Khan v Attorney-General [1984] SBHC 2; [1986] LRC 719 (15 October 1984)

[1986] LRC (Comm) 719, CA

HIGH COURT OF SOLOMON ISLANDS

KHAN

V

ATTORNEY-GENERAL

AND

ISLAND ENTERPRISES

V

ATTORNEY GENERAL

High Court:
White, A.C.J.
15th October 1984

(1) Foreign investment – Definition – Businesses established for foreigners in Solomon Islands – Whether "foreign investment" – No transfer of foreign currency or tangible assets – Foreign Investment Act 1984, sections 2 and 7 – Businesses registered and work permits issued under earlier legislation – subsequent reduction in business activity ordered.

(2) Statutory interpretation – Operation of interpretation section – Presumption that some words are used with same meaning in some statute, unless this results in injustice or absurdity – Rule that prima facie statute operates as to future intention only – Presumption that legislature did not intend to penalise persons acting in accordance with previous legislation or to deprive them of accrued rights.

In these two actions counsel agreed that the basic issues were substantially the same and the actions were heard together. Both involved businesses established in the Solomon Islands by foreigners and concerned the application of the Foreign Investment Act 1984, passed to ensure that no foreign investor should be granted permission to invest in the Solomon Islands without bringing into the Islands foreign currency or tangible assets.

The first action involved a business established by a citizen of Fiji who was married to a citizen of the Solomon Islands. The business was registered, and a work permit was issued, in 1982. It was financed by borrowing money from relatives in the Solomon Islands and no foreign currency or tangible assets were brought into the Solomon Islands in connection with it. In 1984 the plaintiff was told that his business activities were to be reduced, as their existing scope included areas reserved for Solomon Islanders, and, on his application for registration under the 1984 Act, the Foreign Investment Board decided on a further reduction in business activity. The plaintiff brought an action to dispute the interpretation being put on the 1984 Act by the Government agencies on the grounds, inter alia, that (1) he had not made a "foreign investment" as defined by section 2, because he had not made an investment "in the form of foreign currency or tangible assets actually transferred to Solomon Islands"; (2) even if he had made such an investment, his enterprise had been approved before the 1984 Act came into force.

The second action concerned a company controlled by an Australian citizen married to a Solomon Islands citizen, all investment in which had come from their personal savings in the Solomon Islands and from overdraft and loan facilities from the Development Bank of the Solomon Islands. The company challenged the need to comply with the provisions of the 1984 Act on the ground that there had been no actual transfer of foreign currency or tangible assets to the Solomon Islands.

The defendant in both actions was the Attorney-General.

HELD: The Foreign Investment Act 1984 did not apply to either foreign investors and appropriation declarations would be granted.

(1) The provisions of the 1984 Act applied to foreign investments only, meaning investment in the form of foreign currency or tangible assets actually transferred to the Solomon Islands and did not apply to enterprises which had been approved under earlier legislation. (See p.729 post.)

(2) In interpreting the 1984 Act the following rules of construction should be applied:–

(a) Words in a statute are generally intended to have the meaning given in the interpretation section (see p.727 post.);

(b) The presumption is that the same words are used with the same meaning in the same statutes, unless this would lead to injustice or absurdity (see ibid);

(c) Prima facie, where the Legislature enacts a statute to effect a change of policy, the statute operates as to the future only and does not affect past events (see p.729 post);

(d) The Legislature is to be presumed not to intend to penalise persons who have acted in accordance with the previous law or to deprive them of accrued rights (see ibid). Applying these rules, and taking into account the history of the legislation, it was clear that the 1984 Act was intended to deal with foreign investment, as defined in section 2, which was made as from the date of operation of the Act, and not with enterprises already established legally under earlier legislation. (See p.728 post.)

