Austral Car Rental v Seychelles Licensing Authority (SCA 9 of 1995) [1996] SCCA 7 (1 March 1996)

. - AUSTRAL CAR RENTAL APPELLANT v. 1. SEYCHELLES LICENSING AUTHORITY 2. SEYCHELLES GOVERNMENT 1ST RESPONDENT 2ND RESPONDENT ~ivilJ&peal No.q_ / of lt1q. J {Before: A. M. S. Silungwe, E. O. Ayoola, L. E. Venchar~-A:. ....•. -- / J I,' Mr. P. BouJle for the A~pellant Mr. S. Fernando for the Respondents JUDGMENT OF AYOOLA, J. A. / / - /' !y/ -I , !QI , - This appeal from the decision of the Constitutional Court of Seychelles (Alleear C. J., Amerasinghe and Bwana JJ» arose from a petition brought by the Austral Car Rental ("the appellant") against The Seychelles Licensing Authority ("the Authority") and The Seychelles Government ("the Government") in which the appellant sought: 1. a finding February for of public Constitution. a the that declaration investigation and decision made in the main on 10th its trading licence period of two weeks are contraventions suspending the petitioner's hearing under right to Article a fair of and the A 2. null and void; declaration and that the said decision is 3. Damages. The appellant's petition was dismissed by the Constitutional Court on 21st March 1995, their Lordlships of the was Constitutional Court being of the view that the appellant not as a matter of right entitled to an oral hearing and that the failure of oral hearing by the Authority of the complaint m~de against the appellant had in no way caused an i . i -2- infringement of Article 19 (7) of the Constitution. held that though the Licensing Authority had delegated its investigatory powers, its letter suspending the appellant's trading licence having been made on its own decision was not in breach of any Constitutional provisions. They rejected the argument put forward by counsel on behalf of the appellant that the suspension of the licence infringed Article 35 of the Constitution. The appellant is a car hire firm which is operated on Praslin. The Authority is an agency of the Government charged in th~ main with the functions of granting or renewing licences, or suspending Sequel to an investigation made or by revoking the same. an officer of the Authority on a complaint by a customer of the appellant, the Authority wrote a letter dated February to the Manager of the appellant as follows: "Mr. Simon D'Unienville Austral Car Rental Baie Ste Anne Praslin Dear Sir, Following a complaint received by Ms Lucie Cilingrini a client and her friends that they were insulted by of you and you behaved in an aggressive manner in the course providing services as a car hire operator, this Authority conducted an investigation and found that you were very rude . to Ms Cilnfrini and her tourist friends and did not provide them with a welcoming and good standard of services. In view of such unacceptable behaviour on the part of a car hire operator which is contrary to your licence particularly at a time when the Tourism Industry needs good quality of service to make Seychelles worth visiting, the Board of the Seychelles Licensing Authority has decided -3- to suspend your licence for a period of two weeks with effect from today until 23rd February 1994. This means that you will not hire any vehicles and those which have already been hired and in the possession of clients should be returned to your company on expiry of the period for which they have been hired. The Licensing Inspector based at Praslin will take an inventory of all the vehicles which have been hired and together with the Police will ensure enforcement of the suspension of your licence. I look forward to receiving your cooperation and understanding. Yours faithfully, (Sgd.) Willy Confait Director SEYCHELLES LICENSING AUTHORITY" cc. Commissioner of Police Principal Secretary, Tourism & Transport Director General, Land Transport Inspector G. Verlaque, SLA Praslin Office." Aggrieved by the contents of that letter, the appellant applied to the Constitutional Court seeking redress but that Court dismissed the application. The appellant appealed. The points which have been taken on this appeal by counsel on behalf of the appellant are that: Constitutional authority of and of Court erred in not holding failed to comply with the the a the article that article 19(7) there was of of The the that provisions Constitution contravention Constitution. -4- , ' The Authority was established by the Licenses Act (Cap.113; Ed. ) ("the Act"). It consists of not less than five members appointed by the President: (S.3(2)). The Chief Executive Officer of the Authority is the Director of the Authority (4(2». Section 6(1) of the Act provides for the functions of the Authority as follows: "Where the Authority may - a licence is required under this Act, (al grant or renew the licence; (b) licence; attach or vary conditions of the (e) suspend or renew the licence or (d) other deal with the licence." Section 6(4) of the Act provides that - a person complains to the Authority