Rahaman Goolmohamed Re
| Jurisdiction | Guyana |
| Judge | Nareshwar Harnanan |
| Judgment Date | 11 May 2017 |
| Neutral Citation | GY 2017 HC 2 |
| Docket Number | 2017-HC-DEM-CIV-FDA-213 |
| Court | High Court (Guyana) |
| Date | 11 May 2017 |
IN THE HIGH COURT OF THE SUPREME COURT OF JUDICATURE
PROCEEDING FOR JUDICIAL REVIEW
Hon. Mr. Justice Nareshwar Harnanan
2017-HC-DEM-CIV-FDA-213
Mr. Stephan Knights — Applicant
Ms. Judy Stuart — Respondent
Administrative law - Refusal of entry of imported food — Reasons for refusal of entry — Whether the order nisi of certiorari should be made absolute — Whether the label was false, misleading or deceptive — Whether the product complies with the Food and Drug Act — Food and Drug Act section 6 and regulation 18(2)(b) — Commonwealth Caribbean Administrative Law, Routledge, 2013 page 121 — Herman Jennings and Company v. Slatcher [1942] 2 K.B. 115 — Amos v. Britvic [1984] 149 JP 13.
On the 28 th March, 2017, after hearing a Fixed Date Application for judicial review, Hon. Justice Brassington Reynolds granted an order or rule nisi of certiorari quashing the decision of Mr. Marlon Cole, the Director of the Government Analyst Food and Drug Department (hereafter GAFDD/respondent), to refuse entry of 2000 cartons of Buiwick Tuna belonging to the applicant, unless the respondent shows cause why the order nisi of certiorari should not be made absolute.
The applicant contends that as a businessman in Guyana, and importer of food products for over 20 years, he decided to source and import Buiwick tuna manufactured by Tropical Food Manufacturing (Ningbo) Co. Ltd. (hereafter TFMC) located in China, after he would have thoroughly researched the company on the internet.
In his affidavit in support he said that he had visited supermarkets in Florida, USA in search of a competitive brand of tuna to sell, and came across a wide variety of options.
He deposed that he contacted a ‘well-known’ supplier, Central International Co. located in Canton, Massachusetts, USA to supply him with 2000 cartons of Buiwick tuna from TFMC, with the understanding that the said tuna will be shipped from China to Guyana.
The applicant contends he paid USD$13,000.00 for the product, which sailed from Ningbo China on the 12 th January, 2017. He said all legal requirements were satisfied prior to dispatch, including the acquisition of a health certificate and certificate of origin from the Chinese authorities. All the documentation was taken for processing at the Guyana Revenue Authority, and on the 1 st March, 2017 he paid GYD$1,260,000.00 in customs duty for the Buiwick tuna after which all the documents were submitted to GAFDD for processing.
He further deposed that two weeks later when he returned to collect his documents, he noticed two stamps from the respondent, one cancelled- release stamp, and one refusing-release of the shipment into Guyana. Both were dated 20 th March, 2017.
He further contends that no reasons for the refusal were given by the respondent, only a written press advisory was issued to the effect that entry of the tuna labelled ‘buiwick’ instead of ‘brunswick’ was refused and that the exact address of the manufacturer in the country of origin was not stated — in contravention of section 6 of the Food and Drugs Act, Cap. 34:03 and Regulation 18(2)(a)(iii), made under the aforesaid Act. The latter regulation deals with the correct declaration of the net contents (weight, volume or number), whilst the former deals with the prohibition against various forms of misleading representation regarding foods. This court notes as a matter of record, Regulation 18(2)(b)(ii) (though not specifically cited by the respondent) deals with the address of the manufacturer and its country of origin.
The applicant therefore contends that the respondent misdirected himself on the application of the aforesaid regulations, as the buiwick tuna is one of a good standard and complies with regulation 18(2)(a)(iii) regarding the net contents in terms of weight — that the label is not false, misleading and deceptive. The applicant further contends that he legitimately expected to sell the commodity in Guyana as it is fit and proper, and the decision by the respondent to refuse entry was arbitrary, capricious, ultra vires and of no legal effect.
The respondent admits that entry of the tuna was refused, and that the applicant was so notified of the reasons for refusal by letter dated the 20 th March, 2017, incidentally, the same day of the refusal stamp and media release referred to by the applicant. That letter was written by the respondent to the Deputy Head of the Customs, Trade and Excise Department of the Guyana Revenue Authority, to which the applicant appears to have been carbon copied.
In that letter, which was attached and made part of the record before this court, it is clear that the only reason why the tuna was refused entry, was because it was labelled ‘buiwick’ instead of ‘brunswick’ — which was found to be ‘ false, misleading and deceptive according to the Laws of Guyana Food and Drugs Act Chapter 34:03 part(ii) section (6).’
The respondent contends that based on an inspection carried out on the 9th March, 2017, the GAFDD observed that the ‘brand name’ ‘buiwick’ is ‘ misleading, false and deceptive’ according to section 6 and regulation 18(1), and additionally that the address of manufacturer was inadequate and the font size of the report on the tuna was non-compliant with the Codex standard. That report, which was also attached and made part of the record of the court, revealed that whilst the samples were taken on the 9th March, 2017, the preparation of the report was done by the GAFDD Inspectors Keiler and Joseph on the 20th March, 2017, even though it was dated the 16th March, 2017.
The respondent further deposed that based on that report prepared on the 20 th March, 2017, the above-referred letter to the Deputy Head of the Customs was written on the same day advising him of the refusal.
The respondent further made reference to follow up action taken by him in writing to the Director General of the Entry and Exit Inspection and Quarantine of the Peoples' Republic of China on the 27 th March, 2017 informing them of the refusal of entry. Further, by way of full disclosure, the respondent admits that he was written to on the 10 th March, 2017 by a Mr. Ron Shindler, President of Connor Bros. Clover Leaf Seafoods Company, who advised him that the said company was planning to take legal action regarding the allegation of an infringement of its trade-dress in the ‘buiwick’ tuna. That letter was also attached and made part of the record of the court, which, it is observed arrived 10 days before the inspection report of the GAFDD, and action by the respondent in refusing entry to the ‘buiwick’ tuna.
The letter specifically requested assistance to reject the ‘buiwick’ tuna which they allege infringes their products they have registered in Guyana. Their letterhead prominently displays the ‘Brunswick’ label.
The respondent therefore seeks a discharge of the order or rule nisi of certiorari, having regard to the record of action taken by them in the refusal of entry of the tuna into Guyana.
Section 6(1) and (2) of the Food and Drugs Act, Cap. 34:03 of the Laws of Guyana states:
Any person who labels, packages, treats, processes, sells or advertises any food in a manner that is false, misleading or deceptive or is likely to create an erroneous impression regarding its character, value, quantity, composition, merit or safety is guilty of an offence.
(2) An article of food that is not labelled or packaged as required by the regulations, or is labelled or packaged contrary to the regulations shall be deemed to be labelled or packaged contrary to subsection (1). (emphasis supplied)
The regulations made under the Food and Drugs Act at regulations 18(1) and (2)(a)(iii) and (b)(i) and (ii) state respectively:
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(1) No person shall sell a food unless a label is applied to the food in compliance with these Regulations.
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(2) Except as otherwise provided by this Part, the label applied to a food shall carry –
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(a) on the main panel…
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(iii) a correct declaration of the net contents in terms of weight, volume or number in accordance with the usual practice in describing the food;
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(b) on any panel
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(i) in the case of a food which consists of more than one ingredient,...
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