SF Hybrid Motors (Pty) Limited v The Commissioner General & Anor (MC 107/2019) [2020] SCSC 659 (10 December 2020)

IN THE SUPREME COURT OF SEYCHELLES CI I C\ Reportable [2020] SCSC .. 1,_,\ MC 107/2019 . " SF HYBRID MOTORS (PTY) LIMITED (rep. by Alexandra Madeleine) Petitioner And THE COMMISSIONER GENERAL (rep. by Joshua Revera) THE ROAD TRANSPORT COMMISSIONER (rep. by Aaishah Molle) 1"Respondent 2nd Respondent SF Hybrid Motors (Pty) Limited v The Commissioner General & Anor (MCI 07/201 9)[2020] SCSC ... l:I.i:i.~.... Delivered Vidot J Judicial Review; imoortation Management Act, Road Transport Act, Vehicles policy have force of law; appropriate 10 September 10 December into Seychelles; Customs Importation to which application on loth December of vehicles authority Policies; does is made RULING Neutral Citation Before: Summary Heard: Delivered: VIDOT J has filed application seeking I. The Petitioner Respondent established importing by means of a letter dated Act the Companies under and selling of vehicles. judicial 19th November 1972, is involved review of an order made 2019. The Petitioner, in the business, the 2nd a company inter alia of 2. The Petitioner had in 2019 obtained Division to import Once the vehicle these vehicles landed in Seychelles, to the Petitioner into Seychelles 2 vehicles, import necessary Permit namely a Nissan Note and a Nissan Serena. the JSt Respondent would not allow the release of from Import permits claiming that the year of manufacture did not correspond being new. The 2nd Respondent claimed that these vehicles did not with the vehicles conform to the Vehicle Importation Policies, which policy he administers. In its attempt to resolve the matter to have the vehicles released the Petitioner engaged in exhaustive negotiations with the Respondents and that involved the writing of numerous letters and appeals pursuant to the Customs Management Act 2011; Customs Management (Appeal against Administrative Decisions) Regulations 2012; S. I 60 of 20 12, ("the Regulations") to the 15t Respondent. To date the vehicles have not been released. This has resulted in business detriment to the Petitioner. It is averred that the decision was unjustified. The Petitioner 3. The Petitioner is therefore seeking that the decision of the Respondents be declared ultra illegal and unreasonable and constitute an abuse of power by the l" and 2nd vires, Respondents. further submits that the Vehicle Import Policies had not been translated in law, therefore making it unenforceable and cannot be applied to infringe on the Petitioner's rights. Furthermore, the policy had not come into force when the Petitioner obtained the necessary import permits for the two vehicles. The Petitioner is under obligation to answer to the appeals that it filed. According to the Petitioner the 1st in conformity with the Respondent had 30 days to pronounce itself on the appeal for writs of Regulations. Therefore, respectively to act certiorari and mandamus according to law and release the vehicles. the Ist and z= Respondents further submits that the Ist Respondent the Petitioner prays that the Court make order to compel Factual Background The Petition 4. In 2019, the Petitioner obtained necessary import permits to import the vehicles. They were imported from Japan. On the 28th February 2019 and Oyd April 2019, the Seychelles Revenue Commission issued to the Petitioner "Receiving Goods Receipts" for the Nissan that the vehicles were being Note and the Serena respectively advising the Petitioner retained in Government warehouse until permits were amended. The 15t Respondent there were doubts regarding the date of manufacture of the vehicles. maintained that that was Therefore, served on Customs Division. the Petitioner obtained from the manufacturer export certificates 5. However, by letter dated 15th April 2019, the 2nd Respondent wrote to the Petitioner expressing that the vehicles would be retained and not released for the following reasons; (i) The vehicles have 12 symbol cnassis instead of 17 symbol chassis number which means that the vehicles were meant for Japanese domestic market only and not to be exported; IIumber (ii) further analysis of the vehicles were made, it was found that both vehicles in 20) 7 and not 2018 as indicated on the permits. After were manufactured 6. Irrespective, the Petitioner pursued its endeavours to have the vehicles released. That came via letter of )OlhMay 2019. The Petitioner further filed an appeal on the 171hMay the decision not to release the vehicles. However, 20) 9, to the l " Respondent, against that Respondent failed to make any determination on the appeal within the prescribed 30 days period. 