Jomo Thomas v The Comptroller of Customs, The Director General of Finance and Attorney General

• Jurisdiction: St Vincent and the Grenadines
• Judge: THOM, J
• Judgment Date: 20 October 2010
• Judgment citation (vLex): [2010] ECSC J1020-2
• Court: High Court (Saint Vincent)
• Docket Number: HIGH COURT CIVIL CLAIM NO. 331 OF 2008
• Date: 20 October 2010

[2010] ECSC J1020-2

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

HIGH COURT CIVIL CLAIM NO. 331 OF 2008

Between:

Jomo Thomas

Applicant

and

The Comptroller of Customs

First Respondent

The Director General of Finance

Second Respondent

The Attorney General

Third Respondent

Appearances:

Ms. Maia Eustace for the Applicant

Mr. R. Williams for the Respondents

THOM, J

1 Mr. Jomo Thomas is a citizen of Saint Vincent and the Grenadines (St. Vincent). He resided in the United States for a number of years. In April 1996 the Cabinet of St. Vincent decided that citizens of St. Vincent who returned to St. Vincent to reside permanently would receive a duty concession of 75% of the duty payable on their motor vehicle imported into St. Vincent or purchased in St. Vincent.

2 In March 2007 Mr. Thomas applied to the Customs Department pursuant to the decision of the Cabinet for duty free concession on the importation of household and personal effects and a motor vehicle. The Customs Department referred Mr. Thomas to submit his application to the Director General of Finance. Mr. Thomas made the application to theDirector General of Finance. On June 5, 2007 the Director General of Finance wrote to Mr. Thomas informing him that he was not entitled to any concession since such application should have been made within one (1) year of his return to St. Vincent

3 Mr. Thomas seeks leave to apply for judicial review of the decision of the Comptroller of Customs of 27^th March 2007 refusing to deal with his application on the ground that such decision is unreasonable, irrational, erroneous in law and was procedurally improper.

4 Mr. Thomas also seeks leave to apply for judicial review of the decision of the Director General of Finance dated June 5, 2007 on the ground that the decision is unreasonable, irrational, erroneous in law and was procedurally improper.

5 The Application was heard on April 19, 2010 and the parties were ordered to file submissions on or before April 26, 2010. Learned Counsel for Mr. Thomas filed submissions on September 23, 2010. No submissions were received from the Respondents.

6 Learned Counsel for Mr. Thomas submitted that the manner in which the Comptroller of Custom dealt with Mr. Thomas' application was illegal and was procedurally improper and it amounted to fettering and delegation of discretion.

7 Learned Counsel submitted that the procedure is for the application to be determined by the Comptroller of Customs. The procedure is contained in the document for public information that was produced by the Customs Department entitled "Duty Free Concession for Returning Nationals General Conditions (The Guidelnes)." The determination of an application for concession was not a matter for the Director of Finance or the Cabinet. The Cabinet having divested itself of the power to determine whether to grant concession to the Comptroller of Customs it could not lawfully exercise the power on terms and conditions not known to the Applicant. Further the Comptroller of Customs could not delegate his • discretion to the Director General of Finance or to the Cabinet.

8 Learned Counsel also submitted that Mr. Thomas was not given an application to be heard by either the Comptroller of Customs or the Director General of Finance.

9 Learned Counsel further submitted that Mr. Thomas had a legitimate expectation that the application would be dealt with in accordance with theprocedure set out in the Guidelines.

10 Learned Counsel referred the Court to the case ofR v Secretary of State for the Home Department exp Fire Brigade Union [1995] 1A.C p. 513 and Lanader v Minister of Housing and Local Government [1970] 1WLR.1231.

11 Learned Counsel further submitted that there was no alternative redress. Sections 131 -134 were not applicable. The sections only provide redress where the basis for the amount of duty paid is in dispute. It does not apply to a dispute concerning the interpretation of the scheme of duty free concession for returning citizens.

LAW AND ANALYSIS

12 The grounds upon which judicial review maybe sought were set out by Lord Diplock inCouncil of Civil Service Union v Minister for the Civil Service to include:

• (a) illegality

• (b) irrationality

• (c) procedural impropriety

Lord Diplock explained the terms in the following manner:

"By "illegality" as a ground for judicial review, I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not par excellence is a justifiable question to be decided in the event of dispute by those persons, the judges, by whom the judicial power of the state is exercisable.

By "irrationality" i mean what by now can be succinctly referred to as Wednesbury unreasonableness (seeAssociated Provincial Picture House Ltd v Wednesbury Corp. [1947] 2 ARE p.680. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system.

I have described the third head as "procedural impropriety" rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice."

13 Mr. Thomas' application...