[*70] 1985 July 9.

 

(DEMETRIOU, Ag. P.D.C.)

IN THE DISTRICT COURT OF NICOSIA

Stavros Syrimis,

Plaintiff,

v.

Vassos P. Vassilopoulos ,

in his capacity as Secretary of the

Cyprus Turf Club and a Representative

of the members and the Committee of Stewards,

Defendant.

(Action No. 86/79)

Natural Justice - Right to be heard - Domestic tribunal exercising disciplinary control over members of club - Statements of witnesses taken in plaintiff’s absence - The names of such witnesses were not disclosed to the plaintiff, who had never any opportunity to cross-examine him - Expulsion of plaintiff from club - Set aside for violation of the rules of natural justice.

Chr. Kitromilides, for the plaintiff.

H. Stavrakis, for the defendant.

JUDGMENT

The following judgment was delivered by:-

DEMETRIOU, Ag. P.D.C.:- The plaintiff was at the material time a breeder of horses and was the owner of the mare named Rakel. [*71]

The defendant is sued in his capacity as the Secretary of the Cyprus Turf Club.

On or about 6th June, 1978, the Cyprus Turf Club decided that the colt born by the said mare be struck out from their register and the plaintiff was found guilty of fraud and was expelled from the Club for a period of six months as from 6.6.78.

The plaintiff instituted the present proceedings alleging that the decision of the Cyprus Turf Club was taken in breach of the rules of natural justice and should be declared by the Court as null and void and of no legal effect. Although in the statement of claim a remedy for damages is included both counsel agree that at this stage the Court should not concern itself with damages.

When the case came up for hearing before this Court counsel produced by consent certain documents which were filed and marked as exhibits. They are the following:

Exh. 1 is a letter, dated 12.1.78, sent to the plaintiff by the defendant in which he was informed that the Turf Club had decided to investigate into the pedigree of the colt born by the mare Rakel on 1.5.77 and was asked to appear at a fixed time and place to give the necessary information and explanations. [*72]

Exn. 2 is the minutes of the Cyprus Turf Club together with the statements obtained regarding the matter complained of.

Exh.3 is a letter from the Cyprus Turf Club, dated 18.5.78, informing the plaintiff that on 6.6.78 the Committee of the Club would reach its decision and invited him to appear before them on the same day to hear their judgment.

Exh. 4 is an extract from the minutes of the meeting dated 6.6.78, in which the findings of the investigations and the decision reached are set out. It is stated in effect, that the Club has examined the statements obtained and has decided that the said colt be struck out from the register of the Club and that they found the plaintiff guilty of fraud, etc. In the minute they invite the plaintiff to plead in mitigation and the plaintiff’s objection to the decision is recorded.

The defendant in his defence denies the allegations of the plaintiff and alleges that the decision was an intra vires one and that no rules of natural justice have been violated because the plaintiff was afforded the opportunity to present his case to the Stewards on the 14th and 24th January, 1978. [*73]

In support of his claim the plaintiff gave evidence on oath and for the defendant a certain Nicos Ionides, Assistant Secretary of the Turf Club.

It is common ground that the Cyprus Turf Club is a domestic tribunal with disciplinary control over its members (see Halsbury’s Laws of England, 3rd ed., Vol. 9, para. 1349). One of its members is the plaintiff. In Halsbury’s Laws of England, 3rd ed., Vol. 15, para. 475 under the heading OTHER TRIBUNALS one reads the following :

“There are numerous quasi-judicial, administrative or domestic tribunals whose obligations, apart from compliance with the rules of natural justice, differ widely”.

It is also common ground that the Cyprus Turf Club is bound to observe the rules of natural justice in reaching a decision affecting the rights of its members. In Halsbury’s Laws of England, 3rd ed., Vol. 11, para. 122, under the heading “Natural Justice”, the following is noted:

“A power analogous to that of restraining by means of the orders of prohibition and certiorari any excess of jurisdiction by a person or body exercising judicial or quasi-judicial functions is the power to restrain, or to quash the decisions of, those persons or bodies if they fail to observe what have been called the rules of natural justice. [*74]

An order of prohibition may be granted to restrain and an order of certiorari may be granted to bring up and quash the decision of, a person or body exercising judicial or quasi-judicial functions if he or it fails in its duty to act in good faith and to listen fairly to both sides, and to give fair opportunity to the parties in the controversy adequately to present their case and to correct or contradict any relevant statement prejudicial to their view.

