IN THE SUPREME COURT OF GRENADA
AND THE WEST INDIES ASSOCIATED STATES
HIGH COURT OF JUSTICE
(CIVIL)

CLAIM NO. GDAHCV2014/0325

IN THE MATTER OF THE CLAIMANT GEORGE ROBINSON APPLYING FOR AN ADMINISTRATIVE ORDER FOR JUDICIAL REVIEW OF THE DECISION OF THE GRENADA OLYMPIC COMMITTEE INC REFUSING HIS APPLICATION TO BECOME AN INDIVIDUAL MEMBER OF THE DEFENDANT

AND

IN THE MATTER OF THE CLAIMANT APPLYING FOR DECLARATIONS, AN INJUNCTION AND OTHER ORDERS PURSUANT TO PART 56 OF THE CIVIL PROCEDURE RULES, AND PURSUANT TO LEAVE TO SO APPLY GRANTED ON 14TH JULY 2014 BY THE HON. MADAM JUSTICE MARGARET Y. MOHAMMED

BETWEEN:

GEORGE ROBINSON

Claimant

and

GRENADA OLYMPIC COMMITTEE INC

Defendant

Before:
The Hon. Mde. Justice Agnes Actie High Court Judge

Appearances:
Dr. Francis Alexis QC for the Claimant
Ms. Claudette Joseph for the Defendant

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2022: May 27, 31

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JUDGMENT

[1] ACTIE, J.: This is a judicial review claim filed by the claimant concerning a decision made by the defendant in refusing the claimant’s application to become a member of the defendant.

Claimant’s case

[2] On 14th July 2014, Mohammed J granted leave for the claimant to apply for judicial review and accordingly in a fixed date claim form filed on 1st August 2014, the claimant claims the following reliefs:

(1) A declaration that the defendant in taking its decision to refuse the application by the claimant to be admitted as an individual member of the defendant acted unreasonably, irrationally, unfairly, unjustly, arbitrarily, discriminatorily, without regard to relevant considerations, on irrelevant considerations, and this rendered that decision unlawful, of no effect in law, null and void;

(2) A declaration that the defendant in taking its decision to refuse the application by George Robinson to be admitted as an individual member of the defendant did not tell him what matters it was considering adversely to him, failed to afford him an opportunity of a fair hearing on such matters, and thereby breached natural justice, and this rendered that decision unlawful, of no effect in law, null and void;

(3) An injunction to restrain the defendant from continuing to discriminate against the claimant;

(4) An order that the defendant consider properly according to law the application by the claimant to be admitted as an individual member of the defendant; and

(5) An order that the defendant grant the application by the claimant to be admitted as an individual member of the defendant.

[3] By affidavit sworn to on 1st August 2014, the claimant states that he is a long standing and active participant in the management of various aspects of Olympic sport in Grenada.

[4] The defendant is a non-profit company incorporated on 24th November 2009 pursuant to the Companies Act 1994 of the Laws of Grenada.

[5] The claimant avers that the defendant, with its principles of Olympism, conducts its decision making on applications for membership with a substantial public flavour. This, according to the claimant, is as a result of the influence of the Olympic Charter which places sport at the service of the harmonious development of human kind, and proclaims the practicing of sport a human right to be without discrimination of any kind.

[6] The claimant contends that the defendant is required by its Constitution to develop the Olympic movement in Grenada in accordance with the Olympic Charter of the International Olympic Committee. Further the claimant contends that the defendant is required by its Articles of Incorporation of 24th November 2009 to carry on business strictly of a sporting and athletic nature primarily to develop the Olympic Movement in Grenada in accordance with the Olympic Charter of the International Olympic Committee.

[7] The claimant states that the defendant in its constitution provides for various categories of its membership. Article 6(6) of the defendant’s Constitution caters for having as its members “nationals liable to reinforce the effectiveness of the Committee, or who have rendered distinguished service to the cause of sport and Olympism”.

[8] The claimant avers that by September 2013 he had an outstanding career in sport and Olympism, thus he applied by letters of 1st September 2013 and 22nd November 2013 to become an individual member of the defendant pursuant to Article 6(6) aforesaid.

