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Attorney General v Eight South Investment Pty Ltd [2021] SBCA 10; SICOA-CAC 17 of 2019 (1 February 2021)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

I. Introduction

1. This notice of appeal was filed on 7 May 2019 with leave to file it out of time granted on 22 October 2019 against the judgment of the High Court delivered on 5^th April 2019 on a claim for Judicial Review.
2. In his judgment, the primary judge held that the Minister for Mines, Energy and Rural Electrification acted ultra vires his powers under section 71(1) and (2) of the Mines and Minerals Act [CAP 42] (“the MM Act”) thereby quashing the Minister’s decision of 24 May 2018 which cancelled the Respondent’s Prospecting licence (PL No.01/16).
3. This is now the subject of this appeal.

II. Background

A. Factual Background

4. The facts of this case are generally not in dispute. We record them from the judgment under appeal and also from submissions of Counsel.
5. The Respondent is formerly known under the business name – AU Capital Mining Pty Limited. The Respondent’s application to the Minerals Board (“the Board”) for a prospecting licence over Nende Island, Temotu Province, was granted to him on December 2015 as Prospecting Licence No.1/2016 (PL No.1/16) but it was actually given to the Respondent on 26^th April 2016.
6. It is common ground that the Respondent commenced prospecting activities on or around 28^th April 2016. The Respondent and personnel collected soil and sub-soil samples from separate sites in the area of PL No.01/2016. About 400 soil samples were sent to Australia for laboratory testing and analysis of assay.
7. It is also a fact that at the commencement of prospecting, the Respondent encountered resistance from various groups (Provincial government people on the ground and other investors). As a result, the Respondent ceased all prospecting activities and sought amicable solutions to the resistance and objections coming from various objecting groups – ranging from road blocks to threats of life to the Respondent’s company’s personnel. The Respondent elected to engage in dialogue, consultation and negotiation over the legal course. By the end of April 2018, a Memorandum of Understanding (MOU) was executed and a reconciliation program was also planned.
8. It is common ground that the Ministry of Mines and Minerals was aware of the problems the Respondent’s company was encountering through its quarterly reports. Officials from the Ministry also took part in the awareness programs held in mid-October 2017, in attempts to restore peace and normalcy.
9. The Ministry Officials Report noted the need for proper consultation to have preceded the granting of the prospecting licence. The Officials Report also noted that the opposing groups were not the land owners who signed the Surface Access Agreement with the Respondent’s company. But they were opposed to mining generally.
10. On 9^th March 2018, the Board met and discussed over the Respondent’s licence issue of concern on the non-commencement of the Respondent’s company’s prospecting in the tenement areas on Nende Island, since the grant of PL No. 1/2016 in December 2015. The Board has resolved to formally seek advice with regards to show cause and advise the Minister to request AU Capital Mining Ltd to show cause.
11. In a letter dated 23^rd April 2018, the Attorney General gave advise to the Board that the Board advised the Minister to issue show cause letter to AU Capital Mining Ltd as resolved by the Board in its meeting of 9^th March 2018.
12. In a letter dated 25^th April 2018, the Minister responsible for Mines and Minerals issued a show cause notice to the Respondent company (under its former business name), among other matters, to the following effect:
    • “... as the Minister responsible, in accordance to the powers conferred to me under section 71(1) and (2) of the Mines and Minerals Act 1990(sic), I hereby give AU Capital Mining PTY Ltd holder of Prospecting Licence PL 01/16, 14 days from the date of this letter to show cause as to why your rights under Prospecting Licence should not be cancelled..”
13. The Respondent Company, shortly after the show cause letter by the Minister responded to the show cause notice of 25^th April 2018. The Response to show cause notice was undated but it was signed by the Director of the Respondent company (Scott Dodd) and another. The Response of the show cause Notice referred to the Notice for show cause issued by the Minister on 25 April 2018 and provided reasons as to why the prospecting licence PL No.01/16 should not be cancelled.
14. By letter dated 24^th May 2018, the Minister advised the Respondent Company of his decision to cancel Prospecting Licence PL 01/16 effective immediately.
15. It is common ground that the Board did not assess the situation in light of the Respondent’s response to the purported Notice of show cause issued by the Minister on 25^th April 2018.
16. It is also common ground that the Board did not advise the Minister to cancel the Prospecting Licence PL No.01/16 due to the fact that the Board did not have the opportunity to assess the situation in the light of the Response and advice the Minister to cancel the Prospecting PL No.01/16.

