Dalgro (SI) Ltd v Attorney-General [1999] SBHC 117; HC-CC 285 of 1999 (6 December 1999)

class="MsoNormaNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> HIGH COURT OF SOLOMON ISLANDS
Civil Case No. 285 of 1999

pan lang="EN-GB" style="font-size: 12.0pt">DALGRO (S0pt">I) LIMITED

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THE ATTORNEY-GENERAL

High Court of Solomon Islands

Before: PALMER J.

Civil Case No. 285 of 1999

Hearing: 22^nd Sber 1999

Judgment: 6^th December 1999

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Attorney General for the Defendant

PALMER J: Th The Plaintiff (Dalgro (SI) Limited hereinafter referred to as “Dalgro”) is a limited liability company engaged in the business of “civil engineering, earthmoving, and hire of plant and machineries to local companies and provide management and technical assistance under Foreign Investment Board approved technology transfer agreement.” (see annexure “KD-1” annexed to affidavit of Keith Edward Garland Douglas filed 15 September 1999). Sometime in May 1998, Dalgro was informed by letter (see annexure “FM” in affidavit of Fred Maetoloa) of a complaint from Foreign Investment Board, that alleged it was “engaging in logging related activities” in breach of the conditions set out in its certificate of approval dated 21^st March 1993. This did not go down well with Dalgro because in his reply dated 5 June 1998, (see annexure “FM2”) Keith Douglas strongly refuted any suggestions Dalgro might have been engaged in logging activities as a Logging Contractor. He went on to say that all he had been doing was to hire out and maintain equipment and construct roads to local licence holders in accordance with the terms of its certificate of approval. In April 1999, Dalgro was further informed by letter (see annexure “FM5”) that the Office of the Investment Board had been advised Dalgro was involved in providing management and technical assistance with Togosa Resources Development Limited (hereinafter referred to as “Togosa Resources”) without prior approval of the Investment Board. In his reply, Keith Douglas explained what was the relationship it had with Togosa Resources (see annexure marked “FM6”) and attached a copy of the hire agreement between Dalgro and Togosa Resources.

p class="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1" align="left"> By letter dated 30 April 1999, the Director of Investment Division made a furtherrther request for copy of the lease agreement covering machines and equipment with Togosa Resources (see annexure “FM9”). On same date Sol-Law acting for Dalgro, wrote explaining again what the terms of the lease agreement were about and enclosing a copy of same. Nothing further was heard despite numerous reminders until Dalgro was informed by letter dated 12 July 1999 (see annexure marked “FM13”) that advice was being sought from Attorney-Generals Chambers. Sometime later, Dalgro received a letter dated 24 August 1999 (see annexure “FM14”) from Investment Board, giving it seven (7) days to show cause why its certificate should not be reviewed or cancelled. Sol-Law responded immediately under cover of letter dated 30 August 1999 (see annexure “FM15”) again reiterating its position that it was of the view the Investment Board had not complied with the requirements of section 15(2) by not informing its client of the nature of contravention or compliance and that it had not been given opportunity to be heard. The Investment Board responded not conceding the first part but acknowledging that opportunity will be given to Dalgro to be heard.

As a result of this exchange of correspondences and diverging views, Dalgro omes to Court seet seeking orders for Prohibition by Writ of Summons prohibiting the Investment Board from reviewing, cancelling or withdrawing Dalgro’s certificate of approval without first complying with the requirements of section 15(2) of the Investment Act by informing Dalgro in writing of the particulars of the contravention or non-compliance alleged.

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PARTICULARS OF NON-COMPLIANCE WITH TEF CERTIFICATE OF APPROVAL

The bone of contention r by Plaintiff was that it had not been given particulars ofrs of the alleged contravention by the Investment Division. The Investment Division on the other hand, denies this claiming it had divulged sufficient details of the contravention or non-compliance alleged and that all that was left to be done was to give opportunity to Dalgro to be heard before it considers the next step to be taken.

This raises thstion what were the particulars (if any) of non-cnon-compliance raised by the Investment Division? Is there evidence of this? In his submissions before this Court, learned Counsel Mr. Samuels for the Defendant, summarised these as, failing to get Investment Board approval for the management and technology agreement entered into with Togosa Resources, and for involving in logging activities contrary to the terms of its certificate of approval (see annexure “FM1”, “FM5”).

COMPLIANCE WITH SECTION ) OF THE INVESTMENT ACT?

Do the particulars provided mply with subsection 15(2) of said Act? In my respectful viul view, this must be answered in the affirmative. It seems to me Dalgro had been under the misconception, insufficient details of the breaches had been provided, and thereby overly concerned it would not be given adequate opportunity to address those issues. Secondly, it seems Dalgro is also under the misconception that since it felt there was no breach that it was not open to the Board to review its certificate of approval. As to the first concern, the details provided in my respectful view are more than sufficient to enable Dalgro prepare its case for hearing before the Board. If there are matters which arise at the hearing itself which Dalgro might feel it needed more time to address, I see no reason why it should not be given time to address those issues. As to the view there was no breach to be addressed, that is a matter for the Board to determine if it considers a hearing before it is necessary. Dalgro will then have opportunity to present its case as to its innocence and compliance with the terms of its certificate of approval. The application with respect is premature and must fail.

ORDERS OF THE COURT:

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1. DISMISS APPLICATION WITH COSTS.

THE COURT