IN THE COURT OF APPEAL OF THE SUPREME COURT OF

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					   IN THE COURT OF APPEAL OF THE SUPREME COURT OF
                     JUDICATURE

                     APPELLATE JURISDICTION

                                       CIVIL APPEAL NO. 123 OF 2000

BETWEEN:

                           KENNETH JORDAN

                                      Appellant

                                - and –

                           MOHAMED RAFIUDEEN

                                      Respondent

BEFORE:

      The Hon. Madame Justice Desiree Bernard          - Chancellor
      The Hon. Madame Justice Claudette Singh          - Justice of Appeal
      The Hon. Mr. Justice Ian Chang                   - Justice of Appeal

Mr. A. Chase, S.C. with Ms. P. Chase for Appellant.

Mr. C.A.F. Hughes, S.C. with Mr. R. Stoby, S.C. and Mr. A. Pollard for
Respondent.

Mr. D. Singh, S.C., Attorney General in person with Messrs. G.P. Persaud
and N. Harnanan.

                               RULING

BERNARD, C. delivered the judgment of the Court:

      The appeal before this Court has its genesis in an advertisement in the

daily newspaper, the Guyana Chronicle, inviting bids for the upgrading of l.l

km of sea defence between Turkeyen and Ogle, East Coast Demerara. The

Respondent among others tendered a bid for $157,959,650.00 to the

Appellant, which was among the lowest but it was not accepted, and the

contract for the said works was granted to B.K. International Inc. whose bid

was for $181,679,900.00.
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      The Respondent being dissatisfied applied for the issue of a

prerogative writ of certiorari against the Appellant to quash his decision, a

writ of prohibition to prohibit the Appellant from granting the award of the

contract, and a writ6 of mandamus directing the Appellant to award the

contract to him. On 17th July, 2000 orders nisi were made by a Judge of the

High Court. Service was effected on the Appellant who filed an Affidavit in

Reply. However, on 15th December, 2000 after hearing Counsel for the

Respondent, the Appellant not having appeared the said orders nisi were

made absolute. The Appellant has appealed to this Court from the said

orders.

      The Respondent has now filed a motion seeking leave to join the

Attorney General and Minister of Public Works and Communications as

parties to the appeal, to serve them with copies of the notice of appeal, and

for an order directing the Minister or other relevant government authorities

to award the aforesaid contract to the Respondent.

      Counsel for the Respondent in support of his application contended

that in Guyana proceedings relating to applications for prerogative writs are

governed by the Crown Office Rules 1906, and Rule 206 provides that

Order LVIII of the Rules of the Supreme Court 1883 (Appeals) apply to

all civil proceedings including Mandamus, Prohibition and Quo Warranto.

Rule 1 of Order LVIII provides that all appeals to the Court of Appeal

shall be by way of re-hearing and shall be brought by notice of motion in a

summary way. Under Rule 2 of the said Order the notice of appeal shall be

served on all parties directly affected by the appeal, and it shall not be

necessary to serve parties not so affected, but the Court of Appeal may direct

notice of appeal to be served on all or any parties to the action or upon any

person not a party, and may postpone or adjourn the hearing upon such
                                      3


terms as may be just, and may give such judgment and make such order as

might have been given or made if the persons served with such notice had

been original parties.

      Counsel submitted that Order 2 Rule 4(1) of the Court of Appeal

Rules are in terms similar to Rule 2 of Order LVIII of the 1883 Supreme

Court (Appeals) Rules, and if it appears that a person who was not a party

to the proceedings is “interested or likely to be affected” by an order for a

mandamus, such person can be given notice of the proceedings and be made

a party thereto.    He pointed out that the acting Permanent Secretary,

Elizabeth Austin, had deposed in her ex parte application by way of affidavit

for a stay of judgment that the said judgment appealed from affects the State,

and so did the Appellant in his affidavit in support of a motion for the

Ministry of Transport and Hydraulics to be permitted to carry out the sea

defence works. He contended that it is clear that the Government is both

interested in the matter and will be affected by it. He submitted that the

proper functionaries of the Government on whom notice of the appeal

should be served and who should be joined are the Attorney General and the

Minister of Public Works and Communications being the parties who are

responsible for the award of the contract.

      Counsel for the Appellant in reply contended that this Court has no

jurisdiction in the prerogative proceedings before it to join any parties. No

nisi order having been served on the Attorney General or the Minister of

Works & Communications means that they have been denied the

opportunity to show cause, and it would be denial of justice to have them

joined at this stage; further this Court has no original jurisdiction to hear a

prerogative writ. He drew the Court’s attention to the Affidavit in Reply of

Kenneth Jordan sworn to on 22nd August, 2000 in which he laid out the
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procedure for the award of a tender after a report is made by the Evaluation

Committee, and at paragraph 12 swore that it is the Cabinet that considers

the report and makes a decision. This fact was known to the Respondent

since August 2000 and no application was made for joinder until nearly one

year later.