B. Procedural Background

17. On 16 July 2018, a claim was filed by the Respondent (then claimant) seeking judicial review of certain decision of the Minister for Mines, Energy and Rural Electrification and the Director of the Mines and Minerals Board. The reliefs sought included interim reliefs, including interlocutory injunction against the Respondent.
18. From the month of August to October 2018, an application for interlocutory injunction was filed and heard; a ruling was delivered on the interlocutory injunction and granted. A chapter 15 conference was held; a ruling on the chapter 15 conference was delivered. The claim was to proceed to trial.
19. On 6 November 2018, the Respondent filed an application for determination of 6 preliminary issues. A statement of agreed facts was also filed.
20. The application on preliminary issues was partly heard on 23 November 2018 and an amended statement of agreed facts was further filed on 12 March 2019. The hearing of the application on preliminary issues was concluded on 14 March 2019.
21. On 05 April 2019, the judgment now on appeal was delivered.

III. Judgment appealed against

22. In his judgment, the primary judge held that the Minister for Mines, Energy and Rural Electrification acted ultra vires his powers under Section 71(1) and (2) of the Mines and Minerals Act [CAP. 42] thereby quashing the Minister’s decision of 24 May 2018 which cancelled the Respondent’s prospecting licence (PL No. 01/16).
23. It is noted that in the judgment, the court below considered and decided one (1) of the six (6) substantive preliminary issues raised by the Respondent. That was whether the Minister was ultra vires the Mines and Minerals Act (CAP 42) (as amended) (‘MM ACT’), the Mines and Minerals Regulations 1996 (as amended) (“MM Regulations”) and the Respondent’s Prospecting Licence No. PL01//2016 (“PL 01/16”).
24. The Judge in the High Court did not make any specific ruling on the remaining 5 preliminary issues raised on the basis that if the determination given by the court to issue 1 is in the affirmative, it will then disposed of all other five remaining preliminary issues. This was how the court below proceeded.

IV. Ground of Appeal and cross-appeal

25. The Appellant, initially, appealed against the interlocutory and final ruling of the High Court delivered on 19 October 2019 and 5 April 2019 respectively, on three grounds. The first and second grounds of the Appeal related to the interlocutory rulings made on 19 October 2018. However, the Appellant abandoned these First and second grounds of appeal in their written submissions. The Appellant now concentrates on the 3^rd ground of appeal on the final ruling of the High Court delivered on 5 April 2019.
26. It is also noted that the cross-appeal filed by the Respondent on 18 December 2019 was discontinued by notice filed 11 August 2020.
27. The only ground of appeal is ground 3. It is that the learned trial judge erred in law and fact in its ruling on 5 April 2019 in holding that the Minister for Mines, Energy and Rural Electrifications acted ultra vires his powers under Section 71(1) and (2) of the Mines and Minerals Act [CAP. 42} and thereby quashing the Minister’s decision of 24 May 2018.

