| Fiji Islands - The State v Comptroller of Customs & Excise - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
JUDICIAL REVIEW NO. 0027 OF 1998
THE STAT STATE
V
COMPTROLLER OF CUSTOMS & EXCISE
EX PARTE
UTTAM LAL DULLABH
DURGA PRASAD,
ROSHINI DEVI
AND SASHI KANT
Mr. Vadia for the Aphe Applicant
Mr. D. Singh for the Respondent
JUDGMENT
On 14th December 1998 this Court granted leave to the applicants to issue judicial review proceedings against the decision of the Comptroller of Customs in which he purported to annul the results of the Customs House Agents & Clerks Examination held on 27th June 1998 which the applicants had sat for and, in the case of the first three applicants, had passed.
The letter advising the applicants of the Comptroller's decision is in identical terms and in its material parts reads:
'You are advised that in view of certain controversies surrounding the Customs House Agents & Clerks Examination held on 27 June,
1998, I have reason to believe that the examination was not properly conducted.
Accordingly I have decided that the results of this Examination be disregarded and that a fresh examination be conducted. In arriving
at this decision, I have carefully considered all the facts made available to me and ultimately my overriding concern was to uphold
the integrity and impartiality of the examination set by this Department.'
The applicants were dissatisfied with the rather vague grounds given for the Comptroller's decision and through their solicitor requested further details and the deferment of the replacement examination until the matter
had been properly investigated. This requested was turned down.
The replacement examination was held on 3rd October 1998 but the applicants did not appear for it. It is unnecessary for present purposes to set out the facts in any greater detail.
On 21st January 1999 the court with the concurrence of counsels formulated the following four (4) questions to be dealt with by way of written submissions:
'(1) Does the Comptroller of Customs have power to declare examination results invalid?
(2) If he does, is the exercise of such power subject to judicial review?
(3) If so, was the exercise of the power in the case of the applicants a breach of natural justice and/or unfair and/or unreasonable?
and
(4) What, in the event, ought the Court to order?'
After some discussion it was agreed that Q.(1) was fundamental and ought to be addressed at the outset, and, since the Comptroller was arguing for the existence of the power, his
counsel should begin the submissions.
Written submissions were finally received from both counsels on 2nd February 1999. I am grateful to counsels for their assistance.
State Counsel in his short submissions referred to various Acts and items of subsidiary legislation including Section 144(3) of the Customs Act 1986; Regulation 129 of the Customs Regulation 1986, Legal Notice 136 dated Friday 28th November 1997; Regulation 26 of the PSC (Constitutions) Regulations 1990; the 'Long Title' of the Examinations Act (Cap. 262A) and General Order 813(g) dated May 1983.
From these references counsel '... submitted that the Comptroller of Customs has got the powers to declare an examination for a Customs Agents' Licence invalid'.
Counsel for the applicants in an equally short submission dealt with each item of legislation drawn to the court's attention, as follows:
'3. THE reference ... to Section 144(3) of the Customs Act 1986 is irrelevant and not disputed.
4. THE reference to Regulation 129 of the Customs Regulations 1986 is incorrect and does not assist the Respondent. ... It merely provides
for the forms, licence fees, security and examination application fees to be paid by the applicants.
5. THE reference to the PSC (Constitution) Regulation 1990 ... does not assist the Comptroller ... That Regulation is directed at examination
required of applicants for appointment to the Public Service or officers already employed by the PSC.'
As for Legal Notice 136, Counsel submits that:
'the delegation of powers is directed at making appointments, promotions, transfers and to discipline various occupational groups
in the Public Service.'
and
'7. Similarly the Examination Act Cap. 262A does not give any express or implied powers to declare examination results invalid. The
purpose of the Act is to create offences for contravention of any provisions of that Act.'
As for the General Orders 1993, counsel writes:
'(These) do not apply to members of the general public.'
In concluding, counsel submits:
'... that the Comptroller of Customs does not have any powers to declare the Customs Clerks Examination results invalid.'
It is clear pursuant to Section 144 of the Customs Act 1986 that the Comptroller of Customs has the dual authority not only '(to) license such persons as he thinks fit to act as customs agents', but also, '(to) revoke the licence issued to any person' on various grounds set out in the Section. Further and by implication from Sections 144(2)(b) & 149, a licensed customs agent need not be a 'natural person'.
We are not in this case however, dealing with the exercise of that power by the Comptroller nor is it entirely clear from the Comptroller's affidavit, what? particular qualifications, either personal or educational, are required of an applicant for a customs agent's licence. State Counsel
writes however:
'The licence is granted on the passing of an examination paper set for that particular licence.'
