RB Patel Group Ltd v Suva City Council [2011] FJHC 606; HBC180.2010 (28 September 2011)

IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CIVIL JURISDICTION
Civil Action No: HBC HBC 180 OF 2010

BETWEEN:

R. B. PATEL GROUP LIMITED
[1st Plaintiff]

AND:

SUVA CITY COUNCIL
[1st Defendant]

LAUTOKA CITY COUNCIL
[2nd Defendant]

NASINU TOWN COUNCIL
[3rd Defendant]

NAUSORI TOWN COUNCIL
[4th Defendant]

SIGATOKA TOWN COUNCIL
[5th Defendant]

Counsel: Mr. S. Valenitabua for the Plaintiff
Mr. Z. Sahukhan for the 1st Defendant
Mr. S. Tinivata for the 3rd Defendant
Mr. N. Lajendra for the 2nd, 4th and 5th Defendants

Date of Judgment: 28th September, 2011

JUDGMENT

1. The plaintiff commenced this action by way of originating summons seeking following reliefs:
   
   1. An order or a declaration that the Business License Fees payable by the plaintiff for its supermarket business to the defendants pursuant to the defendants' respective Business License Fees By-Laws shall be for 'Shop, Large supermarket with Liquor License' only and no other Business License Fees in respect of its supermarkets situated within the Defendant's respective boundaries.
      
   2. An order that the defendants by themselves, their respective servants and/or agents be permanently restrained from demanding payment of other business license fees from the plaintiff apart from business license for shop, large supermarket with liquor license, and not to interfere in any manner whatsoever in the plaintiff's day to day running of its supermarkets situated within the defendant's respective boundaries.
      
   3. An order that the defendants do pay costs on indemnity basis.
      
2. The plaintiff is a limited liability company that operates a chain of supermarkets in Fiji.
   
3. The defendants are city and town councils established under the provisions of the Local Government Act and are also the business licensing authorities under Section 3(1) (a) of the Business Licensing Act, Cap 204.
   
4. This action concerns a dispute pertaining to the payment of business license fees.
   
5. In support of the summons, an affidavit was filed by the Chief Operating Officer of the plaintiff company.
   

The relevant facts of his affidavit can be summarized as follows:

6. The plaintiff operates a chain of supermarkets in Fiji and some of them are situated within the municipalities of respective defendants'. The defendants issued business licences to the plaintiff's supermarkets located within their areas of authority.
   
7. The plaintiff has under protest paid business licence fees levied by each defendant for designated businesses as follows:
   

i. Suva City Council (1st defendant)

1. Shop, large supermarket with liquor licence
2. Agent, gas Cooking

100. Refreshment bar

4. Butcher.
   

ii. Lautoka City Council (2nd defendant)

1. Shop, Large supermarket with liquor licence
2. Agent Gas cooking

100. Butcher
     

iii. Nasinu Town Council-Center Point (3rd defendant)

1. Shop, Large Supermarket with Liquor License
2. Butcher

100. Refreshment Bar

4. Retail Shop
   

4. Nausori Town Council (4th defendant)
   
   1. Shop, Large supermarket with liquor licence
   2. Gas Agent
   100. Shop Wholesale & retail
   4. Frozen & Pre-packed Meat
   5. Shop Toys & Curios
      
5. Nausori Town Council-Southpoint (Nakasi)
   
   1. Shop Large supermarket with liquor licence
   2. Gas Agent
   100. Shop Wholesale and Retail
   4. Frozen & Pre-Packed meat
   5. Shop Toys & Curios
      
6. Sigatoka Town Council (5th defendant)
   
   1. Shop & Large Supermarket with Liquor Licence
   2. Agent Gas Cooking
   100. Butcher
        

8. A copy of the plaintiff's Business License, summary of respective fees paid to the defendants from 2007 to 2009 marked as 'A' is annexed to the affidavit.
   
9. The plaintiff alleges that the defendants charge the plaintiff license fees for various types of business activities, though carried out within the same premises.
   
10. It is further deposed that there is no express or implied intention that supermarkets pay multiple business licenses.
    
11. The plaintiff admits that it must pay for license fees to operate its supermarkets within the defendants' municipalities but denies that there is any requirement to pay multiple licence fees in respect of each and every type of products the plaintiff sells within its supermarkets.
    
12. In response to the plaintiff's affidavit, Jeremy Chang, the Acting Director of Finance at the Suva City Council has filed an affidavit.
    
