Read the full judgment text of CACV 000142/1996 on BabelCite. This Court of Appeal judgment was delivered on 12 September 1996 before Nazareth, V.-P., Godfrey JA, Liu JA.
Civil procedure – appeal from Lands Tribunal – striking out notice of appeal – whether notice discloses any arguable point of law – Lands Tribunal Ordinance, Cap.17, s.11(2). Landlord and tenant – possession proceedings – tenant's assertion of adverse possession as defence – whether Lands Tribunal must transfer entire proceedings to High Court under Lands Tribunal Ordinance, Cap.17, s.8A(1)(a) – Tribunal's power to examine facts to determine its own jurisdiction. Civil procedure – jurisdiction – preliminary point of jurisdiction – Tribunal entitled to investigate factual basis of alleged want of jurisdiction before ordering transfer. Landlord and tenant – forfeiture – non-payment of rent and denial of landlord's title – power of Lands Tribunal to grant relief against forfeiture – 1993 amendments to Lands Tribunal Ordinance, Cap.17 – powers of High Court under Supreme Court Ordinance, Cap.4, s.21F – whether 4-week payment period required where forfeiture also based on denial of title. Statutory interpretation – s.21F confined to forfeiture for non-payment of rent alone – does not apply to separate ground of forfeiture by denial of title. Practice – notice of appeal striking out – short notice of application – whether striking out should be without prejudice to fresh application for leave to appeal out of time. The respondent landlord applied to strike out the appellant's notice of appeal from an order of the Lands Tribunal dated 6 June 1996 granting possession of a wooden hut in the common parts of a North Point property. The Court of Appeal held that an appeal from the Lands Tribunal lies only on a point of law under s.11(2) of the Lands Tribunal Ordinance, Cap.17. On grounds 1 and 2, the Court held that the Lands Tribunal was not bound to transfer the proceedings to the High Court merely because the tenant asserted ownership by adverse possession; the Tribunal is entitled to examine the facts in order to determine whether it has jurisdiction, and may then proceed on the basis that the alleged tenant is in fact a tenant if the adverse possession claim fails. Ground 3 was not pressed. On ground 4, the Court held that s.21F of the Supreme Court Ordinance, Cap.4, applies only to forfeiture for non-payment of rent and does not require a 4-week payment period where forfeiture is also based on denial of the landlord's title; the Tribunal's order for possession forthwith was therefore lawful. The application to strike out was filed only one week before hearing and the appellant had little time to respond, so the Court ordered the striking-out without prejudice to any separate application the appellant may make for leave to appeal out of time on other points. Notice of appeal struck out; landlord's costs of the appeal and of the strike-out application to be taxed and paid by the appellant/tenant to the respondent/landlord.
Legal issues: Whether the Lands Tribunal must transfer proceedings to the High Court when tenant asserts adverse possession · Whether s.21F of the Supreme Court Ordinance requires a minimum 4 weeks to pay in all forfeiture cases
Outcome: The respondent landlord's application to strike out the notice of appeal succeeded; the notice of appeal was struck out in its entirety as disclosing no arguable point of law.