State v Registrar of the Sugar Industry, Ex parte Prasad [1992] FJHC 57; Hbj0003d.1992s (13 November 1992)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

JUDICIAL REVIEW NO. 3 OF 1992

STATE

v.

THE REGISTRAR OF THE SUGAR INDUSTRY
TRIBUNAL & 2 OTHERS

ex-parte RAM PRASAD and Another

Mr. H.M. Patel for the Applicant
Mr. J. Flower for the Registrar of the Sugar Industry Tribunal

RULING

This is an inter partes application for leave to issue an application for judicial review against:

"... the ruling or advice of the Registrar of the Sugar Industry Tribunal given under Section 79(1) of the Sugar Industry Act 1984 (as amended) and duly implemented by the Chief Executive of the Sugar Cane Growers Council ..."

It is necessary to briefly set-out the background of the action that gave rise to the disputed 'ruling'. In or about March 1992 the Sugar Cane Growers Council (hereafter referred to as 'the Council') was to hold elections for councillors to 'the Council' from nominations submitted by registered growers. The applicant who with his brother is a jointly registered grower on a farm in the Drasa Sector of the Lautoka District Mill Area lodged his nomination with the 'Returning Officer' seeking to contest 'the Council' elections as a candidate for the Drasa Sector.

Suffice it for present purpose to say that the applicant's nomination was rejected on the basis of advice received from the Sugar Industry Tribunal (hereafter referred to as 'the Tribunal') that his nomination did not comply with the mandatory requirements of Section 79(1) of the Sugar Industry Act Cap.206 (as amended).

It is evident from the Sugar Cane Growers Council Electoral Regulations 1988 (hereafter referred to as 'the Electoral Regulations') that the Chief Executive of 'the Council' is the officer with over-all responsibility for the conduct of elections of councillors to 'the Council'.

It is equally evident from Regulation 12 of 'the Electoral Regulations' that a person who "... is not a registered grower in (a) sector is disqualified from membership of the Council as a representative of the sector", and a "registered grower" means a grower who is registered under Part VII of the Sugar Industry Act (Cap.206).

In this latter regard and more particularly in the present context, Section 79(1) of the Sugar Industry Act (As repealed and substituted by Section 12 of the Sugar Industry (Amendment No.2) Decree 1988) provides:

"(1) If a person registered as a registered grower in respect of a farm is not a single individual, the organisation, body or persons so registered shall, in writing addressed to the Registrar of the Tribunal, nominate a person who shall be deemed for the purposes of Part IV (the Sugar Cane Grower's Council) and Part V (Mill Area Committees) to be the registered grower in respect of that farm."

Clearly if a farm is registered in the names of more than one person (such as in the applicant's case) then in order to qualify as the 'registered grower' for the farm and therefore eligible for nomination as a candidate in 'the Council' elections, the name of the nominee (in this case the applicant) must be submitted in writing to the Registrar of the Sugar Industry Tribunal (hereafter referred to as 'the Registrar') by the persons who are registered on the farm (in this instance both the applicant and his brother).

In the applicant's case his nomination was objected to in writing on the dual ground:

"... that he is not a single individual registered on Farm No. 14022 nor has he addressed the Registrar of the Sugar Industry Tribunal in writing as clearly stated in Clause 79(1) of the Sugar Industry Act of 1984."

Regulation 20 of 'the Electoral Regulations' directs that:

"20. The Returning Officer shall consider any objections to the nomination of a candidate and rule thereon."

Clearly it is the 'Returning Officer' who is charged with the primary responsibility and duty to rule on any objections to nominations.

In doing so however there is in my view nothing to stop or prevent him from seeking the assistance of the Chief Executive of 'the Council' who is his immediate appointing authority and/or in view of the 'legal nature' of the objection, perhaps someone trained in the law of whom no more suitable person can be found in the context of the Sugar Industry than 'the Tribunal' itself.

Furthermore whether or not he accepts and acts on that advice is a matter entirely for the 'Returning Officer' to decide.

It is common ground that in this instance the advice and assistance of 'the Tribunal' was sought on the objection and when tendered was unfavourable to the applicant.

In light of the above I am firmly of the view that it is factually and legally incorrect to say that 'the Registrar' tendered the advice or rendered the ruling or made the decision disqualifying the applicant from standing in the Council elections. He was merely the 'conduit' through which the advice of 'the Tribunal' was appropriately sought and given.

In my considered view the application for an order of certiorari as presently framed is misconceived, cannot possibly succeed and leave is accordingly refused in that regard.

Then the applicant also seeks 2 declarations based on an "open" letter dated 24.2.92 signed by his brother Ram Jas the other jointly-registered grower of the farm and which was allegedly submitted together with the applicant's 'nomination form' to the 'Returning Officer' and which purports to authorise the applicant "... to stand as a candidate ... in the forthcoming Sugar Cane Growers' Council election".

In respect of this letter too the advice of 'the Tribunal' was sought and again was unfavourable to the applicant.

I accept at once that Section 79(1) of the Sugar Industry Act (Cap. 206) provides no particular 'form' by which a 'nomination' may be made under the Section but it does in very clear, and unequivocal terms direct that "... persons so registered shall, in writing addressed to the Registrar of the Tribunal, nominate ...".

Clearly then whilst the "open" letter of Ram Jas dated 24.2.92 does satisfy the requirement that the nomination be "in writing", it fails to meet the other equally mandatory requirements of the Section, such as -

(a) that the nomination be a joint submission (implicit in the phrase - 'persons so registered ... shall nominate') and

(b) that the nomination be 'addressed to the Registrar of the Tribunal'.

In similar vein the applicant's 'nomination form' submitted to the 'Returning Officer' for 'the Council' elections and forming annexure 'A' to his affidavit must also be considered 'defective'.

I have considered whether the Section might be read as merely 'directory' and have concluded otherwise. The Section is clearly intended to overcome the obvious 'mischief' of having more than one nominee from any single farm eligible to stand for Council elections.

Furthermore, so important is the 'nomination' that any subsequent alteration in the 'nomination' has the rather drastic effect, in the event of the earlier nominee being elected to 'the Council', of forcing his resignation [viz. Sections 79(3) and (4)].

In the circumstances neither declaration sought by the applicant can be granted being based as they are upon documents that do not fulfil all the mandatory requirements of Section 79(1) of the Sugar Industry Act (Cap.206) either singly or taken together. Leave is accordingly refused in respect of the declarations sought.

Having so decided that leave ought not to be granted in respective of the substantive reliefs it is unnecessary to consider the other ancillary relief sought in paragraphs 4 and 5 of the applicant's originating motion which is hereby dismissed with costs to the Registrar of the Sugar Industry Tribunal to be taxed if not agreed.

(D.V. Fatiaki)
JUDGE

At Suva,
13th November, 1992.

HBJ0003D.92S