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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) URL: http://www.bailii.org/uk/cases/UKHL/1968/6.html Cite as: [1969] 2 AC 147, [1968] UKHL 6 |
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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Israeli forces had withdrawn, the Egyptian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