Devraj v Patel (Civil Appeal No. 16 of 1955) [1955] EACA 143 (1 January 1955)

### APPELLATE CIVIL

Before CRAM. Ag. J.

### KARMAN DEVRAJ. Appellant

#### $\overline{v}$ .

# MANIBHAI ISHERBHAI PATEL, Respondent.

# (Civil Appeal No. 16 of 1955)

## Landlord and tenant—Increase of Rent (Restriction) Ordinance, 1949—Section 4 -Jurisdiction of Board, quorum-Change in composition of Board during hearing—Whether causing ex lege loss of jurisdiction or failure in natural justice—Or merely an irregularity resulting in neither.

The Central Rent Control Board, composed of the chairman and two ordinary members, the statutory quorum required by section 4 of the Increase of Rent (Restriction) Ordinance, 1949, sat to hear an application. The Board. adjourned after one witness, the landlord's evidence-in-chief had been part-heard. A year later a quorum of the Board, consisting of the same two ordinary members but with the deputy chairman substituted for the chairman heard the remainder of the evidence, and, having found that the landlord was credible, decided in his favour. The deputy chairman had stated that he proposed to read over the record and to proceed. No objection was taken to this course. At the continued hearing the landlord reiterated the important part of his evidence. The tenant appealed principally on the ground that the change in the composition of the Board had caused a failure in justice and jurisdiction.

Held (12-7-55).—(1) The Rent Control Board, by section 4 of the Increase of Rent (Restriction) Ordinance, 1949, has a statutory composition and must have a chairman or deputy chairman and a *quorum*. Whenever there is a statutory *quorum* the Board has jurisdiction which it does not lose $ex$ lege merely by a change in its composition in course of a hearing.

(2) Where after adjournment, evidence is found to be part-heard, the better and<br>indeed the proper course, when there has been a change in the composition of the Board, is to rehear the evidence, but should the changed Board elect to go on, although<br>an irregularity, such irregularity is not, of itself, gross enough to cause an appellate Court to intervene unless there has been a failure in natural justice.

(3) If a Board has to form an opinion as to the credibility of a witness, with intervening change in its composition during hearing, so that the new member is not in a position to observe the demeanour of the witness at a time when that opinion alone could have been formed, any finding on the credibility of that witness might be so unreliable as to amount to a failure in natural justice, leading to a reversal of the finding by the appellate court. It could not be said that the deputy chairman was not present at such a time nor in a position not to form a reliable opinion as to the credibility of the landlord as a witness.

(4) If it could be shown that the new member of the Board had his mind affected by the reading of a faulty, insufficient or misleading record of evidence, which he had not been present to hear, then, any finding might be so unreliable as to amount<br>to a failure of natural justice. No such criticism had been or could, legitimately, be levelled against the record of the Board on appeal.

(5) Assuming hypothetical scales of justice, an irregularity might be gross enough<br>not only to cause the balance to go down on the side of injustice but also cause loss of jurisdiction, as might occur if a member of the Board, who had not heard any of of philosocholi, as many the amount of the second, which had not been gross irregularity was to be<br>discovered because the deputy chairman had been present throughout the hearing, save<br>part of the evidence of the landlord, hearing.

#### Appeal dismissed.

Cases cited: Coleshill v. Manchester Corporation, (1928) 44 T. L. R. 258 C. A.; In re Application of British Reinforced Concrete Engineering Co. Ltd., (1929) 45 T. L. R. 186; Joseph v. Joseph (1948) 117 L. J. R. 513; Fulker v. Fulker, (1936) 3 A. E. R. 636;<br>Whittle v. Whittle, (1939) 1 A. E. R. 374; Knott v. Knott, (1935) P. 158.

Case distinguished: Meghji Karman v. Karamshi Devraj, (1951) C. A. No. 736 of 1951 (unreported).

