International Comtrade & Shipping (SI) Ltd v Attorney General [2024] SBHC 26; HCS-CC 249 of 2020 (7 March 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	International Comtrade & Shipping (SI) Ltd v Attorney General
Citation:
Date of decision:	7 March 2024
Parties:	International Comtrade & Shipping (SI) Limited v Attorney General
Date of hearing:	23 February 2024
Court file number(s):	249 of 2020
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Kouhota; PJ
On appeal from:
Order:	1. Appeal Upheld 2. Decisions of the First and Second Respondent are declared invalid and are set aside. 3. Certification for overseas Counsel 4. Cost against both respondent to be asses if not agreed.
Representation:	Mr McDonald G and A S Willy for the Appellant Mr Harara (AG Chambers) for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Foreign Investment Act 2005 S 23, S 23 (1) (e), S 23 (1) (a), S 23 (1) (b), S 23 (1) (C) , S 23 (1) (d) or S 23 (1) (f), S 22 (7), S 23 (3), S 23 (4), S 23 (2) (a) (b) (c) and (d) Deportation Act [cap 58]
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 249 of 2020

BETWEEN

INTERNATIONAL COMTRADE & SHIPPING (SI) LIMITED
Appellant

AND

ATTORNEY GENERAL
(Representing the Investment Facilitating Committee)
First Respondent

AND:
.
ATTORNEY GENERAL
(Representing the Registrar of Foreign Investment)
Second Defendant

Date of Hearing: 23 February 2024
Date of Judgment: 7 march 2024

Mr McDonald G and A S Willy for the Appellant
Mr Harara (AG Chambers) for the Respondent

JUDGMENT

KOUHOTA J

The Appellant International Comtrade &Shipping (SI) Ltd appeal against the decision of the Registrar of Foreign Investment division of the Ministry of Commerce, Industry, Labour and Immigration dated 15^th January 2020 to cancel its foreign investment certificate registration No.000815 and the Foreign Investment Facilitation Committee affirmation of the Registrar decision.

The Appellant seeks the following orders:

1. The decision of the Foreign Investment Facilitation Committee contained in the Notice of Decision addressed to the Appellant and date 5^th May 2020 be set aside.
2. In lieu of the decision of the Foreign Investment Facilitation Committee referred to in order 1, it be ordered that the decision of the Registrar of the Foreign Investment Division of the Ministry of Commerce, Industry, Labour & Migration date 15^th January 2020 cancelling Foreign Investment Certificate of Registration No. 000815 be set aside.

The Appellant says that the Second Respondent failed to apply section 23 of the Foreign Investment Act 2005 (“FL Act”), which requires as a prerequisite of the exercise of the power to cancel a certificate of registration that the concerned foreign investor has engaged in a ‘prohibited activity’ or a ‘reserved activity’ within the meaning of the FI Act section 23(1)(a) or have committed an offence of the kind described in section 23(1) (e), or have engaged in conduct to which any of subsections 23(1)(b), 23(1)(c), 23(1)(d) or 23(1)(f) apply. The Respondents did not identify which part of section 23(1) applied to the Appellant’s conduct, or what conduct of the Appellant attracted the application of any part of sections 23(1).

Despite the outline of so many issues in the appeal, the appeal is basically against the decision of the Registrar of Foreign Investment to cancel the Appellant foreign investment certificate.

For purposes of clarity I set out below the provisions Section 23 of the Foreign Investment Act 2005, section 23 (1) of the Act states;

(1) Subjection to this section, the Registrar may cancel a certificate of registration if the foreign investor to whom it was issued-
(a) Conducts a prohibited activity or a reserved activity;
(b) Has not commenced conducting an investment activity specified on the certificate of registration within 12 months after he received the certificate of registration;
(c) Applies in accordance with section 22 (7) for a new certificate of registration to replace the certificate of registration and the Registrar issues a new certificate of registration to the foreign investor;
(d) Obtained the certificates by fraud, misrepresentation, misstatement or omission of a material particular;
(e) Has committed an offence against this Act or any other law of Solomon Islands relating to an investment activity specified on the certificate of registration for which the maximum penalty is imprisonment for 12 months or more, or
(f) Has been deported from Solomon Islands under the (Cap 58) Deportation Act.

Section 23 (3) states “ If, after complying with subsection (2) the Registrar remains satisfied that there are grounds for cancelling the certificate of registration, he shall, by notice in writing to the foreign investor, cancel the certificate.”

Section 23(4) states “The Registrar shall specify in the notice his reasons for cancelling the certificate and advice the foreign investor of his right of review under section 27.”

Section 23(1) of the Foreign Investment Act 2005 gives power to the Registrar of Foreign Investment to cancel a certificate of Foreign Investment of a Foreign Investor who breach the provisions of 23 (1) of the Foreign Investment Act. However, section 23(2) provide the requirements that the Registrar must follow if she wants to cancel a certificate of foreign investment of a Foreign Investor. The four requirements are set out under section 23 (2) (a) (b) (c) and (d) as set out below.

Section 23(2) states “The Registrar shall not cancel the certificate of registration unless-

1. He is satisfied that there are grounds under subsection (1) for cancelling the certificate;
2. He has requested the foreign investor to show cause why his certificate should not be cancelled and given him not less than 10 days to respond to the request;

100. The foreign investor’s response (if any) has not satisfied the Registrar that he should not cancel the certificate; and

4. He has consulted the Minister about his intention to cancel the certificate.

In view of the requirements set out above therefore, even if the Registrar is satisfied that the Appellant had breached the provision of section 23 (1), in order for the cancellation of the Appellant Foreign Investment certificate to be valid she need to comply with section 23(2) in the process of making the cancellation.

In the present case there is evidence that she had complied with the provisions (a) (b) (c) of section 23(2) but there is no evidence that Registrar had consulted the Minster of Commerce about her intentions to cancel the Appellant’s Certificated of Foreign Investment. The use of the word “and” at the end of section 23(2) (c) means that the Registrar after complying with the provision of section 23(2) paragraphs a-c, it is mandatory that she comply with section 23(2) (d), that is, she need consult the Minister of her intention to cancel the certificate. On the evidence before the court I am satisfied the Registrar fail to comply section 23(2) (d) so her cancellation of the Appellant’s certificated is invalid.

Her failure to comply with section 23(2) (d) of the Act makes the cancellation invalid hence consequently the decision of the First Respondent, the Foreign Investment Facilitation Committee confirming the Registrar’s decision is also invalid. For these reasons the appeal must is upheld and the decisions of the First and Second Respondent are set aside.

Orders

1. Appeal Upheld
2. Decisions of the First and Second Respondent are declared invalid and are set aside.
3. Certification for overseas Counsel
4. Cost against both respondent to be asses if not agreed.

THE COURT
Emmanuel Kouhota
Puisne Judge