ALIEBASMA v THE REGISTRAR OF COMPANIES and Another (445/08)  SLHC 16 (20 January 2009);
MISCAPP 445/08 2008 B No. 178
IN THE HIGH COURT OF SIERRA LEONE
IN THE MATTER OF THE COMPANIES ACT CAP 249 OF THE LAWS OF SIERRA LEONE,1960
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW OF THE DECISION OF THE REGISTRAR OF COMPANIES TO REFUSE THE REGISTRATION OF A COMPANY (ZAIN (SL) LIMITED) BY THE APPLICANT
BETWEEN: ALIEBASMA - APPLICANT AND
THE REGISTRAR OF COMPANIES - 1ST RESPONDENT
CELTEL (SL) LIMITED - 2nd RESPONDENT
Purportedly Carrying on Business
As ZAIN (SL) LIMITED P I LAMBERT ESQ for the Applicant
YADA H WILLIAMS ESQ (with him O JALLOH ESQ) for the 1st Respondent The 15T Respondent did not appear, and was not represented JUDGMENT INTRODUCTION
1. By Notice of Motion dated 11 November,2008 the 2nd Respondent applied to this Court that the Applicant's Originating Notice of Motion dated 28 October,2008 be struck out for abuse of process of the Court, and/or for lack of jurisdiction, on several grounds which could be summarised as follows: the 2nd Respondent is a private limited liability company, limited by shares, incorporated under the Companies Act, and has not acted or taken any decision in any Judicial, Quasi-Judicial or Administrative capacity, the usual basis for an Application for Judicial Review; the scope of Judicial Review does not cover or extend to private citizens or private corporate entities; the reliefs sought by the Applicant are derived under
private law, and not public law, and that since the jurisdiction of the Court, under the principles of Judicial Review is confined to activities of a nature, the 2nd Respondent being a private limited liability company, cannot therefore be made the subject of Judicial Review; that the 2nd Respondent being a private limited liability company, is not susceptible to Judicial Review; that the 2nd Respondent does not have, and has never exercise any statutory, prerogative or common law powers; in the alternative, the 2nd Respondent prays that the Applicant's Application be struck out on the ground that Judicial Review is not the appropriate process that should be used to seek the Orders contained in the Application, as the facts on which it is based, are extremely contentious. It also asks that the Applicant's Application be stayed pending the hearing and determination of this Application; that this Court grant any further or other Orders it may deem fit; and that the Costs of this Application be borne by the Applicant.
2nd RESPONDENTS AFFIDAVIT
2. The Application is supported by the affidavit of MICHAELA MACKAY deposed and sworn to on 11 November,2008. Seven documents are exhibited to MS MACKAY's affidavit. "A" is a copy of the Applicant's Application dated 28 October,2008. "B" is a copy of the Certificate of Change of Name of the 2nd Respondent company, dated 9 February,2000 from MSI CELLULAR INVESTMENT SIERRA LEONE LIMITED to CELTEL (SL) LIMITED. "C" is a copy of a letter dated 24 August,1989 from the Applicant to the Commissioner of Income Tax, that the business, ZAIN " ...will be closed permanently with effect from 30 September,1989 due to unavoidable circumstances. The laid down rules (Regulations) of the partnership in terms of dissolution have been satisfied or carried out by the partner. I would therefore be grateful if you will endorse your records accordingly and inform me about the partners tax liabilities for the year of assessment 1989/90 for early settlement as some partners want to leave for overseas."
3. "D" is a copy of another letter from the Applicant dated 16 March,1990 addressed to the Administrator and Registrar-General, informing her that".. the partnership business ZAIN has dissolved due to unavoidable circumstances....I have decided to operate a sole proprietorship and to retain the name ZAIN. I am one of the partners of the said dissolved
partnership. I also attach herewith application for Business Registration/License together with written statement from Income Tax Department for renewal of License for ZAIN. I would therefore be grateful if you could please issue me with a renewal of license."
4. "E" is a copy of a Certificate of Change of Name dated 19 August,2004 issued by the Registrar of Companies, certifying that "ZAIN" a Business name registered under the above-named Act and in respect of which Certificate No 528/84 dated 24 July,1984 was issued, has changed its name to MEDO ENTERPRISES." F" is a copy of Form A, an Application for the Registration of a Business Name, "ZAIN" dated 13 July,1984, made by the partners, ZAIN ALI BASMA, KHALIL IBRAHIM BASMA and ALI IBRAHIM BASMA respectively. Their usual address is given as 21 Wilberforce Street, Freetown. The place of business, is also given as 21 Wilberforce Street, Freetown. "G" is a copy of Form B, said to be printed in accordance with the Business Names Registration Act,1953 for use by individuals. It is dated 2 August,2004. At the top, is handwritten the words "change of name." In it, ALI BASMA applies for the Registration of the Business Name MEDO ENTERPISES. The principal place of the business is stated to be, 15 Siaka Stevens Street, Freetown. The person registering the business, is ALI BASMA. It is also acknowledged by the Applicant therein, in the entry providing for 'name under which person registering has been registered (if at all) for purposes and in accordance with provisions of any other law in force in Sierra Leone that' the business had previously been registered as ZAIN, 15 Siaka Stevens Street, Freetown.
