Island Development Company v Marine Accident Investigation Board (MA 90/2019 (arising in MC 19/2019)) [2020] SCSC 415 (15 January 2020)

IN THE SUPREME COURT OF SEYCHELLES Reportable [2020] sese 3.~ MA 90/2019 Arising in Me 19/20 19 Applicant ~ANDDEVELOPMENTCO~ANY (rep by Basil Hoareau) and MARINE ACCIDENT INVESTIGATION BOARD (rep. by George Thatchett) Respondent Neutral Citation: Before: Summary: Heard: Delivered: Island Development Company v Marine Accident Investigation Board MA 90 of 20 19 delivered on 16 January 2020 [2020]SeSe 3rl Vidot J Application For Leave To Proceed For Judicial Review via written submission 16 January 2020 RULING VIDOT J [1] The Applicant, the Island Development Company Limited (I DC) has filed a petition to this Court for the court to exercise its jurisdiction to judicially review a decision of the Marine Accident Investigation Board after it investigated and produced a report of investigation into the accident involving the landing craft, the Sea Horse. On 25th August 2018 the vessel caught fire whilst anchored off the island of Coetivy. [2] Together with the petition the Applicant filed an application for leave to proceed with the petition in terms with Rules 5 and 6 of the of the Supreme Court (Supervisory Jurisdiction Over Subordinate Courts, Tribunals and Adjudicating Authorities) Rules ("the Rules"). [3] In making the application the Applicant avers that; (i) pursuant to Rule 6(1) of the Rules the Applicant has sufficient interest in the subject matter; (ii) that the application is being brought in good faith; and (iii) that the Applicant has locus standi in the matter [4] The Respondent opposes the application and on the following grounds; (i) The Applicant is not presenting the Application in good faith and furthermore it does not have an arguable case; (ii) That the MAIB is not amenable to the supervisory jurisdiction of the court as it is not a subordinate Court, Tribunal and adjudicating Authority ,. (iii) The Applicant has no sufficient interest in the matter of the Petition; (iv) That the Applicant has not produced a certified copy of any order or decision sought to be canvassed and furthermore there is no decision in this matter to be judicially reviewed; (v) The MAIB has immunity from legal proceedings as it is not liable for any act or omission done or made by it i.: good faith under or for the purposes of the Merchant Shipping Act; (vi) That the Applicant does not have locus standi in the matter and that there is no actual/anticipated or likely contraction of rights of the Applicant giving cause of action for the Applicant for Judicial Review. (vii) The grounds raised in the petition are frivolous and vexatious and the same ought not be subject of Judicial Review. Application for Leave [5] An application for judicial review undergoes a process comprising 2 stages; the leave stage and the merits stage. These are governed by the Supreme Court (Supervisory Jurisdiction over Subordinate Courts, Tribunal and Adjudicating Authority) Rules 1995. The rules applicable to the leave stage are couched in Rules 2 to 6. An application for leave is made ex-parte to a Judge who may determine whether or not to grant leave. Therefore, it is a requirement that court filters the application to satisfy itself that prima facie reasons exist in order to grant leave. Normally the Judge should grant it forthwith ifit is arguable. Ifnot, it is rejected and it falls in between, an inter partes hearing is held. In fact the leave stage is the stage whereby the court weeds out any unarguable case. It makes no allowance for applications for busy bodies. It assesses whether the Applicant is in good faith and has locus standi, i.e sufficient interest in the matter. The concept ofarguability also serves as a filter against useless and frivolous application. Leave is not granted unless the Applicant demonstrates an arguable point. In R v Secretary of State for Home Department, ex parte Cheblak [1991J 1 WLR 980 Lord Donaldson stated as follows; "the requirement that leave is obtained before substantive application can be made for reliefby way of judicial review is designed to operate as afilter to exclude cases that are unarguable. Accordingly an application for leave is normally dealt with on the basis of summary submissions. If an arguable point emerges, leave is granted and extended argument ensues upon the hearing of substantive application MAID not being amenable to supervisory jurisdiction of the court [6] The Respondent has advanced this ground based on their interpretation of Article 125(1)(c) of the Constitution which provides the Supreme Court shall in addition to the powers conferred by the Constitution have "supervisory jurisdiction over subordinate courts, tribunals and adjudicating authorities "it is further argued by the Respondent that Article 137 of the Constitution provides for the establishment of courts or tribunals which are subordinate to the Court of Appe.il and the Supreme Court. Therefore they submit that the MAIB which is established under section 227 of the Merchant Shipping Act is not a subordinate court or tribunal subordinate to the Supreme Court. [7] The Respondent referred to Article 119 of the Constitution that establishes the judicial structure. In fact the Article provides that the Judiciary shall consist of (a) the court of appeal, (b) the Supreme Court and (c) such other subordinate courts