Chief Building Surveyor v Makhanlall & Co Ltd

• Jurisdiction: Singapore
• Judge: Choor Singh J
• Judgment Date: 22 May 1969
• Neutral Citation: [1969] SGFC 5
• Date: 22 May 1969
• Subject Matter: Certiorari,Certificate failing to comply with requirements of s 63(4),Section 63(4) Local Government Integration Ordinance 1963,Administrative Law,Whether there was locus standi to apply to quash order,Natural justice,Whether court acting in excess of jurisdiction,Remedies,Building owner deprived of property without having opportunity to be heard,Court order empowering demolishment of building,Court acting on chief building surveyorÂ’s certificate in making order under s 63(4) Local Government Integration Ordinance 1963,Whether court order breaching rules of natural justice
• Docket Number: Civil Appeal No Y50 of 1968
• Published date: 19 September 2003
• Defendant Counsel: Sachi Saurajen (Drew & Napier)
• Court: Federal Court (Singapore)
• Plaintiff Counsel: Lee Kim Siang (State Counsel)

This is an appeal from a judgment of the High Court granting an order of certiorarito quash two orders made by a magistrate`s court, an order made on 4 October 1967 under s 63(4) of the Local Government Integration Ordinance 1963 (the Ordinance) authorising the chief building surveyor either to demolish the building known as 19/20 Malacca Street, Singapore, or to take such steps as appear to the chief building surveyor to be necessary to make the building secure, and another order of the same magistrate`s court made on 30 October 1967 under s 63(5) of the Ordinance prohibiting the said building from `being used for human habitation`.

The facts are not in dispute. The respondent company is a tenant of the ground floor of No 20 Malacca Street, where it carries on business as importers, exporters and commission agents. It has been in occupation of these premises for more than 25 years. On 4 October 1967 the chief building surveyor, Singapore, swore a complaint before the ninth magistrate`s court, Singapore, alleging that due to structural defects the building in question was in danger of collapse. Attached to the complaint was a certificate of the assistant building surveyor regarding the structural condition of the building. It was in the following terms:

I, the undersigned, hereby certify that I have inspected on 3 October 1967 building No 19/20 Malacca Street, known as Namazie Building which is situated at the junction of Malacca Street and a back lane.

I have found that the building is in danger of collapse due to structural defects in the structure - there are big cracks from five-foot-way level to almost roof level in the East wall; rear part of West wall is cracked, out of plumb and bulging towards the back lane; structural cracks in some beams; a good number of floor joints of second floor are sagging; one column on the second floor is out of plumb.

Immediately adjacent to the back wall of the Namazie Building there is a free standing wall extending the full height of the Namazie Building. This wall is also in danger of collapse.

Sd Tan Hock Meng

Assistant Building Surveyor

On receipt of the complaint, the magistrate`s court, purporting to act under s 63(4) of the Ordinance, made the first order complained of and on 30 October 1967 on the application of the chief building surveyor, the magistrate`s court made the second order. Both orders were made ex parte and the owner of the building was not given an opportunity of being heard in respect of the first order nor were the occupants in respect of the second. Armed with the order of 30 October 1967 and acting under s 106(14) of the Ordinance, the chief building surveyor served notice on the respondent company calling upon it to vacate the premises. Upon receipt of this notice, the respondent company moved the High Court for an order of certiorari to quash the two orders made by the magistrate`s court. The High Court held that the magistrate`s court was under a duty to act judicially in deciding whether a situation existed which empowered it to make an order under the latter part of sub-s (4) of s 63; that the certificate of the chief building surveyor was not a certificate as required by s 63(4) ; that the magistrate`s court acted in excess of its jurisdiction in making the two orders which the applicants sought to quash by certiorari; and that the order nisimust therefore be made absolute. It is against this decision of the High Court that the appellant now appeals to us.

The relevant sections of the Ordinance provide as follows:

63(4) Notwithstanding the provisions of sub-ss (1), (2) and (3) of this section where the chief building surveyor is of opinion that immediate steps ought to be taken to prevent a building or anything affixed thereon, from falling down, he may so certify to a magistrate`s court, and a magistrate`s court, on receipt of such a certificate, shall make an order authorising the chief building surveyor either to demolish the building or to take such other steps as appear to the chief building surveyor to be necessary to render the building secure and the expense thereby incurred shall be paid by the owner of the building.

(5) Where an order is made under the provisions of sub-s (4) of this section in respect of any building which is occupied, the court shall on the application of the chief building surveyor make an order prohibiting the building from being used for human habitation and the provisions of sub-s (14) of s 106 of the Ordinance shall apply as if such order were a closing order made under that section.

(106) (14) Where a closing order has been made with respect to any dwelling-house, the director shall serve notice of the order on every occupier of the dwelling-house and within such period as is specified in the notice not being less than seven days (save in case of immediate danger) after the service of the notice the order shall be obeyed by him and he and his family shall cease to inhabit the dwelling-house, and in default he shall be liable on conviction to a fine not exceeding fifty dollars a day during the disobedience to the order, and the court shall, upon application by the director, make a summary order for his ejectment and the same may be carried into effect by any police officer or officers:

Provided that the owner shall make to every tenant whose tenancy has not been lawfully determined such reasonable allowance, if any, on account of his expenses in removing as a court may allow or order, and such allowance shall be recoverable in a summary way before a magistrate`s court.

Counsel for the appellant submitted that although the certificate of the chief building surveyor did not certify that he `was of the opinion that immediate steps ought to be taken to prevent the building from falling down` the failure to use such words was not fatal; that the chief building surveyor can convey his opinion by implication; that his opinion may be gathered from the surrounding circumstances; that it was not obligatory on the part of the chief building surveyor to use express words; that it was not the bare opinion of the chief building surveyor that was of paramount importance but the grounds upon which his opinion was based which were of crucial importance; that the chief building surveyor had stated these grounds and his opinion could be inferred therefrom; and that the chief building surveyor by stating the grounds had made it much clearer, why immediate steps should be taken, than by merely expressing a bare opinion that immediate steps ought to be taken to prevent the building from failing down. Counsel argued that the chief building surveyor`s certificate though omitting the `magic words` was nonetheless effective and sufficient; that the magistrate`s court by acting on it had not acted in excess of its jurisdiction and that the appeal must therefore be allowed.

Counsel for the appellant submitted further that the magistrate`s court was under no duty to act judicially. Counsel conceded that the construction of a statute was a matter of law but that was he submitted a matter totally different and divorced from the concept of a duty to act judicially, which duty, he argued, must exist for certiorari to apply. Counsel submitted that it was the nature of the process that mattered; that the court must look at the process and see if the magistrate`s court was obliged to hear both parties; that in this case in view of the language of s 63(4) of the Ordinance, the magistrate`s court was under no duty to hear the respondent company; that that was clear from the language used because on receipt of the chief building surveyor`s certificate the magistrate`s court was obliged to make an...