7. The Petitioner received a further letter dated 041hJune 2019, further ado." By further letter dated 091h July 2019, from the Customs Division, that the year of manufacture of the vehicle was 2017 and not informing the Petitioner 2018. The Customs Division nonetheless proposed that the Petitioner appl ies for an amendment of the import permit "so that customs could facilitate the release of the vehicles without the Director for Trade in the Ministry of Finance, Trade and Economic Planning, informed the Petitioner that the Department of Transfer being tne competent authority for the importation of vehicles under the Customs Management (Prohibited and Restricted Goods) Regulations 2019 had not approved the permit for importation of the 2 vehicles as they were not new as defined in the Vehicle Importation Policies. Yet again the Petitioner appealed against that decision. To that an end the Petitioner sent a letter dated 091h July 2019 to the l " Respondent. Yet again the l " Respondent failed to make a determination of that appeal within the prescribed 30 days of the appeal. By letter dated 071h October 2019, the Petitioner sought a respond to that appeal from the Ist Respondent. 8. The l " Respondent responded by letter dated 19th November 2019, which letter was In that letter the )SI Respondent advised the Petitioner received on 27th November 2019. that it can only release the vehicles upon the availability of an import permit. That amended permit had to come from the 2nd Respondent. That letter did not address all the in respect grounds of appeal and suggested that the Petitioner contacts the 2nd Respondent of the Vehicle Importation Policies. Despite attempts by the Petitioner on two occasions to obtain from the 2nd Respondent that policy, such attempts were not fruitful. Therefore, the Petitioner deemed the refusal by the Ist Respondent to determine the issues raised in illegal and or unreasonable and that the Respondents the appeal as being unjustified, acted in procedural for the following reasons; impropriety that constitutes an abuse of power (Appeal (a) The Customs Management Decisions) Regulations 2012, provides that the Revenue Commissioner makes a decision regarding any appeal within JO days of the lodgement of the appeal. On both occasions that an appeal was filed the reply of the decision was not made within 30 days; against Administrative (b) The failure of the l " Respondent prescribed internal appeal retention of the vehicles; in the Regulations, procedures to decide denied the Petitioner and lor in the alternative on the Appeal within the right to exhaust the time other from custom's remedies (c) Failure of the l" Respondent 2019 and 04th September 2019, refusal Respondent refusal Respondent dated 09th July 2019. to make a decision on the appeal of the 17th May of the 2nd the 2nd of issue amended import permits as confirmed in a letter to an endorsement and an endorsement to release the vehicles; to is tantamount (d) Therefore, the Petitioner considers that fai lure of the l" Respondent to deicide on the appeals to be an illegality in that 2 vehicles were lawfully imported into Seychelles on authority of valid import permits from the l" Respondent. . 9. The Petitioner also considers the 2nd Respondent's to release and issue amended import permits as unreasonable and an ahuse of power by the 2nd Respondent and that customs reliance andlor endorsement of the said refusal as being unjustified, illegal and the amended import permits unreasonable. The Petitioner were refused on that ground that further to the provisions of the Vehicle Importation Policies, the vehicles were not new, a matter which is disputed by the Petitioner. further complained that refusal that 10. In fact the Petitioner submits that the Vehicle Importation Policy cannot legally form the basis for retaining the vehicles as the policy lacks the force of law and unless the Policy was translated into law, it cannot be applied to infringe on personal rights. Furthermore, the policy was not in force at the time that Petitioner applied for the import permits for the 2 vehicles and neither was It in force at the time. It also did not have retrospective effect when it came into existence. I I. The Petitioner further avers that the reten.ion of the new N issan vehicles and refusing to import permits were unreasonable to be grant amended remembered that the Petitioner applied and obtained necessary import permits prior to importing the vehicles in Seychelles. The Nissan Note was first registered and released in Japan in March 2018 and the Nissan Serena registered and released in Japan in November 2018. Therefore, since the vehicles were released un the above mentioned dated, the two new vehicles could not have been purchase in 2017. and unjustified. In has 12. The Petitioner, avers that reliance on the 2nd Respondent's refusal as being the competent authority is wrong in law and unreasonable in all circumstances of the case, because at in Seychelles and the time of obtaining the import permits for the vehicles, (Prohibited and Restricted Goods) their retention by customs, Regulations 2019, was not came into force upon their to the official gazette of 17th June 2019. That being the publication in the supplement in force. These Regulations the Customs Management their arrival the regulations case, obtained import permits cannot operate retrospectively to the time that the Petitioner in respect of the vehicles. aforesaid, 13. As a result of matters the Petitioner has been caused serious prejudice and damage as one of