IN THE SUPREME COURT OF BELIZE, A. D. 2011

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1 IN THE SUPREME COURT OF BELIZE, A. D CLAIM NO (BETWEEN: ( (FOOTBALL FEDERATION OF BELIZE ( AND ( (THE NATIONAL SPORTS COUNCIL (THE MINISTER RESPONSIBLE FOR SPORTS (THE COMMISSIONER OF POLICE APPLICANT 1 ST RESPONDENT 2 ND RESPONDENT 3 RD RESPONDENT BEFORE: Hon Madam Justice Minnet Hafiz Appearances: Dr. Elson Kaseke for Applicant Mr. Nigel Ebanks for First Respondent Ms. Magali Perdoma and Mr. Nigel Hawke for 2 nd & 3 rd Respondent D E C I S I O N Introduction 1. This is an application dated 5 th July 2011 for an interim injunction by the Football Federation (FFB) of Belize. The Application is made before the issuance of the Claim Form as provided in Part 17 of the Supreme Court (Civil Procedure) Rules FFB seeks the following orders: (a) an interim injunction prohibiting the NSC from prohibiting the FFB from using the NSC sporting facilities until the trial and determination of this Claim. 1

2 (b) (c) (d) an Interim Injunction prohibiting the Minister from prohibiting the FFB to represent Belize in any local or international competition or in any other forum for football until the trial and determination of this Claim. an Order directing the Commissioner of Police to provide police security at the FIFA Qualifying Match between Belize and Montserrat to be played in Belize at the FFB Sporting Complex in Belmopan at the FFB Headquarters on or before 11 th of July, 2011 and at another FIFA Qualifying Match to be played in Belize before the trial and determination of this Claim. Costs. 2. Grounds The grounds of the application are that: (a) on the 26 th August, 2010 [Exhibit 1], 8 th March, 2011 [Exhibit 2], 31 st March, 2011 [Exhibit 3] and 15 th April, 2011 [Exhibit 4], the NSC wrote to the President of the FFB and the Presidents of other sporting organizations informing them that they had to register with the NSC. (b) in the Guardian Newspaper of 16 th January, 2011 [Exhibit 5] there was an article captioned A Government Versus A Dictator: Unstoppable Force Meets Immovable Object which not only excoriated the leadership of the FFB, but discussed plans to remove the FFB leadership as the basic responsibility of Minister of Sports John Saldivar. (c) (d) on the 31 st December, 2010 [Exhibit 6] the Minister of Sports appointed a three (3) member investigative committee to investigate the affairs of the FFB and report back by no later than 28 th January, This deadline was later extended to the 6 th May, 2011 [Exhibit 7]. To date, no report has been submitted, and the FFB does not know if it is still being investigated. because the FFB was under investigation, and because the President of FIFA also visited Belize during the same period of time, the FFB could not make its application to be 2

3 registered as a registered sporting organization under the Act in the time required by the NSC. (e) (f) (g) (h) (i) (j) during the investigation, the FFB had, by virtue of the Act, to stand ready to provide all necessary information which the investigative committee needed, and this took considerable time. on the 20 th April, 2011, the FFB submitted its application to the NSC for registration as a registered sporting organization [Exhibit 8]. on the 27 th April, 2011, the FFB submitted the documents that were requested by the Sports Council in a letter dated 8 th March, 2011 which included (i) calendar of events, (ii) budget; and (iii) copy of the FFB statutes or constitution [Exhibit 9]. on the 16 th May, 2011, the FFB wrote the NSC a letter requesting a response to the FFB s application for registration since the FFB had complied with all the requirements set by the NSC in its letter of 8 th March, 2011 [Exhibit 10]. on the 17 th May, 2011, the NSC wrote the FFB, requiring more information in respect of the registration process. The information required was additional to the information first required in the NSC letter of 8 th March, The new information now required by the NSC, which is not required under Section 19 of the Act for the purposes of registration, was (i) minutes of the FFB last General Assembly, and (ii) copy of the FFB financial statement for the year There was no statutory basis for the NSC to require these documents. while setting 1 st June, 2011 as the final deadline for the submission of all applications for sporting associations, to be registered under the Act as registered sporting organizations, the NSC had, in its letter of 15 th April, 2011 written the FFB that effective immediately, the [FFB] and its affiliates will no longer be allowed to use the facilities of the [NSC] and shall not be entitled to any privileges. This was a pre registration punishment for the FFB. 3

