Celtel & Anor v Allie Basma (CIV APP 9 of 2009) [2010] SLCA 10 (20 May 2010)

I I I. I l"'!C'.,.. ,.. _t;;. -' \ 3=t- Civ. App. 9/2009 IN THE COURT OF APPEAL OF SIERRA LEONE IN THE MATTER OF THE COl\1P ANIES ACT, CAP 249 OF THE LAWS OF SIERRA LEONE 1960 AND IN THE MATTER OF AN APPLICATIOK FOR JUDICIAL REVIEW OF THE DECISION OF THE REGISTRAR OF COMPANIES TO REFUSE THE REGISTRATION OF A COMPANY (ZAIN) (SL) LTD BY THE APPLICANT BETWEEN:-

Coram

CETEL (SL) LTD APPELLANT/2ND RESPONDENT

Purportedly Carrying on

BUSINESS AS ZAIN (SL) LTD

THE REGISTRAR OF COl\1PANIES - 1sT RESPONDENT AND ALIE BASMA - APPLICANT /RESPONDENT Hon. Justice. E.E. Roberts - J.A. Hon. Justice S.A. Ademosu - J.A. Hon. Justice A. Showers J.A. -it.. JUDGMENT DELIVERED ON THE 20 DAY OF J1'1Ano 10 BY I ROBERTS J.A.

Background

The Applicant/Respondent herein filed an Originating Notice of Motion (ONM) in the court below dated 28/04/08 praying for the following orders and reliefs . (a) A Declaration that the 1

Respondent was wrong, acted unlawfully, ultra vires and in violation of the provisions of the Companies Act, Cap. 249 of the Laws of Sierra Leone 1960, (the Act) by-

1. Refusing to register and issue the Applicant with a certificate of incorporation after the Applicant's Solicitors had submitted for registration all documents necessary for the registration of a company under the name Zain (SL) Limited (hereinafter referred to as "the Company").

I. I I

I

11. Approving an application by the 2nd Respondent for the change of its name to Zain (SL) Limited and issuing a certificate of the said change of name of the 2nd Respondent to Z~in (SL) Limited and entering the new name in the register on or about the 16th of September 2008 AFTER the Applicant had submitted all documents necessary for the registration of a company by that name to the 1st Respondent thereby disabling herself from proceeding with the said registration . iii. Giving effect to a purported change of name by the 2 nd Respondent by issuing the 2nd Respondent with a Certificate of Change of Name to "Zain (SL) Limited" and entering the said new name on the Register of Companies even though the 2nd Respondent had not complied with the provisions of section 20(1) of the Act by failing to pass a special resolution and obtaining the approval of 1st Respondent signified in writing for the said change of name. (b) A further Declaration that as at the 5th September 2008 the Applicant having submitted through his Solicitors all documents necessary for the Company to be registered under the name of "Zain (SL) Limited" is entitled to have the same so registered as at all material times the said name was available, the 2 nd Respondent had not properly gone through the procedure laid down by section 20(1) of the Act for the change of its name to that the Applicant sought to use for its new Company . (c) For an Order of Certiorari to quash the decision of the 1st Respondent to approve of the change of name by 2nd Respondent to Zain (SL) Limited and issue them with a Certificate of Change of name to that effect. (d) For an Order [of] Mandamus compelling the 1st Respondent to register the Applicant's company as provided for under the provisions of the Act.

(e) A perpetual injunction restraining the 2nd Respondent by its directors , agents dealers , servants, employees or howsoever otherwise from using the name Zain as part of its name, adverts , letters, hoarding and or get up of the 2nd Respondent or in any manne r whatsoever . (f) Any further or other relief as to the Court may deem just. (g) That the Costs of the application be provided for." The Appellant then filed a Kotice of Motion dated 11th November 2008 applying that the said Originating Notice ofMption be struck out for the reasons as stated in the said Notice ofMotion (see page 110 ofthe Records).The Learned Judge heard arguments in respect of the said application dated 11th November 200S and delivered his Ruling dated 2151 January 2009. It is against this Ruling dated 21st January 2009 that the Appellant has appealed to this Court.

The Appeal

By Notice of Appeal dated 6

h Maret 2009 the Appellant appeals against the Ruling/Judgment of Hon. Mr. Justice N.C. Browne-Marke J.A. dated 21

January 2009 upon the following grounds :- !. That the Learned Judge having concluded that "Judicial Review will not lie against a person or body carrying out private law function" and further that ''paragraph (e) of the Applicant's Application directly impinges on privat e law rights" erred in law and in fact in holding that the Appellant , a private company limited by shares registered under the provisions of the Companies Act Cap. 249 of the Laws of Sierra Leone 1960 should continue to be a party and be subjected to the process of judicial review-brought by the Respondent.