the clients who placed upon becoming aware of the order the 2nd Respondent's letter of the 15th April 2019. for the vehicle has cancelled the purchase agreement is failure and refusal the vehicles, to release that 14. The Petitioner, therefore, makes the following demands from the Court; I. ii. That the Court issue an writ of certiorari quashing the decision contained in the lSI letter of 151h letter dated 19th November 2019, the 2nd Respondent's Respondent's April 2019 and the decision conveyed by the Director General for Trade in the Ministry of Finance, Trade, Investment and Economic Planning on the 091h July refusing to release the two new Nissan vehicles and / or to issue the 2019, amended imports permits as endorsed by the 151Respondent in failing to consider the Petitioner's appeal within the prescribed time limit; to make a decision on Issue a writ of mandamus compelling the pi Respondent appeal dated 17lh May 2019 and 06th September 2019 in the Petitioner's accordance with the laws and regulations in force at the time that the 2 new Nissan vehicles were imported and/or arrived in Seychelles on the basis of the document provided by the Petitioner; Ill. Make any orders that the Court shall deem fit in the circumstances of this case; and IV. Order the Respondents to pay cost of this case. 15. Therefore the Petitioner's demand is to declare that the impugned letter of the Seychelles Revenue Commission, Customs Division, is not valid as it did not address the appeal lodged by the Petitioner under Section 6 of the Customs Management Act 2012; Customs Management (Appeal and Administrative Decisions) Regulations 2012. 16. The Petitioner provided all documents pertain in:s to this case some of which have already been referred to above. The first Respondent's objection (a) Preliminary Objection 17. The l " Respondent's law as the Petitioner 2019, SI40 of2019 preliminary has exclusive objection reads that statutory remedy under the Petition is not maintainable in the Customs Management Act (b) The First Respondent's Answer On the Merits 18. The first Respondent, the Commissioner General does not dispute that the Nissan vehicles were imported into Seychelles and that they have been retained but adds that the retention initially was because investigation needed to be carried out but that after the investigation was carried out, the information obtained was it was concluded that contrary to information provided by the Petitioner. Actually Receiving Goods Receipts issued on the 281h February 20) 9 and 03rd April 2019 in respect of the Nissan Note and the Nissan Serena respectively shows that the information provided by the Petitioner in respect of these vehicles were incorrect. for an extension of )9. The pI Respondent also contended that the appeal of the 17thMay 2019 in respect of the Nissan Note was time barred and that the Petitioner did not apply in writing to the l " Respondent for that Respondent also submitted that S. I '.50 of 20112 Regulations are descriptive and not mandatory that should reply the appeal within 30 days. The l " Respondent further avers that it did act on the appeal within the 30 days and by letter dated) Olh May 2019 varied the earlier decision by allowing the Petitioner possibility to amend the existing import permits so that it reflected the correct manufacturing date to satisfy the Vehicle Importation Policy imposed by the 2nd Respondents. the appeal. Counsel the l " Respondent lodging of time for 20. The 1SI Respondent also avers that import permits are obtained from the 2nd Respondent failed to obtain necessary import permits from the 2nd the vehicles were preregistered to its previous owner which and that Respondents. Furthermore, translate into the vehicles not be.ng contrary to description in the import permits. the Petitioner 2). [t was also averred by the 1st Respondent that under the new vehicle policy, the Nissan vehicles that were imported by the Petition did not satisfy the definition of new vehicle provided by that policy. New vehicles are defined as those manufactured in the current year of importation or one year prior to which they are imported. The 2nd Respondent Objections (a) Preliminary Objection 22. The 2nd Respondent raised two Preliminary Objections to the Petition. These are; 1. That the Petition is not maintainable against the 2nd Respondent as that Respondent not an adjudicating authority. The 2nd Respondent merely exercises is statutory functions which are supervisory jurisdiction administrative of the Supreme Court; in nature and hence not amenable to the It is averred that the Petition for judicial ii. beyond the statutory time limit review is not maintainable as it has been filed The 2nd Respondent's Answer On the merits to proof of the several averments made therein. However, 23. The 2nd Respondent merely denied most of the averments made in the Petition and placed the Petitioner the 2nd Respondent admitted that it is the competent authority who issued letter to the Petitioner after further investigation to determine the year in which the vehicles were manufactured and equally the competent authority for approving vehicles entering Seychelles pursuant to Regulation 3(2) ofS.1 43 2014 of the Customs Management (Prohibited and Restricted the 2nd Respondent maintains that she acted within the Goods) Regulations. However, purview of its administrative functions and denies that her action was unjustified, illegal and unreasonable. 