PULL QUOTE: ‘King’s holding of the office of Town Clerk is “without lawful authority whatsoever’
ACTING Town Clerk, Carol Sooba, yesterday filed a Motion in the High Court, which was heard by acting Chief Justice Ian Chang, who issued eight orders to Mayor Hamilton Green and the City Council over several actions taken, including that of the appointment of Royston King as Town Clerk.The first Order, an Order or Rule Nisi of Certiorari, stipulates that Green must “quash” his decision to swear in Royston King to the office of Town Clerk, unless cause is shown on the grounds and reasons that the decision is unlawful, ultra vires, irrational, unreasonable, wholly in excess of jurisdiction, unreasonable, null, void and of no legal effect.

The second order, also an Order or Rule Nisi of Certiorari, directed to the Mayor and City Council of the City of Georgetown, called for the decision, penned by Green in a May 7, 2014 letter, to remove Sooba from her post be also quashed. The letter had stated that Sooba should, with immediate effect, no longer perform the functions of Town Clerk.

The third Order or Rule Nisi of Certiorari, to the Mayor and the City Council, addressed the “extraordinary statutory meeting” held on May 8, 2014. It said the decisions taken, in particular the decision to appoint King as Town Clerk, unless backed by grounds and reasons, are unlawful, ultra vires, irrational, unreasonable, wholly in excess of jurisdiction, unreasonable, null, void and of no legal effect.
The fourth Order or Rule Nisi of Certiorari called attention to another decision made at the May 8, 2014 statutory meeting, the decision to send Sooba on administrative leave, and ordered the Mayor and City Council to quash this decision unless cause is shown. Without stated grounds and reasons, the acting Chief Justice deemed the decision unlawful, ultra vires, irrational, unreasonable, wholly in excess of jurisdiction, unreasonable, null, void and of no legal effect.
The fifth, sixth and seventh orders were Orders or Rules Nisi of Prohibition, which addressed the provision in the first, third and fourth orders.
These three orders prohibit the Mayor and City Councillors from removing Sooba as Town Clerk; from being able to determine that she should proceed on administrative leave; and from being able to appoint Royston King as Town Clerk, unless grounds and reasons are provided to support why such actions cannot be prohibited or prevented.
The eighth and final order, an Order or Rule Nisi of quo warranto, was directed to the Office of Town Clerk, and restrains, as well as prohibits, Royston King from “usurping” Sooba’s office, from being able to enter upon her office and from discharging or further discharging any of the powers, functions and duties related to her office.
The order added that King’s holding of the office of Town Clerk is “without lawful authority whatsoever, appointment and or in furtherance of the elections and or appointment” by Hamilton Green. Any action contrary, without a statement of grounds and reasons, is unlawful, ultra vires, irrational, unreasonable, wholly in excess of jurisdiction, unreasonable, null, void and of no legal effect.
Sooba’s application was made by her Attorney-at-Law, Roysdale Forde, and the matter has been adjourned to May 22, 2014.

LEGALITY OF SOOBA’S POST
The Chief Justice earlier this month ruled essentially that the constitutional existence of a Local Government Commission translates to mean that no Minister is authorized to appoint a Town Clerk, as that power is reposed with the Commission. However, he conceded that his ruling does not affect Sooba acting in that post, until the Local Government Commission is established.

The Chief Justice was delivering his decision in the High Court in relation to an application from Public Relations Officer Royston King for Writs or Orders of Certiorari, calling on Minister of Local Government Ganga Persaud to show cause why his decision to appoint Carol Sooba as Town Clerk in preference to other candidates who were more qualified for the job, should not be quashed.
In coming to his decision the Chief Justice noted that under Section 95 of the Municipal and District Councils Act, Chapter 28:01 provides:
“(1) There shall be a Local Government Service Commission consisting of a chairman, a deputy chairman and three other members; and the Commission shall have such functions as are vested in it by this Act or any other law.
“(2) In the exercise of its functions, the Commission shall not be subject to the direction or control of any authority.”
Section 96 provides: the members of the Commission shall be appointed by the Prime Minister from amongst such persons as appear to him to be suitably qualified and the Prime Minister shall appoint one of its number to be chairman and another to be deputy chairman.
According to the Chief Justice, it is clear that Section 95 establishes as a statutory body a Local Government Service Commission. Since the establishment of the said Commission must necessarily precede the appointment of its members, the fact that the appointment to the Commission has not been made by the Prime Minister (now the President) under Section 96 does not at all mean that there is not in legal existence a Local Government Service Commission.
Since the office of Town Clerk is a local government office the emoluments of which exceed $18,000 per annum, it is the Local Government Service Commission which has the power to appoint a person to that office. Once Section 95 has come into operation the power of the Minister to appoint any Local Government Officer to any office, the emoluments of which exceed $18, 000 per annum, immediately ceases since such a power immediately vests in the said Commission.
Looking at the Act on the Basis of the 1973 and 2011 Revised Editions of Laws of Guyana without regard to the words in brackets appended to the long title to the Act, the origin of which is unknown, the Court makes the finding that Section 95 of the Act was in operation and therefore the Local Government Service Commission was in existence at the time the Minister purported to appoint Carol Sooba as Town Clerk.
Therefore, under Section 326 (4), the Minister’s power to perform the functions mentioned in section 116 (1) had ended at that time.
It is the finding of this court that the Minister acted ultra vires the provisions of the Municipal and District Council’s Act, Chapter 28:01 and his decision to appoint Carol Sooba as Town Clerk must be quashed. However, this does not prevent Carol Sooba from continuing to perform the functions of Town Clerk as the de facto Town Clerk.
It needs a direct challenge by quo warranto to the authority of Carol Sooba to bring her de facto authority to an end.
The decision of the Minister of Local Government appointing Carol Sooba as Town Clerk for the Municipality of Georgetown is quashed by Certiorari as being ultra vires the provisions of the Municipal and District Council Act Chapter 28:01, Order or Rule Nisi of Certiorari made on the December 13, 2013, made absolute.
Written By Vanessa Narine