Sowatilall v Persaud et Al
| Jurisdiction | Guyana |
| Judge | Cranes J.A.,Luckhoo, C. |
| Judgment Date | 01 June 1971 |
| Neutral Citation | GY 1971 CA 4 |
| Docket Number | Civil Appeal No. 47 of 1969 |
| Court | Court of Appeal (Guyana) |
| Date | 01 June 1971 |
Court of Appeal
Luckhoo, C.; Cummings, J.A.; Crane, J.A.
Civil Appeal No. 47 of 1969
B. O. Adams, S.C., Miss S. Doobay with him, for appellant.
M.C. Young for first-named respondent.
S. Rahaman for second and third-named respondents.
Jurisdiction - High Court — Power to review decision of tribunal appointed under th Cooperative Societies Ordinance.
There is a long case history to this appeal, and for this reason it is considered necessary to say something concerning the background of facts precedent to the trial in the High Court.
The Devonshire Castle Co-operative Savings & Land Society (hereafter called the Society) is an incorporated body registered under the provisions of the Co-operative Societies Ordinance, Cap. 326 (hereafter called ‘the Ordinance’). From the objects clauses which are to be found in rule 3 of its rules as amended, it is evident the Society has for its predominant object the promotion of the economic interests of its members in accordance with co-operative principles and was registered with that end in view. These are as follows:
(i) “To encourage thrift and to collect capital for use in some productive or co-operative venture.
(ii) To acquire land by purchase, grant or lease for the use of its members.
(iii) To undertake measures for the improvement of the living conditions and social welfare of the members.
(iv) To foster measures for co-operative credit, marketing and the supply of farming equipment for its members.
(v) To protect the rights and interest of its members.
(vi) To encourage the development of the Cooperative Movement in Guyana.”
It was in pursuance of object (ii) above that Pln. Walton Hall on the Essequibo coast was acquired by purchase by the Society and lot allocations of a provisional nature made to members in accordance with its rules (Nos. 29–33). Sowatilall and the first named respondent, Kalika Persaud, are two members to whom such allocations were made by the method of drawing for them. Sowatilall drew lots 12, 13 and 14, while Kalika Persaud drew lot 15. Both then entered into possession and prepared their respective lots for rice cultivation, and having so done must be held to have occupied in accordance with the terms and conditions prescribed in the Society's riles. By rule 32, allocations to each member are expressed to be “subject to survey by a sworn land surveyor”, which suggests the provisional nature of the tenure and the fact that both their size and boundaries are liable to subsequent alteration whenever any survey should take place. In fact, that was what happened to the lots of both the appellant and the respondent because when a plan shifting and re-defining the boundaries of Walton Hall was prepared by surveyor Phang in 1957, the Society required the appellant to vacate lot 14 and to take up occupation of lot 11 instead so that lot 14 could be occupied by Kalika Persaud who, in turn, was required to give up lot 15 to the owner of lot 16.
Such was the result of the Phang survey with which the appellant was expected to comply. He however refused to vacate or before December 31, 1958, notwithstanding that was the order of the Commissioner for Co-operative Development whom the Ordinance empowers to adjudicate in any dispute between the Society and a member. Instead, the appellant launched forth action No. 2079/1958 in the High Court challenging the Commissioner's order. But, unfortunately for him, owing to many adjournments and an abortive hearing in that court, a re-trial was ordered, and the decision, which he lost, was not given until March 2, 1962. Even then, he was unwilling to give up possession of lot 14 to Kalika Persaud. In fact, he did not until October 31, 1964, when he was forced to do so by a writ of possession.
Next in the train of events was a reference by Kalika Persaud to the Commissioner. This took the form of a claim that a dispute had arisen between Persaud and the appellant whereby he Persaud, became entitled to $7,574 as compensation for loss consequent on the appellant's wrongful occupation of lot 14 for a period of six years ending May 1964. Persaud based his claim on the appellant's refusal to comply with the Commissioner's order to vacate on or before December 31, 1958, which resulted in his being denied possession and gainful occupation of lot 14 during that period. The Commissioner accordingly referred the dispute to three arbitrators in accordance with s. 49(2)(b) of the Ordinance and Regulations. The terms of their order of reference are as follows:
“Whether the said Sowattee Lall should pay the sum of $7,574.08 (seven thousand five hundred and seventy four .08 dollars) to the said Kalika Persaud, the said sum being compensation for the wrongful occupation for 6 years, of lot 14 Walton Hall, Essequibo, as shown an a plan by T. Phang, Sworn Land Surveyor. The said Lot 14 being part of a larger portion of land occupied by the said Society and allocation to the said Kalika Persaud for his sole use and occupation, damages for trespass and costs should be paid.”