5. In her affidavit, MS MACKAY deposes, inter alia, that the Applicant's Application, "A" raises very contentious issues in respect of which the process of Judicial Review, is inappropriate; that the partnership which traded under the name ZAIN, was dissolved in 1989, and no steps were taken by the Applicant to register as a sole proprietorship; that after the dissolution of the said,partnership, instead of filing papers to register as a sole par't, the Applicant in breach of the Business Names Registration Act, Cap 257 continued to trade as ZAIN; that the Applicant has never traded as ZAIN, and that all the renewals of Business Licences carried out after 1989, were therefore void and/or irregular; that in view of "E" and "G" referred to above, the Applicant has no proprietary interest in the name ZAIN; that the Applicant has since
2004 illegally continued to trade under the name ZAIN; and that the 2nd Respondent intends to challenge the Registrar's Decision of 8 November,2007 refusing the 2nd Respondent permission to change its name to ZAIN (SL) limited.
6. The Applicant has filed an affidavit in opposition to the 2nd Respondent's Application, deposed and sworn to by PATRICK LAMBERT who is also Counsel for the Applicant. To that affidavit, MR LAMBERT has exhibited as "PL1" a copy of the Case filed by the Applicant in support of his Application for Judicial Review, and dated 4 November,2008 pursuant to Order 52 Rule 6(2) of the High Court Rules,2007. Of note, is that "PL1" refers to affidavits sworn to by both MR LAMBERT himself, and the Applicant, respectively. Neither document is exhibited to this affidavit, nor attached to "PL1" itself. In order to be brief and non-repetitive, MR LAMBERTs affidavit has ended up being elliptical. Nevertheless, "PL1" is intelligible enough as it is, in order to argue against the 2nd Respondent's Application. Indeed, the 2nd Respondent has itself cured the omission by exhibiting as "A" to MS MACKAY's affidavit, the whole of the Applicant's substantive Application, including the affidavit in support thereof of MR BASMA.
7. In "PL1" the Applicant contends as follows: the Applicant is registered in Sierra Leone to carry on business under the name ZAIN. He has been so-registered from 1977 to date. In 2008, he decided to incorporate the business as ZAIN LIMITED and his Solicitors on 5 September,2008 submitted the requisite documents to the 1st Respondent for registration. As of that date, the 2nd Respondent had taken no steps to effect a change of its corporate name from CELTEL (SL) LIMITED to ZAIN. The Applicant's documents were not attended with dispatch by the 1st Respondent. By 15 September,2008 the 1st Respondent had made it clear to the Applicant that she had no intention of acceding to his request for incorporating a company on his behalf with the name ZAIN. The Applicant's Solicitors wrote to the 1st Respondent asking why she had refused the Applicant's application for a company to be incorporated on his behalf with the name ZAIN. She did not respond to any of the written enquiries of Applicant's Solicitors. It appeared later, that she could not do so for the simple reason that she had allowed the 2nd
Respondent to be incorporated in that name. On 16 September,2008 the 2nd Respondent applied to the 1st Respondent to give effect to its change of name to ZAIN (SL) LIMTED. The 1st Respondent allowed the change of name despite the 2nd Respondent's non-compliance with Section 20(3) of the Companies Act; and despite the fact that the previous year, on 8 November,2007 she had told the 2nd Respondent's then Solicitors that the name was not available for registration.
8. This, in a nutshell are the arguments on both sides. These arguments were amplified by Counsel during oral arguments before me; and additionally by both Counsel, in written submissions presented to the Court. I must commend both Counsel for the erudition and skill with which they have argued this matter before me. But I have borne in mind the fact that I should not be seduced by these arguments into deciding the merits of the Applicant's substantive Application: which is whether the 1st Respondent was right in refusing to accede to the Applicant's application for a limited liability company to be registered using the name ZAIN, whilst at the same, or, on or about the same time, she had acceded to the 2nd Respondent's application for a change of name to ZAIN(SL) LIMITED.
