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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6 (17 December 1968)
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Cite as: [1969] 2 AC 147, [1968] UKHL 6

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JISCBAILII_CASE_CONSTITUTIONAL

    Parliamentary Archives,
    HL/PO/JU/4/3/1159

    HOUSE OF LORDS

    ANISMINIC LIMITED

    v.

    FOREIGN COMPENSATION COMMISSION
    AND ANOTHER

    Lord Reid
    Lord Morris of Borth-y-Gest
    Lord Pearce
    Lord Wilberforce
    Lord Pearson

    Lord Reid

    MY LORDS,

    In 1956 the Appellants owned a mining property in Egypt which they
    claim was worth over £4,000,000. On the outbreak of hostilities in the
    autumn of that year it was occupied by Israeli forces and damaged to the
    extent of some £500,000. On 1st November 1956 property in Egypt
    belonging to British subjects was sequestrated by the Egyptian Government
    and on 29th April 1957, after the Israeli forces had withdrawn, the Egyptian
    Government authorised a sale of the Appellants' property and it was sold
    to an Egyptian organisation referred to in this case as T.E.D.O.

    The Appellants' property had included a large quantity of manganese ore
    and steps were taken by them to dissuade their customers from buying ore
    from T.E.D.O. This seems to have embarrassed the Egyptian authorities,
    and on 23rd November 1957 an agreement was made between the Appel-
    lants, T.E.D.O. and the Sequestrator General whereby the Appellants
    purported to sell to T.E.D.O. for a price of £500,000 their whole business
    in Egypt, but this was not to include any claim which the Appellants might
    " be entitled to assert against any government authority other than the
    " Egyptian government, as a result of loss suffered by, or of damage to or
    " reduction in the value of" their business or assets during the events of
    October and November 1956.

    Beyond the fact that the Appellants received the sum of £500,000 the
    effect of the agreement is not very clear; for their property had already
    been sold to T.E.D.O. by the Sequestrator. Before the agreement was
    made the Appellants had no legal right to sue in Egypt either for the return
    of their property or for compensation for its loss. But they had some hope
    or prospect of getting something after relations between the United Kingdom
    and the United Arab Republic returned to normal. This could have
    been a direct payment to them by the Egyptian Government: or, if the
    method was followed which the British Government had adopted in earlier
    cases, the Egyptian Government might pay a lump sum of compensation
    to the British Government to cover all claims by British subjects, and
    then it would be in the discretion of the British Government to determine
    how any such sum should be distributed among claimants. And similarly
    with regard to damage done by the Israeli forces there might have been
    some payment made by the Israeli Government. It is not disputed that
    by this agreement the Appellants gave up or assigned to T.E.D.O. any claim
    they might have to receive compensation directly from the Egyptian Govern-
    ment : but I think that they did not give up or assign any claim, hope or
    prospect they might have to receive something from the British or Israeli
    Governments.

    The next material event was the making of a treaty between the Govern-
    ments of the United Kingdom and the United Arab Republic on 28th
    February 1959. That treaty provided for the return to British subjects of
    their sequestrated property excepting properties sold between 30th October
    1956 and 2nd August 1958: those excepted properties were listed in
    Annex E which included the property of " Sinai Mining (subject to a special
    " arrangement)". Sinai Mining was the name of the Appellant company
    before its name was changed to Anisminic. It is not clear what was meant
    by " subject to a special arrangement". Under the treaty the United Arab
    Republic paid to the British Government the sum of £27,500,000 in full and

    2

    final settlement of claims of a kind mentioned in Article IV. It is not
    disputed that at that stage the Appellants had no legal right to claim to
    participate in that sum. The disposal of that sum was in the discretion of
    the British Government. The most the Appellants had was a hope that they
    would receive some part of it.

    This case arises out of the making of an Order in Council: —The Foreign
    Compensation (Egypt) (Determination and Registration of Claims) Order
    1959, S.I. 1959 No. 625. That Order has now been superseded by a similar
    order, S.I. 1962 No. 2187 and I shall refer throughout to this later order.
    These orders were made under powers contained in the Foreign Compensa-
    tion Act 1950. That Act set up the Respondent, the Foreign Compensation
    Commission, to deal with compensation payments made by the Governments
    of Yugoslavia and Czechoslovakia but it also provides for the Commission
    acting should there be future compensation agreements with foreign
    governments.

    The Appellants duly submitted a claim under this Order to the Respondent
    Commission. They also submitted a separate claim in respect of damage
    done by the Israeli forces. These claims were opposed by the Legal Officer
    of the Commission and after sundry procedure including a long oral hearing
    the Commission on 8th May 1963 made a Provisional Determination that:
    "... the above-named Applicants, Anisminic Limited, fail to establish
    " a claim under the Egypt Order aforesaid in respect of the matters
    " referred to in paragraph 2(a) of the Amended Answer
    " AND THAT the Application in respect of such claims be and is
    " hereby dismissed

    " BUT THAT the claim in respect of damage referred to in paragraph
    " 2(b) of the Amended Answer is fit for registration under Article 8
    " of the said Order in a sum to be hereafter determined."

    The claim which was dismissed was the main claim with which this case
    is concerned, and the claim which was held fit for registration was a claim
    in respect of the damage done by the Israeli forces.

    Browne J. on 29th July 1966 made a declaration that the Respondent's
    Provisional Determination was a nullity and that the Respondents are
    under a statutory duty to treat the Appellants' first claim as established.
    The Court of Appeal on 5th April 1967 set aside the judgment of Browne J.
    and the Appellants now seek to have his judgment restored.

    The Respondent's first argument was that in any event such a declaration
    could not competently be made. I agree with your Lordships in rejecting
    that argument. If the Appellants succeed on the merits the declarations
    made by Browne J. should be restored.

    The next argument was that, by reason of the provisions of section 4(4)
    of the 1950 Act, the Courts are precluded from considering whether the
    Respondent's determination was a nullity, and therefore it must be treated
    as valid whether or not enquiry would disclose that it was a nullity. Section
    4(4) is in these terms:

    " The determination by the Commission of any application made to
    " them under this Act shall not be called in question in any court of
    " law."

    The Respondent maintains that these are plain words only capable of
    having one meaning. Here is a determination which is apparently valid:
    there is nothing on the face of the document to cast any doubt on its
    validity. If it is a nullity, that could only be established by raising some
    kind of proceedings in Court. But that would be calling the determination
    in question, and that is expressly prohibited by the Statute. The Appellants
    maintain that that is not the meaning of the words of this provision. They
    say that " determination " means a real determination and does not include
    an apparent or purported determination which in the eyes of the law has
    no existence because it is a nullity. Or, putting it in another way, if you
    seek to shew that a determination is a nullity you are not questioning the
    purported determination—you are maintaining that it does not exist as a
    determination. It is one thing to question a determination which does
    exist: it is quite another thing to say that there is nothing to be questioned.

    3

    Let me illustrate the matter by supposing a simple case. A statute pro-
    vides that a certain order may be made by a person who holds a specified
    qualification or appointment, and it contains a provision, similar to section
    4(4), that such an order made by such a person shall not be called in question
    in any Court of law. A person aggrieved by an order alleges that it is a
    forgery or that the person who made the order did not hold that qualification
    or appointment. Does such a provision require the Court to treat that
    older as a valid order? It is a well established principle that a provision
    ousting the ordinary jurisdiction of the Court must be construed strictly—
    meaning, I think, that, if such a provision is reasonably capable of having
    two meanings, that meaning shall be taken which preserves the ordinary
    jurisdiction of the Court.

    Statutory provisions which seek to limit the ordinary jurisdiction of the
    Court have a long history. No case has been cited in which any other
    form of words limiting the jurisdiction of the Court has been held to protect
    a nullity. If the draftsman or Parliament had intended to introduce a new
    kind of ouster clause so as to prevent any enquiry even as to whether the
    document relied on was a forgery, I would have expected to find something
    much more specific than the bald statement that a determination shall not
    be called in question in any Court of law. Undoubtedly such a provision
    protects every determination which is not a nullity. But I do not think
    that it is necessary or even reasonable to construe the word " determination "
    as including everything which purports to be a determination but which is in
    fact no determination at all. And there are no degrees of nullity. There
    are a number of reasons why the law will hold a purported decision to be
    a nullity. I do not see how it could be said that such a provision protects
    some kinds of nullity but not others: if that were intended it would be
    easy to say so.

    The case which gives most difficulty is Smith v. East Elloe R.D.C. [1956]
    A.C. 736 where the form of ouster clause was similar to that in the present
    case. But I cannot regard it as a very satisfactory case. The plaintiff was
    aggrieved by a compulsory purchase order. After two unsuccessful actions
    she tried again after six years. As this case never reached the stage of a
    statement of claim we do not know whether her case was that the Clerk
    of the Council had fraudulently misled the Council and the Ministry, or
    whether it was that the Council and the Ministry were parties to the fraud.
    The result would be quite different, in my view, for it is only if the authority
    which made the order had itself acted in mala fide that the order would be
    a nullity. I think that the case which it was intended to present must
    have been that the fraud was only the fraud of the Clerk because almost
    the whole of the argument was on the question whether a time limit in
    the Act applied where fraud was alleged; there was no citation of the
    authorities on the question whether a clause ousting the jurisdiction of the
    Court applied when nullity was in question, and there was little about
    this matter in the speeches. I do not therefore regard this case as a binding
    authority on this question. The other authorities are dealt with in the
    speeches of my noble and learned friends, and it is unnecessary for me to
    deal with them in detail. I have come without hesitation to the conclusion
    that in this case we are not prevented from enquiring whether the order of
    the Commission was a nullity.

