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TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CV 2013 - 0812

BETWEEN

PRAKASH MAHARAJ

Claimant

AND

THE MINISTER OF ENERGY AND ENERGY AFFAIRS

Defendant

Appearances:

Mr. R. L. Maharaj S.C. leads M.V. Maharaj

instructed by Mr. D. Rampersad

for the Claimants

Mr. R. Martineau S.C. leads for K. Ramkissoon

And Ms. Z. Haynes instructed by Ms. D. Katwaroo

for the Defendants

**********************************************************************

CV 2013 - 0839

ADESH MAHARAJ

Claimant

AND

THE MINISTER OF ENERGY AND ENERGY AFFAIRS

Defendant

Appearances:

Mr. R. L. Maharaj S.C. leads M.V. Maharaj

instructed by Mr. D. Rampersad

for the Claimants

Mr. R. Martineau S.C. leads for Mr. W. Sturge

instructed by Ms. D. Katwaroo

for the Defendants

BEFORE THE HON. MADAM JUSTICE C. GOBIN

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JUDGMENT

1. These are separate claims for Judicial Review, brought by brothers Prakash

Maharaj (PM) and Adesh Maharaj (AM) against the Minister of Energy and

Energy Affairs (The MEEA) and the Permanent Secretary. The reliefs sought

are the same more or less and there is sufficient similiarity and overlapping of

the legal and factual issues raised in these cases to allow me, for convenience,

to include my findings and decisions in a single judgement. Indeed the matters

were at all times called and heard together.

Background

2. To operate a retail service station and to market petroleum products, one must

be licenced under Section 6 of the Petroleum Act Ch 62:01. While the licence

to market is granted by the MEEA, the supply of product is secured by a

separate agreement between the NP Marketing Company (NP) and the

Company’s Dealer or dealer/owner of the station.

3. Both Claimants are sons of the late Batton Maharaj (BM) who died on 6th

March 2007. Since sometime in the 1960’s, BM was a dealer who operated

first its predecessor’s, then NP’s petrol station at King’s Wharf, San Fernando

under a licence issued by the MEEA in his name, S. Batton Maharaj.

King’s Wharf Station/Adesh’s Operations

4. Upon the death of BM in 2007, AM took over the operations of the King’s

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Wharf Station. At the time he assumed running it, he did not have a licence

issued in his name. Since that time there has not been any formal assignment

to him of his father’s licence. AM however notified NP of his father’s death in

writing. He was informed by an NP official that it was prepared to continue to

treat with him as the licence holder under their supply agreement if he were

willing to continue and he was so. Upon NP’s undertaking to transmit his

documents and application for the marketing licence in his own name to the

MEEA, AM submitted same to NP. There has been no denial by any official of

NP of these allegations, and I accept them as true. Copies of the documents

upon which AM relied were annexed to his affidavit.

5. AM claimed that sometime thereafter, one James, an official of the MEEA,

visited the King’s Wharf Station. James said he understood BM had passed

away and that he was there to get up to date information in order to facilitate

the process of the grant of the licence in AM’s name, subject to his satisfying

all necessary criteria. According to AM, James went so far as to acknowledge

him as the licence holder, and to assure him that he (AM) could continue to

operate the service station.

6. It appears that as far as he (AM) was concerned, the paperwork having been

done, and submitted via NP to the MEEA, he was only awaiting the formal

preparation and delivery of the licence. Mr. Ian Ramdahin, the Chief

Mechanical Engineer attach to the MEEA’s and its main witness, has denied

that the MEEA assured AM that he satisfied the required criteria to become a

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licence holder and operator of the service station, but this denial does not take

the matter very far.

7. What is undisputed is that AM continued to operate the King’s Wharf Service

Station, NP continued to supply product under the terms of their supply

agreement and its agents (NP’s) made regular inspections. Ministry officials

too, continued their annual inspections and produced reports in relation to the

station. Most significantly, AM continued to pay the annual licence renewal

fee and collected receipts, albeit in the name of S Batton Maharaj. On one

occasion a receipt was issued in the name of King’s Wharf Service Station. In

the case of AM therefore, it is not in dispute that to date he has not formally

had a licence issued in his own name.

Prakash’s Fyzabad Station

8. In the case of PM, he was recommended to the MEEA by NP for a Retail

Marketing Licence and was granted one in the year 2001. Since that time he

has owned and (until recent events) operated a station at Guapo/Fyzabad Main

Road. It is located on lands purchased in 1996 by himself, his parents and AM.

9. PM has continually been issued a renewed licence until the year 2010. His

annual renewal fee was paid up until 2012. Since 2010, renewed licences have

not been formally issued by the Ministry. As in the case of AM at the King’s

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Wharf station, officials of the MEEA, conducted annual inspections of his

Fyzabad Service Station and NP did these more frequently during each year.

10. Both Claimants claim the existence of settled practice of the MEEA following

inspections, of the inspectors pointing out breaches of safety and other

regulations either orally or in writing to allow operators time to take corrective

measures where such breaches are identified and to provide for a re-inspection

of the station following the service of the notices to ensure compliance before

the renewal of the licence. In their affidavits they annexed letters which

supported this claim in respect of their own stations. They also produced in

evidence, copies of four (4) letters written by the MEEA to NP in which

unsatisfactory conditions at four service stations other than theirs, were

identified and which demonstrated that time was allowed for those dealers to

take steps, before renewal of their licences could be approved.