The arbitrators sat on divers days between April 23, 1964, and July 11, 1964, on which day they found the appellant liable to pay Persaud compensation in the sum of $2,715.08 with $600 costs, and $800 as arbitration expenses. Dissatisfied with that finding, the appellant commenced action No. 1845/1966/Dem. in the High Court from the decision of which this appeal is brought praying the following declarations:
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(a) that the order of reference and arbitration were null and void;
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(b) that the arbitration proceedings were null and void, and
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(c) the award was null and void.
An injunction restraining the enforcement of the sward was also claimed, together with damages against Kalika Persaud.
Several grounds of appeal were argued before us foremost among which was, whether it was lawful for the Commissioner to refer the matter to arbitration there being no “dispute touching the business of the Society” between the appellant and Kalika Persaud since the appellant has never been a trespasser on lot 14, but was in fact always in possession of it. It was also contended that there being no legal claim or cause of action vested in Sowatilall capable of forming the basis of a claim for compensation, costs and expenses in the sums awarded the proceedings before the arbitrators were null and void; and that it was an error for the trial judge to have held that such a claim attracted the jurisdiction of the Commissioner for operative Development to adjudicate either in person or by arbitrators.
Without saying anything more on these grounds of appeal, I think the view taken by the trial judge that both the arbitrators and the Commissioner were possessed of the requisite jurisdiction to adjudicate in the matter was the correct one; although he himself did not seem to think he had any to decide the matter or the reason that the appellant ought to have appealed to the Commissioner rather than to the High Court. As a matter of fact, it was this view that was responsible for his refusal to make any of the declarations sought in the statement of claim, as can be seen from the concluding part of his judgment which runs as follows:
“Thus, if Sowatilall thought he was aggrieved by the decision of the Arbitrators, having regard to all my previous findings and observations, he should have appealed to the Commissioner for Cooperative Development, even though it might have appeared that he was appealing from Caesar unto Caesar, and as that to my mind was the remedy which was provided by statute, a declaration should not be given in the circumstances of this case. Barraclough v. Brown, [1897] A.C. 615, H. L. Flint v. A.G., [1918] 1 Ch. 216, Musical Performers Protection Association Ltd, v. British International Pictures Ltd., (1930) 46 T.L.R. 485.”
For my part, I believe this is really the decisive point in the appeal, for going as it does to the High Court's jurisdiction to entertain the action, it renders unnecessary any consideration of the other grounds and affords us an opportunity to settle once and for all a matter most vital to the administration of all co-operative enterprises registered under the Ordinance, particularly at this early stage in the development of our newly-born Co-operative Republic in which the spirit of co-operation is in evidence, and where co-operatives are fast becoming a way of life with us. 1 refer to the matter of the judicial review by the law courts of the determinations of those administrative tribunals instituted by the Ordinance and charged with the function of adjudicating in such domestic disputes as touch and concern the business of a registered society.
I commence with the observation that the object of the law in all registered co-operative enterprises is the avoidance of lengthy and often expensive lawsuits by a special procedure being made available for the settlement of disputes. In our Ordinance this is provided for in secs. 49 and 50 by a procedure that must be followed in much the same way as that contained in the Indian Co-operative Societies Act, 1912, on which Cap. 326 obviously modelled, and which extends throughout the whole of India where there has long existed co-operative ventures.
Sets. 49 and 50 of our Ordinance are in the following terms:
“49.(1) If any dispute touching the business of a registered society arises —
(a) among members, past members and persons claiming through members, past members and deceased members; or
(b) between a member, past member, or person claiming through a member, past member or deceased member, and the society, its committee, or any officer of the society; or
(c) between the society or its committee and any officer of the society; or
(d) between the society and any other registered society;
such dispute shall be...
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