       In reference to “The Practice on the Crown Side of the Kings’s Bench

Division”, 2nd Edition, by Short & Mellor and to the Crown Office Rules

1906, Counsel submitted that unless those Rules provide for joinder of

parties none can be made in prerogative proceedings, and if our Courts are

bound by the said Rules the settled principle is that mandamus does not lie

against a Minister in his official capacity.

       The Attorney General who was served with a copy of the motion and

who was granted leave to be heard submitted that the Court had no power to

compel a Minister or the Attorney General to be made parties, and natural

justice dictates that the Attorney General be made a party at the initial stage;

if joined at this stage of the proceedings he would be deprived of an

opportunity to be heard.

       It has been accepted generally that in Guyana applications for

prerogative writs are governed by the Crown Office Rules 1906 (see

Coghlan v. Vieira (1958) LRBG, 108 and Re Application by Gerriah

Sarran (1966) 14 WIR, 361 per Cummings, J.A. at page 370).

       Rule 206 of the Crown Office Rules 1906 provides that Order

LVIII of the Rules of the Supreme Court 1883 (Appeals) which governed

appeals to the Court of Appeal in England should apply to all civil

proceedings on the Crown Side including mandamus and prohibition. Rule

2 of the said Order LVIII provides that the notice of appeal shall be served

upon all parties directly affected by the appeal, but the Court of Appeal may
                                       5


direct notice of the appeal to be served on all parties to the proceedings or

upon any person not a party, and may postpone or adjourn the hearing of the

appeal upon such terms as may be just, and may give such judgment and

make such order as might have been given or made if the persons served

with such notice had been original parties.

      Order 2 Rule 4(1) of our Court of Appeal Rules, Cap. 3:01 is in

similar language and content, and the effect of it is that in any civil

proceeding whether action, motion or prerogative writ the Court of Appeal

may direct service of a notice of appeal on any person whether a party to the

proceeding or not.

      Rules 50 and 51 of the Crown Office Rules 1906 concern notice and

service of orders nisi, and Rule 52 applies to a person who seeks to

intervene and can show that he is affected by the proceeding.

      The question of whether our Court of Appeal has jurisdiction to grant

leave to a third party to intervene or to a party to join someone not a party to

the original proceedings was first considered in Inshan Bacchus and

Another v. Ali Khan and Others (1984) 34 WIR, 135. Luckhoo, J.A. in

his judgment at page 154 indicated that the Court of Appeal in England has

all the powers and duties of the High Court, and this included the power to

add or to give leave to add parties; in addition the Supreme Court of

Judicature Act 1925 gave to the Court of Appeal powers as regard practice

and procedure which were available under the old Chancery practice. In the

exercise of such powers the Curt could grant to persons (not parties to an

action) leave to appeal against a judgment of the High Court if that person

could make out a prima facie case that they were injuriously affected by the

judgment.    He reasoned that by virtue of the incorporation of the old

Chancery practice and procedure into our system through the combined
                                       6


effect of Section 3 of the Court of Appeal Act, Cap. 3:01 (which provides

that the Court shall have all the powers exercisable by the Supreme Court of

Judicature in England) and Order 1 Rule 11 of the Court of Appeal Rules

(in matters of practice and procedure the jurisdiction of the Court shall be

exercised in conformity with the law and practice for the time being in force

in England) we enjoy powers similar to those vested in the English Court of

Appeal.     The learned Justice emphasised that the jurisdiction is a

discretionary one, inherent in its concept, and the question of admitting other

parties must rest in the sound discretion of the court.

      The same issue arose again for consideration before this Court in The

Attorney General of Guyana v. Andrew James Investments Ltd. &

Toolsie Persaud Ltd. (C.A. No. 53/1990).           The Court was divided in

considering dicta of Luckhoo, J.A. in Inshan Bacchus. Kennard, J.A. was

of the view that the inherent jurisdiction of the Court to permit intervention

was not “the basal point” in Inshan Bacchus, and whatever was said by

Luckhoo, J.A. cannot be taken to apply to cases dealing with fundamental

rights or to be of general application. Bishop, J.A. on the other hand agreed

in toto with the reasoning and analysis of Luckhoo, J.A., and concluded that

the Court of Appeal possesses an inherent jurisdiction to grant leave to a

third person to intervene or to be added as a party at the appellate stage.