or tribunals established pursuant to Article 137. That Article provides for the establishment of courts or tribunals that are subordinate to the Courts of Appeal and the Supreme Court. Therefore, the Respondent's argument is that the MAIB is not a body or authority established by law which performs judicial or quasi-judicial function in order to qualify itself as an adjudicating authority. Counsel for the Respondent further argued that the functions of the MAIB are laid down in sections 170 and 171 and the amended section 227(1 A) of the Merchant Shipping Act. Section 170(2) and section 171(2) provide that one of the major function of the MAIB is to undertake an inquiry into circumstances surrounding the death or serious injury, unless the Minister otherwise instructs. Furthermore, it provides that no such inquiry shall be held where an inquest from a coroner is to be, or so required to be, held under the laws of Seychelles. [8] Section 171(2) provides that for the function of the MAIB in circumstances where the person has died or suffered serious injury and that the person who held the inquiry is under an obligation to make a report in writing of the findings to the Minister who may make a copy of the report available. The argument is that such function does not extend to a judicial or quasi-judicial function. This, it is submitted is because the report of the findings is made to the minister. Counsel for the Applicant referred to Wikipedia for a definition of adjudicating authority. It defines adjudicating authority as "the legal process by which an arbiter or judge reviews evidence and argumentation} including any legal reasoning set forth by opposing parties or litigants to come to a decision which determines the rights and obligations between the parties involved. " [9] Therefore the first question to be determined in whether the MAIB fits the definition of adjudicating authority and if that question is the affirmative whether it holds a judicial or quasi judicial function. Obviously the Respondent's position as has always been argued is that it is not because as submitted it does not adjudicate on rights and obligations of any party and that its mandate is merely to enquire into any marine casualty and makes a finding to the Minister. It is submitted that there is no order or decision from the MAIB. [10] The Petition holds opinion that is totally contrary to the Respondent. Counsel submits that the MAIB is indeed an adjudicating authority and that it was carrying out a quasi judicial function in carrying out the inquiry, making a finding and submitting a report to the Minister. [11] I tend to subscribe that the argument that the MAIB in discharging its function was discharging a quasi judicial function. The MAIB has power to carry out inquiry and investigation. That is provided under section 171 (1) of the Merchant Shipping Act which includes (a) Power to go on board a ship at any time at inspect the ship and article onboard the ship; (b) Summon any person to appear before it; and (c) Require the production of any document which in its opinion is relevant to an inquiry; and (d) After the holding of its inquiry its mandate is to make a report of its findings in writing. [12] Considering the above, it suggests that MAIB has a quasi judicial function but is it a adjudicating authority? In order to provide an answer to this question, it is necessary to refer to Article 125 (7) of the Constitution which provides; "for the purpose of clause (l)(c) adjudicating authority includes a body or authority established by law which performs a judicial or quasi judicial function" A reading of that Article adjudicating authority is said to include a body or authority which performs a judicial or quasi judicial function and therefore suggests that in defining adjudicating authority the list of such body or authority is non exhaustive. [13] The Applicant cited the case of Cable & Wireless Ltd v Minister of Broadcasting and Telecommunications and the Government of Seychelles MC [2018J SCSC42 /2014 whereby Chief Justice Dr. Twomey recognised that an administrative authority can be an adjudicating authority. [14] Counsel for the Applicant referred to Durga Das Basu's book, 'Administrative Law' where at page 214 it is stated that "if law requires that an authority before arriving at a decision must make an inquiry, such requirement of law make the authority a quasi judicial authority. Authority which acts quasi judicially is required to act according to rules whereas authority which acts administratively is dedicated by policy and expediency. The book goes on to state that "Power to summon witnesses, enforce their attendance, examine them on oath, discovery and production of documents indicate quasi judicial function. " In the same book at p218 the following is stated; "Where the authority has to act exclusively upon the evidence, it is ajudicial decision, obviously, but because the authority is not a court, the decision is to be called quasi judicial. [15] Based on the above one can safely conclude that the MAIB falls within the definition of adjudicating authority discharging ajudicial function Locus Standi - Good Faith [16] In a an application for judicial review upon screening the application, the Court at the leave stage may allow or reject the application on consideration of 2 matters. The first is locus standi and once the Applicant is found