Sooknanan v Conservator of Forests et Al

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Mc Millan J.A.,Narine, J.A.,Persaud, J.A.
• Judgment Date: 23 May 1986
• Neutral Citation: TT 1986 CA 14
• Docket Number: Civil Appeal No. 109 of 1985
• Date: 23 May 1986

Court of Appeal

Narine, J.A.; Persaud, J.A.; McMillan, J.A.

Civil Appeal No. 109 of 1985

Sooknanan

and

Conservator of Forests et al

Appearances:

R.L. Maharaj, W. Kangaloo for appellant.

Mrs. G. Gafoor, Miss J. Quamina, I. Williams for respondents.

Judicial review - Parties — Not necessary to identify respondents in the rubric by their personal names — RSC 1975, O.8, r.3 and O.53 — Not necessary to remove government officers who were listed as respondents by the title of their posts and substitute Attorney General.

1 Mc Millan J.A. (Ag.): I agree with conclusion reached by Persaud, J.A. that the learned judge was wrong in substituting the Attorney General for the respondents named in the writ and his reasons therefor.

2 I also agree that it was not necessary to identify the respondents in the rubric by their personal names, though I would have been content to base my conclusion on the following grounds –

• (1) There is no true lis inter partes or suit by one person against another in judicial review proceedings: R v the Secretary of State ex parte Hackney London B.C. [1983] 3 All E.R. 358 at p. 367, per May L.J., and R.V. Stratford on Avon D.C., [1985] 3 All E.R., per Ackner L.J. at p. 773.

3 The remedy by way of judicial review is directed at the decision making process itself rather than at the parties who made it. Its purpose “is to protect the individual against an abuse of power by a wide range of authorities, judicial, quasi-judicial, and administrative to ensure (he) is given fair treatment by the authority, to which he has been subjected …”: Chief Constable of North Wales Police v Evans [1982] 3 All E.R. 141 at p. 143 per Lord Halsham L.C.

• (2) The form prescribed by R.S.C. 1975 O.8 R.3 for an originating motion does not require parties to be named in the rubric as in an ordinary civil action and, provided that the appropriate form is used, all that the applicant is required to do with regard to persons directly affected is to comply with paragraphs (3) and (6) of O. 53 R. 5.

4 Accordingly, I agree that the appeal be allowed with costs, and with the order proposed.

SOOKNANAN v. CONSERVATOR OF FORESTS

Narine, J.A.

5 I agree that the respondents were the proper parties and that the judge was wrong in removing them from the motion paper and in substituting the Attorney General.

6 I therefore concur with the decision to allow the appeal and that the matter be remitted for the purpose stated, and with the order for costs.

Persaud, J.A.

7 This appeal arises out of an application by way of motion for judicial review brought by the appellant in the court below with the leave of that court pursuant to O.53 of the Rules of the Supreme Court 1975. The application is intituled “In the matter of an application by Bob Sooknanan for leave to apply for Judicial Review and in the matter of an order and/or decision by the Conservator of the Forest Division the Ministry of Agriculture, Lands and Fisheries and Food Production in revoking the licence and/or permission granted to the applicant, Bob Sooknanan to purchase teak”. The notice of motion was addressed to the Registrar of the Supreme Court, the Conservator of Forests, and the Minister of Agriculture, Lands, Fisheries and Food Production (the Minister), and sought a declaration, an order of certiorari, and an order of mandamus - a declaration that the revocation by the Minister of a licence and/or permission that had been granted to the appellant was null and void and of no effect, an order of certiorari to remove to the High Court and quash the said order of revocation, and/or decision of the Minister, and an order of mandamus that the Minister and/or the Conservator deliver to the appellant a certain quantity of teak upon the payment of the necessary dues.