    It has sometimes been said that it is only where a tribunal acts without
    jurisdiction that its decision is a nullity. But in such cases the word " juris-
    " diction " has been used in a very wide sense, and I have come to the
    conclusion that it is better not to use the term except in the narrow and
    original sense of the tribunal being entitled to enter on the enquiry in
    question. But there are many cases where, although the tribunal had juris-
    diction to enter on the enquiry, it has done or failed to do something in the
    course of the enquiry which is of such a nature that its decision is a nullity.
    It may have given its decision in bad faith. It may have made a decision
    which it had no power to make. It may have failed in the course of the
    enquiry to comply with the requirements of natural justice. It may in perfect
    good faith have misconstrued the provisions giving it power to act so that it
    failed to deal with the question remitted to it and decided some question
    which was not remitted to it. It may have refused to take into account

    4

    something which it was required to take into account. Or it may have based
    its decision on some matter which, under the provisions setting it up, it had
    no right to take into account. I do not intend this list to be exhaustive.
    But if it decides a question remitted to it for decision without committing any
    of these errors it is as much entitled to decide that question wrongly as it is
    to decide it rightly. I understand that some confusion has been caused by
    my having said in Armah's case [1968] A.C. 192 at page 234 that if a tribunal
    has jurisdiction to go right it has jurisdiction to go wrong. So it has if one
    uses " jurisdiction " in the narrow original sense. If it is entitled to enter
    on the enquiry and does not do any of those things which I have mentioned
    in the course of the proceedings then its decision is equally valid whether it
    is right or wrong subject only to the power of the Court in certain circum-
    stances to correct an error of law. I think that if these views are correct the
    only case cited which was plainly wrongly decided is Davies v. Price [1958]
    2 W.L.R. 434. But in a number of other cases some of the grounds of
    judgment are questionable.

    I can now turn to the provisions of the Order under which the Commis-
    sion acted, and to the way in which the Commission reached their decision.
    It was said in the Court of Appeal that publication of their reasons was
    unnecessary and perhaps undesirable. Whether or not they could have been
    required to publish their reasons, I dissent emphatically from the view that
    publication may have been undesirable. In my view the Commission acted
    with complete propriety as one would expect looking to its membership.

    The meaning of the important parts of this Order is extremely difficult to
    discover, and in my view a main cause of this is the deplorable modern
    drafting practice of compressing to the point of obscurity provisions which
    would not be difficult to understand if written out at rather greater length.

    The effect of the Order was to confer legal rights on persons who might
    previously have hoped or expected that in allocating any sums available
    discretion would be exercised in their favour. We are concerned in this case
    with Article 4 of the Order and more particularly with paragraph (l)(b)(ii) of
    that Article. Article 4 is as follows :

    "4. (1) The Commission shall treat a claim under this Part of the Order
    " as established if the applicant satisfies them of the following matters: —

    " (a) that his application relates to property in Egypt which is referred
    "to in Annex E;

    " (b) if the property is referred to in paragraph (1)(a) or paragraph (2)
    " of Annex E—

    " (i) that the applicant is the person referred to in paragraph
    " (1)(a) or in paragraph (2), as the case may be, as the
    " owner of the property or is the successor in title of such
    " person; and

    " (ii) that the person referred to as aforesaid and any person
    " who became successor in title of such person on or
    " before 28th February 1959 were British nationals on 31st
    " October 1956 and 28th February 1959 ;

    " (c) if the property is referred to in paragraph (1)(b) of Annex E—

    " (i) that the applicant was the owner on 31st October 1956
    " or, at the option of the applicant, on the date of the sale
    " of the property at any time before 28th February 1959
    " by the Government of the United Arab Republic under
    " the provisions of Egyptian Proclamation No. 5 of 1st
    " November 1956 or is the successor in title of such owner ;
    " and

    " (ii) that the owner on 31st October 1956 or on the date of
    " such sale, as the case may be, and any person who
    " became successor in title of such owner on or before
    " 28th February 1959 were British nationals on 31st
    " October 1956 and 28th February 1959.

    " (2) For the purposes of sub-paragraph (b)(i) of paragraph (1) of this
    " Article, any reference in paragraph (2) of Annex E to the estate of

    5

    " a deceased person shall be interpreted as a reference to the persons
    " entitled to such estate under the testamentary dispositions or intestacy
    " of such deceased person.

    " (3) For the purposes of sub-paragraphs (b)(ii) and (c)(ii) of para-
    " graph (1) of this Article, a British national who died, or in the case
    " of a corporation or association ceased to exist, between 31st October
    " 1956 and 28th February 1959 shall be deemed to have been a British
    " national on the latter date and a person who had not been born, or
    " in the case of a corporation or association had not been constituted,
    " on 31st October 1956 shall be deemed to have been a British national
    " on that date if such person became a British national at birth or
    " when constituted, as the case may be; provided that a converted
    " company shall for the purposes of sub-paragraphs (b)(ii) and (c)(ii) of
    " paragraph (1) of this Article be deemed not to have been a British
    " national.

    " (4) If it shall appear to the Commission in relation to any Egyptian
    " controlled company referred to in paragraph (l)(a) or paragraph (2)
    " of Annex E that under the provisions of any Egyptian measure the
    " shares of any British national in such company have at any time
    " between 30th October 1956 and 28th February 1959 been sold, or
    " purported to be sold, by a sequestrator or by any person acting under
    " his authority without the consent of the holder thereof, the Com-
    " mission may, if they think it just and equitable so to do, and shall
    " if the company is a converted company, hold that such shares were
    " property in Egypt referred to in paragraph (1)(b) of Annex E and
    " determine any application in relation to the company or to such
    " shares as if the said company had been incorporated in Egypt and
    " named in the said paragraph."

    The task of the Commission was to receive claims and to determine the
    rights of each applicant. It is enacted that they shall treat a claim as
    established if the applicant satisfies them of certain matters. About the first
    there is no difficulty: the Appellants' application does relate to property
    in Egypt referred to in Annex E. But then the difficulty begins.

    Annex E originally only included properties which had been sold during
    the sequestration, so the person mentioned in Annex E as the owner is the
    person who owned the property before that sale, and his claim is a claim
    for compensation for having been deprived of that property. Normally he
    will be the applicant. But there is also provision for an application by a
    " successor in title". The first difficulty is to determine what is meant
    by " successor in title ". Before the Order was made the position was that
    former owners whose property had been sold during the sequestration had
    no title to anything. They had no title to the property because it had been
    sold. And they had no title to compensation. All they had was a hope
    or expectation that they might receive some compensation. They had no
    legal rights at all. It is now common ground that " successor in title "
    cannot mean the person who obtained a title to the property which formerly
    belonged to the applicant. The person who acquired the property from the
    sequestrator was generally an Egyptian and he could have no ground for
    claiming compensation. So " successor in title " must refer to some person
    who somehow succeeded to the original owner as the person now having
    the original owner's hope or expectation of receiving compensation. The
    obvious case would be where the original owner had died. But for the
    moment I shall leave that problem.

    The main difficulty in this case springs from the fact that the draftsman
    did not state separately what conditions have to be satisfied (1) where the
    applicant is the original owner and (2) where the applicant claims as the
    successor in title of the original owner. It is clear that where the applicant
    is the original owner he must prove that he was a British national on the
    dates stated. And it is equally clear that where the applicant claims as being
    the original owner's successor in title he must prove that both he and the
    original owner were British nationals an those dates subject to later provisions
    in the Article about persons who had died or had been born within the
    relevant period. What is left in obscurity is whether the provisions with

    6

    regard to successors in title have any application at all in cases where the
    applicant is himself the original owner. If this provision had been split up
    as it should have been, and the conditions, to be satisfied where the original
    owner is the applicant had been set out, there could have been no such
    obscurity.

