Prerogative Writs. A time for Change?
Attorney-at-Law
The High Court Act Cap 3.02 Laws of Guyana s.17 provides:
Subject to the provisions of the Guyana Independence Order and of any written law for the time being in force in, the Court shall have and may exercise all such jurisdiction, authorities and powers, and shall discharge the like functions, as belonged or were incident to the Supreme Court of British Guiana immediately before the 26th may 1966.
There can be no doubt that the High Court 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 No. 39 of 1966, all the powers …of the Supreme Court of British Guiana, has jurisdiction to maintain applications for the prerogative writs - Re: Application by Gerriah Sarran 1969 G.L.R.518 per Cummings J.A. at p.522
According to Professor De Smith in his treatise “Judicial Review of Administrative Action”
p.584;
“The best known of the prerogative writs are habeas corpus ad subjiciendum, to bring up the body of a person imprisoned on a criminal charge or in civil detention; certiorari to review orders and convictions of inferior tribunals and to remove indictments for trial; prohibition, to prevent inferior tribunals from going beyond their jurisdiction and mandamus, to compel the performance of a public duty. All four are of high constitutional importance and the last three in particular plays a central role in administrative and magisterial law. In many of the common-law jurisdictions overseas their significance is not less than in England.”
The question of the jurisdiction of the High Court to make an order in a proper case upon application for certiorari (and by extension for prerogative writs generally) has been settled in our Court of Appeal in the third year of our independence-1969 - in the celebrated case of Re: Application by Gerriah Sarran 1969 G.L.R.518 per Cummings J.A. at p.521
“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 would 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…
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, pp1 - 83…
The procedure for the invocation of the issue of such writs by the High Court of the Supreme Court of Guyana is however notwithstanding the statutory changes effected by the Administration of Justice (Miscellaneous Provisions) Act 1938, still in accordance with the English Crown Office Rules of 1906. That is so because the local rules are silent on the topic-see Coglan v Vieira (1958) L.R.B.G. p.108 at p. 120, where the matter was considered by Stoby, J with regard to the kindred writ of mandamus.
Prerogative writs are so called because they were initially only obtained at the instance of the Crown to ensure that inferior tribunals acted within the parameters of their jurisdiction. However by the end of the sixteenth century these remedies had become generally available to ordinary litigants… The Crown lent its legal prerogatives to its subjects in order that they might collaborate to ensure good and lawful government…By a process of evolution characteristic of our legal history the Crown’s prerogative powers have been converted into machinery for the protection of the subject. These remedies are of important significance in the control of governmental duties and powers –vide WADE ‘ADMINISTRATIVE LAW’ 7th Ed., p.614
The scope of the modern law with respect to the complementary remedies of certiorari and prohibition begins with the statement of Atkins LJ in R v Electricity Commissioners ex p. London Electricity Joint Committee Co. (1920) Ltd (1924) 1 K.B. 171 at p.205:
“Whenever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the King’s Bench Division exercised in these writs’
However the parameters of the remedy has been extended as the principle applies to an individual minister or official and extra – legal bodies are sometimes the subject of the remedies.
The award of the writs of certiorari and mandamus are discretionary and this may be seen as part of their designation as prerogative writs. However though not being writs of course - in that they cannot be had for the asking but the court must be satisfied as to the proper basis for issue-Prohibition for example issues as of right if a defect of jurisdiction is apparent on the face of the proceedings subject to certain exceptions e.g. Where a specific remedy is given by statute which in effect substitutes the statutory remedy for the remedy of prohibition. The superior court cannot refuse to enforce public order in the administration of the law by the denial of a grant of the writ. The writ is said to be “ex debito justitiae - see Turner v Kingsbury Collieries, Ltd., (1921) 3 K.B.169, at p. 182.
The issue of a writ of habeas corpus is of right upon satisfaction of the court that detention is unlawful.
With respect to the procedure for the issue of prerogative writs Cummings, J. A. in Re Application by Gerriah Sarran 1969 GLR 518 applying the principles enunciated in Coglan v Vieira supra considered the question as to whether the learned trial judge exercised his discretion judicially in refusing to make an order nisi.
Before proceeding it is apposite to note that in accordance with the Crown Office Rules 1906 supra the application for a prerogative writ shall be by motion for an order nisi to show cause-see Rule 20 Service of the order nisi constitutes notice to every person on whom the order is moved, shall appear to be interested in or is likely to be affected by the proceedings or in the opinion of the Court ought to have such notice-see Rule 50.
The order nisi shall be served upon each person to whom notice is given by the order, as well as the party whom the order requires to show cause-see Rule 51.
An order absolute cannot be granted unless an order nisi is first granted-see R v Kensington Income Tax Commissioners 1917 KB 257 at 264, 269
In Re: Sarran supra, an appeal from a judge’s refusal of an order nisi, per Cummings J.A. at p526
“All that was before the learned trial judge upon the hearing of the motion was the ex parte affidavit in support thereof. It is upon that that the Court must act. In the circumstances I hold that the appellant has shown ex facie that there was a want of jurisdiction and the respondent must show cause why an order absolute should not be made.”