[9] The claimant contends that by letter of 28th April 2014 enclosing letter dated 9th December 2013, the defendant refused the application of the claimant’s membership. The claimant states that the defendant gave no reason for refusing to grant his application for membership, and denied him membership without affording him an opportunity for a fair hearing. The claimant avers that, thereby, the defendant breached the principles of natural justice.

[10] It is the claimant’s position therefore that the defendant wrongfully denied the membership, him being a fit and proper person to be an individual member of the defendant.

[11] The claimant states that he does not know what the defendant took into account in refusing his application for membership. The claimant avers however that by virtue of its defence, the defendant took into account matters which it intended to use and indeed used adversely to him but did not afford him an opportunity to be heard.

Defendant’s case

[12] The defendant denies that the claimant’s application for individual membership was refused wrongfully and in breach of various aspects of the laws relating to decision making.

[13] The defendant avers that the referenced qualifications and experiences of the claimant do not by themselves render the claimant a fit and proper person to be admitted to membership of the defendant under Article 6(6) of the Constitution of the defendant.

[14] The defendant states that while the claimant may be eligible to be admitted, he did not apply for such membership having regard to his career in sport and Olympism as deposed. The defendant contends that the claimant applied for individual membership for the specific purpose of pursuing his campaign against the Board of Directors of the defendant from within the organisation, whose legitimacy he does not recognise and who he repeatedly publicly humiliates.

[15] The defendant denies that it adversely affected the claimant, that it acted unreasonably, irrationally, unfairly, arbitrarily, discriminatorily, without regard to relevant considerations or on irrelevant considerations. The defendant avers that although the letter of 9th December 2013 neither gives reasons for refusal, nor indicates what it considered in refusing the claimant’s application for membership, those matters were notoriously known to the claimant in light of his conduct leading up to his application and its refusal. In refusing the claimant’s application, the defendant also considered that any response from it may have been published in the media.

[16] The defendant avers that prior to the defendant’s Special Quadrennial General Meeting for election of members of the Board of Directors scheduled to take place on 25th May 2013, the claimant was interviewed on national television announcing his intention to be a one-man protestor at the elections, and forecasted that it would be recorded as the “darkest day in the history of Sports Administration in Grenada”.

[17] The claimant was not present at said elections, but immediately thereafter he launched a public campaign to have the elections declared null and void. The defendant avers that in doing so, the claimant intended to and did succeed in causing damage to the reputation of the Board of Directors of the defendant.

[18] The defendant contends that on 2nd November 2013, a Special General Meeting of the defendant was held, and the matter of the claimant’s application for membership was raised in light of his recent public attacks on the defendant. By consensus, it was decided that the claimant should not be admitted to membership because his membership would be inimical to the wellbeing of the defendant. Members were of the view that the claimant’s conduct had injured the image of the defendant in the eyes of the general public.

[19] The defendant avers that the claimant exhibited a confrontational and publicly aggressive attitude to the Board of Directors of the Defendant long before he raised the issue of the validity of the 25th May 2013 elections.

[20] The defendant contends that the claimant is not entitled to the reliefs sought in his claim. The defendant states that with respect to the injunctive relief claimed, the claimant failed to fully and frankly disclose to the court all the surrounding circumstances leading up to the rejection of his application for membership, including his public and confrontational challenge to the validity of the 25th May 2013 elections.

[21] The defendant states that it was of the view that because of all that transpired between the claimant and the defendant, it was not in its best interest to admit the claimant to membership at that time.

Legal Analysis

Whether the Defendant’s Decision is subject to Judicial Review

[22] During closing oral submissions, Ms. Claudette Joseph, counsel for the defendant, sought to introduce the argument of the defendant’s lack of susceptibility to judicial review. The said argument, admittedly by Counsel, was not premised on the defendant’s pleadings, nor addressed in her Pre-Trial Memorandum filed prior to the trial. Dr. Francis Alexis QC for the claimant intimated to the court that he was taken by surprise.

