THE decision of Hearing Officer, Mrs. Clarissa Reihl (Magistrate) whose cancellation order of 1988 against Neil Rafferty resulted in his filing a Constitutional Motion claiming that the Hearing Officer had not been validly appointed, and as such her appointment was unconstitutional and void.Among other things, the appellant said that the appointment ought to have been made by the Judicial Service Commission under article 199 (3) of the Constitution of Guyana, being an appointment to an office connected with the Courts of Guyana” or for which legal qualifications were required.

The Attorney-General was made the first respondent to the proceedings. The trial judge dismissed the motion and the appellant appealed to the Guyana Court of Appeal.
The Court of Appeal in dismissing the appeal held that (1) that although the Mining Act: Section 9 (a), in effect required any objection to jurisdiction to be raised at the hearing, such limitation on the grounds of appeal did not exclude the jurisdiction of the court in other proceedings.
(2) That since Mines Commission was not a department of the state, the State Liability and Proceedings Act did not require the Attorney-General to be a party to the proceedings; the Attorney-General having struck out the Constitutional Motion could not proceed against the second respondent alone because in challenging the mining claims he could not be said to have been exercising an executive function of a public nature nor could he be held responsible for any acts of the Geology and Mines Commission.
Neil Rafferty appealed to the Court of Appeal of Guyana (Civil Appeal 50 of 1992) against the decision of Justice Singh dismissing his application for constitutional redress. The Attorney-General and Orlando Adams were the respondents to the appeal. The facts are set out in the judgment of the court delivered by Chancellor Kenneth George.
Delivering the judgment of the court the Chancellor said: “The appellant and one John Mendes were the joint holders of claims numbered 44/21/77 to 44/24/77 inclusive in the Cuyuni mining district.
On February 6, 1986 the second respondent (Orlando Adams) challenged the continued validity of the claims under Regulation 29 of the Mining Regulations. His grounds of his challenge were:
(1) That the claims had remained unworked for a period of one year from August 1984 to August 1985; and (2) the boundary marks of the claims were not erected and marked in accordance with the Mining Regulations.
The appellant rejected the challenge and the resulting dispute between the parties eventually came in for hearing during March 1987 before Mrs. Reihl who was then, and at all material times, a magistrate. She had been appointed by the Commissioner of Geology and Mines by letter dated 1February 17, 1982 to be a Hearing Officer for all disputes arising under the Mining Regulations.
On April 29, 1988 Mrs. Reihl gave her decision. She upheld the challenge and under Regulation 93 ordered that the appellant’s claims be cancelled.
Some three years later on April 22, 1991 the appellant signed a motion seeking (inter alia) a declaration that the decision of Mrs. Rehil was unconstitutional and void , in that the hearing over which she presided was not a tribunal established by law as required by Article 144 (8) of the Constitution . He named the Attorney-General and the Challenger Orlando Adams as respondents.
In his affidavit in support of the motion the appellant recited the fact of Mrs. Rheil ‘s hearing went on to state that on the first day of that hearing Mr. Brotherson ( counsel on his behalf as well as Mr. Gibson on behalf of Mendes) had challenged the validity of her appointment to which she had responded that she had been appointed by the commissioner by letter.
The appellant added that on June 8, 1988 i. e. more than six weeks after the decision had been given, he had lodged an appeal .
This appeal had come up for hearing before Justice Claudette Singh, and the issue of the appointment of Mrs. Reihl was raised.
Evidence was received from both Mrs. Reihl and Mr. Gibson, after which the judge concluded that from the records before her the challenge to Mrs. Riehl’s appointment had not been raised at the trial.
Accordingly, she held that it could not later be raised on appeal.
The holding that the failure or omission to challenge the propriety of Mrs. Reihl’s appointment at the hearing of the dispute barred any such objection at the appeal stage may well have been based on the fact that by virtue of Section 73 of the Mining Act the practice and procedure of the summary Jurisdiction (Appeals) Act are made applicable to any appeal from the decision of a Hearing Officer.
Section 9 of the latter statute limits the grounds of appeal to those stated herein.
One of the stated grounds is that “the Magistrate’s Court had no jurisdiction in the matter” (Section 9 (a), but it is expressly provided that for any objection on that ground to succeed it must have been taken at some time during the progress of the trial.
It would seem, however, that the circumscription of this ground of appeal is no bar to other proceedings, such as certiorari being instituted to challenge any fundamental deficiency; in the court jurisdiction as being wholly outside its judicial province, or the validity of the appointment of the adjudicating functionary.
The trial judge dismissed the application as being misconceived and it is against that order that the appellant now appeals to this court.
After delving into several aspects of the case, the Chancellor pointed out that the appointment of a Hearing Officer is not a constitutional appointment and added:
“Therefore having failed to establish any link between the appointment of Mrs. Reihl and a breach of his right to a fair trial by an independent tribunal I hold that that not only the claim but also the procedure used is misconceived and the appeal must be dismissed with costs to the respondents to be taxed.”
Written By George Barclay