State v Mohammed Khan [1992] FJLawRp 4; [1992] 38 FLR 83 (4 May 1992)

[1992] 38 FLR 83

HIGH COURT OF FIJI

Revisional Jurisdiction

THE STATE

v

1. MOHAMMED SHAMSUDIN SAHU KHAN
2. JITENDRA MAHARAJ

ex parte
IOSEVO VISABOTO

Byrne J

4 May 1992

Judicial review- whether certiorari available to quash a decision of the disciplinary committee of a sporting body.

The Applicant was a footballer who was disciplined by the Fiji Football Association and by FIFA following an on-field incident. The High Court HELD: (i) the Applicant not having availed himself of his alternative remedy namely his right of appeal to FIFA and (ii) the public law element not having been satisfied Judicial Review would be refused.

Cases cited

Asmat Ali v Mohammed Jalil and Native Land Trust Board, Civil Appeal No. 111 of 1985
Charles James Work and Others v Manikam Pillay and Others, Lautoka Action No. 319 of 1981
Law v National Greyhound Racing Club [1983] 3 All ER 303
R. v Battle Justices, ex parte Shepherd and Another (1983) Criminal LR 550;

R. v Chief Constable of Merseyside Police, ex parte Calveley, [1986] 1 All ER 257
R. v Epping and Harlow General Commissioners, ex parte Goldstraw [1983] 3 All ER 257

Motion for judicial review in the High Court.

V. Mishra for the Applicant
Dr. M. S Sahu Khan for the Respondents

Byrne J:

This is an application for Judicial Review by way of Certiorari following leave granted by Jayaratne J. on the 14^th of June 1991. The Applicant was at all relevant times an officer of the Fiji Police Force and a member of the Flying Arrow's Soccer Club which is an affiliate of the Ba Football Association. The Ba Football Association is in turn a member of the Fiji Football Association (hereinafter called FFA), which in its turn is affiliated to the world soccer body known as Federation Internationale de Football Association, (hereinafter called FIFA). The Respondents are respectively the President and Secretary of Fiji Football Association.

The decision sought to be quashed is that of the Fiji Football Association of the 4th of June 1991 which suspended the Applicant from playing soccer at all levels namely club, district and national for the whole of the 1991 season. This followed an incident in an Under 23 Olympic Play-off Match at Olympic Park in Melbourne, Australia in which the Applicant punched an Australian opponent and as a result was ordered off the field of play by the referee of the match. It is not disputed by the Applicant that the incident occurred in a preliminary match of the Olympic Tournament and it appears that it resulted in some adverse publicity for Fiji soccer.

Following the incident the Applicant apparently returned to Fiji and on or about the 4^th of June 1991 he received a letter from the Fiji Football Association informing him that the Executive Committee of FFA had met on the 2^nd of June and dealt with his case of dismissal from the field of play in Melbourne. The letter informed the Applicant that he had been accordingly suspended from playing soccer at all levels for the whole of 1991 as stated previously.

The Applicant complains in one of the affidavits he has sworn in these proceedings that the decision of FFA was made without giving him any opportunity to be heard or to be represented. Indeed he goes further and claims that he punched the Australian player as a result of an instruction from the coach of his team. It is unnecessary for me to consider this allegation which is irrelevant to the issues in this review namely whether the FFA committed any error of jurisdiction in suspending the Applicant or, as submitted by the Respondents, whether the suspension in any event is subject to Judicial Review.

The matter however did not end there because on the 22nd of June 1991, the First Respondent, Dr. M.S. Sahu Khan was notified of the decision of the FIFA Disciplinary Committee made on the 21st of June imposing the same penalty on the Applicant as was imposed by the Fiji Football Association. It is uncontested that immediately the First Respondent received this notification he telephoned Mr. Ramesh Prakash of the Applicant's solicitors informing Mr. Prakash of the FIFA decision and advising Mr. Prakash that the Applicant had a right of appeal against that decision since his suspension exceeded three matches. The First Respondent enclosed a photocopy of the relevant appeal provision for immediate action by Mr. Prakash and pointed out to him that the FIFA decision took precedence over the Fiji Football Association decision and that under the FIFA Constitution everyone affiliated to FIFA was bound to honour that decision.