licencee the authority may, where does not consider the complaint frivolous "Where against it or vexatious, a (a) hear and investigate the complaint; and subject to this Act, (b) against the considers appropriate." licensee take such measures Authority as the Section 6(5) of the Act provides that - "The complied licence." Authority with shall ensure that a licensee this conditions the of Among the several powers of the Authority are the powers to summon a person to appear before the Authority to answer questions and to produce such documents as the Authority may specify in the summons: (Section 7(6); administer an oath to an a person appearing before it or allow that person to make affirmation or declaration: (Section 7(c); and to nominate, appoint or authorise any person or any Government Ministry department or agency to enquire and report on any -5- relating to a complaint against a license: matter ). 7 (d) that (Section Court It is rightly observed by the Constitutional the Authority quasi-judicial. It exercises are thus has a high duty to act fairly in functions which exercising its powers where such impinge on the rights or interests of individuals. Article 19(7) of the Constitution which is the Constitutional provision of fair hearing provides that: extent be by law to determine "Any empowered or shall independent proceedings instituted other fair hearing within a reasonable time." court or ether authorjt.y required oc the existence of any civil right or obligation law and shall be where and are or such the case shall be given a by impartial; a determination court established and authority, person such for any by However, constitutional provisions apart, wherever a person taking a decision which impinges on the rights or interest of another has a duty to grant the other a hearing, the duty to conduct a fair hearing arises. Whether such duty arises from administrative law or by reason of constitutional provision is immaterial not vary with the since the standard of fairness does It is in this wise source of the duty. that the distinction sought to be drawn by counsel for the appellant in this appeal between the principle of administrative law and statutory and constitutional provisions is not material. What may be required to meet the the standard of fairness in a particular case would depend on nature of the case and the nature of rights or interests affected or on what is at issue. The requirement common to all cases is that safeguards appropriate to assurance of fairness case. must In be fashioned to suit the circumstances this regard the observation of each of Tucker LJ in Russell v. Duke of Norfolk (1947) 1 All ER 109, 118 is apt. He said: -6- on of tribunal is "The depend nature the that Accordingly, from have whatever that reasonable case." been the the requirements the the natural of circumstances inquiry, justice of the case, must the which the rules under is acting, the sUbject-matter being I dealt with, do not derive and much assistance forth. so definitions from of natural to time justice used, time standard person opportunity is adopted, concerned of one essential should presenting have which but, is a his What then are the circumstances of this case? They are, in rudeness a to appellant. licence. nature. nutshell and in substance, that a complaint of a customer of the appellant was made against the The The step authority +tLRan." ---- take was in substance result as a suspended disciplinary its in Quite apart from whatever breach of procedure implied in the statute regulating the matter there may be, a duty is cast on the Authority in circumstances such as in this case to let the appellant know the allegation against him as revealed after investigation by its officers and to hear his defence and or explanation. As was said in Kanda v. Government of Malaya (1962) A. C. 322, 337; the right which with to be heard worth it a right is know the case which anything, is to be a real it must man against in the accused is maQe "If right carry to hi m , " Other authorities to like effect are stevenson v. United Road Transport Union (1977) 2 All ER 941 (C. A.) where it was held that the requirements of natural justice involve that the plaintiff should have notice of the charges against him and should be heard; and, Bryes v Kinematograph Renters Society Ltd. (1958) 2 All ER 579, 599 where it was said that the person accused should know the nature of accusation made. A right to be heard does not always entail a right to oral hearing nor does it entail a hearing in public. Whether oral hearing is an essential requirement may depend -7- on whether there is statutory provision to that effect or, whether to the justice. circumstances of the case make orality essential It is settled law that although the decision of an administrative authority may impinge on the rights and interest of an individual or group of person such authority cannot be expected always to adopt procedure