13. In that affidavit, it is stated that one of the plaintiff's supermarkets is within the municipality of the 1st defendant, the plaintiff was not only in the business of shop, large supermarket with liquor license but was conducting several other Businesses namely Agent Gas (Cooking), Butcher and Refreshment Bar.
    
14. It is further deposed that the 1st defendant issued business licence fees for 2010 in respect of shop, large supermarket with liquor licence and if applicable for Agent Gas (Cooking).
    
15. Furthermore, it is stated that the business licences for refreshment Bar and Butcher [frozen foods] can only be issued once the Central Board of Health [Food Unit] has given its approval.
    
16. The 1st defendant contends that the intention of the 1995 By-Laws is to charge respective licence fees for designated business and, therefore, the plaintiff's action discloses no reasonable cause of action.
    
17. The 2nd defendant filed an affidavit through its Acting Chief Executive Officer.
    
18. In that affidavit, it is deposed that Section 17 of Business Licensing Act allows the 2nd defendant to differentiate between different types or classes of business and charge the prescribed fees in respect of that business activity.
    
19. Further, it is deposed that the 2nd defendant had exactly followed section 17 of the B usiness Licensing Act and the relevant By-Laws in levying the appropriate prescribed fees for the different categories or classes of business conducted by the plaintiff from its business premises which fall within the municipal limit of the 2nd defendant.
    
20. Roshan Singh, the Accountant of the 3rd defendant has also filed an affidavit in reply.
    
21. In the affidavit, it is admitted that the 3rd defendant had issued five [5] different business licence notices to the plaintiff.
    
22. It is further stated that the 3rddefendant is the licensing authority for the municipality of the Nasinu Jurisdiction and therefore the business licences that are issued by the defendant are statutory licences, the plaintiff has to apply for the respective business licenses which is stated in the schedule of the 2000 By-Laws and also have to pay respective fees accordingly.
    
23. In reply to the plaintiff's affidavit in support, the Chief Executive Officer of the 4th defendant also filed an affidavit.
    
24. In the affidavit it is stated that the 4th defendant had exactly followed section 17 of the Business Licensing Act and the relevant By-Laws in levying the appropriate prescribed fees for the different categories or classes of business conducted by the plaintiff from its business premises which falls within the municipal boundary of the 4th defendant.
    
25. The 5th defendant's, Acting Chief Executive Officer also filed an affidavit in response to the plaintiff's summons. In that affidavit also it is stated that the 5th defendant has correctly followed section 17 of the Business Licensing Act and the relevant By-Laws in levying the prescribed fees from the plaintiff.
    
26. It is further stated that the plaintiff has not paid the 5th defendant licence fees in respect of all the business activities that are being carried out from its premises within the 5th defendant's municipal boundary.
    

Relevant laws

27. The law governing the granting of business licences can be found in Business Licensing Act, Cap 204. In considering the issue before me, I refer to the relevant provisions of the said Act applicable to the instant case.
    
28. Section 3 of the Business Licensing Act reads:
    
    1. There shall be for the purposes of this Act the following licensing authorities:
       
       1. In respect of a municipality, the council thereof;
       2. In respect of all other areas in Fiji, the Chief Accountant.
          
    2. Notwithstanding the provisions of subsection (1), the Minister may by order, declare any area to be an additional licensing area and designate any person or authority to be the licensing authority for that area.
       
29. Section 4 of the Act reads:
    

The Minister may, by notification in the Gazette, designate any business as being one in respect of which a license is required by the provisions of this Act.

30. By virtue of section 3(1)(a) of the Act, it is apparent that the respective town councils are conferred power to issue business licenses in respect of the various business activities within its respective localities.
    
31. Section 4 empowers the Minister to categorize any business activity for which a licence is required.
    
32. The plaintiff's contention is that so long as it has a business licence to operate a particular type of business from a place of business, it does not have to obtain licences for other business activities if they are also carried out within the same premises.
    
33. The outcome of this case would largely depend on the true construction of the relevant sections of the Business Licensing Act and other By-Laws.
    

Literal construction

34. The most common rule of statute interpretation is the literal rule. According to this rule, the words in a statute must be given their plain, ordinary and literal meaning.
    
35. The literal approach to statutory interpretation was defined and explained by Higgins J. in Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd [1920] HCA 54; [1920] 28 C.L.R. 129 at 161,162 as follows:
    

'The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in statute as whole. The question is, what does the language mean; and when we find the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or impolitic or improbable.'