Cases referred to in judgment:
IRC v Kenmare [1956] Ch 483, [1956] 3 WLR 527, [1956] 3 All ER 69, CA; [1958] AC 267, [1957] 3 WLR 461, [1957] 3 All ER 33, HL
Ward v British Oak Insurance Co Ltd [1932] 1 KB 392, CA

Legislation referred to in judgment:
Foreign Investment Act 1979, sections 2, 3(1), 5(l), 17(1), 20(1) and Schedule 1
Foreign Investment Act 1984, sections 2, 4, 7 and Schedule
Foreign Investment Regulations 1984
Labour Act, section 68(4)

Other sources referred to in judgment:
Odgers, Construction of Deeds and Statutes, 5th ed., pp. 255 - 256, 280 and 315

Actions
In two actions heard together the plaintiffs issued summonses challenging the decision by the Solomon Islands foreign investment authorities to apply to the plaintiffs' businesses the provisions of the Foreign Investment Act 1984. The facts of both actions are set out fully in the judgment.

A. Radclyffe for the plaintiff in the first action.
K. Brown, Public Solicitor, for the plaintiff in the second action.
F.O. Kabui, Attorney-General, for the defendant in both actions.

15th October 1984

WHITE, A.C.J.:
These two cases were heard together, counsel being in agreement that the basic issues were substantially the same. The facts in each case can be summarised as follows:

Khan v Attorney-General

In his supporting affidavit, Mr. Khan states that he and his wife are carrying on business in Honiara as "Signdesign Graphics", he being a citizen of Fiji married to a citizen of Solomon Islands.

The business was approved by a letter from the Investment Division dated 24th December 1982, following a recommendation of the National Investment Council. A work permit under section 68(4) of the Labour Act was issued on the 16th January 1984. The business was financed by borrowing money from relatives in Solomon Islands, no foreign currency or tangible assets having been brought into Solomon Islands in connection with the business.

Attached to the plaintiff's affidavit are copies of correspondence extending from 10th February 1984 to 27th August 1984, arising out of the scope of the activities claimed to have been entered into by Mr. and Mrs. Khan, which, it was alleged, were in "areas reserved for Solomon Islanders, namely 'Service industries and manufacturing' involving low technology."

On the 24th August 1984, the Public Solicitor wrote to the Chief Officer of the Foreign Investment Division submitting that the definition of "foreign investment" in the Foreign Investment Act 1984 did not apply to Mr. Khan, because the latter financed his business with money obtained in Solomon Islands. Alternatively it was submitted that, if the business is deemed to be "a foreign investment", then Government approval was obtained in December 1982.

It was clear from a letter in reply dated 27th August 1984 from the Secretary of the Investment Board that there were disputed questions as to the interpretation of the relevant statute which led to the issue of the summons.

The Attorney-General, as defendant, entered an appearance on 18th September 1984.

Two affidavits have been filed on behalf of the defendant.

The affidavit of Mr. Ariya Abeysinghe of the Investment Division of the Prime Minister's Office, dated 11th October 1984, confirms that the plaintiff applied for approval to engage in signwriting and printing in Solomon Islands and that the application was approved by the National Investment Council on 24th December 1982 and communicated to the plaintiff. The affidavit also confirms that the business was registered and a certificate issued.

It is then stated that, following complaints from Cyncraft Ltd. of Honiara, the plaintiff's business was discussed with the Prime Minister as the Minister responsible for foreign investment. It was then decided "that the business activities of the plaintiff should be reduced to commercial artists, designing, interior and exterior decorations", and the plaintiff was informed of the decision by letter dated 10th February 1984. On 31st July 1984, the plaintiff had lodged an application for registration using Form B of Schedule 1 to the Foreign Investment Act 1979 with a fee of $100'. On 20th August 1984, the Investment Board met to consider, amongst other things, the plaintiff's application for registration, and a decision was taken to reduce the plaintiff's business activities to "Signwriting" only. This decision was communicated to the plaintiff by letter on 22nd August 1984.

