Attorney General v K.C. Confectionery Ltd
| Jurisdiction | Trinidad & Tobago |
| Judge | Kelsick, C.J.,Persaud, J.A.,Bernard, J.A. |
| Judgment Date | 18 March 1985 |
| Neutral Citation | TT 1985 CA 6 |
| Docket Number | Civ. App. No. 75/1983 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 18 March 1985 |
Court of Appeal
Kelsick, C.J.;
Bernard J.A.;
Persaud, J.A.
Civ. App. No. 75/1983
T. Hosein, Q.C. L. Jones and N. Bereaux for the appellant
R.L. Maharaj and S. Persad for the respondent
Constitutional Law - Civil rights — Alleged infringement of respondent's right to equality of treatment — Alleged refusal by Minister to approve respondent's application to have the confectionery of the type they were manufacturing entered on the negative list — No statutory provision for applications to be made for negative listing of products — No evidence that Minister had refused the application — No infringement of the fundamental right to equality of treatment under s.4(d) of the Constitution.
I agree with the findings of fact and conclusions of law arrived at by Persaud, J.A. and Bernard, J.A. in allowing this appeal. In amplification of those judgments I offer the following observations.
These proceedings are by way of a constitutional motion in which at the hearings in the court below and before this court the fundamental right alleged to have been infringed is that of the individual to the equality of treatment from any public authority in the exercise of any function. That right is enshrined in s. 4(d) of the Constitution.
The respondents, although a corporation, are an individual for the purposes of s. 4(d). (See Smith v. The Attorney General and l.J. Williams Co. Ltd. Crim. App. 19/1980).
The Minister of Industry and Commerce (the Minister) whose acts or omissions are complained of, is a public authority, and one of the functions vested in him by or under the Trade Ordinance, 1958 (No. 19 of 1958) as amended, is to enter local products on the negative list thus restricting their importation by requiring a licence therefor and so protecting the manufacturers of such products from foreign competition.
Regulation 3(1) of the Import and Exports Control Regulations, 1941, reads as follows:
“The importation into Trinidad and Tobago of all goods are prohibited subject to such general or special exemptions as may be approved by the Competent Authority, except under licence from the Competent Authority.”
Regulation 21, as amended in 1943, provides:
“‘Competent Authority’ means any person appointed by (the President) for any of the purposes of the Regulations, and includes any other person acting on his behalf and subject to his general or special directions.”
By virtue of sections 79 and 80 of the Constitution the Minister of Industry and Commerce is the Competent Authority. His Permanent Secretary, acting on his behalf in pursuance of s. 85 of the Constitution published in the Trinidad and Tobago Gazette of October 20th, 1966, an Open General Licence in exercise of the powers conferred on the Competent Authority by reg. 3(1) of the 1941 Regulations. The licence was granted to all persons to import any commodity, with the exception of those goods specified in the Negative List appended thereto and goods from specified countries from which all goods continue to be subject to specific import license.
The contention of the respondents is that in the exercise of the Minister's functions under the Trade Ordinance the respondents’ application to have confectionery of the type they were manufacturing entered on the negative list should be treated in the same manner as other manufacturers whose products had been so listed; and in particular Charles Candy Company Ltd., a manufacturer of cocoa confectionery.
The first ground of appeal to which I direct my attention is that the learned judge misdirected himself on the facts and his decision cannot be supported having regard to the evidence.
From the primary fact found by the trial judge that “the respondents received no reply for seven years to their application to have their confectionery negative listed, except the stereotype form that the matter is receiving attention” he drew this inference:
“It is reasonable to assume that the Minister acting properly in the exercise of his functions would have been able to make a decision on the application within a relatively shorter period than seven years. It must therefore, be that he has simply refused to properly deal with the application; and refusing to do so for a period of seven years must be a refusal of the application itself. There cannot be in my view, any other inference which the court can draw. And another inference must inevitably follow viz. that the Minister has no good reasons for such refusal.”