The Events which led to closure of the station

11. Prakash Station/Fyzabad

On 28th

November 2012 – officials of the MEEA along with NP security

personnel as well as police officers turned up, unannounced, at PM’s station

and carried out an inspection after which the MEEA officials ordered the

closure of the station. The MEEA installed security officers on the compound

who have remained there until now. PM has not been allowed access to his

station since that night. He was served with a notice of non-compliance on

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January 7th

2013 at a time when he could have done nothing in relation to the

matters raised in it.

Adesh’s Station

12. In the case of AM, NP inspectors attended his station 29th

November 2012 and

conducted what he believed was a routine inspection. He was informed that the

station passed the inspection.

13. On 1st December 2012 at about 3:00 p.m. Mr. Ramdahin and other officials of

the MEEA attended the station. Mr. Ramdahin informed AM of his suspicion

that there was an unauthorized line running from the station to the sea.

Inspections were carried out and samples taken. At about 5 pm,

Mr. Ramdahin ordered the closure of the station until the Environmental

Management Authority and the Fire Department could conduct inspections. He

said these would be done on 4th

December 2012. The station has remained

closed until now. Efforts by AM to contact Mr. Ramdahin in the weeks

following the closure, for information, were unsuccessful.

14. Following the closure, officials of NP and the MEEA, indicated to AM that

they were going to be visiting to take further samples from storage tanks on the

premises. His request to be present when samples were being taken was

ignored. On 15th

February 2013, NP officials visited with a surveyor, who

conducted a survey and locked underground petrol tanks.

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MEEA’s Reasons for their decisions to suspend operations

15. Prakash Maharaj / Fyzabad

The MEEA through Mr. Ramdahin, has explained its action thus: The MEEA

had certain information regarding a secret or hidden petroleum operation.

Accompanied by police and NP security officers he and other agents went to

the station and carried out an inspection. They observed certain storage areas

which raised suspicion about PM’s operations including breaches of the

Petroleum Regulations and PM’s licence, including storage outside of approved

areas. There was also a suspicion that condensate was being blended with fuel

which was being sold. This process can produce dangerous results in modern

vehicles. Samples were taken of the suspected fuels in unauthorised storage

tanks, Mr. Ramadhin and his party formed the view that PM had been engaged

in the commission of certain felonies.

16. According to Mr. Ramadhin, in order to protect the public interest and the NP

brand, a determination had to be made as to whether the station should be

allowed or not to continue its operations. It was decided that the immediate

risks associated with the unauthorised operation, the fire hazards created by it,

and threats to safety of adjoining buildings, pollution/environmental

degradation, threats to safety of workers, threats of misuse of questionable

fuels in terrorist attacks justified the immediate suspension of PM’s operations

and the closure of the station. The preservation of the integrity of the evidence

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also required the installation of the presence of a private security firm to stand

guard.

ADESH / KING’S WHARF

17. In the case of AM’s/King’s Wharf Station, the MEEA says that on 1st December

2012, after an unannounced attendance and inspection, as a result of the state of

the station and the storage facilities and breaches of the Petroleum Act, the threat

of pollution of the environment and imminent threats to public rights and

interests, a decision was taken to suspend its operations.

The applications for Judical Review

18. By respective applications without Notice filed on 28th

February 2013 in the case

of PM and on 1st March 2013 in the case of AM leave was sought by the claimants

for review of the decision of the MEEA to suspend the operations of their

respective stations which in the circumstances, they contended, effectively

amounted to the revocation of their licences. They also challenged the issuance of

the non compliance notices at the time they were given, in the circumstances of

their having been denied the opportunity to take corrective action in accordance

with the established practice.

19. In submissions filed on behalf of both Claimants it has been highlighted that

applications for leave were filed 28th

February 2013 and on 1 March 2013 and

leave was granted on 27th

June 2013. I find it necessary therefore, to recall the

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history of the proceedings, to explain what on the face of it, appears to be a long

time, especially in the light of the effect of the impugned decision on the

Claimants’ lives, their livelihoods and their reputations.

20. As soon as these applications were filed and immediately after I had perused

them, I directed service of the applications, to hear the intended Respondents

on an issue of the implication of references in certain exhibits in PM’s

affidavit, to pending criminal investigations and the relevance of the existence

of such, to the grant of leave.

21. On 14th

March 2014, at the first inter partes hearing, two issues were agreed by

Senior Counsel on both sides and directions were given for the exchange of

submissions in accordance with a timetable agreed by both Senior Counsel, and

for decision on 23rd

May 2013 on the leave application.

22. Before that date, on 15th

May 2013, I directed the filing of an affidavit by the

respondent, to receive information which, on my understanding of the case of

Donald Panton and Ors. v. Financial Institutions Services Ltd P. C.

Appeal No. 95 of 2002 (an authority relied on in the submissions), was

necessary for a an informed decision on the leave application. Further

affidavits were filed by both sides and after I had considered the contents, I

granted leave on 27th

June 2013.

