Tahua v Premier of Rennell and Bellona Province [2000] SBHC 24; HC-CC 107 of 2000 (30 May 2000)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 107 of 2000

SAU'EHA JOSES TAHUA

–V-

PREMIER OF RENNELL & BELLONA PROVINCE

High Court of Solomon Islands
(Kabui, J)

Date of Hearing: 25 May 2000
Date of Judgment: 30 May 2000

Mr J Apaniai for the plaintiff
Mr S Manetoali for the defendant

JUDGMENT

(Kabui, J): In this case, the plaintiff is Mr Sau'eha Joses Tahua whose business is known as Tahua Trading. By a Notice of Motion filed on 19^th April 2000, the plaintiff sought the following relief against the Premier of Rennell and Bellona Province who is the Defendant -

1. An order of Certiorari to bring up and quash the decision of the Rennell and Bellona Provincial Executive made on or about the 24^th February 2000 whereby it was decided that the Applicant's licence to operate and harvest marine products in Rennell and Bellona Province be terminated forthwith.
   
2. Damages.
   
3. Costs.
   

The Facts

The plaintiff is the sole owner of Tahua Trading, a business that involves the buying of marine products from the people of the province and selling them to exporters in Honiara. The plaintiff commenced his business in 1992 and obtained the first licence from the Executive of the then Central Islands Provincial Government which at that time included the two Islands of Rennell and Bellona. By virtue of the Provincial Government (Special Provisions) (Rennell and Bellona Province) Act, 1992, the Islands of Rennell and Bellona became a separate Province from the Central Islands Province. The plaintiff obtained renewals of his licence and continued with his business up until 1997 when he suspended operation due to lack of transport for moving the products to Honiara for export. The plaintiff resumed operation again in 1998 under the renewal of his licence. This licence expired on 31^st March 1999.

The plaintiff again applied for a further renewal of his licence on 29^th June 1999. Upon the payment of a licence fee of $3,000 on 13^th October 1999 and $200 vessel fee on 20^th October 1999, the plaintiff resumed operation again as from 1^st October 1999 until his licence was revoked on 24^th February 2000.

The Plaintiff's Case

The Plaintiff's case, on the one hand, is clear and simple. That is to say, because the Defendant failed to give the Plaintiff an opportunity to be heard before it made its decision on 24^th February 2000, the Defendant was in breach of natural justice and so its decision must be removed into the High Court and be quashed. The second ground for that same order to quash the Defendant's revocation was that the decision of the Defendant was unreasonable in the circumstances of his case. That is to say, the Defendant took into account the position of the Foreign Investment Board regarding the need for a technology agreement between the Plaintiff and Seaways Ltd, the Provincial Government's policy on joint-ventures and the fact that the Rennell and Bellona Provincial Assembly had not yet passed the Province's Fisheries Ordinance, these factors being irrelevant and thus rendering the Defendant's decision unreasonable.

The Defendant's Case

The Defendant's case on the other hand, is that the Plaintiff's licence for the period 1998-1999 had expired on 31^st March 1999 in terms of section 4 (6) of the Rennell and Bellona Province Business Licence Ordinance 1995. Section 4 (6) states "Every licence shall be valid from the date of issue until the 31^st of March next following the date of issue, and shall thereupon expire." That is to say, after 31^st March 1999, there was no longer any licence to be renewed by the Plaintiff. The "natural justice" argument would not have arisen in this case. In the alternative, even if the licence fees were paid, no licence was issued to the Plaintiff so that such licence could be revoked by the Defendant. There was nothing to revoke. The "natural justice" argument would also not have applied in this case.

The Licence Story in Detail

The first licence was granted to the Plaintiff in 1992 by the Central Islands Provincial Executive. This licence was for one year period being 1992 - 1993. This licence was renewed for the next 4 years upon payment of the appropriate licence fees under an alleged "block" agreement with the Defendant. However, in 1997, the Plaintiff suspended operation due to lack of transport for the products to Honiara. Having secured the vessel "Freight Train", the Plaintiff again sought the renewal of his licence to operate again as before. The licence was again renewed for a one year period being 1998-1999. This licence expired on 31^st March 1999. The Plaintiff did not, however, produce in evidence a copy of his licence and its subsequent renewals up to 1997. Exhibit "ST2" attached to the Plaintiff's affidavit filed on 5^th April 2000 is a photocopy of the 1998 - 1999 licence. Exhibit ST2, on the fact of it, is a combination of an improvised licence and the receipt for the payment of the sums of $3,000 and $200 respectively. At least, Exhibit ST2 is the copy of a document purporting to be a licence though nothing on it says that it was a renewal of a previous expired licence. Bearing in mind the history of the Plaintiff's operation since 1992, Exhibit ST2 must obviously be a renewal of the "block" licence from 1993 - 1997. As I have said, the 1998 - 1999 licence expired on 31^st March 1999.

