Re Guyana Telephone and Telegraph Company Ltd

• Jurisdiction: Guyana
• Court: High Court (Guyana)
• Judge: Singh, J.
• Judgment Date: 13 January 1997
• Neutral Citation: GY 1997 HC 1
• Docket Number: No. 4491 of 1995
• Date: 13 January 1997

Re: Guyana Telephone and Telegraph Co. Ltd.

Singh, J.

No. 4491 of 1995

High Court

Judicial review - Orders of prohibition and certiorari — Applicant complained that the orders made by the Public Utilities Commission were tainted by procedural unfairness and impropriety and were made in breach of the rules of natural justice and were therefore a nullity — Judicial review sought by the applicant — Court found that judicial review was a concept known to the laws of Guyana notwithstanding there was no legislation — Court also found that the decision of the Public Utilities Commission was not a final one — Court noted that the adjustment sought by the Guyana Telephone Co. Ltd. was not unreasonable — Court gave judgment in favour of the applicant.

Appearances:

R.H. McKay, S.C., and M.G. Fitzpatrick, S.C., with B. Karran and K. Perreira for the plaintiff

A. Chase, S.C., and P. Britton, S.C., with D. Britton and Y. Yhann for the respondent

Ms. L. Ferdinand for the applicants.

1 Singh, J. (IN CHAMBERS): On the 30th October 1995, the plaintiff filed in the Registry of the High Court, a motion whereby it sought Orders of Prohibition and Certiorari in relation to certain orders of the Public Utilities Commission which were made on the 11th October, 1995. Orders Nisi in relation to the Orders sought by the plaintiffs were made by me on the 2nd November, 1995.

2 The effect of the issue of the Orders Nisi was that they operated as a stay of all proceedings, until the said Orders had been disposed of and in this regard I find the submission of Ms. Ferdinand that “with the passage of time the orders of the PUC became final orders” to be quite erroneous in point of law.

3 See: The Queen v. Garrett (1885–86) Times Law Reports, Vol. II, page 721.

4 The thrust of the plaintiffs complaints, was that the orders made by the PUC were tainted by procedural unfairness and impropriety and were made in breach of the rules of natural justice and were therefore a nullity.

5 The hearing of the motion commenced on the 22nd May, 1996. On the 7th May, 1996 however, the applicants, Sheila Holder and John Louis Da Silva, made application to the court to be joined as added respondents. Sheila Holder made application on her own behalf and on behalf of all the members of the Guyana Consumers Association, an unincorporated association of persons. John Da Silva approached the court, on his own behalf. They both swore affidavits in support of their application, dated 7th May, 1996.

6 Counsel appearing for the applicants and the plaintiff, both laid over with the court, written submissions in relation to the application for joinder.

7 Senior counsel for the plaintiff, Mr. Miles Fitzpatrick, indicated that the plaintiffs would have no objection to the applicants being joined but urged the court to satisfy itself, that the applicants could properly be joined as parties, given the late hour at which the application was being made. It was my view, that the fact that the applicants were seeking to be joined in the proceedings, at a time when hearing of the motion was about to commence, was not an issue of any great moment, because of the provisions of Order 14, rule 14 of the Rules of the High Court, Chapter 3:02 of the Laws of Guyana which provides inter-alia, for the joinder of additional parties to proceedings, at any stage of the proceedings, before the court. Because the construction and interpretation of the rule is of such significance and importance to the application, I will set out so much of it, which for present purposes, is material and relevant.

8 The rule provides:

“No action shall be defeated by reason of the mis-joinder or non-joinder of parties, and the court may in every action, deal with the matter in controversy, as far as regards the rights arid interests of the parties actually before it. The court or a judge may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court or a judge to be just, order that the names of any parties improperly joined, whether as plaintiffs or defendants, be struck out, and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the court may be necessary, in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the action, be added …”

9 Prima facie, a plaintiff is entitled to choose the person against whom to proceed and to leave out any person against whom he does not desire to proceed. See: The Supreme Court Practice, 1993, Vol. I, Part 1, page 201, para.15/6/6.