8 This appeal does not turn upon the merits of the application itself, but arises in this way. Relying on the decision of this court in Manning v. The Administrator General (1962–63) 5 W.I.R. 265, counsel for the respondents took a point in limine to the effect that each of the officers named as respondents to the motion by virtue of his office was not a corporation sole, and therefore the proceedings were a nullity. The learned judge agreed with the submission but held that the naming of the officers as described was a mere irregularity, and he made an order substituting the Attorney General as the respondent. The appellant argues, and the respondents agree, that the judge was wrong to have substituted the Attorney General. So the point which this court is called upon to decide is not whether the judge was right in substituting the Attorney General, but whether the Conservator and the Minister were the proper parties as originally named in the application. It is only right to point out that counsel for the respondents bases her argument that the Attorney General could not be substituted on the ground that the proceedings are void ab initio, while counsel for the appellant submits that in proceedings where a declaratory order for judicial review is being sought, such as these are, such proceedings are technically (as he has put it) an application by the State to enforce the rights of the citizen, or to compel its officers and others to perform their duties in favour of the citizen. In such a situation, since the Attorney General technically enforces any order for judicial review, the latter cannot be made a party to the proceedings.

9 Notwithstanding the concession made by counsel for the respondents, it is, I believe, necessary to examine and express an opinion on the appellants contention that the trial judge fell into error in that he regarded these proceedings as ordinary civil proceedings in private law as between the citizen and the State.

10 O.53 provides that one who seeks any of the prerogative orders of mandamus, prohibition or certiorari must approach the court by way of an application for judicial review, while not essaying an opinion as to whether there proceedings are the proper proceedings to be brought in the particular circumstances of this case, it is obligatory to point out that the orders of certiorari, prohibition, and mandamus, and injunctions and declaration orders are the principle non statutory remedies in administrative law. And without examining the various errors they sought to rectify, or the various bodies or persons to whom they were originally directed, it is sufficient for the purposes of this decision to state that proceedings for the orders mentioned were proceedings on the Crown side of the Rings Bench Division. Section 2(2) of our State Liability and Proceedings Act (Chap. 8:02) defines civil proceedings to include “proceedings in the High Court of Justice or a petty civil court for the recovery of fines or penalties, but does not include proceedings analogous to proceedings on the State (Crown?) side of the Queen's Bench Division in England”. With the necessary modifications, the same definition appears in sec. 38 of the Crown Proceedings Act, 1947 (U.K.). It seems clear, therefore, that the proceedings brought by the appellant in the instant matter are not caught by sec.19 (2) of Chap.8:02 whereby the Attorney General must, subject to any other written law, be made a defendant in proceedings against the State. The learned judge was therefore in my view in error in ordering that the Attorney General be substituted as the defendant in these proceedings. I have no doubt that the judge fell into error because of his anxiety that the appellant claim be not dismissed on a mere technicality.

11 Counsel for the respondents has submitted that those proceedings are “civil proceedings” within the meaning of sec.76 of the Constitution. Her reference must be to subsection (2) of that section which provides inter alia that the Attorney General shall be responsible for the administration of legal affairs in Trinidad and Tobago, and legal proceedings for or against the State shall be taken in the case of civil proceedings in his name. But appreciating the possible consequences of her submission, counsel has adroitly submitted further that the Attorney General cannot be named a defendant in proceedings which are void ab initio. The answer to the submission is that sec. 76(2) seeks to differentiate between civil proceedings generally (there being no definition of that expression in the Constitution) and criminal proceedings, whereas sec. 2(2) of Chap.8:02 (already referred to) specifically excludes from the definition of “civil proceedings” proceedings on the “State” side of the Queens Bench. Further sec. 76(2) comtemplatss legal proceedings for and against the State, not as in these proceedings where the appellant seeks orders in the nature of prerogative orders. In my judgment, the submission of the respondents on this aspect of the matter is without merit.

12 The main question still remains to be answered, i.e. to lend legality to these proceedings must the appellant have brought them against the Conservator of Forests and the Minister of Agriculture in both name and designation as has been submitted by counsel for the respondents? Incidentally, it is observed that in the notice of appeal, the appellant sought to name the Conservator of Forests, but this does not affect the matter in any way. What is of importance is the manner in which it was sought to name the respondents in the notice of motion filed pursuant to O. 53, R.5 commencing these proceedings. I wish to state at the outset that I agree with the submission of the respondents that if the proceedings are a nullity, then the question of amendment does not arise.

13 Perhaps a convenient point to start in dealing with the main question is to refer to the judgment of Lord Diplock in Jaundoo v. A.G. of Guyana (1971) 16 WIR. 141 to the effect that an injunction (and this must apply equally to the other prerogative orders) could not be...