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Vakafua v Minister for Finance [2023] TVHC 11; Civil Case 1 of 2021 (5 December 2023)

IN THE HIGH COURT OF TUVALU 2023


CIVIL CASE 1/2021


BETWEEN
LAMA LATASI VAKAFUA
First APPLICANT


HON. MACKENZIE
SECOND APPLICANT


TINGSHENG ZENG
THIRD APPLICANT


POLAU KOFE
FOURTH APPLICANT


MELELAKI FALESA
FIFTH APPLICANT


KAVEGA KIATOA
SIXTH APPLICANT


AND
MINISTER FOR FINANCE
FIRST DEFENDANT


ATTORNEY GENERAL
SECOND DEFENDANT


Before Hon Judge Sir John Muria
Hearing 8th November 2022, 13 & 21 March, 11 & 14 April 2023


Ms F Nelu for Plaintiff
Ms S Aitcheson for Defendant


JUDGEMENT


Muria J: The applicants, having been granted leave on 23rd February 2022, brought this application seeking judicial review of the decision by the Government of Tuvalu prohibiting trading on Sunday pursuant to the Trading Hours Regulation 2020 which was signed by the first respondent on 21st October 2020. The Regulation became effective on 6th December 2020.

Brief background

2. Prior to making of the Trading Hours Regulation, announcements were made to the public, including by radio broadcast, that the Government was intending to ban trading on Sundays. There were concerns raised, especially by the business community, of the effect of the Sunday trading ban on the business houses and others who used to do shopping on a Sunday. As a mark of protest against the proposed Sunday trading ban, the members of the Tuvalu business community, represented as the Tuvalu Importer, wholesaler and Retailer Association (TIWRA) took the decision to close their shops on Saturday 5th October 2020 for the whole day. Further meetings between the business community and the Government were held to address the concerns of the business community.

3. Apart from the meetings, the applicants, on behalf of their business entities, wrote a letter on 13th October 2020 to the Minister raising their concerns and giving their arguments against the total ban on Sunday trading. They further stated that they had no difficulty with the previously imposed Sunday trading hours of 6:00 am - 9:00 am and 5:00 pm - 8:30 pm. Among other things, the letter also raised the discriminatory effect of the Sunday trading ban on other religious denominations, especially those who do not observe Sunday as their day of Worship. The Letter is attached to the affidavit of the second Applicant as Exhibit 1. I set out the letter here, since it forms part of the background to the case.

13 October 2020

"Hon. Minister of Finance
Ministry of Finance
Funafuti
Dear Sir,
Proposed Sunday Trading Ban
We the Tuvalu Association of Importers Wholesalers & Retailers would like to seek Cabinets reconsideration of its decision of the proposed Sunday trading ban as announced by the Hon. Prime Minister in his speech on Independence day earlier on this month.
We see our opening on Sundays does not interferes wit the traditional lifestyle of Tuvaluans going to church and resting on Sundays. Our Sunday opening hours cater for such as we open in the morning at 6 - 9 am on Sunday morning and from 5 - 8.30 pm in the evening. Sunday Church worship starts at 10 am in the morning for an hour or so.
We have also found out that our opening on Sundays have helped the public with their preparation for their Sunday meals/tonai and especially those who do not have fridges to store their frozen goods/perishable items such as chicken. According to researches done by the Shop-owners out of the 600 plus households here on Funafuti, only about 30% have fridges. With such data, it shows that not all households have fridges, and as we all know a lot of people share fridges in a way that they use either their neighbours fridges or their relatives. So this proposed Sunday ban would directly create hardship to those who do not own fridges for storage of perishable goods.
This might even lead to those without fridges purchasing frozen goods on Saturday evening and leaving them until Sunday morning to cook them and this might affect them with the quality of the meat deteriorating overnight and they might even get food poisoning. This would of course create more problems and hardship.
There are also those who do not observe Sunday as their Sabbath. This would discriminate against them as their activities on the Sunday may be curtailed. There are those who go out fishing on Sunday and sell their catches also on a Sunday.
Further for shop-owners this means a loss in revenue and with employees a loss of extra hours as on a Sundays its double-time for them which brings in more revenue. A Sunday trading ban is a loss to employees who work hard to make ends meet.
Sunday trading is one of the most popular shopping days in the morning and also in the evening. One could hardly find a parking space for motor bikes, not mentioning cars, in those few opening hours."