24. The 2nd Respondent further averS that the Petitioner is not entitled to the relief of a writ of certiorari or a writ of mandarr.us against the 2nd Respondent and that the case should be dismissed. The Respondents Preliminary Objections 25. At the heart of this case is the importation of vehicles in the Seychelles. The Petitioner made a brilliant job in the Petition in providing a succinct overview of the issues involved in this matter. 26. The preliminary objection of the Ist Respondent deals with time limits in filing for objection. Section 2 of the Customs Management Act 201 I, (S. I 60 of 2012) Customs (Appeal and Administrative Decision) Regulations 2012 provides that a Management person dissatisfied with a decision of Customs may appeal against that decision within 60 days of the day that person has been served with that decision. The 1st Respondent therefore argues the Petitioner should have lodged an appeal following the letter dated 091h July 2019 from Mr. Ashik Hassan of the Trade Division of the Ministry Finance Trade Investment and Economic Planning. 27. However, it is interesting to note that on the 17th May 2019 the Petitioner filed a detailed appeal further to a letter from Mr. Wilson Denis dated 15thApril 2019, in which the Road Commissioner had refused release of the vehicles, The appeal was as required by law, prescribed under S. I 60 of 20 12, lodged with the Commissioner General. That was within the 60 days prescriptive period. [t does not appear that the Revenue Commissioner gave a reply to that appeal with the 30 days prescriptive period. Prior to that, by letter dated 10lh the Petitioner had sought to engage with the Commissioner of the Customs May 2019, to have the vehicles released. By letter dated the 04tl1 June 2019, the Customs Division Division had requested that the Petitioner amend the import permits. The letter from Mr. Hassan dated 09th July 2019 reiterated the refusal to release the vehicles. The Petitioner filed a further appeal dated 06th September 2019. This appears to have been within the prescribed period. There was another appeal filed on the 07th October 2019 which referred to the previous of the appeal. On the 19111 November 2019, Mrs. Veronique Herminie, the Commissioner General responded to that appeal but does not address all the grounds of appeal. 28. Counsel for the l " Respondent refers to letter of 04111 June 2019 to support his averments that the appeal was not filed within time. However, he failed to consider letters that came If the l" Respondent was after that date, such as the letter of the 091h July 2019. the Ist Respondent was entertaining condoning any late filing of appeal. In that case therefore, they cannot now cry foul. then that suggests letters after that date, that 29. [ find that the Petitioner was well aware of the provisions of the Customs Management Act. The Petitioner was using the mechanism available under the Act, be it S. I 60 of2012 or S.l 43 of 2014, and it was the provisions of these statutes that the Petitioner was seeking to enforce and as a result to find a solution to the problems at hand. 30. I therefore consider that this preliminary objection has no merits and it fails. is an 31. The first objection of the 2nd Respondent nertains to whether or not that Respondent adjudicating authority and amenable to the Jurisdiction of the Supreme Court. J assume that the 2nd Respondent was invoking provisions under the Supreme Court (Supervisory Jurisdiction Over Subordinate Courts, Tribunals and Adjudicating Authority) Rules the Supreme COUlt has supervisory jurisdiction over (1995). Under Article] 25(l)(c) subordinate is the Road Transport courts, Commissioner an authority established by law with power to perform judicial or quasi judicial function? and adjudicating authority. So, tribunals 32. The Judicial Review Handbook (6th Edition ; Hart Publications) at page 7, Michael Fordham QC state that "Judicial review is the Court's way of enforcing the rule of law; ensuring that public authorities' functions are undertaken according to law and that they are accountable to law, Ensuring in other words, that public bodies are not "above the law" 33. The Road Commissioner is appointed under the Road Transport Act. By virtue of section 11(1) of that Act, the Road Commissioner who is appointed by the Minister responsible for road transport has powers and duties to perform under the Act, under the general (Prohibited and Restricted Directions of the Minister. Under the Customs Management Goods) Regulations is made to the Department of Transport. The same position is repeated in SI 43 of 2019. Following (2012) application permits to import vehicles of from Lord Fordman QC's observation, capacity government Article established court to provide action. The Constitution 125(7) designates judicial review in essence adversely to people remedies in its definition of adjudicating an 'adjudicating authority" as including is about affected the function or by unlawful under authority a body or authority by law which perform a judicial or quasi function. 