Land Transport Appeals Tribunal
Sitting at Nausori					Appeal # 15    of 2016

Between:	Daya Ali
							Appellant

And:		Land Transport Authority
							Respondent

		Matelita Rokovi			Interested Party

Appearances and Representation:

For the Appellant: Mr L. Qetaki – Legal Aid
For LTA: Ms M. Ligabalavu
Interested Party: Present – In Person

Judgment 

Introduction

The Appellant has appealed the decision (dated 28th January 2016) of the LTA following a Show Cause dismissing the complaint by the appellant alleging that the interested party had given the taxi permit on hire to her. The decision of LTA was communicated through a letter dated 4th February 2016.  

The Decision

The decision of the LTA was as follows:

“2. 	The Land Transport Authority (Authority) in its resolution on 28 January 2016 had dismissed the show cause against Permit No T4124 on the following grounds:

a. 	That the materials and evidence submitted by Mrs Daya Ali the complainant clearly stated that there was no sale of permit.

b.	That Matelita Rokovi the permit holder had maintained control of Permit no. T4124 while hiring it out to Mrs Daya Ali.

c.	Provided that there was insufficient materials and evidence submitted by Mrs Daya Ali to confirm that there was a sale of permit, the Authority had decided that permit No. T4124 to remain with Matelita Rokovi the permit holder.”

Grounds of Appeal

The Appellant’s grounds for appeal are as follows:

“1.	THAT the Land Transport Authority erred in holding that there was insufficient materials and evidence submitted by Mrs Daya Ali to state there being a Sale of Permit conducted, being permit No: T4124. The Authority failed to consider that there were receipts and documentations tendered in this regards. 

2.	THAT the Land Transport Authority has failed to properly evaluate the receipts and documentations before coming to a conclusion on the Show Cause proceedings for T4124.
3.	THAT the Land Transport Authority have erred in holding that the evidence received against the permit holder lacked sufficiency even without detailing how, when all evidence pertaining to the allege sale of both vehicle and permit T4124 was presented before it. 
4.	THAT the Land Transport Authority have failed to conduct their own investigations as to the alleged Contravention of the Public Service Permit and were wrongful in holding that Matelita Rokovi the permit holder had maintained control over permit No. T4124 whilst hiring it out to Mrs. Daya Ali even though it was furnished with a copy of the letter from the permit holder itself confirming the same. 
5.	THAT the Land Transport Authority erred the law in not holding that the Appellant has been unfairly treated and failed to consider the unfair dealing done by the permit holder Matelita Rokovi and to proportionately order orders in accordance to it.
6.	THAT the Land Transport Authority erred in holding that the Permit Holder had maintained control of Permit No. T4124 whilst hiring it out to Mrs. Daya Ali when the Respondent does not have any evidence to support their stance. 
7.	THAT the Land Transport Authority erred in holding that the Permit Holder had maintained control of Permit Holder had maintained control of Permit No. T4124 whilst hiring it out to Mrs. Daya Ali when it is fully appraised with what nature of dealing has been undertaking by the Permit holder and how unfair it has been to the Appellant who has been responsible for taking care of the permit all this time and also paid the price of the same to the permit holder. 
8.	THAT the Land Transport Authority erred in not considering the submissions of the Appellants as such the Authorities decision is wrongful and flawed and tantamount to wrongful discretion.”
The Regulations and Procedures relating to powers of the Authority to cancel vary or suspend

Regulation 12 of the Land Transport (Public Service Vehicles) Regulations 2000 sets out the powers and the procedures in relation to varying, cancelling and suspension of a permit if a condition subject which the permit was granted has not been complied with. 

The Function and Powers of the Tribunal
Section 40 (2) of the Land Transport Act provides for the function of the Tribunal, which is “to hear and determine appeals against decisions of the Authority relating to -
(a)  licensing of drivers under section 56;
(b) any matter requiring a decision of the Authority under  Part VI ; and any other matter prescribed by the Minister by regulations.”
The powers of the Tribunal for the purposes of hearing and determining appeals according to Section 46 are to “(a) to issue a summons to a witness in the prescribed for ; (b) to call for the production of books, plans and documents; (c) to examine witnesses on oath or affirmation; (d) to admit any evidence whether written or oral and whether or not such evidence would be admissible in civil or criminal proceedings; (e) to exclude any person if necessary so as to ensure the proper conduct of the appeal or to preserve order.”

Furthermore, under Section 46 (2) “on an appeal under this Part the Tribunal may dismiss the appeal or make such order as it thinks just and reasonable in the circumstances directing the Authority to issue, transfer, or cancel any licence, certificate or permit, or to impose, vary, or remove any condition or restriction in respect of a licence, certificate or permit, and the Authority shall comply with that order.” And under Section 46 (3) “Upon the determination of an appeal under this section the Tribunal may make such order as it thinks just with the respect to the costs of the appeal, and any person to whom any such costs are awarded may recover the amount of those costs in any court of competent jurisdiction, as a debt due from the person against whom those costs are awarded.”
According to Section 47 the Tribunal “for the purposes of the hearing and determination of any appeal the Tribunal shall have regard to those matters which the Authority is required to have regard to in considering an application under this Act.”

