Khan v Attorney General; Island Enterprises Ltd v Attorney-General [1984] SBHC 20; [1984] SILR 95 (1 December 1984)

[1984] SILR 95

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Cases No 81 and 82

KHAN

v

ATTORNEY GENERAL

AND

ISLAND ENTERPRISES LIMITED

v

ATTORNEY GENERAL

High Court of Solomon Islands
(Sir John White ACJ)
Civil Cases 81 and 82 of 1984

15 October at Honiara
Judgment December 1984

Foreign Investment Act 1979 - whether business approved under it need comply with provisions of Foreign Investment Act 1984 -meaning of “foreign investment” - whether different in different sections of 1984 Act.

Facts:

81 – KHAN’s Case

After the 1979 Act came into force the plaintiff, a citizen of Fiji, and his wife, a Solomon Island citizen, set up a business in Honiara with money borrowed from relations in Solomon Islands. In December 1982 the business was approved by the National Investment Council for the purposes of the 1979 Act (which provided for the registration of “foreign enterprises”). In January 1984 the Commissioner of Labour issued to the plaintiff a work permit allowing him to carry out signwriting and a number of other activities.

On 17 July 1984 the 1984 Act (which applied to “foreign investments”) came into force, repealing the 1977 Act. On 31 July 1984 the plaintiff applied for registration of the business under the 1979 Act as an existing foreign enterprise. The Investment Board purported (under the 1984 Act) to restrict the activities permitted the plaintiff to signwriting only, and demanded the fees laid down for registration under 1984 Act.

82 – ISLAND Case

The plaintiff company was owned as to 40% of its equity by Mr Philip Bradford, an Australian citizen, and as to 60% by Mrs Bradford, a Solomon Islands citizen. All investments in the company had come from personal savings, overdrafts and other loans all made in Solomon Islands. In September 1984 the company sought confirmation from the Government that this did not amount to “foreign investment” under the 1984 Act. The Government maintained that the provisions of S.7 of the 1984 Act applied to the company. (These relate to “foreign investment” made in existing enterprises registered under the 1979 Act or approved by previous Government). The plaintiffs applied by way of originating summons for declarations that-

1. (KHAN and ISLAND) A “foreign investor” who does not transfer foreign currency or tangible assets to Solomon Islands does not make a “foreign investment” under the general definition contained in S. 2 of the 1984 Act

2. (KHAN and ISLAND) the plaintiffs were “foreign investors” but had not made “foreign investments” under the 1984 Act, so were not bound by it.

3. (KHAN only) if the plaintiff had made a “foreign investment”, it had been approved by the Government before the 1984 Act came into force; so if the plaintiff was bound by the 1984 Act, the fees to be paid were those laid down under S. 7 of the 1984 Act and consequential provisions.

4. (KHAN only) there was no power under the Labour Act (c. 75) or any other law to cut down the activities allowed the plaintiff under his work permit.

The Attorney General contended that, though the plaintiffs’ original business funds did not fall within the general definition of “foreign investment” in S. 2 (which applies throughout the 1984 Act) “unless the context otherwise requires”, their businesses had been approved as foreign enterprises by previous Governments. So they came within the definition of “foreign investment” in S. 7, which was to be read as a transitional provision, where the context required a different meaning from elsewhere in the 1984 Act.

Held:

1. (following the dicta of the English Courts in IRC -v-Kenmare [1956] Ch 483 [1957] AC 267). It is a rule of construction that where the same word appears more than once in a statute it should receive the same interpretation wherever it occurs, except where the application of this rule is impossible or would result in injustice or anomaly

2. No injustice or anomaly would result from applying the same definition to “foreign investment” in S. 7 as elsewhere in the 1984 Act, since an Act will normally be construed so as to apply to the future and not to affect existing rights (see Ward -v- British Oak Insurance Co. Ltd [1932] 1 KB 392 per Scrutton LJ at p. 397).

3. The plaintiffs had therefore not made any “foreign investment” within the meaning of S. 7, and were not bound by any of the provisions of the 1984 Act.

The third declaration sought by the plaintiff Khan therefore did not arise for consideration; the fourth declaration sought was not considered, but liberty to apply was given.

