CCJ to determine whether Jainarayan Singh Prohibition Order was valid

SIR Fenton Ramsahoye, S.C. of Trinidad and Tobago and attorney-at-law Ms Jamela Ali of Guyana have been granted leave by the Caribbean Court of Justice to appear before the CCJ in relation to an appeal that affected their client, Dr. Narine Datt Sooknanan.

NAME ERASED
The appeal had its genesis on the 13th October, 2003 when the medical doctor performed a surgical operation at the New Amsterdam Hospital and both mother and baby died. Following a complaint from the mother of the deceased that death was due to gross negligence on the part of some staff members at the hospital, then Chairman of the Medical Council, Dr. M. Y. Bacchus, since deceased, informed the Applicant that his name was erased from the Register of Medical Practitioners.
On the 25th August 2006, a Motion was made to the High Court to quash the decision to erase his name and for further relief.
An Order Nisi granting prerogative remedies was made by the High Court (Roy J.) on the 29th August, 2006. The Order was made absolute by consent by the High Court (Roy J.) on the 13th November 2006.
Following the passing of correspondence between the lawyers and the Medical Council which showed a determination to proceed with a rehearing, the Applicant instructed that proceedings be instituted in the High Court to prohibit the proposed rehearing.
Proceedings were duly commenced on the 3rd August 2007 in the High Court.
An Order Nisi to prevent the rehearing was issued by the High Court (Rishi Persaud J.) on he 3rd August 2007 in the High Court.
An Order Nisi to prevent the rehearing was issued by the High Court (Rishi Persaud) on the 3rd August 2007. The grounds of the application were that the repeat hearing was an abuse of the legal process and that the order absolute made by the High Court with consent made in the matter res judicata since the decision which was granted was a final decision which concluded the matter of the complaint against the Applicant. The Order Nisi was made absolute by the High Court (Jainarayan Singh J.) on the 30th January 2008.
The Medical Council instituted an appeal against the order made on the 30th January, 2008 by Notice of Appeal dated 12th of March 2008. The Notice was amended on the 29th October 2013 by presenting an additional ground which was that prerogative writ proceedings were not available to the Applicant.
On the 11th October, 2006, a Civil Action No. 141 of 2006 Berbice was filed in the High Court against the Applicant claiming damages for negligence arising out of the same matter. The action was heard and determined by the High Court (Insanally J) which dismissed it with costs on the 19th September 2013.
A decision allowing the appeal against the order made by the High Court was made by the Court of Appeal, (Singh, Chancellor, ag., Roy J. A. and Reynolds, additional Judge) on the 31st July 2014, when the order made by the High Court on the 30th January was set aside.

The Applicant doctor had applied and was granted special leave to appeal against the judgment and order of the Guyana Court of Appeal dated 31st July 2014 allowing an appeal by the Respondent, (Medical Council of Guyana) against a judgment by the High Court (Jainarayan Singh J.) dated 30th January 2008 granting an Order of Prohibition directed to the Respondent preventing it from conducting a re-hearing of disciplinary proceedings in a matter in which the Respondent on the 4th August 2006 erased the name of the Applicant from the Register of Medical Practitioners and the High Court,(Roy J) determined in proceedings to impugn the erasure quashed the decision to erase by order dated 13th November 2006 and prohibited the doing or causing to be done anything in furtherance of the quashed decision dated 4th August 2006.”
The following are the grounds of appeal against the judgment of the Court of Appeal.
1. (Jainarayan Singh J) was entitled to grant an Order of Prohibition to prevent a rehearing of the same complaint which had been finally determined in disciplinary proceedings in which the Respondent decided on the 4th August 2006 to erase the name of the Applicant decision of the 4th August 2006 from the Register for the following, among other reasons.
2. The decision of the 4th August 2006 concluded the disciplinary proceedings taken by the Respondent against the Applicant on a complaint of professional misconduct;
3. The decision to erase was a final determination;
4. The Respondent had no power nor authority under Statute or otherwise to enter upon a disciplinary proceeding to rehear the same complaint on the same facts which led to its decision to erase made on the 4th August 2006 by the Respondent.
5. The decision to re-hear the complaint was a dishonorable attempt to circumvent the decision of the High Court (Roy J. ) dated 13th November 2006 whereby the erasure was quashed and proceedings in pursuance of the quashed decision were prohibited. The decision to rehear was in the premises a malicious abuse of legal process;
6. The decision on the complaint against the Applicant was res judicata by reason of the erasure of the 4th of August 2006 in a disciplinary proceeding under the Medical Practitioners Act, Chapter 32:02, a bar to a further or other disciplinary proceedings on the same complaint and the same facts having been created thereby.
7. The Court of Appeal erred in allowing the appeal on the basis that res judicata did not apply to the decision of the Respondent and that the Respondent cannot be fettered in its statutory functions so as to prevent a rehearing of the complaint.
8. The decision of the Court of Appeal was erroneous in law and oppressive to the Applicant.

(By George Barclay)