PURPOSE OF THIS APPLCATION
9. The object of the present exercise, notwithstanding the colourful and erudite integument it has been given, is simply whether, the 1st Respondent's acts of refusal and accession in relation to both Applicant and 2nd Respondent respectively, are subject to the process employed by the Applicant to vindicate his rights, notwithstanding that that process would bring within its ambit, an entity which should not be subject to the same, namely, a non-Judicial or non-Quasi-Judicial body and also a private entity; and notwithstanding that the remedy of Judicial Review ought not to be sought where, private law rights, as against public law rights, would be affected. The corollary is whether, if this process has been employed by the Applicant, such use amounts to an abuse of the Courts' process. It follows therefore, that the first question I should ask myself, is what is the process or remedy of Judicial Review intended for. Should it be eschewed, if one of the consequences of its use would be that it would affect the private law rights of private persons or entities? Notwithstanding the welter of authorities which have been cited by
Counsel on both sides, at this stage, these are the only questions which are germane, and demand the Court's attention. I think in fairness to both Counsel, I should at once point out that most of the cases cited by Counsel for the 2nd Respondent, relate to the use of Judicial Review when dealing with the rights of individuals complaining about wrongs done to them by private bodies or authorities to which they belong, or to whose membership, they aspire. In those respects, those authorities are sound. But what we have here, is the issue of whether a person who exercises judicial or quasi-judicial and/or administrative functions, and whose functions are performed on behalf of those members of the Public who seek her services, is not susceptible, to use the adjective employed by MR WILLIAMS, or amenable to Judicial Review where she does a wrong act, or refuses to do an act she is obliged by law to do; or does not apply the Rules of Natural Justice in circumstances where she is required to do so.
10. It seems to me, that at the heart of the Applicant's complaint is whether the 1st Respondent was in error in rejecting his application for the use of. the name ZAIN, while according that use to the 2nd Respondent; that she ought to have acceded to his application when made on 5 September,2008 because, at that date, the name ZAIN was available for use by the Applicant. It seems to me also, that where there is some evidence that a judicial or quasi-judicial body or administrative body had acted wrongly in exercising its functions, that body ought to be subject to Judicial Review, notwithstanding that in correcting the wrong done, it may have to rescind or revoke a decision made in favour of a third party. I shall therefore proceed to deal with the law relating to Judicial Review first, before deciding whether it applies in the circumstances of this case.
JURISDICTION OF COURT
11. Section 132(2) of the Constitution of Sierra Leone,1991 provides that " The High Court of Justice shall have jurisdiction to determine any matter relating to industrial and labour disputes and administrative complaints. "Section 132(3) provides that "Parliament shall, by an Act of Parliament make provision for the exercise of the jurisdiction conferred on the High Court of Justice by the provisions of the immediately preceding subsection." So far, Parliament has enacted Laws for the exercise of the jurisdiction relating to labour and industrial disputes. It
has not yet done so in respect of Administrative complaints. In respect of these, the only remedy remains the process of Judicial Review. The Supreme Court's Decision in APC v NASMOS & ANOR Supreme Court Constitutional Ref. 4/96 confirms the position that where a principal legislative enactment has conferred a right, that right could be enforced, notwithstanding the Legislature's failure in promulgating subsidiary Legislation to give effect to, or to enforce, the principal legislation. There, the Court was dealing with the absence of subsidiary legislation to give effect to the provisions of Section 133 of the Constitution. This of course, as we all know, was eventually done in 2000 with the passing of the State Proceedings Act. Prior to the passing of the 1991 Constitution, and even since then, Administrative complaints have always been dealt with by way of Judicial Review, and not by way of action brought.
12. Section 134 of the Constitution provides that" the High Court of Justice shall have supervisory jurisdiction over ail inferior and traditional Courts in Sierra Leone and any adjudicating authority, and in the exercise of its supervisory jurisdiction, shall have power to issue such directions, Writs,
and Orders, including........orders of certiorari, mandamus and prohibition
as it may consider appropriate for the purpose of enforcing or securing the enforcement of its supervisory powers."
13. The 1st Respondent was appointed pursuant to the provisions of Section 141(1) and (2) of the Constitution. This Section deals with the appointment of Judicial and Legal Officers. The Section refers to the Administrator and Registrar-General, but she is the de facto Registrar of Companies. She is described in Section 2 of the Companies Act as "the registrar....performing under this Act the duty of registration of companies." In the Registration of Business Act,2007 it is expressly provided that "Registrar" means the Administrator and Registrar-General, and includes her Deputy. Section 14 of the Companies Act provides that" the Memorandum and the Articles, if any, shall be delivered to the Registrar, and he shall retain and register them" Section 15(1) of the same Act provides that non the registration of the memorandum of a company the registrar shall certify under his hand that the company is incorporated and, in the case of a limited company, that the company is limited."
