CCJ clears way for cricket board reps to appeal decision rejecting IMC challenge

The Caribbean Court of Justice (CCJ) this morning handed down a ruling giving representatives of the Guyana Cricket Board (GCB) more time to appeal a decision by Chief Justice Ian Chang to throw out their application challenging the establishment of an Interim Management Committee (IMC) to run the affairs of cricket in Guyana.

It was the latest twist in an acrimonious battle which has pitted the Ministry of Sport against the members of the now defunct GCB with former West Indies captain Clive Lloyd caught in the middle as the head of the IMC.

The CCJ ruling handed down in Port of Spain this morning gives the two GCB representatives: Robin Singh and Rajendra Singh  14 days from today to file a notice of appeal from the order of Justice Chang of December 29, 2011 providing that the duo within seven days of this judgment files with the Registrar of the Guyana Supreme Court a notice seeking such an extension. Today’s ruling said that upon compliance with these conditions, the notice of appeal shall reflect that it has been filed in accordance with an order of the CCJ granting an extension of time.

The CCJ found that in the current proceedings the representatives of the GCB should have had the right to appeal CJ Chang’s order at the Guyana Court of Appeal. However the GCB representatives mistakenly sought recourse to the Full Court and when their approach there was rejected the Guyana Court of Appeal denied their application to appeal the Full Court’s decision. The CCJ said that the Guyana Court of Appeal “fortuitously” held that it had no jurisdiction to hear an appeal although it relied on the wrong premise.

Genesis

The case had its genesis in action filed by Angela Haniff, Secretary of the Berbice Cricket Board who had approached CJ Chang’s Court challenging the election of Ramsay Ali as President of the GCB at the Annual General Meeting of June 10, 2011. Those were controversial elections in a deeply divided cricketing fraternity. The CCJ noted that the action was heard on August 11 and 15 by the CJ and on August 22 a ruling “surprisingly citing no authorities” was handed down. The CCJ noted that in his final paragraph CJ Chang said that since all the parties to the action were no more than representatives of unincorporated umbrella associations they lack legal personality and the action was misconceived and must be struck out.

The CCJ further reported CJ Chang as saying that while a legislative structure for the administration of cricket was desirable “there may be the immediate need for the Minister responsible for sports to impose his executive will in the national interest until such time as parliament can provide a more permanent welfare structure. The Minister can take immediate interim action”.

The CCJ noted that the Minister of Sport took up the CJ’s suggestion on December 23rd,  2011 and made moves to install an IMC in the place of the GCB. This led to two GCB trustees: Lionel Jaikarran and Chetram Singh filing an ex parte motion on December 28 for an order quashing the Minister’s decision to set up the IMC. The CCJ noted that on December 28 and 29 CJ Chang himself heard the ex parte application and on December 29 ordered that the application be refused. The CCJ noted that no written judgment was given but that counsel for the GCB representatives, Sanjeev Datadin had informed the CCJ that CJ Chang had used his ruling in the Haniff v Ali matter to find that the claimants had no locus standi as they were purporting to represent a body that was a legal non-entity.

The CCJ further noted that the case went next to the Full Court which ordered on January 25, 2012 that the December 30, 2011 motion on behalf of the GCB representatives be dismissed. It refused an application to appeal the matter to the Guyana Court of Appeal. Some oral reasons were given by the Full Court but no written judgment has yet been handed down, the CCJ noted. The CCJ said that Datadin advised the CCJ that the Haniff v Ali locus standi argument was again used by the Full Court.

However, the CCJ noted that the Guyana Court of Appeal was subsequently moved by a motion by the GCB representatives dated January 30, 2012 for leave to appeal against the decision of the Full Court. The Court of Appeal heard the matter on February 14, 2012 but dismissed the motion apparently on the ground that it had no locus standi to accommodate an appeal from an ex parte decision in light of section 6(5) (d) of the Court of Appeal Act Cap 3.01 though again, the CCJ noted, no written reasons have been provided.

The GCB representatives then approached the CCJ for special leave to appeal the Guyana Court of Appeal decision that it had no jurisdiction to hear any appeal to it in this case. On April 12, 2012 following a video conference, Robin Singh and Rajendra Singh were substituted for Chetram Singh and Lionel Jaikarran.

In a lengthy consideration of the issues before it, the CCJ alighted on the difference between an originating ex-parte application as the GCB applicants’ application was held to be and an interlocutory ex-parte application which subsists within an inter partes (between parties) matter.

The CCJ noted that Attorney General Anil Nandlall had argued before it that all ex parte applications are to be treated in the same manner and that section 6 of the Court of Appeal Act Cap 3.01 prohibits any appeals of orders pertaining to them. This argument was countered by counsel for the GCB representatives who argued that if an originating ex parte application was refused there was no underlying inter partes action to fall back on and therefore there is ground for an appeal. Counsel for the GCB representatives further argued that if a new ex parte application was made the High Court judge would simply follow the earlier decisions in refusing the applications.

“Thus the refusals of the two ex parte applications have finally disposed of the rights of the parties because it is clear that the reality is that no leave for the issue of a nisi order for certiorari will ever be granted, so leaving the Minister for Culture, Youth and Sport and the Interim Management Committee running the administration of cricket in Guyana”, counsel for the GCB representatives argued.

The CCJ accepted this argument, finding in effect that the order refusing the originating ex parte application was a “final order” despite the Attorney General’s argument to the contrary.

The clincher for the CCJ was consideration of whether the ousting of appeals under section 6 of the Court of Appeal Act was implicitly restricted to interlocutory ex parte applications but not an originating ex parte application.

Adverting to the Guyana High Court rules and the constitution, the CCJ noted that the preamble of the latter underlines the “importance of a system of governance that promotes, inter alia fundamental human rights and the rule of law. The main purpose of certiorari, indeed, is to quash unlawful conduct of public bodies which can very well cause interference with fundamental rights…Rules of court should thus be purposively construed so as to foster the fundamentals of the constitution.

The CCJ said that the application by the GCB representatives was an originating one to enable a case to become inter partes. “If the application is refused the case never gets off the ground. It is thus very different from an interlocutory ex parte application”, the court found. The CCJ cited other authorities.

The CCJ concluded that the order refusing an originating ex parte application is a final order and therefore can be appealed.

It added “The seeking of such a public law remedy to prevent alleged unlawful abuse of public powers is of such significance in the light of Guyana’s Constitution that an appeal lies as of right to the Court of Appeal.”

It said that the GCB representatives cannot be blamed for accepting the wording of Section 6 of the Court of Appeal Act and incorrectly approaching the Full Court.

The CCJ said that in these “exceptional circumstances” it is of the view that no court could properly refuse an application for an extension of time for appealing Justice Chang’s December 29 order.

Appearing on behalf of the GCB representatives were Sir Fenton Ramsahoye, Datadin, R Satram, CV Satram and A Gajraj. Nandlall and Nareshwar Harnanan appeared for the Attorney General of Guyana.

 

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