Early 1942.

The State of Fiji is at war with Japan. The Fiji legislature passes a law entitled Trading With The Enemy Ordinance (the 'Ordinance').

Section 3 of the Ordinance provides:

"No person shall trade or have any other contractual dealing with a Japanese person. Penalty $1,000 or 12 months imprisonment"

Section 2 of the Ordinance, the definition section, provides:

" 'Japanese person' includes any citizen of Japan, any person resident in Japan or any person having a Japanese domicile."

Tokyo Fish Co Ltd ('Tokco') is a Japanese company incorporated under the Japan Companies Act. Tokco is resident in Japan and has a Japanese domicile. Tokco's company secretary is Mr Shim Aso. Mr Aso is a Japanese citizen and resident in Japan.

Canning Company (Fiji) Limited ('Canco') is a Fiji company incorporated under the Companies Ordinance, a predecessor to the current Fiji Companies Act. Canco owns and operates a small tuna canning factory in Fiji in the town of Ovalau.

Canco has 2 shareholders. Canco's share register lists 'Tokco 99,999 shares: Mr Shim Aso 1 share.' Mr Aso holds his one share on trust for Tokco.

Canco's constitution provides that the company shall have 2 directors and that directors are to be appointed by the company's members. In 1939 Mr Shim Aso and Mr Aziz Ali were appointed as directors for a 5 year term. Mr Ali is a Fiji citizens with many years experience in the fishing industry. Mr Ali is the company's managing director. Since the beginning of the Pacific War in late 1941 Mr Aso has not attended any directors meeting of Canco.

Anjit Patel is a sole trader conducting a food distribution business. Prior to the war he was a regular customer of Canco purchasing cans of tuna in bulk which he then resold to small shops around Fiji. Patel continues this trade in 1942.

May 1942

Patel is charged with breaching s.3 of the Ordinance in that he has continued to purchase canned tuna from Canco. Patel pleads not guilty. He admits he still uses Canco as a supplier but argues the Ordinance does not apply to Canco which is a Fiji company.

i) Suppose you are the magistrate hearing the prosecution of Patel. How would you decide the case? Provide a full explanation in support of your decision.