10 There are however, exceptions to this general rule set out in the Supreme Court Practice and these exceptions sire conveniently set out at para. 15/6/9, page 204 of the same text, where the editors note that intervention can only be insisted upon in three situations, viz;

1

In a representative action, where the intervener is one of a class, whom the plaintiff claims to represent. 2. Where the proprietary rights of the intervener are directly affected by the proceedings or where the intervener may be rendered liable to satisfy any judgment, either directly or indirectly. 3. In actions claiming the specific performance of contracts, where third persons have an interest in the question of the manner in which the contract should be performed.

11 The first and third class cited above, are clearly not applicable in the present circumstances. In relation to the second class, there are really two limbs to be considered, the first being whether the intervener has any proprietary interest directly affected by the proceedings and the second being, whether the intervener may be-rendered liable to satisfy any judgment, either directly or indirectly.

12 Given the nature of the plaintiffs case and the reliefs sought, the second limb of this class is also inapplicable, and so I will consider the first limb.

13 These exceptions and the applicability of the Rules of Court (UK), Order, 16, rule 11, (akin to the provisions of Ord. 14, r.14 - G) were considered in the case of Dollfus Mieg et Compagnie S.A v. Bank of England [1951] 1 Ch. 33, where at page 41, Wynn-Parry, J., observed:

“The authorities furnish instances of cases when intervention will be allowed and when it will not; and from those authorities the general rule embracing the three classes in question has been evolved; but in no case, has the court attempted to lay down in an exhaustive statement, all the cases in which the court will allow or refuse applications for the joinder of new defendants.”

14 It is obvious from the dictum of Wynn-Parry, J., that each application for joinder, must be examined on its peculiar facts and on its own merits. In these circumstances, I think the best approach, where a stranger raps at the door of the court seeking to be let in, in proceedings where, in keeping with the general rule, a plaintiff has elected not to proceed against him, would be for the court to satisfy itself that he comes within one of the exceptions to the general rule mentioned earlier and then determine the applicability of Order 14, rule 14, of the Rules of Court, to his particular circumstance.

15 There is no doubt in my mind, that the orders made by the PUC, which have now been stayed by the nisi orders I referred to earlier, were to the advantage of all telephone subscribers and were orders from which they were to derive some benefit. The question however, is whether these benefits can properly be considered proprietary rights. These benefits may ultimately crystallise into proprietary rights, flowing from the contract between users of the plaintiffs service and the plaintiff. The applicants however, cannot now, in the face of the proceedings initiated by the plaintiff, whereby the orders of the PUC, have been challenged and stayed, claim to have proprietary rights. Much uncertainty hangs over the fate of those orders, given the nature of the plaintiffs challenge. The orders may be preserved, in which case telephone subscribers would be entitled to whatever benefits flow from those orders, or the orders may be quashed, in which case; whatever benefits telephone subscribers would have derived from those orders, would be lost. So while it could be said that the applicants have benefits to be derived, if the orders of the PUC are not impugned, it is my view that they have no proprietary rights, nor any rights, which constitute a direct legal interest, warranting joinder in these proceedings.

16 In re I.G. Farbenindustrie A.G Agreement [1944] 1 Ch. 41 at page 43, Lord Greene, M.R., observed:

“The fact that a person has merely a commercial interest in litigation, gives him no right to demand to be added as a party to proceedings by the result of which that commercial interest may be affected, and the court has no jurisdiction to add any man in the street. It is the practice of the court and the court has power in proper cases, to add at his own request, a party who claims to have a legal interest in the subject of the suit.”

17 Amon v. Raphael Tuck and Sons Ltd. [1956] 1 Q.B. 357 , is another decision, in which similar sentiments to those expressed by Lord Greene above, were made by Devlin, J. Certain dicta of Devlin, J., were not applied in the case of Gurtner v. Circuit [1968] 1 All E.R. 328, but further consideration of this case will follow.

18 At page 381 of the report, His Lordship noted:

“It is not enough that the intervener should be commercially or indirectly interested in the answer to the question; he must be directly or legally interested in the answer only if he can say that it may lead to a result that will affect him legally— that is, by curtailing his legal rights.”

19 In Mosser v. Marsden [1892] 1 Ch. 487, the court held that the maker and patentee of the...