Foods Pacific Ltd v Comptroller of Customs [1993] FJHC 14; Hbc0066d.92s (17 February 1993)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 66 OF 1992

Between:

FOODS PACIFIC LIMITED
Plaintiff

- and -

1. COMPTROLLER OF CUSTOMS
2. ATTORNEY-GENERAL OF FIJI
Defendants

Mr. H. Lateef for the Plaintiff
Mr. P. Cowey for the Defendants

RULING

On the 4th of March 1992 the plaintiff issued an 'Originating Summons' seeking various declarations and an injunction against the Comptroller of Customs. In support of its summons the plaintiff has filed an affidavit deposed by its accountant containing 47 paragraphs and a large number of annexures.

The brief background to this action may be stated as follows:

In early 1981 the plaintiff company sought and obtained from the Ministry of Commerce and Industry various duty and tax concessions and other assistance in order to enable it to set up a Meat and Vegetable Cannery. During the next 9 years of its operations the concessions were extended and amended from time to time to accommodate the plaintiff's growing requests and in the light of prevailing government policy.

Then some time in April 1990 allegedly without any amending legislation or prior warning or notification to the plaintiff, officers of the Customs Department began levying duty on the plaintiff's previously duty-free imports of 'cans and ends' and additionally, in January 1991 for its imports of other 'raw materials' in the form of uncooked boneless beef and mutton.

The plaintiff claims that the duty so levied was in breach of its continuing 'concessions agreement' and it seeks various declarations and a refund of the duty paid. The Customs Department on the other hand in levying the duty is clearly of the view that the 'agreement' (if any) no longer subsisted.

It is noteworthy that by letter dated 21st February 1991 the plaintiff unsuccessfully and somewhat inconsistently sought a waiver of the import duties being imposed by the Customs Department "on importation of principal raw materials comprising of meat and cans ...". The decision declining the plaintiff's request however is contained in a letter dated the 22nd of March 1991 (which is some 2 weeks after the present proceedings were instituted!) and was clearly anticipated by the plaintiff.

The defendants for their part did not file an affidavit in reply but instead have sought to have the action struck out as an abuse of the process of the Court on the following grounds:

"(a) there is a specific remedy given by the Customs Act for the enforcement of the rights claimed by the Plaintiff; and alternatively

(b) the correct procedure is by way of judicial review."

In particular learned counsel for the defendants firstly submitted that Section 94 of the Customs Act 1986 provides the appropriate procedure and remedy for the resolution of the plaintiff's claim.

Section 94 provides:

"(1) If any dispute arises as to the amount or rate of duty payable in respect of any goods, or as to the liability of any goods to duty under any customs law, the owner of the goods may pay under protest the sum demanded by the Comptroller as the duty payable in respect of the goods, and thereupon the sum so paid shall, as against the owner of the goods, be deemed to be the proper duty payable in respect of the goods unless the contrary is determined in an action brought in pursuance of this Section."

From the foregoing, it will be seen at once that the section contemplates a fairly wide category of disputes between the owner of imported goods and the Comptroller of Customs relating not only to quantitative disputes i.e. "the amount or rate of duty payable" but also qualitative i.e. the liability of any goods to duty under any customs law".

Subsection (2) then provides the following alternative avenues for redress against the decision of the Comptroller -

"(2) The owner may -

(a) if the dispute relates to the decision of the Comptroller upon any of the matters specified in the schedule to this Act, within 3 months after the date of payment, enter an appeal to the Court of Review established under the provisions of Section 174;

(b) in any other case, within 3 months after the date of payment, bring an action against the Comptroller in any Court of competent jurisdiction for the recovery of the whole or any part of the sum paid."

(my underlining)

It may be noted here that the matters specified 'in the Schedule to the Act' are two-fold, namely:

"Decisions of the Comptroller on -

(i) the interpretation of the customs tariff

(ii) the classification of goods under the customs tariff."

which further exemplifies the breadth of Section 92.

Furthermore a perusal of the provisions relating to the 'Court of Review' reveals that there is a right of appeal to the Supreme Court (now High Court) against the decision of the 'Court of Review'.