V. Submissions on appeal

A. Appellant’s Submissions

28. The Appellant’s main position is that the primary finding of the Court arises from a mis-interpretation of section 71 of the Mines and Minerals Act. The court relegates the role of the Minister to one of “rubber stamping” decisions of the Mines and Minerals Board when in fact this is not borne out if one construes the relevant provision in section 71(2) of the Act, properly.
29. The Appellant contends that a literal interpretation of section 71(2) affirms the position that the Minster rather than rubber stamping decisions of the Board, is vested with a measure of discretion before making a decision pursuant to section 71. The Minister is the ‘decision’ maker whilst the Board has an ‘advisory’ role only.
30. The Appellant contends that the Court below erroneously conflate the role of the Mines and Minerals Board into an advisory one and a decision maker.
31. The Appellant further states that there are a number of decisions in this jurisdiction and whether a decision maker must act in accordance with the advice of a relevant body, however, the Appellant contends that they are distinguishable from the present matter.
32. The Appellant contends further that the correct sequence of events are as follows:-
    • (1) The Board meets and resolves to advise the Minister pursuant to Section 71(1) to suspend or cancel a permit, licence or mining lease;
    • (2) The Minister on receipt of the advice from the Board shall comply with the show cause notice and it is the Minister who receives the Response and decides if the Response is inadequate whether to take the action recommended by the Board (may take such action as specified in subsection (1) or in the case of any breach ... etc).The Board has no role to play in the show cause process;
    • (3) Even if the Board had advised the Minister to cancel a licence the Minister after complying with Section 71(2) had the discretion to decide what to do. It is clear from the wording of Section 71(1) and (2) that there is no need for the Board to convene a meeting after the show cause process has been complied with for the sole purpose of advising the Minister again to cancel the Respondent’s licence given the Minister is vested with discretion on the “decision” to make.
33. It is argued the Minister had sufficient material on which to justify his decision to cancel PL01/16.
34. The Appellant seeks relief sought in the Notice of Appeal filed on 7 May 2020, as applicable that the ruling of the trial judge of 5 April 2019 in holding that the decision of the Minister dated 24 May 2018 was ultra vires Section 71(1) of the Act [CAP. 42] be set aside and his decision terminating PL 01/16 be affirmed.