No other cases considered

Andrew Radclyffe for the plaintiff Khan
Kenneth Brown, Public Solicitor, for the plaintiff Island Enterprises Limited
Frank Kabui, Attorney General, in person

Sir John White ACJ: 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 summarized as follows:-

Case No. 81

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 24 December 1982 following a recommendation of the National Investment Council. A work permit under S. 68(4) of the Labour Act was issued on the 16 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 10 February 1984 to 27 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 24 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 27 August 1984 from the Secretary of the Investment Board that there were disputed questions as to the interpretation of the relevant statutes which led to the issue of the summons.

The Attorney General as defendant entered an appearance on 18 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 11 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 24 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 10 February 1984. 31 July 1984 the plaintiff had lodged an application for registration using Form B of Schedule 1 to the Foreign Invest. Act 1979 with a fee of $100. On 20 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 1etter on 22 August 1984.

Another affidavit, that of Andrew Tevaea Nemaia of the Investment Division, was filed by the Attorney General on, 11 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 $8000 and $10000 after selling his assets in Fiji. A handwritten memorandum, dated 19 September 1984 is exhibited to that affidavit referring to the understanding and to a letter dated 18 December 1982 from the plaintiff. A copy of that letter was not exhibited to 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 October 1984. Neither that letter nor Mr Nemaia’s recommendation, dated 23rd December 1982 has any reference to an understanding that Mr Khan would “bring $8 - $10000 after selling his assets in Fiji.”

The Plaintiff’s case is stated in his summons, dated 14 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, that 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.”

Case No. 82

The shareholders of Island Enterprises Limited, Mr & Mrs Bradford made an affidavit, filed on 21 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 11 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 S. 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 S. 2 of the Act, “no foreign investment has been undertaken by the Company and therefore it is exempt from complying with the provisions of S. 7 of the Act.” The letter concluded with the words, “We seek your written confirmation of the above prior to 17 October 1984.”

On 12 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 S. 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 come within the definition of “foreign investor” as defined in the law. You are given time till 7/10/84 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 11/9/84. 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 11 October 1984. He deposed that the applicant company was incorporated on 14 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 12 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. Para 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 21 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 S. 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 S. 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 24 December 1982 and he was given a work permit (issued on 16 January 1984) by the Labour Division for signwriting and other activities set out. On 1 February 1984 the correspondence referred to in Mr Khan’s affidavit commenced.

The question put to the witness was whether it was correct that at the time he write 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 s81 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 S. 3(1) and s.5 (1)) and S. 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 S. 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 witnesses 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 10 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 S. 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 31 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 S.2 of the 1984 Act defines the words “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 tangible assets actually transferred to Solomon Islands and includes retained earnings arising from such investment.

The opening words of S. 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 S. 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 S. 2 (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 S. 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 S. 7(1) so that if a person has not made a foreign investment as defined by the 1984 Act S. 7(1) has no application. It was submitted that while under the 1979 Act all foreigners had to register, under S. 7(1) of the 1984 Act a foreigner must comply with S. 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 S. 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 S. 7(1) was used in a different context from the definition in S. 2 of the 1979 Act and should be interpreted as a general description of a foreign investment under the1979 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 had also claimed to set up Solomon Islands Companies by giving nominal shares to Solomon Island 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 a definition of foreign investment for the future and was not meant to apply retrospectively.

The Attorney General conceded that it was unfortunate the draftsman had used the phrase “foreign investment” in the opening sentence of S. 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 S. 2 “In this Act, unless the content otherwise”. He argued that S. 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 S. 7 of the 1984 Act. Accordingly it was submitted they are required to apply to the Foreign Investment Board under the provisions of S. 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 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 S. 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 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 255/256. The learned author quotes the words of Romer LJ in L.R.C. 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 S. 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 penalized. It is not disputed that the provisions of the 1984 Act show that the legislature decided on a change of policy to meet one circumstances of the time and to alter the basis on which foreigner should be permitted to set up enterprises. In my view S. 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 LJ 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 LJ said. “There are numerous cases which clearly show that the Courts lean against interpreting an Act as to deprive a party of an accrued right.”

For these reasons the conclusions 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.

(I regret the delay in giving my judgment in these cases but I made it clear when they were heard that, due to my earlier arrangements, made before I came to Solomon Islands, my reserved judgment could not be given until after my return from New Zealand and Australia.)