In either event i.e. an appeal to the 'Court of Review' against the Comptroller's decision or Court action for the recovery of duty paid, proceedings must be brought "within 3 months after the date of payment".

It should be noted that the plaintiff has not specifically mentioned the provisions of Section 94 nor for that matter has its applicability been clearly excluded but in any event there can be little doubt that if the plaintiff's action does fall within the terms of Section 94 (as learned counsel for the defendant urges) then there has been a flagrant breach of the statutory time limit imposed.

Learned counsel for the plaintiff referred however to the 'limitation' imposed by Subsection (3) of Section 94 which reads:

"(3) No action shall lie for the recovery of any sum paid under the provisions of Subsection (1) unless, before payment is made, the words 'paid under protest' are written on every copy of the entry of the goods presented to the Customs and signed by the owner of the goods or his agent."

In particular counsel referred to the plaintiff's affidavit wherein is deposed that although duty was paid 'under protest' numerous of its entries were not so-marked because of alleged threats from Customs officials dealing with the plaintiff's entries.

In these circumstances learned counsel submits that relief under Section 94 would strictly not be available to the plaintiff and resort must be had to some other 'form of action' in order to obtain redress of the plaintiff's grievance.

In this latter regard counsel for the plaintiff submitted that an action for declaratory relief was a speedy and appropriate 'form of action' available to the plaintiff especially as there was no substantial dispute as to the facts, and the principal issue for the Court was a legal one. What it is however is not entirely clear and remains so even after counsel's submissions.

Certainly the Court's attention was not drawn to any relevant statutory provision nor for that matter has any particular 'concessions agreement' been put forward for interpretation.

Perhaps this may be largely due to a lack of compliance with the requirements of Order 7 r.3 of the High Court Rules which provides

"3-(1) Every originating summons must include a statement of the questions on which the plaintiff seeks the determination ... of the High Court or, as the case may be, a concise statement of the relief or remedy claimed in the proceedings ... with sufficient particulars to identify the cause or causes of action in respect of which the plaintiff claims that relief or remedy."

Be that as it may the preliminary objection of learned counsel for the defendants is one as to "form" and must be carefully examined before any pre-emptory relief can be granted. In this regard I note that the avenues for redress provided by Section 94(2) are at the discretion of the owner of imported goods to invoke as he sees fit. In my view the use of the word "may" in the context of the subsection presents of no other possible interpretation.

The Section is also dependant upon the payment of the duty levied by the Comptroller (albeit 'under protest'). As such it does not provide any redress for an owner of imported goods who also objects to the Comptroller's decision but refuses to pay the duty levied. Is such an importer to be left without any redress ? I cannot accept that that could have been the intention of the legislature nor am I persuaded by the suggestion that the plaintiff merely by paying the duty had invoked Section 94.

Indeed the fact that the plaintiff instituted these proceedings well outside the '3 months' limitation period and is aware that a large number of its 'customs entries' were not appropriately marked in terms of the statutory requirement under Section 94(3) tends to suggest the contrary.

I accept at once that Section 94 does provide a convenient procedure whereby an importer who has paid duty 'under protest' can obtain speedy relief but much clearer words are needed to persuade me that no other manner of obtaining relief is available to him.

Similarly the mere fact that 'judicial review' may be a more appropriate procedure insofar as the plaintiff's complaint is against a decision of a public officer exercising statutory powers, namely, the Comptroller of Customs acting under the Customs Act, does not persuade me that no other 'form of action' may be taken for the determination of the plaintiff's rights.

Needless to say the award of 'declaratory relief' is a matter within the discretion of the Court to grant or refuse as it sees fit in all the circumstances of any particular case having regard to the interests involved and their justiciability.

Accordingly I rule that the defendants application to strike out these proceedings as being an abuse of the process of the Court must be and is hereby refused and by way of further direction I order that the defendants file and serve within 14 days of the date hereof an affidavit in reply with liberty to the plaintiff to file and serve an affidavit in reply within 7 days thereafter (if necessary).

The matter is adjourned before the Chief Registrar on Wednesday 10th March 1993 at 11.00 a.m. to fix a fresh date for hearing of the plaintiff's substantive summons.

(D.V. Fatiaki)
JUDGE

At Suva,
17th February, 1993.

HBC0066D.92S