14. The Applicant' s complaint, in terms of the Law, is that the 1st Respondent did not comply with Section 14 of the Companies Act. Since he, as he claims, had not contravened Section 18(l)(a) of the same Act, in that he had not submitted the name of a company which was"...identical with that by which a company in existence is already registered, or so nearly resembles that name as to be calculated to deceive.." the 1st Respondent was duty bound to register his company. My view is that in registering a company pursuant to Section 14 of the Act, the 1st Respondent is carrying out a Judicial or Quasi-Judicial function. The Applicant protested her decision; she did not budge; no amount of letter writing will move her. The only way she may be compelled to rescind or revoke or annul her own decision is by Judicially reviewing the same. Her decision cannot be revoked by pen alone or by remonstrations. This more than anything else supports the proposition that she was exercising Judicial or Quasi-Judicial functions.
15. Even if I am wrong in this conclusion, and it is argued that in refusing the Applicant's application for registration, she was merely carrying out an administrative function, my answer to that argument would be that in the absence of any new machinery to address administrative complaints, and. following JOKO-SMARTJSC in APC v NASMOS & ANOR cited above, the complainant has no alternative but to utilise that which is presently available, Judicial review. RIDGE v BALDWIN. 2 All ER 66 HL is authority for the proposition that administrative activities are subject to Judicial Review.
16. If what the Applicant says is true, and that issue, I am not called upon to decide at this stage, the only way in which the 1st Respondent could be compelled to comply with the provisions of Section 14 of the Companies Act is by getting this Court to compel her to do so; and this can only be done by way of Judicial Review. The fact that in compelling her to comply with the express terms of the Law, private Law rights might be affected or infringed is a matter which would be best dealt with at the hearing of the Application for Judicial Review, and not at this preliminary stage. To decide otherwise, would be to decide the substantive matter without hearing full argument on the same. That the 2nd Respondent is a
necessary party to the process in terms of Order 18 of the High Court Rules,2007 is quite clear on the facts before me. If it had not been joined as Respondent in the beginning by the Applicant, it seems to me the Court hearing the substantive Application would have felt duty bound to add it as a party. On the 2nd Respondent's own admission, it has been using the name ZAIN in adverts and hoardings. It would be most unfair for a Court to decide that it was wrong of the 1st Respondent to have registered it in that name, but to go on to deprive of the right of being heard in defence of the 1st Respondent's decision, as it materially affected its interests. I agree with the 2nd Respondent that paragraph (e) of the Applicant's Application directly impinges on private law rights, but that does not deprive the whole of the Application of its validity and efficacy. Its excision would not, in my view, affect the rest of the Application. Further, if a Court grants the Applicant Orders (a) to (d) prayed for, it would hardly be necessary to on to (e). That relief would be redundant.
17.That notwithstanding, and in deference to Counsel's industry, I shall refer briefly to the authorities cited by them. The opening words of the notes to Order 53 Rule 14 paragraph 19 in the 1999 White Book, support the position I have adopted. There it is stated:" the remedy of Judicial Review is concerned with reviewing, not the merits of the decision in respect of which the application for judiciai review is made, but the decision making process itself." The notes cite in support of this proposition, the dictum of LORD HAILSHAM in CHIEF POLICE CONSTABLE OF NORTH WALES POLICE v EVANS 1 WLR 1155 AT 1160: "it is important to remember in every case that the purpose of [the remedy of judiciai review] is to ensure that the individual is given fair treatment by the authority to which it has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the maters in question." That the Applicant has sufficient interest in the matter to which the Application relates is abundantly clear.
18.I agree with MR WILLIAMS that" Judicial Review will not lie against a person or body carrying out private law and not public law functions." The cases he has cited, and relied on, support this proposition of law. But the
Registrar of Companies could hardly be described as a body carrying out only private law functions. Though the Applicant has sought the Prerogative Orders against the 1st Respondent, he has only sought the remedy of an Injunction - a non-prerogative Order, against the 2nd Respondent; and as I have indicated above, the prayer for an Injunction is really not the pith and substance of the Applicant's Application, notwithstanding the distinct possibility that it could be excised from the Application without any deleterious effect on it.
