U B Freight Ltd v Land Transport Authority [2011] FJHC 659; HBM014.2011 (18 October 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Misc. Action No HBM 014 of 2011

BETWEEN:

U.B. FREIGHT LIMITED
Applicant

AND:

LAND TRANSPORT AUTHORITY
1st Respondent

AND:

SPS COATINGS (FIJI) LIMITED
formerly known as Norwin Limited
2nd Respondent

Appearances:
Mr. S. Maharaj for the Applicant
Ms. Frances Kinivuwai for the 1st Respondent

JUDGMENT

1. The Applicant instituted this action only after the application of the Plaintiff (Applicant in this action) to add the 1st Respondent in this action namely the Land Transport Authority in an action before the Nadi Magistrate Court failed. The learned Magistrate dismissed the Plaintiffs said application on the basis that such an addition of a party after judgment is not desirable and that in any event his Honour (Magistrate) is functus officio. The Applicant (Plaintiff in that action) does not appeal from that order. The Applicant filed this action instead seeking that a particular condition subject to which the vehicle was registered to its owner be waived by the 1st Respondent Authority so that it can be registered in the name of the new buyer. The condition as informed by the 1st Respondent being that the BMW 3231 Silver coloured car (vehicle) bearing chassis number WBA 53207EP04326 (being a) "Self imported vehicle can only be registered under the consignee name and not to be transferred within 5 years".
   
2. The Applicant seized and sold the particular vehicle for a sum of $21,000/-, said to be pursuant to orders in Nadi Magistrates Court case no.120 of 2009, to satisfy its judgment before the Magistrates Court Nadi against the 2nd Respondent. A third party (said to be one Ramesh Chandra of Lautoka) is said to have bought the vehicle at the "sale" and now the Applicant seeks to have the vehicle registered in that person's name.
   
3. However the 1st Respondent Authority is said to be reluctant to register the vehicle in the name of the new buyer due to a condition subject to which it was to be registered in the name of the owner (consignee) on the record in the Land Transport Authority. Vehicles are at times permitted to be imported at a duty concession or without duty for the exclusive use of the importer and under such circumstances a condition is attached to the registration that no transfer can take place for a particular period of time, and generally such a condition is waived only when the duty concession is removed or the duty waived is fully paid to the state. Counsel may examine whether such a duty waiver has taken place under section 10 of the Customs Tariff Act (1986) or, even under section 11A therein in respect of a Company licensed under the Tax Free Zone Decree (1991) or under any other provision of the Law. The failure to comply with a condition imposed under those provisions may constitute an offence as well as set out therein. The said section 10 and 11A of the Customs Tariff Act reads as follows;
   

10. – (1) The Minister may, after receiving a recommendation to do so from the Comptroller, and subject to such conditions as the Minister may consider necessary, remit or refund the whole or any part of any duty paid or payable by a person in respect of goods imported to Fiji, if the Minister is satisfied that –

(a) ...................................,

(b)...................................; or,

(c)...................................

(2) A person who fails to comply with a condition imposed under subsection (1), is guilty of an offence and is liable to a fine not exceeding $ 1000.

11.A. The Minister may, subject to such conditions as he considers necessary, exempt from payment of duty the importation or purchase ex-bond of machinery, equipment and materials if he is satisfied that they are to be used by any company licensed under the Tax Free Zone Decree, 1991.

(2) A person who fails to comply with a condition imposed under subsection (1), is guilty of an offence and is liable to a fine not exceeding $ 1000.

The condition imposed on the transfer of the vehicle may well be under a different provision or regulation, and if so it is for the Applicant and the 1st Respondent to have informed Court of such provisions. However if the Court allows the application of the Applicant, as the 1st Respondent does not by neglect or convenience oppose the application, then this Court could well be authorizing an illegal act in addition to depriving the state of its revenue. It is the duty of Counsel to bring such provisions to the attention of Court as officers of the Court, and if they fail to do so they cannot expect the Court to grant discretionary relief or exercise its inherent jurisdiction as hastily as they desire. At times the Court may be compelled to conclude that such haste is willful with the object of evading. Unfortunately this is not the first occasion that this Court had to bring to the notice of Senior Counsel several relevant local provisions of the law though being an expatriate judge.

4. The Applicant and especially the 1st Respondent has failed to address this aspect of whether such a duty is payable or not or whether the breach of the condition would amount to an offence. The 1st Respondent has sought to file written submissions but has failed to do so. If this court orders the registration of the vehicle overruling the said condition forbidding transfer of the vehicle for a period of 5 years, then the state would be deprived of its legitimate revenue due as import duty in addition to permitting a statutory offence. If no such duty is payable and all other conditions are satisfied to waive such a condition then the Applicant by obtaining a release of such condition from the 1st Respondent and the Minister or Revenue collecting authority could have satisfied this Court to that effect. However the Applicant has not done that and in spite of this Court calling for submissions the Applicant has not even addressed that aspect.
   
5. This Court cannot be used as cat's paw, to effectuate a transfer which the 1st Respondent is by law or regulation estopped from affecting or, to avoid payment of import duty.
   
6. The application of the Applicant is in any event hypothetical in that there is no determination of the 1st Respondent refusing the transfer as yet submitted before this Court. If the 1st Respondent affects the transfer it does so at its own discretion and risk and this Court declines to add authority to such a decision or act.
   
7. Furthermore the party in whose name the vehicle is sought to be registered in effect the party who has an interest in such registration too is not before Court. Either, the Comptroller, the Minister or the Fiji Islands Revenue and Customs Authority ought to have been made a party to this application.
   
8. As such the Applicant's application is dismissed. In view of the aforesaid provisions this Judgment is hereby directed to be served on the Minister of Finance, and the Fiji Islands Revenue and Customs Authority by the Deputy Registrar or the Officer in Charge of the Registry in the High Court at Lautoka immediately, so that such authorities may inform the Applicant of the necessary requirements and steps to be taken or prevent a statutory offence being committed.
   
9. In order to discourage applications of this nature the Applicant ought to be ordered to pay costs to be taxed on the indemnity basis to the 1st Respondent, however due to the 1st Respondents Counsel not filing its written submissions and in not bringing to the notice of Court the relevant provisions, leaves itself in an undeserving position to receive cost on the indemnity basis. As such I order costs to the 1st Respondent taxed on the standard basis against the Applicant. The 2nd Respondent did not participate in the proceedings and as such is not entitled to costs of these proceedings.
   

.............................................
Hon. Justice Yohan Fernando.
JUDGE.

High Court of Fiji
At Lautoka
18th October 2011.