Khan v Puma Olympians, ex parte Kumar [2004] FJHC 425; HBJ0001.2004L (11 June 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBJ0001 OF 2004L

BETWEEN:

MOHAMMED SHAMSUDIN SAHU KHAN AND BOB KUMAR
of Fiji Football Association
Respondents

AND:

PUMA OLYMPIANS
Interested Party

EX-PARTE:

RISHI KUMAR AND PRAVIN BALA
of Ba Football Association
Applicants

Counsel for the Applicants: Mr. A.K. Narayan
Counsel for the Respondents: Dr. M.S. Sahu Khan
Counsel for the Interested Party: Ms. S. Sahu Khan

Date of Hearing: 4 May 2004
Date of Judgment: 11 June 2004

JUDGMENT

Application

This is an application for Leave to Apply for a Judicial Review pursuant to Order 53 Rule 3(2) of the High Court Rules.

Whilst the application, as amended, pursuant to Orders made on 4 May 2004 seeks relief in the alternate that the proceedings be dealt with and continue as one begun by writ for relief in terms of the declarations and orders set out in paragraphs (c), (d), (e) and (f) of the application, the issue for the consideration of the court at this time is merely the application for Leave to Apply for Judicial Review.

Background

The applicants are the president and vice president of Ba Football Association and the respondents are the president and chief executive officer of the Fiji Football Association. The Interested Party, Puma Olympians, is a football team constituted under the constitution of the Fiji Football Association.

As part of the National Soccer League Board Fixtures for the 2003 season, the applicant hosted the interested party at Govind Park, Ba on 12 November 2003.

The applicant won the match, 1-0 and was declared the 2003 champions of the competition.

Following the game, match officials for the Interested Party lodged their protest alleging that the applicant had fielded a non-registered player and that that person was not a bona fide player of the competition.

The player complained of was Joeli Ranitu who it is alleged went under the nickname of “Tia”. This nickname, Tia, appeared on the applicant’s team list for the subject match.

The hearing of the protest lodged by the Interested Party took place on 22^nd November 2003. The protest was heard by the Board of the respondent, which comprised Dr. M.S. Sahu Khan, Bob Kumar (Chief Executive Officer) and Mohammed Yusuf, Ashok Balgovind, Hari Raj Naicker, Surendra Rama and Mohammed Ibrahim.

The protest was successful and the points applicable to the match were awarded to the Interested Party.

The applicants then sought to appeal the determination of the Board and lodged a Notice of Intention to Appeal to the Fiji Football Association Appeals Committee. That committee comprising Justice Jiten Singh, Vidhya Lakhan and Faizal Hanif heard the appeal on 14 January 2004. The applicant and the respondent were both represented before the Appeals Committee. The committee determined that it had no jurisdiction to hear the appeal by virtue of the provisions of Clause 18.2 of the National League Rules and Regulations and Clause 11 of the Appeal Committee Regulations

Clause 11 of the Appeals Committee Regulations states: -

“The committee is not empowered to entertain appeals against the decisions of the Association, Board of Control and the Council unless the Council or Executive Committee so directs.”

Neither the Council nor the Executive Committee apparently had directed the appeals committee to entertain the applicants’ appeal.

The Interested Party is not a team supported by a club, as is the applicant. The Interested Party is a team that is in fact supported by the respondent.

The Board of Control of Fiji Football Association in allowing the protest, appears to be based upon the contradictions in the evidence given to the Board at its hearing by the witnesses called on behalf of the applicant and the contradiction of the declarations that were filed by the applicant with the Board. Much could be said of the conduct of the representatives of the applicant at the Board Meeting as reported in the Ruling on the protest, however, that would appear to be not relevant at this time.

The applicant and the Interested Party are both members of the Fiji Football Association, which is itself a member of the Internationale Federation de Football Association (FIFA) and the Oceania Football Confederation (OFC).

It would seem to follow there from that the members of the Fiji Football Association, the applicant and the Interested Party are bound by the constitution and rules of the respondent which in turn is bound by the rules of FIFA.

The relationship between the parties would appeared to be one of a contract such contract being created when the clubs become members of the respondent and similarly the contract between the respondent and the FIFA when the respondent agreed to become a member of FIFA.

