The Minister of Energy and Energy Affairs v Maharaj and another

A licensing statute that sets out a specific regime for default, suspension, revocation and dispute resolution does not permit the licensing Minister to exercise an additional general power of suspension by implication. A licence-holder must be able to identify from the licence or the statute the circumstances in which the licence may be suspended or terminated. A statutory power to revoke does not, merely because it is the greater power, include a power to suspend. Unlawful suspension may seriously infringe the constitutional right to enjoyment of property and support damages. Legitimate-expectation damages extend only to periods for which the licensee tendered, and the Minister accepted, the relevant licence fee.

The appellants operated petrol stations in Trinidad and Tobago under annual retail petroleum licences. After inspections prompted by suspicions of unlawful and dangerous petroleum operations, the Minister ordered both stations closed and purported to suspend the appellants’ licences. The parties agreed that the disputed facts would not be resolved on judicial review and that the legal issues would be considered on the assumption that the Minister had grounds for his suspicions.

Gobin J held that the appellants had de facto licences, that the Minister had purported to revoke them, and that he lacked power to suspend or revoke them. She also found procedural unfairness. The Court of Appeal, by majority, held that the appellants had de facto licences and that the Minister had an implied power to suspend them, but found no procedural unfairness. The Board considered whether that power existed and what relief followed.

1. Appeals allowed. The appellants held de facto retail petroleum marketing licences because the Minister accepted their licence fees and thereby created a legitimate expectation that they would be treated as licensees on the previous terms for each paid period. The purported suspensions were unlawful and ultra vires.
2. The Petroleum Act’s general administrative power was subject to its specific provisions. Sections 17 to 22 formed a lex specialis governing default, sanctions, revocation and disputes. That scheme was incompatible with implying an additional general ministerial power to suspend a licence. Section 17 required the licence to set out appropriate sanctions, and a licensee needed clear notice of the circumstances in which the licence could be suspended or terminated. Section 17(6) conferred a specific temporary-discontinuance power on the President in defined circumstances involving serious and repeated violations. That provision was inconsistent with an additional ministerial power exercisable on mere suspicion of a single breach.
3. Section 45(3)(b) of the Interpretation Act did not alter the result. Sections 2(1) and 3 preserved the general rule only subject to a contrary intention in the specific written law, and the Petroleum Act’s special regime demonstrated that contrary intention. A power to revoke was not a lesser form of suspension: suspension operated on a different basis and would deprive the licensee of the statutory arbitration and reparation protections attached to revocation. Section 33(1) concerned permissions, consents and authorities, not the licence itself.
4. It was unnecessary to decide procedural fairness because the Minister had no power to suspend. Each appellant was entitled to an order quashing the suspension and a declaration of unlawfulness. Under section 4(a) of the Constitution, the unlawful suspension at least seriously infringed the right to enjoyment of property and justified damages. Damages for loss of profit were limited to the current licence periods and later periods for which fees had been accepted. The cases were remitted to the local courts to assess quantum, including the relevant period for Prakash.

• Privy Council: The Minister of Energy and Energy Affairs v Maharaj and another [2020] UKPC 13 allowed both appeals, declared the purported suspensions unlawful, and remitted the cases to the local courts to determine damages.
• Court of Appeal of the Republic of Trinidad and Tobago: allowed the Minister’s appeal from Gobin J by a majority. The court held that the appellants had de facto licences, that section 45(3) of the Interpretation Act implied a ministerial power to suspend them, and that the Minister had acted without procedural unfairness. Jamadar JA dissented on procedural fairness.
• High Court: Gobin J upheld the appellants’ claims, holding that they had de facto licences, that the Minister lacked power to suspend or revoke them, and, alternatively, that the shutdown decisions were procedurally unfair.