34. A writ of certiorari is enforceable against law statutory rights of others; legal authorities or bodies that makes decisions r1993J 2 affecting the common AC 309 (adopted in Joanneau v SIBA 1'2011]SLR 62) and Timonina v Government of is a body that derives [2008-2009J SCAR 21. The 2nd Respondent Seychelles and Anor power under Statutes and makes decision that affect the personal rights of persons. Such decisions should in any case be amenable to challenges if the citizen is unsatisfied with decisions taken. As stated in Trajter v Morgan ]2013] SLR 329; see O'Rielly v Mackman "The jurisdiction confers by this process determines the legality, as distinct from the in this case the Minister. substantive merits of the decision of the adjudicating authority, Judicial review is a means by which the courts necessarily ensure that administrative bodies act within their powers as laid down by law rather to a whim orfancy. " 35. Therefore, in this case it is making an administrative decision conferred by statutes and under the guidance of a Minister who also assumes administrative power under the Road Transport Act. For all intents and purposes the 2nd Defendant can only be described as an adjudicating authority. is without question that the 2nd Respondent 36. Therefore, the objection is dismissed. (Supervisory 37. The second objection of the 2nd Respondent alleges that the Judicial Review is not maintainable in law as it has been filed beyond the statutory time limit. Section 4 of the Supreme Court and Adjudicating Authorities) Rules provides that a petition under Rule 2 shall be filed within 3 months of an order or decision sought to be canvassed by the Petition is made. The impugned decision was made on the 19th November 2019. The Petition was filed on the is well within the prescribed period. In fact the petition was 21St November 2019, That filed in less than a week of the decision. over Subordinate Courts, Tribunals Jurisdiction 38. This objection is devoid of merit and therefore fails. The Vehicle Importation Policies. 39. This policy deals with the importation of new and used vehicles and of spare parts. It ("the RTC") the mandate of implementing gives the power Road transport Commissioner the policy. It names the RTC as the body responsible to set clear guidelines to be used by the Import Permit Section and Customs Division. 40. The policy also provides that the Customs Division is responsible (Prohibited for the implementation vehicles the Respondents were alleging; to the Customs Division to confiscate and Restricted Goods) Regulations. that are not of the Customs Management right Import Permit Policies, which in this case was issued by the Customs Department. this is exactly what to the description The Policy also sets out specification requires the vehicle number. It gives the in conformity with the In fact the Nissan vehicles did not conform the year of manufacture. It also provides the process for imported into Seychelles, which shall all be new. To that end it date of imported into Seychelles must have the manufacturing on the Import Permits. The issue was about for printed on the seat belt and the YIN number, for vehicles that all vehicles or the vehicle identification of vehicles. importation 41. Be that as it may, the Nissan vehicles. it had only come into force after the case was filed. the Petitioner obtained import permits avers that the policy only carne into being in 2019 and has not been in force at the In fact the to import time that It was hard to Petitioner for the 2nd Respondent expressed difficulty obtain a copy of the policy that even Counsel in obtaining a copy. Nonetheless, though it sets guidelines that are to be a policy, observed, does not necessarily have the force of law. The policy has not been translated into law; see Cable and Wireless Seychelles Limited v Minister of Broadcasting ad Telecommunication MC 42 of 2017 [2018JSCSC 348 (delivered 09th April 2018) the position was reinforced; see also Talma v Minister of Land use and Housing (MC 65/2014) [2015JSCSSC 733. 42. So, unless the Policy is translated into law, though it is persuasive in implementing national guidelines in the respect of importation of vehicles into the Seychelles, it does not have the force of law. So the Respondents cannot rely on such policy to justify their to an action in refusing the release of the Nissan vehicles which in itself is tantamount the policy did not come into force until 2019, after the abuse of power. Petitioner had obtained and received the import permits and subsequent to the vehicles invoke the policy to justify their action. landing in Seychelles. The Respondents cannot In this instance the policy is not applicable and h fact Counsel for the pI Respondent agreed with that position. In any case, Illegality, Unjustified and Unreasonable 43. As