Camacho and Sons Ltd et Al v Collector of Customs

• Jurisdiction: Antigua and Barbuda
• Judge: Lewis, C. J.,Lewis, J. A.,St. Bernard, J. A.
• Judgment Date: 13 December 1971
• Neutral Citation: AG 1971 CA 15
• Docket Number: Civil Appeal No. 6 of 1971
• Court: Court of Appeal (Antigua and Barbuda)
• Date: 13 December 1971

Court of Appeal

Lewis, C.J.; Lewis, J.A.; St. Bernard, J.A.

Civil Appeal No. 6 of 1971

Camacho and Sons Ltd. et al

and

Collector of Customs

Appearances:

C. Phillips Q.C. and L. Bird for appellants

H. Harney, Acting Attorney General for respondent

Import licences - Discretionary power in Collector of Customs to grant — Application for licences refused by Collector of Customs on instructions of Minister — Whether refusal valid — Order remitting application to Collector of Customs to consider and determine according to law — External Trade Ordinance, Cap. 361.

Constitution - Licences allegedly refused because of applicants' political opinions — Whether this constitutes discriminatory treatment — Whether Constitution contravened — Application to Court of Appeal for order directing the Collector of Customs to issue licenses — Antigua Constitution Order, 1967.

Lewis, C. J.

1 The facts of this case are fully set out in the judgment of St. Bernard J. A. and I shall only refer to them briefly. The appellants moved to the High Court for relief under section 15(1) of the Constitution of Antigua on the ground that they had been treated in a discriminatory manner by the respondent contrary to section 12(2) and (3) of the Constitution. Briefly, their complaint was that the Collector of Customs had failed to apply his mind to consideration of two applications for licences for import restricted goods made by the appellant company on 6 ^th March 1971 and 12 ^th April 1971, that he had refused the licences on the instructions and under the dictation of the Minister of Trade, Industry and Commerce and that the minister had instructed him to refuse the licences because the appellants Rose and Robert Camacho were political supporters of the former Premier and leader of the opposition party, Mr. Bird whom they had actively supported in the recent election campaign.

2 Three affidavits, one by Robert Camacho, sworn 18 ^th May 1971 and two by his mother Rose Camacho sworn 18 ^th May and 28 ^th May respectively were filed in support of the application. It appears that these persons are the sole shareholders in the appellant company. Robert Camacho stated that on the 9 ^th March Mr. Merchant, the Collector of Customs, told him that the minister had given him instructions “not to sign any licences for the Camachos” because he was reviewing all licences. Rose Camacho stated that at an interview with the Premier and the minister on 6 ^th May the minister told her “that when Mr. Bird was Premier I used to get all the licences I required but now Mr. Bird was no longer there I would not be getting any” and “that as long as he was in this ministerial post I would never get a licence from him.” Thereafter, on the 13 ^th May Mr. Benjamin, then acting Collector of Customs, refused the licences, giving no reason for his refusal, although he had in the mean time granted licences for similar goods to other merchants.

3 The affidavits in reply was filed by the respondent and the learned trial judge accepted these statements as true.

4 Section 4(1) of the External Trade Ordinance, Cap.361 as amended by Ordinance No.12 of 1970 states:

“Subject to the provisions of subsections (2) and (3) the Collector of Customs may grant a licence for the import of any import restricted goods.”

5 This subsection gives the Collector of Customs the power and authority to grant licences. Subsection (2) prohibits the grant of a licence–

“If in his opinion the import of such goods would or would be likely to prejudice any trade agreement or arrangement in respect of external or internal trade or currency entered into or approved of by or on behalf of the Government.”

6 Subsection (3) empowers him when granting a licence to impose “such conditions as he shall think necessary in order to ensure” that imports are in conformity with any agreement as aforesaid. It prescribes other matters which he must “take into consideration” in imposing such conditions and enjoins that he “by such conditions shall ensure the equitable distribution of import licences.”

