when it is granted on the ground of an error of law appearing on the face of the record, for the reason that the error must appear on the record itself. Nevertheless, affidavits, if not objected to, in practice, may be used<br>to supplement the record, disclosing the points of law that had been decided by the<br>tribunal. The record of the 1948 assessment h the only material was to be found in an affidavit sworn by a director of the company and another by an officer of the Board. No objection, however, was taken to thisprocedure.

(5) The Board is a quasi-judicial tribunal and could obtain information in any way thought best, always giving a fair opportunity to those who are parties to a controversy for correcting or contradicting any relevant statement prejudicial to their views. A party to a dispute before a tribunal of this nature is not entitled to an oral hearing: but that tribunal can act according to its own procedure and obtain its information in any way it thinks best, provided it gives a fair opportunity to those who are partiesto the controversy to correct or contradict any relevant statement prejudicial to their views.

(6) In assessing the rent at $7\frac{1}{4}$ per cent of its market value and in determining what that market value was the Board was clearly acting within the scope of its jurisdiction and the assessment could not be held to be bad in law.

(7) On the merits, the application to quash the 1948 assessment must fail but even had there been any merit in it, it would also have failed in view of the long delay that had been allowed to elapse since the assessment was made. Certiorari was a discretionary remedy and it would be a wrong exercise of discretion to allow such a remedy after a lapse of over five years.

(8) In any event, an appeal had lain against the 1948 assessment on a question of law by reason of section $2\lambda$ (7) of the Increase of Rent and Mortgage Interest (Restrictions) Ordinance, 1940. The assessment was now bei of law. On this ground alone the application for a writ of certiorari would have to have been refused.

(9) By section 5 (1) (p) of the Increase of Rent (Restriction) Ordinance, 1949, the Board was empowered at any time of its own motion or for good cause shown on application by any landlord or tenant to reopen any proceedings in which it has given a decision, determine any question, or make any order to revoke, vary or amend any<br>decision. The application to review could have been made only under that section. The Board had heard the application following the procedure of a court of law and had<br>refused it without giving any reasons for its decision. There was therefore no error<br>appearing on the face of the Board's decision and certi that decision.

(10) The writ of mandamus which the applicant sought was dependant on the writ of certiorari being granted and must accordingly have the same fate as the latter. But there was another reason why mandamus should not issue because it was sought to order the Board to assess the standard rent of the premises. A demand for performance<br>must precede an application for mandamus and the Board had never been asked to<br>assess the rent and it had never refused to do so. All that it was to review a previous assessment of standard rent and this it had refused to do.

Orders nisi on writs discharged.

Cases cited: Tara Singh Kundi v. Swedish Products Co., (1952) 25 K. L. R. 64;<br>Ram Nath Dhir, (1952) 25 K. L. R. 67; R. v. Northumberland Compensation Appeal<br>Tribunal; ex parte Shaw, (1951) 1 T. L. R. 270, (1952) 1 T. L. R. 161; Th Local Government Board v. Arlidge, (1915) A. C. 120 H. L.

Kean for applicant company.

Guthrie, Crown Counsel, for respondents.

JUDGMENT.-On 26th April, 1955, an order nisi was made directing the chairman and members of the Central Rent Control Board to show cause why an order of certiorari and mandamus [sic] should not issue to remove into this Court Assessment Case No. 2134 relating to a block of flats situated on L. R. 1870/IV/22, to quash the assessment made therein, further to quash a decision of the Central Rent Control Board made on 4th February, 1955, in the aforesaid assessment case. and to order the said Board to assess the standard rent of the said premises. The order follows closely the terms of the application.

Notice of the order was ordered to be given to the chairman and members of the Central Rent Control Board, who were also given leave to file affidavits in reply within 14 days.

I should like to point out in passing that an "order of certiorari and" mandamus" is not a known remedy to the law of this Colony. What is probably meant is a writ of certiorari and a writ of mandamus. Those writs do run here. but it is important to realize that they are separate remedies with differing functions. I shall assume the order to be writs for the purpose of this case.

On 27th June, 1955, Mr. Kean applied for the writs to made absolute, but the application was resisted by Mr. Guthrie, on behalf of the Board.