Leave to Apply for Judicial Review

Applications to the court for Judicial Review are governed by Order 53 of the High Court Rules. Order 53 Rule 3(1) provides: -

“No application for judicial review shall be made unless the leave of the court has been obtained in accordance with this rule.”

Lord Diplock in Inland Revenue Commissioners ex p. v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] A.C. 617 at 642 said: -

“The need for leave to start proceedings for remedies in public law is not new. It applied previously to applications for prerogative orders, though not to civil actions for injunctions or declarations. Its purpose is to prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived.”

The issues for consideration by the court in determining an application for leave for judicial review are: -

1. Does the applicant have sufficient interest in the application;
2. Is the decision sought to be reviewed, a decision of a private or public nature;
3. Are there alternative remedies available to the applicant.
   

Sufficient Interest in the Application

This is a requirement of Order 53 Rule 3(5).

The applicant is a member of the respondent and is the subject of the interested party’s protest to the respondent, which resulted in the Interested Party being awarded the points for the relevant game of football.

In the circumstances, it would seem without further that the applicant does indeed have a sufficient interest in the application.

Is it matter of a private or public nature?

“The prerogative remedies were not available to control the activities of bodies which derived their jurisdiction over individuals solely from contract. The clear dividing line lay between bodies set up by statute (and subsequently the prerogative) where certiorari was available, and those bodies set up or exercising jurisdiction by virtue of the agreement of the parties.” “Private or domestic tribunals have always been outside the scope of certiorari since their authority is derived solely from contract...” [Lord Parker CJ in R v Criminal Injuries Compensation Board, ex p. Lain [1967] 2 Q.B. 864 at 882]. Certiorari did not therefore lie against the decision of an arbitration body to whom the parties to an agreement, relating to an apprenticeship, had agreed to refer any disputes arising from that agreement. [R v National Joint Council for the Craft of Dental Technicians (Disputes Committee), ex p. Neate [1953] 1 Q.B. 704].

Decisions of private or domestic tribunals reached in the exercise of a contractual jurisdiction remain outside the ambit of judicial review. Applications for judicial review can only be made in respect of matters of public law. Tribunals who derive their jurisdiction over individuals solely from contract are still regarded as private bodies regulated by private not public law. In Law v National Greyhound Racing Club [1983] EWCA Civ 6; [1983] 1 W.L.R. 1302, the Court of Appeal held that a challenge to decision of the club, which was a company limited by guarantee, and whose sole jurisdiction over individuals derived from their agreement to be bound by the rules of the club, was a matter of private law which could be dealt with by originating summons, and was not a matter of public law suitable for judicial review. The Court of Appeal rejected the arguments that the subject-matter of the dispute – the alleged abuse of the discretion conferred on the club by the rules – or the public concern at the way that the club perform its regulatory functions injected a sufficient “public” element into the dispute to render it susceptible to judicial review.” – Judicial Remedies in Public Law 2 – 047.

This jurisdictional issue was again considered by the Court of Appeal in R v Disciplinary Committee of the Jockey Club, ex p. Aga Khan [1992] EWCA Civ 7; [1993] 2 All E.R. 853. In this instance, the Jockey Club controlled and regulated horse racing in Great Britain by virtue of the fact that all race meetings had to be licensed by the Jockey Club and run under the rules of racing and persons connected with racing had to be licensed by and registered with the Club. The applicant here was the head of a large religious sect and a major racehorse owner and breeder. As an owner wishing to race horses the applicant had to register with the Jockey Club and enter into a contractual relationship with the Club by which he expressly submitted to the Rules of Racing and acknowledged that he was governed by the disciplinary powers of the Club.

At page 873, Farquharson LJ said: -

“Nearly all sports are subject to a body of rules to which an entrant must subscribe. These are necessary, as already observed, for the control and integrity of the sport concerned. In such a large industry as racing has become, I would suspect that all those actively and honestly engaged in it welcome the control of licensing and discipline exerted by the Jockey Club.”

In line with the authorities cited, the decision sought to be reviewed is a decision of a private or domestic tribunal reached in the exercise of a contractual jurisdiction.

Are there alternative remedies available?

In R v Epping and Harlow General Commissioners, ex p. Goldstraw [1983] 3 All E.R. 257 at 262, Sir John Donaldson MR said: -

“But it is a cardinal principle that, save in the most exceptional circumstances, that jurisdiction will not be exercised where other remedies were available and have not been used.”