4. On 23rd October 2020, that is two days after the Minister signed the Regulation, the representatives of the business community again met with the Minister to try to dissuade the Government from proceeding with a total ban of Sunday trading. That meeting did not produce any common resolution to the matter. The first respondent's response was that the decision had already been taken by the Cabinet and that the Government appeared to be adamant about implementing what they have already decided on.

5. It also appears from the materials before the Court that there were suggestions that there "has been long outstanding request from the Ekalesia Kelisiano o Tuvalu (EKT) to the Government to ban trading on Sunday". See the Affidavits of the First, Second and Third Applicants and First Respondent.

6. The Regulation has been in force since 6th December 2020.

Grounds of Review

7. In support of their application for Judicial review, the applicants relied on three main grounds, namely;

1. That the Minister acted in excess of his power under the Empowering Act

2. That the Minister has acted with procedural impropriety, and
3. That the Minister acted in breach of the applicants' basic rights protected in the Bill of Rights provisions under the Constitution.

8. Both sides to the case supported their grounds and arguments with affidavits. Both parties have also relied on a number of case law authorities in support of their cases.

9. I feel that it is convenient that I deal with the Constitutional argument first before proceeding to the other grounds.

Whether breach of the applicants' Constitutional Rights

10. It is the case of the applicants, under this ground, that the Trading Hours Regulation 2020 signed by the Minister into law on 21st October 2020 banning Sunday trading impinges upon the basic rights of the applicants as protected in the Constitution of Tuvalu. The argument for the applicants under this ground is on two prongs. The first is based on the suggestion that the Government's action in making the Trading Hours Regulation was mainly due to the request of the Ekalesia Kelisiano o Tuvalu (EKT) to ensure that Sunday is a day of prayer to be kept holy. It is argued that the EKT being the predominant church in Tuvalu, comprising about 80% of the population, exerted its influence on the Government to ban Sunday trading disregarding the interest of other church denominations in Tuvalu, as well as disregarding the interest of the business community and general public at large. The tenor of the applicants' argument is that the Trading Hours Regulation 2020 imposes or has the effect of imposing restrictions on the religious freedoms of the applicants and the people in general in Tuvalu. In this regard I feel it is convenient that I set out the provisions of the Constitution relied on by the applicants.

11. I feel that I need to say at this stage before going into the arguments in this case that generally, Sunday trading laws are not unconstitutional or unlawful per se. Many countries in the world have, by statutes or regulations, regulated Sunday trading. I say generally because they may be instances where Sunday trading laws may trample upon a person's rights and freedoms as set out in the Bill of Rights or Constitution in a particular country. For example, in Canada, the Supreme Court struck down the Lord's Day Act as violating the Canadian Charter of Rights and Freedoms in R -v­ Big M Drug Mart Ltd 1985 CANLII 69; [1985] 1 SCR 295. In Australia, most states allow Sunday Trading. In New Zealand shop opening hours are liberalized with a few restrictions. In Cook Islands, Niue and Tonga there are restrictions on Sunday Trading.

12. I will now turn to the Constitutional provisions relied on by the applicants. Section 23(1) and (2) of the Constitution provide as follows:

"(1) Subject to the provisions of this Part, an in particular to -
except with his consent no-one shall be hindered in the exercise of his freedom of belief.
(2) For the purposes of this section, freedom of belief includes­

13. The affidavit evidence from the second and sixth applicants, as well as from the first respondent, shows that the EKT made requests to the Government to ban Sunday trading. There is also suggestion as shown in the affidavit of Kavega Peiauni that the former Secretary General and Pastor of the EKT denied that the EKT made such a request. However, even if such a request was made by the EKT resulting in the making of the Regulation it cannot in my view, be said that the ban on Sunday trading directly restricts or has the effect of restricting the religious freedom of the applicants or anyone else. The Regulation bans Sunday trading, and does not restrict the freedom of religion.