    This is the crucial question in this case. It appears from the Com-
    mission's reasons that they construed this provision as requiring them to
    enquire, when the applicant is himself the original owner, whether he had
    a successor in title. So they made that enquiry in this case and held
    that T.E.D.O. was the applicant's successor in title. As T.E.D.O. was not
    a British national they rejected the Appellants' claim. But if, on a true
    construction of the Order, a claimant who is an original owner does not
    have to prove anything about successors in title, then the Commission made
    an enquiry which the Order did not empower them to make, and they
    based their decision on a matter which they had no right to take into
    account. If one uses the word " jurisdiction " in its wider sense, they went
    beyond their jurisdiction in considering this matter. It was argued that the
    whole matter of construing the Order was something remitted to the Com-
    mission for their decision. I cannot accept that argument. I find nothing
    in the Order to support it. The Order requires the Commission to consider
    whether they are satisfied with regard to the prescribed matters. That is
    all they have to do. It cannot be for the Commission to determine the
    limits of its powers. Of course if one party submits to a tribunal that its
    powers are wider than in fact they are, then the tribunal must deal with
    that submission. But if they reach a wrong conclusion as to the width
    of their powers, the Court must be able to correct that—not because the
    tribunal has made an error of law, but because as a result of making an
    error of law they have dealt with and based their decision on a matter
    with which, on a true construction of their powers, they had no right to deal.
    If they base their decision on some matter which is not prescribed for their
    adjudication, they are doing something which they have no right to do and,
    if the view which I expressed earlier is right, their decision is a nullity.
    So the question is whether on a true construction of the Order the Appli-
    cants did or did not have to prove anything with regard to successors in
    title. If the Commission were entitled to enter on the enquiry whether
    the Applicants had a successor in title, then their decision as to whether
    T.E.D.O. was their successor in title would I think be unassailable whether
    it was right or wrong: it would be a decision on a matter remitted to
    them for their decision. The question I have to consider is not whether
    they made a wrong decision but whether they enquired into and decided
    a matter which they had no right to consider.

    I have great difficulty in seeing how in the circumstances there could be
    a successor in title of a person who is still in existence. This provision is
    dealing with the period before the Order was made when the original
    owner had no title to anything: he had nothing but a hope that some day
    some how he might get some compensation. The rest of the Article makes
    it clear that the phrase (though inaccurate) must apply to a person who can
    be regarded as having inherited in some way the hope which a deceased
    original owner had that he would get some compensation. But " successor
    in title " must I think mean some person who could come forward and make
    a claim in his own right. There can only be a successor in title where the
    title of its original possessor has passed to another person, his successor, so
    that the original possessor of the title can no longer make a claim, but his
    successor can make the claim which the original possessor of the title could
    have made if his title had not passed to his successor. The " successor "
    of a deceased person can do that. But how could any " successor " do that
    while the original owner is still in existence? One can imagine the improbable
    case of the original owner agreeing with someone that, for a consideration
    immediately paid to him, he would pay over to the other party any com-
    pensation which he might ultimately receive. But that would not create a
    " successor in title " in any true sense. And I can think of no other way in
    which the original owner could transfer inter vivos his expectation of receiv-
    ing compensation. If there were anything in the rest of the Order to indicate

    7

    that such a case was intended to be covered, we might have to attribute
    to the phrase " successor in title" some unusual and inaccurate meaning
    which would cover it. But there is nothing of that kind. In themselves the
    words " successor in title " are in my opinion inappropriate in the circum-
    stances of this Order to denote any person while the original owner is still
    in existence, and I think it most improbable that they were ever intended
    to denote any such person. There is no necessity to stretch them to cover
    any such person. I would therefore hold that the words " and any person
    " who became successor in title to such person" in Article 4(l)(b)(ii) have
    no application to a case where the applicant is the original owner. It
    follows that the Commission rejected the Appellants' claim on a ground
    which they had no right to take into account and that their decision was a
    nullity. I would allow this appeal.

    Lord Morris of Borth-y-Gest

    MY LORDS,

    The Appellants made claims to participate in the compensation received
    from the United Arab Republic. Pursuant to the authority given by the
    Foreign Compensation Act, 1950, Orders in Council were made providing for
    the determination of such claims by the Foreign Compensation Commission.
    The application of the Appellants was the subject of an oral hearing which
    took four days. At the hearing the applicants were represented by counsel.
    In due course the Commission, in provisional determinations, gave their
    decision. The applicants thereupon brought an action claiming that the
    determinations of the Commission were wrong in law or invalid. But the
    Act provides that the determination by the Commission of any application
    made to them " shall not be called in question in any court of law ". For
    many days in successive stages of these proceedings the applicants have done
    nothing else. They have presented the arguments which they unsuccessfully
    advanced before the Commission. The Commission had been properly
    constituted and had been presided over by its appointed Chairman—an
    eminent Queen's Counsel. How, then, have the Appellants justified this
    somewhat startling procedure?

    As the facts which comprise the background to this litigation are so care-
    fully narrated in the judgment of the learned judge I need only refer to them
    in summary form. At the time of the events at Suez, in October, 1956, the
    Appellants (then called The Sinai Mining Company, Ltd.) were carrying out
    operations for the extraction of manganese ore in the Sinai Peninsula. They
    had mining leases or concessions granted to them by the Egyptian Govern-
    ment. Their undertaking was valued at about £4,400,000. A proclamation
    was passed (Proclamation No. 5) which resulted in the undertaking being
    placed under sequestration. That was on the 1st November, 1956. The
    company lost possession and control of their undertaking and it became
    illegal under Egyptian law for them to dispose of or deal with their under-
    taking in the absence of ministerial consent. There followed a period within
    which Israeli forces caused serious damage (to the extent of £532,773) to the
    property. Those forces withdrew in or about April, 1957. In that month
    (on the 29th) the United Arab Republic passed Decree No. 387. By that
    decree authority was given to the Custodian General of the property of
    British, French and Australian subjects to sell and liquidate the property of
    certain persons including the Appellant Company who were subject to Pro-
    clamation No. 5. On the 29th April, 1957, an agreement was made (called
    a Contract of Sale) between the Custodian General of British Property and
    the Chairman of the Economic Board which organisation was a department
    of the Egyptian Government. It has been referred to as T.E.D.O. What
    the Agreement purported to do was to sell all the assets of the Appellant
    Company to the Chairman, who acted both as Chairman of T.E.D.O. and
    also as the representative of a company which was being formed and which
    was called the Sinai Manganese Company S.A.E. As the result of a Presi-
    dential decision of the 18th May, 1957, the proposed new Company was
    brought into existence.


    321702 A4

    8

    It was hardly to be expected that the Appellants would accept or acquiesce
    in the expropriation of their property. Nor was it likely that they would be
    inactive in the protection of their rights and in the assertion of any claims
    that they could advance. Though they may have been without remedy in
    the Egyptian courts they took various steps to assert their rights. On the
    11th June, 1957, they registered with the Foreign Office in London a claim
    setting out details of the assets and good will of their undertaking in Egypt
    as at the 31st October, 1956. In the further endeavour to protect their
    interests they instructed their agents to write to all their former customers.
    That was done by means of a circular letter dated the 9th July, 1957. , The
    letter made it very plain that the Appellants in no way recognised the assump-
    tion of control by the Sequestrator of their assets. The letter recorded that
    the Appellants were advised that " the action of the Egyptian Government
    " must be regarded as a breach of international law which is incapable of
    " giving rise to any valid legal effects ". There was an emphatic warning that
    the Appellants disputed the right of any person or any company to deal in
    any way with their ores and would regard " as a violation of its legal rights
    " any transaction of any kind whatsoever involving the said ores " and would
    take in any country any steps that it might consider necessary to assert or
    protect their rights. No more resolute and complete assertion of their claims
    and their rights could be imagined. Nor were their efforts unproductive of
    result. Though on the 4th September, 1957, the Minister of Industry in
    Egypt issued an Order (Order 426 of 1957) purporting to cancel the Appel-
    lants' sixteen mining leases and though the newly formed company, the
    Sinai Manganese Company S.A.E., issued in Egypt a writ in respect of the
    circular letter of the 9th July, when the Appellants decided, as they did, that
    they would negotiate with the Egyptian authorities, they found them ready
    to come to terms. The result was that an agreement was concluded on the
    23rd November, 1957. The parties to it were the Appellants, the new com-
    pany (the Sinai Manganese Company S.A.E.) T.E.D.O., and the Sequestrator
    General. The Appellants agreed to sell and T.E.D.O. agreed to buy " the
    " whole business " of the Appellants " as carried on and situate in Egypt".
    The Sequestrator consented to and acquiesced in the sale. The business was
    deemed to include all the assets of the Appellants situate in Egypt and all
    their liabilities in Egypt arising out of or in connection with the conduct of
    its business in Egypt including any sums payable to employees. From the
    assets there was, however, excluded any claim which the Appellants could
    assert against any Government other than the Egyptian Government as a
    result of loss or reduction in value of their business consequent on the events
    of October and November, 1956. " The price of the said sale " was £500,000.
    There were terms of payment. The Appellants did in due course receive the
    whole of the purchase price. The Appellants agreed that they would change
    their name. They did so and became Anisminic, Ltd.