### Oulton for petitioner.

D. N. Khanna for respondent.

JUDGMENT.—The appellant tenant appeals from a decision of the Central Rent Control Board ordering him to vacate premises by 1st June, 1955. The grounds of appeal are, first, that as the composition of the Board changed during the hearing of the evidence on the merits, the Board, as eventually composed, had no jurisdiction nor could jurisdiction be conferred by consent and, second, without prejudice to the first ground, even if the Board as eventually constituted had jurisdiction then it misdirected itself in taking into account evidence given before the Board as originally constituted.

It was not disputed on appeal that, after some evidence on the merits had been led before a quorum of the Board consisting of the chairman and two others, there was an adjournment. The tenant gave part of his evidence-in-chief but had not completed his examination when the Board adjourned. The same two members but with the deputy chairman, who had not heard the earlier part of the tenant's evidence-in-chief, sat nearly a year later and heard the rest of the evidence-in-chief of the tenant and his cross-examination and re-examination and all the rest of the evidence. The deputy chairman recorded that there was no objection to his taking the place of the chairman. The examination-in-chief before adjournment extends over some 37 lines of typescript and on resumption over some, 37 more lines. Some 37 lines of cross-examination follow and re-examination extended over five lines.

The deputy chairman relied for procedure on Order 17, rule 10, of the Civil Procedure (Revised) Rules, 1948. This rule runs: —

"Where a Judge is prevented by death, transfer or other cause from concluding the trial of a suit, his successor may deal with any evidence taken down the foregoing rules as if such evidence had been taken down by him or under his direction under the said rules and may proceed with the suit from the stage at which his predecessor left it."

The rule may not necessarily apply to a tribunal consisting of several judges or members. In England, in a jury trial, Coleshill v. Manchester Corporation, (1928) 44 T. L. R. 258 C. A., the judge died after hearing the evidence of three of the plaintiff's witnesses and another judge having read his predecessor's notes continued with the trial. On appeal Scrutton, L. J., said: —

"... I think it a precedent which should not be followed in future. I doubt whether a judge has any jurisdiction to continue the hearing of a case in which witnesses have been called in Court in the course of a trial before a jury and another judge, it not being the case of evidence on commission or before an examiner."

The principle may not apply with the same force to a judge sitting without a jury. This dictum was considered in Re Application of British Reinforced Concrete Engineering Co. Ltd., (1929), 45 T. L. R. 186, where Mr. Justice Salter was presiding over a hearing by the Railway and Canal Commission. The judge

died after evidence had been led for four days. By consent, all parties asked the new presiding judge to read through the notes of the evidence and to continue. He agreed to do so and remarked that the dictum of Scrutton, L. J., was directed to a case heard before a jury where there was a conflict of evidence.

The point, although on different facts, was taken before Windham, J., in Meghji Karman v. Karamshi Devraj, Civil Appeal No. 736 of 1951, viz. that the constitution of the Rent Control Board was not constant throughout the trial of the case. But that appeal is not precisely on all fours with this in that one Board heard and disposed of a preliminary point although it is helpful in principle. There the application was considered on the merits by a Board consisting of, in the first place, a chairman and three members none of whom had heard the preliminary point. After part of the evidence had been given the Board adjourned and, when it sat again, still as a quorum, the members were the same, except the fourth was missing. The reduced Board still a *quorum* then heard the rest of the evidence but all three who came to a decision had heard all the evidence. There the appellant argued that the fluctuating composition of the Board was an irregularity not authorized by the Increase of Rent (Restriction) Ordinance, 1949, and one which offended against natural justice.

The learned judge, then cited section 4 (4) of the Ordinance and said: $-$

"Now there is nothing in section 4 (4), nor in any other provision of the Ordinance which lays down in determining a dispute falling within its iurisdiction that the composition of the Board shall remain constant throughout. The only requirement is that it shall always be presided over by the chairman or deputy chairman who shall sit with not less than two members. This requirement was complied with in the present case. For the rest, it seems to me that there can be no objection to the composition of the Board being varied during the course of the determination of a dispute provided always—and the proviso is an important one—that such variation does not offend against the concept of natural justice. An obvious example of a variation in composition which would so offend would be a case where the decision upon a dispute was given by a Board composed of members who, or any one of whom had not heard the whole of the evidence upon which that decision was given."