The Provincial Government (Rennell and Bellona) (Suspension) Order 1999.

The above Order was published as a Supplement to the Solomon Islands Gazette on 21^st July 1999. The Minister of Provincial Government and Rural Development made the Order under section 44 (1) (now s.46 (1)) of the Provincial Government Act (Cap. 118). I set out the Order in full -

"THE PROVINCIAL GOVERNMENT ACT 1997

(No. 7 of 1997)

THE PROVINCIAL GOVERNMENT (RENNELL AND BELLONA) SUSPENSION ORDER 1999

In exercise of the powers conferred by section 44 (1) of the Provincial Government Act, 1997, I, Japhet Waipora, Minister for Provincial Government and Rural Development, do hereby make the following order -

1. This Order may be cited as the Provincial Government (Rennell and Bellona) (Suspension) Order 1999.
   
2. The Provincial Government of Rennell and Bellona is hereby suspended from the performance of any of its function until such time as evidence is tendered to the satisfaction of the Minister that the Provincial Government is in a position to conduct its business in accordance with the provisions of the Act and the Provincial Assembly's Standing Orders.
   
3. The business referred to shall include -
   
   • (a) the tabling of the Appropriation Bill in accordance with section 34 of the Provincial Government; and
     
   • (b) all other outstanding business as at 28/6/99, being the date when the notice of Intention to suspend was communicated to the Provincial Headquarters.
     
4. During the continuance of this Order -
   
   • (a) the members of the Provincial Executive shall not discharge any functions in relation to the affairs of the Provincial Assembly;
     
   • (b) the members of the Provincial Executive and the Assembly shall not be entitled to receive any salaries and allowances; and
     
   • (c) the functions of the Provincial Government shall be discharged by the Permanent Secretary and other officers of the Department of Provincial Government and Rural Development.
     

Dated at Honiara this twenty first day of July 1999.

JAPHET WAIPORA

Minister for Provincial Government and Rural Development"

The Twist

The problem was that because of the above Suspension Order, the functions of the Rennell and Bellona Provincial Executive under the Rennell and Bellona Province Business Licence Ordinance 1995, amongst other things, were to be performed by the Permanent Secretary and other officers of the Department of Provincial Government and Rural Development under paragraph 4 of the Suspension Order. In this case, it meant that the approval of and issuing of any licence must be done by the Department of Provincial Government and Rural Development in Honiara in accordance with the Rennell and Bellona Province Business Licence Ordinance 1995.

The Evidence

The Plaintiff deposed in his affidavit filed on 5^th April 2000 that he applied for a further renewal of his licence in June 1999. In fact, he made that application by letter dated 29^th June 1999 (Exhibit ST3 in the Plaintiff's affidavit). The letter was addressed to the Provincial Treasurer of the Rennell and Bellona Province. The Plaintiff wrote again on 17^th September 1999, making reference to his application on 29^th June 1999, and enclosing the sum of $2,000 fee for the renewal of his licence and $135.00 for vessel fee. Looking at the heading of the letter of 17^th September 1999 referred to as Exhibit "MT1" in Moses Tepai's affidavit filed on 24^th May 2000, the intended period for renewal was to be from August 1999 to March, 2000 - a period of 8 months. The letter of 17^th September 1999, was received on 20^th September 1999. The Plaintiff wrote again on 22^nd September 1999 to the Provincial Treasurer. (Exhibit "MT3" attached to Moses Tepai's affidavit referred to above). This letter was received on 24^th September 1999. The Plaintiff wrote again on an unknown date to the Provincial Treasurer (Exhibit "MT4" attached to Moses Tepai's affidavit referred to above). This undated letter was received on 26^th September 1999. Upon receiving the Plaintiff's third letter, Mr Lionel Elota on behalf of the Rennell and Bellona Provincial Government on 27^th September 1999 wrote back to the Plaintiff (Exhibit "MT5" attached to Moses Tepai's affidavit referred to above) in which he told the Plaintiff that the approval of a fishing licence was the preserve of the Provincial Executive and not the Treasurer and that the suspended Provincial Executive had earlier resolved not to grant any fishing licences until a Fisheries Ordinance was in place. The Plaintiff's sum of $2,135.00 was also returned to him. He was told that in that letter by Mr Lionel Elota. Earlier on by letter dated 20^th September 1999 (Exhibit ST4 of Plaintiff's affidavit), Mr Lionel Elota had written to the Plaintiff acknowledging the receipt of $2,135.00 fee and telling him about the need to consult the Department of Provincial Government and Rural Development and the process of granting and issuing a licence. The Plaintiff subsequently paid $3,000 fee for the renewal of licence on 13^th October 1999 and $200 for vessel fee on 20^th October 1999 (Exhibit ST5 of Plaintiff's affidavit). By letter dated 28^th February 2000 (Exhibit ST6 of the Plaintiff's affidavit), the Plaintiff was informed by the Rennell and Bellona Provincial Secretary that his licence had been revoked with effect from 24^th February 2000. The reasons for the revocation were set out in that letter. It is this act of revocation that the Plaintiff came to this Court to challenge.