Crane J.A, ibid at p 529 expressed it thus:
“I am afraid these are questions which can only properly be resolved by argument when the other side is put on notice, which is all that was sought in the motion for the order nisi.
It is suggested that herein lies the pith and substance of the matter on which the trial judge ought to have focused attention. It is conceded that he had only heard arguments on the merits of granting the writ, from the appellants side, but in my view there was enough before him at that stage to cause him to put the Permanent Secretary on notice.’
And he goes on to say at p533
“All that was sought and required of him was an order nisi in circumstances which disclosed a clear case of excess of jurisdiction…”
The matter was remitted with a direction to the trial judge that an order nisi should issue
The principles espoused in Sarran remain good law.
In Coglan’s case which established that Magistrates may be commanded to perform their duty by means of the prerogative writ of mandamus or by a rule under section 37 of the Summary Jurisdiction (Appeals) Ordinance, Cap. 17, Stoby, J. at p.117 declared:
“If an application for a rule had been made under section 37, the application would be heard by the Full Court…On the other hand, the procedure by way of prerogative writ must come before a single judge of the Supreme Court (see ex parte Surujballi (1948)L.R.B.G.)…
…In each case an Order nisi is first made and served on the magistrate”.
The rule or order nisi has not been abolished in this jurisdiction as in England – see Order 59 r.-, 3 1955 R. S. C. ( U.K.) where by virtue of section 7 of the Administration of Justice ,etc. Act 1938 an order of mandamus, certiorari or prohibition replaced respective prerogative writs and in accordance with the rule leave to apply for the order first had to be obtained.
There is no legislation or rule in this jurisdiction which abolished the grant of the order nisi and substitutes an order for service of the notice of motion without the grant of the order nisi. Such a procedure is an aberration of the Crown Office Rules and contrary to the local cases on point which remain good law – Coglan and Re: Sarran.
“Before 1933 the applicant (in the UK) had to obtain a rule, i.e. an order of court calling upon the other party to show why the prerogative writ should not issue, if this was done successfully at the hearing the rule was discharged, otherwise it was made absolute and the remedy was granted - see WADE at p.669 (this remains the position in Guyana).
The prerogative writ of habeas corpus along with the prerogative writs of certiorari, mandamus and prohibition collectively constitute the special family of public law remedies as distinct from the ordinary private law remedies such as damages, injunction and declaration. Prerogative remedies had to be sought by a procedure of their own which could not be combined with an ordinary action (as is the case in Guyana). See O’Reilly v Mackman H.L. (1982) 3 W.L.R. p. 1097 at p.1108 per Diplock L.J.:
“Another handicap under which an applicant for a prerogative order under Order 53 formerly laboured.. .. was that a claim for damages for breach of a right in private law of the applicant resulting from an invalid decision of a public authority could not be made on an application under Order 53 . Damages could only be claimed in a separate action begun by writ.”
The anomalies and dilemma with respect to the two families of remedies employed in administrative law became the subject of law reform in 1977 which provided a comprehensive procedure called “application for judicial review –Order 53 of the Rules Of Supreme Court. (U.K.) under which the remedies in both families became interchangeable - see WADE 6th Ed p583. This amendment of the rules was given statutory force by the Supreme Court Act of 1981(U.K.)
A necessary first step in this new procedure is to obtain the leave of the court. –Supreme Court Act 1981,s .31(3)-which will be granted only if an arguable case is shown. The application for leave is made ex parte (i.e. without involving the other party), though the court may direct that the other party be notified and adjourn the application inter partes. This is not applicable in the context of the procedure relating to prerogative writs for reasons herein beforementioned
This jurisdiction is still bound by the pre 1938 procedure as outlined by the Crown Office Rules 1906 and the principles laid down in Coglan’s case and applied in Re Sarran until such time as relevant legislative changes are enacted in this jurisdiction. The courts of this jurisdiction seem poised to embrace the reforms wrought by the 1981 Act U.K. although still constrained by the authorities above mentioned. See Stoby J. In Coglan’s case at p.120:
“In my view, Order 40 makes no provision, and I must now decide whether in those circumstances the English procedure is applicable .I have come to the conclusion that the English procedure is not applicable .In England, by the Administration of Justice Act, 1938, sections 7 & 8 the prerogative writ of mandamus was abolished. The procedure provided by the English Order 59, Rule 3(1), was designed to meet a situation which arose by reason of the introduction of a new scheme of legislation. The 1938 Act did not abolish the writ in this country and Order I Rule 3 of the Rules of Court 1955 could not abolish the writ. As regards practice and procedure, a Rule of Court can repeal or amend an Ordinance, but the substantive law of the Country can never be repealed by a Rule of Court”.