IN THE HIGH COURT OF FIJI AT LAUTOKA
CIVIL JURISDICTION

Judicial Review No. 1 of 2011

IN THE MATTER of the Customs Act, 1986 (the Act)

AND

IN THE MATTER of a detention notice issued by the Comptroller of Customs to the authorized officer of General Machinery Hire Limited dated 3 December 2010 to detain four trailers and one molasses tanker (Vehicles)

BETWEEN:

GENERAL MACHINERY HIRE LIMITED, a duly registered company with its registered office at Bouwalu Street Lautoka.
Applicant

AND:

THE COMPTROLLER OF CUSTOMS, as the Chief Executive Officer of Fiji Islands Revenue and Customs Authority, a statutory body established by the Fiji Islands Revenue and Customs Authority Act 1998.
Respondent

Before: Priyantha Nāwāna J.

Counsel
For Applicant: Mr R Naidu 
 For Respondent: Mr B Solanki

Date of Hearing: 25 November 2011
Date of Ruling: 09 December 2011

RULING

1. The applicant, by his notice of motion dated 28 January 2011, applied for leave to apply for Judicial Review against the decision dated 03 December 2010 of the respondent-Comptroller of Customs.

2. Upon consideration of the application and the objections by the respondent at an inter-parte hearing, leave was granted on 28 February 2011 by this court.

3. The applicant, by his summons dated 07 June 2011 in terms of O.53 r.6 and O.20 of the High Court Rules, now seeks leave to amend the notice of motion for Judicial Review by adding one more ground on the basis that there was an appearance or a real danger of bias in the impugned decision dated 03 December 2010 alleging that:

(i)	The decision was made eighteen months after compounding the offence relating to uncustomed goods;

(ii)	The decision was taken after Mr Faiz Khan joined the board of the Fiji Islands' Revenue and Customs Authority (FIRCA), the employer of the respondent; 

(iii)	Mr Khan was 'apparently directly involved', though not on record, in the defence of these proceedings; and,

(iv)	A company, in which Mr Khan had a direct pecuniary interest, was in litigation with the applicant over a contract for which the vehicles were imported.

4. In support of the summons, an affidavit dated 07 June 2011 of Mr Ajnil Kumar Singh, authorized officer of the applicant, was filed. A further supporting affidavit of Mr Praveen Shiriwastow, a clerk attached to Qoro Legal, the city agent of the applicant's solicitors dated 28 February 2011, too, was filed.

5. Mr Ajnil Kumar Singh deposed in his affidavit that Mr Khan was a board member of FIRCA and that he (Mr Ajnil Singh) was informed that Mr Khan was appointed to the board on 23 September 2010. Mr Khan was also a member on the Board of Directors of Feroz Khan Transport Limited (FKTL), which was in litigation with the applicant over the contract of cartage of raw sugar and molasses as evidenced by the document marked AS21.

6. It was further deposed that, after the hearing into the application for leave for Judicial Review on 18 February 2011, he came to know of some developments, which appeared to be unusual, and referred to the filing of two written submissions on 18 and 21 February 2011 by the respondent.

7. Mr Ajnil Singh also referred to the affidavit dated 28 February 2011 of Mr Praveen Shiriwastow, which is to the effect that the clerk attached to Mr Khan's office had served the written submissions of 18 February 2011 on Qoro Legal, the city agent of the applicant's solicitors.

8. Mr Praveen Shiriwastow's affidavit dated 28 February 2011 supported the above position.

9. In light of the above, the applicant, through its lawyers by a letter dated 18 March 2011 brought to the notice of the respondent of the above facts and queried whether Mr Khan had an involvement of any kind in the proceedings of this case. The letter, which was self-explanatory, is marked as AS22.

10. The respondent, by a letter dated 24 March 2011 [AS 23] addressed to Mr Richard Naidu, the partner of the applicant's solicitors and the counsel in the case, undertook to reply within seven days; but, it was not replied to.