19.I agree with him also that " the Courts will not normally grant judicial review where there is another avenue of appeal. "Citing R v EPPING AND HARLOW GENERAL COMMISSIONERS, ex parte GOLDSTRAW 3 All ER C.A. 257, 262 the notes to Order 53 Rule 14 paragraph 27 quote SIR JOHN DONALDSON, MR as saying in that case that" it is a cardinal principle, that save in the most exceptional circumstances [the jurisdiction to grant judicial review] will not be exercised where other remedies were available and have not been used. "I am satisfied that in the instant case, the most appropriate remedy is judicial Review and not a full scale trial. Save for the Applicant's tangential and oblique reference to the 2nd Respondent's failure to pass the appropriate Resolution sanctioning the change of name, there are no issues in dispute between the Applicant and the 2nd Respondent that would necessitate the issuing of a Writ of Summons. The complaint is against the conduct of the 1st Respondent and her decision-making process. I seek the support of LORD GREENE MR in ASSOCIATED PROVINCIAL PICTURE HOUSES, LTD v WEDNESBURY CORPORATION  2 All ER C.A. 680 at 685:" ..the Court is entitled to investigate the action of the local authority with a view to seeing whether it has taken into account matters which it ought not to take into account, or, conversely, has refused to take into account or neglected to take into account matters which it ought to take into account.......the power of the Court to interfere in each case ....is that of ajudicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament had confided in it. "There is a complaint in the substantive Application that the 1st Respondent has exceeded, or has failed to exercise in favour of the Applicant, the powers conferred on her by Section 14 of the Companies Act.
20.In O'REILLY v MACKMAN  3 All ER 1125 HL at page 1126 LORD DIPLOCK states that "in public law, as distinguished from private law, however such legitimate expectation gave to each appellant a sufficient interest to challenge the legality of the adverse disciplinary award made against him by the Board on the ground that in one way or another the board in reaching its decision had acted outwith the powers conferred on it by the legislation under which it was acting; and such grounds would include the board's failure to observe the rules of natural justice; which means no more than to act fairly towards him in carrying out their decision-making process..." There, the expectation was a remission of sentence; and when that expectation was dashed or dissipated, there was the feeling that the appellants had not been treated fairly. Here, it is the expectation that a company would be registered by the 1st Respondent; and that in refusing to do so, the Applicant is saying that the 1st Respondent has treated him unfairly. He concludes at page 1134 of the same Report at para e by saying:".. 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..." I agree with him. I also agree with WOOLF,J in his reliance in the case of R v BBC ex parte LAVELLE  1 All ER 241 at 248 QBD para j, on the dictum of LORD PARKER,LCJ in R v CRIMINAL INJURIES COMPENSATION BOARD, ex parte LAIN  2 All ER 770 at 778 where LORD PARKER said: "the position as I see it is that the exact limits of the ancient remedy by way of certiorari have never been, and ought not to be, specifically defined. They have been varied from time to time, being extended to meet changing conditions.........later again it extended to cases where there was no lis in the strict sense of the word, but where immediate or subsequent rights of a citizen were affected. The only constant limits throughout were that it was performing a public duty. "It is my view, and I so hold that in the exercise of her functions under Section 14 of the Companies Act, the 1st Respondent is performing a public duty in the sense stated by LORD PARKER.
21. Reference was also made to the case of R v DISCIPLINARY
COMMITTEE OF THE JOCKEY CLUB ex parte AGA KHAN  2 All ER 853 C.A. There it was evident that the Jockey Club was not a public
body in the sense in which the 1st Respondent herein could well be described as such. There, the Court of Appeal held that the powers which the jockey club exercised over those who like the applicant therein, agreed to be bound by the Rules of Racing, derived from agreement of the parties and gave rise to private rights on which effective action for private law remedies could be based without resort to judicial review. Similarly, in LAW v NATIONAL GREYHOUND RACING CLUB  3 All ER 300 CA., the Court of Appeal held that the jurisdiction which the High Court had to grant an Injunction or Declaration on an application for judicial review was confined to the review of activities of a public nature as opposed to those of a purely private or domestic nature. Since the Stewards in that case had authority to suspend the Plaintiff's Licence, and that authority derived solely from a contract between him and the Defendants, there was no public element in their jurisdiction as such. Both cases dealt with Applicants who had freely contracted to become members of their respective clubs: in the first case, the Jockey Club; in the latter, the National Greyhound Racing Club. These far instances from the case at hand.
22. In the result, I hold that Judicial Review is the appropriate vehicle for bringing the Applicant's case to Court. The 2nd Respondent's Application therefore fails on all grounds. All the Orders prayed for ore refused. The 2nd Respondent shall pay the Costs of the Applicant, such Costs to be Taxed if not agreed. As the 1st Respondent has not appeared in these proceedings, no Order is made as to Costs as regards her.
N C BROWNE-MARKE Justice of Appeal 21 January,2009