The matter rose in the following circumstances: Until January, 1953, Mr. and Mrs. Norburn were joint owners of certain premises consisting of a block of three flats situated on a plot of land known as L. R. 1870/IV/22. In 1948, on the application of Mr. Norburn, the Rent Control Board of Nairobi assessed the standard rent of the premises at Sh. 1,050 per month. In January, 1953, the premises were transferred to Messrs. Corbett Limited, a private limited liability company, hereinafter referred to as the company, of which Mr. Norburn is a director. No appeal was ever lodged against the assessment of rent and no application was made to the Board concerning the premises until quite recently. During the second half of last year various tenants complained to the Board that they were being overcharged, and as a result, in February of this year the company applied to the Board to review the previous assessment of rent. The Board, after hearing the tenants and the company, refused the application.

It is contended by Mr. Kean that the 1948 assessment should be quashed, because-

- (1) it was arrived at by the Board without taking evidence and without hearing the parties interested and thus amounted to a denial of natural justice: - (2) it was not based on any evidence as to the market cost of construction of the premises; - (3) it was based on a percentage, namely $7\frac{1}{4}$ per cent per annum of an assumed figure not based on the market cost of construction; - (4) standard rent cannot be assessed at less than 10 per cent, except for reasons which must be given.

He relies for this on two cases: Tara Singh Kundi v. Swedish Products Co., 25 K. L. R. 64: Ram Nath Dhir, 25 K. L. R. 67.

Mr. Kean further contends that the decision of the Board refusing to review the 1948 assessment should be quashed because in arriving at its decision the Board acted on wrong principles and refused to consider that the original assessment was wrong for the reasons already given.

- Mr. Guthrie has contended- - (1) that the 1948 assessment was arrived at properly and not in breach of any $\frac{1}{2}$ principle of natural justice; - (2) that there is no error of law on the face of the 1948 assessment nor on the face of the decision in 1955 refusing to review that assessment; - (3) that in any event certiorari and mandamus, being discretionary, the Court ought not to exercise its discretion in favour of the applicant in the present case because of the long delay and because the applicant had a right of appeal which he has not thought fit to exercise.

It would perhaps clarify the position if I were to state here the functions of the writ of certiorari. It has a double function. The first is to prevent inferior courts and tribuna's from exceeding their jurisdiction, and the second is to correct errors of law appearing on the face of the tribunal's record. It cannot be used for any other purpose: vide Rex v. Northumberland Compensation Appeal Tribunal, *ex parte Shaw*, (1951) 1 T. L. R. 270; also (1952) 1 T. L. R. 161, where the law on this matter was reviewed at length. These cases would repay a careful study by litigants. Apart from deciding when the writ lies, they also explain what the record should contain. In the latter case, at page 171, Lord Justice Denning, after quoting a number of cases, said this: $-$

"Following these cases, I think the record must contain at least the document which initiates the proceedings, the pleadings, if any, and the adjudication; but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them."

It is also well settled that when certiorari is granted on the ground of excess of jurisdiction affidavit evidence is admissible, but not so when it is granted on the ground of error of law appearing on the face of the record, for the simple reason that the error must appear on the record itself: see The King v. Nat Bell Liquors, Ltd., (1922) 2 A. C. 128. Nevertheless, affidavits, if not objected to, may be used to supplement the record. That this is so appears clearly from the following passage in Rex v. Northumberland Compensation Appeal Tribunal (supra) at page 171, per Lord Justice Denning: $-$

"Notwithstanding the strictness of the rule that the error of law must appear on the face of the record, the parties could always by agreement overcome this difficulty. . . It became a regular practice for parties to supplement the record by affidavits disclosing the points of law that had been decided by the tribunal. This course was only taken if no-one objected. $\cdots$ Thus, in the numerous cases on the validity of server's rate it was the regular course of proceeding for affidavits to be lodged stating the objection in law to the rate; and the case was decided on the objections stated in the affidavits... The explanation of all these cases is, I think, that the affidavits are treated by consent as if they were part of the record and make it into a speaking order."

In view of what I have stated above, it is surprising that the record of the 1948 assessment has not been placed before the Court and the only material that I have is to be found in an affidavit sworn on 8th March, 1955, by Mr. J. P. E. Norburn, a director of the company, and another one on 30th May, 1955, by J. H. Sidney, as assessment and valuation officer of the Rent Control Board since 1946. From these affidavits it appears that as a result of an application for assessment of the standard rent of the premises, the subject-matter of the suit, made by Mr. Norburn, Mr. Sidney inspected the premises in the presence of Mr. Norburn and received from him a blue-print of the property, prepared by a firm of architects of which Mr. Norburn was a partner, showing the full architectural details and bearing in his handwriting figures of the superficial areas. Mr. Sidney was informed by Mr. Norburn that the market value of his interest in the premises was £9,000, and from the information obtained he made a number of calculations as a result of which he arrived at a gross valuation of £8,767 9 0 $d_{\odot}$ , which he entered on an assessment form and delivered to the Board.