correctly put forward by Counsel for the 2nd Respondent, the decision was right or wrong. At the core of judicial review does not review is strike at whether whether or not the decision or actior. taken by the Respondents was legal. Illegality in essence is whether the act is within the law. In making a decision as to whether to grant the the prayers of Respondents made decisions that fell outside the ambit of the law. the COUlt'S consideration is to evaluate whether the Petitioner, judicial (a) The Import Permits that approval 44. The Customs Management Act ot 20) I, which was published as S. I 41 of 20 19 (after the permits were applied for) provides under section 4(3), for permits is obtained in writing from the Authority specified in the corresponding entry under column 4 of the Schedule. That schedule names the Department of Transport as the Authority from which permit should be obtained. Though the initial application predates S. I 41 of 2019, the amended permit. Nonetheless, The Customs Management Act 20 II, through S. I 60 of 2012, section 3, provides that the import of vehicles with steering located on the left hand side, should the import permits do not again be made to the Department of Transport. However, indicate on which side the steering of these vehicles was, but it in fact that vehicles imported into Seychelles should have steering that is on the right. it will have some relevance when the Court will consider the Petitioner 45. The Petitioner made application to import the vehicles to the l " Respondent and not the 2nd Respondent. Counsel in failing to for that Respondent submits that make application to the 2nd Respondent was acting outside the law. The 15t Respondent with all might wanted to exploit such failure by the Petitioner. However, the Court advices that this is not a horse that the 15t Respondent's Counsel should choose to flog. I think he should not, particularly since the Government authorities concerned and in particular, the Ist Respondent could not convincingly identify the head of the horse from its rear. This is because the Petitioner made application to the Customs Division which application was received and acted upon. The import permit was stamped with an there were other "Import vehicles mentioned and it appears that these vehicles were imported into Seychelles. The Customs Division of the SRC issued the Import Permit Receipts. Then the Customs Division and the 15l Respondent engaged in negotiations with the Petitioner for release of the claims that application for permit should have been made to the the vehicle. Now, Land transport Division and not to them is an absurdity and embarrassment to the 15t Respondent. One cannot portray oneself of being the body to which import permits for vehicles are sought and issuing all appropriate documentation, making decisions and to subsequently state that the application should in the first place have been made to another body. This reasoning is totally unreasonable. / Export, Ministry Of Finance" stamp. On the import permit (b) Date of manufacture of the vehicles 46. At the crux of this of this dispute between the Petitioner and the Respondents is the year of manufacture of the vehicles. The entries on the import permits shows the vehicles as having been manufactured in 20'18. IJpon arrival in Seychelles the Respondents argued that they were manufactured in 2017. This is made clear by the letter dated 15th April they verified the YIN number on 2019 from the RTC. According to Customs Division, the seatbelts Respondents and it indicated that that that was the reason for the non-release of the vehicles. the date of manufacture was 2017. It is averred by the 47. The Petitioner gave explanation IT Plus Japan Corporation Japan and in that jurisdiction manufacturing date is equally pertinent. For all 2018, so the manufacturing That the release date or the registration date. The chassis number of the vehicles which also indicates for this and produced letters and export certificate (which were <xhibited). The vehicles were manufactured from in date are considered as the the release the release date of the vehicles was to be the release date. is considered intents and purposes date of these vehicles in this court's view is an acceptable and reaso-iable conclusion. 48. The 151 Respondents also argued that the vehicles were not new since they were first registered in the name of the initial dealer and thereafter was deregistered to be sold to the Petitioner. This, in this Court's opinion is a feehle excuse. The Petitioner did not buy the vehicles directly from the manufacturer. They were purchased through a dealer. Once i.e it the vehicles landed in Seychelles they would have gone through the same process; goes to the dealer and subsequently to) the client. That does not label the vehicle as not being new or second hand. The vehicles have not been used. They are new. Therefore, this Court cannot adopt the Petitioner above argument. That is an unreasonable ground for retaining the vehicle but not sufficient reasons to make the orders that the Petitioner has prayed for. (c) The Appeals 49. The Petitioner I do not find a reply to that received a letter dated 151h April 2019 from the 2nd Respondent which states that the vehicles were manufactured in 2017 rather than 2018 and therefore would not be released. letter. As was correctly pointed out by there does not appear to have been any action taken Counsel for the 2nd Respondent, letter. In fact no application for in response tc that directly with the 2nd Respondent judicial review in answer to that letter was filed. There wasn't any concrete action from the Petitioner to have that letter impugned. 