Freeport Concrete Company Ltd v The Crown, Comptroller of HM Customs and Attorney General
| Jurisdiction | Bahamas |
| Judge | Isaacs, J.,Is |
| Judgment Date | 18 June 2007 |
| Court | Supreme Court (Bahamas) |
| Docket Number | 2006/pub/JRV/fp/005 |
| Date | 18 June 2007 |
Supreme Court
Isaacs, J.
2006/pub/JRV/fp/005
Mr. Moss for plaintiff
Mr. Mackey for defendant.
Judicial review - Certiorari — Prohibition — Mandamus — Legitimate expectation not arising as it would be in derogation of statute — Unreasonable decision by authority to impose pre-conditions on applicant — Reliefs granted.
The applicant, Freeport Concrete Company Limited, applied by way of Originating Notice of Motion for divers reliefs. On 18 May 2007 I heard counsel's submissions and I adjourned with the promise that I would render my decision in writing. I do so now.
I begin by expressing my indebtedness to counsel for their very able arguments and ready assistance rendered during this hearing. The authorities they have laid over to the Court demonstrate the breadth of their industry. I mean no disrespect to their efforts but having read the material provided to me, I will not mention a number of the authorities cited as many of them relate to the jurisdiction of the Court to entertain this application; and I hold no doubt that the issues before the Court are amenable to judicial review.
I proceed on the understanding that judicial review is not an appeal against the merits of the decision itself. Whether the Court would have arrived at the same conclusion based on the facts of the case is nowhere to the point. The Court must be satisfied that the impugned decision falls out with the jurisdiction” of the decision maker. That is to say the Court is concerned with the integrity of the decision making process. It scrutinizes whether the decision-maker has, for example, committed a breach of the rules of natural justice, committed an error of law or reached a decision that no reasonable body could have reached
The Players
By way of background I will identify the principal parties in the case and then I will address the issue joined between them. The applicant is a retail Licensee of the Grand Bahama Port Authority, Limited (hereinafter referred to as “the Port”) pursuant to the Hawksbill Creek Grand Bahama (Deep Water Harbour and Industrial Area) Act (Ch. 261), as amended (hereinafter referred to as “the Act”); and the Agreement scheduled thereto (hereinafter referred to as “the Agreement”). The applicant has constructed an establishment called the Home Centre Superstore (hereinafter referred to as “the Superstore”) located in the Port Area at West Atlantic Drive, Freeport, Grand Bahama.
The Comptroller of H.M. Customs (hereinafter referred to as “the Comptroller”) is a creature of statute; and is appointed pursuant to section 3 of the Customs Management Act (Ch. 293) (hereinafter referred to as “the CMA”). The section reads:
“3. (1) There shall be appointed a Comptroller of Customs and such other customs officers as may be necessary for the administration of this Act and the efficient working of the Customs Department
(2) The Comptroller shall, subject to the control and direction of the Minister, be responsible for the administration of this Act.
(3) The Comptroller may authorise any officer appointed or deemed to be appointed under this Act to exercise any of the powers conferred or to perform any of the duties imposed by this Act upon the Comptroller, either in place of the Comptroller or concurrently with him.
(4) Any person appointed as a customs officer before the commencement of this Act, and serving on that date, shall be deemed to have been appointed under this section.
(5) Every person who is appointed to any permanent office or employment in the Customs Department shall, on his appointment thereto, make and subscribe before a magistrate, justice of the peace, or commissioner for oaths, a declaration in such form as may be prescribed.”
The functions of the Comptroller can be gleaned from a reading of the various provisions of the CMA, e.g., he exercises a discretion to return an item seized to a claimant: section 130; he can take out proceedings for condemnation of items seized: section 131; and he can compound offences: section 141. Further, under the Tariff Act, 1996 (Ch. 295), the Comptroller is statutorily enjoined to collect customs duties. Section 3 states:
“3. Subject to this Act and any other law relating to customs, duty shall be charged, levied and collected upon all goods imported.”
The chief duty placed on the Comptroller however, is to ensure that the Government's revenue is collected, protected, accounted for and deposited to the Consolidated Fund.
