9 in the court of appeal of the supreme court of judicature appellate jurisdiction ====================== civil appeal no. 123 o

9
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 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 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 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 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 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 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.

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