Dutt v Attorney General of Fiji [2000] FJHC 153; HBC0470j.1998s (31 March 2000)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 470 OF 1998

IN THE MATTER
of an application for conditional Exemption from Stamp Duties by Manoj Dutt f/n Vijendra Dutt

AND:

IN THE MATTER
of the Stamp Duties (Amendment) Act 1982

BETWEEN:

MANOJ DUTT
f/n Vijendra Dutt
Plaintiff

AND:

THE ATTORNEY-GENERAL OF FIJI
Defendant

Mr. S. Parshotam for the Plaintiff
Mr. D. Singh for the Defendant

JUDGMENT

By originating summons filed 21 September 1998 the plaintiff seeks the following relief supported by an affidavit:

1. A Declaration that the Commissioner of Stamp Duties had acted incorrectly in refusing to grant exemption from stamp duties on a ‘Transfer’ and ‘Mortgage’ lodged for stamping by the Plaintiff at his Office.
   
2. A Declaration that the Plaintiff is entitled to conditional exemption from stamp duties on the said ‘Transfer’ and ‘Mortgage’ lodged by him with the Commissioner of Stamp Duties for stamping.
   

100. An Order that the Defendant do pay back to the Plaintiff the sum of $1,450.00 paid by him to the Commissioner of Stamp Duties as stamp duty on these instruments, together with interest.
     

4. An Order that the Defendant do pay the Plaintiff the costs of and incidental to this action.
   

No affidavit in opposition has been filed. Both counsel made written legal submissions as ordered by the Court.

The application is made under section 45 of the Stamp Duties Act Cap.205 (the ‘Act’). The issue in this case has relevance to the various sections of the Stamp Duties (Amendment) Act, 1982 (the ‘Amendment Act ’).

Background facts

The facts are set out in detail in the plaintiff’s affidavit in support.

Briefly, the plaintiff obtained a lease of land comprised in Native Lease No. 20906 (the ‘land’) for the sum of $58,000 from one Shakuntala Devi f/n Ram Phal) as Executor and Trustee and Mortgaged it to Bank of Hawaii to secure its initial advance of $58,000. The lease was issued for ‘commercial’ purposes.

The documents of transfer and mortgage had to be stamped first before they are accepted for registration. When the said documents were lodged for stamping they were accompanied by, inter alia, the form ‘Application for Conditional Exemption from Stamp Duties’.

The exemption was applied for under the Act, which application was refused by the Commissioner of Stamp Duties (the "CSD") and hence the stamp duty in the total sum of $1450 had to be paid and this was paid ‘under protest’.

The basis of rejection of the application by CSD is contained in a letter dated 14 May 1996 as follows (annexure "I" of Plaintiff’s affidavit):

The Stamp Duties (Amendment) Act 2 of 1982 was designed to grant conditional exemption from stamp duty on residential property which is not divided into more than 2 parts, and which property the applicant either intends to or occupies in whole or part.

Since your client is dealing with a commercial property the application for conditional exemption is declined.

The Issue

The issue for Court’s determination is whether the Plaintiff is entitled to the exemption as applied for by him.

Determination of the issue

I have before me for my consideration very helpful written submissions from both counsel and I have given due consideration to the arguments put forward by them.

The plaintiff applied for conditional exemption, firstly, in the case of the ‘transfer’ under sub-paragraph(c)(i) of paragraph 2 of Part III of the Schedule to the Stamp Duties Act; and secondly, in the case of the ‘Mortgage’ under sub-paragraph (b)(iv) of paragraph 2 of Part III of the said Schedule.

The relevant paragraphs read as follows:

Paragraph 2(b) (iv)

2. The conditions of entitlement to the conditional exemption from stamp duty under Paragraph I of this Part of this Schedule of the instruments described in sub-paragraph (1) of the paragraph shall be as follows, that is to say -

1. .....
   
2. in the case of a mortgage that the mortgage is exclusively for the purpose of enabling the applicant, alone or jointly with any other person -
   

(i) .....

(ii) .....

(iii) .....

(iv) to pay all or some of the premium or other consideration payable upon the grant to him of a lease of land granted for a term exceeding fifty years, or upon the transfer to him of such a lease where the unexpired portion of the term of the lease at the date of the execution of the transfer exceeds five years, where the land comprises not more than one dwelling and no other residential property, which dwelling the applicant is occupying or intends to occupy in whole or in part; or

(v) .....

Paragraph 2(c) (i)

(c) in the case of a transfer on sale relating to any land -

(i) that the land comprises not more than one dwelling and no other residential property, and that the applicant is occupying or intends to occupy such dwelling in whole or in part;

The conditional exemption from stamp duties applied for was on the following basis as stated in the plaintiff’s affidavit in support in paragraph 11:

1. For the Transfer: that the land, being a lease of land granted for a term exceeding 50 years and where the unexpired portion of the term of the lease at the date of the execution of the transfer exceeded 5 years, comprised not more than one dwelling and no other residential property, and that I intended to occupy such dwelling in whole.
   