4 (k) (l) (m) (n) (o) the FFB had a legitimate expectation, which the NSC breached, that it would be allowed to use the NSC facilities during the period its application was being processed since other sporting organizations like the Cycling Association, the Karate Association, the Boxing Association, the Dominoes Association and the Chess Association are not yet registered but use the facilities of the NSC. The decision of the NSC was therefore arbitrary discriminatory and unreasonable given that other sporting associations in circumstances similar to the FFB are still using the facilities of the NSC. on the 7 th June, 2011, the NSC sought to ban the FFB from being recognized as the official national body for football in Belize and on the 8 th June, 2011, the Minister of Sports sought to ban the FFB from representing Belize in football both locally and internationally. on the 16 th of June, 2011, the Minister responsible for Sports appeared on Channel 7 News which was televised nationally and which appeared on the internet and publicly stated that no police security will be provided for the football match between Belize and Montserrat to be played at the FFB Sporting Complex in Belmopan, at the FFB Headquarters and the Police Commissioner informed the FFB President, Dr Bertie Chimilio, that he was under orders not to provide police security for the said game. both the FFB and Belize were subsequently suspended by FIFA due to Government interference and were informed to settle their dispute on or before the 30 th June, 2011 [Exhibit 11]. on the 27 th June, 2011 during a hearing of an Application of Permission to Apply for Judicial Review by the FFB as the Applicant against the Respondents, the NSC stated in Court that the dispute centered around the non provision of the FFB s Statutes/Constitution to the NSC. Counsel for the FFB then handed over the FFB s Statutes/Constitution 2010 to Counsel for the NSC and there was an undertaking that the FFB s Statutes/Constitution 2010 would be handed over to the NSC which would then engage in the registration process of the FFB on or before 30 th June, This did 4

5 not happen and has not happened despite repeated requests by the FFB to the Director of the NSC, Mr. Patrick Henry. (p) The FFB is therefore applying for Administrative Orders including Constitutional Orders that (i) (ii) (iii) (iv) (v) the NSC is breaching the FFB s rights enshrined in Section 2, 3(a) and 6(1) of the Belize Constitution to the equal protection of the law and to equality before the law, by failing or refusing, after giving an undertaking to the Court to register the FFB as a registered sporting organization as required under section 19 of the Sports Act. a declaration that the prohibition of the FFB from using the NSC sporting facilities is contrary to section 16 of the Belize Constitution. an order quashing the decision of the NSC dated 7 th day June, 2011 informing the FFB that it is no longer recognized as the national body for football in Belize. an order directing the NSC to register the FFB as the registered sporting organization under the Sports Act since the NSC has all the documents required under section 19 of the Sports Act in respect of the FFB s application to be registered. an order quashing the decision of the Minister dated the 8 th June, 2011 informing the FFB that the FFB is not authorized to represent the country in any local or international competition or in any other forum for football on behalf of the Government, people, and the nation of Belize. 3. At paragraph 6 of the Application, FFB says that it is directly affected by the decisions of the NSC since the NSC is moving the goal post each time the FFB submits documents to support its application for registration and since the NSC only prohibited the 5

