MP for Fyzabad Chandresh Sharma during a Labour Day march.

Guardian file photo

Law Report by Mark James Morgan,

Attorney-at-Law

Court of Appeal

Civil Appeal 51 of 2005.

The Ombudsman & the Freedom of Information Act.

Chandradesh Sharma v The Integrity Commission.

Before Kangaloo, Archie and Mendonca JJA.

Judgment delivered April 7, 2006.

Mr Sharma, who is the MP for Fyzabad, applied to the Commission under the Freedom of Information Act for a list of those persons who were required to file declarations under the Integrity in Public Life Act, 2000, who had not done so and who had been given an extension of time by the Commission. The Commission refused to grant the request.

Following this refusal Mr Sharma applied to and was granted judicial review of the Commission’s decision by Jamadar J (see Business Guardian May 26, 2005 for report).

However the High Court having observed that the Act made provision for review by the ombudsman of the Commission’s actions, held that this was an alternative form of redress that should have been pursued by Mr Sharma before making his judicial review application and so refused to make an order for costs in his favour.

Mr. Sharma appealed.

Mendonca JA (with whom Kangaloo and Archie JJA agreed) allowed the appeal, stating as follows:

n that in coming to his determination as to the alternative remedy (and therefore Mr Sharma’s entitlement to costs), the judge should have satisfied himself that in the circumstances it would have been reasonable for the ombudsman to have exercised his discretion to embark on the complaint.

n that before embarking on any investigation, the ombudsman would have at least to be satisfied that Mr Sharma had no remedy in court or if he had, it would not be reasonable in the particulars circumstances to expect him to pursue it.

n That since the Commission’s refusal to supply the requested information was based on its interpretation of a provision of the Act and so was a question of statutory interpretation, there was no basis on which the ombudsman could have been reasonably satisfied that Mr Sharma did not have a remedy in court or that it was not reasonable to expect him to pursue it.

n That the only appropriate remedy would have been for Mr Sharma to pursue the matter in the courts.

n In the circumstances therefore, the reference to the ombudsman did not provide an alternative procedure to judicial review and accordingly the judge was wrong to deprive Mr Sharma of his costs.

Having allowed Mr Sharma’s appeal, the Court of Appeal ordered that the State to pay Mr Sharma’s costs both of the appeal and the judicial review proceedings before the High Court.Comment: The decision of the Court of Appeal is not absolute and there may be circumstances in which an applicant who is dissatisfied with a decision of the Integrity Commission will still have to refer the complaint to the ombudsman before having recourse to the court. The safest course would therefore be to refer a complaint to the ombudsman for a ruling as to whether she would be prepared to investigate the complaint and making the application to the High Court for judicial review only if the ombudsman declines to investigate the complaint.