Another affidavit, that of Andrew Tevaea Nemaia of the Investment Division, was filed by the Attorney-General on 11th October 1984. Mr. Nemaia states that he recommended the plaintiff's application to engage in the business of signwriting and printing on the understanding that the plaintiff would bring into Solomon Islands between $8,000 and $10,000 after selling his assets in Fiji. A handwritten memorandum, dated 19^th September 1984 is exhibited to that affidavit referring to the understanding and to a letter dated 18^th December1982 from the plaintiff. A copy of that letter was not exhibited in Mr. Nemaia's affidavit - or to the plaintiff's affidavit, but the original handwritten letter of that date is exhibited to the affidavit of Mr. Ariya Abeysinghe, dated 11^th October 1984. Neither that letter nor Mr. Nemaia's recommendation, dated 23^rd December 1982 has any reference to an understanding that Mr. Khan would "bring $8 - $10,000 after selling his assets in Fiji.

The plaintiff's case is stated in his summons, dated 14th September 1984, as follows -

"(1) On a true construction of the Foreign Investment Act 1984 (hereinafter called 'the Act') and in particular section 2 thereof, a 'foreign investor' as defined in section 2 of the Act, who does not actually transfer to Solomon Islands investment in the form of foreign currency or tangible assets, does not make 'a foreign investment' as defined by section 2 and consequently does not need to comply with the other provisions of the Act.

(2) The plaintiff is a foreign investor but has not made a foreign investment as defined in section 2 of the Act, in that he has not actually transferred foreign currency or tangible assets to Solomon Islands and consequently he does not need to comply with the other provisions of the Act.

(3) If the plaintiff has made a foreign investment, the plaintiff's enterprise had been approved by the Government before the Act came into force, and consequently the fees payable by the plaintiff are $500 in accordance with item 4 of the Schedule to the Act and $100 in accordance with item 5 of the said Schedule pursuant to section 7 of the Act.

(4) There is no power under the Labour Act or any other law to delete unilaterally from the plaintiff's work permit issued under the Labour Act the specified work which the plaintiff had been given permission to undertake in the said permit."

Island Enterprises Ltd v Attorney-General

The shareholders of Island Enterprises Limited, Mr. & Mrs. Bradford made an affidavit, filed on 21st September 1984. They state that he is an Australian citizen and she is a Solomon Islands citizen, holding respectively 40% and 60% of the shares in the Company. They depose that all investment of whatever kind in the Company has come from their personal savings "arising in the Solomon Islands", trading bank overdraft facilities and loans from the Development Bank of Solomon Islands. They state that "no investment in the Company has been made in the form of foreign currency or tangible assets actually transferred to Solomon Islands."

In a letter, dated 11th September 1984, the shareholders wrote to the Foreign Investment Division setting out their position as described above. In that letter, they made their understanding clear that, in terms of section 2 of the Foreign Investment Act 1984, "the Company is deemed to be a foreign investor" and that they understood, according to their interpretation of "foreign investment" in section 2 of the Act, "no foreign investment has been undertaken by the Company and therefore it is exempt from complying with the provisions of section 7 of the Act." The letter concluded with the words: "We seek your written confirmation of the above prior to 17th October 1984."

On 12th September 1984, Mr. Abeysinghe replied as follows:

"We do not agree with your interpretation of the Act. You are requested to comply with the provisions of section 7(1) - (4) of the Act. Please do not try to interpret the Act the way you have done. Please read the Act and Regulations again. Your firm is a foreign investment and comes within the definition of 'foreign investor' as defined in the law. You are given time till 7th October 1984 to apply under section 7(1)(2) of the Act as required. We see no special reason for exempting your firm from the Act based on the facts given by you in the letter dated 11th September 1984. Therefore I regret to inform you that your request cannot be considered and you are requested to comply with the provisions of the Act."