23. At the date of trial the parties agreed that there were no factual issues and that

the issues for determination were purely legal ones. Insofar as there are issues

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of fact arising out of allegations, denials and cross allegations therefore, I shall

ignore them for the purposes of this decision.

The case for the Claimants

24. Very simply, the case for the Cliamants is that the closure of the stations, on

29th

December 2012 and 1st December 2012 amounts to a revocation of the

licences and that the decisions to shut the brothers’ operations down were

illegal, procedually improper and unfair, in breach of their legitimate

expectation and unreasonable. Their case is premised on an assumption that

they are both holders of licences or at least that each have a legitimate

expectation to be treated as holders of current retail marketing licences.

25. It is therefore convenient here to deal with and dispose of the contention of the

Defendants that neither Claimant is the holder of a current licence and that as a

consequence neither Claimant is entitled to rely on the protection of the

Petroleum Act or any provision of what appears to be the standard licence. The

MEEA’s position on this follows from a somewhat startling revelation that

since mid 2010 no retail marketing licences have been renewed pursuant to a

decision of the MEEA.

26. This is how this development was related in the affidavit of Mr. Ramadhin:-

“In or about mid 2010 the then Minister of Energy and Energy

Affairs determined that the terms and conditions of Retail

Marketing Licences were inadequate to properly regulate the

retail of petroleum products.”

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The honourable Minister directed the MEEA to review and revise

the licensing instrument. As a result of this direction, all

applications for licences which were submitted to the MEEA were

withheld pending the review exercise. Service Station operators

nevertheless continued to pay the fees and charge for the renewal

of their Retail Marketing Licence: para 21: In July 2013, the new

form of the Retail Marketing Licensee was submitted to the

Cabinet for approval. The MEEA is still awaiting Cabinet

approval.

27. Both Claimants paid their renewal fees and had receipts issued. Given the

reason for the non-issuance of the renewed licence as established by

Mr. Ramdahin’s evidence, the suggestion that the Claimants were operating

outside of the law and therefore, not entitled to the protection of the Act, is

rejected. The argument is simply untenable.

28. The logical extension of the Defendants’ argument is that all retailers currently

operating in Trinidad and Tobago are operating outside the law and as Senior

Counsel, put it in the MEEA’s submission “strictly speaking they are not

entitled to carry out petroleum operations and can be prosecuted if they do.”

One can only hope that this argument does not excite a response on the part of

the Director of Public Prosecution or prompt any over zealous member of the

Police Service into action, or the country may come to a virtual standstill.

29. There can be no clearer cases for applying principles of estoppel in the area of

Public Law than these. The MEEA could not have intended to have retailers

operating outside the law, neither could it have intended by its decision to

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deliberately expose this class of persons i.e. all retail marketing operators to

criminal process. The MEEA’s actions can only be interpreted as a relaxation

of the technical requirement for the issuance of the paper or executed

document. Any other explanation would necessarily call for a finding that the

MEEA who is charged with the responsibility to regulate the industry, has

effectively deregulated it and allowed unlicenced and illegal operations by all

service station owners.

30. In support of the submission that a person without a paper licence is not a

licenced holder – Senior Counsel has pointed to section 24 of the Regulation

which provides:-

S. 24 provide:

If a licence is not executed within one hundred and eighty days

of the approval of the application, the rights of the applicant to

such licence shall be deemed to have lapsed – unless the delay is

not due to the fault of the applicant.

31. Senior Counsel submits that the word “executed” points to the intention on the

part of Parliament that a physical document had to be signed. But the section

when read as a whole expressly provides that the right of the applicant to the

licence (assuming this applies to renewals) survives where the delay in issuing

or execution is not due to any fault on the part of the applicant, as clearly it was

not in both these cases.

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32. It seems to me that the MEEA having taken the decision to withhold the

renewal of licences, and having continued to collect fees for renewals cannot

now be heard to say that any person from whom a fee was collected and

retained, is not licensed under the Act, especially, where such person was not

notified of a refusal to renew. It would be manifestly unfair, and a denial of

the legitimate expectation of the claimants that they would be entitled to their

renewals when the MEEA resumed issuing them. In the circumstances the

Minister is estopped from insisting on the strict letter of the statute regarding

the issuance of licences until the renewal process is resumed in accordance

with the Act.

Adesh Maharaj / never having been issued a licence.

33. The Defendant’s position is that even if it is possible to find that PM is the de

facto holder of a licence and the beneficiary of a legitimate expectation that his

renewal would be granted – the case of AM is entirely different – because he

has never had one. In other words what separates them is that AM was never

the holder of a licence issued by the MEEA.

34. The facts as I have found them are that in the case of AM, upon the death of his

father he notified NP, prepared certain documents including an application for

the issuance of a licence in his name which NP undertook to and did so pass on

to the MEEA and that he was subsequently visited by its representative

“James” who agreed to treat him as the licensee.