He referred to Joseph v. Joseph, (1948) 117 L. J. R. 513, as such an instance and he continued: $-$

"But here the position is very different. For the chairman and the two members of the Board who gave the decision had all heard all the evidence upon which it was based. That being so I am unable to see wherein natural justice was infringed. . . .

It must always be borne in mind that the Board performs its functions and delivers its decisions as a unit, and that, however composed, that unit remains the Board. In this it differs from a bench of (say) four judges. The retirement of one of the four judges halfway through a trial or appeal would no doubt vitiate the judgment or judgments ultimately delivered by the remaining three because, the trial or appeal having commenced before four individual judges, the parties would (subject to any statutory provision to the contrary) be entitled to have their case considered and adjudicated by all four of them. A bench is not a unit in this sense in the same way as a Board is a unit. So long as the Board is at any given moment properly constituted the only objection to any alteration in its composition is where such alteration offends against natural justice."

That is, if I interpret the views of the learned judge accurately, the issue is not so much one of jurisdiction but of natural justice, although it might be argued that a gross offence against natural justice could conceivably result in a loss of jurisdiction. The Board may change its composition but so long as it is composed of a chairman or deputy chairman and amounts to a quorum it has jurisdiction but what any Board however composed may do in a partheard case must be in accord with the principles of natural justice. That is in Meghji Karman's case the appellant's contention that the trial was a nullity *merely* because the Board did not remain constant in its composition was rejected and it was rejected because there had been no failure in natural justice. The learned judge, however, dealt only obiter dicta with a situation in which the composition of the Board changed during the hearing of the evidence so that one member who came to a decision had not heard all the evidence. On appeal to the Court of Appeal for Eastern Africa the point of jurisdiction was not argued.

Cases in England where the composition of statutory tribunals have altered in the course of a trial are not the most relevant authorities because they concern appeals from benches who do not record evidence themselves but have a clerk who takes down the substance of the evidence, whereas the Board has no rules but the chairman, in practice, records the evidence. The first of these is $Fulker v$ . Fulker, (1936) 3 A. E. R. 636. In that case the hearing of a wife's summons was adjourned for three months. The evidence was taken before a bench of four justices. They adjourned the summons for three months. When the justices next sat, although they were again four in number, two were new and had not sat at the original hearing. Merriman, $P_{\cdot\cdot}$ , said:-

"I am going to say nothing whatever to prevent justices from doing what I think any of us would feel we were entitled to do, if we had really and truly adjourned the case for a definite period and then resumed the hearing at the end of that period, namely, read our notes and refresh our minds as to what had happened on the previous occasion without going through the form of having all the evidence again. It would be intolerable to put such a burden upon the justices any more than it would be to put it upon any other judicial tribunal. That is one thing."

It is in order to continue after adjournment with the same bench of justices, subject, if necessary, that they refresh their memories from the record. He continued:-

"What happened is another, for, in spite of the objection of the advocate appearing for the husband, this course was taken: the notes of the evidence of the witnesses taken on the previous hearing were read over to the court newly constituted on Sept. 9. It is added that the form was gone through of swearing the witnesses and then reading their evidence out, but there was no new examination or cross-examination of the witnesses in the ordinary sense of the word and at the end of it all the justices came to a new determination... Now I am clearly of opinion that, whatever may be said as to the propriety—about which I have no doubt, as I have already said-of the same tribunal on a real adjournment reading over its notes to refresh its memory and then coming to a determination for the first time, it is impossible to uphold an order based, as this was, on evidence which had never been heard at all viva voce by two of the justices but based upon a mere reading of a note of the witnesses' evidence heard by two members of the court in that form for the first time. If there were nothing else in the case I should feel myself obliged to set aside a decision thus arrived at. I do not think that it is necessary to cite authority but it happened to come into my mind, as I was in that case myself, that the Court of Appeal had expressed themselves very strongly as to the impropriety of any such court adopting such a course in a case in which a judge and jury were trying the case—the jury of course being judges of fact—and the judge died after three witnesses had been heard. The case is the case of *Coleshill v. Manchester Corporation* (supra) and the remarks of Scrutton, L. J. While they did not think it necessary to set aside what had been done, having regard to the consents which had already been given, the strongest view was expressed as to the impropriety of a judge taking up the trial where it had been left, by reading the shorthand notes of the evidence which had already been given, and that, notwithstanding the judges of fact were hearing the whole of the evidence again upon oath in the ordinary way. $\ldots$ ."