6 FFB from using the NSC sporting facilities, and not other sporting organizations, and since the NSC is now ceased with all the documents required by the law for the registration of the FFB but the NSC refuses or fails to register the FFB. 4. At paragraphs 7 and 8, FFB says that they are also directly affected by the decision of the Minister since (i) FFB is the Organisation which is recognized by FIFA as representing Belize in football competitions organized under the auspices of FIFA (ii) by the Commissioner of Police since FIFA is not sanctioning an FFB Football Match in Belize where police security is not provided and the police is failing to discharge their statutory duties of securing the peace by providing police security where a sizeable amount of people will be gathered to watch the football game. 5. FFB says it has a right of appeal under section 21 (2) of the Sports Act to the Sports Tribunal. However, they made this application because they are seeking Interim Injunction until the hearing and determination of the Claim to enable the FFB to use the facilities of the NSC and not disrupt the FFB s current football fixtures and sporting events. FFB says that the Sport Tribunal does not have power to grant an injunction so the Applicant s only remedy was to apply to the Supreme Court and make this declaration pursuant to Rule 56.3 (3) (e) of the Supreme Court (Civil Procedure) Rules, Evidence 6. The Application is supported by affidavits of the FFB President, Dr. Bertie Chimilio. Mr. Patrick Henry, Acting Director of National Sports Council and Mr. Ismael Garcia, the National Sports 6

7 Administrator at the Ministry of Sports Respondents. swore affidavits for the Submissions for FFB 7. Learned Counsel Dr. Kaseke in written submissions contends that pursuant to section 19(1) and (2) of the Sports Act Act, Chapter 46 the requirements for registration as a registered sporting organization under the Act are (a) submission of the sporting organisation s constitution to enable the NSC to approve the said constitution as provided in section 19(1); and (b) submission of the office holders of the sporting organization to enable the NSC to enter their names on the register as required under section 19(2) of the Act. As such, Dr. Kaseke contends that the NSC therefore does not have any statutory power to demand additional documents as it sought to do in this case. 8. Further, Learned Counsel submits that the NSC can only refuse to register a sporting organization under section 22 of the Act and to be lawful such a refusal must observe the rules of natural justice and fairness (audi alteram partem) and should not be arbitrary. See Board of Education v Rice 1 where at page 182, Lord Loreburn LC, states that the Board of Education must act in good faith ad fairly listen to both sides, for that is a duty lying upon everyone who decides anything. 1 [19 11] AC 179 7

8 9. See also Cooper v Wandsworth Board of Works 2 relied on by Learned Counsel where the court held that standards of fairness and natural justice will readily be used to full any procedural gaps left by the express provisions of a statute under which a public body may be acting Dr. Kaseke s written submissions were prepared for a previous application which was withdrawn. The Claim to be filed in this case is for Administrative Orders including Constitutional Orders as shown in his application. Whether such a claim would be appropriate here will be discussed later. Dr. Kaseke therefore partly relied on his written submissions during arguments. 11. In oral submissions Learned Counsel further contends that the Minister was under a duty to fairly listen to the FFB and to the National Sports Council before making the decision that the FFB was not authorized to represent football for Belize. That his failure to do so contravened the basic principles of natural justice which are encapsulated in Sections 3(a) and 6 (1) of the Belize Constitution. Dr. Kaseke relied on the case of Council for Civil Service Union v Minister for Civil Service 4 where Lord Diplock said that the decision maker misunderstood the law which regulates his decision making process and so arrived at a wrong conclusion. Learned Counsel submits that the Minister sought to prohibit the participation of the FFB in a competition 2 (1863) 14 CB(NS) This was cited in Wade and Forsyth, Administrative Law, 7 th Edn, [1985] AC 374 at

9 which is not held under their auspices and so their decision is on that basis a nullity. 12. The court received further written submissions from Dr. Kaseke on 5 th September, 2011 although what was requested was the authorities on the constitutional issues raised during submissions. From paragraph 8.1 to 8.4 Dr. Kaseke discussed the constitutional meaning of equality before the law and justice. He submits that the constitutional concepts of equality before the law and protection of the law enshrined in both sections 3(a) and 6(1) of the Belize Constitution encompass principles of natural justice and fairness. See Ong Ah Chuan v. Public Prosecutor [Privy Council Appeals Nos. 37 & 38 of 1979], at 9. See further Lloyd v. McMahon [1987] AC 625, at where Lord Bridge of Harwich stated the applicable rules of natural justice as the underlying concept of fairness. Submissions for the National Sports Council 13. Learned Counsel, Mr. Nigel Ebanks in written submissions referred to the nature of the functions of the National Sports Council and the National Sports Tribunal and submits that given the functions of these two bodies the Court ought not to lightly interfere with decisions and acts of the Council. 14. Learned Counsel, Mr. Ebanks also made a preliminary objection that non compliance with section 3(1) of the Public Authorities Protection Act by FFB means that the Court will not have jurisdiction to hear the application. Mr. Ebanks further contends that the FFB should have pursued its alternative remedy, that is, it ought to have brought its claim by way of an appeal to the 9