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35. As I said before, the MEEA has not denied that either it, or NP was aware of

the death of BM and of the assumption of control of the business by AM. I did

not understand the case of the MEEA to be that AM fraudulently led it to

believe that BM was alive and that is how he managed to obtain the 2008

licence in his father’s name. In those circumstances, I reject the contention of

the Defendants that the licence and the receipts produced by AM but issued in

BM’s name, point to a lack of candour or clean hands on AM’s part. They did

not mislead and could not have been intended to do so. His case was at all

times clear, that he was treated as the holder of the licence by the authorities,

and that is how his expectation arose. It is obvious on the face of it that the

licence is not in his name.

36. Further, the affidavits and exhibits are replete with references which support

the claim of AM that he was treated as a licence holder by the MEEA in the

absence of the formality of an executed licence.

Evidence of MEEA’s treatment of AM as licensee

37. It is important to note that the documents produced on both sides confirm a

working relationship between the MEEA and NP, which given their respective

roles in the industry should, of necessity, include a high level of cooperation,

co-ordination of activities, reporting and information sharing. It would

therefore be highly unlikely that NP could be dealing with AM without the

actual knowledge of officials of the MEEA. Indeed this is not what is alleged

here.

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38. I refer to the following contents of documents which support AM’s claim that

he was treated as the licence holder and especially against the background of

his notification of the death of BM:

a) NP on 10th

March 2012 – wrote to him – regarding inspection of the

station by MEEA on 15th

December 2012 – “as a routine function

prior to the granting of the Marketing Licence for the current period.

The letter was addressed to S. Batton Maharaj c/o AM.

b) Letter dated 21st November, 2011 – NP wrote to AM. Re NP Station

King’s Wharf, complaining about breach of exclusivity of Supplies

Clause in its agreement.

c) 31st July 2012 – Request by NP to AM for records – reminding that

timely submission is also a pre-requisite of the MEEA.

d) Letter dated 17th

May 2011 – from Permanent Secretary - MEEA to

NP Manager – regarding Inspection of S. Batton Maharaj service

station – together with Inspection Report. The MEEA’s report dated

17th

May – indicate the licence expiry dated – 31st December 2007 –

Licenced Name – S. Batton Maharaj, Service Station. Person

Facilitating Inspection – AM – Manager.

e) Similar letter dated 20th

September 2012 – addressed to NP regarding

Inspection of S. Batton Maharaj Service Station – outlining measures

to be taken to correct deficiencies – addressed to NP – cc. Manager S.

Batton Maharaj service station. Inspection Report – Person

facilitating inspection – Mr. AM – Dealer.

f) In the investigation report dated 12th

October 2013, prepared by Mr.

Ramdahin and filed in these proceedings – the Executive Summary –

refers to AM as NP’s – authorized dealer for the King’s Wharf

Service Station – also referred to as the Batton Maharaj Service

Station. The report at all times acknowledged Adesh Maharaj as

NPMC’s dealer for the King’s Wharf Station.

g) At P (5) of the Report reference is made to deceased, Batton Maharaj

former dealer and AM current dealer.

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h) P (9) “of the Report State Mr. AM not having demonstrated the

required due diligence expected of a licensee must not be allowed to

conduct further retail marketing transaction of fuel products in

Trinidad and Tobago.”

i) P.50 of the Report alleged – Unacceptable levels of Health, Safety

and Environmental risks created by this irresponsible and

indiscriminate act on dumping of petroleum products have the

potential to cause serious harm to people, property and the

environment which exposes the Minister to liabilities from a

Licensees operations and violates Petroleum Regulation 42 (2) (j).

j) The report continued at P - As per previous inspections at the subject

station the MEEA had issued directives for Mr. Maharaj to monitor

and immediately report water accumulation in fill hatches for

underground storage tanks. There is not record on file to confirm

compliance with this request and the detection of water in the fill

hatches on the day of the inspection indicates failure or unwillingness

to comply with MEEA’s instructions.

k) The Fuel Reconciliation reported dated 12th

July 2013 p (2) recites the

Authority of the MEEA and powers to act pursuant to S. 17 (7) of the

Petroleum Act and Regulation 23 (4). (I point this out because both

sections assume the existence of a licence.

l) The notice of non-compliance to AM pursuant to S. 17 which was

dated 21st February 2013 and addressed to him at NP’s King’s Wharf

Service Station refers to the station as a company owned, and dealer

operated service station – and AM as NP’s authorised dealer and the

retail marketing licensee. It continued, “during the conduct of the

MEEA’s said inspection, a specific request was made to you as

licensee to inspect all enclosed locked compartments etc.”

39. The MEEA now submits that AM never held a licence and therefore cannot be

treated as someone who was actually issued one. In the light of the above

references, I cannot accept the Defendant’s submission. They support

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AM’s case and establish that the MEEA and NP treated him as a licenced

dealer. Moreover, the notice of non-compliance on which the defendants rely,

in this litigation can only arise in the context of non compliance by a licensee.

The MEEA’s case here has never been that the King’s Wharf Station was

closed because it was an unlicenced operation. Even in the course of shutting

down, the Defendants sought to deal with AM under the provisions of the Act.

40. In the circumstances I find no difference in the status of AM and PM insofar as

their entitlement to the issuance of a licence to operate up to the time of the

closure of their stations goes, I think AM is equally entitled to the benefit of a

legitimate expectation that he would be treated as a licensee based on the

history and representations both express and by the conduct by NP and MEEA

officials.