such as_would be expected instance of in a court within the judicial system: One which oral hearing may be desirable is stated in a passage in the opinion of Lord Keith of Kinkel in Lloyd v. McMahon (1987) A. C. 625 where he said: essential clearly fairness, "It is hearing interest objector knowledge misconduct In the depone to his own version of the facts." easy to envisage cases where an oral be would in the for example where an of personal he states of some facts indicative of wilful of the councillor. situation justice would demand that to an opportunity councillor given that part that has the on be But then, no hard and fast rule is drawn. In the opinion of Lord Bridge of Harwich in the same case: so of on the are the rules table called To the engraved not use underlying of domestic, "..... justice stone. expresses requirements anybody, judicial, affect the the of or other framework in which it operates." natural of phrase which better concept, what the when or to make a decision which will rights of individuals depends on the decision making body, decision making body, the kind it has to make and the statutory the character of kind decision demand administrative fairness has of It is not necessary on this appeal to review the authorities and discuss in any detail the developed jurisprudence of the common law and of international human rights in this area of the law. It is sufficient to dispose of at this appeal on the shorter question whether the Authority all fulfilled the duty cast on it to hear and investigate the complaint. -8- The view taken by the Constitutional Court and which has been criticised by counsel for the appellant on this appeal 1S that there was a hearing. Their Lordships of the Constitutional Court reasoned as follows: of the and from report has on Angelin of that principal Lesperance Simon D'Unienville. petitioner in the case not only received the Authority but also madg_use the opportunity to present its own case by of written statements recorded from sales its The copy dated 11-01-94 annexed to the respondents the defence licensing the before the authority a placed The his investigation. the memorandum of 11-01-1994 and determination of the Seychelles 9-02-1995 along with in the contained dated 10-02-1994 addressed petitioner in our view are sufficient has before it with exception of the statements made on petitioner, before it decided the "The notices of way Assistant representative of statement indicates inspector statement contents the Licensing the subsequent the to to considered the of behalf to suspend petitioner." the (Emphasis mine). establish all the placed that facts reference Authority Authority recorded specific licence letter issued only the of to of The investigation carried -out by the Authority's principal licensing inspector, presumably at the instance of the Director to whom the complaint was addressed, should be put in proper perspective in relation to the adjudicatory .~ powers of the Authority in order to determine the validity of the reasoning that led to the Constitutional Court's decision. Section 6(4) of the Act shows that the Authority has the power to hear and investigate a complaint against a licensee if it does not consider the complaint frivolous or vexatious. The authority acting pursuant to Section 7(a)(iv) of the Act may appoint or authorise any person to enquire and report on any matter relating to a complaint against a licencee. A proper reading of these provisions indicates that although the Authority can requet matters relating to a complaint to be inquired into and reported on, that is not a delegation of its adjudicatory powers. -9- Proceedings before the authority are of an inquisitorial nature and this is the reason why the words used in section 6(4) are to "hear and investigate" and not to "hear or investigate." In the process of hearing a complaint and consistent with the inquisitorial nature of proceedings before the Authority, it is enabled to cause matters relating to the complaint to be inquired into and reported or by in a person nominated or appointed by it. But that would be the course of and as part of its adjudicatory powers. An investigation carried out in the course of the adjudicatory process must be distinguished from whatever exercise has been carried out for consider whether the the purpose of enabling the Authority to complaint is frivolous or vexatious preparatory to deciding to "hear and investigate" the complaint. When it is not shown that an inquiry conducted by of any person has been authorised or nominated in the course a hearing in accordance with section 9(d)(iv), such inquiry cannot be accepted as part of the Authority's adjudicatory process but, at best, may be regarded as a preliminary inquiry which could lead to a formulation of a case for the licensee to meet. Even where the Authority clearly delegates its power to hear and investigate a complaint to a Committee of the