Mr Abeysinghe made an affidavit on 11th October 1984. He deposed that the applicant company was incorporated on 14th November 1980. He stated that the proposal to enter into a joint venture with Solomon Islands citizens to engage in the activities already mentioned was approved in 1980 and the approval was communicated to Mr. Bradford by letter on 12th August 1980. In that letter the applicant was informed that he should approach the Commissioner of Labour and the Principal Immigration Officer regarding his work permit and his permit to enter and reside. Paragraph 4 of Mr. Abeysinghe's affidavit reads:

"The Island Enterprises Limited has not applied for registration under the Foreign Investment Act 1979 which is now repealed by the Foreign Investment Act 1984."

The applicant's case is stated in his Summons, dated 21st September 1984, as follows:

"(1) On a true construction of the Foreign Investment Act 1984 (hereinafter called 'the Act'), and in particular section 2 thereof, a 'foreign investor' as defined in section 2 of the Act who does not actually transfer to Solomon Islands investment in the form of foreign currency or tangible assets does not make 'a foreign investment' as defined by section 2 and consequently does not need to comply with the other provisions of the Act.

(2) The plaintiff is a foreign investor but has not made a foreign investment as defined in section 2 of the Act in that it has not actually transferred foreign currency or tangible assets to Solomon Islands and consequently it does not need to comply with the other provisions of the Act."

I turn now to the evidence of Mr. Ariya Abeysinghe who attended on a notice for cross - examination. His employment was described as "Chief Investment and Marketing Officer in the Foreign Investment Division of the Prime Minister's Office:" He was also Secretary to the Foreign Investment Board of the Prime Minister's Office. One of his principal functions was "foreign investments in Solomon Islands."

Mr. Radclyffe, cross-examining, drew attention to the Foreign Investment Act 1979 (No. 13) and the Foreign Investment Act 1984 (No. 10) and the Regulations under it. In particular he referred to section 2 of the 1984 Act and put general questions to the witness as to the position of a new citizen who wished to start a business and bring money from overseas. It was then put to the witness that, if a new citizen obtained funds in the Solomon Islands, he is not making a foreign investment. The question was put more specifically as follows: "If the foreign investor started by means of a loan in Solomon Islands, so that he had not transferred foreign currency, would you consider he had to register under the Act?" Answer: "I would not recommend it to the Board under the Act." The reason given was that he was a foreigner and because he was a foreign investor, bringing no money for investment either in cash or tangible assets or reinvestment of retained earnings. Section 4 was referred to which provides that an application shall be made for the approval of the Board in respect of:

"(a) a proposed foreign investment;

(b) a proposed technology agreement;

(c) a proposed investment of retained earnings,

provided that the Minister may . . . exempt any class or category of foreign investment or technology agreement from the provisions of the Act. . . ."

The definition of "foreign investment" in section 2 was then referred to, viz. "foreign investment" means "investment by a foreign investor in the form of foreign currency or tangible assets actually transferred to Solomon Islands and includes retained earnings arising from such investment."

The question then was: "In this example of someone who does start with money obtained here, do you think he has to register?" The answer was: "Yes, because a prerequisite for an application are those characteristics."

Dealing with Mr. Khan's case, it was pointed out that he had submitted his proposal in 1982. A letter of approval had been sent to Mr. Khan on 24th December 1982 and he was given a work permit (issued on 16th January 1984) by the Labour Division for signwriting and other activities set out. On 1st February 1984, the correspondence referred to in Mr. Khan's affidavit had commenced.

The question put to the witness was whether it was correct that, at the time he wrote, the plaintiff's activities were in accord with his proposal which had been approved, and that the intention was to advise the plaintiff of a lot of criticism coming forward against the plaintiff.

The witness agreed that his activities were in accord with the approval he had received. The witness went on to say it was his duty to point out to investors' complaints and also any directives of the Minister.

It was put to the witness that from advice the correspondence had changed in character. The answer was that, after discussions with the Minister, the witness had advised the plaintiff that "he must comply with the advice of the Division" and that, if he had any presentment, he could make it.