14. It may well be that he request by the EKT to ban Sunday trading and the making of the Regulation would encourage adherents to the EKT followers or the adherents to other Christian denominations to attend Sunday Worship rather than shopping. For non-Christian denominations or denominations that do not observe Sunday Worship, the Regulation has no effect at all on their freedoms of belief.

15. The case of Teonea -v- Kaupule of Nanumaga [2009] TVCA 2; Court of Appeal, Civ A11 - 1 of 2005 (4th November 2009) referred to by the applicants is on a different footing. That case is concerned with the respondent's resolution directly prohibiting the appellant from Worshiping in the Island of Nanumaga. The Court of Appeal found and held that the resolution of the Falekaupule was contrary to the Constitution. In the present case, the Regulation complained of does not nor has the effect of prohibiting the applicants or any person of freely exercising their right to profess their religious beliefs.

16. The second point raised by the applicant under this constitutional issue relies on section 27 of the Constitution which protects a person's right not to be discriminate against by reasons of race, place of origin, political opinions, colors or religious beliefs or lack of religious beliefs. Section 27 states as follows:

"27. Freedom f om discrimination

17. The applicants' argument is that the ban on Sunday trading is giving more favourable treatment to the EKT than to the other religious denominations in Tuvalu. The applicants gave the example, of the Seventh Day Adventist Church and the Jehovah Witness who do not observe Sunday as a Holy day. In my judgment the applicants' argument that the Sunday ban on trading is discriminatory to the other religious denominations other than the EKT is untenable.

18. The Regulation bans Sunday trading, not religious beliefs or practices. The restrictions on trading on Sunday applies to every person. In other words, it applies to the general public. The constitutional argument based on section 27 of the Constitution cannot stand in this case.


19. I might add that Religious belief requires a person to observe his day of Worship. The Trading Hours Regulation does not require the applicants to choose to attend church worship or close their shops on a Sunday. The Regulation simply bans trading on a Sunday and leaves the applicants and for that matter, the public in general, to choose to attend church on Sunday or not. There is no compulsion to attend church on Sunday by any person at all, including those who do not keep Sunday holy. In this regard, I agree with the submission of Counsel for the respondents that the Regulation simply regulated a secular activity which is trading and has no nexus to banning anyone's religious belief. For those reasons the argument that the Trading Hours Regulation 2020 breaches the applicants' or the people's right to their religious beliefs is misconceived.

20. The resolution of this dispute over the validity or invalidity of the impugned Regulation does not lie in Constitutional applications of sections 23 and 27 of the Constitution. Rather this case falls to be determined on the proper construction of the enabling statute, namely the Companies and Business Registration Act 2008, in particular, section 7 and the application of the doctrine of Ultra Vires. To that I will now turn.

Ultravires

21. The doctrine of ultra vires commonly permits a person to bring judicial reviews proceedings to challenge the validity of delegated legislation. The present Trading Hours Regulation 2020 is such legislation. The ultra vires challenge can be both procedural and substantive.

(i) Procedural ultra vires

22. I deal first with the applicants' claim of procedural ultra vires. The applicants' case under this ground is that the procedure and the manner adopted by the Government in bringing about the Trading Hours Regulation 2020 were done without affording the applicants who are the affected stakeholders, the proper opportunity to express their views before the making of the Regulation. It is said that there was no proper consultation done prior to the making of the Regulation. Counsel for the applicants pointed out that when the first respondent met with the applicants on 23rd October 2020, he confirmed to the applicants that the Cabinet had already decided to bring in the Regulation and as such there was no need for consultation. As such Counsel for the applicants submitted that the Government has committed a procedural impropriety when it made the Regulation and so it is ultra vires.

