AT SUVA
CIVIL JURISDICTION
CIVIL ACTION TION NO. 0025 OF 1999
BETWEEN:
1. UTTAM CHANDRA
2. FIJI PENSIONERS ASSOCIATION
Applicants
AND:
1. THE PERMANENT SECRETARY FOR FINANCE
2. ATTORNEY GENERAL OF FIJI
Respondents
Sir VijaSingh for thor the Applicants
Mr. S. Kumar for the Respondents
REASONS FOR DECISION
On 7th April after hearing extensive arguments from counsels representing the parties, this Court refused the applicants' application for interim
relief for reasons which I now deliver.
The application for interim relief was not made the subject matter of a separate interlocutory application as is usual, instead, it
was the first Order sought in the applicants' Originating Motion issued out of the High Court on 21st January 1999. As amended it reads:
'An Order or Direction to the first Respondent not to pay to the Commissioner of Inland Revenue until further order, any money by
way of tax of any kind under the provisions of the Income Tax Act from the pension benefits payable by the Government to the first Applicant or any other non-resident pensioner.'
There can be no doubting that in terms and effect what the applicants' seek is an injunction against a named public official restraining
him from performing certain functions relative to tax deductions made from government pensions payable to non-residents.
These 'functions', counsel for the applicants' forcefully submits, are performed by the official 'as the proxy for the employer (the Government) with the responsibility of paying ... pension benefits to retired public officers'.
In this regard I would merely note that Sections 3 and 5 of the Income Tax Act (Cap. 201) vests the administration of the Act and the responsibility for the collection of taxes levied under the Act in the Commissioner of Inland Revenue. What's more Section 82 of the Act provides that all amounts deducted by any person shall be deemed to be held in trust by such person for the State and 'shall be paid in full to the Commissioner'.
What's more counsel writes:
'While the prospective effect of a decision (in favour of the applicants) is clear, the same assumption cannot be made with certainty as to the extent of its retroactivity. And that uncertainty is at the
crux of this application.''
I confess in this latter regard that the 'uncertainty' of the applicants is more imagined than real in so far as the power of the Court to render a decision with effect from the original
date of filing the present application is not in any way doubted and indeed as much is conceded by Counsel for the respondents.
Furthermore it should be noted that the applicants seek inter alia, in the fourth order set out in the Originating Motion, '... all money deducted from (the applicants) pension benefits by way of tax, together with accrued interest'.
In this ruling I do not propose to canvass the various relevant principles enunciated by the Courts dealing with an application for
an interim injunction. Suffice it to say that I have borne them in mind and am satisfied that the application raises serious legal
and constitutional issues worthy of fuller consideration by the Court.
In similar vein I am satisfied that, in the event the applicants are ultimately successful, 'damages' will be a more than adequate remedy given the amplitude of the Court's powers to grant 'redress' under Section 41(3) of the 1997 Constitution.
As for the 'balance of convenience', Counsel for the applicants' writes:
'Governments' financial position will remain unaffected. The only consequence would be that inter-departmental transfer of funds (taxes deducted) ... will not occur ... but not granting (interim relief) has the potential for great misfortune to the applicants.''
Counsel for the respondents for his part, forcefully submits that granting the applicants the interim relief sought, given the presumption
of the validity of legislation, in this instance, the Income Tax Act (Cap. 201), would 'amount to ordering the first respondent to breach the law which requires him to remit all tax deducted to the Commissioner of Inland
Revenue'. No particular 'law' was identified or cited to the Court but, having considered the matter, I am satisfied that it is sound.
In this latter regard, Section 80 of the Income Tax Act (Cap. 201) expressly provides:
'Notwithstanding any other provisions of this Act, on the making of any payment of or on account of any emoluments (which by definition includes 'pension accruing in, derived from or received in Fiji and which are assessable to tax'), tax shall, subject to and in accordance with the regulations made ..., be deducted by the person making the payment ...''
and Regulation 6(1) of the Income Tax (Employment) Regulations requires:
'Every employer,
(which includes the State) when making payment of emoluments to an employee (which includes pensioners) ... (to) deduct therefrom such amount of tax as shall be prescribed in the tax tables.''