The Applicant claims that as a result of his suspension he believed that his soccer career would be adversely affected as it was imperative to the furtherance of his soccer career to participate in all major soccer tournaments. Immediately after the suspension of the Applicant by FFA he received a letter from his local Football Association, Ba Football Association dated the 8^th of June 1991 stating that it had been informed by the Fiji Football Association that the Applicant had been dismissed from the field of play in Melbourne and that the Football Association intended to conduct an inquiry into the matter on the 19^th of June 1991 when the Applicant was requested to attend with any witnesses he might wish to call.

Two affidavits by Arun Chandra Singh, a businessman of Ba, have been sworn and filed on behalf of the Applicant. Mr. Singh is the Secretary of the Ba Football Association and he says that he did not know nor had he ever received any prescribed procedure of the Disciplinary Committee under the FFA Constitution. He says however, that in the past whenever any person was subjected to disciplinary proceedings he was properly charged, notified of a hearing date and given an opportunity to be heard at the actual hearing.

He also deposes that in March 1991 a player named Ravuama Madigi was charged under Article 14 of the Fiji Football Association Constitution on a charge of striking an opponent in a local match, and was fined $25.00 and D suspended for one match by the FFA. It is therefore claimed on behalf of the Applicant that he was dealt with unnecessarily severely.

The Applicant relies partly on Article 14.2 of what he claims to be the Constitution of the Fiji Football Association which reads:

"In cases of misconduct by any club, player or official or referee while travelling or otherwise an enquiry shall be held by the affiliated Association directly concerned within fourteen days from the date when such misconduct was brought under the notice of the Association concerned. Failure to do so will render that Association liable for disciplinary action by this Association."

The Respondent however contends that at the time of the Applicant's suspension that Constitution was no longer in force, having been superseded by a new Constitution and Rules which carne into effect in October 1990 and that the disciplinary procedures under the new Constitution are different from those of the old Constitution. One of the objectives of the Fiji Football Association under the new Constitution is stated in Clause 2.12 as "to implement the objectives and decisions of FIFA". Consequently it is said every member of FIFA and all affiliates and clubs and players including the applicant are bound by any decisions made by FIFA. According to the Respondents the Fiji Football Association is responsible for the actions of its delegation in a preliminary match under the Olympic Tournament Rules.

Under Article 11 of the Olympic Tournament Rules the decisions of the Disciplinary Committee of FIFA are final except that in the Final Competition the Committee can order personal hearings. Article 11 also provides that no appeal lies from a decision of the Committee where the penalty imposed is a caution, censure or fine, of up to five thousand Swiss francs (Sfr. 5,000) or suspension of up to three matches of players, referees or officials in connection with any match incidents.

Article 12 of the Tournament Rules provides for appeals from the decisions of the Disciplinary Committee and states in sub-rule 3 that to be accepted, an appeal must be lodged within a period of five days following the decision concerned.
The Respondents also say that paragraph 16.21 of the new Constitution of the Fiji Football Association provides as follows:

"In accordance with Article 57 of the Statutes of FIFA, Fiji F.A. nor any member nor any club or affiliates of a member shall be entitled to refer any disputes of whatsoever kind or nature with Fiji F.A. 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 in accordance with the Arbitration Act.

All members and/or its clubs and affiliates must strictly adhere to the provisions of Article 16.21 and to any decision of the Arbitration Tribunal or body."

The Respondents say that by virtue of its membership of FIFA and the Fiji Football Association it is bound by the provisions I have just enumerated.

In addition Article 57 of the FIFA Constitution provides in part:

1. National Associations, clubs or club members shall not be permitted to refer disputes with the Federation or other Associations, clubs or club members to a court of law and they shall agree to submit each one of such disputes to an arbitration tribunal appointed by common consent.

2. The National Associations must, in order to give effect to the aforegoing, insert a clause in their statutes by which their clubs and members shall not be permitted to take a dispute to courts of law but shall be required to submit any disagreement to the jurisdiction of the Association or to an arbitration tribunal."

The Respondents therefore submit that as a result of the new Constitution of the FFA which the Applicant and the Ba Football Association must be deemed to have accepted this court has no jurisdiction to entertain the present application.

I should also add that Clause 16.20 of the new FFA Constitution provides that the provisions of that Constitution will prevail over those of the Constitution of any member association where there is any conflict or inconsistency.

I now come to the submissions which have been made to me by the parties.