Analysis

The Tribunal has noted the grounds of appeal filed by the appellant. The submissions made and all the documents filed in this appeal have been carefully perused by the Tribunal. 

From the Tribunals perusal of all the documents the Tribunal noted that the LTA received a complaint from the appellant alleging that the Interested Party, Matelita Rokovi was hiring out her taxi permit to the appellant. 

In this matter the Tribunal has noted that no proper records are made of any show cause notice, notification to the interested party of the allegations that were made against her. No minutes of the show cause proceedings exist. The show cause minutes needed to record appearances and representations. The minutes of the show cause proceedings need to record what transpired at the show cause. No recordings are contained of what was said by each party. The LTA must improve the show cause proceedings by properly recording what transpires at the show cause. Even in 2016 this practice has not been taken on board despite numerous reminders by the Tribunal. Without proper records of show cause the Tribunal from the report to Chairman has no idea what happened at the show cause proceedings. The report to the Chairman is the LTA report and it does not contain all the record of what transpired at the show cause.

Following certain processes the LTA determined that the Interested Party, Matelita was not selling the permit but hiring it out. The minutes of the Board show that the Board deliberations is “that permit to be remained with Matelita Rokovi as the evidence is clear that there was no selling of permit but she was hiring out to Daya Ali. She maintained control of her permit.” What comes out from the decision of LTA Board is that hiring out of permits is ok while selling of permits is illegal. The Board is creating dangerous precedents by remarking that by hiring the taxi permits one retains control. These clearly open doors for other permit holders to hire it out. What is the role of LTA? When they see such things happening. As the licensing authority LTA must ensure that they inform the public what is correct and acceptable. According to the Tribunal the hiring of the permit or for that matter any dealing of the permit should be illegal. The Tribunal would like to add that any assignment or hiring out must not be without the prior consent of the LTA. No permit holder has absolute right to assign the permit without prior consent of the LTA. Regulation 17 is clear and it states that the holder of a permit must not appoint an agent or representative for the purpose of exercising any rights in the permit nor cause or allow an agent or representative to exercise any rights under it except with the prior consent of LTA.  

The Tribunal would like to shed some light on the phrase “…the purpose of exercising any rights in the permit… nor… to exercise any rights under it”. Once an application is made to LTA and a permit is granted by LTA the permit allows one to operate a taxi. Rights in the permit mean the right to operate the taxi; this right is vested in the permit holder. The rights under the permit are those of reissue and renewal. The permit holder cannot assign, hire out, lease the permit to another to operate by appointing an agent or a representative.    

The permit grants the permit holder right to operate the taxi. The Tribunal is of the view that the words agent or representative has created some confusion as they generally connote the appointment of one to act for another or chose one to represent another. In this case such appointment or representation can even arise through the purported sale of the permit, hiring or leasing of the permit without the consent of the LTA. Put in simple terms any dealing of the permits which are the property of LTA is to be with the consent having been sought and granted by LTA.     

The Tribunal reads Regulation 17 to protect any sort of dealing by the permit holder by appointing an agent or representative. The agent or representative is appointed if the permit holder hires out the permit or sells through an agreement the permit to another without the prior consent of LTA. The person to whom the permit is hired out, leased or sold through an agreement becomes the agent or representative of the owner. Regulation 14 makes it clear that the Permit is the property of the LTA and is given on conditions to permit holders. When it expires, is suspended or revoked it is returned to the LTA. Regulation 17 in fact requires that any dealing of the permit must be with prior consent of the LTA. 

It is interesting to note that the LTA on 18th March 2016 wrote to the Interested Party, Matelita Rokovi warning her and reminding her on public service vehicle permit conditions. The letter states “please note that selling of permit is against Land Transport Authority Act 1998 and Regulations 2000.” While finding in the show cause is that Matelita hired her permit to Daya Ali and did not sell the permit the warning was issued on sale of permit.

As for the appellant after using the permit for 3 years she was keen to own the permit. She informed LTA that the permit was being hired by her and the permit holder does not need the permit and it should be given to people like her who need it. The Tribunal will not give the Appellant the relief she is seeking as she was benefitting and when the benefit stopped and the Interested Party took the permit away, she complained to LTA. The hiring out and use of the permit for all that duration was illegal, it was not with LTA’s consent. The appellant did not come to come with clean hands. Anybody who seeks equity must come to court with clean hands. If you raise your hands and it is soiled, you will show the stains. In this matter the Appellant entered into an illegal agreement to hire the permit of the Interested Party, she cannot now rely on the illegal dealing. 

This tribunal notes number of flaws in the respondent’s decision and rationale. However the appellant cannot succeed in this appeal due to her role in this matter as has been explained by the Tribunal. 

The appeal is dismissed. 

Orders

1. Appeal dismissed.
2. No orders as to costs.

Chaitanya Lakshman
Land Transport Appeals Tribunal
12th May 2017