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
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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
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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
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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
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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.