11. Mr Ajnil Singh raised the issues of delay of eighteen months to detain the vehicles in issue by the respondent; and, whether Mr Khan, being a direct shareholder of a rival commercial entity had had any part to play in the detention. Mr Ajnil Singh, therefore, urged that the additional ground of bias be allowed for a fair and reasonable adjudication of the matter in court.

12. Mr Jitoko Tikolevu, the Chief Executive Officer of FIRCA filed an affidavit dated 07 November 2011, in opposition to the summons to amend the notice of motion for Judicial Review. Mr Tikolevu, on the basis of the annex marked JT1, confirmed that Mr Khan was appointed as a member to the board of FIRCA only on 23 September 2010. It was stated in Mr Tikolevu's affidavit that Mr Khan had assisted drafting submissions and provided legal assistance as a member of the board and used Mr Khan's clerk to serve the documents on the applicant as it was found to be more practical and expedient given the location of the office of the applicant.

13. It was further deposed by Mr Tikolevu that the investigations into this case were begun much earlier than the appointment of Mr Khan to the board of FIRCA on 23 September 2010.

14. At the hearing on 25 November 2011 before me, Mr Richard Naidu, learned counsel for the applicant, renewed his complaint that the detention of the vehicles by the order dated 03 December 2010 was mysterious as it remained inadequately explained. He also complained that the respondent did not respond to his letter marked AS22 in regard to the conduct of Mr Khan in his capacity as a member on the board of FIRCA.

15 Mr Naidu, on the basis of the contents of the affidavit of Mr Ajnil Singh, sought to found a case of bias having regard to the directorships that Mr Khan was holding on FIRCA and FKTL. FKTL was a rival commercial entity, which engaged in the transport trade as the applicant did.

16. Mr Naidu relied on the Fiji Court of Appeal decision in Reddy Construction Company Limited v Pacific Gas Company Limited (1980) 26 FLR 121, where it was held that amendment should be allowed if it could be done without injustice of the other side.

17. The court in that case further held that the basis of an amendment was to ensure that the real issue is tried and the court should deal with the whole matter in contest between the parties.

18. It was further submitted by Mr Naidu that the Fiji Revenue and Customs Authority Act 1998 made a clear demarcation of functions of the authority and the comptroller and that the authority did not involve in the matters dealing with administration, enforcement, collection of revenue etc. under the Act. In light of the above, Mr Naidu submitted that, the admission that Mr Khan was directly involved in the case on 18 February 2011 at least gave room for apprehended bias.

19. Mr B. Solanki, learned counsel for the respondent, in response, submitted that the decision of detention of the vehicles dated 03 December 2010 was the culmination of a long-drawn investigation that lasted for more than a year, which was admittedly before the appointment of Mr Khan to the board of FIRCA on 23 September 2010.

20. I have carefully considered the submissions of learned counsel at the hearing. 

21. It appears that Mr Khan, being himself a lawyer and a member on the board of FIRCA and FKTL, should have advised himself not to be involved even at that level that he did in the proceedings of this case. Mr Khan's involvement in the case, even at that level, was improper; and, such conduct was capable of giving a perception that he was involved in the proceedings of the case. 

22. Notwithstanding the above observation, the real issue before me is whether the applicant has established any conduct on the part of Mr Khan to have persuaded the decision of detention of vehicles dated 03 December 2010. I am unable to find any evidence, as presented by the applicant or otherwise, that Mr Khan's conduct had anyway given rise to or contributed to the decision of 03 December 2010, which is being impugned in these proceedings. What has been complained before court is a post facto event, which could not have had a bearing in the decision in issue. 

23. In the result I find that there is no basis to allow the summons for leave to amend the notice of motion for Judicial Review as it has failed to satisfy the criteria laid down in the case of Reddy Construction Company Limited v Pacific Gas Company Limited. (supra) The application, in any event, is bound to fail in view of the failure to name Mr Khan as a respondent to allege bias.

24. The summons to amend the notice of motion for Judicial Review is refused.

25. I order the applicant to pay the respondent as costs of this interim hearing a sum of $ 1250.00 within twenty one (21) days of this ruling.

Priyantha Nāwāna
Judge

High Court
Lautoka
09 December 2011