JUDGMENTBY: TERRELL AG CJ (FMS), AITKEN, AG JA, MANNING, J

TERRELL AG CJ (FMS) I have had the advantage of reading the judgment of the Honble Mr. Justice Aitken, Acting Judge of Appeal, and it is unnecessary therefore to recapitulate the facts.

The following questions appear to arise.

(1) Was the judgment in Melanie Lees case 1921(Melanie Lees

Case), (1933) SSLR 536, (1932) MLJ 180, such an authoritative

interpretation of the Rent Restriction Ordinance of 1921 that the

Ordinance of 1939 must be deemed to have accepted such

interpretation when the corresponding sections were re-enacted?

(2) If Melanie Lees case is not such an authoritative

decision, what is the proper construction to be put on s. 7

sub-s. 5 of the present Ordinance?

The first question to consider is what Melanie Lees case in fact decided. The head-note reads:--

"It (the Board) has no power to rehear applications under s. 9 sub-s. 5

of the Rent Restriction Ordinance 1921. Such powers of rehearing only

apply to applications under s. 9 of the Ordinance, and not to

applications under other parts of the Ordinance."

For the purpose of this appeal s. 9 of the 1921 Ordinance may be taken as being identical with s. 7 of the present Ordinance.

I respectfully agree with the learned Chief Justice that if the head-note is justified by the judgment, then upon the principles laid down in Barras v Aberdeen Steam Trawling and Fishing Co (1933) AC 412, the Court would be bound to give the present Ordinance the judicial interpretation placed upon the previous Ordinance.

But is the head-note in fact justified? The details of the case are carefully examined in the judgment above referred to, and it is quite certain that Barrett-Lennard, J. never referred to s. 9 sub-s. 5 of the Ordinance throughout his judgment. At page 538 of the Report Barrett-Lennard, J. says:--

"It is the policy of the law that Tribunals shall not review or rehear

cases. If they are at liberty to do so, there would never be an end to

judicial proceedings at all."

This prima facie appears to be a protest against multiplicity of proceedings. The learned Chief Justice has, however, examined the record of the case, and has come to the conclusion that the construction of s. 9 sub-s. 5 must have been argued, and that if it was argued, the head-note gave a correct interpretation of the effect of the decision. With respect I do not agree. There is no indication in the record itself that any new facts were submitted to the Court. On the contrary one application after another appears to have been made on the same facts. In the circumstances there can be no doubt that the observations of BarrettLennard, J. quoted above were directed to this aspect of the case, and that the issue of a writ of prohibition was fully justified quite apart from any construction that might have been placed on s. 9 sub-s. 5 of the Ordinance.

It is now necessary to consider what the rule of construction is. In Webb v Outrim (1907) AC 81, Lord Halsbury quoting the judgment of Griffiths, C.J., states the rule to be as follows:--

"When a particular form of legislative enactment, which has received

authoritative interpretation, whether by judicial interpretation or by

a long course of practice, is adopted in the framing of a later

Statute, it is a sound rule of construction to hold that the words so

adopted were intended by the legislature to bear the meaning which has

been so put upon them."

There must therefore be either authoritative judicial interpretation or long practice. In the present case long practice need not be considered. The decision in Melanie Lees case was in 1921, and was not reported until 1933, the Ordinance having in the meantime been repealed in 1923, and not re-enacted until 1939.

As regards the authoritative judicial interpretation, it has been held that the int

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