The witness was asked to point to the enactment relied on to direct the plaintiff "to reduce his activities." The answer was that, under the 1979 Act, the Minister had the power of approving or rejecting any activities (see section 3(1) and section 5(1)) and section 17(1). It was said other provisions gave the Minister the "power of controlling."

The witness said that Mr. Khan had not registered under the Regulations published in October 1983 and therefore contravened the Regulations. He had not received notice in writing but the Regulations were "announced in the media". It was said that the provisions entitled the Minister to reduce the plaintiff's activities under the 1979 Act and that the action had been taken in good faith to warn the plaintiff.

Pressed on the right of the Department to intervene, the witness said: "Our Department has a right to restrain activities when there is a registration." He went on to refer to section 20(1) of the 1979 Act, saying that, if Mr. Khan had any grievance, he could raise it but he had not done so in the time specified.

Mr. Abeysinghe gave further evidence by way of explanation, but I do not think it necessary to refer further to his interpretation of the statutes and regulations, which, of course, depend on the construction to be placed on them as a matter of law.

It was common ground that there were no Regulations before 1983 and the witness agreed that letters of approval were issued before and after October 1983.

Mr. Brown then cross - examined Mr. Abeysinghe. He drew the witness' attention to Ex. B of the Affidavit of Mr. and Mrs. Bradford. Again I do not propose to refer to the matters then discussed, which clarified to some degree Mr. Abeysinghe's interpretation of the relevant provisions. The interpretation of the provisions, however, is a matter for the Court.

In answer to the Attorney - General in re - examination, the witness agreed that the letter of 10th February 1984 followed discussions with the Minister (who was the Prime Minister). Those discussions had taken place when the 1979 Act was in force and before the 1984 Act was enacted.

The Court was informed that Mr. Nemaia was ill and in hospital. There was a question whether it was necessary to cross - examine him as to a question of fact. Leave to apply was reserved. No further application was made.

Addressing at the close of the evidence, Mr. Radclyffe sought, on behalf of Mr. Khan, the declarations set out in the Summons and already quoted. On the basic question, it was submitted that on a true construction of section 2 of the 1984 Act, a foreign investor, who does not transfer funds, does not make a foreign investment and need not comply with other provisions. It was submitted that it was clear the applicant's application was approved, and that he was entitled to a declaration that there was no power to reduce the areas of his approved activities by the Foreign Investment Division or the Labour Division. Mr. Radclyffe reviewed the correspondence already reviewed by me in outlining the affidavit evidence. He drew attention to the change in tone in the correspondence. Then, in June 1984, the new Act had been enacted and on 31st July the Regulations. It was submitted that the, matter had to be considered having regard to the interpretation to be given to the 1984 Act, but against the background of Mr. Khan already carrying on his business in accordance with the approval he had been given and his work permit.

Mr. Radclyffe pointed out that section 2 of the 1984 Act defines the words "foreign investor" and "foreign investment". "Foreign investor" means "a person who is not a citizen of Solomon Islands" and the definition goes on to refer to a body corporate and branches of a body corporate. "Foreign investment" simply means, it was submitted, investment by a foreign investor in the form of "foreign currency or tangible assets actually transferred to Solomon Islands and includes retained earnings arising from such investment."

The opening words of section 7(1) are: "Where foreign investment has been made in an enterprise before the commencement of this Act. . . ." It was submitted that, if a foreign investor brings in, by transferring, "foreign currency or tangible assets" to Solomon Islands, he makes a foreign investment, but, only if he does that, must he comply with section 7(1) of the 1984 Act. In the present case no "foreign currency or tangible assets" were actually transferred to Solomon Islands."