11. That the Learned Judge's conclusion that "in the instant case, the most appropriate remedy is judicial review and not a full scale trial" in a case where private law rights are inextricably connected is not supportable in law.

111. That the Learned Judge was wrong in law to have held that the process of judicial review was the only process available to the Respondent to compel the Registrar of Companies "to rescind or revoke or annul her own decision. "

1v. That the decision is against the weight of the authorities . In arguing this Appeal counsel for the Appellant and the Applicant/ Respondent filed synopses respectively relying on same as well as the several authorities cited in support of their respective arguments and submissions. I shall not repeat here the various submissions and arguments contained in the said synopses save a brief summary of each respectively as the case maybe. I shall deal with the above Grounds of Appeal in the order they were dealt with in the written submissions GROUNDS i & iv In arguing Grounds i & iv, counsel for the Appellant contended that the Learned Judge having concluded that "Judicial review will not lie against a person or body carrying on private law functions" and that paragraph (e) of the Applicants Application directly impinges on private law rights" erred in holding that the Appellant should continue to be a party and be subject to the process of judicial review. He further submitted that the Appellant being a private company limited by shares and registered under the provisions of the Companies Act cap 249 of the Laws of Sierra Leone 1960 is not susceptible to the process of judicial review. Counsel for the Appellant further submitted that the substantive application of the Respondent is made solely under the provisions of order 52 of the High Court Rules 2007, referring to the title of the Originating Notice of Motion. Counsel therefore submitted that if the Appellant, a private limited liability company, is not susceptible to the process of judicial review but is nonetheless a necessary party to a cause or matter then the proceedings should not in the circumstances proceed by way of judicial review. He submitted that the Learned Judge ought therefore to have struck out the Applicant/Respondent's application. Counsel for the Applicant/Respondent for his part submitted that the judicial review proceedings were properly brought against the 1st Respondent. He submitted that the application for judicial review was brought exclusively against the acts or decision of the I

Respondent but that from the facts and circumstances of this particular case the Appellant was a necessary and proper party to the application and hence was made a party. Counsel

r 4- r submitted that the court below was never called to review any of the actions of the Appellant, adding that by order 52 of the High Court Rules 2007 the filing of the Originating Notice of Motion was the proper means of presenting the complaint against the I

Respondent. Counsel therefore submitted that the order sought against the Appellant in the ONM was merely consequential as they would no doubt be affected by any order made against the I sr Respondent. In this matter as stated earlier the originating Notice of Motion bears the name of the Registrar of Companies as the 1 sr Respondent and the Appellant as the 2nd Respondent. The complaint against the 1st Respondent (Registrar of Companies) was that she refused to register and issue the Applicant/ Respondent with a certificate of incorporation in the name of Zain (SL) Limited, and that she proceeded to approve the application by the Appellant for the change of its name to Zain (SL) Limited even though the Applicant/ Respondent's application for registration was pending before her. It is in this regard that the application for a judicial review was apparently made. The Registrar of Companies is a body corporate established or appointed under section 141 ( I) and (2) of the constitution of Sierra Leone Act No. 6 of 1991. See also section ( 14) of the Registration of Business Act 2007.1 agree with the Learned Trial Judge's conclusion that the Regist{ar of Companies in this case appears to be performing a judicial or quasi judicial function and that even if that was wrong she was in any event carrying out administrative functions thus making judicial review an appropriate remedy in proceeding against her in respect of her acts, omissions or decisions in this regard. However the Appellant's contention here is that the Appellant was a private company limited by shares and that as the Learned Trial Judge concluded that judicial review would not lie against a person or body carrying out private law functions, he erred in holding that the AppeJlant should continue to be a party and be subjected to the process of judicial review. It was also contended by the Appellant that paragraph (e) of the Originating Notice of Motion directly impinges on private rights and since it is admitted that the private law rights were inextricably linked with public law rights, the Learned Judge should have held that the process of judicial review was inappropriate and so the ONM ought to be struck out.