The Grounds of Review

41. (a) I return to the grounds of the Claimants for review, the first of which is

illegality. The Claimants submit that the Defendant had no power under the

Petroleum Act to suspend the operations of the petrol stations under the

Petroleum Act or the Regulations. In the case of PM – the closure of the

station was ordered on 28th

November 2012 and the station has been under

guard since then. On 7th

January 2013, he was issued with a notice of non-

compliance which cited a number of alleged breaches of obligations under the

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Act. He has been allowed no access and therefore, no opportunity to address

the matters raised in the notice.

Suspension / Revocation

42. The decisions have been described as suspensions or revocations. While the

initial position, such as was to be gleaned from the earlier affidavit of Mr.

Ramadhin of the MEEA, appeared to be that the measure was temporary, up to

the time this matter came on for trial, there had been no clear indication that

PM would be given an opportunity to re-enter and resume operations.

43. It has not helped that I was unable to get from Senior Counsel, for the

Defendants, a direct answer as how he (PM), could address the notice of non-

compliance, and specifically Senior Counsel’s instructions as to when, if at all,

PM would be allowed to resume operations at his station. I am forced to

conclude that especially since he was served the non-compliance notice while

his deprivation of access continued, that in effect the MEEA has purported to

fully revoke his licence.

44. In the case of AM – the MEEA has accepted that on 1st December 2012, after

an inspection, a decision was taken to suspend the operations of the King’s

Wharf Station to avert disaster. A notice of non-compliance was sent by letter

dated 21st February 2013, but the MEEA claimed his agents were unsuccessful

in attempting to serve it on AM at the station. This is of course not surprising

as it had long been closed at that date. No notice was brought to AM’s

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attention until a letter of May 2013, almost three months after these

proceedings had been issued. This time the letter was sent to AM’s home, to

an address which must have at all times been known to NP officials and

therefore discoverable by the MEEA.

45. While the MEEA has referred to the stoppage as a suspension and has relied on

authority to justify a suspension as a holding position pending investigations, it

subsequently adopted the position that AM never had a licence leaving him

with nothing to revoke. I think it can safely be said that this “suspension” was

not intended to be temporary and shortly after 1st December 2012, MEEA took

a decision to shut down AM’s station, permanently.

Illegality

46. I have considered the submissions on the several grounds relied upon by the

Claimants. I find that the decision to shut down the service stations in each

case was ultra vires null and void and of no effect.

47. The Claimants’ submission is simply that the relevant section of the Act does

not allow the MEEA, far less a Permanent Secretary who signed the notices

here, to suspend or revoke the Claimant’s licences, unless the licences

themselves contained terms which expressly provide for suspension and

revocation and the breaches of obligations for which such sanctions are

available.

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48. Section 17 of the Petroleum Act Chapter 62:01 provides:-

(1) A licence shall contain appropriate sanctions including the

revocation of the licence, in case of failure by a licensee, to fulfil

the obligations undertaken by him.

I have also considered the following provisions:

S17 (2) The cases in which revocation of a licence are to be

provided therein in accordance with subsection (1) may include

cases in which –

(c) there is a breach of other terms and conditions contained in the

licence, in a material particular, the Minister being sole judge of

such materiality;

(3) In cases falling under subsection (2) (c) the licence may provide

that, if in the opinion of the Minister the breach committed is

capable of remedy the Minister shall, in giving notice require the

licensee to remedy the breach and pay compensation therefor,

within such time as the Minister may specify.

(6) In the case of serious and repeated violations of any of the terms

and condition of his licence or of any law or directions of the

Minister, the President may order such of the operations provided

for in the licence to be temporarily discontinued.

(7) For the purposes of this section, the Minister may authorise

public officers and other persons to inspect and carry out studies

regarding the manner in which operations provided for in any

licence are being carried out, and to report to him thereon.

I have already found both Claimants to have been entitled to the renewal of

their de facto licences, the terms of which were those included in the previously

issued standard form licences to PM or BM. These terms reflect what, in

accordance with regulation 23 of the Petroleum Regulations, the MEEA

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considers necessary to regulate the relationship between licensees and

government. What, it appears successive MEEA’s have considered necessary

for the regulation of the retail market, is contained in nine (9) paragraphs all on

one side of a single page.

The licence

49. A standard form licence contains these conditions:

1. Petroleum products shall be stored only at the places coloured red on the

approved plan.

2. Gasoline shall be dispensed from the tanks only by means of pumps at

the positions marked “X” on the approved plan.

3. The licensee shall keep accurate records and accounts of the sales of all

petroleum products and shall submit such records and accounts to the

Minister every six (6) months. Such records and accounts shall be at all

reasonable times available for inspection by the authorized

representatives of the Minister and shall be treated as confidential for a

period of one (1) year.

4. The licensee shall comply with the provisions of the Act and the

Regulations and any rules or orders made thereunder.

5. This licensee shall be prominently displayed at the PETROL

STATION to which it relates.

6. This licence expires on the , but may be renewed for

successive periods of one year.

7. No fire or lights except enclosed electric lamps or such type of lighting

as is approved by the Competent Authority shall be allowed on the

approved premises.