Mr. Brown submitted that the position was even simpler in his clients' case, based on the two letters exhibited to their affidavit and referred to above. The case "in a nutshell", Mr. Brown submitted, was: "Yes, we are foreign investors, but, No, we have not made a foreign investment." Therefore he contended, the Foreign Investment Act 1984 and in particular section 7(1) cannot apply to Mr. and Mrs. Bradford. Enlarging somewhat on that succinct statement of his clients' case, Mr. Brown submitted that, "foreign investment" being defined by the 1984 Act, the normal rule of interpretation applies when these words appear in section 7(1); that the interpretation section defining the words must be applied. From that starting point, the meaning given to the words qualified the whole of section 7(1), so that, if a person has not made a. foreign investment as defined by the 1984 Act, section 7(1) has no application. It was submitted that, while under the 1979 Act all foreigners had to register, under section 7(1) of the 1984 Act, a foreigner must comply with section 7(1) if, but only if, he has made a foreign investment as defined by the 1984 Act.

I refer now to the Attorney-General's case. He contended that section 7(1) had a transitional effect, the intention being to provide for those investments made under the provisions of the 1979 Act and earlier. It was submitted that the phrase "foreign investment" in section 7(1) was used in a different context from the definition in section 2 of the 1979 Act, and should be interpreted as a general description of a foreign investment under the 1979 statute and prior to that date. It was submitted that the object of the 1984 Act was to correct a situation which arose under the 1979 Act, whereby a foreigner could set up a business in Solomon Islands without bringing in foreign funds for investment, by raising capital in Solomon Islands, and could also claim to set up Solomon Islands companies by giving nominal shares to Solomon Islands citizens. Under the 1984 Act, no foreign investor could be granted permission to invest in Solomon Islands without bringing into Solomon Islands foreign currency or tangible assets. The effect of the 1984 Act, it was submitted, was to provide definition of foreign investment for the future and was not meant to apply retrospectively.

The Attorney - General conceded that it was unfortunate that the draftsman had used the phrase "foreign investment" in the opening sentence of section 7(1), but it was submitted that it was clear that, when the statute was considered as a whole, it was intended to have the broader meaning for which he contended. The Attorney - General also drew attention to the opening words of section 2: "In this Act, unless the content otherwise requires." He argued that section 7(1), referring, as it does, to "Where foreign investment has been made in an enterprise before the commencement of this Act . . .", and there being no definition of foreign investment in the earlier statute, the definition in the 1984 Act should be treated as referring to the future and not the past. On that basis, it was submitted, Mr. Khan and Mr. and Mrs. Bradford, who had invested in an enterprise before the commencement of the 1984 Act, and under the 1979 Act, should be regarded as coming within the provisions of section 7 of the 1984 Act. Accordingly, it was submitted they are required to apply to the Foreign Investment Board under the provisions of section 7 and will have to pay the fees required under the 1984 Act.

It will be seen that there was agreement that the 1984 Act refers to the future and not the past, and that it was intended to make it a condition of foreign investment that a foreign investor brings into Solomon Islands "foreign currency or tangible assets", thus preventing foreign investors from coming to Solomon Islands and setting up enterprises without bringing in foreign currency or assets. The question at issue, therefore, is one of interpretation clearly defined in the Attorney - General's argument that the words "foreign investment", as used at the head of section 7(1), should not be equated with the meaning given to the words in the interpretation section, having regard to the context in which they are used and the history of the legislation.

Section 2 opens with the words: "In this Act, unless the context otherwise requires." I agree that, because of the context or other circumstances, it may be shown that the meaning of a particular phrase used in a statute should be given a meaning different from that in which it is generally used in the statute. It is necessary, then, to look at the circumstances and apply the relevant rules of construction, bearing in mind at the outset that the statute must be considered as a whole.