In dealing with the above contentions, I am obliged tofirstly consider here what I perceive to be the purpose for making the Appellant a party to the action. A further issue to be considered is whether by making Appellant a party the process of judicial review has become inappropriate and therefore the Originating Notice of Motion ought to be struck out. At this stage I must state that from the facts and circumstances of this case the application against the Registrar of Companies alone appears good and regular as I consider her to be performing judicial or quasi judicial functions or in any event administrative functions and therefore susceptible to the process of judicial review . Indeed orders/reliefs (a) to (d) in the Originating Notice of Motion refer to and apply for her action to be "judicially reviewed". However the Appellant appears to be added as a party for the purpose of or in connection with order (e) in the originating Notice of Motion. I shall reproduce the said order (e) for ease of reference. It reads: (e) A perpetual injunction restraining the 2nd Respondent by its directors, agents, dealers, servants, employees or howsoever otherwise from using the name Zain as part of its name, adverts, letters, hoarding and or get up of the 2nd Respondent or in any manner whatsoever. Indeed it is accepted and rightly so by the Learned Judge that the process of judicial review would not lie against the Appellant (as a private entity carrying out private law activities) but the Appellant appears to be joined as a necessary party who would be naturally and directly affected by the process of judicial review and the reliefs and orders sought there under. Order 52 Rule 1 (2) of the High Court Rules permits an application for judicial review to contain claims in rule 1 (1) and (2) thereof in the alternative or severally . Order 52 Rule 5 (1) of the Rules enjoins the applicant for judicial review to serve the application on all persons named therein as being directly affected by it. In the instant case the Appellant is, and would surely be, directly affected by any order that may be made by the court in the judicial review application. Admittedly order 52 does not contain a definition of "person who is directly affected .. " but I had cause to peruse part (order) 54 of the White Book 2005. This I am aware is not applicable in this jurisdiction but the portion/ passage I seek to refer to helps to define the expression "Persons directly affected" and the authors acknowledge that the definition

here is equally applicable to the similar expression in order 53 rule 5 (3) in the 1999 White Book (which is almost the same as our order 52 Rule 5(1). I therefore feel reasonably justified in calling in aid the White Book 2005. Paragraph 54.1.13 of the 2005 White Book states thus: "Parties The parties to the judicial review claim will be the claimant, the defendant and interested parties. The defendant will usually be the public body whose decision action or failure to act is under challenge. An "interested party " is defin ed in r. 54.1 ( 1 )(/) as any person "who is directly affected by the claim" . Under the former RSC 0, 53r.5 (3), application for judicial review had to be .served on persons directly affected and it is likely that the same definition of that term will apply to Pt

54. A person is directly affected if he is affected simply by reason of the grant of a remedy ... . Examples of persons directly affected include the recipient of a planning permission where an individual seeks to challenge the lawfulness of the grant of planning permission . The grant of a remedy, such as the quashing of the decision to grant planning permission would directly affect the rights of the person with the benefit of the planning permission . The courts also have power to allow any other person to file evidence or appear at a judicial review hearing." See also Part (order) 54 Rule 1 (2) (f) of the White Book 2005 . The above therefore recognises that persons other than the applicant and the public body or authority carrying out public law functions could be made parties to the judicial review proceedings. Such parties would include for example persons who have the benefit of a planning permission, which is quite similar to the situation of the Appellant here who in my view has the ''benefit" of the Registrar's approval of the change of name. The above leave me with the impressior: that even if the Appellants were not originally named as Respondents in the ONM, they are clearly "persons directly affect "and would thus have to be served with the Originating Notice of Motion and could apply to be joined as interested parties . It is my view therefore that be Appellants were persons directly affected by the "judicial review" orders prayed for and that the injunction sought against them was a

consequential order naturally flowing and related to the substantive orders against the Registrar. For the above reasons I consider that ground 1 (and iv) of the appeal must fail. GROUNDS ii & iv I shall now move on to ground ii (and :v) of the Notice of Appeal. The Appellant's complaint here is that the Judge's conclusion that "in the instant case the most appropriate remedy is judicial review and not a full scale trial" in a case where private law rights are inextricably connected is not supportable in law. Counsel for the Appellant contends here that where private law rights are inextricably linked with public law rights the Respondent was not precluded from seeking the same remedies sought in the Originating Notice of Motion by the process of a Writ of Summons. And for this counsel for the Appellant relied on the case of ROY- V- KENSINGTON & CHELSEA AND WESTMINSTER FAMILY PRACTITIONER COMMITTEE [1992] 2 ALLER 705 See judgment ofLord Bridge page 707-708 and that of Lord Lowry at page 728 730 of the Report. Counsel for the Appellant also referred to the case ofORIELLY v. MACKMAN [1982] 3 AllER 1225 and agreed with the opinion of Lord Diplock when he said (at page 1134 of the report) that: " .... it would in my view as a general rule be contrary to public policy, and as such an abuse of the process of the Court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action." Counsel however submitted that the above was applicable in cases where only public law issues were involved. This appeared $0 be the consideration in the above cited case. Counsel went on to submit that in the instant case it was both public law and private law rights that are inextricably linked and that on the authority of the Roy Case (above)the Respondent could have proceeded by a writ of summons . He therefore submitted that it was wrong for the Judge to hold that "the most appropria te remedy was judicial review and not a full scale trial." In the ORIELL Y case the appellants who were prisoners serving terms had been disciplined by the Board of visitors and three of them issued originating summons and the fourth a Writ of Summons against the Board seeking declarations that decisions of the Board