8. The rights acquired by this Licence shall not be assigned.

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9. Upon termination of the relevant agreement/agreements (with respect to

the Marketing of Petroleum Products or the use of the Petrol Station)

between this Licensee and the Marketing Licensee for Wholesale

Operations for any cause whatsoever, or relinquishment by this Licensee

of the rights exercisable under this Licence for any reason whatsoever,

this Licence shall be determined by the Licensee giving notice thereof to

the Minister.

I should add that by regulation 23 (4) of the Regulations, there is deemed to be

incorporated into the licence a provision that the licensee shall dispose of

petroleum products only for use in Trinidad and Tobago and in accordance with

any orders made by the Minister under S 31 (3) of the Act.

50. It is obvious that the licence contains no sanctions of suspension or revocation

for breach of any term. It follows therefore that S17 (1-5) insofar as they deal

with powers of the Minister which arise under the terms of a licence, are

inapplicable. The claimants say that in the circumstances of the absence of

express terms which provide for it, the question of revocation or suspension by

the MEEA did not arise.

51. I accept the submission that the power of the MEEA to suspend and/or revoke

only arises on the incorporation of express terms in the licence, the breach of

which provide for these sanctions. This is what to my mind is the clear effect

of the statutory provisions. Further support is found for this construction (if it

were required at all) at sections 18 and 19 of the Act which both refer to

provisions for suspension and revocation in the licence.

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52. The Claimants’ case is further, that if what is being relied upon is a breach of

the licence or of any law pursuant to section 17 (6) of the Act, it is the

President, who may order temporary discontinuation, not the MEEA or the

Permanent Secretary, as the defendants have purported to do here.

The Response of the MEEA on Illegality

53. The MEEA attempts to meet this submission by harkening back to the general

responsibility granted to the MEEA under the Act “to regulate the petroleum

industry” and an implied power to do all that is necessary to protect the public

interest taking into account, public health and safety issues. In doing so the

MEEA appears to accept that section 17 subs (1) – (3) and such part of sub

section (4) that deals with the power of the Minister, are all inapplicable to the

standard form licence.

54. The MEEA contends that its actions and the suspensions were justifiable and

exercisable under and as a necessary corollary to, and in order to ensure

compliance of licence holders, to meet their general obligations under

regulation 42 (2) of the Petroleum Regulations. In particular the MEEA points

to regulation 42 (which imposes an obligation on the licensee to “comply

with all instructions issued from time to time by the Minister that are

reasonably necessary for securing the health, safety and welfare of persons

employed for the purpose of operations” and regulation 42 (m) - which

imposes an obligation to “have regard at all times in the conduct of

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operations to the public interest and to the rights and interests of Trinidad

and Tobago”.

55. I am not satisfied that the reasons given by Mr. Ramdahin in his earliest

affidavit of 17th

November 2013 for the closure of the Fyzabad Station fell

within either of the regulations above, but in any event, I reject the submission.

It seems to me that in the absence of express powers to suspend or revoke the

licences, non-compliance or alleged breaches of these general obligations

cannot give rise to a power to suspend. This is especially so because the

primary legislation, the Act itself, makes express provision for and

circumscribes the powers of suspension and revocation of licences. In the

absence of terms in the licence which may have allowed such action by the

MEEA, the power is vested in the President only. The MEEA cannot rely on

regulations made under the Act to enlarge the very powers, which are

circumscribed by the Act.

56. The MEEA further relies on the general implied power to suspend provided by

Section 45 (3) (b) of the Interpretation Act which provides:

Section 45 (3) (b) of the Interpretation Act Chapter 3:01

(3) Without prejudice to the generality of subsection (2), where a

written law confers power -

(a) …………..

(b) to grant a licence, State lease, permit, authority, approval or

exemption, such power shall include power to refuse to make such

grant, power to impose reasonable conditions subject to which

such grant is made and power to suspend or cancel such grant;

but nothing in this paragraph shall affect any right conferred by

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law on any person to appeal against any decision with respect to

such grant;

57. I find this reliance to be misplaced. The legislature having provided expressly

for the circumstances under which revocation would arise, I do not consider

that resort to the provisions of Interpretation Act is available. The MEEA has

provided no convincing argument as to the rationale for what would amount to

not just a parallel power preserved by the Minister, but one which would

exceed those of the President as provided for by section 17 (4) of the Petroleum

Act. That section in any case permits temporary suspensions only. If the

argument of the Defendants were to succeed it would mean that the President’s

power would be limited, while that of the MEEA would be unfettered, so long

as any act of his could fall within the wide range his regulatory responsibility.

The obvious question to my mind then is, why involve the office of President at

all. I have been provided with no answer to it.

Need for Revised Licences

58. Mr. Ramadhin said the revised licences have been before the Cabinet since July

2013. Government’s timetable is not a matter for the Courts but it may be that

this matter requires some attention, and for the following reasons.

59. The MEEA’s official website sets out it role and I believe I am entitled to take

notice of this. It is responsible for the overall management of the oil, gas and

mineral sectors in Trinidad and Tobago. It identifies these as the largest single

contributors to the GDP of the country and the revenues generated provide the

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resources for the future development of objectives of the Government of the

Republic of Trinidad and Tobago. The importance of proper management and

regulation of our oil and gas resources cannot be overstated. This will impact

on future generations of our people.