10 National Sports Tribunal as provided for under the Sports Act In further submissions, Learned Counsel argued that the claim ought to be brought by way of judicial review. That the reason why the claim is brought in this way is simply to circumvent the need to apply for permission for judicial review and this is an abuse of the Court s process. However, Learned Counsel argued that in any event FFB s case would not qualify for permission to apply for judicial review as FFB has an alternative remedy As for the injunction, Learned Counsel contends that an immediate injunctive relief is unnecessary as the Applicant has its own superior facilities. See affidavit of Mr. Patrick Henry who deposed that the Applicant has its own FIFA certified football field located at the grounds of the Applicant s headquarters in Belmopan. Further, that the application for the injunction is not urgent as shown by the evidence of Mr. Henry who says that on July 7, 2011, FIFA and the Applicant issued releases carried by Love FM stating that the game between Montseratt and Belize, mentioned in Mr. Bertie Chimilio s affidavit in this matter, is set to be played in Honduras before July 17, As such, there is no evidence before the Court of any imminent need for either the use of the National Sports Council s facilities or for provision of security by the Commissioner of Police. Further, there is no evidence of any other reasons that would make it otherwise necessary to issue an injunction before trial in the interests of justice. Mr. Ebanks also contends that the Courts will not grant mandatory injunctions at an interim stage save where they are 5 Section 21 (2) of the Sports Act 6 See written submissions at paras for the authorities cited. 10

11 able to feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted. 7 Learned Counsel further submits that such an Order would reverse, not preserve, the status quo and the order would be in the nature of a final relief and as such the balance of convenience lies against granting the injunction. 8 Submissions for 2 nd and 3 rd Respondents 17. Learned Counsel, Ms. Perdoma submits that the declarations sought by FFB are an abuse of process and should come by way of judicial review. She relied on the Belize case of Mark Seawell, Duane Seawell v. Minister of Foreign Affairs et al where Justice Awich dealt with the issue of whether claims for reliefs in public law should come by way or Judicial Review. He stated: In my view, rule 56.1 authorises that a claim under public law may now be made by any of the proceedings in (b) to (d), as well as by judicial review proceedings, without the claim and proceedings being necessarily branded an abuse of process. But it is still possible to show instances of abuse of process on the grounds that, the claimant intended to avoid the three months limitation period, or obtaining permission, or any other grounds. 18. Learned Counsel contends that in this case by going for declarations as opposed to judicial review the claimants is seeking to avoid the provision of the Public Authorities Protection 7 Injunctions, David Bean, 10 th edition. 8 Chambers v British Olympic Association [2008] EWHC 2028, QB 11

12 Notice and the requirement that he must first exhaust his statutory remedies. 19. Learned Counsel further submits that the FFB has failed to provide the proper notice as required by Section 3 of the Public Authorities Protection Act. Counsel relied on Claim No. 728 of 2008 National Transport et al v. The Transport Board and Chief Transport Officer, where the Acting Chief Justice Honourable Awich J dismissed the Claimants claim stating : In the Eurocaribe case, learned Chief Justice Conteh held that notice under s: 3 of the Public Authorities Protection Act was required in claims including judicial review claims. I agree. 20. Ms. Perdoma submits that by writing to inform the Applicant that it was no longer authorized to represent the Country in any local or international competition, the 2 nd Respondent was not making an isolated decision open to judicial review. That the Ministers actions are inextricably linked to the decision by the National Sports Council not to recognize the Applicant as the national body for football in Belize. That since the Applicants are no longer recognized and/or registered as required by law under the Sports Act, it is a necessary consequence that the association cannot represent the country locally or internationally. That the Minister merely stated the facts and the subsisting status of the Applicant as opposed to making a separate decision. 21. Ms. Perdoma also makes the argument that the FFB has an alternative remedy under section 21 of the Sports Act Chapter 46 of the Laws of Belize which provides an appeal to the Council 12