23. In support of the applicants' case, reliance is placed on the affidavits of Mackenzie Kiritome, Lama Laatasi Vakafua, and Kavega Peiauni. With regard to the meeting with the first respondent, paragraphs 6 and 7 of Mackenzie Kiritome's affidavit state:

″6. THAT, it was agreed by the TIWR Association to write a letter to government seeking consultations and also to inform government of the negative impacts of the Sunday trading ban that they will impose on the business community. The letter to government is attached as Appendix 1.
7. THAT, the meeting was held on 23 October between the Hon. Minister and the Business community, and despite our submissions and our arguments about the negative impacts of the Sunday ban, the message that was conveyed to us by the Minister's reactions and responses was that the decision has already been taken by Cabinet and government appears to be adamant about implementing what they have already decided. ″

24. The respondents' counter argument is that the Trading Hours Regulation is part of the government's initiative or policy aimed at maintaining a "right balance between business opportunity to operate and the interest of society in terms of their Christian family social and traditional or customary values. " See paragraph 6 of the first respondent's affidavit sworn - to on 31st January 2022. As the first respondent stated in his affidavit, the Sunday trading ban is part of the policy measures taken by the government to preserve and uphold the interest of society. There are other measures also evidenced by the various regulations made by the Government and all came into effect on 6th December 2020. These Regulations are: The Observing of Evening Devotion Regulation 2020; Prohibition on the Consumption of Alcohol on Sundays Regulation 2020, and The Restrictions on the Movement of Children at Night Regulation 2020. See paragraph 7 of the first respondent's affidavit.

25. In response to the applicants' concern on the lack of consultation, the first respondent stated as follows in paragraph 8 of his affidavit.

"8. Paragraph 7. As the Minister responsible for any finance or business-related matters, I affirm that there were several meetings and discussions which covered this Sunday trading ban with the business community and one of them was held on the 23rd. October. Concerns were raised by the business community on the negative impacts of the Sunday ban. While confirming that the decision had already been taken by cabinet and government being adamant about implementing what they had decided, I also clearly explained the rationale behind this ban and why Government had come to such conclusion. I also confirm that meetings around this Sunday trading ban were only held with the business community but never were there any complaints raised directly to the government by religious organizations in that respect."

26. In my view there is only one issue to be determined on this procedural complaint by the applicants. That issue is whether it is reasonable for the Government to proceed to make the Trading Hours Regulation 2020 without consultation with the applicants. In other words, does the requirement of natural justice or procedural fairness ought to be observed by the Government before making the Regulation in question? The rule applicable in a case such as this, where a policy decision is taken by the Cabinet and implemented by a Minister, is that an executive decision not based on a statute or not having a judicial or quasi-judicial character, does not require the observance of the rule of natural justice or procedural fairness. Cabinet decisions involve political judgments, which are different from administrative or judicial or quasi-judicial decisions that determine the rights of individual. The court cannot interfere with a decision of policy or involve political objectives of the executive, even if the decision affects individuals such as the applicants.

27. In McGuiness -v- New South Wales and Others [2009] NSWSC 40; (2009) 73 NSWLR 104 the Premier of New South Wales issues the Government's proposal to impose new conditions on Hotel Licenses as "new measures to get tough on alcohol of related violence." It was held that the Cabinet's decision was not subject to procedural fairness constraints. The Court (Hall J) said:

"The fact of Cabinet participation in the decision-making process is also a matter that may, depending upon the facts, point against the existence of a duty to act fairly in relation to it. Mason CJ observed in O'Shea (supra), that if the decision is within an area that falls within the ambit or scope of Cabinet concern and decision-making, then procedural fairness may not apply. Certainly, decisions that truly involve political judgments are in a special category and, generally speaking, will not be amenable to challenge on grounds of procedural fairness considerations."