B. Respondent’s submissions

35. It is the Respondent’s position that on this ground of appeal, the Minister did act ultra vires his powers under the MM Act and the Court below was justified in making that finding and declaring the ensuing decision null and void.
36. The Respondent submitted that the powers of the Minister to grant a licence and to suspend or cancel that licence may only be exercised on the advice of the Board. Those powers are respectively set out in Section 6(a) and Section 71(1) and (2) of the MM Act.
37. The Respondent emphasized that whether the Minister issued a prospecting licence or suspended or cancelled such a licence, the Board must first advice the Minister to take that action. The Respondent noted that so long as such advice is lawful and valid, the Minister has no discretion to refuse to act in accordance with that advice.
38. The Respondent accepted that where the Board advised to suspend or cancel a licence under Section 71(1) of the MM Act, the Minister has some discretion under subsection (2) of that provision. However, the Respondent submitted the process for suspension or cancellation of a licence under Section 71 of the MM Act involves two stage decisions. The first is a decision by the Board to recommend that the licence is suspended or cancelled. The second is a decision by the Minister to act on a show cause notice.
39. The Respondent submitted further that the Board’s power to make that decision is only enlivened if the Board is satisfied any of the matters set out in Section 71(1) (a), (b) or (c) exists. The Board may become aware that a licence holder’s actions/omissions or circumstances are captured by any of those provisions or some other person makes a complaint against the licence holder to the Board. Before the Board makes a decision, it may wish to conduct further inquiry into the allegation. The MM Act gives the Board and the Minister sufficient powers that could be used to conduct further investigation.
40. The Respondent referred to Section 6(c), (d) and (e) of the MM Act as an instance where the Minister is empowered, acting on the Board’s advice, to direct a licence holder by notice to provide among others, information specified in the notice; direct a licence holder to comply with the MM Act and the MM Regulations; and to direct a licence holder to comply with the terms of its licence or permit.
41. The Respondent went on and submitted that once further enquiries have been made using additional powers, the Board would be in a position to make a decision as to suspension or cancellation of the licence. Such enquiries would have already put the licence holder on notice of what is to come because the Minister, acting on the Board’s advice, would have demanded certain information or actions of the licence holder pursuant to Section 6(c), (d) or (e) of the MM Act. In the process, the licence holder may be called upon to give some explanation.
42. It is submitted that, if, based on such further enquiries, the Board is satisfied that any of the matters set in Section 71(1)(a), (b) or (c) of the MM Act exist, it may decide to advise the Minister to suspend or cancel the licence. In the present dispute, the Board would have decided to cancel PL 01/16 only if, following its investigations, it was satisfied that the Respondent:
    • (a) Had contravened the MM Act or MM Regulations; and/or
    • (b) Had committed a material breach of any of the terms and conditions of PL01/16 and the breach was not caused by an event beyond the licensee control which it could not have reasonably foreseen or avoided.
43. The Respondent submitted that as the Board is an entity that makes collective decisions through resolutions, making that decision required a Board resolution. A resolution to suspend or cancel the licence would then be conveyed to the Minister in writing.
44. On receipt of the Board’s advice, the Minister must invoke the show cause mechanism under Section 71(2) of the MM Act. That mechanism is triggered by a mandatory show cause notice from the Minister to the licensee. The licensee would have an opportunity to respond to the notice. Depending on the alleged wrongdoing by the licensee, it may have an opportunity to remedy a breach of its licence within a specified period. The Minister will assess the response, if any, while Section 71(2) does not expressly require the Minister to seek the assistance of the Board to assess the licensee’s response, it is consistent with the scheme of the MM Act that for such a technical task, the Board is best placed to assess the response and advise the Minister accordingly. At the end of the show cause process, the Minister may act as advised by the Board (suspend or cancel the licence) or give time for the licensee to remedy the breach (where there is an alleged breach of the licence itself). It is implied in Section 71(2) of the MM Act that if the licensee shows cause and, in the opinion of the Minister, it is adequate, the Minister may revoke the show cause notice.
45. The Respondent submitted that while the above construction of Section 71(1) and (2) of the MM Act is generally consistent with that of the Appellant in his submissions (save the steps before the Board gives its advice), in the present case, the processes described above were not followed.
46. The Respondent further submitted that the Respondent’s licence came under scrutiny at the Board meeting held on March 9, 2018. The Board had an opportunity to deliberate on the allegations against the Respondent and, if it so wished, to resolve to cancel PL 01/16. That, however, did not happen. Instead, the Board resolved to formally seek advice [of the Attorney-General] with regards to show cause and advise the Minister to request AU Capital Mining Ltd to show cause.
47. The Respondent submitted that the Board’s intention was clearly not to cancel PL 01/16 outright. The true intention of the Board was to use a show cause notice to put pressure on the Respondent and to assess its response. It is said that at the Board Meeting of 9 March 2018, the Board did not even consider suspension or cancellation of the licence. The options discussed were:
    • (1) To not deal with issue and let the licence simply expires;
    • (2) To not deal with the issue until and unless it expires and the Respondent applies for renewal of the licence, or
    • (3) To use a show cause notice and then assess the situation. Clearly, the Board went with option (3).
48. The Respondent, therefore, submitted that the board did not resolve to cancel, PL 01/16. The resolution to first seek the advice of the Attorney-General and then advising the Minister to issue a show cause notice cannot be treated as a resolution to cancel the licence. To cancel the licence, the Board needed to be clear as to its intention to cancel and the resolution must have to be clear and unequivocal.
49. The Respondent repeated the submissions that the true intention of the Board was to conduct further investigation into the allegations against the Respondent. The proper way to carry out such investigation would have been the use of the Minister’s powers under Section 6(b), (c) and/or (d) of the MM Act as the Respondent discussed in paragraphs 3.11 to 3.12 of his submissions.
50. The Respondent noted that the Board’s resolution was noted in the judgment under appeal at [16], as confusing. It sought to invoke the show cause mechanism simply to get some response and to then assess, the allegations against the Respondent. The Board was unclear because they had conflicting reports.
51. The Respondent further submitted that to the extent the Board purported to advise the Minister to issue a show cause notice, it was wrong and could not have lawfully have given such advice because, as the Respondent submitted above and also by the Appellant, the power to issue a show cause notice vests in the Minister. It is not for the Board to advise the Minister to issue such a notice. To activate the show cause mechanism, the Board had first to resolve to cancel PL 01/16 and to advise the Minister accordingly. The Minister would then be required to issue the show cause notice to fulfil the requirements of Section 71 of the MM Act and principles of natural justice. The respondent submitted that in this case, the Board’s power to advise the Minister to cancel PL 01/16 was never enlivened. At its meeting, the Board merely noted the conflicting allegations and wanted to assess those situations. The Board decided, wrongly, the Respondent submitted, to use the show cause mechanism to make that assessment. As a result, to date the Board has not made any definitive finding that the Respondent has contravened the MM Act or MM Regulations or has breached the terms of PL 01/16. Because the Board’s power was not enlivened, it did not make, and could not lawfully have made, a decision to cancel the licence.
52. The Respondent finally submitted that given that the Board never resolved to cancel PL 01/16 and never gave written advice to the Minister to take that action, the Minister’s power to issue a show cause notice to the Respondent under Section 71(2) of the MM Act was not enlivened either. In those circumstances, in purporting to exercise that power, the Minister was ultra vires the MM Act. The Respondent submitted the court below was correct in its finding and decision now under appeal. The appeal should, therefore be dismissed with costs.