    At the date of that Agreement negotiations were in progress between Her
    Majesty's Government and the United Arab Republic. Though this cannot
    be a matter affecting the legal issues in this litigation it may be said as
    a matter of history that when the Appellants made their agreement they
    believed, as the learned judge found, " that they were doing better for them-
    " selves than Her Majesty's Government was likely to do for them, and
    " that they did not expect to get any additional compensation out of any
    " future International Governmental Agreement". It must, however, be
    clear that if they could qualify to establish a claim under any later Order
    in Council they would not be debarred by the fact that it was their firm
    calculation that their best policy would be to fend for themselves. By way
    of anticipation in the narrative it may be said that when the agreement was
    in due course considered by the Commission they held that the terms of
    the agreement made it quite clear that the subject matter of the sale was
    the whole business of the Appellants in Egypt and that included in it was
    " any claim of the applicant against the Egyptian Government" resulting from
    the events of October-November, 1956. It was " an assignment of all claims
    " for compensation" that the Appellants might have against the United
    Arab Republic in respect of " the business and its assets including cancellation
    " of the mining concessions". The Commission held that the Appellants,

    9

    being fully aware of the cancellation of their leases and of the damage to
    their business and of the purported sale of it, " sold and intended to sell
    " to T.E.D.O. all claims arising thereout together with the goodwill of the
    " Company ". They held, as was, of course, undeniable, that T.E.D.O. was
    not at any time a British national.

    Some fifteen months after the Appellants made their agreement of the
    23rd November 1957 an agreement was made between H.M. Government and
    the Government of the United Arab Republic. It was an agreement in
    relation to financial and commercial relations and British property in Egypt.
    It was made on the 28th February, 1959. The agreement or treaty cannot
    easily be summarised, but one part of it provided for the return of British
    property by the United Arab Republic. From that provision there was,
    however, an exclusion of property which had been sold between 30th October,
    1956, and 2nd August, 1958, under the provisions of Proclamation No. 5:
    such property was referred to in what was called Annex E. (The terms of
    Annex E were altered (by agreement) in August, 1962.) An important provi-
    sion of the treaty was that the Government of the United Arab Republic
    would pay a sum of £27,500,000 to the United Kingdom Government in
    full and final settlement of certain " claims " which included " all claims in
    " respect of the property " which had been excluded from the requirement to
    return property. The exclusion, as above stated, was of the property sold
    under Proclamation No. 5 and referred to in Annex E. In Annex E the
    name of the Appellants appeared. In its amended form Annex E referred
    to the properties in the United Arab Republic " of any United Kingdom
    " nationals appearing on the following list ": in the list was the entry " The
    " Sinai Mining Company, Limited, 1 Sh. El Bustan, Cairo (subject to a
    " special arrangement)". In the Treaty there were various definitions of
    " property", " British property", " United Kingdom nationals" and
    " owners ".

    It is clear that merely because of the conclusion of the treaty and the
    receipt of £27,500,000 by H.M. Government the Appellants could not assert
    any rights against H.M. Government. (Rustomjee v. The Queen (1876) 1
    Q.B.D. 487, 2 Q.B.D. 69.) What H.M. Government did was to have recourse
    to the provision of the Foreign Compensation Act, 1950. Accordingly, an
    Order in Council was made on the 6th April, 1959 (S.I. 1959 No. 625). It
    recited the authority given by the Act to make provision for the " determina-
    " tion " by the Foreign Compensation Commission of " claims to participate
    " in compensation received under agreements with foreign governments ". It
    recited the treaty of the 28th February, 1959, and recited that it was
    " expedient that provision should be made with regard to sums received
    " from the Government of the United Arab Republic and for the registra-
    " tion, assessment and determination of claims in respect of British property
    " in Egypt". The Order proceeded to give directions to the Commission.
    The Appellants made claims (on the 15th September, 1959). They were
    willing to accept that if they established their claim and if their loss was being
    assessed, the Commission should regard the £500,000 as being "compensa-
    " tion or recoupment " which the Appellants had received. The Legal Officer
    (on the 14th July, 1961) filed an answer and an oral hearing began in
    March, 1962. I need not refer to any pleading matters, because a new
    Order in Council (S.I. 1962 No. 2187) was made on the 2nd October, 1962,
    under which certain important changes were made. After pleading amend-
    ments the oral hearing of the Appellants' claim was begun again on the
    1st April, 1963. Part III of the new Order in Council was in particular
    relevant and applicable as regards the Appellants' claim. All of its provi-
    sions as well as the other Parts of the Order demanded consideration by the
    Commission. Here I set out merely the opening paragraphs:

    10
    " PART III

    " CLAIMS IN RESPECT OF PROPERTY REFERRED TO IN

    "ANNEX E

    " 4. (1) The Commission shall treat a claim under this Part of the
    " Order as established if the applicant satisfies them of the following
    " matters: —
    " (a) that his application relates to property in Egypt which is referred

    " to in Annex E ;

    " (b) if the property is referred to in paragraph (l)(o) or paragraph
    " (2) of Annex E—

    " (i) that the applicant is the person referred to in paragraph
    " (l)(a) or in paragraph (2), as the case may be, as the
    " owner of the property or is the successor in title of such
    " person ; and

    " (ii) that the person referred to as aforesaid and any person
    " who became successor in title of such person on or
    " before 28th February 1959 were British nationals on
    " 31st October 1956 and 28th February 1959 ;

    " (c) if the property is referred to in paragraph (l)(b) of Annex E—
    " (i) that the applicant was the owner on 31st October 1956,
    " or, at the option of the applicant, on the date of the
    " sale of the property at any time before 28th February
    " 1959 by the Government of the United Arab Republic
    " under the provisions of Egyptian Proclamation No. 5
    " of 1st November 1956 or is the successor in title of such
    " owner; and

    " (ii) that the owner on 31st October 1956 or on the date
    " of such sale, as the case may be, and any person who
    " became successor in title of such owner on or before
    " 28th February 1959 were British nationals on 31st
    " October 1956 and 28th February 1959.

    " (2) For the purposes of sub-paragraph (b)(i) of paragraph (1) of this
    " Article, any reference in paragraph (2) of Annex E to the estate of
    " a deceased person shall be interpreted as a reference to the persons
    " entitled to such estate under the testamentary dispositions or intestacy
    " of such deceased person."

    The decision of the Commission (on the 8th May, 1963) was that the
    Appellants had failed to establish their main claim (which was dismissed)
    but that their claim in reference to damage done to their property arising
    out of the military action of Israeli armed forces was fit for registration
    under Article 8 of the Order in Council in the sum (which they assessed) of
    £532,773.

    In the reasoned document (called Minutes of Adjudication) which was
    later made available the reasons of the Commission were amply recorded.
    If this were an appeal from their decision much argument might result. As,
    however, the document is being looked at for the limited purpose of
    ascertaining whether the Commission exceeded the bounds of 'their jurisdic-
    tion it must suffice to see what it was that they decided. Very shortly stated
    it is, I think, clear that what was decided was that as the Appellants had
    sold their property to T.E.D.O. and as T.E.D.O. was not a British national
    and as T.E.D.O. was the " successor in title " or assignee of the Appellants
    the Commission had not been satisfied of the matters referred to in Article
    4, with the result that they could not treat the main claim as established. As,
    however, there had been no successor in title of the Appellants in regard
    to their claim concerning loss which was not the result of Egyptian measures
    (i.e. the loss caused by Israeli forces) that claim should be registered under
    Article 8 of the Order in Council.

    11

    The Commission recorded the nature of what was contended before them
    viz.:

    " Mr. Parker stated that the present hearing was in fact limited to
    " the question of entitlement, as it might appear at first sight that the
    " sole question for determination was whether, by virtue of the Agree-
    " ment of November 1957, the Economic Development Organisation,
    " which was one of the other parties to that Agreement, became the
    " Applicant Company's successor in title within the meaning of the
    " Orders; as if it did, it was not a British national, and it would
    " have become successor in title between the two vital dates, which
    " would defeat the claim. In a sense, he stated, that was the only
    " question, but he submitted that it involved the consideration of basi-
    " cally four issues: First, as the Applicant Company claim as original
    " owner and not by succession, is the question of successor in title
    " relevant? Secondly, if it is relevant, did the Agreement of the 23rd
    " November 1957 constitute T.E.D.O. the Applicant Company's succes-
    " sor in title within the meaning of the Order, to anything in respect
    " of which a claim would otherwise lie? Thirdly, if it did, did it so
    " constitute T.E.D.O. the Applicant Company's successor in title to the
    " whole of that which otherwise would have been the subject of a good
    " claim? And, finally, if not, in respect of what can the Applicant
    " Company still claim?"

    Numerous questions arose in regard to the construction and effect of the
    November, 1957, agreement as well as questions of construction in regard to
    the Order in Council and as to the matters of which the Commission had to
    be satisfied. The Commission held that the expression " successor in title "
    throughout the Order in Council referred not to the property which had
    been " Egyptianised, lost, injured or damaged but to the claim ". They held
    that the recitals to the Orders in Council showed that the " claims " which
    they had to consider were claims to participate in the fund which, as the
    Treaty of February, 1959, showed, was a fund which was in settlement
    (inter alia) of all " claims " in respect of (shortly stated) the properties which
    did not have to be returned and which were denoted in Annex E. On a
    construction of the November, 1957, agreement (and the Appellants have
    accepted that its construction was entirely the function of the Commission
    and is not to be challenged) the Commission were satisfied that it " operated
    " as an assignment of all claims for compensation that the Applicant might
    " have against the U.A.R. in respect of the business and its assets, including
    " cancellation of the mining concessions". The Applicants, they held,
    being fully aware of such cancellation and of the damage to and purported
    sale of their business had " sold and intended to sell to T.E.D.O. all claims
    " arising thereout together with the goodwill of the Company ". As T.E.D.O.
    was not a British national but " as it became in the view of the Commission
    " the successor in title of the Applicant to the claim against the U.A.R. and
    " any consequent claim to participate in compensation provided to meet that
    " claim the Applicant was unable to succeed under Article 4 or Article 6
    " in establishing any claim arising out of a claim against the U.A.R.".

