Re Gerriah Sarran

• Jurisdiction: Guyana
• Judge: Cummings, J.A.
• Judgment Date: 30 September 1969
• Neutral Citation: GY 1969 CA 8
• Docket Number: Civil Appeal No. 80 of 1968
• Court: Court of Appeal (Guyana)
• Date: 30 September 1969

Court of Appeal

Luckhoo, C.; Cummings, J.A.; Crane, J.A.

Civil Appeal No. 80 of 1968

Re: Gerriah Sarran

Appearances:

B. E. Gibson for appellant.

M. S. Rahaman, amicus curiae.

Administrative Law - Remedies — Certiorari

Cummings, J.A.

1 The applicant, an employee of the Ministry of Health as a maid attached to the Public Hospital, Georgetown, at a salary of $1,014 per annum, was, on the 18th January, 1968, charged by the Permanent Secretary of the Ministry of Health as follows:

“That you, being a maid attached to the Georgetown Hospital, on the 20th July, 1967, while on duty were under the influence of alcohol to such an extant which rendered you incapable of performing your duties to the prejudice of discipline and the proper administration of the service.”

2 She replied to this charge on the 15th January, 1968, and on 9th March, 1968, received the following communication:

“9th March, 1968.

Madam,

I am directed to inform you that I have been appointed by the Permanent Secretary to hold an Enquiry into the charge against you conveyed to you in letter of even number dated 12th January, 1968. Please note that I have fixed Wednesday, 20th March 1968, at 1.30 p.m. as the time and date of the Enquiry when you are requested to be present at the doctor's common room.

2. You may bring any person you wish to dive evidence on your behalf.

I have the honour to be, Madam, Your obedient servant,

Assistant Secretary,”

3 That Enquiry, the convenor of which was the said Assistant Secretary, a Mr. Charles Byass, was duly held on the 6th May 1968, and thereafter the applicant received the following letter:

“6th May, 1968.

Madam,

I wish to refer to my confidential letter of even number dated 12th January, 1968, transmitting the charge appearing in the Schedule thereto below, and to your written explanation dated 17th January, 1968, and to inform you that after careful consideration of your explanation and the report of the enquiry set up to investigate the matter, it has been found that the charge has been proven against you.

• 2. In the circumstances, it has been directed that you should be dismissed and you are dismissed from the Public Service with effect from 4th May 1968, inclusive.

• 3. You will receive no further salary as from the 4th May 1968, inclusive.

I have the honour to be,

Your obedient servant,

Permanent Secretary.”

4 That effect of all of this is that the appellant was charged departmentally with an offence. She replied to the charge, the matter was investigated by an Assistant Secretary of the Ministry of Health, appointed by the Permanent Secretary to the Ministry of Health to hold an enquiry, as a result of which she was dismissed from the Public Service.

5 In the circumstances she applied to the High Court by ex parte motion, supported by affidavit, for a Writ of Certiorari to quash the order of dismissal — on the grounds set out in her affidavit — that the Enquiry was not conducted in accordance with the provisions of Art. 96 of The Constitution, and that the said Assistant Secretary was, by virtue of his executive position, sufficiently interested in the matter against her that he should, not have been appointed convenor of the Enquiry.

6 The learned High Court fudge before whom the matter came on for hearing, dismissed the application holding that –

• (i) Merely being in an executive position was not by itself a fact supporting bias or interest for an order of certiorari to be mace as the Assistant Secretary was not the person determining the issues in this matter.

• (ii) The applicant did not set out in her affidavit; facts to support her contention that the procedure set out in Section 96 of the Constitution had not been followed.

• (iii) No order was made by the person holding the Enquiry.

• (iv) The motion not being one to have the order of the Enquiry or of the Permanent Secretary removed to the High Court, but rather to remove to the High Court the said “Enquiry for the purpose of being quashed”; in these circumstances the High Court could not do so.

• (v) The Enquiry had no civil or criminal jurisdiction.

• (vi) The Enquiry was a purely administrative exercise and not a judicial or a quasi-judicial process, and was in the exercise of administrative as distinct from any judicial or quasi-judicial authority or power. The decision was not made by the tribunal of enquiry, it coos made by the Permanent Secretary alone; and this could not be said to be a judicial or quasi-judicial act as he exercised no judicial power.

7 From this judgment the appellant appealed to this Court on several rounds, which, in total effect, urged that the learned trial judge, having misconceived the true nature of the proceedings, did not apply the right principles, and, consequently, failed to exercise his discretion judicially. This Court allowed the appeal, set aside the judgment of the learned trial judge, and decreed that an order nisi should issue.

8 I now give my reasons for concurrence with that decision.

9 No question was raised before the High Court or in this Court as to the jurisdiction of the High Court to make an order in a proper case upon application for certiorari, but as it appears that there have been little or no local Judicial pronouncements on the topic, it might be helpful if, as a judge of this Court, I recorded my views as to the availability of this process to the citizens of Guyana, and then to discuss its application to the facts in the instant case.

10 The writ of certiorari, one of the three prerogative waits — certiorari, prohibition and mandamus — is the process by action which the King's (now Queen's) Bench Division of the High Court of Justice in England, in the exercise of its superintending power over inferior jurisdictions, requires the judges or officers of such jurisdictions to certify or send proceedings before them into the King's Bench Division, whether for the purpose of examining into the legality of such proceedings, or for giving fuller or morn satisfactory effect to them than could by done by the Court below.

11 Until the enactment of the Administration of Justice (Miscellaneous Provisions) Act in 1938, the procedure for the issue of the writ was governed generally by paras. 12–31 of The Crown Office Rules, 1906 – Vide Short & Mellors “The Practice on The Crown Side”, 2nd Ed., 1908, pp. 1–83.

12 The Supreme Court Ordinance, No. 7 of 1893 which established The Supreme Court of British Guiana enacted by s. 3:

• “(2) The court shall be a Superior Court of Record, and shall have and may exercise all the authorities, powers, and functions belonging or incident to each a court according to the Law of England,”

13 Section 3(B) of the civil Law of British Guiana (now Guyana) Ordinances Cap, 2, provided that from and after the 1st day of January 1917:

“The common law of the Colony shall by the common law of England…”

14 And s. 24 of this Ordinance expressly saves the Royal Prerogative.

15 S. 3(2) o£ the Supreme Court Ordinance, Cap. 7, Provides:

“The court shall have and may exercise all the authorities, powers, and functions belonging or incident to a court of that character according to the law of England, and all the authorities, powers and functions which, when the Colony came under the dominion of the British Crown, belonged or were incident to the high Court of Justice of Holland and to the National Court of Holland, or other courts then possessing and exercising in Holland or in this Colony the jurisdiction of superior courts, and, subject to the provisions of this Ordinance, all the authorities, powers and functions conferred upon and exercised by the Supreme Court as constituted by the Supreme Court Ordinance, 1893.”

16 There can be no doubt, therefore, that the High Court of Justice of The Supreme Court of Judicature of Guyana, having as it does by virtue of The Guyana Independence (Adaptation and Modification of Laws) (Judicature) Order, 1966, all the powers, etc., of The Supreme Court of British Guiana, has jurisdiction to maintain applications for the prerogative writs.

17 The procedure for the invocation of the issue of such a writ by the High Court in Guyana is, however, notwithstanding the statutory changes effected by the 1938 Act in England, is still in accordance with the English Crown...