C. Appellant’s reply submissions

53. In his reply submissions, the Appellant maintained his argument that the Court below and the Respondent in its submissions maintained that the Minister is a mere functionary who must always act in accordance with the advice of the Mines and Minerals Board in relation to the grant and cancellation of licences. The Appellant submitted that this is a misunderstanding of the role and the statutory powers he exercises under the Mines and Minerals Act. The Appellant submitted the court below erred on its finding on the role of the Minister under the Act.
54. The Appellant pointed out that the Respondent’s counsel in his written submissions did not support the finding (or reasoning) of the primary judge that the Board was validly using the show cause process under Section 71 of the Act as an additional mode of enquiry prior to making the ultimate decision. The Appellant noted that the Respondent’s counsel rightly pointed out in his submissions that if the Board needed to make enquiry it could have used the Minister’s powers under Sections 6(b), (c) and (d) of the Act. It ought not to have used Section 71. The wording of Section 71 clearly militates against this construction relied upon by the High Court. The appellant submitted the Appellant supports the Respondent’s position on this issue and it must mean that the Court below erred on this point.
55. The Appellant further contended that the Mines and Minerals Board did not use Section 71 as an enquiry conduit for more information as both the Minister and the Board had more than sufficient information, as outlined in paragraph 4(ii) to (h) at page 6 of the Appellant’s submissions in response filed 4 November 2020.
56. The Appellant finally re-emphasized one of his earlier contentions that in addition to Section 71(2), the Minister has power pursuant to Section 36(a) of the Interpretation and General Provisions Act [CAP. 85] to cancel the prospecting licence of the Respondent subject to procedural fairness in the manner it was done. In the circumstances of the case under appeal, the Minister’s decision to cancel the licence was subject to the issue of a show cause notice on 25^th April 2018 which the Respondent responded to.
57. Based on the above, the Appellant repeated his contention that the ruling in the High Court that the Minister acted ultra vires his powers under Section 71(1) and (2) of the Act is simply unsustainable and must be overruled by this Court with costs (if the appeal is successful).