    That was the decision of the Commission whose determination of any
    application made to them " shall not be called in question in any court
    " of law ".

    This is not a case in which there has been any sort of suggestion of
    irregularity either of conduct or procedure on the part of the Commission.
    It has not been said that anything took place which disqualified the Com-
    mission from making a determination. No occasion arises, therefore, to
    refer to decisions which have pointed to the consequences of failing to
    obey or of defying the rules of natural justice: nor to decisions relating to
    bias in a tribunal: nor to decisions in cases where bad faith has been
    alleged: nor to decisions in cases where a tribunal has not been properly
    constituted. If a case arose where bad faith was alleged the difficult case
    of Smith v. East Elloe R.D.C. [1956] A.C. 736 would need consideration:
    but the present case can, in my view, be approached without any examination
    of or reliance upon that case.

    12

    The provisions of section 4(4) of the Act do not, in my view, operate
    to debar any inquiry that may be necessary to decide whether the Com-
    mission has acted within its authority or jurisdiction. The provisions do
    operate to debar contentions that the Commission while acting within its
    jurisdiction has come to wrong or erroneous conclusions. There would
    be no difficulty in pursuing, and in adducing evidence in support of, an
    allegation such as an allegation that those who heard a claim had never
    been appointed or that those who had been appointed had by some irregular
    conduct disqualified themselves from adjudicating or continuing to adjudicate.
    There would be no difficulty in raising any matter that goes to the right
    or power of the Commission to adjudicate (see The Queen v. Bolton 1 Q.B.
    66). What is forbidden is to question the correctness of a decision or
    determination which it was within the area of their jurisdiction to make.

    It is, of course, clear that no appeal is given from a determination of
    the Commission. When Parliament sets up a tribunal and refers matters
    to it, it becomes a question of policy as to whether to provide for an
    appeal. Sometimes that is thought to be appropriate. Thus, where (by the
    Indemnity Act, 1920), provision was made for the assessment by the War
    Compensation Court of certain claims for compensation for acts done in
    pursuance of prerogative powers it was enacted that thought the decision
    of the tribunal (presided over by a judge) was to be final there could be
    an appeal by a party aggrieved by a direction or determination of the
    tribunal on any point of law. Sometimes, on the other hand, it is not
    thought appropriate to provide for an appeal. In reference to the Foreign
    Compensation Tribunal it was presumably thought that the advantages of
    securing finality of decision outweighed any disadvantages that might possibly
    result from having no appeal procedure. It was presumably thought that
    there was every prospect that right determinations would be reached if those
    appointed to reach them were persons in whom there could be every
    confidence.

    I return, then, to the question as to how the Appellants can justify the
    calling in question by them of the determination of the Commission. The
    answer is that they boldly say that what looks like a determination was
    in fact no determination but was a mere nullity. That which, they say,
    should be disregarded as being null and void, is a determination explained
    in a carefully reasoned document nearly ten pages in length which is signed
    by the chairman of the Commission. There is no question here of a sham
    or spurious or merely purported determination. Why, then, is it said to be
    null and void? The answer given is that it contains errors in law which
    have caused the Commission to exceed their jurisdiction. When analysed
    this really means that it is contended that when the Commission considered
    the meaning of certain words in Article 4 of the Order in Council they
    gave them a wrong construction with the consequence that they had no
    jurisdiction to disallow the claim of the applicants.

    It is not suggested that the Commission were not acting within their
    jurisdiction when they entertained the application of the Appellants and
    gave it their consideration nor when they heard argument and submissions
    for four days in regard to it. The moment when it is said that they
    strayed outside their allotted jurisdiction must, therefore, have been at the
    moment when they gave their " determination ".

    The control which is exercised by the High Court over inferior tribunals
    (a categorising but not a derogatory description) is of a supervisory but not
    of an appellate nature. It enables the High Court to correct errors of law
    if they are revealed on the face of the record. The control cannot, however,
    be exercised if there is some provision (such as a " no certiorari " clause)
    which prohibits removal to the High Court. But it is well settled that even
    such a clause is of no avail if the inferior tribunal acts without jurisdiction
    or exceeds the limit of its jurisdiction.

    In all cases similar to the present one it becomes necessary, therefore, to
    ascertain what was the question submitted for the determination of a
    tribunal. What were its terms of reference? What was its remit? What
    were the questions left to it or sent to it for its decision? What were the
    limits of its duties and powers? Were there any conditions precedent which

    13

    had to be satisfied before its functions began? If there were, was it or was
    it not left to the tribunal itself to decide whether or not the conditions
    precedent were satisfied? If Parliament has enacted that provided a certain
    situation exists then a tribunal may have certain powers it is clear that the
    tribunal will not have those powers unless the situation exists. The decided
    cases illustrate the infinite variety of the situations which may exist and
    the variations of statutory wording which have called for consideration.
    Most of the cases depend, therefore, upon an examination of their own
    particular facts and of particular sets of words. It is, however, abundantly
    clear that questions of law as well as of fact can be remitted for the
    determination of a tribunal.

    If a tribunal while acting within its jurisdiction makes an error of law
    which it reveals on the face of its recorded determination then the Court,
    in the exercise of its supervisory function, may correct the error unless
    there is some provision preventing a review by a court of law. If a particular
    issue is left to a tribunal to decide then even where it is shown (in cases
    where it is possible to show) that in deciding the issue left to it the tribunal
    has come to a wrong conclusion that does not involve that the Tribunal
    has gone outside its jurisdiction. It follows that if any errors of law are
    made in deciding matters which are left to a tribunal for its decision such
    errors will be errors within jurisdiction. If issues of law as well as of fact
    are referred to a tribunal for its determination then its determination cannot
    be asserted to be wrong if Parliament has enacted that the determination is
    not to be called in question in any court of law.

    In a passage in his speech in Reg. v. Governor of Brixton Prison ex
    parte Armah
    [1968] A.C. 192 at page 234, my noble and learned friend
    Lord Reid thus stated the matter:

    " If a magistrate or any other tribunal has jurisdiction to enter on
    " the inquiry and to decide a particular issue, and there is no
    " irregularity in the procedure, he does not destroy his jurisdiction by
    " reaching a wrong decision. If he has jurisdiction to go right he has
    " jurisdiction to go wrong. Neither an error in fact nor an error in law
    " will destroy his jurisdiction."

    To the same effect were words spoken by Denning L.J. (as my noble and
    learned friend then was) in R. v. Northumberland Compensation Appeal
    Tribunal, ex parte Shaw
    [1952] 1 K.B. 338, 346:

    " No one has ever doubted that the Court of King's Bench can
    " intervene to prevent a statutory tribunal from exceeding the jurisdic-
    " tion which Parliament has conferred on it: but it is quite another
    " thing to say that the King's Bench can intervene when a tribunal
    " makes a mistake of law. A tribunal may often decide a point of
    " law wrongly whilst keeping well within its jurisdiction."

    In the Northumberland case the whole argument proceeded on the basis
    that the error or errors of law were within jurisdiction. The judgments
    would have been unnecessary if it could have been asserted that error of
    construction was tantamount to excess of jurisdiction.

    In speaking of the supervisory jurisdiction of the superior Court Lord
    Sumner in his speech in Rex. v. Nat Bell Liquors Ltd. [1922] 2 A.C. 128
    said (at page 156):

    " Its jurisdiction is to see that the inferior Court has not exceeded
    " its own and for that very reason it is bound not to interfere in what
    " has been done within that jurisdiction for in so doing it would, in
    " turn, transgress the limits within which its own jurisdiction of super-
    " vision, not of review, is confined. That supervision goes to two
    " points: one is the area of the inferior jurisdiction and the qualifica-
    " tions and conditions of its exercise: the other is the observance of
    " the law in the course of its exercise."

    If, therefore, a tribunal while within the area of its jurisdiction committed
    some error of law and if such error was made apparent in the determination
    itself (or, as it is often expressed, on the face of the record) then the
    superior court could correct that error unless it was forbidden to do so.

    14

    It would be so forbidden if the determination was "not to be called in
    " question in any court of law ". If so forbidden it could not then even
    hear argument which suggested that error of law had been made. It could,
    however, still consider whether the determination was within "the area of
    " the inferior jurisdiction ".

