Nandlall v The Minister of Legal Affairs et Al
| Jurisdiction | Guyana |
| Judge | Harnanan, P.J. |
| Judgment Date | 19 April 2017 |
| Neutral Citation | GY 2017 HC 1 |
| Docket Number | 2017-HC-DEM-CIV-FDA-78 |
| Court | High Court (Guyana) |
| Date | 19 April 2017 |
IN THE HIGH COURT OF THE SUPREME COURT OF JUDICATURE
PROCEEDING FOR JUDICIAL REVIEW
Harnanan, P.J.
2017-HC-DEM-CIV-FDA-78
Mr. Mohabir Anil Nandlall — Applicant, in person
Hon. Basil Williams S.C. — Respondents
Administrative law - Judicial review — Whether the applicant failed to disclose all material facts pertinent to the application — Whether the order nisi of mandamus is tantamount to interfering with the functions of the Executive — Whether breach of separation of powers — Whether the order nisi should be made absolute — Functions of order of mandamus — Whether the Governing Board of the Deeds and Commercial Registries was not properly constituted — Whether a time limit imposed by the DCRA for the appointment of members — Appointment of members by the Minister — Deeds and Commercial Registries Act sections 4–6 — Commonwealth Caribbean Administrative Law, Routledge, 2013 pages 56 and 411 — Belize Institute of Environment Law v. Chief Environmental Officer BZ 2008 SC 13.
On the 8th March, 2017, after hearing a Fixed Date Application for judicial review, Hon. Justice Brassington Reynolds granted an order nisi of mandamus compelling the Minister of Legal Affairs to appoint the members of the Deeds and Commercial Registries Authority, a statutory body corporate, in accordance with and mandated by Sections 5(2)(a), (f), (g), (h) and 6(4) of the Deeds and Commercial Registries Authority Act, No. 4 of 2013, unless the Minister of Legal Affairs shows cause why the order nisi of mandamus should not be made absolute.
Before the date appointed by the Court (3rd April, 2017) for the Minister of Legal Affairs to show cause, a Notice of Application was filed on behalf of the Respondents on the 24 th March, 2017, contending that the Court should not exercise its jurisdiction to determine the Fixed Date Application filed by the Applicant, on the following grounds:
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i. The Applicant failed to disclose all material facts pertinent to the application when he approached the Court ex parte for the Order Nisi — more particularly, as a Member of Parliament he would have known that the Deeds and Commercial Registries (Amendment) Bill, published on the 24th Jan. 2017, was placed before the National Assembly on an Order Paper for a sitting of the National Assembly on the 9th Feb. 2017 and on the 9th March 2017 — the first reading thereof was done on the 30th Jan. 2017 — a fact not disclosed within his application for judicial review;
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ii. The provisions of the aforesaid Bill proposes to amend the substantive Act to increase the number of members of the Board and it would be impractical for the Minister to appoint a Board;
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iii. The order nisi is tantamount to interfering with the functions of the Executive, which is a breach of the doctrine of separation of powers.
As a result, the Respondent further contended that this non-disclosure was material and entitled the Court to discharge the order nisi by Hon. Justice Brassington Reynolds.
On the 3rd April, 2017, when the substantive matter came up for hearing, the Applicant declined to file any evidence in the Notice of Application filed by the Respondents, since the issue was one of law, and sought an opportunity to argue on the merit of the aforesaid Notice of Application.
Arguments were entertained by the Court on the 5th April, 2017 on the Notice of Application to discharge the order nisi. On that day, a commendable position was taken by the Hon. Attorney General (AG), that should the Court not find favour with the order sought in the Notice of Application, in the interest of expediency, he would wish the Court to treat his arguments, the Notice of Application, and the documentary evidence filed therewith, as his response to the Fixed Date Application, since his major contention is that the Applicant was guilty of material non-disclosure which entitles the court to discharge the order nisi.
The Court therefore proposed to treat the arguments collectively to determine the proceedings. A finding by the Court in either application before it will result in a final determination of the matter.
The Applicant indicated his no objection to this course, and thereafter the Court invited arguments on the Notice of Application, and also substantively on whether cause was shown to discharge the order nisi, both of which are inextricably linked.