Authority, such Committee must still comply with the principles of fair hearing in its totality and the Authority must reserve to itself the power to review the findings of such Committee before confirmation. Where an inquiry has been carried out by an officer, upon the Authority finding that a complaint was not frivolous or vexatious, the Authority should have commenced hearing and investigation of the complaint without prejudice to its statutory power to conduct or direct further inquiry as part of or in the course of such hearing. It is not to be understood that a preliminary investigation into a complaint is to or not useful. Indeed, apart from it enabling the Authority consider whether the complaint is frivolous or vexatious not, it enables the Authority to formulate what the point -10- or points are that the licencee must meet. The purpose of a hearing is to enable him to disabuse the mind of the Authority of the impression it might have formed upon the facts disclosed in the report of the preliminary investigation by further representation, or by adduc~ng evidence or presenting arguments on the issues, incl~ding the disciplinary measure that might be contemplated against him. The long and short of this, in my view, is that it is erroneous to confuse what in fact and in substance was a preliminary investigation by an officer of the Authority with an inquisitorial hearing by the Authority. At the preliminary investigation stage of the nature carried out in this case, there were as such no accuser and no defendant. There was only the investigator who was a fact finder. What should have been done after the fact finding exercise had revealed a prima facie case of misconduct against the appellant was for the Authority to formulate the grounds on which it sought to proceed, notify the appellant of its intention so to proceed and ask for its defence. That procedure would have satisfied the requirement implied in the Act and the minimum requirements of the rules of natural justice. In its defence the appellant could have challenged the facts, adduced evidence to challenge hostile evidence and present arguments on the matters in issue. The collection of statements from the complainant and his witnesses and even from the appellant's employees is not the type of hearing and investigation envisaged by the Act, particularly when the appellant probably had no opportunity of knowing the contents of the statements taken from the complainant and his witnesses. For these reasons, I agree with counsel for the appellant, Mr. Boulle when he argued that there was never a hearing. It is, to my mind, inconceivable that the decision of the Authority would be upheld notwithstanding the fact as found by the Constitutional Court that the "Authority has considered all facts placed before it with the only exception -11- of the statements made on behalf of the petitioner." (Emphasis mine) if indeed the investigation were part of the hearing process. To come to a decision without considering the defence vitiates the proceedings and makes the hearing a sham. The failure of the Authority to consider the statements made on behalf of the petitioner only goe~ to show that the investigation in course of which the statements were made was not a hearing but at best a preliminary investigation which should precede a proper hearing. Otherwise, that failure constituted a fundamental vice in the proceeding~ which would render the decision of the Authority null and void. I feel no hesitation in holding that Mr. Boulle was right when he argued that there was never a hearing as envisaged by the Act. I am of the opinion that the Constitutional Court erred in holding that there was such hearing. As it is sufficient to dispose of the appeal on the first point taken by counsel for the appellant, I do not think it is necessary to discuss the second point. I would allow the appeal and grant the declaration sought albeit in a modified form. Although the petitioner sought a declaration that the investigations are a contravention of the petitioner's right to fair hearing, I do not think that at this preliminary investigation stage a right to a hearing necessarily accrued to the appellant. The point has been well put in Wiseman v. Borneman (1969) 3 All ER 275 where Lord Reid at pp. 277-278 said: "Every whether ought prima justice the on the nothing decision to or has who officer to case prosecute public to first facie raise whether decide but that decide proceedings is a there one supposes that should first seek of the accused or the defendant So there is unjust in reaching such a material inherently in the absence of the other party." requires before no he him. comments -12- The justice of this case will be met by granting the second declaration sought on the limited ground disclosed in this judgment. It has to be made clear that the decision of the Authority is declared null and void, not on the ground that hearing was not oral