28. Similarly in the case of South Australia -v- O'Shea [1987] HCA 39; (1987) 163 CLR 378 a case in which cabinet policy considerations were taken into account in the decision whether to release a prisoner on license or not. Brennan J stated at p.411:

"Under the Act, an offender does not have to be heard by the Minister as to the level of community risk which should be accepted consistently with the public interest in releasing persons who have been declared incapable of controlling their sexual instincts. The public interest in this context is a matter of political responsibility (see per Lord Greene M.R. in Johnson & Co. v. Minister of Health (1947) 2 All ER 395, at p 399) and the Minister is not bound to hear an individual before formulating or applying a general policy or exercising a discretion in the particular case by reference to the interests of the general public even when the decision affects the individual's interests. When we reach the area of ministerial policy giving effect to the general public interest we enter the political field. In that field a Minister or a Cabinet may determine general policy or the interests of the general public free of procedural constraints; he is or they are confined only by the limits otherwise expressed or implied by statute."

29. In the New Zealand case of GREEDNZ Inc -v- Governor General [1981] NZLR 172, the property owners close to the site of the smelter challenged the Executive Council's decision to 'fast track' the procedure for the smelter development. They argued that as affected property owners, they were entitled to be served with copies of the application and to make submissions on it before the Executive Council decided on the application. The Court held that they were not entitled to a hearing before the Executive Council made its decision. Cooke J said at p.177:

"(i) The Executive Council, as the name implies, is the body at the apex of the governmental structure, necessarily dealing with major issues in a somewhat broad way. In New Zealand it is comprised of the same Ministers of the Crown as make up the Cabinet, a body existing by constitutional convention rather than law, and for the purposes of his case there is no practical distinction between the two. It would be very unusual to impose on this body of Ministers a duty of considering whether directly or even in summarized form, the view on matters of national interest and the economy of all the individual property owners affected by a proposal who happened to wish to make representations."

30. The above mentioned case law authorities were cited in the Papua New Guinea case of Koim -v- O.Neil and Others [2016] PGNC 344; N6558 (2 December 2016) where the Court said:

"......I accept the Defendants' submission that the fact that individuals may be affected by the decisions does not mean that the NEC was obliged to hear from those affected before it is to make a decision. Policy decisions, by their nature, are likely to ultimately affect individuals. If such obligation were to be imposed it would place a significant and unwieldy burden on the NEC which would be likely to severely curtail its ability to operate effectively. The decisions taken regarding TFS were policy decisions, not decisions made judicially to determine legal rights and obligations of the TFS embers. There was no obligation on the NEC to accord the TFS team procedural fairness in making the decision regarding the TFS. "

31. The case law authorities referred to stand for the proposition that a cabinet or Executive policy decision is not an administrative or a judicial decision to determine the rights of those affected by the decision. There is therefore no obligation on the Cabinet or Executive to accord procedural fairness to such persons before it makes its decision even where the decision affects such persons.

32. The applicants in the present case will have to establish that the Government has an obligation to consult and to accord them with the right to be heard on its policy of curtailing trading on Sundays. On the evidence before the Court, the applicants have not shown that the government has such an obligation. In my judgment the government policy decision calumniating in the making of the Trading Hours Regulation 2020 had not transgressed any right of the applicants to be heard in this case before the said Regulation was made. There is no procedural ultra vires in this cas

(ii) Substantive ultra vires


33. On the question of substantive ultra vires it is submitted on behalf of the applicants that the first respondent exceeded his power under section 7 of the Companies and Business Registration Act 2008 when he made the Trading Hours Regulation 2020. Put another way, the contention of the applicants is that the ban on trading hours imposed under the Regulation is outside the scope of section 7 of the Companies and Business Registration Act 2008. That of course, demands that the court must first consider the enabling Act to determine if the subject matter (the ban on Sunday trading) covered in the Regulation is authorized by the enabling Legislation: Marat ­v- Hanjung Power Ltd [2014] PGSC 33; SC135 (4th July 2014). For this purpose I shall now turn to the Companies and Business Registration Act 2008, in particulars section 7 upon which the first respondent relied when making the impugned Regulation.