[23] It is trite and settled law that a party is bound by its pleadings unless it has been allowed to amend them. Blenman JA in the case of George W Bennet Bryson’s & Co. Ltd. v George Purcell summarised this legal principle thus:

“…the function of pleadings is to ‘give fair notice of the case which has to be met’ and ‘to define the issues on which the court will have to adjudicate in order to determine the matters in dispute between the parties.’ It is duty

[sic] of the court to firstly examine the pleadings and then to decide the case in view of, or more properly, on the basis of the pleadings.”

[24] CPR 10.5 (1) requires that the defence must set out all the facts on which the defendant relies to dispute the claim. In Leon O. Taylor v Wilfred Julien et al Baptiste JA said:

“A pleading must make clear the general nature of the case of the pleader since it is inimical to a fair hearing that a party should be exposed to issues and arguments of which he has no fair warning”.

He further held that CPR 10.7 provides the consequences of not setting out a proper defence. The defendant may not rely on any allegation or factual argument which is not set out in the defence but could have been set out there. The normal consequence of failing to deny a material fact in a statement of claim is that the court may treat the fact as admitted.

[25] Counsel for the defendant cannot now, at the close of the trial and in closing oral submissions raise a fundamental novel defence and legal issue not previously pleaded or canvassed in witness statements or pre-trial memorandum. Both Counsel for the claimant and defendant failed to comply with the case management directions made by this court on the 12th April 2021 directing the filing of submissions and authorities for the trial. This is a judicial review matter which has been in this jurisdiction’s system since 2014, with a previous trial date fixed for 2017 which was never heard.

[26] In any event, the court is of the view that the defendant is susceptible to judicial review. The availability of judicial review depends on the source of the decision maker’s powers to make the decision in question, and the nature of that decision . The question is whether the body is carrying out a public law function .

[27] In R (Beer trading as Hammer Trout Farm) v Hampshire Farmers’ Market Limited the Court of Appeal held that unless the source of the power of a decision-maker originating from statute or prerogative clearly provided the answer, the question whether a decision was amenable to judicial review required careful consideration of the nature of the power and function to be exercised to see whether the decision had a sufficient public element, flavour or character to bring it within the purview of public law.

[28] Although a non-profit company, the defendant is the National Olympic Committee for the state of Grenada, and through the Olympic Charter 2013, is tasked with certain public functions such as:

(1) To promote the fundamental principles and values of Olympism in their countries…; and
(2) To ensure the observance of the Olympic Charter in their countries.

[29] National Olympic Committees further have the exclusive authority for the representation of their respective countries at the Olympic Games, and at regional, continental or world multi-sports competitions patronised by the International Olympic Committee.

[30] Consequently, given the public nature of the above fundamental aspects and responsibilities of the defendant, and its national representative character, the court finds that the defendant is susceptible to the judicial review of its decisions.

[31] Having accepted the public nature of the defendant, the issue is whether, in refusing the claimant’s application for membership, the defendant was required to give an opportunity to be heard and reasons for its decision.

Whether the Claimant was entitled to and denied an Opportunity to be heard

[32] Byron CJ in Corporal Philbert Bertrand v The Secretary, PSC stated that:

“The first rule of natural justice is the audi alteram partem rule which requires that each party be heard by the adjudicating authority… three essential elements of the rule require restatement. One is the duty to disclose the information on which judgment is likely to be based in order to give an opportunity to controvert, correct and comment on it. Another is the necessity to give particulars of the charges on which judgment will be based. The third is the elementary and obvious imperative that judgment should not be reached until parties have had an opportunity to be heard.”

[33] Given the above, the claimant was entitled to the opportunity to be heard. This opportunity was denied him, as it is clear from the evidence of both parties that the defendant failed to adhere to the above principle of procedural fairness. This failure led to the claimant not having the opportunity to make his case to the defendant, thus undermining the validity of the defendant’s refusal of the claimant’s membership.

Whether the Defendant had a Duty to give Reasons for its Decision

[34] Dr. Francis Alexis QC for the claimant, contends that the defendant was obligated to decide the application in accordance with principles of natural justice and fairness. He further contends that the defendant was not permitted to have regard to irrelevant matters, disregard relevant matters or make determinations irrationally or unreasonably.