    So the question is raised whether in the present case the Commission
    went out of bounds. Did it wander outside its designated area? Did it
    outstep the confines of the territory of its inquiry? Did it digress away
    from its allotted task? Was there some preliminary inquiry upon the
    correct determination of which its later jurisdiction was dependent?

    For the reasons which I will endeavour to explain it seems to me that at
    no time did the Commission stray from the direct path which it was required
    to tread. Under Article 4 of the Order in Council the Commission was
    under a positive duty to treat a claim under Part III as established if the
    applicant satisfied them of certain matters. If they had stated that they were
    satisfied of those matters but had then declined to treat a claim as estab-
    lished there would have been a situation very different from that now under
    consideration and one in which the Court could clearly act. So also if they
    had stated that they were not satisfied of the matters but had nevertheless
    treated the claim as established. They would have had no right to treat the
    claim as established unless they were satisfied of the matters. The present
    is a case in which, faithfully following the wording of Article 4, they stated
    that they were not satisfied of the matters and, therefore, did not treat the
    claim as established. In stating why they were not satisfied of the matters
    they have set out the processes of their reasoning. The more that reasoning
    is examined the more apparent does it, in my view, become that the members
    of the Commission applied their minds very carefully to a consideration of the
    matters about which the Applicant had to satisfy " them ". To no one else
    were the matters remitted but to " them ". It was for them to be satisfied
    and not for anyone else. The words of Article 4 state their terms of refer-
    ence. In those terms were certain words and certain phrases. The Commis-
    sion could not possibly discharge their duty without considering those words
    and phrases and without reaching a decision as to their meaning. The
    Commission could not burk that task. It seems to me that the words which
    stated that it was for the Commission to be satisfied of certain matters, and
    defined those matters, inevitably involved that any necessary interpretation
    of words within the compass of those matters was for the Commission. They
    could not come to a conclusion as to whether they were satisfied as to the
    specified matters unless and until they gave meaning to the words which they
    had to follow. Unless such a phrase as " successor in title " was defined
    in the Order—and it was not—it was an inescapable duty of the Commission
    to consider and to decide what the phrase signified. Doubtless they heard
    ample argument before forming a view. The same applies in regard to many
    other words and sequences of words in Article 4. But the forming of views
    as to these matters lay in the direct path of the Commission's duties. They
    were duties that could not be shirked. They were central to the exercise of
    their jurisdiction. When their fully reasoned statement of their conclusions
    (which in this case can be regarded as a part of their " determination ") is
    studied it becomes possible for someone to contend that an alternative con-
    struction of Article 4 should be preferred to that which was thought correct
    by the Commission. But this calling in question cannot, in my view, take
    place in any Court of law. Parliament has forbidden it.

    The most careful and valuable judgment of the learned judge contained
    detailed references to most of the decided cases and acknowledgment was
    made in the Court of Appeal of the help derived from considering his survey.
    The learned judge said that the Commission had no jurisdiction to consider
    under Article 4(1) any other question than those which sub-paragraphs (a)
    and (b) of that Article on their true construction required them to consider
    and that if satisfied of those matters they were under a statutory duty to treat
    the claim as established and had no jurisdiction to do anything else. That
    is entirely correct. Nor have the Commission done anything else. They
    were obliged to consider what was the true construction of sub-paragraphs

    15

    (a) and (b): they came to conclusions: they followed those conclusions. All
    that was inevitably left to them for them to decide.

    Before returning to this aspect of the matter I must refer to some of the
    decisions relied upon by the Appellants. I do so only because a compre-
    hensive and careful argument was addressed to your Lordships directed to
    the submission that the decided cases support the view that the determination
    of the Commission can in this case be challenged. In my view, they point
    to exactly the contrary view. When examined the cases seem to me to reveal
    a consistent line of authority to the effect that provisions such as the provision
    in section 4(4) of the Act of 1950 will not avail to bar recourse to the Courts
    if a tribunal has acted without or in excess of jurisdiction, but will bar such
    recourse if the tribunal has kept within and travelled within its jurisdiction
    even if in so doing it has erred in law and even if such error of law is revealed
    on " the face " of the tribunal's determination.

    In The Queen v. St. Glove's District Board 8 E. & B. 529 a question arose
    whether someone had been an officer of certain Commissioners (whose func-
    tions by statute came to an end) and so had become entitled to compensation.
    He applied for it to the District Board. They rejected his claim. He
    appealed to the Metropolitan Board of Works who allowed it. In respect
    of their decision there was a " no certiorari " clause. A rule was obtained
    to quash the order of the Metropolitan Board and affidavits were filed in
    support of a contention that the person concerned had ceased to be an officer
    before the Act came into operation which determined the Commissioners'
    functions. In shewing cause against the rule it was submitted that the
    question whether the person was an officer was the very point that the Metro-
    politan Board had on appeal to decide. In support of the rule it was sub-
    mitted that the facts were not disputed on the appeal and that the decision
    " was entirely on a mistake of law ". To that submission Lord Campbell
    C.J. replied: " Supposing it to be so the Court of Appeal were to decide
    " both on law and fact". The Court held that the certiorari ought not to
    have been granted and the rule to quash the order of the Metropolitan Board
    was discharged. Lord Campbell C.J. said that it was not a case in which the
    jurisdiction of the Board depended on a preliminary point and that if they
    thought that the person was de jure an officer and entitled to compensation
    their order was not removable.

    In his judgment in Reg. v. Gotham (1898) 1 Q.B. 802 Kennedy J. (at
    page 808) noted the distinction between, on the one hand, disregarding the
    provisions of a statute and considering matters which ought not to be con-
    sidered and, on the other hand, what he called " a mere misconstruction
    " of an Act of Parliament". This perhaps illustrates the clear distinction
    which exists between an error when in the exercise of jurisdiction and an
    error in deciding whether jurisdiction can be assumed: in the latter case
    an error may have the consequence that jurisdiction was lacking and was
    wrongly assumed and the result would be that any purported decision would
    have no validity.

    In Rex. v. Cheshire Justices ex parte Heaver 108 L.T. 374 the compen-
    sation authority, after the renewal of a licence of a public-house had been
    refused, had to decide how compensation was to be divided amongst the
    persons interested in the licensed premises. The lessees of the premises
    had been held (by the High Court after a case stated) to be entitled to be
    treated as persons interested in the premises. There was a proviso in the
    lease that if the renewal of the licence was refused the lease should cease
    and determine. By reason of the refusal of renewal the lease came to an
    end seven years before what would have been its ordinary expiration. The
    lessees claimed to participate by reference to the loss they sustained in
    consequence of not having the lease for its full term. The compensation
    authority awarded them a sum which was so small that there were strong
    grounds for thinking that the authority had proceeded upon a wrong basis.
    Upon applications by the lessees for certiorari and mandamus it was held
    that certiorari would not be granted because the order made was good on its
    face and that mandamus would not be granted because the authority had
    not declined jurisdiction and because, whether they were right or wrong
    in their decision upon any question of law arising on the construction of a

    16

    proviso in the lease or on the facts, the Court could not interfere by
    mandamus as there would at most be an eroneous decision on matters within
    their jurisdiction. Channel J. said: "If there was an error in deciding
    " a point of law which came before them for their decision in the course
    " of their duty we cannot set it right."

    In Rex. v. Minister of Health [1939] 1 K.B. 232 there was a question
    whether a claimant was entitled to a pension (a superannuation allowance).
    It was said that under the relevant legislation he could only get a pension
    if he had served for a certain number of years. That he had not done. It
    was said, however, that under one section of the legislation he would be
    entitled to receive a pension although he had not served for the stated period
    There was a provision that in the case of any dispute as to the right ol
    an officer to receive a pension (or as to its amount) such dispute was to be
    determined by the Secretary of State whose decision was to be final. The
    dispute was referred by the claimant to the Secretary of State. He decided
    that the claimant was entitled. One view was that if on a correct inter-
    pretation of the law no one could be granted a pension who lacked the
    requisite years of service then there could be no dispute which the Minister
    had jurisdiction to entertain and that consequently the provision as to the
    finality of his decision would be no bar to an application for certiorari.
    A rule nisi for a writ of certiorari was discharged by the Divisional Court
    and an appeal from their decision was dismissed. The Court of Appeal
    held that the construction of the sections of the legislation came within
    the jurisdiction of the Minister with the result that even if he made a
    mistake of law in construing the sections his decision could not be challenged.
    Certiorari would not lie because if there were any mistakes of law (which
    the Court rather doubted but as to which the Court did not have to pro-
    nounce) they were mistakes of law within jurisdiction. Greer L.J. said (at
    page 245): " if the Minister has wrongly construed the section, still he has
    " not acted without jurisdiction, because a mere misconstruction of this
    " section would not entitle the committee to say that the order was made
    " without jurisdiction ". Greer L.J. referred with approval to the following
    passage in paragraph 1493 in volume 9 of Halsbury's Laws of England 2nd
    edition:

    " Where the proceedings are regular upon their face and the magis-
    " trates had jurisdiction, the superior court will not grant the writ
    " of certiorari on the ground that the court below has misconceived a
    " point of law. When the court below has jurisdiction to decide a
    " matter, it cannot be deemed to exceed or abuse its jurisdiction merely
    " because it incidentally misconstrues a statute, or admits illegal evidence,
    " or rejects legal evidence, or misdirects itself as to the weight of the
    " evidence, or convicts without evidence." (see now 3rd edition volume
    11, page 62).