50. On the 17th May 2019 the Petitioner filed a first appeal, setting out clear grounds of appeal. It does not appear that there was a decision given in response to that appeal though the Petitioner and the 2nd Respondent were in communication and the Petitioner was exploring ways of having the problem resolved. By letter dated 091h July 2019 (exhibited), Mr. Hassan from the Trade Division of the Ministry of Finance reminded the Petitioner that the issuance of permit is guided by the Customs Management (Prohibited and Restricted Goods) Regulations 2019. These Regulations came into force after the vehicles were imported. Mr. Hassan also emphasized that "the Department of Transport, being the competent authority for the importation of transport" had not approved the request to import the vehicles. A second appeal was filed on the 061h September 2019. A the appeal copy of months after the appeal, is exhibited. On the 19th November is more than 2 the 15lRespondent in answer 2019, which rejected the appeal. 5]. in answer letter of Transport to the appeal, In the impugned the Department issues Division is in receipt of the import permit SI 43 of20 14 Regulations. However, the Commissioner General noted that and that unless it is the Customs It refers to the the letter does not address all the grounds of appeal. import permit the vehicles cannot be released. that 52. The Petitioner that that alleges to response the vehicles a 30 day period the failure of that as provided Decisions) Regulations refusal JSl Respondent by the Customs Management unlawful 2012 is unjustified, I agree with Counsel are still being detained. to the appeal against (Appeal within and illegal. As a Administrative for result of that for the I st Respondent argued that Section 3 of the above mentioned Petitioner. Counsel Regulations which provides the "Revenue Commissioner may (underline mine) affirm, vary, set aside the decision within 30 days of the lodgement of the application of the appeal" as being descriptive and not mandatory. It is correct that the wordings of the section do not make it mandatory for the Revenue Commissioner to make a decision within 30 days. it gives the l " Respondent authority not make determination on the appeal at all. However, one needs to give purpose to that statutory provisions. That provision could not be read as placing an obligation of the Revenue Commissioner which the later may decide to ignore and not follow. I think the intention was not to make the requirement of 30 days rigid, but it does not absolve the Revenue I feel that the from making and communicating a reply to the appeal. Commissioner decision has to be made within a reasonable time. The 1st Respondent needed to give an answer to the appeal and failed to do so. The decision of the 151 Respondent to determine illegal and unreasonable. the appeal is unjustified, I do not believe that the failure of the l " Respondent to exhaust other retention of the two Nissan vehicles. to make a determination denied the Petitioner 53. Therefore, internal procedures and/or alternative legal remedies from the right the failure to make a I also find that Custom's letter dated ISlh determination of the appeal as an endorsement of the 2nd Respondent's April 2019 relied upon by Customs refusing the release of the vehicles. It is also an endorsement of the decision contained in the letter dated 09lh July 2019 confirming the refusal to issue the amended import permits in respect of the vehicles. I 2nd respondent's have found above that illegal, the decisions of the Respondents not to be convincing, unjustified and unreasonable. 54. I, therefore proceed the following order; (a) Issue a writ of certiorari quashing the decision of the 2nd Respondent given on the 15th April 2019 and the decision conveyed by the Director of Trade in the Ministry of Finance and Economic Planning on the 9thJuly 2019, refusing to release the two Nissan vehicles and I or to issue amended import permits as endorsed by the 1st Respondent. The amended import permits shall be issued within 2 weeks of this Ruling. (b) Issue a writ of mandamus against to make a decision to the Petitioner's appeal of the 17th May 2019 and 6th September 2019 in accordance with the law in force at time that the Nissan new vehicles were imported and lor arrived in Seychelles not later than a month of this Ruling the JSt Respondent, compelling that Respondent (c) That the Respondents pay cost to the Petitioner for the case of this case. Signed, dated and delivered at lie du Port on 10th December 2020 lLl