In the Court of Appeal of the Supreme Court of Judicature

1

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.

R U L I N G

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.

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 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 AppealRules are in terms similar to Rule 2 of Order LVIII of the 1883 SupremeCourt (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 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 Rules1906, 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 GerriahSarran (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 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 ofJudicature 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 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 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 InvestmentsLtd. (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 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 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.