to have sufficient interest then the Court considers the second test which is good faith. When addressing good faith, the Applicant must show that the issue(s) it raises in the application is/are arguable. The Applicant must demonstrate by his Notice of Motion and affidavit and materials attached thereto that the case he makes on the material produced is a genuine cause as opposed to frivolous one. In Omaghomi Belive v Government of Seychelles & Or [2003J SLR 140 good faith was described thus; "the concept of "good faith' is not to be considered in contra-distinction with the concept of "bad faith ". It involves the notior of "uberrima fides" to the extent that the Applicant when filing the petition should have had an "arguable case ". That is an objective consideration which has to be assessed by court in deciding whether leave to proceed should be granted or refused. " See Cable and Wireless (Seychelles) Ltd. v Minister of Finance and Communications & Ors CS377 of 1997. [17] The Respondent submitted that the Applicant does not have sufficient interest in the matter. It is argued that the Applicant is merely relying on part of inquiry that MAIB conducted, on the ground that the vessel sunk in the area around Coetivy Island and did call at any port in Seychelles. Counsel for the Respondent further argued that MAIB has got a mandate to conduct an investigation in the circumstances of the case and that conducting an inquiry is the purpose of the MAIB under the Merchant Shipping Act. He added that section 227(1 A) of the Merchant Act Shipping Act provides that the MAIB is "to examine and investigate all types of marine casualties, accidents, incidents on board Seychelles flag ship worldwide. " He submits that the Applicant has not shown in what way he is aggrieved by the report of MAIB submitted. With respect I am of the opinion that to some extent this is a matter to be established at the hearing for judicial review. I have also perused the Petition and find that the matter being canvassed goes beyond exploring the fact that the boat, Sea Horse, sunk off Coetivy and did not call at any port in Seychelles. This is evidenced in Clauses II, 12 and 13 of the Petition. [18] In any case at this stage the Applicant needs only establish that they has locus standi, sufficient in the matter and that the application is not merely frivolous and vexatious. I find that the Petition indeed has arguability. I also find that the Petition is neither frivolous nor vexatious. Good faith is established if it is found that the Applicant has an arguable case [19] I find that the Applicant has interest in the matter which means that they have locus standi. In fact in regards to locus standi the Applicant at this stage needs only show that they have sufficient interest in the matter. Failure to produced certified copy [20] The Respondent raised objection further based on the fact that the Applicant did not attach with the Application a certified copy of the impugned Report of the MAIB. [21] In President Danny Faure v Nicholas Prea, Speaker of the National Assembly MA 126 of 2019 I mentioned that I am one who believes in strict application of rules of procedure. I feel that rules are there to be observed and that litigants should be sanctioned for failure to follow them. In the case of Ex-parte Tornado Trading & Enterprise EST. XP 150 of 2018 (decided on 04th July 2018) this Court applied the rules of procedure strictly. That was on an application for leave to proceed in a case of Judicial Review. I decided to reject leave to proceed inter alia because of procedural irregularity similar to the present case. I cited Viral Dhanjee v James Alix Michel SCSC CP 03/2014 wherein it was held that "applicants might be hurt when petitions or applications are dismissed due to legal if we allow procedural in the long run, rule of law will be hurt, technicality. But irregularities to be continued. " I also cited Ratnam v Cumarasamy [1964] 3 ALL ER 933 where it was held that "rules of court must prima facie, be obeyed, and in order to justify a court extending the time which some step in procedure require to be taken, there must be some material on which the court can exercise its discretion On appeal in Tornado Trading & Enterprise EST v PUC and Procurement Review Panel CA SCA 35/2018 (delivered on 28th November 2018) the Court of Appeal did not hold with me and decided to admit the impugned decision which had not been certified. Therefore jurisprudence, although just persuasive and none binding has been established. Therefore in these circumstances I shall allow the impugned Immunity From Legal Proceedings [22] The Respondent raised objection that the Respondent has been granted immunity from prosecution in terms with section 239(2) of the Merchant Shipping Act. However, it does not appear that the Respondent has addressed that issue in its written submission. That statutory provision grants protection from criminal and civil liability to the members of the Respondent, However, that protection does extend that immunity to its decision. The Respondent relied on Chio v Tave [2011] SLR 57 in support of this position. Findings [23] Finally, I find that the Applicant has locus standi and good faith in bringing this action. Therefore, I allow the Application and leave is hereby granted to proceed with this matter. Signed, dated and delivered at lie du Port 16 January 2020 Vidot J 9