Byrne J. in State v Mohammed Shamsudin Sahu Khan and Jitendra Maharaj ex p. Iosevo Visaboto – Judicial Review Action No. 18 of 1991 of 4 May 1982 (unreported) held that relying upon Epping and Harlow General Commissioners, ex p. Goldstraw and other like authorities that it is essential that the applicant must exhaust all remedies open to him to enliven the right to seek judicial review.

As is said earlier, the applicant is a member of the respondent and is subject to the rules of the respondent.

Clause 19.1 of the National League Board Rules and Regulations provides: -

“Appeal procedure adopted shall be as that provided for appeals in the Constitution provided always all appeals shall be heard by the Appeals Committee of the Fiji Football Association and the decision of the Appeals Committee shall be final and binding and to remove all doubts there shall not be any further appeal from the decision of the Appeals Committee.”

Clause 17.13.1 of the Constitution and Rules of the Fiji Football Association states: -

“In accordance with Article 59 of the Statutes of FIFA, FIJI FA, nor any member nor any club nor affiliates of a member shall be entitled to refer any disputes of whatsoever kind or nature with FIJI FA or a member or a club or affiliates of a member to a Court of Law and all such disputes shall be submitted to an Arbitration and upon the appointment of an arbitrator the proceedings thereunder shall be in accordance with the Arbitration Rules approved by the Council and in default of such Rules in accordance with the Arbitration’s Act.”

Further Clause 17.3.2 states: -

“All members and/or its clubs and affiliates must strictly adhere to the provisions of Article 17.13.1 and to any decision of the Arbitration Tribunal or body.”

As stated earlier, the respondent is a member of the Oceania Football Confederation and Article 33.1 of the Statutes, Regulations Governing the Applications of the Statutes and Standing Orders of that body provides: -

“33.1 – National associations in membership with the Confederation, their clubs or members of club shall have no right to take before any court of justice disputes with the Confederation or any other association in membership with the Confederation, clubs or members of their clubs but may if they so wish submit any such disputes to an arbitration tribunal to be appointed by common consent.”

Similarly, the FIFA Statutes in Article 59 provides: -

“(1) FIFA shall create an option for recourse to the Court of Arbitration for Sport, an independent arbitration tribunal with headquarters in Lausanne (Switzerland), to resolve any disputes between FIFA, the Confederations, Members, Leagues, Clubs, Players, Officials and licensed match agents and players’ agents.

(2) The CAS Code of Sports-Related Arbitration governs the arbitration proceedings. With regard to substance, CAS applies the various regulations of FIFA or, if applicable, of the Confederations, Members, Leagues and clubs and, additionally, Swiss law.”

Article 60 then provides: -

“(1) Only CAS is empowered to deal with appeals against decisions and disciplinary sanctions of the last instance, after all previous stages of appeal available at FIFA, Confederation, Member or League Level have been exhausted. The appeal shall be made to CAS within 10 days of notification of the decision.”

It is clear that there are available avenues of appeal which have not been availed upon by the applicant.

The need for alternative remedies to have been exhausted to enable the applicant to avail itself of judicial review was considered by Jitoko J. in State v FIRCA & Silipa Tagicaki ex p. Barbara Malimali – Civil Action No. HBJ0002 of 2003 (unreported) 16 April 2003 where His Lordship applied R v Epping and Harlow General Commissioners, ex p. Goldstraw.

Conclusion

The application for judicial review must be refused. Whilst it is apparent that the applicant has a sufficient interest in the application, the matter is clearly one of a private and not a public nature. It is also clear that there are alternative remedies available, which have not been exercised by the applicant. But as Farquharson LJ said in R v Jockey Club, ex p. Aga Khan page 873: -

“In the present appeal there is no hardship to the applicant in his being denied judicial review. If his complaint that the disciplinary committee acted unfairly is well founded there is no reason why he should not proceed by writ seeking declaration and an injunction.”

In this instance, the applicant having amended its summons may, if they wish, proceed by alternate means.

Orders of the Court

1. Application for judicial review is refused.

JOHN CONNORS
JUDGE

AT LAUTOKA
11 JUNE 2004