The Hon. Attorney General relied substantially on the effect of the Applicant's failure to disclose the Bill proposing an amendment to the Deeds and Commercial Registries Act, more particularly its membership, which is currently before Parliament. He submitted that this is a material breach and likened it to the position which obtains in the grant of ex parte injunctions, that the Applicant has a duty to make a full and fair disclosure of all the material facts, since he was approaching the court ex parte for the nisi order, citing R. v. Kensington Income Tax General Commissioners, ex p Princess de Polignac [1917] 1 KB 486 and Kevin Millien v. BT Trading et al. No. 325 of 2014, Supreme Court of Belize [Unreported] and GPL v. Wong 78 WIR 344, in support of his proposition.
He submitted that had Justice Reynolds been made aware of the proposed Bill tabled in Parliament, he would not have issued the order nisi of mandamus. He further submitted that nowhere in the Fixed Date Application was there a reference to the Bill, and that it was on two order papers in Parliament, the latest being at that time (of filing the FDA — 6 th March, 2017), the 9th March, 2017.
The Hon. Attorney General extended his position further when he invited the court to consider that if it finds that the proposed amendment exists, then the court ought to conclude that it is through no fault of the Minister of Legal Affairs that the Board is not constituted.
The Hon. Attorney General also submitted that in any event, the Court cannot intervene in the internal affairs of the executive as it goes against the grain of the Constitution premised on the doctrine of the Separation of Powers — that asking the Court to get into the internal affairs of the Government and Parliament, that is, the appointment of the Board, without cogent reasons would amount to interference by the Judiciary, relying on Carltona, Ltd. V. Commissioner of Works and Others [1943] 2 All ER 560 and The Methodist Church of the Bahamas v. The Attorney General (not cited)
He further argued it was not competent for the Court to inquire into the grounds, or reasonableness of the decision to not appoint the members of the Board that he had the responsibility to appoint, in the absence of an allegation of bad faith on his part, citing Carltona, Ltd. V. Commissioner of Works and Others [1943] 2 All ER 560 in support of this contention.
The Hon. AG continued that the Court does not act in vain when it should recognise that the Minister only appoints the Chairman to the Governing Board. In relying on the provisions of the Deeds and Commercial Registries Authority Act, the Hon. AG submitted that there is no Board if the other entities who are represented on the Board do not nominate persons to be so appointed and the application before the Court does not show that persons were nominated and the Minister refused to act on the nominations. He further submitted that no time limits were prescribed by the Act for appointments to be made, but undertook that as soon as the proposed amendments were passed by Parliament, he will appoint nominees as soon as they are submitted to him.
After giving a brief history on the object and purpose of prerogative remedies, the Applicant urged the Court to consider the invitation to decline the exercise of the Court's jurisdiction by the Hon. Attorney General as one to abdicate the Court's responsibilities. He submitted that the Court functions to ensure the Executive exercises its operations in accordance with the law, and that in any event, the claim of material non-disclosure does not operate against the Court's jurisdiction. Further, he submitted that even if there is material non-disclosure, it does not automatically lead to a discharge of the order nisi, but only in circumstances where the omission is deliberate and intended to gain an advantage.
However, the Applicant did not dispute the obligation of full disclosure, but contended that the fact that there is a proposed Bill in Parliament is not a material fact to the application before the Court. He submitted that had it been included, it would not have made an impact on whether the Court, as constituted then, would have issued the order nisi.
The Applicant further submitted the existing law, that is, the Deeds and Commercial Registries Authority Act, has been in force from the time of its assent, that is, 31st May, 2013. He argued that the Act mandates the Minister to appoint members to the Governing Board by sections 5(2) and 6(4) which he is refusing to do.
The Applicant relied on the contents of a letter he wrote to the Minister dated the 27th January, 2017 calling on him to forthwith appoint a Governing Board pursuant to the statutory obligations contained in the Act, which he said was to no avail. He now relies on the application before the Court to compel the Minister to perform his obligations pursuant to the Act.
Relying on S. 15 of the Interpretation and General Clauses Act, Cap. 2:01 of the Laws of Guyana [Publication (in Official Gazette) and commencement of Acts (on date of publication unless...
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