When that is done, a striking feature of the Act is the number of times the words "foreign investment" occur. That the words are intended generally to have the meaning in the interpretation section is generally clear and not disputed. That fact, however, in itself introduces a general rule of construction. It is a general rule of construction, if not a presumption, that the same words are used in the same meaning in the same statute. See Odgers, Construction of Deeds and Statutes, 5th ed., pp. 255 - 256. The learned author quotes the words of Romer, L.J., in IRC v Kenmare [1956] Ch 483, 503, affirmed in the House of Lords [1958] AC 267: "It is, of course, an accepted rule of construction that, where the same word appears more than once in a section of a statute, it should receive the same interpretation wherever it occurs; and ambiguity in one place will be resolved by any clarity of meaning which is apparent from another." Viscount Simonds, however, when referring to the rule "as no doubt desirable", added that he regarded it with "some scepticism". The position is summed up by the learned author who observed; "the presumption is, however, of the slightest and there are very many instances where the application of this rule is impossible or would result in injustice or absurdity."

In my view, the frequent use of the words "foreign investment", clearly having the meaning in the interpretation section, provides strong support for the submissions made by Mr. Brown and Mr. Radclyffe, because I do not consider that it has been shown that the application of the rule is impossible or would result in injustice or absurdity.

In construing the definition, it is useful to consider the natural meaning of the words "foreign investment." Prima facie, when legislation of the country refers to "foreigners" or "foreign assets", persons who are not citizens of that country, and assets which belong to such persons, are intended. The section interpreting "foreign investment" uses first the word "means" as to "investment by a foreign investor in the form of foreign currency. . . ." That is an "explanatory" definition and, therefore, "restrictive." The definition continues with the words "and includes retained earnings arising from such investment". That part of the definition is "extensive." - see Odgers (supra) at p.315. In my view the "explanatory" and "restrictive" part of the definition simply makes it clear that, in regulating foreign investment, the 1984 Act is concerned with "foreign currency or tangible assets actually transferred to Solomon Islands" (which is in accord with the natural meaning of foreign investment), extended to include "retained earnings" to which the first part of the definition would not ordinarily be applicable.

Except in the particular instance in section 7(1), it has not been suggested that the words should receive any meaning other than that in the interpretation section. When the words are given the meaning of the interpretation section, in the context in which they are used, they are in accord with the view that the 1984 statute was intended to deal only with foreign investment, meaning investment "in the form of foreign currency or tangible assets actually transferred to Solomon Islands." That result, in my opinion, was in accord with the history of the legislation. In my view, the history of the legislation and the facts of the two cases confirm that conclusion. Bearing in mind that the parties in this case (and no doubt others) acted with the approval of the authorities at the time they set up businesses in accordance with the requirements then applicable, it would be surprising if, in altering the legislation, those already established legally under earlier legislation would be penalised. It is not disputed that the provisions of the 1984 Act show that the legislature decided on a change of policy to meet the circumstances of the time, and to alter the basis on which foreigners should be permitted to set up enterprises. In my view, section 7 is concerned with giving effect to that object as from the date the statute came into operation.

There can be no doubt that the rule is that the natural and ordinary way to regard statutes is that they affect something in the future, and as not affecting what has gone before. See Odgers (supra) at p.280. The basic reason is referred to in Ward v British Oak Insurance Co Ltd [1932] 1 KB 392 cited by the learned author. In that case Scrutton, L.J., said at p.397: "Prima facie an Act deals with future and not past events. If this were not so, the Act might annul rights already acquired. . . ." And in the same case, Greer, L.J., said: "There are numerous cases which clearly show that the Courts lean against interpreting an Act so as to deprive a party of an accrued right."

For these reasons, the conclusion I have reached is that, while the parties in both cases are foreign investors, the provisions of the Foreign Investment Act 1984 do not apply to the enterprises which had been approved while the 1979 Act was in force.

I shall hear counsel as to the form of appropriate orders and as to costs if that is necessary.

It is important that my decision on the basic question should not be delayed by dealing with other matters which were argued. I would expect the conclusions I have reached will mean other matters may no longer be of significance. In case that is not so, I reserve leave to any party to apply.