36. Further, L.J. Denning in Seaford Court Estates v. Asher [1949] 2 All ER 155 stated as hereunder:;
    

"A Judge must not alter the material of which the Act is woven but he can and should iron ou creaWhen a defect appt appears, a Judge cannot simply fold his hands and blame the draftsman. Han. He must set to work on the constructive task of finding the intention of the Parliament and then he must supplement the written words so as to give force and life to the intention of the Legislature."

37. The duty of the court and its limits in interpreting statutes was explicated in Magor And St. Mellons Rural District Council v. Newport Corporation [1952] A.C. 189,as follows:
    

In the construction of a statute the duty of the court is limited to interpreting the words used by the legislature and it has no power to fill any gaps disclosed. To do so would be to usurp the function of the legislature.

38. In Nokes V. Doncaster Amalgamated Collieries, Ltd [1940] A.C 1014, per Viscount Simon L.C at 1022,
    

'if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that parliament would legislate only for the purpose of bringing about an effective result.'

39. In interpreting a statute Court cannot go beyond the words used in the statute itself and when the meaning of the statute on the face of it is plain and obvious I do not think that it is necessary to apply the normal canons of statutory interpretations.
    
40. One of the leading statements of the literal rule was made by Tindal CJ in the Sussex Peerage Case (1844) 11 C1&Fin 85:
    

"The only rule for the construction of Acts of Parliament is, that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver."

41. Further, the one and only goal of statutory interpretation should be to find the intention of the legislature. In other words, the task confronting a court when construing a statue is to determine what was Parliament's intention when the statute was enacted.
    
42. In Nolan v. Clifford [1903-4] 1 C.L.R.429 at 453,O'Connor J. stated the rule in the construction of statutes as follows:
    

'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 alteration is made in the common law 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.'

43. In Swiss Bank v. Lloyds Bank [1980] 3 W.L.R.457 at 474 BuckleyL.J. stated the approach to be adopted by Court in constructing a statute as follows:
    

'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.'

44. In Black-Clawson International Ltd v. PapierwerkeWaldhof Aschaffenburg A.G [1975] UKHL 2; (1975) 1 A.E.R 810 at 814, Lord Reid stated:
    

'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.

45. Section 5 of the Business Licenses Act states:
    

No person shall engage in any business designated under the provisions of section 4 in Fiji without a license issued by a licensing authority in respect of each place in which such business is carried on or, in case of a hawker or other person carrying on business from or at no fixed address in Fiji, in respect of such businesses.

46. In ascertaining of the true meaning of the above section the words 'any business designated under the provisions of section 4' and 'each place in which such business is carried on' are of paramount importance.
    
47. When section 5 of the Business Licensing Act is scrutinized its literal meaning is plain and obvious, and does not evince or produce any ambiguity or inconsistency. It very clearly states that if a person engages in any business designated under the provisions of section 4, he must have a business licence. Further, it evinces that the licence so obtained is valid for a particular designated business to be carried on a particular place. It never suggests that several designated businesses can be carried on in the same premises under one licence.
    
48. I shall now turn to the section 2 of Suva (Business Licence Fees) By-Laws, 1995 which reads:
    

Every person who, within the boundaries of the City of Suva engages in any of the businesses set out in the Schedule, whether jointly or otherwise, shall take out a business licence and pay a business licence fee at the rate per year set out in such Schedule.

49. The plaintiff argues that since it runs a 'Large Supermarket with Liquor Licence' it can also run other designated businesses under the licence issued to the Large Supermarket.
    
50. It is to be noted that neither in the Act nor in By-Laws is there a definition of the word 'Large Supermarkets with Liquor licence'. So there is nothing in the Act to say that the Large Supermarkets with Liquor Licence must be of any particular type. It also does not state the types of businesses that can be carried on under the same licence in the supermarket.
    
51. Therefore, if it were to carry on any of the designated businesses in the supermarket, it must obtain separate licences for other businesses.
    
52. It is true that a large supermarket offer various items for sale. However, that does not mean that it is allowed to carry on different businesses under the licence issued for the Supermarket without having obtained licences for the other businesses.
    
53. The plaintiff runs a supermarket within the municipality limits of Suva. Under the Schedule it comes under 'Large Supermarkets with Liquor Licence.' In the supermarket the plaintiff carries on 3 more businesses namely Agent Gas (cooking), Refreshment Bar and Butcher, which according to the schedule are required to have separate business licences.
    