34. The Companies and Business Registration Act 2008 was enacted by Parliament in 2008 to deal with matters concerning the registration of companies and other business enterprises in Tuvalu. The long title to the Act states that it is "An Act to govern the Registration of Companies and other Business enterprises in Tuvalu." There is no provision in the Act that set out the purpose or objects of the legislation. However, the long title to the Act does provide some assistance in ascertaining the purpose or objects or the scope of the Act. It may not be definitive but it provides as a good guide to the general objectives of the statute: Black-Clawson International Ltd - v- Papierwerke Waldhof-Aschaffenbury A G [1975] UKHL 2; [1975] AC 591.

35. Section 7 of the Act is in the following terms:

"7. The Minister may make regulations to carry out the provisions of the Act, including but not restricted to the prescription of fees to be paid in respect of the filing of any document. "

36. Counsel for the applicants submitted that when one reads the long title together with section 7 of the Act, it is clear that the Act deals exclusively with the registration of companies and businesses, and does not empower the Minister to regulate trading hours for companies and businesses. As such Counsel contended that the Minister has acted in excess of his power under section 7 of the Companies and Business Registration Act when he made the Trading Hours Regulation 2020, regulating trading hours of Companies and businesses.

37. Counsel for the respondents, on the other hand, submitted that section 7 of the Companies and Registration Act 2008 empowers the Minister to make the Regulation now under challenge. Counsel finds support also under section 75 (1) (a) of the Constitution which deals with 'Assignment of ministerial Responsibilities'. Pursuant to section 75 (1) (a), the Head of State assigned the responsibility for the administration of the Ministry of Finance. It is said that included in that assigned responsibility is the registration of companies and businesses pursuant to the Companies and Business Registration Act and the regulations, which the Minister is empowered to make, are a means necessary and proper for the governance of the registrations and operations of such businesses. It is therefore contended that the Regulation under challenge is well within the assigned ministerial responsibility and the delegated power under section 7 of the Companies and Business Registration Act 2008.

38. To counter the applicants' argument that the purpose or objective of the Act is specifically to deal with matters pertaining to registration of companies and businesses, the respondents rely on the words "including and not restricted to" in section 7 as suggestive of the 'non-excusive list of regulations' that can be made by the Minister for the necessary or proper registration and operations of businesses.

39. Can it really, be truly said that when Parliament enacted the Companies and Business Registration Act 2008 it delegated along with it, the power to ban or restrict Sunday Trading? Or Is regulating trading hours a part of the means to enhance or carry out the purposes or objectives of the 2008 Act? More pointedly, does banning Sunday trading promotes, advances or enhances the objectives of the Act which are to deal with and better manage the system of registration of companies and business in Tuvalu? To my mind there is no logic, both in law or common sense, in advancing the argument that the promotion of a better registration system of companies and businesses in Tuvalu would be achieved by regulating trading hours on Sundays pursuant to the delegated powers under the Companies and Business Registration Act 2008.

40. Then there is the further argument for the respondent that the words "including and not restricted to" as suggestive of non-exclusive list of matters that the regulation can cover. I accept that the words referred to are suggestive of non-exclusivity but such non-exclusivity cannot venture beyond the objectives of the enabling legislation. Section 7 of the Act empowers the Minister responsible to make regulations to carry out the provisions of the Act, "including but not restricted to prescription of fees to be paid" in respect of filing documents. The plain meaning of those words is that apart from the prescription of filing fees, other items that are relevant and consistent with the objective of the Act may also be the subject of regulations.

41. Given the obvious objectives or scope of the Act, one would be forgiven to say that a regulation aimed at a better management of the companies and business registration system, apart from the prescription of filing fees, would be more within the remit of section 7 of the Act. Had this been the type of regulation made pursuant to the power under section 7, it would most likely survive the challenge in this case.