13 and further to the Sports Tribunal if aggrieved by the decision of the Council. 22. Learned Counsel submits that the general rule is that the courts require and encourage the use of alternative administrative remedies before resorting to judicial review. 9 That in the case at bar the Applicant is seeking to review the Council s decision not to recognize the FFB as the official National body for football in Belize. The Council in its letter explained that the decision was consequent on the Applicants failure or refusal to comply with the requirements for registration. As such, Counsel contends that the decision is squarely within the ambit of the Sports Tribunal and Section 21 of the Sports Act. 23. On the issue of the injunction, Learned Counsel submits that the FFB has not shown on the evidence that there is a strong case on the merits to warrant an injunction against the decision of the Council and or the actions of the Minister. Further, that the principles applicable to an injunction in public law cases such as the case at bar are distinct from the factors to be considered in ordinary injunction cases. The applicant must show an extremely strong case on the merits to attain an injunction against either the 1 st or 2 nd Respondent. Counsel relied on Smith v Inner London Education Authority 10 where Lord Denning found that (para 417) : I am of opinion that a local authority should not be 9 R v. Secretary of State for the Home Department Ex p. Swati All ER Volume 1 page

14 restrained, even by an interlocutory injunction, from exercising its statutory powers or doing its duty towards the public at large, unless the plaintiff shows that he has a real prospect of succeeding in his claim for a permanent injunction at the trial. 24. Ms. Perdoma further submits that the FFB has failed to prove a high degree of assurance on the merits of the case at bar. That FFB by seeking an interim injunction prohibiting the Minister of Sports from prohibiting the FFB from representing Belize in any local or international competition or in any other forum for football, is seeking a mandatory rather than prohibitory injunction. See Miller v. Cruickshank 11 relied on by Counsel. Determination 25. Firstly, I will consider the preliminary objections raised by the Respondents, namely (1) Whether FFB should have utilized the procedure prescribed by statute; (2) Whether the grounds of equal protection of the law raised by FFB are subject to constitutional redress by way of Declaration or Judicial Review; (3) Whether Notice under the Public Authorities Act should have been served on the Respondents. Alternative Remedy 26. Learned Counsel Dr. Kaseke in his application for the injunction agrees that FFB has a right of appeal under section 21 (2) of the 11 WIR, Volume 44, page

15 Sports Act to the Sports Tribunal. However, FFB says it has made this application because they are (1) seeking Interim Injunction until the hearing and determination of the Claim to enable the FFB to use the facilities of the NSC and not disrupt the FFB s current football fixtures and sporting events; (2) the Sport Tribunal does not have power to grant an injunction; (3) FFB is also seeking an injunction against the decision of the Minister and there is no right of appeal against the decision of the Minister to any person under the Act; (4) the Applicant is also seeking an interim order directing the Commissioner of Police to provide police security to any FFB international Football Matches played in Belize until the trial and determination of this Claim. The question is whether these are good reasons for not pursuing the alternative remedy. 27. I do agree with the Respondents that the general rule is that the courts encourage the use of alternative administrative remedies as shown in the Swati case. However, there are some cases where the Court will exercise jurisdiction notwithstanding that statute has provided an alternative form of redress. The Learned Chief Justice Awich (ag.) in Claim No. 575 of 2006, Provident Bank and Trust of Belize Ltd. v. Belize Companies and Corporate Affairs Registry identified three such occasions when the court will exercise jurisdiction. At page 13 of his decision he said:...there are occasions on which the Supreme Court will exercise jurisdiction notwithstanding that a statute has provided an alternative form of redress. I have identified three such occasions. The first occasion is when court is presented with a case in which the statute providing the alternative form 15

