Court rules in the Carol Sooba/Royston King town clerk battle
Town Clerk (ag) Carol Sooba)
Town Clerk (ag) Carol Sooba)

IN his affidavit in answer, Royston King, to whom the Order of Rule nisi of Quo Warranto was directed, deposed that his attorney-at-law had informed him that in his application for a Writ of Certiorari against the Minister of Local Government, the court had stated that the applicant herein (Ms. Carol Ryan Sooba) could remain in office until an application for a writ of Quo Warranto against her was filed.

He deposed that on the very day that Sooba had filed her Notice of Motion herein, he had filed an application for an Order or Rule nisi of Quo Warranto to be issued against her.
His application was later considered by Justice Insanally, who granted an order or Rule nisi of Quo Warranto.

He further deposed that his attorney-at-law had also advised him that the legal effect of the decision of the court in his application for Certiorari against the Minister of Local Government, quashing Sooba’s appointment to the post of Town Clerk, coupled with the order or Rule nisi of Quo Warranto made by Justice Insanally against her was that the post of Town Clerk became vacant.

Consequently, the Mayor and City Council were empowered under the provisions of the Municipal and District Councils Act (particularly section 122 thereof) to appoint him to perform the functions of Town Clerk, and they had so done.

Section 122 of the Municipal and District Councils Act provides:
“A local Government officer may, at any time, resign his office by writing signed by him and delivered to the Mayor or the Chairman of the Council in which he is serving, and his resignation shall take effect upon the receipt thereof by the Mayor or Chairman, as the case may be.”

The court must say at once that it is unable to see the relevance or application of Section 122 to the facts of this case. Perhaps the respondent Royston King intended to refer to Section 120(1), having regard to the drift of the contents of his affidavit in answer.

The central issue in this case is whether the City Council had the legal authority to send the de facto Town Clerk (Carol Sooba) on administrative leave and to appoint Royston King to discharge the functions of that office. The answer to that question seems to lie in the contents of Section 120(1) of the Municipal and District Councils Act, Chapter 28:01 Section 129(1) which provides: “Notwithstanding Section 116, a council may, if there is a vacancy in any local government office, or if the holder or the person acting in that office is unable, for any reason, to perform the functions thereof; and if there is no local government officer authorised by law to perform those functions, appoint a Deputy to act temporarily in such office; and such deputy shall assume and perform those functions.”

Under Section 2 of the Act, “council” means, inter alia, “the City Council”. Thus, under Section 120 (1) of the Municipal and District Councils Act, the City Council of Georgetown in a local government office, but only where there is a vacancy in that office or when the holder or person acting in that office is unable to perform the functions thereof, and when there is no local government officer authorised by law to perform the functions thereof.

In the instant case, at the time when the City Council purported to appoint Royston King to perform the functions of Town Clerk, even though Carol Sooba was not the de jure holder of that office, she held that office de facto, and therefore there was no vacancy in that office. Even if Carol Sooba was then neither the de jure nor the de facto Town Clerk, the City Council could have appointed only a deputy Town Clerk to act temporarily and Carol Sooba, being the only substantive deputy Town Clerk, she was the only person who was eligible to be appointed to act temporarily as Town Clerk by the City Council.

In respect of the decision of the City Council to send the de facto Town Clerk, Carol Sooba, on administrative leave, the respondents have not referred the court to any provision of the Municipal and District Councils Act which empowers the City Council to send the Town Clerk, as an officer earning more than $18,000 per annum, on administrative leave. Having regard to Section 116 (1) of that Act, it does appear to the court that the legal power to send the Town Clerk on administrative leave does not lie in the City Council, but rather lies in the Local Government Service Commission. As mentioned in a previous related decision, that Commission has been statutorily established under Section 95 even though its members have never been appointed under Section 96.

But assuming that the City Council did have the power to make the decision whether the Town Clerk should be sent on administrative leave, the City Council could not have lawfully exercised that power simply to create an enabling state of affairs for the exercise of its own power to substitute a person to perform the duties of Town Clerk. To achieve such a power by such an artful device is an unlawful exercise of power in administrative law. For this reason also, the court holds that the City Council acted unlawfully in making the decision to send the de facto Town Clerk on administrative leave.
In any event, the sending of the de facto Town Clerk (the applicant) on administrative leave did not deprive her of her status of de facto Town Clerk. For the purpose of Section 120 (1), a distinction must be drawn between “unable” and “disable”. The sending of Carol Sooba on administrative leave did not “unable” her to perform the duties of Town Clerk, it could only have “disabled” her from so doing. At all material times, the applicant Carol Sooba was the de facto holder of the office of Town Clerk and was not “unable to” perform the functions of Town Clerk.

Therefore, the decision of the City Council to apply Section 120 (1) and to exercise thereunder the power to appoint anyone to perform the functions of Town Clerk was ultra vires, null and void, and of no legal effect.
In any event, the power of the City Council under Section 120 (1) is a power to appoint a deputy to perform the functions of the substantive office. Royston King was not a deputy Town Clerk. He was the Public Relations Officer of the City Council. He was therefore ineligible for appointment by the Council acting under Section 120 (1). His appointment thereunder by the Council was therefore ultra vires the City Council and also null and void.

Section 120(1) could not be used to replace Carol Sooba as the de facto Town Clerk with Royston King.

Even if one were to disregard the de facto status of Carol Sooba as Town Clerk, she nevertheless held the substantive post of Deputy Clerk. Therefore, in purporting to send Carol Sooba on administrative leave, the City Council was also sending the substantive Deputy Town Clerk on administrative leave – thereby pre-empting itself from acting under Section 120 (1) to appoint a deputy to perform the duties of Town Clerk.

As mentioned before, the court is of the view that City Council had no power to send the de facto Town Clerk on administrative leave.
The court wishes to point that, in a previous related decision, it never held that upon an application for a Writ of Quo Warranto, Carol Sooba’s de facto status as Town Clerk would come to an end. What the court stated was that de facto status would come to end upon the issue of such a Writ. Only an absolute (not a mere nisi) order can have such an effect.

It was also inaccurate for the respondent to have stated that the court had refused to grant an Order or Rule nisi of Quo Warranto against the applicant in Royston King’s application for the Writ to be issued. The court simply declined to hear the application at that juncture for reason of the pending appeal against the court’s decision in a previous application by him (King).

Disregarding the copious allegations of fact made by the applicant (most of which the court views as immaterial to the making of its decision), the court nevertheless sees it fit to order that the Orders or Rules nisi of Certiorari, Prohibition and Quo Warranto made on the 14th day of May, 2014 be made absolute.

While the Court sees no useful purpose in awarding costs to the applicant in the circumstances, the court wishes to point out that the need for a functioning Local Government Service Commission cannot be over-emphasised. An administrative vacuum creates room for administrative lawlessness and confusion.

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