Ngai Sau Ying v. Henry Chue Kwok Keung

CACV000030/1982

BETWEEN

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Coram: Leonard, V-P, Cons, J. A. & Kempster, J.

Date: 30 March 1982

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RULING

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Kempster, J:

1. On the 14th of January of this year an order was made in the District Court for possession of certain residential premises in Kowloon [an order which was stayed for four months on terms] on the grounds that the plaintiff reasonably required these premises for his own occupation. No notice to quit was alleged in the particulars of claim and no such notice was proved in evidence. The case was conducted by both parties on the footing that such notice was irrelevant to a claim for possession pursuant to section 53(1)(b) of the Landlord and Tenant Consolidation Ordinance, Cap. 7.

2. On the 20th of January a judge in a different District Court held that any contractual tenancy must be determined before the landlord may invoke section 53(1)(b). In the light of this decision the defendant issued a summons for the review of the judgment given of the 14th of January; the application being made pursuant to section 53 of the District Court Ordinance, Cap. 336. Whether or not the judge was entitled to review his decision having regard to the terms of section 68(7) of the Landlord and Tenant Ordinance, he adjourned the application for want of time when it came before him on the 11th of February. On the 26th of February he allowed the application to be withdrawn and granted leave to the defendant to appeal to this Court out of time. Accordingly we have to determine at the outset whether the defendant should be permitted to argue before us that the judgment ought to be reversed because no notice to quit has been alleged or proved; the point not having been taken at first instance. In re Coburn ex parte Firth ⁽¹⁾ the Master of the Polls Sir George Jessel said:

"if a point was not taken before the Tribunal which hears the evidence, and evidence could have been adduced which by any possibility would prevent the point from succeeding, it cannot be taken afterwards. You are bound to take the point in the first instance so as to enable the other party to give evidence."

I emphasise the words "so as to enable the other party to give evidence". The Master of the Rolls had made the same point in the course of argument, as appears on p 425 of the Report, when he was being addressed by Mr. Winslow and interrupted to say:

"It appears that this point was not raised in the County-Court. If it had been, the trustee might have been able to answer your evidence."

The question was considered by the House of Lords some 8 years later in a case involving a collision at sea, "The Tasmania"⁽²⁾. At p 225 of the Report the following words appear in the speech of Lord Herschell:

"At the trial no other point was taken for the plaintiffs except that which I have mentioned. (He deals with certain facts relating to the collision.) But in the Court of Appeal this point was for the first time raised. It was contended that the Tasmania had kept her course too long and that she ought to have earlier taken the step which she ultimately did, viz. putting her helm down and so coming up to the wind.

My Lords, I think that a point such as this, not taken at the trial and presented for the first time in the Court of Appeal, ought to be most jealously scrutinised. The conduct of a cause at the trial is governed by and the questions asked of the witnesses are directed to the points then suggested. And it is obvious that no care is exercised in the elucidation of facts not material to them.

It appears to me that under these circumstances the Court of Appeal ought only to decide in favour of an appellant on a ground there put forward for the first time, if it be satisfied beyond doubt, first, that it has before it all the facts bearing upon the new contention as completely as would have been the case if the controversy had arisen at the trial; and next, that no satisfactory explanation could have been offered by those whose conduct is impugned if an opportunity for explanation had been afforded them when in the witness box."

While the House of Lords would not have had before it all the facts bearing on the new contention as completely as would have been the case had the controversy arisen at the trial we can be put in such a position by the expedient of admitting fresh evidence from the litigant who has obtained a judgment in his favour; should he seek to adduce such evidence. At this juncture no application to amend the particulars of clam or to adduce evidence of service of a notice to quit has been made to us. The words in Lord Herschell's speech referring to "satisfactory explanation" have no relevance in the present context. In expressing the proper approach to be adopted by this Court I would avail myself of that part of the judgment of Lord Justice Widgery, as he then was, in Wilson v. Liverpool City Council ⁽³⁾ at p 632 where he said:

"If a point is not talon in the Court of Trial it cannot be taken in the Appeal Court unless that court is in possession of all the material necessary to enable it to dispose of the matter finally without injustice to the other party and without recourse to a further hearing below."

I would allow the defendant to argue the point raised before us by the Notice of Appeal, including the point which he seeks to add by way of amendment in relation to costs, on the understanding that I would also allow any application to amend the Particulars of Claire and to call fresh evidence and, if necessary, to adjourn for the purpose; also bearing in mind cur overall discretion in relation to costs. Then, at the election of the plaintiff, this Court would, in my view, be in possession of all the material necessary to enable it to dispose of the matter finally without injustice to either party and without recourse to a further hearing below.

(1)     (1882) 19 Chancery Division 419 at p 429

(2)     (1890) 19 A. C. 223

(3)     (1971) 1 All ER 628

Representation:

Edward Chan (Peter Mo & Co.) for Appellant

Kenneth Kwok (Wilkinson & Grist) for Respondent