………………………………………………………………………………………..

Where, however, a tribunal, which has power to make such inquiry as it thinks fit, decides a case on a matter of fact discovered by the tribunal itself on inspecting the premises in question, it will be a breach of natural justice if it does not inform the parties and give them a chance of dealing, with it. If a tribunal receives from a third party a document relevant to the subject matter of the proceedings, it should give both parties an opportunity of commenting on it. A decision of an inferior tribunal will be quashed if the party against whom it is given was not given notice of the hearing”. [*75]

Where a domestic tribunal disregards any of the rules of natural justice, the Court interferes to protect the party aggrieved (see Halsbury’s Laws of England, 3rd ed., Vol. 9, para. 1352).

The question, therefore, which poses for determination is whether the plaintiff has proved that the decision reached by the Club on 6.6.78 should be declared null and void on the ground that the rules of natural justice have not been observed.

It is in evidence that a certain accusation was made against the plaintiff concerning the offspring of the mare Rakel. Following this accusation the Club decided to investigate the case and take steps according to the outcome of such investigation. The Club also decided to hold an inquiry and appointed a certain Costas Constantinides to obtain statements from a number of persons.

It should be noted at this stage that the name of the person who lodged the complaint was not disclosed by the Club to the plaintiff for safety reasons (see p.3 of Exh. 2). The plaintiff came to know of the name when the minutes were produced in this Court at the hearing.

It is the submission of Mr. Kitromilides, counsel for the plaintiff, that the Club obtained a statement from Georghios HjiPanteli and all the other statements [*76] in the absence of the plaintiff. It is also submitted that the plaintiff was asked to make a statement as regards the accusations without being served with copies of these statements previously obtained from other persons. It was finally submitted that the committee reached the decision finding the plaintiff guilty of fraud by basing the decision only on the statement they had obtained as explained hereinabove and that they merely called the plaintiff to ask him if he wanted to say anything in mitigation. All the above constitute violations of the rules of natural justice.

In the case of Charalambos Galatis v. Sofronios Savvides and Another (1966) 1 C.L.R. 87, which was an appeal to set aside the award of an arbitrator on the ground of misconduct, Josephides J. cited with approval the case of Mediterranean and Eastern Export Co. Ltd. v. Fortress Fabrics (Manchester) Ltd., (1948) 2 ALL E.R. 186 and quoted the following passage from the judgment of Lord Goddard:

“If an arbitrator has acted within the terms of his submission and has not violated any rules of what is so often called natural justice, the Court should be slow indeed to set aside his award”.

Josephides J., went on to say the following: [*77]

“It will be observed that one of the fundamental principles laid down by Lord Goddard is the observance of the rules of natural justice, that is to say, that a skilled arbitrator must not hear one party or his witnesses in the absence of the other party or his representative and that each party must be given an opportunity of presenting his case”.

As indicated hereinabove, it is common ground that the Cyprus Turf Club, acting as a domestic tribunal, struck out from its register the plaintiff’s colt born on 1.5.77 in accordance with Art. 22(1)(e) of its rules of racing.

In giving the history of his case the plaintiff referred to the way that his colt had been registered with the Turf Club and that after such registration the colt was expected to participate in particular races. In the application for the registration of the colt the plaintiff gave the name of the mother and after complying with the requirements he secured the registration of the colt.

The trouble started when the plaintiff attempted to sell the said colt together with two others. After filling up a form for the transfer of ownership to the purchaser, he took the colt to the stables of the Turf Club to be accused there that the actual [*78] offspring of Rakel, a thoroughbred, had died and that the plaintiff had substituted that dead colt with the one he registered, a countrybred.