Churaman, J.A. expressed similar views and agreed entirely with

Luckhoo, J.A.’s “classical exposition”. Therefore the majority view seems

to be that this Court has such jurisdiction. In Inshan Bacchus Gonsalves-

Sabola, J.A. rested his views on this aspect of the case on Order 1 Rule 8

of the Court of Appeal Rules which permits the Court to direct a departure

from the Rules in any way where this is required in the interests of justice.

He expressed it as “liberating the Court” in matters of procedure, and
                                       7


concluded that “it comes down to saying that there is an inherent power in

this Court to sanction a procedure not specifically prescribed in the Rules

where it will serve the interests of justice to do so”. According to the

learned Justice “in matters of procedure the Court of Appeal is master in its

own house”.

      The overall effect of all dicta expressed in both Inshan Bacchus and

Andrew James Investments Ltd. with which I am in total agreement is that

this Court has jurisdiction to grant leave to a third person to intervene or to

be added as a party in an appeal. I am of the view that appeals from orders

made in proceedings commenced by way of prerogative writ are no

different. Since we enjoy powers similar to those vested in the English

Court of Appeal, and by virtue of Rule 206 of the Crown Office Rules

1906 all rules governing appeals to the Court of Appeal in England applied

to prerogative writs a fortiori this Court has an inherent jurisdiction to grant

leave to a third person to intervene or to be added as a party in an appeal

from an order made in proceedings commenced by prerogative writ.

      However, in both Inshan Bacchus and Andrew James Investments

Ltd. (supra) a third party had approached the Court of Appeal seeking leave

to intervene or to be added as a party in the appeal on the ground that they

were aggrieved or would be prejudicially affected by the order made by the

Court below. This is not the case in the appeal before us. In this appeal the

Appellant seeks to have a third party served with a notice of the appeal and

joined as being one who appears to be interested in or is likely to be affected

by the proceedings.

      We have not been referred to any case and my independent research

has uncovered none where one of the parties to a proceeding has sought

leave to have a third person not a party joined at the appellate stage as
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having an interest in and likely to be affected by the proceeding. However,

the combined effect of Order 2 Rule 4(1) which provides for service of a

notice of appeal upon any person not a party to the proceeding presumably if

it can be established that such a person has an interest in the proceedings and

is likely to be affected by it, and the inherent power of this Court to sanction

a procedure not specifically prescribed in the Rules where it will serve the

interests of justice to do so as stated by Gonsalves-Sabola, J.A., propels me

to the view that this Court has jurisdiction to grant leave to a party to

proceedings to join a third person not originally a party.

      However, the party seeking to join the third person and to invoke the

discretionary powers of this Court must establish that the need to have such

a person joined arose from facts which became known after the order of the

lower court was made, and in the interests of justice it is necessary to have

the person joined.

      In the present case the Appellant, Kenneth Jordan, in his Affidavit in

Reply sworn to on 22nd August, 2000, four months before the orders nisi

were made absolute, had sworn that after the Evaluation Committee’s

recommendation is made it is submitted to the Tender Board who submits its

findings to the Minister in the Office of the President with responsibility for

Finance who in turn submits it to the Cabinet for consideration.           The

Appellant also swore that he was acting as agent for the Government.

      The Respondent therefore had knowledge before the orders were

made absolute that it was either the Minister of Finance or the Cabinet and

not the Appellant who made the final decision in awarding the contracts. In

the Notice of Motion to join the Attorney General and Minister of Public

Works & Communications reference is made to the relevant paragraph in the

Appellant’s Affidavit in Reply, but no reason was given for the failure
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and/or delay in seeking leave to join them before the orders were made

absolute.

      Rule 50 of the Crown Office Rules 1906 provides for notice of an

order nisi of mandamus to be given to every person “who shall appear to be

interested in or likely to be affected by the proceedings, and to any person

who, in the opinion of the Court or judge ought to have such notice”. This

accords with my thinking that it is the Court or judge who decides on whom

notice of the order nisi should be served, and this decision is made before the

order is made absolute. If the Court or judge is of the opinion that a person

is interested in or is likely to be affected by the proceedings he/she can order

that notice of the order nisi be served on that person.

      Application should have been made to the learned trial judge or the

Court suo motu ought to have granted leave to have notice of the orders nisi

served on the Attorney General and the relevant Ministers being persons

who appeared to be interested in and likely to be affected by the

proceedings.

      This not having been done in the Court below it is the view of this

Court that it would not be a fair and reasonable exercise of its discretion to

have the Attorney General and the Minister of Public Works &

Communications joined at this stage.

      Accordingly the application for joinder is hereby refused.



Dated the 27th day of November, 2001.



                                                     Desiree P. Bernard
                                                     Chancellor.

				
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