On 8th September, 1948, the Board assessed the standard rent at Sh. 1,050 per month. It is common ground that when the Board made its assessment it did not summon Mr. Norburn to attend.

I am unable to agree with Mr. Kean's submission that this omission constituted a denial of justice. Lord Loreburn, L. C., in Board of Education v. Rice, (1911) A. C. 179, page 182, discussing the obligations of a quasi-judicial or administrative tribunal, said: -

"They have no power to administer an oath and need not examine witnesses. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their views."

This statement of the law was reaffirmed by the House of Lords in Local Government Board v. Arlidge, (1915) A. C. 120 H. L., where it was held that a party to a dispute before a tribunal of this nature is not entitled to an oral hearing, but that the tribunal can act according to its own procedure and obtain its information in any way it thinks best, provided it gives a fair opportunity to those who are parties to the controversy to correct or contradict any relevant statement prejudicial to their views.

Applying these principles to the facts emerging from the affidavits, I find that there was no denial of natural justice in the present case. The assessment was made on the application of Mr. Norburn, the premises were inspected in his presence and he was given the opportunity, which he took, of furnishing all the information he desired.

As regards the submission that the assessment was bad in law, I can see nothing on the affidavits to show that it was. The Board was clearly acting within the scope of its jurisdiction is assessing the rent at $7\frac{1}{4}$ per cent of its market value and in determining what that market value was. Consequently, on the merits, this application to quash the 1948 assessment fails. Had there been, however, any merit in the application, it would also have failed in view of the long delay that has elapsed since the assessment was made. Certiorari is a discretionary remedy, and it would in my view be a wrong exercise of discretion to allow such a remedy after a lapse of over five years. I also agree with Mr. Guthrie that an appeal lay against the 1948 assessment on a question of law. Vide section 2A (7) of the Increase of Rent and of Mortgage Interest (Restrictions) Ordinance, 1940. That assessment is being attacked today on, inter alia, point of law. On this ground also I would therefore refuse the application.

As regards the application to quash the decision of the Board refusing the application for revision, I have before me the record of the proceedings before the Board and affidavits, Section 5 (1) $(p)$ of the Increase of Rent (Restriction) Ordinance, 1949, empowers the Board at any time of its own motion or for good cause shown on application by any landlord or tenant to reopen any proceedings in which it has given a decision, determine any question, or make any order, and to revoke, vary or amend such decision, determination or order. The application to review could only be made under that section. The Board in the present case heard the application, following the procedure of a Court of law and refused it without giving any reason for its decision. There is, therefore, no error appearing on the face of the Board's decision and certiorari cannot lie to quash that decision.

Mr. Kean has also argued that the assessment made in 1948 under the Increase of Rent and of Mortgage Interest (Restrictions) Ordinance, 1940, ceased to have effect when on 6th September, 1949, that Ordinance was repealed by the Increase of Rent (Restriction) Ordinance, 1949, and that consequently the standard rent of any premises is that fixed by the 1949 Ordinance only. If this contention is correct, which it is unnecessary for me to decide in the present case, it affords yet another ground for dismissing this application. If the 1948 assessment ceased to exist

on 6th September, 1949, the company's application to the Board for a review of that assessment was misconceived and clearly wrong, because, on Mr. Kean's argument, there was nothing to review. Mr. Kean has, however, argued that although in form his application was for review, it was in effect for a reassessment in accordance with the provisions of the 1949 Ordinance. I am unable to accept this submission, because it is clear from the proceedings before the Board that it was never suggested that the 1940 assessment had ceased to have any effect.

The writ of mandamus which the applicant seeks is dependent on the writ of certiorari being granted and must accordingly have the same fate as the latter. There is, however, another reason why mandamus should not issue in the present case. The mandamus sought is to order the Board to assess the standard rent of the premises. A demand for performance must precede an application for mandamus. In the present case the Board was never asked to assess the rent, and it never refused to do so. An application was made to it to review a previous assessment which is quite a different thing and it was this that it refused to do.

In the result the order nisi, which I have throughout treated as writ nisi will be discharged with costs. $\cdot$