16 of redress nevertheless does not make it clear that the statute prohibits recourse to court in view of the prescribed alternative. Court will then regard the statutory form of redress merely as an alternative and not as an exclusive form of redress. The second occasion is when court is presented with an exceptional case in which exceptional circumstances are identifiable; on such an occasion, court will take account of the alternative form of redress, but may nevertheless intervene and exercise jurisdiction. Exceptional circumstances arise from the nature of the case as well as from the nature of the remedy prescribed. Examples are common in cases brought by judicial review proceedings. The third occasion is when the case presented to court raises the question of nullity because the public authority or tribunal or the administrator has exceeded his power given in the statutory prescribed form of redress, or has exercised his power or discretion by unfair means, or has refused to exercise his function; or when the case presented to court discloses error of law on the face of the record. Again on such an occasion the court will exercise jurisdiction notwithstanding the statutory form of redress prescribed. (emphasis added). 28. The Sports Act has provided an alternative form of redress by way of appeal but does not say that it prohibits recourse to the court. Nevertheless, the court would have to look at whether it would be an abuse of process to not pursue the appeal having regards to the facts of the case. 29. FFB did not file a claim but in their application identified the nature of the claim to be sought as Administrative Orders including 16

17 Constitutional orders. Further, FFB identified the reasons for not pursing the alternative remedy and this includes the request for interim injunction until the determination of the Claim as shown above. 30. I have carefully considered the arguments on all sides and in my view, the Sports Council would not be in a position to hear legal arguments for an injunction, especially a mandatory injunction as is being sought by the FFB and for that reason I think that the court is the proper forum. Further, in the grounds of their application, FFB raises issues of legitimate expectation and violation of rules of natural justice which are alleged infractions of public rights and as such, it is my view that such issues cannot be properly be considered by the Sports Council or Sports Tribunal. As such, I find that FFB need not exhaust the alternative remedy. Breach of Constitutional Rights 31. FFB says that the NSC is breaching the FFB s rights enshrined in Sections 2, 3(a) and 6(1) of the Belize Constitution to the equal protection of the law and to equality before the law, by failing or refusing to register the FFB as a registered sporting organization as required under section 19 of the Sports Act. As such, FFB is seeking a declaration that the prohibition of the FFB from using the NSC sporting facilities is contrary to section 16 of the Belize Constitution. I will construe the constitutional provisions relied on by FFB to see whether it is appropriate to ask the court for such a declaration. 17

18 Section 2 provides: 2. This Constitution is the supreme law of Belize and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void. Section 3(a) which falls under protection of fundamental rights and freedoms provides: Protection of Fundamental Rights and Freedoms 3. Whereas every person in Belize is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely (a) life, liberty, security of the person, and the protection of the law; Section 6 provides for protection of the law. It states at subsection (1): 6. (1) All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. Section 16 provides for protection from discrimination. meaning of discriminatory is stated in sub section (3) as: The (3) In this section, the expression discriminatory means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by sex, race, place of origin, political opinions, colour or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description. 18

19 32. The grounds of discrimination prohibited by section 3 and section 16 of the Constitution do not include any of the grounds relied on by the FFB. Section 6 which provides for protection of the law is concerned with procedural rights such as the rights of a person charged with a criminal offence. FFB says that the NSC is breaching their rights enshrined in Section 2, 3(a) and 6(1) of the Belize Constitution to the equal protection of the law and to equality before the law, by failing or refusing to register the FFB as a registered sporting organization as required under section 19 of the Sports Act. This inequality in my view is not subject to Constitutional Review as it falls outside the ambit of those grounds enumerated in the constitutional provisions. See the case of Matadeen and Others v M.G.C. Pointu and Others (Mauritius) (1998) UKPC 9 where similar constitutional provisions were construed in a claim for constitutional redress. Their Lordship s conclusion is that sections 3 to 16 do not apply to inequalities of treatment on grounds falling outside those enumerated. Also that inequalities are not subject to constitutional review. Their Lordships said that the question whether they are justifiable is one which the constitution has entrusted to Parliament or, subject to the usual principles of Judicial Review, to the Minister or other public body upon which Parliament has conferred decision making authority. As such, relying on the principles in the Matadeen case, I find that the Application for Administrative Orders including Constitutional Orders stated at paragraph 2(p) of the Application is misconceived. Whether FFB should proceed by way of Judicial Review 33. It can be seen by the application at paragraph 2(p) FFB will also seek quashing orders which are akin to the orders in Judicial 19