[35] Byron CJ in Corporal Philbert Bertrand v The Secretary, PSC stated as follows:

“An essential element of any judicial process by any body established to perform adjudicative functions is attention to procedural fairness. This is an intrinsic duty irrespective of the manner in which its rules are detailed.”

[36] One aspect of procedural fairness is the giving of reasons. As was stated in SOF 82 Anguilla Holdings LLC v Attorney General of Anguilla :

“It is now generally accepted as sound principle in the realm of public law that a failure by a public authority to give reasons, or adequate reasons, for a decision may be unlawful in two ways. First it may be said that such a failure is procedurally unfair. Second, a failure to give reasons may indicate that a decision is irrational. The rationale for this principle is the provision of an explanation of the basis of a decision that adversely affects others.”

[37] The giving of reasons is widely regarded as one of the principles of good administration in that it encourages a careful examination of the relevant issues, the elimination of extraneous considerations, and consistency in decision making . If published, reasons can provide guidance to others on the body’s future decisions, and so deter applications which would be unsuccessful .

[38] Moreover, unless an administrative body indicates the considerations that it has taken into account and the relative weight assigned to them, there can be no assurance that the administrative body has discharged its obligation to correctly decide issues and base its decision on the material presented, rather than extraneous considerations .

[39] An administrative body is under a duty to provide reasons for its decision sufficient to show to what it has directed its mind, and, a failure to do so is a breach of procedural fairness. The concept of fairness requires that a person aggrieved by a decision be provided with reasons so that they may know whether they can maintain an action for judicial review on an independent ground such as unreasonableness or irrationality .

[40] The defendant in this case admits to not giving reasons to the claimant for its refusal. This, the defendant contends, is as a result of what it considered to be obvious to the claimant at the time his application for membership was made.

[41] Given the above stated law, it is clear that reasons for a decision by a public body ought to be given to the affected individual, and that the defendant was in breach of the principles of procedural fairness by its failure to do so.

Whether Alternative Remedies Exist to the Claimant

[42] Ms Claudette Joseph, Counsel for the defendant, in closing oral submissions further raised the point that alternative remedies or courses for relief were available to the claimant.

[43] The court is not persuaded by this argument. Firstly, these issues were not previously raised by the defendant in pleadings or submissions neither supported by any legal authority. Secondly, the alternative remedies which Counsel for the defendant seeks to impose on the claimant are with respect to his contention with the manner in which the elections of the defendant took place and not with the refusal of his membership.

[44] As it regards the defendant’s decision to deny the claimant membership, the claimant’s grievance is based on his allegation that the defendant acted unreasonably, irrationally, unfairly, unjustly and arbitrarily in denying his membership. These allegations, as described by Blenman J, as she then was, in Gary Nelson v The Attorney General et al , form the bedrock of judicial review proceedings in public law.

[45] A number of public law remedies are sought by the claimant, and there is no absolute duty for a party to exhaust other rights before instituting public law proceedings , especially where the alternative remedies are unable to address some of the alleged infractions of public rights.

Whether the Claimant is entitled to Membership of the Defendant

[46] Article 6(6) of the Constitution of the Grenada Olympic Committee states that the following persons may become members of the defendant:

“Multi-sports and other sports-oriented organizational

[sic] or their representative, as well as Grenadians nationals liable to reinforce the effectiveness of the Committee, or who have rendered distinguished service to the cause of sport and Olympism.”

[47] The claimant has demonstrated through various certification and photocopies of identification cards regarding various competitions throughout the world, that he has been involved in athleticism for a number of years. The claimant’s evidence is that based on his longstanding career in sport and olympism, he applied to the defendant for membership which the defendant refused. He states that he has never been subjected to any disciplinary control by any sports organisation, nor convicted of any criminal offence, nor found liable by any court in civil proceedings.