2. For the Mortgage: that the mortgage was exclusively for the purpose of enabling me to meet all of the consideration payable upon the transfer to me of a lease of land granted for a period in excess of 50 years and where the unexpired portion of the term of the lease at the date of the execution of the transfer exceeded 5 years, where the land comprised not more than one dwelling and no other residential property which dwelling I intended to occupy in whole.
   

As stated above, the CSD rejected the application on the ground that the land was classified as ‘commercial’.

Plaintiff’s contention

It is the plaintiff’s contention that he is entitled to exemption on the basis that the Amendment Act does not discriminate against the zoning of the land. As against that the defendant contends that because the land is zoned commercial the plaintiff is not entitled to any exemption.

Mr. Parshotam for the plaintiff submits that "perhaps" the resolution of this issue lies in a proper interpretation of the Amendment Act.

Defendant’s contention

Mr. Daniel Singh for the defendant submits:

In interpreting the Stamp Duties Act regarding the conditions of an entitlement to conditional exemption of Stamp Duties, a construction that would promote the purpose or object underlying the provisions taking into account the spirit of the Act as a whole is to be preferred to a construction that would not promote that purpose or object (i.e. a purposive approach is to be taken).

To construe the provisions of the Act otherwise would defeat the whole purpose of the Act.

To allow the exemption of the Stamp Duties on a Commercial lease land on which a residential home is erected would frustrate the intention of the Act which was meant only to allow exemption of duties to residential types of properties on a residential zoned lease as opposed to a commercial one.

Mr. Singh says that ‘to allow the construction of a residential dwelling in a commercial lease and to be granted conditional exemption from Stamp Duties would frustrate the intention of the Act; and that the Act allows conditional exemption from stamp duties on freehold land, State land or Native Land for residential purposes only.’

He further submits ‘that the Plaintiff’s main contention that exemption is allowed under s.2(c)(i) of the Act is not correct because’ this is not ‘a transfer on sale of land but rather a transfer of a commercial lease to be used for commercial purposes as stipulated in the lease’.

Mr. Singh emphasizes that the ‘purposive approach’ to interpretation as stated by Donald Gifford in his book "Statutory Interpretation" from pages 49 to 57 should be adopted. He says that the intention of Parliament should be looked at.

In considering the issue before me, I refer to the relevant provisions of the Act applicable to the case on hand.

Section 3 of the Act sets out the instances in which duty shall be charged. It provides (as amended by Stamp Duties (Amendment) Act, 1982 - No. 2 of 1982):

"3. Subject to the exemptions and provisions as to conditional exemptions contained in the Schedule, there shall be raised, levied, collected and paid unto Her Majesty for the public uses of Fiji upon and in respect of the several instruments specified in the column of Part I of the Schedule headed "Nature of Instrument" the several duties specified in the column of that Part of the Schedule headed "Amount of Duty"."

In Part III of Schedule to the Act (as amended) is provision for ‘conditional exemption from payment of stamp duty’ in certain cases.

Part III, in so far as it is applicable to this case, Paragraph I (1) provides as follows:

1. - (1) The instruments in respect of which conditional exemption from stamp duty shall be granted under and in accordance with this paragraph are instruments of any of the following descriptions executed on or after the first day of January, nineteen hundred and eighty-two, that is to say-

1. a lease of land granted for a term exceeding fifty years;
   
2. a mortgage which is the only or principal or primary security for the payment or repayment of moneys, or which secures further or future advances of moneys due on account current;
   

100. a transfer on sale of an estate in fee simple in any land; and
     

4. a transfer on sale of a lease of land granted for a term exceeding fifty years, the unexpired portion of which, at the date of the execution of the transfer, exceeds five years.
   

It is to be noted that neither in the Act nor in the Amendment Act is there a definition of the word ‘land’. There is nothing in paragraph 1(1) distinguishing types of landholding. Reference is to ‘land’ in general. So there is nothing in the Act as amended to say that the land which is the subject of the instrument must be of any particular type e.g. commercial.

The plaintiff has correctly stated in his submission that there is no provision in the Act to distinguish amongst residential, commercial or any other type of leases to be exempted which may justify the Commissioner’s refusal to grant conditional exemption he had requested.

I agree with Mr. Parshotam that the said paragraph I is a mandatory provision as the word "shall" is used. There is no discretion vested in the Commissioner of Stamp Duties.

In this case the plaintiff meets the requirements of paragraph I and 2 of the Amendment Act for the purposes of granting of exemption. As Mr. Parshotam has stated the plaintiff has provided satisfactory evidence of the following which entitled him to exemption:

(i) That the land he is purchasing and/or mortgaging has a dwelling but no other residential property on it;

(ii) That the moneys being advanced to him under the mortgage is exclusively for the purpose of enabling him to purchase the land; and

(iii) That he intends to occupy such dwelling in part or whole.

