Chan Pui Yiu v. Bond Star Development Ltd.

IN THE COURT OF APPEAL

1996, No. 142
(Civil)

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J U D G M E N T

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Godfrey, J.A. :

Introduction

1. This is an application by the respondent to strike out the appellant's notice of appeal to this court from an order of the Lands Tribunal made on 6 June 1996. The respondent seeks to strike out the notice of appeal on the ground that it fails to raise any arguable point of law by way of challenge to the Lands Tribunal's order. An appeal to this court from an order of the Lands Tribunal lies only on a point of law (see s.11(2) of the Lands Tribunal Ordinance, Cap.17) and so we shall in due course have to examine the notice of appeal to see whether it does take any such point.

The proceedings below

2. The proceedings before the Lands Tribunal were proceedings brought by the appellant ("the landlord") against the respondent ("the tenant") for possession of premises at the rear portion of the first level, 24 Ming Yuen Western Street, North Point, described by the Lands Tribunal as "a kind of wooden hut with a corrugated roof in the common parts of the first level of the property".

The tenant's case below

3. The tenant objected to the landlord's claim for possession of the premises on two grounds; (1) that the tenant had acquired legal and beneficial ownership of the premises by virtue of adverse possession; and (2) that in any case the landlord was not the owner of the premises.

The Lands Tribunal's findings

4. The Lands Tribunal examined the facts which were said to support the tenant's claim to ownership of the premises by virtue of adverse possession. It rejected the tenant's claim and held on the facts that the tenant was at the date of the proceedings the tenant of the landlord.

The grounds of appeal (1) and (2)

5. The first two points (out of four) raised in the notice of appeal are directed to establishing that the Lands Tribunal had no jurisdiction to embark on a consideration of the tenant's claim to ownership of the premises and was bound to transfer the whole case to the High Court for determination of that issue under s.8A(1)(a) of the Lands Tribunal Ordinance, Cap.17, which provides for such transfer in cases where proceedings instituted in the Lands Tribunal are not within its jurisdiction. As distilled in argument, the tenant's point amounts to this; that once an alleged tenant, in proceedings before the Lands Tribunal, asserts that he is in occupation, not as a tenant at all, but as one who has acquired a title to the premises by adverse possession, then the Lands Tribunal is bound to transfer the proceedings to the High Court; it has no power even to consider whether on the facts the case on adverse possession can be made out. It was argued before us for the tenant that where such a point is taken on behalf of the tenant it must be dealt with by the Lands Tribunal at a preliminary hearing at which the only order the Lands Tribunal could properly make would be an order transferring the proceedings to the High Court. But, in my judgment, there is no substance in this argument. It is true that once such a point is taken by an alleged tenant, it does have to be dealt with as a preliminary point, either in proceedings taken for the determination of the point before the substantive hearing, or at the substantive hearing itself; for the question goes to the jurisdiction of the Lands Tribunal to entertain the proceedings. It is essential to found the jurisdiction of the Lands Tribunal that the parties before it are indeed landlord and tenant. If the "tenant" is not a tenant at all, then the Lands Tribunal would have no jurisdiction to consider the matter further. That is not to say, however, that the Lands Tribunal is not entitled to examine the facts in order to determine whether it has indeed got jurisdiction to entertain the case. In the present case, the Lands Tribunal did examine the facts. It came to the conclusion that the tenant's case on adverse possession had not been made out. It therefore proceeded to consider the case on the alternative footing that the alleged tenant was indeed a tenant. This was a perfectly proper proceeding. The tenant therefore has no hope of success in this appeal on points 1 and 2. They should both be struck out.

The grounds of appeal (3)

6. Point 3 in the notice of appeal was not pressed before us. I say no more about it other than that counsel for the tenant accepted before us that, if the case raised for the tenant on the basis of his alleged adverse possession was not made out, then he clearly was somebody's tenant; and that somebody could only be the landlord. There is no substance in point 3 and that point must be struck out also.

