Jover v Comptroller of Customs [2008] FJHC 215; HBC50.2008 (10 September 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC 50 OF 2008

BETWEEN:

OLIVER JOVER
Plaintiff

AND:

THE COMPTROLLER OF CUSTOMS
Defendant

In Person for Plaintiff
Ms T. Rayawa for Defendant

JUDGMENT

[1] The subject matter of this action is a motor vessel named "Luciole One" allegedly owned by the plaintiff. The vessel was brought to Fiji from either New Caledonia or Vanuatu. The plaintiff says he brought the vessel to Fiji in August 2007 to rebuild the interior of the vessel as charges in Fiji are lower. The plaintiff is from New Caledonia. He was forced to leave Fiji for family reason on 28th August 2007. He says he left the vessel with a crew member Satendra Sinha.

[2] The defendant in its affidavit sworn by Lorima Vosa states that the vessel arrived in Fiji on 14th July 2007 at 1.00 a.m. and not in August 2007. It says that the vessel was seized by the Border Control as it had entered Fiji waters illegally. The owner of the vessel that is the plaintiff was fined $5,000.00 which he paid.

[3] The plaintiff was then granted a dispensation under Code 228 whereby the vessel could remain in Fiji for a period of twelve months and be used for pleasure purposes by the owner.

[4] The owner went back to New Caledonia. The defendant states that he was deported from Fiji and a letter from the Immigration Department bears to this fact. However, in his absence Satendra Sinha used the vessel to ferry school children from Saweni Beach, Lautoka to Mana Island. There were 71 students and each paid $30.00 return fare. The affidavit does not disclose who kept the money collected from the students.

[5] The defendant submits that the boat was used for commercial purposes and therefore it was a breach of Section 17 of the Customs Tariff Act 1986. Section 17 provides that if goods are imported into Fiji free of duty, then if these goods are sold within five years or are used for some other purpose then that for which they are permitted, the customs duty kicks in.

[6] The plaintiff appeared in Chambers and told me through an interpreter that it was Satendra Sinha who had used his vessel. He was upset at Sinha’s actions. He also told me that the boat got damaged during a storm while it was in the custody of the defendant. The damages to the boat are not an issue for the present proceedings.

[7] Statutes which impose tax on a citizen are strictly construed. A subject is not to be taxed unless the language of the statute is clear. Rowlett J. in Cape Brandy Syndicate v. IRC (1921) 1 KB 64 at 71 stated that "in a taxing statute one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax ..... Nothing is to be read in; nothing is to be implied. One can fairly look at the language used."

[8] The plaintiff was deported. His vessel was left behind. Someone other than the plaintiff used the vessel to ferry children. That is the only incident, an isolated act, on basis of which the plaintiff is being penalized. The plaintiff did not use the vessel himself. There is nothing to say that while in Fiji, the plaintiff himself used the vessel contrary to the condition imposed. In a letter to Lorima Vosa (annexure 4 to the affidavit in support of the application) the plaintiff stated that he did not give Sinha any authorization for sailing with his boat. Therefore, if some rogue without authority used the plaintiff’s boat to make a gain for himself, why should the plaintiff be to blame? The use of the boat contrary to Code 228 must be done by the owner or someone who acts on clear authority.

[9] In one of the forms – advance information form – Satendra Sinha was shown as one of the crew of the vessel. Only one other member of the crew was named one Edward Ventrolin. The acceptance of Code 228 was also signed by Satendra Sinha. He declared himself to be the Master of the yacht Luciole One. The problem for the plaintiff is that he may have unwittingly employed a rogue or an unreliable person to look after his affairs. That however is not the concern of the defendant. The conditions of exemption had been brought home to Satendra Sinha. It was up to him to comply. Failure to comply has certain consequences including forfeiture of the vessel.

[10] Accordingly I refuse the plaintiff’s application for unconditional release of the vessel. The plaintiff can have his boat released to him upon paying the assessed duty. I declare the vessel Luciole One to be forfeited to the State.

[11] It is to be sold by the Comptroller. If there are prescribed procedures then they must be followed in conducting the sale. If there are no prescribed procedures, then it is to be sold after being advertised twice in a daily newspaper circulating in Fiji with the plaintiff having liberty to tender.

[12] I refuse to make any order that the plaintiff pay costs of detention of the Vessel at the Denarau Mariner. I was not told what the costs were. There is nothing to suggest that such costs are reasonable. The plaintiff also complained of damage to the vessel which may become subject of separate action.

[13] Final orders:

(1) The plaintiff’s application is dismissed.

(2) The Vessel Luciole One is forfeited to the State and to be sold on the prescribed mariner.

(3) If there is no prescribed mariner for sale, then it is to be sold after being advertised twice in a daily newspaper.

(4) The plaintiff is to pay costs summarily fixed in the sum of $400.00.

[Jiten Singh]
JUDGE

At Suva
10th September 2008