There was an objection to the procedure and not a consent as in the instant appeal. In the *Coleshill case* the judgment was not set aside merely because of the irregularity. In that case there was another serious objection, it was not the ground for setting aside the order of the justices, the order could have been set aside on the ground that two of the four justices had not heard any of the viva voce evidence and as there had been an adjournment, after the whole evidence had been taken the whole evidence ought to have been heard again because composition of the bench had changed.

The next instructive case is Whittle v. Whittle, (1939) 1 A. E. R. 374, where, upon a hearing of a summons to revoke a maintenance order, one of the two justices hearing the case found it necessary to retire from the court for the rest of the day. During his absence a principal witness was cross-examined and three other witnesses were called and examined. The evidence was read over in the presence of that justice on the next day. No objection to this was taken by the parties. The point was, in fact, taken by the court, on appeal.

In the instant appeal, no objection was taken to the new chairman continuing with the hearing. The evidence was not then and there read over but as the new chairman purported to make use of procedure under Order 17, rule 10, I can fairly presume he read the evidence already recorded in accord with the maxim omnia praesumuntur rite et solemniter acta esse.

### Merriman, P., in *Whittle's case* said: $\rightarrow$

"In this case the justices have given as their reason for their decision that they do not believe the witness who gave the evidence. Speaking for myself, if that were all in this case, I should find it very difficult indeed, if not impossible, to overrule the finding of the justices when their finding depends (on their own statement of the reasons for their decision) on their view of the credibility of a particular witness who has given direct evidence. . . . If they disbelieved that particular witness, it goes without saying that the rest of the evidence, circumstantial evidence of association is much weakened in effect, if not entirely destroyed. It is common ground in this case that the crux of the matter is the truth of the story told by the witness Mrs. Blenkhorn. Most unfortunately, as I think in this case, one of the two justices who heard the case retired from court for the rest of the first day's sitting in the middle of the cross-examination of this particular witness. . . Of the importance of the cross-examination of Mrs. Blenkhorn there cannot be the slightest possible doubt... It is true that, by the consent of both parties, the part of Mrs. Blenkhorn's cross-examination

which this justice did not hear ... was read over in his presence next morning and for that reason Mr. Adams (i.e. the appellant's counsel) has not felt himself able to take any point in this matter. The point in fact was taken by the court. I am prepared to take the responsibility for the point, whether or not the parties take it, because I think it cuts at the root. not merely of a finding of the court below, but of our findings here, which may be of the greatest importance to the parties."

He then referred to rule 67 (6) of the Matrimonial Causes Rules, 1937, and went on: $\rightarrow$