[48] It is the claimant’s evidence that he served as coach to the Grenada Olympic Athletic team in Los Angeles, USA, 1984, coach and manager to various Grenada Athletic teams in international competitions, and Games Director for Grenada Inter Secondary Athletics from 1987-2012. He also states that he served as:

(1) Chairman of the OECS Track and Field Championships, 1987;
(2) Accompanying Guest Organising Committee Games of the 23rd Olympiad, Barcelona, Spain 1992;
(3) Athletic Coach Games of the 23rd Olympiad, Los Angeles, USA 1984;
(4) Head of Delegation Athletic World Championship, Rome 1987;
(5) Head of Delegation Athletic World Championship, Barcelona, Spain 1989;
(6) Member of North American Central American and Caribbean Track and Field Coaches Association;
(7) Team Official on the Bahamas Amateur Athletic Association, 1981;
(8) Junior CARIFTA Games 1987, Trinidad and Tobago;
(9) Chief of Mission Pan-American Junior Championship Argentina, 1995;
(10) Chief of Mission 21st World University Games Beijing China, 2001;
(11) Team Official Pan-American Junior Championship, Florida, USA 1986;
(12) International Olympic Committee Certificate Olympic Solidarity Sports Administration 1999;
(13) XI Congresso Associazione Europea Allenatori Atletica Leggera E.L.L.V, Attestato di partecipazione a marzo 1981;
(14) Diploma Comite Olimpico Mexicano 1979;
(15) Trainee/Assessor ICC Cricket World Cup West Indies 2007, Certificate of Appreciation;
(16) Certificate of Attendance Olympic Solidarity Coaching Course FIFA 1998;
(17) Olympic Solidarity Course in Football 1998;
(18) Manager OECS Track and Field Championship 1990;
(19) Team Official 1st World Junior Championships, Athens, Greece 1986;
(20) Representative for Grenada Amateur Athletics & Cycling Association on the Grenada Olympic Committee 1984-1992.
(21) Representative for St. Paul’s Sports & Cultural Development Organisation from 1980.

[49] It is also the claimant’s evidence that over the years he has been a member of various sport organisations namely:

(1) Grenada Amateur Athletics & Cycling Association 1980-2000.
(2) St. Paul’s Sports & Cultural Development Organisation from 1980.

[50] The defendant does not deny the track record of the claimant in terms of his involvement in sports. In fact, the defendant representative, Royston La Hee, then president of the defendant, admitted in cross examination that he was of the view that the claimant possessed the experience and interest in sports. It is the evidence that the defendant invited the claimant to a meeting relating to the establishment of the Grenada Paralympics Committee.

[51] The defendant’s witness, Veda Bruno-Victor, who was the Secretary General of the defendant for the past 21 years at the time of the filing of her witness statement and in cross examination states that since in or about 2009, the claimant took to publicly attacking the defendant’s executive members, and by such conduct, the view was formed that the claimant was deliberately set on publicly embarrassing the defendant and bringing the defendant and its members in disrepute and public ridicule.

[52] For instance, the defendant’s evidence indicates that the claimant publicly accused the defendant of fraudulent activity for an initiative in which it was not involved in. Further, on 15th June 2013, the claimant published an article to all local media houses, athletes, sponsors, sports administrators, coaches, schools and well-wishers, in which said article it was written that the elections of the defendant were undoubtedly conducted in a shady, corrupt and unconstitutional manner.”

And further that:

“Tiny Grenada is once again in the Spotlight Worldwide in Track and Field due to the achievements and exploits of Kirani James but our fears continue with regards to management and care of our other athletes.”

[53] On 6th July 2013, the claimant published a further article repeating his allegation of shadiness, corruption and unconstitutionality surrounding the 25th May 2013 Special Quadrennial General Meeting. The claimant therein directly attacked the Board of Directors of the defendant by referring to their stewardship as “way below par”.

[54] The defendant pleaded that in determining the application for membership by the claimant, a Special General Meeting was held, and that what was considered to the detriment of the claimant’s application was his then recent public attacks on the defendant. This, the defendant noted was inimical to the wellbeing of the defendant, and members were of the view that his conduct had injured the image of the defendant in the eyes of the general public.

[55] Indeed, the court notes, on a reading of the said Constitution of the defendant, that the grounds for termination of membership include:

“… a member or representative be removed from membership for conduct deemed inimical to the interest of the organisation.”