The judge relied on dicta in Padfield and Ors. v. Minister Agriculture, Fisheries and Food and Ors. [1968] 1 All E.R. 694 H.L. by Lord Pearce at p. 714 H 1:
“I do not regard a Minister's failure or refusal to give any reasons as a sufficient exclusion of the court's surveillance. If all the prima facie reasons seem to point in favour of his taking a certain course to carry out the intentions of Parliament in respect of a power which it has given him in that regard, and he gives no reason whatever for taking a contrary course, the court may infer that he has no good reason and that he is not using the power given by Parliament to carry out its intentions.”
The facts in the instant appeal disclose that following a visit of the Minister of Industry and Commerce to the respondents’ factory in January 1976 the respondents wrote the respondents wrote to the Minister on July 30th, 1976, a letter contents of which follow.
The Minister had informed them that sugar confectionery can be possibly placed on the negative list provided that they can manufacture sweets of a much higher quality. Since then the respondents were endeavouring to do so; but owing to the poor quality of the refined granulated sugar they were receiving from Caroni Limited they could not produce clear mint sweets. They expressed the hope that the Minister would consider restricting the importation of sweets from Carifta countries as soon as our quality is improved.
In a letter dated August 21st, 1981, to the Minister the responsibility listed the types of hard candies, toffee and bubble gum they were manufacturing; indicated that they were receiving machinery to produce other types of bubble gum and that satisfactory orders had been placed with them for these products from Caribbean countries; but they were being affected by unfair competition from sweets imported from outside Caricom that were similar to their products, and repeated their application for the restriction of the importation of such products into Trinidad and Tobago.
There was a similar follow-up letter dated October 23rd, 1981, to which there was a reply dated November 12th, 1981, that the application was receiving consideration and that the respondent would be informed as soon as a decision is taken.
In a letter dated March 24th, 1982, from the respondents to the Prime Minister reference was made to his visit to their factory on March 13th, 1982, to the respondent improving production and the high quality of their products; and seeking the Prime Minister's assistance in having restrictions placed on the importation of confectionery and gum. The reply dated April, 1982, indicated that the matter was referred to the Minister.
The constitutional motion was filed on November 16th, 1982, eight months after the respondents claimed that their products were of high quality.
In my judgment the inference drawn by the judge from the primary facts is unreasonable and unsupportable by the evidence.
The material delay in reaching a decision was about eight months and not seven years. The respondents had not submitted expert evidence that their products had attained the requisite high standard to justify the protection applied for. The Minister might reasonably be expected to require some time to obtain his own technical advice on the matter.
There is no statutory provision for applications to be made for negative listing of products and no positive evidence that the products so listed had been the result of applications by the relevant manufacturers thereof.
There was no evidence that the Minister had not or was not considering the application or that he had arrived at a decision refusing the application. His failure to give reasons or an inference that he had no reasons did not arise therefore for consideration. Nor may such inferences properly be made from the delay in making a decision.
It must have been apparent to the respondents that at least one reason for the Minister's delay in reaching a decision was that he had not been satisfied as to the high quality of the products.
In Padfield's case (supra), which has no direct relevance to this appeal, there was a decision by the Minister not to refer the complaint of the appellants to the Committee of Investigation appointed under s. 19 of the Agricultural Marketing Act, 1958, for their consideration and report for a reason expressed which expressed which was not good in law - namely that it raised wide questions which were not suitable for such investigation.
The complaint was in respect of the adverse effect on the appellants of a milk marketing scheme made under the said Act which was held to be in the public interest.
The Act provides machinery for investigating and determining whether the scheme was operating in a manner contrary to the public interest and for complaints by individuals who are aggrieved.
If the Committee reports that any provision of the scheme is contrary to the public interest, or that of the complainers is not in the public interest, then the Minister is empowered to act, for example, by making an order amending or revoking the scheme.
The House of Lords ruled that the Minister's discretion was not unfettered but was conferred on him with the intention that it...
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