"This is not merely a question of misreception or rejection of evidence so that the last sentence does not apply. As I have said, the matter cuts much deeper than that. We are asked to give our own judgment in the matter, but in this case, as in every other case where the court below has heard the witnesses and we have not, and, naturally, as any Court of Appeal does, we feel ourselves bound to pay the greatest possible attention to findings of justices based expressly upon their view of the credibility of a particular witness whom they have seen. In this case, it is impossible to put that aspect of the matter before us. We are being asked to uphold the findings of these justices which were based expressly upon their view of the credibility of Mrs. Blenkhorn when we knew from the record that one of the two justices who was sitting never in fact heard half the crossexamination of this particular witness. In those circumstances, although I think the procedure adopted was very strongly to be deprecated, I think that it is open to the criticism, mutatis mutandis, which was directed to the corresponding procedure in *Coleshill v. Manchester Corporation* (supra). Having said that I think the procedure was objectionable and ought not to have been followed, I do not feel called upon to say as a matter of law that this court is bound to set aside the decision of the justices merely because some little part of the witness's evidence had been dealt with in this particular way. I am not laying down any such rule. I do say that in this particular case, having regard to the obvious importance of that particular witness, this procedure ought not to have been followed in the court below, but I am not sending this case back on that ground as a matter of law. What I am saying is that I, sitting in this court, am not prepared to decide this case on the basis of the finding of justices that a particular witness was not credible when I know that that particular witness's cross-examination was not fully heard by one of the two members of the court. For that reason I think that this case must be remitted to the justices for a further hearing. I have no doubt that the Bury Justices will think it proper that it should be dealt with before a fresh panel of justices."

But when the learned deputy chairman raised the issue of going on with the case on the evidence already recorded there was no objection taken nor any submission made that he should not or should at least read out the evidence recorded. Counsel for the appellant in Whittle's case felt he could not take the point as there had been some measure of consent to the procedure but in this appeal the advocate for the appellant has taken it. But even I felt I had to rule he was estopped by his consent from taking it it is a point which would probably have been taken by and now must be considered by this Court. The learned President was strongly opposed to the procedure adopted and had he considered the justices had erred in law, it seems plain he would have said so. As he did not and could not send the case back as a matter of law, i.e.

as an error in jurisdiction, he took the view that he could not accept the finding in fact of the justices that a witness was not credible when one of the two justices hearing the case had not been properly able to arrive at such a finding because he had not been present to observe the demeanour of the witness during part of an important cross-examination. But I have to notice that he had already ruled in *Knott* v. *Knott*, (1935) page 158, that he was not bound or estopped by the findings of justices on the question of adultery although these findings had the greatest evidential value and he went on to say: -

"I merely mention that decision to show how important it is that we ourselves should be satisfied in this case that the right decision has been arrived at on the right grounds before allowing ourselves to be swayed merely by the fact that the justices had seen witnesses and arrived at their view of the credibility of such witnesses."

The appeal to the Divorce Division was on fact as well as law whereas here there is appeal only in point of law and mixed fact and law. This has the effect, in my view, of moving the scale against the appellant when I come to consider if this appeal should end in a remit or not.

I refer also for clarification to the judgment of Hodson, J., in Whittle's $case:$ —

"It appears that during the course of Mrs. Blenkhorn's evidence, one of the justices who signed the order went out of court in the middle of the cross-examination and remained absent the whole of the remainder of that day. In those circumstances, it seems impossible to me to place for that reason on the decision the same reliance as one would do in the ordinary way. It is obvious that an appellate court will not lightly interfere with a finding of fact on the ground that the justices have had the opportunity of seeing the witnesses, which the appellate court has not had. Here that does not apply. $\ldots$ ."