54. In addition to that the said businesses are required to get prior approval from various authorities before they are issued with business licences. In other words only after those respective authorities gave their approval can the licensing Authority issue a business licence for the respective businesses.
    
55. Hence, it is obvious that if the plaintiff is allowed to carry on different designated businesses in the supermarket without having business licences, the whole purpose of the Business Licensing Act would fail.
    
56. Section 64 of the Interpretation Act reads;
    

Where any written law confers a power to issue any licence, permit or authorization, then unless a contrary intention appears such licence, permit or authorization may be issued subject to such conditions, not inconsistent with that law, as the authority issuing it deems expedient.

57. It is the Business Licensing Act which empowers the respective municipalities and councils to make by-laws. Therefore, so long as the by- laws made by the respective municipalities and councils, are consistent with the main Act and do not contravene the provisions of the Act it has to be accepted as being made legally.
    
58. The fundamental purpose of the Business Licensing Act and By-laws made pursuant to the provisions of the Act as it appears to this court is to regularize and control the businesses and also to provide a system or framework for licensing of designated business.
    
59. Further, it must be emphasized that it is the duty of the respective municipalities and councils to ensure that the business activities carried out within their localities maintain the required safety and health standards, and in doing so they must have a control and supervision over the designated businesses.
    
60. Furthermore, in order to identify the relevant businesses and to supervise their functions it is incumbent on the local bodies to have a system which enable them to distinguish one business entity from another because the requirements and standards that are to be maintained by respective business entities may differ from each other.
    
61. Therefore, it is quite clear, that the words 'each place in which such business is carried on' are there to prevent any one to carry on a business in several places under one and the same license. For example if a licence is issued to a person to carry on a restaurant business in Raiwaqa, he cannot run a similar kind of restaurant in Suva on the strength of the same licence.
    
62. Therefore, having obtained a license to carry out a designated business in a particular place, one cannot carry on the same business in several places by virtue of the same licence.
    
63. Similarly, once a licence is obtained to carry out a designated business in a particular place, one cannot carry on different kind of designated businesses in the same place unless and until he obtained separate licences for the respective businesses.
    
64. If a person is allowed to carry on different types of businesses in the same premises on a licence issued to a particular business the whole purpose of the Act and By-Laws would frustrate.
    
65. Hence, there is no doubt that as to what the legislature meant. If the legislature intended the provision to apply to different places rather than businesses it would have stated so. Therefore, it is clear and unambiguous the words 'in any business designated under the provisions of section 4'
    
66. In my view, there is only one meaning that can be seen in Section 5 of the Business Licensing Act. That is whoever intends to carry on any of the businesses designated under the provisions of section 4 of the Business Licensing Act, a licence has to be obtained for each and every business irrespective of the place where the business is carried on.
    
67. Section 17 of the Business Licensing Act empowers the Minister to make regulations prescribing the fees to be charged under the provisions of the Act. Further, under section 17(2) any council or a municipality with the approval of the Minister may make By-Laws, prescribing fees to be charged under the Business Licensing Act.
    
68. Section 17(2) of the Act further allows the defendants to differentiate different types of businesses and levy the prescribed fees in respect of each and every business designated in the schedule.
    
69. Therefore, it is explicit that the By-Laws made by the respective municipalities and town councils are in accordance with the Business Licensing Act.
    
70. Furthermore, it does not appear to this court that sections 3, 4 and 5 of the Business Licensing Act produce any ambiguity in their respective meanings. Hence, it is plain and obvious that according to the Business Licensing Act and By-Laws each designated business has to be issued a separate licence. It is immaterial whether the businesses are carried on in the same premises or not. What is important and required is that each of the designated businesses should have been issued separate licenses.
    
71. Therefore, I do not think that these sections should be dealt with under the purposive approach, because purposive approach is applied only when an attempt to apply the literal approach produced an ambiguity or an inconsistency.
    
72. In any event, even if the purposive approach is applied to the interpretation of the relevant Acts in this regard,, I do not think that there will be any difference in the outcome because none of these by-laws goes against the wishes of the legislature nor do they contravene the purpose of the enactment of the very legislature.
    
73. Having regard to the above, I conclude that the plaintiff's action against the defendants is unfounded and baseless. Therefore, I dismiss the plaintiff's summon.
    
74. Costs are to be taxed, if not agreed.
    

Pradeep Hettiarachchi

JUDGE

28.9.11