    Slesser L.J. said that at the highest it could not be said that the Minister
    had done anything more than to arrive at an erroneous decision.

    The reasoning of that case is very much applicable in the present one.
    The Minister in that case could not determine the dispute which arose
    without coming to a conclusion as to the construction of the sections of
    the Act which were the subject of rival contentions. So here the Commission
    had to be satisfied by an applicant that his application related to " property ".
    Property included all rights or interests of any kind in property. The Com-
    mission might have to decide whether someone had an "interest" in
    property. Questions of law might arise. The Commission had to decide
    whether an application related to property " in Egypt". Questions of law
    might arise—apart from questions of geography—as to whether rights or
    interests were in Egypt. The Commission had to decide if an application
    related to property in Egypt whether such property was referred to in
    Annex E. What were referred to in Annex E were " the properties in the
    " United Arab Republic of any United Kingdom nationals appearing on "
    the list which followed. For the meaning of " United Kingdom nationals "
    the Commission would presumably have to look to Annex A of the Treaty
    of the 28th February, 1959. The Commission then had to decide whether
    an applicant was one of the United Kingdom nationals referred to in the

    17

    appropriate part of Annex E " as the owner of the property ". Stated more
    fully the duty of the Commission was a duty to decide whether an applicant
    satisfied them (inter alia) that he " is the person referred to in paragraph (l)(a)
    " or in paragraph (2), as the case may be, as the owner of the property or
    " is the successor in title of such person ". In this case there has been much
    concentration on the question whether the Commission correctly decided that
    the phrase " successor in title " included an assignee. But this was but one
    of very many matters which might receive determination by the Commission.
    A perusal of the Orders in Council shews that they bristle with words and
    phrases needing construction. For my part I cannot accept that if, in
    regard to any one of the many points in respect of which interpretation and
    construction became necessary a view can be formed that the Commission
    made an error, the consequence follows that their determination became a
    nullity as being made in excess of jurisdiction.

    If the Commission decided that an assignee was a " successor in title "
    they would have to be satisfied " that the person referred to as aforesaid
    " and any person who became successor in title of such person on or
    " before 28th February 1959 were British nationals on 31st October 1956 and
    " 28th February 1959 ". If the Commission decided that the word " and "
    meant " and " (which I would not be disposed to regard as being very
    irrational) they might have to decide some question as to whether an assign-
    ment made someone a successor in title on or before the stated date and
    they might have to decide as to whether the " person referred to " and the
    " successor in title" were British nationals on each one of two dates.
    The term " British nationals " is elaborately defined. Is it to be said if the
    Commission decided that someone was not a British national and refused to
    treat a claim as established that it could be sought to show that the person
    was a British national after all and that the Commission exceeded their
    jurisdiction in refusing the claim? The first part of the definition of " British
    " nationals " has only to be recited to illustrate how varied and perplexing
    might be the points of construction as well as of law and of fact that might
    have to be decided viz:" (a) citizens of the United Kingdom and Colonies,
    " citizens of Rhodesia and Nyasaland, citizens of Southern Rhodesia, British
    " subjects without citizenship, and British protected persons belonging to
    " any of the territories for whose international relations the Government of
    " the United Kingdom were on the 28th February 1959 responsible."
    Problems far more elusive and perplexing could arise in regard to these words
    than those relating to the meaning of the phrase " successor in title ". Many
    of the United Kingdom nationals referred to in Annex E were, however,
    corporations. One part of the definition of " British nationals " which they
    would have to satisfy reads: " Corporations and unincorporated associations
    " constituted under the laws in force in the United Kingdom of Great Britain
    " and Northern Ireland or in any territory for whose international relations
    " the government of the United Kingdom were on 28th February 1959
    " responsible." In an application of these words many difficult points both
    of law and of construction and of fact could arise. All these points are
    comparable in character with the particular points relating to successor in
    title which have been the focus of attention in this particular case. Many
    other illustrations could be given in regard to issues of law as well as of
    fact which might inescapably present themselves for the determination of the
    Commission. Thus paragraph 4 of Article 4 begins with the words: " If
    " it shall appear to the Commission in relation to any Egyptian controlled
    " company . . .": " Egyptian controlled Company " is defined: the defini-
    tion picks up the definition of a British national: the paragraph proceeds
    to lay down how the Commission may hold if the shares of a British
    national in such a company had been sold by a sequestrator and how the
    Commission must hold if the Egyptian controlled company was a " converted
    " company " within the definition of those words. Shortly stated, a converted
    company is an Egyptian controlled company which at certain times was
    authorised under the laws of the Republic of Egypt or of the United Arab
    Republic to continue its activities as an Egyptian or United Arab Republic
    corporation limited by shares. If the Commission in steering a course

    18

    through the elaborations of these and many other complicated provisions
    made some error of construction or of law which caused the result that they
    were not satisfied of certain matters and consequently did not treat a claim
    as established—which they would have done but for some error—I cannot
    think that it would be right to say that they exceeded their jurisdiction or
    acted without jurisdiction so that their determination was a nullity. The
    argument for the Appellants involves that if in various cases that may arise
    before the Commission there is some misconstruction of some words in the
    Order in Council then any resultant decision is a mere nullity.

    The claim of the applicants had to be determined by the Commission
    and the applicants were under the obligation of satisfying the Commission
    as to certain stated matters. They could not decide whether or not they
    were satisfied until they had construed the relevant parts of the Order in
    Council. When they were hearing argument as to the meaning of those
    relevant parts they were not acting without jurisdiction. They were at the
    very heart of their duty, their task and their jurisdiction. It cannot be that
    their necessary duty of deciding as to the meaning would be or could be
    followed by the result that if they took one view they would be within
    jurisdiction and if they took another view that they would be without.
    If at the moment of decision they were inevitably within their jurisdiction
    because they were doing what they had to do, I cannot think that a later
    view of someone else, if it differed from theirs, could involve that they
    trespassed from within their jurisdiction at the moment of decision.

    It is sometimes the case that the jurisdiction of a tribunal is made
    dependent upon or subject to some condition. Parliament may enact that
    if a certain state of affairs exists then there will be jurisdiction. If in such
    case it appears that the state of affairs did not exist then it follows that there
    would be no jurisdiction. Sometimes, however, a tribunal might undertake
    the task of considering whether the state of affairs existed. If it made
    error in that task such error would be in regard to a matter preliminary
    to the existence of jurisdiction. It would not be an error within the limited
    jurisdiction intended to be conferred. An illustration of this appeared in
    1853 in Bunbury v. Fuller 9 Exch. 111. A section of an Act of Parliament
    imposed a restraint on the jurisdiction of Tithe Commissioners in the case
    of lands in respect of which the tithes had already been perpetually com-
    muted or statutorily extinguished. The tithe commissioners had, therefore,
    no jurisdiction over such lands. Coleridge J. said (at page 140):

    " Now it is a general rule that no court of limited jurisdiction can
    " give itself jurisdiction by a wrong decision on a point collateral to
    " the merits of the case upon which the limit to its jurisdiction depends ;
    " and however its decision may be final on all particulars, making up
    " together that subject-matter which, if true, is within its jurisdiction,
    " and, however necessary in many cases it may be for it to make a
    " preliminary inquiry whether some collateral matter be or be not
    " within the limits, yet upon this preliminary question, its decision
    " must always be open to inquiry in the superior Court."

    The learned judge instanced the case of a judge having a jurisdiction limited
    to a particular hundred before whom a matter was brought as having arisen
    within it: if the party charged contended that it arose in another hundred
    then there would be a collateral matter which was independent of the merits
    of the claim :

    " On its being presented the judge must not immediately forbear to
    " proceed but must inquire into its truth or falsehood, and for the time
    " decide it, and either proceed or not with the principal subject-matter
    " according as he finds on that point: but this decision must be open
    " to question, and if he has improperly either foreborne or proceeded
    " on the main matter in consequence of an error, on this the Court
    " of Queen's Bench will issue its mandamus or prohibition to correct
    " his mistake."

    In his judgment in The Queen v. Commissioners for Special Purposes of
    the Income Tax L.R.
    21 Q.B.D. 313 Lord Esher M.R. at page 319 pointed

    19

    out that while it is generally correct to say that a tribunal cannot give itself
    jurisdiction by a wrong decision on the facts there may be cases in which
    the legislature endows a tribunal with jurisdiction provided that a certain
    state of facts exists and further endows it with jurisdiction to decide, with-
    out any appeal from their decision, whether or not that state of affairs does
    or did exist, i.e., to decide whether a condition precedent was satisfied for
    the further exercise of jurisdiction:

    " The legislature may intrust the tribunal or body with a jurisdiction
    " which includes the jurisdiction to determine whether the preliminary
    " state of affairs exists as well as the jurisdiction on finding that it
    " does exist, to proceed further or do something more."