42. The case law authority Ashbury Railway Carriage and Iron Co -v- Riche [1875] UKLawRpHL 13; (1874-1875) LR 7 HL 653 relied on by the applicants is in point. In that case the objects of the Ashbury Railway carriage and Iron Company were spelled out in its Memorandum of Association, which was required for its incorporation. Those objects were: "to make or sell or lend on hire, railway - carriages and wagons, and all kinds of railway plant, fillings, machinery and rolling - stock,.." The Company, however, went on to enter into a loan contract with Riche and his brother to enable them to build a railway from Antwerys to Tournai in Belgium. The company later repudiated the contract and Riche sued the company. The company pleaded the doctrine of ultra vires. The Court held that action of the company in entering into a contract with the plaintiff (Richie) was outside the objective clause of the company's memorandum of association and therefore it was invalid and unenforceable, being ultra vires.

43.The decision in Ashbury was later modified in the UK by statute and by subsequent cases, including The AG -v- The Directors of the Great Eastern Railway Co [1880] UKHL 2; (1880) 5 App. Cas 473; Cotman -v- Brougham [1918] AC 514, and Bell Houses Ltd -v- City Wall Properties Ltd [1966] 2 QB 656. However, despite the impacts of the subsequent cases, the decision in Ashbury is important to "the doctrine of Ultra Vires and should be maintained: " AG -v­ Great Eastern Railway Co (above), per Lord Selborne at p.478.

44. Counsel for the respondent also sought to rely on the recent English case of R -v- (Palestine Solidarity Campaign of State for Housing, Communities and Local Government [2020] UKSC 16 (29 April 2020) to support the proposition that even where the purposes of the law are specified in the legislation, it is difficult to determine their scope. That may well be so but as that case pointed out, assistance can be obtained to ascertain the purposes or scope of the legislation by reading the legislation as a whole following the decision of the House of Lords in Padfield -v- Minister of Agriculture, Fisheries and Food [1968] UKHL 1; [1968] AC 997. Having done so, the High Court found that the Guidance issued by the Secretary of State to those who were administering the local government pension scheme were unlawful. The High Court's decision was upheld by the UK Supreme Court.

45. I have already indicated earlier that the purpose or objective of the Companies and Business Registration Act 2008 is clear, namely, "to govern the registration of companies and other business enterprises" in Tuvalu. When one reads the Act as a whole, if one needs to do so in order to ascertain the scope of the Act, it will become so plain that the Act purposely deal with following: registration of companies and partnerships (s.3), the Act does not apply to an external company (s.2A), limitation on foreign interests (s.3A), filing of annual balance sheet (s.4), conditions for the use documents (s.5A), offence (s.6), and power to make regulations (s.7). Even giving the most generous construction to the above provisions of the Act, the making of regulation, restricting trading hours, let alone total ban on Sunday trading, are plainly outside the remit of section 7. The action of the first respondent in making the Trading Hours Regulation 2020 imposing a ban on Sunday trading pursuant to section 7 of the Act ad is ultra vires. This is substantive ultra vires.

46. While the Minister is empowered by section 7 of the Companies and Business Registration Act 2008 to make regulation, that power does not authorize the Minister to make regulation, regulating trading hours, let alone banning completely trading on Sundays as he has done in this case. The exercise of his power under Section 7 of the Act in this case to ban Sunday trading was done in excess of that power and it is ultra vires. It is for that reason that I hold and declare that the Trading Hours Regulation 2020 signed by the first respondent on 21 October 2020 and made effective on 6th December 2020 is ultra vires the Act and it is invalid.

47. For the above reasons the applicants' application succeeds on this ground. The applicants shall have their costs of this application, to be taxed, if not agreed.

ORDER

48.

1. The applicants' application is granted.
2. The Trading Hours Regulation 2020 is ultra vires the Companies and Business Regisration Act 2008 and it is invalid.
3. Costs to the applicants to be taxed if not agreed.

Dated on the 5th December 2023.

Sir John Muria
High Court Judge

[This Judgment is also a tribute to the late Taukelina Finikaso who was the former Counsel for the applicants in this case]

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