7 Thus the legislation has entrusted to the Collector of Customs a most important power to authorise by licence the importation of import restricted goods so, however, that such imports do not prejudice but conform if necessary by the imposition of conditions, to any trade agreements or arrangements approved by the Government, and this power he must exercise in such a manner as to ensure the equitable distribution of import licences. Obviously, in the performance of these duties he is entitled, and may be obliged, to take account of the policy of the minister with regard to the importation of goods. Trade and currency agreements and arrangements approved of by Government must be brought to his personal attention so that he may ensure that licences are not issued otherwise than in conformity with them and he must work in close consultation with the minister in order to understand fully and apply the policy of Government underlying them. But the discretion to issue or refuse a licence is vested in him, and in him alone. In the exercise of this discretion his duty is to consider each application fairly and impartially and not to allow himself to be influenced by extraneous considerations. This basic principle governing the exercise of a statutory discretion has long been established. It was stressed in all the judgments in the House of Lords and by Lord Denning in the Court of Appeal in the case of Padfield v. Minister of Agriculture, Food and Fisheries [1968] A. C. 997. That case of investigation under section 19(3) of the Agricultural Marketing Act, 1958 (U. K.). Lord Denning M.R. said, at p. 1007.

“If it appears to the court that the minister has been, or must have been, influenced by extraneous considerations which ought not to have influenced him- or, conversely, has failed, or must have failed, to take into account considerations which ought to have influenced him- the court has power to interfere. It can issue a mandamus to compel him to consider the complaint properly. That was laid down by two of my predecessors in this place: Lord Esher M. R. in Reg v. Vestry of St. Pancras said of a body who were entrusted with a discretion.

“… they must fairly consider the application and exercise their discretion on it fairly, and not take into account any reason for their decision which is not a legal one. If people who have to exercise a public duty by exercising their discretion take into account matters which the courts consider not to be the eye of the law they have not exercised their discretion.”

8 Lord Greene M. R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation said:

“…a person entrusted with a discretion must, so to speak direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider.”

“That passage has been repeatedly cited with approval in the House of Lords.”

9 Lord Upjohn said, at p. 1058:

The minister in exercising his powers and duties, conferred upon him by statute, can only be controlled by a prerogative writ which will only issue if he acts unlawfully. Unlawful behaviour by the minister may be stated with sufficient accuracy for the purposes of the present appeal (and here I adopt the classification by Lord Parker C. J., in the Divisional Court): (a) by an outright refusal to consider the relevant matter, or (b) by misdirection himself in point of law or (c) by taking into account some wholly irrelevant or extraneous consideration, or (d) by wholly omitting to take into account a relevant consideration.”

10 and –

“He may have good reasons for refusing an investigation, he may have, indeed, good policy reasons for refusing it, though that policy must not be based on political considerations which as Farewell L. J. said in Rex v. Board of Education are preeminently extraneous.”

11 So if the controller, in exercising his discretion, and must not allow himself to be influenced by political considerations or act upon a policy based on political considerations. Nor must he abdicate to any one, including his minister, the responsibility for exercising the power conferred upon him by the Ordinance.

12 In my opinion, the affidavit of Rose Camacho establishes that the minister misconceived his powers. His statement to her that she would never get a licence from him indicates that he thought that he had the power to grant or refuse licences or to control their issue by the Collector of Customs. This was an entirely erroneous opinion. The Ordinance gives him no such power. Once the policy of the Government has been expressed in its agreements or arrangements the minister is not entitled to give instructions to the collector as to the manner in which he should exercise his discretion with respect to individual applications for licences. If the Collector of Customs grants or refuses such applications solely at the dictate of the minister and without applying he dependent judgment he is guilty of unlawful behaviour and a breach of duty which stultifies his decisions and renders them ultra vires and void.

13 The affidavits of Rose and Robert Camacho also establish that the Collector of Customs, Mr. Merchant and the Acting Collector Mr. Benjamin, did not exercise their independent judgments with respect to the applications of the appellant company, but refused to grant them in accordance with instructions conveyed to them by the minister. Apparently they considered themselves bound to act on the dictation of the minister. Merchant's statement to Robert Camacho, echoed by the minister's statement to the Premier, shows how fundamental was the misconception as to the minister's powers. The result was that Benjamin wrongfully abdicated the responsibility conferred upon him by the...