Rigby J:

This is an appeal brought by the Penang Yellow Bus Co. Ltd. against the Rural District Council, Penang Island, in respect of the assessment of the annual value relating to premises owned by the appellants, for the year 1960. A preliminary point has been taken by Mr. Eusoffe Abdoolcader on behalf of the respondent and both Mr. Eusoffe Abdoolcader and Mr. Lim Huck Aik, who appears for the appellants, have asked for a decision to be given on the preliminary point raised at this stage, and have agreed that in the event of the preliminary point so raised being unsuccessful, the appeal should be adjourned to another date for expert evidence to be given. The point taken by Mr. Eusoffe Abdoolcader is that having regard to the provisions of s. 68(3) of the Municipal Ordinance the appeal is not properly before the Court and no appeal in fact lies by reason of the non-compliance by the appellants with conditions precedent laid down in that section to an appeal being constituted or lying. Section 68(3) of the Municipal Ordinance provides that:

No appeal shall lie against any assessment if the assessment being due is unpaid............

It is contended by Mr. Eusoffe Abdoolcader that having regard to the provisions of ss. 59(3) and 399(9) of the Ordinance and the notification thereunder, the assessment due in fact remained unpaid at the time the Notice of Appeal was lodged in this Court.

For purposes of the argument before me the brief facts of the case are that by a Notice dated 2 October 1959 and given under the provisions of s. 62(3) of the Municipal Ordinance, the appellants were informed that the Assessment List for the year 1960 "will contain a revised annual value of $66,000 on their premises." The previous annual value had, in fact, been $53,100. The appellants objected to that revision in accordance with the provisions of s. 62(4) of the Ordinance, and their objection was heard on 10 December 1959. By a letter dated 12 January 1960 the appellants' solicitors were informed by the Secretary of the Rural District Council in the following terms:

That this Council has confirmed the approval for the annual value of the abovementioned premises to stand at $66,000 with effect from 1 January 1960.

Now s. 59(3) of the Municipal Ordinance provides that:

Such rate or rates shall endure for any period not exceeding twelve months, and shall be payable half- yearly in advance, without demand..............

By s. 399 of the Ordinance the Governor is empowered to create Rural Boards, and by s. 399(9) he is empowered to direct whether the rates and taxes shall be payable yearly or half-yearly. The Rural District Council was created by the Governor under that Ordinance, and by virtue of Penang Gazette Notification No. 42 of 1929, it was provided that rates should be payable yearly in advance at the District or Land Office of the district. Subsequent notifications have not in any way affected that direction. It is, therefore, the argument of Mr. Eusoffe Abdoolcader that a condition precedent to the institution of this appeal had not been complied with in that on the receipt of the letter dated the 12 January 1960 the appellants knew that their appeal against the assessment had been dismissed and they knew, or ought to have known, that by virtue of ss. 59(3) and 399(9) the rates payable were required to be paid in advance, and that it was a condition precedent to an appeal lying that the unpaid rates be so paid in accordance with s. 68(3). Whilst I have considerable sympathy with the appellants there is no doubt in my mind that that contention is a valid one. I am satisfied that the conditions laid down in s. 68(3) were a necessary condition precedent to an appeal lying or being effectively constituted. The following passage in Willway's Quarter Sessions Practice, at pages 131- 132, seems to me directly in point:

In all cases, whether under the summary jurisdiction Acts or otherwise, certain conditions precedent must be fulfill