The Applicant first points out that the courts in common law countries have been most sceptical of exclusionary provisions and when satisfied that a tribunal or decision-making body has acted contrary to the principles of natural justice or has in any other way exceeded its jurisdiction by any form of Wednesbury unreasonableness, have set aside such decisions. One such local example it is said was the decision of the Court of Appeal in Asmat All v. Mohammed Jalil and Native Land Trust Board, Civil Appeal No. 111 of 1985 delivered on the 23rd of July 1986. It is said the FFA exceeded its jurisdiction in the present case by not giving the Applicant any hearing before imposing the penalty.

Similarly the Applicant relies on the remarks of Dyke J. in Charles James Work and Others and Manikam Pillay and Others, Action No. 319 of 1981 in the then Supreme Court at Lautoka where His Lordship remarked at page 5 of his decision given on the 9th of June 1983 in a case also involving a soccer match that:

"The person against whom proceedings are taken should be left in no doubt of the allegations or accusations against him, and he must at least be given an opportunity of presenting his own side of the story."

So far, therefore the Applicant can derive some assistance from this case but his counsel fails to mention that in the paragraph following the words I have just quoted His Lordship also said this:

"However, that is not the end of the matter. Even when good cause is shown the Court will not necessarily interfere, unless it is also shown that the applicants have exhausted all other remedies open to them."

In their reply to the Applicant the Respondents referred to a number of cases starting with the latter remarks of Dyke J. These include the following:

(i) R. v. Battle Justices, ex pane Shepherd and Another (1983) Criminal LR 550;

(ii) R. v Epping and Harlow General Commissioners. ex parte Goldstraw [1983] 3 All ER 257 at 262; and

(iii) R v. Chief Constable of Merseyside Police, ex parte Calveley, [1986] 1 All ER 257.

Thus in R. v. Battle Justices, ex parte Shepherd and Another, the QB Divisional Court refused an application for an order of Certiorari quashing a compensation order made by Justices of Peace on the ground that they had not exhausted the procedure available to them of first appealing to the Crown Court.

Similarly in R. v. Epping and Harlow General Commissioners, ex part Goldstraw in which the Applicant sought Judicial Review of assessments of the Income Tax Commissioners the application was refused on the ground that the Applicant had not exhausted the other remedies which were available to him. Lord Donaldson MR. said at page 262:

"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."

In Calveley's case (supra) he repeated those words when in fact granting Judicial Review to Police Officers who had been unfairly dismissed because Lord Donaldson and the two other members of the court, May LJ. and Glidewell LJ. held that on the particular facts exceptional circumstances existed.

In the Sixth Edition of his Administrative Law at pages 714 to 716 Professor Wade criticizes these dicta and says that they reflect a novel attitude, which does not appear to be based on authority but may be due to the increasing pressure of applications for Judicial Review, which are now so numerous. I remark here in passing that this was true also of Fiji until the recent amendment to Order 53 of the High Court Rules since which the flow of applications for Judicial Review has noticeably slowed.

Professor Wade however admits that these are formidable dicta but that in reality the Courts are better than their word. When genuine grounds for Judicial Review are alleged, it is the refusal rather than the grant of review which is the exceptional course.

The author also concedes that in certain classes of cases, such as tax cases and employment cases, for which specialised tribunals exist, the Court may reasonably hold that recourse to the tribunal is the normal remedy.

Applying the above dicta, and if necessary the remarks of Professor Wade to the present case, I am firmly of the view that this application for Judicial Review should be dismissed. I am satisfied that the Applicant did not exhaust all the remedies which were available to him. Despite being given an opportunity to appeal against the decisions of the Fiji Football Association he declined to do so. I am also not satisfied that in any event the question raised here involves the public interest, a pre-requisite to any application for Judicial Review. It was said by Lawton LJ. in Law v. National Greyhound Racing Club [1983] 3 All ER at p.303 that there could be cases, of which Law was one, in which there was no public element in the jurisdiction of a tribunal although the exercise of its jurisdiction could have consequences affecting the public.

In my judgment the Applicant and his local Football Association were bound by the new Constitution of the Fiji Football Association and in turn that of FIFA. That Constitution in its terms prohibited recourse to courts of law. It is possible that such a clause might be considered not binding on the Applicant if it was subsequently proved that the Appeals Committee acted contrary to the recognised principles of administrative law; Judicial Review might then be possible. However it is clear to me that for reasons which are not apparent the Applicant failed to exhaust all the remedies which were open to him. I am not satisfied he would have suffered any injustice by appealing to FIFA instead of having recourse to this Court. For these reasons the application for Judicial Review is refused. I order the Applicant to pay the Respondents' costs.

(Motion dismissed.)