60. In recent years it has come to light that there is an organised illegal trade

particularly in the export of subsidized diesel which results in huge financial

loss to the country. While the sale of transport fuels and in particular diesel is a

heavily subsidized, underground operators resell to persons outside of the

country at significant profit and at government’s and ultimately taxpayers

expense. The sale or export of petroleum products is an offence under section

17 (1) of the Petroleum Production Levy and Subsidy Act Ch 62:02.

Government has publicly stated its commitment to stamp out this illegal trade

and the haemorrhaging of the country’s assets. As with other lucrative

underworld criminal activity, this illegal diesel trade is founded on

racketeering, corruption at several levels, and it breeds and encourages violent

crime on the ground.

61. There is no pretending that in the cases here the MEEA officials were not

acting pursuant to information on general investigations into activities

involving the illegal sale of diesel. Mr. Ramadhin indicated this at the earliest

opportunity and put before the Court documents which referred to a pending

criminal investigation and the need for “preservation of the evidence”. Some

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20 months after the summary closure of the Claimants’ businesses, up until the

morning of the trial, there was no further mention of continuing investigations

by police and neither Claimant has been charged with a criminal offence. It is

not for me to speculate as to the reason for this, but insofar as these Claimants

are concerned, they remain innocent of any allegations of criminal activity in

the eyes of the law.

62. This Court has not had to make findings as to whether the suspicions as to the

involvement of either Claimant are well founded or not. I have had to consider

whether the MEEA acted within the statutory limits of its power, and whether

the procedure adopted by it in any case was fair in the circumstances. But

these cases have presented an opportunity to consider whether the statutory

provisions adequately equip the MEEA and other agencies to achieve an

important and worthy objective of stamping out the illegal petroleum trade.

Should the legislation expressly provide for the suspension of licences for a

reasonable period pending criminal investigations, with forfeiture in the event

of a conviction, or should the revised licences contain terms that expressly

contemplate this kind of process? These are matters for the legislature.

63. In the meantime the MEEA has been forced to rely on implied powers

including emergency powers and that I believe has led to error as to its

jurisdiction. In the Investigation Report on Non Conformances Detected at

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PM’s Station which was completed on 14th

October 2013, at page 8 the

following passage appears:-

These inquires and studies conducted by the MEEA into the state of

affairs and detected non-conformance at PM Service Station in

accordance with 17 (7) of the Petroleum Act have revealed –

(1) Major unauthorized modifications constitute a breach of Petroleum

Regulation 92 which in effect nullifies all retail and marketing

licences issued by the MEEA to PM for his service station from the

date of unauthorized modification onwards.

This statement demonstrates the extent to which the agents of the MEEA have

misdirected themselves as to the effect of perceived breaches on the part of

licensees, and this may well have misinformed their responses. The licences

could not simply be nullified.

64. It is however in the public interest that the MEEA and all relevant agencies

should be vested with sufficiently wide powers, subject to the provision of

effective safeguards to protect the rights of citizens, to act in situations of

emergency. The far reach of power that may be considered necessary is

available for example to the Environmental Management Agency under the Act

35:05 and to the Chief Fire Officer under the Fire Services Act. Ch 35:50.

65. Section 25 of the Environmental Management Act Ch 35:05 states:

25. Whenever the Authority reasonably believes that a release or

threat of release of a pollutant or hazardous substance, or any

other environmental condition, presents a threat to human health

or the environment, the Authority may, after consultation with

the Minister and in co-ordination with other appropriate

governmental entities, undertake such emergency response

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activities as are required to protect human health or the

environment, including—

(a) the remediation or restoration of environmentally degraded

sites;

(b) the containment of any wastes, hazardous substances or

environmentally dangerous

conditions; and

(c) such other appropriate measures as may be necessary to

prevent or mitigate adverse effects on human health or the

environment.

66. And s 44 (1) and (2) of the Fire Services Act. Ch 35:50 provides for

the service of notice by the Chief Fire Officer on occupiers of

premises requiring that steps be taken and safety measures be

implemented where the condition of premises or the nature of

business carried out constitutes a hazard to life or property by fire

or otherwise.

Section 45 of the Act provides for an emergency application to a

summary court – even on an exparte interim order – in

appropriate circumstances – for the closure of public premises.

The definition under the act includes premises to which the public

would have access.

67. A comparison of the provisions above and the regulation which the MEEA says

permits their action to close down the Claimants stations easily demonstrates

why such reliance is misplaced. The MEEA cannot arrogate unto itself a

power that is so intrusive by implication. Since the licenses do not provide for

it, I accept the submission of Counsel for the Claimants that the decision of the

MEEA to revoke the Claimants’ licences and to effectively shut down their

businesses, are illegal null and void and of no effect.

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Procedural Unfairness/Denial of legitimate expectation

68. The second ground of the claim for review is that the decision to shut down

both Claimants’ businesses was procedurally unfair. While I have ruled that

there were no provisions for the suspension or revocation, there remains the

issue of whether in any case, if there were breaches of the terms of the licences

and the general obligations under the Act, the claimants were entitled to expect

an opportunity to take corrective measures. In other words, for breaches other

than those which might have given rise to suspension and revocation under a

licence, was the procedure adopted by the MEEA to shut down in any case,

unfair.