or public but on the ground that there was no hearing at all. Be that as it may, I would allow this appeal and set aside the decision of the Constitutional Court dismissing the appellant's petition. I would grant the declaration that the decision to suspend the petitoner's licences is null and void. Court I would remit the case back to the Constitutional for it to consider whether the appellant is entitled to damages and if so to assess such damages as it would be entitled to. I would make no order as to costs of this appeal. Dated this I a/V ~~ day of F~biuaiY, 1996. ~rtV (E. O. AYOOLA) JUSTICE OF APPEAL AUSTRAL CAR RENTAL APPELLANT v. SEYCHELLES LICENSING AUTHORITY SEYCHELLES GOVERNMENT 1ST RESPONDENT 2ND RESPONDENT Civil Appeal No. 9 of 1995 Before A. M. Silungwe, E. O. Ayoola & L. E. Venchard, JJA Mr. P. Boulle for the Appellant Mr. B. Georges for the Respondent JUDGMENT OF SILVNGWE, J. A. Mr. Boulle, the learned counsel for theappellant, has raised two constitutional issues on appeal, namely, the right to a fair hearing; and the right to work, in terms of Articles and 35(b)of the Constitution of the Republic of Seychelles (hereinafter referred to as the Constitution). The appellant was the petitioner before the Constitutional Court and the Respondents were the defendants. The brief facts of the case are that the appellant was at all material times the proprietor of a car hire business operated on Praslin Island. The appellant is a governmental and adjudicating authority; and the 2nd respondent is allegedly responsible for all acts done by the first respondent in the exercise of its governmental powers. -2- Towards the end of 1993, Mrs. Lucia Cilinfrini, an Italian tourist, lod~ed a complaint with the 1st respondent against the appellant. Consequently, a representative of the 1st respondent (i.e. the Chief Licensing Inspector) having been mandated to investigate the complaint carried out his assignment and thereafter submitted his written -findings to the 1st respondent. Purely on the basis of the said findings, the 1st respondent took a decision and suspended the appellant's licence to trade as a hirer of self drive vehicles for a period of two weeks. The reason for the suspension of the appellant's licence was communicated via a letter dated February 10, 1994, to wit, that a Mr. Simon D'Unienville, the appellant's representative, had been "very rude to Mrs. Cilinfrini and her tourist friends and did not provide them with a welcoming and good standard services." The appellant challenged the 1st respondent's decision by way of a petition before the Constitutional Court and prayed for a declaration that the decision was a contravention of its right to a fair and public hearing (Art. 19(7) and (8)) as well as its right to work. Further, the appellant sought a declaration that the suspension of its licence was null and void and that it was entitled to damages in the sum of R.110,OOO with interest thereon and costs. Upon hearing the petition, the Constitutional Court held that the appellant had not only received notice from the 1st respondent but that it had also made use of the opportunity to present its own case by way of written statements recorded from Sales Assistant Angelin Lesperance and its representative, Mr. Simon D'Unienville. The Court further found that the appellant was not, as a matter of right, entitled to an oral hearing and that the lack of -3- such a Article hearin~ 19 (7 ) of had in no way caused an infrin~ement of the Constitution: and that in the absence of an oral hearin~, the question of evidence being called or any proceedings being in public would not arise. The appellant's against it. As appellant's petition was thus dismissed but without costs I see it, the essence of this case hinges on the That right is not hearing. fair to ri~ht a expressly provided by section 6 (4) of the Licensing Act, Cap. (1991 Ed. ) but by the Const: tution itself. The r-e Le v arrt; be found in Clause (7) of constitutional Article 19 and are in these terms: provisions are to .,(7) or existence obligation shall be where are court given time." or a empowered or Any court or other authority required the to any civil right or by law and and law of established by extent be determine and impartial, such a determination shall independent for proceedings instituted other fair by any person before such a authority the case shall be a reasonable within hearing The expression "a fair hearing" under Clause 7 necessarily embraces the ~ug~_~teram-E~~tem rule, i.e. the right to be accorded reasonable notice and opportunity to be heard The responsibility to conduct a fair hearing and to make a determination cannot be delegated; it must be discharged by the relevant adjudicating "court or other authority" itself. In the present case, although notice was furnished to the appellant and it was given the opportunity to present its own case by way of written statements by Sales Assistant -4- -. Angelin Lesperance and its representative Mr. Simon D'Unienville, both the notice and the opportunity to be heard were not enough because both events had taken place at an investigatory stage before the Principal Licensing Inspector to whom the task of conducting the investi~ation had been entrusted by the 1st respondent. A report - of his investigations and recommendations was then placed before the 1st respondent on the basis of which the 1st respondent decided to suspend the appellant's licence without being given any notice and opportunity to be heard before any adverse decision could be made against it (vide v. National Dock Labour Board (1956) 3 All E. R. 939, it was held that - "The power of investigation may be delegated by a quasi judicial body to its own officers or to a committee, provided it retains the power to make the decision to itself." See also Basu on Administrative Law, 3rd., at p.225.) The 1st respondent was required to invite the appellant to make its representations before taking an adverse decision. This they failed to do. It is thus manifest that what transpired in this case was a denial of the appellant's constitutional right to a fair hearing 1n contravention of Article 19(7) of the Constitution. In point of fact, there was no hearing at all in the present case. Now, since there was no hearing at all, it would appear to me to be unnecessary to consider, for the purposes of this case, what form the hearing should have taken. Further, and as the appellant is entitled to the relief now being sought, it is unnecessary to consider the question of the appellant's constitutional right to work. -5- I would uphold the appeal for the reasons given and set aside the .judgment of the Constitutional Court. As the appellant's right to a heard was violated, and the suspension case will now of be its licence was consequently ulawful, the remitted to the Constitutional Court for assessment of damages. The appellant will be entitled to costs in this Court as well as in the Constitutional Court . ...... ..... ... . JUSTICE OF APPEAL (A. M. SILUNGWE) IN THE SEYCHELLES COURT OF APPEAL AUSTRAL CAR RENTAL APPELLANT v 1. SEYCHELLES LICENSING AUTHORITY 1ST RESPONDENT 2. SEYCHELLES GOVERNMENT 2ND RESPONDENT Civil Appeal No. 9 of - (Before A. M. S. Silungwe, E. O. Ayoola, L. E. Venchard JJA.)" Mr. Boulle for the Appellant Mr. S. Fernando for the Respondents JUDGMENT OF VENCHARD, J. A. I have had the advantage of taking cognisance of the judgment of my Learned Brother Ayoola and I agree with the conclusions reached by him. I wish, however, to add that the Licensing Authority acted in breach of the Audi Alteram Part em rule in that it failed to give the Appellant an opportunity to defend itself of the allegations which had been made against it. The late Professor de Smith in his admirable book Judicial Review of Administrative action writes in clear and unequivocal terms that an authority vested with administrative powers have to exercise those powers judiciously and not arbitrarily and the failure to afford to a party the opportunity to exculpate itself would lead to the striking down of the exercise of that power. He added that this principle derives its origin from divine law and that even God gave Adam an opportunity to exculpate himself when he enquired from him "why did you eat the forbidden fruit?" However, I do not agree that the 1st Respondent had to give to the Appellant an oral or public hearing and still less a contradictory hearing. To satisfy the requirements -2- of natural justice the opportunity to defend onself will necessarily depend on the particular circumstances of each situation. In the instant case, it should be assumed that a complaint against a car hire firm would normally emanate from a dissatisfied tourist who would not be available for a contradictory hearing. In any event the tourist will maintain his allegation and this may lead to publicity prejudicial to the tourist industry~ I venture to suggest that in circumstances similar to those of the instant case the Authority after an investigation should submit the report of the investigator, ,-----,' or the gist of it, to the car hire firm calling upon the latter to show cause why its licence should not be cancelled or suspended within a specified time. If the car hire firm fails to submit explanations within that time or submit explanations which do not satisfy the Authority, the latter may take whatever action it considers appropriate. The course which is being suggested may also be made a condition for the issue or renewal of the licence. I am of the view that my suggestion even in a varied form, would satisfy the rules of natural justice. I would also allow the appeal, remit the case to the Constitutional Court for assessment of damages. I make no order as to costs. Delivered on the ~ day of f~-}1996. Irf ,+1.~ ~ , (1, 0~Vz r-- cA/'--Y .),- ........~•.•.--.---; JUSTICE OF APPEAL (L. E. VENCHARD)