On 12.1.78 the plaintiff received Exh. 1 asking him to call at the offices of the Club which he did. There, he was asked several questions and his answers were put down in writing which he signed. The questions were centred on the allegation that the colt had died. The plaintiff said that he was refused the name of the informer inspite of his requests. He also told the Court that he was never given the chance to cross-examine anyone giving evidence and the only thing that he did was to make a statement to the committee.

After a few days the plaintiff, according to his evidence, proceeded to the Club where the president of the Turf Club told him to choose between two alternatives, either agree to be expelled from the Club or pay a fine. The plaintiff there and then protested and said that there must have been a mistake. The plaintiff was told to leave whereupon he requested that the decision be given to him in writing. He wrote a letter and as a result he received the minutes of the decision (Exh. 4). Asked in cross-examination whether he gave his statement (Exh. 2) to defend his case, he replied in the negative and said that he merely answered [*79] questions. He also alleged that they did not tell him at any time what the charge was against him nor did they tell him the name of the person accusing him. They only told him that somebody had informed them in writing that the colt born by Rakel had died, an allegation which he denied. He stated further in cross-examination that when he came to know the charge he told them that he had witnesses to call and that he was denied the chance to call them. He added that when he made his statement he was not allowed to add anything to the answers he had given to the committee. Instead, he was told that they will examine the case.

A certain Nicos Ionides, the Assistant Secretary of the Turf Club, gave evidence for the defendants. He is the person in charge of the minutes and the accounts of the Club and was aware of the present case. When asked for the procedure followed in cases where there is a violation of their rules, the witness said that the stewards carry out an investigation. They reach a decision on the matter on which they are asked to decide, and then invite the person concerned to appear before the stewards and obtain a statement from the said person. This was the procedure followed in the case of the plaintiff and he referred to Exh. 1. He explained to the Court that when the complaint was received by the Club the committee appointed a sub-committee to investigate the charge that the plaintiff registered the [*80] colt as countrybred when in fact it was a thoroughbred. He explained the reasons, and they were never disputed, why this is not allowed under the rules of the Club. Each horse races according to the classification. The witness added that at the meeting of 20.12.77 the said sub-committee investigated the charge and after six sittings they reached a decision. At some stage the plaintiff appeared before them and made a statement. The sub-committee submitted its decision to the stewards of the Club on 6.4.78 who, in their turn, issued their judgment. When asked if the plaintiff was given the chance to put forward his story the witness said that he was not present and he did not know what happened.

In cross-examination Mr. Ionides said that the practice they follow when they investigate a charge is to give the chance to the accused person to hear the charge and cross-examine the witness and brief a lawyer if he so wishes. He did not know in the present case whether the committee informed the plaintiff of the person accusing him nor did he know whether the testimony against him was given in his presence because he was not present at the time. Having read the minutes, however, (Exh.2), the witness said that the testimony of the person charging the plaintiff was not taken in the presence of the plaintiff. [*81]

In his actual words the witness said: “Βλέποντας τα πρακτικά (Τεκ.2) μπορώ να πω ότι δεν φαίνεται να εδόθη κατάθεση του καταγγείλαντα στη παρουσία του ενάγοντα”.

He admitted later, that the correct procedure is to take evidence in the presence of the accused and allow him to call witnesses.

From the evidence adduced by both sides, I can safely say that the testimony of the witnesses during the investigation of the charge against the plaintiff was obtained in the absence of the plaintiff who did not have the chance to cross-examine them nor was he given a list of their names. The above are not seriously challenged by the defence. On the contrary it appears from page 2 of the written address of the defendant’s counsel made for the preliminary objection on 13.3.84 that the above are conceded by the defendants. The plaintiff, therefore, was found guilty in his absence and he was merely asked to plead in mitigation.

Bearing in mind all the evidence before me in the light of the above authorities, I find that the rules of natural justice have not been observed and that the decision of the Turf Club acting as a domestic tribunal should be annulled.

In the result the decision of the Turf Club to expel the plaintiff from the Club for six months and [*82] to strike out the plaintiff’s colt is null and void and of no effect whatsoever.

The defendants to pay the costs of this action which will be assessed by the Registrar unless agreed upon by both sides.

Judgment as per claim with costs.