[56] As the court understands the defendant’s case, the actions of the claimant following its elections of May 2013, were considered inimical to the interest of the organisation, the claimant failing to raise his concerns regarding the elections directly with the defendant prior to publishing same through various media, without verifying the veracity of his statements. This can be seen to have negatively affected the reputation of the defendant, influencing its decision-making process when determining the claimant’s application.

[57] The court notes that claimant’s main contention in his various emails and publications against the defendant was as a result of the elections held at the quadrennial meting where the executive voted. The claimant vehemently challenged the validity of the elections stating that the defendant’s constitution did not enable the executive to vote. A point conceded by Mr. Le Hee in cross examination at the trial which gave legitimacy to the claimant’s assertions.

[58] The claimant is asking the court to order that he be a member of the defendant, despite the above averments made by the defendant, and reasons given as to the refusal of the claimant’s application. The claimant was never given an opportunity to be heard. It is the evidence at trial that the claimant’s application for membership was the first received by the defendant.

[59] Dr. Alexis QC for the claimant, in oral submissions, relied on the authorities in Chief Electoral Officer and others v Mathlin-Tulloch and others; Chief Electoral Officer v Ventose and Observer Publications Ltd v Matthew and others to persuade the court to order that the defendant, in the circumstances of its breach of natural justice, be directed to list the claimant as a member.

[60] Queen’s Counsel has, however, not addressed the court with respect to its own jurisprudence on the making of such an order. Chief Justice Dame Pereira, in a recent Court of Appeal decision in Elmoalis Ltd v The Attorney General of Anguilla held that the role of the court in such cases as these which are hinged on unfairness, is for the individual to be given fair treatment. It is no part of the purpose of the court to substitute the opinion of the judiciary or of the individual judges for that of the authority constituted to decide the matter in question. The learned Chief Justice stated at paragraph 56 of her judgment:

“Critically, as with every case where there is some challenge to the lawfulness of a decision-making process, it is for the court to determine where on the spectrum of illegality the impugned conduct lies and to determine the attendant consequences having regard to the statutory context within which the decision is made.”

[61] In Chief Constable v Evans it was held by Lord Brightman that:

“Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power.”

[62] The court is of the view that this is the posture to be adopted as it relates to the determination of judicial review matters, which are, primarily, a review of the manner in which the decision was made and not an appeal from a decision. Within our jurisprudence, a court is not empowered to usurp the powers of an authority by substituting its own opinion or decision for the decision of the authority which is the constitutionally, statutorily or legally authorized decision maker . What the court can do is generally review the manner in which the body exercises its authority, and determine whether the decision made is irrational, illegal, or the process by which the decision was made was procedurally improper. Insofar as that is the case, the court may quash a decision and remit it for consideration if necessary .

[63] The circumstances of the defendant’s initial refusal of membership of the claimant, the length of time that has expired since the refusal, and the court’s lack of competence to determine the needs and requirements of the Grenada Olympic Committee would make it inappropriate to compel the defendant to make the claimant a member.

[64] The court has found that the decision made by the defendant was procedurally improper by not affording the claimant an opportunity to be heard and failing to give reasons. Consequently, the court shall quash said decision of the refusal of the claimant’s application and remit the application to the defendant, Grenada Olympic Committee Inc, for reconsideration in accordance with the principles of natural justice.

[65] Contrary to the claimant’s pleaded case, there is no evidence before the court that the defendant acted discriminatorily against the claimant, and the court makes no ruling on same.

Conclusion

[66] It is therefore ordered and declared as follows:

(1) The claimant’s claim is granted in part;
(2) The defendant in taking its decision to refuse the application by the claimant to be admitted as an individual member of the defendant did not tell him what matters it was considering adversely to him, failed to afford him an opportunity of a fair hearing on such matters, and thereby breached natural justice, and this rendered that decision unlawful, of no effect in law, null and void.
(3) The defendant shall consider properly according to law the application by the claimant to be admitted as an individual member of the defendant.
(4) Prescribed Costs to the claimant unless otherwise agreed.

Agnes Actie
High Court Judge

By the Court

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