The reason given by CSD for refusing the application is because the land is ‘commercial’. Nowhere in the Act, the Amendment Act, the Bill to Amend the Act and in Hansard is there any indication that if the land is ‘commercial’ exemption will be denied an applicant.

Interpretation of Statute

The question of interpretation of statutes has been raised and discussed by counsel in their written submissions.

On interpretation, Mr. Parshotam referred to a number of well-known cases on the subject, and I adopt them here.

The sole aim of statutory interpretation is to find the intention of the legislature. In 1897, Lord Watson said the following about the intention of the legislature in Solomon v. Solomon and Co Ltd (1897) AC 22 @ p.38:

"The ‘intention of the legislature’ is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant although there has been an omission to enact it. In court of law or equity, what the legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication."

In Black-Clawson International Ltd v. Papierwerke Waldhof Aschaffenburg A.G. [1975] UKHL 2; (1975) 1 All ER 810 @ p.814, Lord Reid says:

"We often say that we are looking for the intention of Parliament, but that is not quite correct. We are seeking the meaning of the words which parliament used. We are seeking not what Parliament meant, but the true meaning of what they said."

It is the ‘literal’ rule of interpretation that I would apply in this case. I find that the ‘purposive’ approach to interpretation as suggested by Mr. Singh does not arise here. In fact there is no doubt as to what the legislature meant. The word ‘land’ has been used in the relevant sections and if the legislature intended the provision to apply to different types of land it would have said so in so many words. It is not necessary for me to turn to Hansard for interpretation. However, having been given a copy of it by Mr. Singh I find nothing there which would assist me on the issue.

According to literal rule words must be given their ordinary, literal and grammatical meaning. This is the rule to be used in establishing the intention of the legislature. In Hess v The State (1895) 2 O.R.C. 112 it is stated:

"I have no doubt as to the intention of the legislature, but quod voluerunt non dixerunt ... [i.e. that which was really intended by the legislature was not said in the statute]. The legislative intent must appear from the words actually used and not from what the legislature intended to say, but did not say ..."

The Court cannot go beyond the words used in the statute itself. Those words are the expression of intention of Parliament and it is the Court’s function to interpret the will of Parliament. In interpreting the words under the literal rule approach the Court looks at the statute itself and then formulates the meaning intended by Parliament on that basis.

In the English case Regina v. Braham 8 B and C 99, Lord Tenderden says:

"Our decision may, in this particular case, operate to defeat the object of the Act; but it is better to abide by this consequence than to put upon it a construction not warranted by the words of the Act in order to give effect to what we may suppose to have been the intention of the Legislature ... we must give effect to the plain and obvious meaning of the clause, no matter what the result may be, and the Legislature meant what it said."

As stated above the meaning that must be given to the words in a statute is the ordinary, grammatical, literal and day-to-day meaning of the words. This is on the premise that the legislature uses ordinary language as stated in Swiss Bank Corporation v. Lloyds Bank Ltd & Others [1980] 3 WLR 457 thus:

"In my judgment, the language of paragraph 88(b) must be construed in accordance with the ordinary rules of construction. The language must be given its normal meaning if this is clearly expressed, unless this would lead to so surprising a result in the context and having regard to the subject matter as to lead convincingly to the conclusion that the author cannot have intended that meaning, and even so the language cannot be construed in any other sense unless it is capable of bearing it."

And in Nolan v. Clifford [1904] HCA 15; (1904) 1 CLR 429 it is stated:

"The first and most important rule in the construction of Statutes is to give effect to words according to their grammatical meaning. If that meaning is clear, then, whether an alteration is made in the common or the statute law or not, and, whether of a serious character or not, is of no moment - effect must be given to the words the legislature has used."

Conclusion

To sum up, for the reasons stated hereabove, the plaintiff having fulfilled the requirement pertaining to ‘conditional exemption from payment of stamp duty’ as required under Part III of the Schedule to the Act, he is entitled to exemption sought by him. The section in question talks of ‘land’ which in the absence of any clear distinction having been made means, in my view, ‘any land’ of any description or type. In these circumstances the ‘literal’ statutory interpretation is the only one possible for had Parliament intended that exemption ought not to apply to for example ‘commercial’ land it would have so enacted.

In parting, if the legislature intended other than the interpretation that I have given, then the only course open is to bring about "legislative" amendment to include the different kinds of leases etc and the duties levied/or otherwise exempted.

For the reasons I have given, I allow the reliefs (A), (B) and (C) set out hereabove but without interest as sought in the Summons with costs to be taxed if not agreed.

D. Pathik
Judge

At Suva
31 March 2000