Of greater relevance is Regulation 129A of the Customs Regulations 1996 which mandates the Customs Agents and Clerks Examination. The Regulation merely provides:
'The Comptroller may, upon written application, grant an approval to any person to appear for the Customs Agents and Clerks Examination:
Provided that -
(a) The application is made to the Comptroller; and
(b) A fee of $22 per candidate for each examination shall be paid to the Comptroller.'
Clearly under this Regulation, the Comptroller has power to determine who shall or shall not be a candidate for the Customs Agents and Clerks Examination by the grant or withholding of his approval to an applicant.
But, once an applicant is approved, there is, in my view, no power in the Comptroller to revoke or withdraw his approval, notwithstanding that he may subsequently refuse to issue a licence to a successful examination
candidate.
There is in my view nothing in the Regulation which could, even remotely, give rise to an implied power in the Comptroller to invalidate the entire results of a Customs Agents and Clerks Examination.
As for the applicability of the PSC (Constitution) Regulations 1990 and the Legal Notice delegating PSC's powers to the Comptroller of Customs, suffice it to say that I uphold the submissions of Counsel for the applicants on the narrow ground that such Regulations and delegation can have no application to members of the general public who are neither employed or seek employment in the public
service.
I turn finally to consider the Examinations Act (Cap. 262A) which is expressly applied to:
'any examination conducted, supervised, arranged or invigilated by any of the authorities listed in the Schedule.'
including the 'Public Service Commission'.
The 'Long Title' of the Examinations Act reads:
'AN ACT TO PROVIDE FOR THE PROTECTION OF THE INTEGRITY OF EXAMINATIONS HELD IN FIJI'
It is accepted that 'the title of an Act is undoubtedly part of the Act itself, and it is legitimate to use it for the purpose of interpreting the Act
as a whole and ascertaining its scope' per Lord Moulton in Vacher & Sons Ltd. v. London Society of Compositors (1913) A.C. 107 at 128, but that is quite a different thing altogether from saying that, in the absence of any ambiguity the 'Long Title' of an Act is to be considered a substantive enacting provision capable in itself, of giving rise to implied powers, duties, and prohibitions
not expressly provided for in the Act.
In Bently v. Rotherham & Kimberworth Local Board of Health [1876] UKLawRpCh 408; (1876) 4 Ch.D. 588 Jessel M.R. said at p.592:
'... no doubt it is well established, as a rule in the construction of statutes, that where the enacting part is clear and unambiguous,
you are not to control it by reference to the (title and) recitals; but that where the enacting part is ambiguous, you may explain it by reference to the (title and) recitals.'
In the present case no 'ambiguity' has been identified by State Counsel in the enacting part of the Examinations Act and it is therefore doubtful that reference to the 'Long Title' is permissible at all as an aid to interpretation. Much less, can it be a source of implied powers.
In this case even assuming that the Examinations Act applies to the 'Customs Agents and Clerks Examination' conducted under the auspices of the Comptroller of Customs (upon which there is considerable doubt), I am firmly of the view that no power exists in the Act, either expressly or by implication, that would permit or enable any of the named authorities to annul or invalidate the entire results
of any examination conducted, supervised, arranged or invigilated by such authority.
Indeed the Act does not even attempt to deal with the results of an examination which may have been compromised. Instead it deals with specific
events prior to and during an examination.
Needless to say in my considered opinion the awesome power of annulling or invalidating the entire results of a (compromised) examination
however desirable, is not one that can be derived by mere implication from the 'Long Title' to the Act.
It is not difficult to imagine or postulate, in the context of public examinations involving thousands of students spread over numerous
examination centres throughout Fiji, the grave injustices that would be perpetrated on innocent students by the indiscriminate exercise of such a power.
In the result I am constrained to answer the first question earlier posed at p.2 in the negative and hold that the Comptroller of Customs has no power, either express or implied, to annul or declare invalid the results of the 'Customs Clerks and Agents Examination' held on the 27th day of June, 1998. Certiorari will therefore issue to quash the Comptroller's decision contained in his letters of 2nd and 3rd September 1998 to the applicants.
As for the order of Mandamus sought against the Comptroller, bearing in mind his sworn admissions in paras. 8 & 9 of his affidavit that the pass mark for the Customs Clerks and Agents Examination is '60%' and further, that the 1st, 2nd and 3rd applicants all scored marks in excess of the pass mark, I grant the second order sought in respect of those applicants with costs
to be taxed if not agreed.
D.V. Fatiaki
JUDGE
At Suva,
25th February, 1999.
Hbj0027j.98s
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