VI. Discussion

58. We thank Counsel for their helpful submissions and assistance.
59. This appeal raises a short point of the proper application of Section 71(1) and (2) of the MM Act. The point of focus, here, is that when the Board is considering an issue under s.71(1)(a), (b) and (c) and the Board needed further information from the Respondent (as a holder of a licence) or any person for further enquiry or investigation before the Board advises the Minister under s.71(1) to exercise his powers under s.71(2) to issue a show cause notice to the Respondent, whether the Board can proceed and use the process of show cause notice to request further information for inquiry or investigation under s.71(1)(2) of the Act?
60. Section 6(a), (b), (c) and or (d) and Section 71(1) (a), (b) and (2) are the relevant provisions of the MM Act under consideration. We set them out for ease of reference. They are as follows.
61. Section 6 provides:
    • “Powers of the Minister
    • 6. The Minister may at any time, on the advice of the Board –
    • (a) ...
    • (b) ...
    • (c) by notice, direct the holder of any permit, licence or lease issued pursuant to this Act to produce ... information as may be specified in the notice;
    • Direct any person to comply with the provisions of this Act or regulation make thereunder ...”
    • Section 71(1)(2) provides:
    • “Suspension and cancellation by the Minister
    • 71. (1) The Minister on the advice of the Board may suspend or cancel a permit, licence or mining lease in the event that the holder –
      • (a) Contravenes any provisions of this Act or any regulations made thereunder;
      • (b) Commits a material breach of, or fails to comply with or observe, any provision of his permit, licence or mining lease unless such breach is due to an event beyond his reasonable control which could not have been reasonably foreseen or avoided; or
      • (c) ...
    • (2) The Minister, before exercising his powers under sub-section (1), shall call upon such holder to show cause within reasonable time as he may specify, why the holder’s rights should not be suspended or cancelled, as the case may be, and if such holder fails to show cause within the time so specified or if the cause shown is, in the opinion of the Minister, inadequate, the Minister may take such action as specified is subsection (1), or in the case of any breach mentioned in paragraph (b) of sub-section (1) may allow such holder to remedy such breach within such time as the Minister may specify.”
62. We are of the view that what the Board did in using the show cause notice process under s.71 (1) (2) as a conduit for further inquiry or investigation is clearly wrong. We accept the submissions of Counsel for the Respondent and the Appellant’s related additional submissions on this point also are in accord with this view, that Section 6 (c) and (d) of the MM Act is the right course to take in such a circumstance. Relevantly, here, under s.6 (c), the Minister may at any time, on the advice of the Board, by notice, direct the holder of any permit, licence or lease to produce information as may be specified in the notice. We note that section 6 is one of the sections of the MM Act under Part II dealing with – Administration.
63. We also note and emphasize that s.71(1) provides specifically for circumstances under which a suspension or cancellation of a permit, licence or mining lease may happen, if and when considered, and if the circumstances described in paragraphs (a),(b) or (c) exist, then, the Board has to advise the Minster to that effect, accordingly.
64. We further note and emphasize that the Minister will then exercise his statutory duty under s.71(2) with the issuance of a show cause notice to the holder of the permit, licence or lease in question, as to why his permit, licence or lease should not be suspended or cancelled, with a specified date for a response to be filed. Once a response is fled, the Minister has also to consider and determine the issue of suspension and or cancellation of a permit, licence or lease in the circumstances provided for under s.71(2).
65. Consequently, we accept the appellant’s submission that the reasoning (or finding) of the primary judge that the Board was validly using the show cause process under Section 71 of the Act as an additional mode of inquiry prior to making the ultimate decision to advise the Minister pursuant to s.71(1)(2) was wrong.
66. The show cause notice under Section 71(1) (2) is a mandatory requirement for advising the Minister for suspension or cancellation of a permit, licence or mining lease. The advice of the Board requesting a show cause notice without advising the Minister for suspension or cancellation of the licence but for information for further inquiry or investigation, cannot be deemed to be a show cause notice under s.71 of the Act.
67. On the facts of this case under appeal, there was no resolution of the Minerals Board of its meeting of 9 March 2018 advising the Minister to suspend or cancel the Prospecting Licence (PL 01/16). The Board’s resolution was to exert pressure on the Respondent and then, to assess the situation in light of the Respondent’s response. The Respondent provided an undated but signed response. It is not disputed that the undated response was the Respondent’s response.
68. In the event that, the response of the Respondent (despite the circumstance of its making) is treated or intended to be considered as additional information sought by the Board for its further inquiry or investigation, we make the following two (2) observations. The first is that the Board did not assess the situation in light of the Respondent’s response to the purported show cause notice issued by the Minister on 25^th April 2020. The second is that the Board did not advise the Minister to cancel the Prospecting Licence PL No. 01/16 due to the fact that the Board did not have the opportunity to assess the situation in light of the Respondent’s response in such the circumstance of this case. On the proper construction of Section 71(1) of the MM Act, the Minister cannot unilaterally decide to suspend or cancel a permit, licence or mining lease. There must be advice from the Board to the effect that the permit, licence or lease should be suspended or cancelled. There was no such a piece of advice here in this case as found by the trial judge. The mandatory pre-requisite to the exercise of the discretionary power by the Minister by Section 71(2) of the Act has not occurred.