I must remind myself again that this Court is sitting with powers of appeal restricted and issues of pure fact are outwith the ambit of its jurisdiction. But apart from that issue it is now clear that the Rent Control Board did not lose jurisdiction merely by reason of the change in its composition. What I have to consider is whether its finding can stand as a matter of natural justice. In other words, did the fact that the learned deputy chairman not have the advantage of hearing half of the examination-in-chief of the landlord so affect his mind on an issue of credibility or otherwise that the decision of the Board cannot be allowed to stand, or was there other good reason such as faulty or scanty record the deficiency of which denied the appellant justice. No point has been taken that the record was deficient and *ex facie* of it appears to be a record *verbatim* or a record of evidence made by a person accustomed and trained to record evidence. Even if this Court, on an issue of a finding in fact of credibility, considering that it could not be supported due to a failure of a member of the Board to be present could take cognizance of such an issue and make a remit it would not of course do so unless it was satisfied that the finding was unreliable. In the present case, I am not of the view that any such unreliability affects the finding. The landlord was fully cross-examined in the presence of all members of the Board who arrived at a decision as he was also heard in re-examination and in half of his examination-in-chief. The landlord gave some formal evidence on his first examination and on his second he repeated all or nearly all of the relevant and important part of his examination. I do not see in these circumstances how it can reasonably be said that the learned deputy chairman was not in a position to be able to assess the landlord's value as a truthful witness to such an extent that any finding he might make was or must be regarded as vitiated or that there was any failure in natural justice. The landlord's counsel on the second occasion took his client once more through the important part of his evidence-in-chief and defending counsel had a full opportunity to bring out any adverse matters in cross-examination. Whereas the appellant who gave evidence next was fully heard by all members of the Board. This appeal therefore is not at all on all fours with the situation faced by the learned judges in Whittle v. Whittle where they had to make up their own minds on the credibility of a witness but lacked reliable evidence, that evidence, of course was the finding of the justices and one of these they considered was not in a position to make any such a finding which could be relied upon.

There is one other case which I might consider and that is Joseph v. Joseph, (1947) 117 L. J. R. 513. This too was an appeal from justices to the Divorce Division and was heard by Lord Merriman. The ground of appeal was that the justices had acted without jurisdiction. The facts were briefly that justices heard evidence on a summons and indicated that there were faults on both sides but not enough effort had been made to reconcile and they made an *interim* order in favour of the children only. This, as the learned President noted, implied a reservation of the issue on the merits. The justices then sat again on the adjourned summons but this time they were composed of the original chairman and two entirely different justices. He was of the view that the two justices who had not heard any of the evidence had no jurisdiction to give a judgment whereas they had, in fact, made a separation order. The order was set aside as made without jurisdiction and the irregularities stigmatized as gross.

Once more that case is not on all fours with the present one. It is true there is a similarity by reason of a change in the composition of the Board during a hearing but in Joseph's case the two new justices had not heard any of the evidence. Lord Merriman was of the view that particularly where, the obiter dicta of the original bench who had heard all the evidence were not in favour of a finding of cruelty that for two new justices to be substituted and to come to an entirely different finding of substantiated cruelty was an irregularity so gross as to result in a loss of jurisdiction. In my view, I do not consider that the Board in this appeal lost jurisdiction for the irregularity (and I think it must be regarded as an irregularity) was not in my opinion gross. The better, even the proper course, would have been to have excluded the original evidence of the landlord and to have begun *de novo* but in reality this was the effect. All the important evidence was reiterated and I am not prepared to say that in the circumstances that the Board lost jurisdiction to make an order. That is there is a kind of scale of irregularity and where the irregularity makes the balance go heavily down into injustice then there is a loss of jurisdiction. But jurisdiction is not lost by the mere fact of a change in the composition of the Bench nor do I think that the decision in Joseph $v$ . Joseph (supra), conflicts with Whittle v. Whittle (supra), where it was held that there was no rule of law that an irregularity in composition of the bench must necessarily result in allowing an appeal as a matter of law. It is true that in Whittle v. Whittle the Bench remained the same with a temporary absence and in Joseph v. Joseph there was a change in the composition of the Bench as happened in this appeal but in Joseph $v$ . Joseph two justices had not heard any evidence yet they came to a contrary decision to that indicated earlier by those who had heard the evidence whereas in this appeal the differently constituted bench had heard virtually all the important evidence de novo.

The headnote to Joseph v. Joseph runs: —

"A court which has not heard the evidence in a case has no jurisdiction to make any order. $\therefore$ "

but that means all or a substantial or important part of the evidence and is not to be taken to lay down a rule of law that if one member of a court does not hear part of the evidence however formal or unimportant there is a loss of jurisdiction. Even if that were a rule of law so I should be of the view that the Board in this case had in reality heard all the evidence by repetition.

(Reported on the above grounds of appeal only.)