The Issue to be decided

In my view, the matter to be decided first before embarking upon the consideration of the Plaintiff's application for the issue of an Order for certiorari is whether or not there was a licence to be revoked by the Defendant in the first place. In terms of paragraph 4 of the Suspension Order, the Plaintiff must apply for a renewal of his licence to the Permanent Secretary of the Department of Provincial Government and Rural Development who would have authorised one of his staff to attend to the Plaintiff's application. This would have been the practical effect of the Suspension Order. There is no evidence that the Plaintiff made an application to the Permanent Secretary of the Department of Provincial Government and Rural Development. In paragraph 9 of the Plaintiff's affidavit filed on 5^th April 2000, the Plaintiff deposed that he had approached the Ministry and the Ministry approved the renewal of his licence. However, he did not say how he approached the Ministry. Who did he approach in the Ministry? Who in the Ministry approved the renewal of his licence? No one in the Ministry filed any affidavit evidence to say what exactly took place. There is nothing to say that the Plaintiff's application had been forwarded to the Permanent Secretary of the Department of Provincial Government and Rural Development for attention by any officer from the office of the Rennell and Bellona Province in view of the Suspension Order. There is no evidence of the fact that the procedure for applying for and being granted a renewal of a fishing licence under the Rennell and Bellona Province Business Licence Ordinance, 1995 had been complied with by anyone. There is of course the payment of $3,200 total fees for a licence. There is no evidence that a licence was renewed. That is to say, there is no evidence of a grant of a renewal and by whom, authenticated by signature of that official who granted the renewal. This is a mystery in this case. It is significant to note that in paragraph 9 of the Plaintiff's affidavit referred to above, the Plaintiff deposed that he approached the Ministry in October 1999 after having been unsuccessful with the Defendant. The payment of $3,000 fee on 13^th October 1999 and $200 on 20^th October 1999 must have been the result of the Plaintiff's approach to the Ministry as referred to by him in paragraph 9 in his affidavit referred to above. If this indeed were the case, the process of applying and approval must have been done in the first week of October, 1999. The Plaintiff must have made some form of application for renewal of his licence to someone in the Department of Provincial Government and Rural Development and that someone must have granted it to him. On whose instruction, the total fees of $3,200 was receipted on 13^th October 1999 is also a mystery. The payment of $200 on 20^th October 1999 was made 7 days later. The fact was that the Plaintiff had commenced fishing operation since 1^st October 1999 without a licence and the payment of the relevant fees was made days later in October, 1999. The fact that no licence was issued to the Plaintiff is again a mystery. It would appear that the Plaintiff simply accepted payment of the relevant fees as being sufficient authority for him to continue his operation. The Defendant by conduct would seem not to have disputed that position at all. So what is the position?

Conclusion

Both the Plaintiff and the Defendant might have been thoroughly confused on this issue of the existence and the validity of a licence paid for by the Plaintiff on 13^th October 1999 and 20^th October 1999 respectively. The fact however was that there was no evidence of a grant of a renewal of a licence to the Plaintiff. He failed to establish that by evidence and so in the result there was nothing to revoke by the Defendant. The Defendant's letter of revocation dated 28^th February 2000 (Exhibit ST6) was a mistake in law though it was obviously a measure taken to show what the Plaintiff thought to be a licence should not have been in place in the first place. The Plaintiff must therefore fail on this ground. However, even if I am wrong in taking this view, I would still refuse to grant an order for certiorari on another ground. In my view, the Plaintiff came to this Court too late. The licence about which he is concerned had expired on 31^st March 2000. The Plaintiff commenced his action on 5^th April 2000 4 days after the licence expired on 31^st March 2000. It would serve no useful purpose of this Court to grant an order of certiorari that is toothless. That is to say, the licence having expired on 31^st February 2000, there remains nothing to talk about. An order for certiorari would be too late to be obeyed and therefore is unnecessary to make one. In terms of Section 4 (6) of the Rennell and Bellona Business Licence Ordinance 1995 above, every licence shall be valid from the date of issue until the 31^st of March next following the date of issue and shall there upon expire. In practice, any renewal of a licence should be effective from 1^st April and if it is issued at a later date, it ought to be back-dated to 1^st April to be in line with the intention of section 4 (6) of the Rennell and Bellona Business Licence Ordinance 1995. In this case, assuming that the Plaintiff's licence was renewed on 13^th October 1999, such renewal should have been dated 1^st April 1999 as a matter of good practice. This was not so in this case. In the result, I would refuse to grant the Plaintiff's application. The Plaintiff's application is therefore refused with costs. The Plaintiff is however still at liberty to apply again for renewal of his licence if he so wishes. It is however again for the Defendant to consider such application afresh and then decide it one way or the other.

F.O. Kabui
Judge