Additionally, as mentioned by Ganpatsingh, J. in Sandra Hepburn, et. al. v The Comptroller of H. M. Customs, et. al. [1999] BHS J. No. 207, there is “a duty of care and management on the part of the Comptroller which is the basis for the jurisdiction he exercises to give guidance to importers. (See R. v Inland Revenue Commissioners Er. p Matrix Securities (1994) 1 WLR 334). A Comptroller who departs from the guidelines without reasonable notice of a change of policy can be held to be acting unreasonably. (See Associated Provincial Picture Houses Ltd. v Wednesbury Corp. (1948)1 K.B. 223).”
The lesser players in this drama are the Governor in Council (now the Governor-General) and the Port. Their parts were played as far back as 1955 with the execution of the agreement that created Freeport, Grand Bahama.
Agreement's Ambit
Not wishing to re-invent the wheel in respect of the resulting import of the Agreement, I rely on the observations of Ganpatsingh, J. (as he then was) in Sandra Hepburn, et. al. v The Comptroller of H. M. Customs, et. al. [1999] BHS J. No. 207:
“10. […] The first thing to observe is that the agreement is not an enactment. The Hawksbill Creek Grand Bahama (Deep Water Harbour and Industrial Area) Act, No. 5 of 1955, to which the agreement is scheduled, by authorising the Governor in Council to enter into it, merely sanctioned the assignment by the Governor in Council, to the Grand Bahama Port Authority Limited, of the constitutional power normally vested in that body, to grant duty exemptions on certain goods generally described as supplies, imported for certain specific purposes under the Agreement This was a convenient constitutional arrangement for the economic development of the Port Area.
11…
12. It is clause 2 which calls for careful analysis. Sub-clause (1) was primarily concerned with the construction, erection, fitting out, maintenance and operation of the entire infrastructure, including the Port Project The plan was for the establishment of factories, utilities, roads and other commercial undertakings, all of which works, were collectively referred to as the Port Area Development Such materials, supplies and things of every kind and description, other than consumable stores, which in the opinion of the Port Authority, in the exercise of its assigned function, as were necessary for the establishment and operation of the enterprises, could be imported into the Colony, purchased or taken out of bond therein by the Port Authority or a licensee of the Port Authority, free of all customs duties, provided these were used for the purposes contemplated. The essential test was that the business required, as a matter of necessity, the supplies or materials for construction or equipping or in its operation. Without them the business or undertaking could not be established or operated successfully. Take the case of a vehicle, which seems to be the subject of controversy, if the importation of such were to be free of customs duty, it had to be necessary to the operation of the business, in the sense that without it, the business would suffer financially. In other words it had to bear the same relationship to the enterprise, as say, a spare part had to a machine, a machine had to a factory, or petroleum products had to an engine. Unless there was this element of dependency for financial success, it could not be brought in duty free. It is in that sense that the words “necessary for the construction, equipping and operation of are to be construed.
13. This sub-clause (1) was without doubt limited to the activity of importing goods for use in the construction, erection and operation of the infrastructure described as the Port Area Development. It in no way contemplated the trading of goods or supplies as in the normal course of business. A practice seems to have grown up involving over the counter sales of bonded goods, (Underlining is mine). This activity is not recognised by the Tariff Act or the Agreement which latter is only concerned with the importation of goods free of customs duties for a particular purpose or use, which is the primary benefit the Agreement confers. Once goods are entered they become imported goods for the purposes of the Act and must only be used for construction or to equip or outfit the operation of a licensed business, and it is only a business licensed by the authority as being part of the Port Area Development that can enjoy fully this concession.
14. Sub-clause (2) of clause 2 is concerned with the nature of the economic activity intended to be carried on within the infrastructure described as the Port Area Development Materials, supplies and other things […] manufacturing, industrial, or other business, undertaking or enterprise (manufacturing purposes), conditionally free of all customs duties. The activity of manufacturing was given a wide connotation. The establishment and operation of businesses and enterprises other than those envisaged by the principal agreement, for instance first class resort hotel accommodation and other lawful enterprises, were included by subsequent agreement In my opinion, once the materials or supplies have been used in the economic activity, the end product is of no concern to the Comptroller; the condition would...
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