20 Review proceedings. There are orders to quash the decision of the NSC and the Minister as shown below: (iii) (v) an order quashing the decision of the NSC dated 7 th day June, 2011 informing the FFB that it is no longer recognized as the national body for football in Belize. an order quashing the decision of the Minister dated the 8 th June, 2011 informing the FFB that the FFB is not authorized to represent the country in any local or international competition or in any other forum for football on behalf of the Government, people, and the nation of Belize. 34. FFB s also raised issues of legitimate expectation and breach of principles of natural justice in their application which is also within the realm of judicial review. In the case of Council for Civil Service Unions v Minister for Civil Service (relied on by Dr. Kaseke in his argument on the principles of natural justice) Lord Diplock identified three grounds on which applicants for Judicial Review can properly challenge decisions of public bodies, namely, illegality, irrationality and procedural impropriety. Also, Judicial Review has been approached on the bases of breach of natural justice, abuse of discretion and abuse of jurisdiction. Hence the reason I am convinced that the claim by FFB should be Judicial Review proceedings. FFB should therefore proceed by way of an Application for Permission to apply for Judicial Review. 20

21 Public Authorities Act 35. The Respondents contend that since no notice was served pursuant to the Public Authorities Act, Chapter 31 the court has no jurisdiction to hear the application. I do agree with the Respondents that FFB sought to avoid seeking permission to apply for Judicial Review and serve notice pursuant to section 3(1) of the Public Authorities Act. In an Application for Judicial Review it is required that notice should be served pursuant to the Public Authorities Protection Act. See Claim No. 728 of 2008, National Transport et al v. The Transport Board and Chief Transport Officer where Chief Justice Conteh held that notice under section 3 of the Public Authorities Protection Act is required in claims including judicial review claims. Section 3 (1) of the Public Authorities Protection Act states:. No writ shall be sued out against, nor a copy of any process be served upon any public authority for anything done in the exercise of his office, until one month after notice in writing has been delivered to him, or left at his usual place of abode by the party who intends to sue out such writ or process or by his attorney or agent, in which notice shall be clearly and explicitly contained the cause of the action, the name and place of abode of the person who is to bring the action, and the name and place of abode of the attorney or agent. Non compliance with section 3(1) is set out at section 3 (2) of the Act which states: No evidence of any cause of action shall be produced except of such as is contained in such notice, and no verdict shall be given for the plaintiff unless he proves on the trial that such notice was given, and in default of such proof the defendant shall receive in such action a verdict and costs. 21

22 Where no notice is served under the Public Authorities Act in a matter that should proceed by way of Judicial Review proceedings, the court will dismiss the application. Conclusion 36. The Administrative Orders which includes Constitutional Orders that the FFB is seeking is improper. The Application that should be made by FFB is an application for Permission to apply for Judicial Review (where an injunction could be granted also at that stage). Notice should also be served pursuant to section 3(1) of the Public Authorities Act. 37. Accordingly this is the order of the court: Order The application for the injunction by the FFB is dismissed. FFB to pay the costs of the Respondents which is to be agreed or taxed. Development since hearing of application 37. On 12 th September, 2011, it was brought to my attention that Patrick Henry issued an affidavit dated 24 th August, 2011 in which he deposed that an Agreement has been reached between the Applicant and the Respondents. Mr. Henry deposed in that 22

23 affidavit that a meeting was held between the Minister of Sports, Hon. John Saldivar, Patrick Henry, Acting Director of National Sports Council and FFB President, Dr. Bertie Chimilio and also other representatives of the FFB on August 11, The parties signed a Memorandum of Understanding on the said day based on the points agreed at the meeting. See Exhibit PH 3 1 for the said Memorandum. It was agreed among other things that, During the period leading up to the December 10, 2011 deadline for elections, the FFB and its affiliates will have full access to the facilities of the National Sports Council. As such, I take this opportunity to commend all the parties on reaching this agreement.. Minnet Hafiz Supreme Court Judge Dated this 16 th day of September,