69. The Claimants claim a legitimate expectation based on an established practice

of the service of notices of non compliance and an allowance of reasonable

time to take corrective measures. They annexed letters written by the MEEA to

NP regarding unsatisfactory aspects of their own operations. These letters

alerted to the need for those to be addressed in order for their licences to be

renewed. They attached compliance notices as well as four (4) letters

spawning the years 2002 to 2012 written to other station operators, in support

of their claims of the practice allowing of time for compliance. The evidence

in my view established a course of conduct and a practice of issuing reports

which indicated any breaches and unsatisfactory conditions existing at the

Claimants’ stations over several years. They were generally considered to be

non-compliance notices, whether in the form of a report or a letter.

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MEEA’S Response – Procedural unfairness

70. The MEEA’s response is that this evidence is insufficient in law to establish a

settled practice. This is a somewhat disappointing posture. As I indicated

before, the Act itself clearly contemplates notices of compliance and the

opportunity for correction. In its anxiety to show that Claimants have not

established a practice in accordance with the authorities, the MEEA has failed

in its duty of candour to indicate whether there is such and what is the practice.

This is clearly within its knowledge. The MEEA must have in its records,

information as to how often, in what circumstances and for what purpose non

compliance notices are given.

71. The fact that even in the instant cases, they were given after the Claimants

businesses were shut down, is sufficient to establish that there was indeed a

settled practice. This is fortified by the position taken at the hearing by Senior

Counsel Mr. Martineau, that insofar as PM is concerned, he would think, once

the matters were put right, (and I took that to mean in accordance with the

notice of non compliance) he could recommence operations, although no

details as to how or when PM could do so were forthcoming.

MEEA/Urgency trumps procedural benefit

72. The Defendants say however, that even if the Claimants were entitled to the

benefit of the notice and time for corrective measures under a settled practice,

the exigencies of the situation required urgent action and that this sufficiently

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justified their actions and trumped any entitlement to the procedural benefit of

the practice regarding notices. While it may be the case and it is settled that, in

situations which require urgent steps to preserve the welfare of citizens, health,

safety, the environment, a body may “in the exercise of its lawful power

override the established obligation to give the party affected an opportunity to

be heard” these are not such cases. I have found that the MEEA was not

exercising a lawful power conferred by the Act or agreed by the terms of the

licences. In the circumstances, the case of Lewis v. Heffer [1978] 3 All E.R.

354 at page 364 is inapplicable.

73. The MEEA has not relied on a power to override the legitimate expection of

notice where there is the suspicion of the commission of a criminal offence. In

such circumstances it would be absurd to claim the benefit of an expectation of

notice and time for compliance. But such an argument had it been raised could

hardly have gotten off the ground in the absence of police involvement in the

matter. The Petroleum Act creates offences, but the investigation of the

commission of them and any necessary action to preserve evidence remains

within the remit of police officers. What is noticeably absent in the case for

the MEEA is evidence of active police involvement in the matter. In any

circumstances of the closure for 20 months without charge, the delay hardly

seems justifiable by any standard. This to my mind points to the

unreasonableness of the decision, but in the light of my other findings I do not

consider it necessary to deal with this further.

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Damages

74. At the close of the hearing, I raised the issue of the position regarding damages,

and asked whether the evidence adduced by the Claimants was sufficient, given

the absence of cross-examination. I think it can fairly and honestly be said that

in the management of the case and up to morning of the trial it was agreed we

were proceeding to deal with the matters on the basis of the legal submissions

which had been filed. Neither party, nor indeed did I myself sufficiently

consider the aspect of claim for damages and how we would treat with it. I

have considered the cases of Gulf Insurance v. Central Bank of T&T [2005]

UKPC 10 and Dennis Graham v PSC [2011] UKPC 46 and find that

sufficient information has been produced by the Claimants in support of the

claim and that further investigation is required by law of an inquiry thorough

an assessment of damages.

Determination

75. There shall be judgement for each Claimants against the MEEA. In each case

the Court declares that the decision of the MEEA to suspend and effectively

revoke the licence of the Claimant was illegal null and void and of no effect

and an order is granted quashing the said decisions. The Court declares that the

Claimants are entitled to the resumption of their operations under the de facto

licences which were in existence, in the case of PM until 28th

November 2012

and in the case of AM until 1st December 2012.

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76. The Court declares that the service of non compliance notices was procedurally

unfair and in breach of the legitimate expectation of the claimants that they

would have been allowed sufficient notice and an opportunity to address to

matters identified on the said non-compliance notices, before the suspension or

revocation of their licences.

77. The Claimants are entitled to damages to be assessed by a Master sitting in

Chambers.

78. In each case the Defendants will pay the Claimants costs of two (2) Counsel to

be assessed by this Court. The assessment of costs stands adjourned to 6th

October 2014 in Courtroom SF16 at 9:15 a.m.

79. A stay of execution of twenty-one (21) days is granted.

Dated this 25th day of July 2014

CAROL GOBIN

JUDGE

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