    In the present case there was no question of the Commission being endowed
    with jurisdiction only conditionally. The Order in Council made it mandatory
    that a certain result should follow after the Commission came to certain
    conclusions as to matters remitted to them for their decision. Their
    jurisdiction and the area and range of it is clear and specific. No condition
    precedent has to be satisfied before their jurisdiction in regard to a claim
    begins. An obligation results if in the exercise of their jurisdiction they
    come to certain conclusions. If a claimant satisfied " them " of certain
    matters then they were obliged to treat a claim as established. The clear
    directive to them (which defined the area of their jurisdiction) was that they
    should address themselves to the question: Has the applicant satisfied us
    that his application relates to property in Egypt which is referred to in
    Annex E and (taking the case of property referred to in paragraph (l)(a) or
    paragraph (2) of Annex E) that the applicant is the person referred to as the
    owner of the property or is the successor in title of such person and that
    the person referred to as aforesaid and any person who became successor
    in title of such person on or before 28th February, 1959, were British
    nationals on 31st October, 1956, and 28th February, 1959? There was no
    condition to be satisfied before their jurisdiction to deal with that question
    arose. The tribunal decided that the applicant had not satisfied them. The
    circumstances that the Commission have helpfully and quite voluntarily
    (see Tribunals and Enquiries Act, 1958, sections 11 and 12) made available
    the careful processes of reasoning which guided them to decision has but
    served to emphasise that they were within their allotted area. That avail-
    ability may have made criticism of their reasoning possible but it has not
    made it lawful.

    Some of the cases reviewed by the learned judge were those in which it
    was manifest that a condition precedent for the exercise of a jurisdiction had
    not been satisfied. Such a case was Ex parte Bradlaugh L.R. 3 Q.B.D. 509.
    A statutory provision gave jurisdiction to a magistrate to order the destruction
    of books subject to two conditions viz., first, that the publication must be
    obscene and, secondly, that it must in the magistrate's judgment be such
    as was a misdemeanour and proper to be prosecuted as such. An order
    for the destruction of books on the stated ground that the magistrate was
    satisfied that they were obscene was, therefore, manifestly made without or in
    excess of jurisdiction. As Cockburn C.J. said (at page 512): "The order
    " therefore does not state the existence of matter that is essential to the
    " jurisdiction ". Even on the assumption that a " no certiorari " section
    was applicable a rule for certiorari was made absolute. " This is an objection
    " founded upon an absence of jurisdiction appearing on the face of the
    " order; and I am clearly of opinion that the section does not apply when
    " the application far the certiorari is on the ground that the inferior tribunal
    " has exceeded the limits of its jurisdiction " (per Cockburn C.J.). The
    statutory provision was definite. The relevant part read:

    " and if ... the magistrate or justices shall be satisfied that such
    " articles, or any of them, are of the character stated in the warrant
    " and that such or any of them have been kept for any of the purposes
    " aforesaid, it shall be lawful for the said magistrate or justices, and
    " he or they are hereby required to order the articles so seized, except
    " ... to be destroyed . . ."


    20

    The reference to being kept for the purposes aforesaid was a reference to
    keeping articles for the purpose of sale or distribution or being otherwise
    published for the purposes of gain, which articles were of such a character
    and description that their publication would be a misdemeanour and proper
    to be prosecuted as such. Mellor J. said that it was well established that
    a provision " taking away the certiorari" does not apply where there is an
    absence of jurisdiction. He said that the order for destruction omitted to
    state " that the magistrate who made it was satisfied that the books ordered
    " to be destroyed were the proper subject of a prosecution, and therefore
    " the order on the face of it shows an absence of jurisdiction."

    The case was really a very plain one and it refers to the undisputed
    and well recognised proposition that a " no certiorari " provision will not
    apply where there is an absence of jurisdiction. The decision has, however,
    no other bearing upon the present case for there is here no room for any
    suggestion that the Commission failed to satisfy any condition precedent or
    failed to state the existence of any matter essential to their jurisdiction.

    In R. v. Shoreditch Assessment Committee [1910] 2 K.B. 859 a ratepayer
    claimed that the value of his hereditament had been reduced in value.
    Pursuant to section 47 of the Valuation (Metropolis) Act, 1869, he addressed
    a written requisition to the overseers. The section provided that:

    " If in the course of any year the value of any hereditament is
    " increased by ... or is from any cause increased or reduced in value
    "... the overseers of the parish ... on the written requisition of ...
    " any ratepayer . . . shall send to the assessment committee a provisional
    " list containing the gross and rateable value as so increased or reduced
    " of such hereditament."

    The section further provided that a person sending a requisition had to send
    a copy of it to the clerk to the assessment committee. The section further
    provided that if within fourteen days after the service of the requisition
    on the overseers they made default in sending the provisional list then the
    clerk to the assessment committee was required forthwith to summon the
    assessment committee " and the assessment committee shall appoint a person
    " to make such provisional list in the same manner as is in this Act provided
    " in the case of the overseers failing to transmit a valuation list." After
    the ratepayer had addressed his written requisition to the overseers they
    failed, as required, to send a provisional list to the assessment committee.
    Because of the default of the overseers the assessment committee was sum-
    moned. The assessment committee instead of appointing a person to make
    a provisional list proceeded to consider the matter themselves and after
    hearing the ratepayer's representative passed a resolution that they found
    as a question of fact that the premises had not been reduced in value
    during the year so as to warrant the committee appointing a person to make
    a provisional list. It was held that the ratepayer was entitled to a mandamus
    commanding the assessment committee to appoint a person to make a
    provisional list. Provided that there was prima facie evidence of a reduction
    in value, as it was held that there was, then it seemed plain on the wording
    of the section that the assessment committee were under obligation to
    " appoint a person to make such provisional list ". As Cozens Hardy, M.R.,
    put it: " The ascertainment of the fact of reduction cannot be a condition
    " precedent to the putting in force of the machinery by which it may be
    " ascertained whether in truth there has been any reduction in value."

    The consideration of statutory wording in that case seems to me to have
    little relation to the problems arising in the present case.

    Nor do I find anything in Regina v. Fulham, Hammersmith and Kensing-
    ton Rent Tribunal
    [1953] 2 Q.B. 147 (on which the Appellants relied) which
    runs counter to the stream of authority. A rent had been determined
    and registered by a rent tribunal. A statutory provision gave power to
    reconsider the rent " on the ground of change of circumstances ". Where no
    change of circumstances was alleged it was not unnaturally held that there
    was no jurisdiction to inquire whether a proper rent had been determined on
    the previous occasion.

    21

    In the submissions on behalf of the Appellants a phrase much used was
    that the Commission had asked themselves wrong questions. The phrase
    can be employed when consideration is being given to a question whether a
    tribunal has correctly decided some point of construction. If, however, the
    point of construction is fairly and squarely within the jurisdiction of the
    tribunal for them to decide then a suggestion that a wrong question has
    been posed is no more than a means of deploying an argument: and if
    construction has been left to the tribunal the argument is unavailing. The
    phrase is, however, valuable and relevant in cases where it can be suggested
    that some condition precedent has not been satisfied or where jurisdiction is
    related to the existence of some state of affairs. Thus in the Bradlaugh case
    (supra) it could properly be said that a wrong question had been asked. In
    the Fulham case (supra) the basis for the start of an inquiry did not exist.
    So in some cases a tribunal may reveal that by asking some wrong question
    it fails to bring itself within the area of the demarcation of its jurisdiction.
    In Maradana Mosque Trustees v. Mahmud [1967] 1 A.C. 13 one part of the
    decision was that the rules of natural justice had been violated. The other
    part of the decision, relevant for present purposes, was that where statutory
    authority was given to a Minister to act if he was satisfied that a school is
    being administered in a certain way he was not given authority to act
    because he was satisfied that the school had been administered in that way.
    It could be said that the Minister had asked himself the wrong question:
    so he had, but the relevant result was that he never brought himself within
    the area of his jurisdiction.

    I do not find it necessary to deal fully with Davies v. Price [1958] 1 W.L.R.
    434 or with the actual decision in that case, but I see no reason for thinking
    that what was expressed by Parker L.J. (with the concurrence of Evershed
    M.R. and Sellers L.J.) was out of line with the current of authority: it was
    there held that even if the Agricultural Land Tribunal had misconstrued a
    statute that did not mean that they had exceeded their jurisdiction—" they
    " clearly had jurisdiction to decide whether to give or withhold consent and
    " if they misconstrued the statute or acted on no evidence they merely
    " erred in law" (see page 441): if affidavits "showed that they must have
    " misconstrued the statute that is not a question of want of jurisdiction . . ."

    Without further elaborate citation it is sufficient to refer again to the
    speech of Lord Sumner in Rex v. Nat Bell Liquors Ltd. (supra) in which he
    distinguished between a usurpation of a jurisdiction which someone has not
    got and the wrong exercise of a jurisdiction which someone has