The grounds of appeal (4)

7. Point 4 raises a more difficult matter (at any rate, at first sight). Point 4 reads as follows :-

"The learned judge failed to meet the mandatory requirements of Section 69(1) of the District Court Ordinance, Chapter 336, to give the Respondent, Mr. Chan, a period of not less than four weeks to pay and failed to exercise his discretion to fix that period."

8. It became clear in the course of the argument that the reference in the notice of appeal to s.69(1) of the District Court Ordinance, Cap.336, which relates to proceedings for forfeiture for non-payment of rent, was misconceived. In 1993, the Lands Tribunal Ordinance, Cap.17, was amended so as to confer on the Lands Tribunal the powers of the High Court, instead of the District Court, to grant relief against forfeiture in cases of non-payment of rent. The power of the High Court to grant such relief is conferred on that court by s.21F of the Supreme Court Ordinance, Cap.4. So we should treat point 4 taken in the notice of appeal as if it had referred to that section instead of s.69(1) of the District Court Ordinance, Cap.336. But, even on that basis, the point is misconceived. It is true that under s.21F of the Supreme Court Ordinance, Cap.4, the power of the court to make an order for possession on forfeiture for non-payment of rent cannot lawfully be exercised by making an order for possession forthwith; the tenant must be given at least 4 weeks to pay off the arrears. And it is true that the order made by the Lands Tribunal here was an order for possession forthwith. But s.21F extends only to cases of forfeiture for non-payment of rent; and, as was submitted by counsel for the landlord (correctly, in my judgment) cases of forfeiture on that ground alone. In the instant case, the order for possession was made, not only on the ground of non-payment of rent, but also on the ground that the tenant had denied the landlord's title. That is a separate ground of forfeiture on the basis of which the Lands Tribunal was entitled to make an order for possession forthwith. For these reasons, point 4, too, is of no substance and ought to be struck out.

The result

9. All four points in the notice of appeal falling to be struck out, we should, in my judgment, strike out the whole notice of appeal. I say nothing as to the consequences of that; it may be (though I do not encourage it) that the tenant, on taking advice, may wish to apply to this court in separate proceedings for leave to appeal to this court out of time on points other than those taken in the present notice of appeal. If that is done, it will be for the division of this Court before whom that application comes to consider it on its merits, as to which, such points having been mentioned but not developed before us, I shall say nothing. As to the landlord's present application, I would hold that it succeeds. I would order that the notice of appeal be struck out and that the landlord's costs of the appeal (including his costs of this application) be taxed and paid by the tenant to the landlord.

Liu, J.A.:

10. I agree. I wish to make only two observations.

11. First, the proceedings "instituted" before the Tribunal were in respect to the Applicant's claim for possession. No proceedings were instituted by Chan Pui Yiu, seeking to establish a possessory title, which were, as envisaged by s. 8A of the Lands Tribunal Ordinance Cap. 17, "within the jurisdiction of the High Court or the District Court but which were not within the jurisdiction of the Tribunal". There were no instituted proceedings in the latter sense before the Tribunal for a transfer to be ordered. The proceedings instituted by the Applicant were, therefore, properly entertained by the Tribunal Presiding Officer.

12. Secondly, s. 21F of the Supreme Court Ordinance is argued to be an exclusive provision for a High Court action. I find that argument of counsel attractive.

13. As I have said, I agree with the decision of my Lord Godfrey that the Notice of Appeal be struck out because it is incompetent.

Nazareth, V.-P.:

14. I also agree with Godfrey JA. There are no material points of law disclosed in the grounds of appeal.

15. There is only one aspect of the matter to which I would refer, i.e. that the application to strike out was filed just a week ago, on the 5th of this month, and was served on the appellant on the same day. It has come up for hearing within 7 days. Although it appears that the appellant may have had some earlier indication of the basis upon which the application to strike out has been mounted, he has not had very much time. I would, therefore, pursuing the point touched upon by Godfrey JA, express the view that the striking-out will and should be without prejudice to any application the appellant may be able to make.

16. It is accordingly ordered that the appeal be struck out and that the landlord's costs of the appeal (including the costs of this application) be taxed (if not agreed) and paid by the appellant to the respondent.