69. Undisputedly, the cancellation of the Prospecting licence under Section 71(1) (2) of the Act has been determined by the Minister on 24 May 2018 without a valid advice by the Board which led to an invalid show cause notice, resulting in breaches of the principles of natural justice. It is trite law that any decision passed by the Minister suspending or cancelling a permit, licence or mining lease in contravention of the principles of natural justice, cannot be sustained. See also the judgment of this Court in SMM Solomon Ltd v Axiom KB Ltd [2016] SBCA 1 on this point.
70. We are of the view that, taken the factual circumstances of this case, the submissions of the Appellant to the effect that Section 71(2) of the Act empowers the Minister to proceed with the cancellation of the licence on the basis that an advice to show cause notice has been given by the Board to the Minister, the Minister has acted upon it to issue a show cause notice to the Respondent to show cause as to why his prospecting licence (PL 1/16) should not be cancelled, a response to the show cause notice has been provided by the Respondent and the Minister has made a decision to cancel the licence on 24 May 2018, and therefore, there is no need for further investigation and advice by the Board as the Minister had sufficient material information and the Minister has also additional powers under Section 36(a) of the Interpretation and General Provisions Act [CAP. 85], to cancel the licence, cannot be accepted and we reject them.
71. Section 71(1) is applicable only to self-assessment made by the Board based on ascertained facts that the circumstance (s) described in s.71 (1) (a) or (b) is or are met to the satisfaction of the Board which is the sine qua non condition for an advice by the Board to the Minister for the Minister to use his powers under s. 71(2) to show cause the Respondent as to why the Prospecting Licence should not be cancelled. We note that s. 71(1) is not applicable to the determination made by the Minister under s.71 (2).
72. The statutory regime of s.71 (1) (2) of the Act places emphasis on the right of a holder of a permit, licence and mining lease because of its consonance with the rules of natural justice. An opportunity to be heard is intended to be afforded to the Respondent who is likely to be prejudice when the decision of suspension or cancellation of the licence is made before the making of that decision. The notice of show cause is condition precedent. Therefore, the show cause notice shall be issued only after proper inquiry or investigation of the matter in all its aspect is carried out, that is to say, when the necessary inquiry/investigation and critical examination of facts and evidence are completed by the Board and the Board advises the Minister to suspend or cancel the permit, licence or mining lease based on such findings.
73. The steps described above did not happen in this case. The problem in this case started with the Board itself when the Board needed information for further inquiry or investigation from the Respondent, sought advice from the Attorney General Chambers on the purpose and use of the show cause under s.71 (1). The advice from the Attorney General Chambers was to the effect that the Board can advise the Minister to issue the notice of show cause for further information under s.71 of the MM Act, which was plainly wrong. The Minister had issued a purported notice of show cause to the Respondent on 25^th April 2018 which was also based on the Minister’s own ascertained facts (or allegations) and the show cause notice was therefore invalid as it was made in contravention of s.71(1) (a), (b) of the Act. The situation in this case was worsened when the Minister was capitalizing on his own ascertained facts, considered the Respondent’s response to the invalid show cause notice and determined to cancel the Prospecting Licence No. 1/16 on 24 May 2018 without a valid advice by the Board pursuant to s.71(1) of the Act.
74. We, therefore, agree with the judgment of the High Court that the Minister for Mines, Energy and Rural Electrification acted ultra vires his powers under Section 71(1) and (2) of the Mines and Minerals Act [CAP. 42] thereby quashing the Minister’s decision of 24 May 2018 which cancelled the Respondent’s Prospecting licence (PL No. 01/16).
75. Before we dispose of this appeal, we wish to make a final observation in relation to the approach taken by the trial judge in the High Court, in the case under appeal. It is of concern that in considering the facts of this case and the practice and procedure under the statutory regime of the Board under the MM Act and Regulations made thereunder, the trial judge referred to his experience as a former Member of the Board and set out his personal knowledge of the Board governance practice as part of the criteria or test for his considerations leading to his judgment. We are of the view that it is quite wrong for a judge to use his own personal knowledge of the factual circumstances in a case before him in his judgment. The duty of a judge as a judicial adjudicator is to independently and fairly assess the facts put before him (by others) and apply the corresponding relevant law. It is to be noted that the personal knowledge of the practice of the Board by the judge may be based on a misapprehension of the proper role, functions and practice of the statutory body in question or otherwise. There is finally a real danger or risk in that, in such a circumstance, a judge could be seen as not acting as an independent judicial adjudicator making his assessment fairly on the factual circumstances but as an expert witness using his personal knowledge in his own judgment.
76. In the present case under appeal, however, we are satisfied that the trial judge’s conclusive findings were sound and based in law.

VII. Disposition

77. On the basis of the above, we agree with the trial judge that he had reached the right conclusion, although, we differ from his reasoning and finding on the use and purpose of the show cause notice under Section 71(1) and (2) of the Act.
78. We, therefore, dismiss the appeal.
79. The Respondent shall be entitled to costs of and incidental to the appeal on the standard basis.

Goldsbrough P
Lunabek JA
Member
Gavara-Nanu JA
Member