Appeal Court reserves on NP, Energy Ministry complaints in gas station licence challenge

THREE Appeal Court judges have reserved their decision on two separate, but consolidated, appeals by the National Petroleum Marketing Company Ltd (NP) and the Ministry of Energy of a judge’s ruling involving the granting of a retail marketing licence for a gas station in Diego Martin.

On Friday, Justices of Appeal Alice Yorke-Soo Hon, Vasheist Kokaram and Malcolm Holdip said they would require time to rule on the submissions by NP, the ministry as well as the Petroleum Dealers Association (PDA), which brought the original judicial review challenge in December 2017.

No specific date was given for the delivery of the decision.

In May 2022, Justice Avason Quinlan-Williams ruled on the PDA’s claim which challenged a decision by former energy minister Franklin Khan to grant a retail marketing licence for a gas station in Diego Martin to NP.

Quinlan-Williams ruled that Khan's decision to grant the licence to NP in 2017 was illegal and therefore void.

The PDA claimed that Khan was not permitted to grant the licence as he knew that NP did not intend to operate the station itself, as it was to be leased to an operator. The judge held that delegation by the holder of a retail marketing licence was unlawful.

She said, “NP has no authority to assign, ascribe, build a business model, or make a strategic business decision that would permit them and third parties to evade the requirements, obligations and responsibilities of the Petroleum Act and specifically the requirement to retail with retail marketing licence."

NP and the ministry’s main complaint is that the judge’s declarations brought into question the legitimacy of the terms and conditions of contractual arrangements of gas stations operated by dealers.

Senior Counsel Douglas Mendes, for the ministry, and Russell Martineau, SC, for NP, said the declarations granted by the judge were not sought by the PDA in its original lawsuit.

Mendes took the judges through the licensing regime and provisions of the Petroleum Act while Martineau also referred them to NP’s five business models.

Mendes criticised the declarations and findings of the judge on the unlawfulness of the licence. He also urged the judges not to entertain submissions by the PDA’s lead attorney, Fyard Hosein, SC, on the declarations his client was now seeking. He said the PDA should have filed a cross-appeal if wanted different declarations.

“We are here to challenge the declarations of the judge.” Martineau agreed, saying new declarations would require bringing additional evidence.

Both attorneys said the challenge before the High Court was the minister’s conduct but the judge’s declarations went beyond that.

Hosein admitted that while Quinlan-Williams did not grant the PDA the declarations it sought, the Appeal Court could fashion its own to clarify the position.

He chastised the ministry for filing its appeal, since, he said, “the fact remains the minister did not follow the act.”

He also said the energy minister was a regulator and had to ensure the operation involving the retail of petroleum was in compliance with the law and not only grant a licence.

“As a regulator, he has to monitor and enforce.” Of NP, Hosein said the company wanted its cake and to eat it too since it should not be allowed to claim a petroleum subsidy.

“This case is about retail marketing licences. Our allegation is that NP transferred and assigned its functions to a third party and kept the retail licence.”

He also raised the issue of the franchise agreement and accused the minister and NP of trying to “defend the indefensible.”

In June, last year, NP had asked for a suspension of the judge’s orders which was granted. In its application, NP warned the immediate and practical effects of Quinlan-Williams's declarations are that operations at the Diego Martin station and 66 others, which operate under a similar business model, were rendered illegal.

It warned that the judge’s declarations would have severe consequences on its business operations and “will affect the travelling public” and compromise TT’s fuel security.

The temporary suspension was granted pending the hearing and determination of the substantive appeal.