Fiji Electricity Authority v Suva City Council [2000] FJLawRp 38; [2000] 1 FLR 114 (31 May 2000)

[2000] 1 FLR 114

IN THE HIGH COURT OF FIJI

FIJI ELECTRICITY AUTHORITY

v

SUVA CITY COUNCIL

High Court Civil Jurisdiction
Pathik, J
31 May, 2000
HBC 901/84

Powers of FEA under section 37 of Electricity Act - whether location of power poles a nuisance - powers of local authority under sections 107 & 109 of Local Government Act - doctrine of mistake discussed - principles of statutory interpretation discussed - powers of local authority under Town Planning Act - debt recovery - Local Government Act (Cap 125) s107, 109; Electricity Act (Cap 180) ss 3, 13(1), 37(1), (2), 43; Town Planning Act (Cap 39) ss 16, 27(1), 28

The Plaintiff herein sought to recover monies allegedly owed to it by the Defendant for services rendered. The Defendant had notified the Plaintiff to relocate power poles belonging to the Plaintiff, during a road-widening exercise. The Plaintiff did relocate the poles but then claimed from the Defendant costs for labour and materials used in the relocation of the power poles which sat on land belonging to the Defendant.

Held: (1) defendant's claim of nuisance was created by its own request to re-site electricity poles;

(2) the local authority has the power to remove structures which do not conform to a town planning scheme by virtue of Section 27 of the Town Planning Act;

(3) the defendant is entitled to be compensated for injurious affection by virtue of any action taken in accordance with Section 27 of the Town Planning Act.

(4) the intention of Electricity Act s13 is to confer an advantage on the plaintiff but here, there was no advantage, but inconvenience.

Defendant's counterclaim dismissed and judgment entered for plaintiff without interest.

Cases referred to in judgment
Ref Bell v Lever Brothers Ltd [1931] UKHL 2; (1931) All ER 1
Ref Solle v Butcher (1949) 2 All ER 1107
Ref Farrel v Alexander [1976] UKHL 5; (1977) AC 59

Suruj P. Sharma for the plaintiff
Viren Kapadia for the defendant

31 May, 2000.

JUDGMENT

Pathik, J

This is the Plaintiff's action by way of Writ of Summons dated 11^th September 1984 for the recovery of monies allegedly owed to it by the Defendant.

The Defendant is the Council of the Municipality of Suva established under the Local Government Act, Cap. 125 whilst the Plaintiff is a body corporate under Section 3 of the Electricity Act Cap. 180 (the 'Act')

Background

This action was initiated some sixteen years ago. It is marked with continuous adjournments sought from both sides. A whole range of interlocutory matters was undertaken in order to address the disputed issues in the pleadings.

Unfortunately, this was not resolved quickly and caused the action to be dragged on indefinitely. The problem became worse by change of solicitors for the Plaintiff from Messrs. S.B. Patel to Messrs. Esesimarm & Co. on 17^th September, the withdrawal of the same solicitors on 4^th August 1993 and the engagement of Patel Sharma & Associates on 10^th August 1993. Neither party seemed to be in a hurry to finalize the matter.

A notice requesting a pre-trial conference by virtue of O.34 r.2 of the High Court Rules 1988 was filed by the Defendant on 4^th July 1991. It was agreed by counsel that the issues would remain as stated in the pleadings. On 4^th May 1994, again the Defendant filed a summons for an Order that the Statement of Agreed Facts and Issues dated 28^th October 1993 be amended. Once both parties addressed the interlocutory matters, the case began to move forward. On 6^th April 1998, I ordered that agreed facts and issues be re-filed by 31^st May 1998 but it was not filed until 17 June 1998 by consent. Hearing in open court commenced on 18^th June 1998 and went on for two days. Thereafter, both counsels made written submissions by 3 August 1998.

The facts are simple and straightforward. On 29^th December 1992 the Defendant by its order No. 365000 requested the Plaintiff to resite electrical power poles at Nakelo Street, Vatuwaqa, Suva. When the Defendant carried out its drainage improvement the Plaintiff incurred the expense of the sum of $1,111.52 for labour and material costs. This process of re-siting electrical power poles was repeated in Knolly Street on 7^th May 1982, Anand Street on 16^th August 1983 and at Milverton Road, Selbourne Street and Lakeba Street on 5^th May 1984 with the cost of $9,104.17, $484.45 and $7,623.11 respectively. The Plaintiff is seeking to recover the sum of $18,322.25 being the cost of re-siting of electrical power poles (which are owned by the Plaintiff). Initially, the Defendant made payments to the Plaintiff in the form of a Local Purchase Order (hereafter 'LPO') from 30^th December 1982 to 5^th December 1985 on the understanding that they were liable bylaw. Thereafter, further payments by the Defendant were made under protest and without admission of liability. In addition to that, the Defendant stated in clear terms to the Plaintiff that future LPO's would be issued in respect of additional re-siting of poles and charges paid without prejudice to the rights of the Council, to seek legal redress for the recovery of the charges that may be available under the Electricity Act or under any other legislation.

The evidence

The Plaintiff called Mr. Ram Kumar, its Financial Controller to testify. His evidence verified facts as in the Statement of Claim. He said that if there was no repayment there will be no relocation/resiting. He said that the Defendant had continued to place orders and had also paid.

Mr. Deepak Solanki Civil Engineer employed by the Defendant testified to the following effect (as stated by counsel for the Plaintiff in his written submission):

• established that SCC originates plan for road development including widening and realignment and FEA has no input;

• SCC decides to proceed with road project following Council resolution and after making provision for all costs (including FEA resiting);

• all the poles had to be resited after the commencement of the project as the Poles had become obstruction on the carriage way;

• the resitement took place almost simultaneously or after the commencement of the road project after consultations between SCC Road Supervisor and FEA Official;

•LPO's were given on all works done and Invoices raised;

• No recollection of any meeting or any agreement with FEA;

• potentially every pole in the Suva City can become an obstruction or nuisance if SCC decides to widen roads;

Road widening done:

(i) in accordance with Town Planning Scheme;

(ii) in case of substandard roads

was Senior Engineer Structures at the time dealing with buildings and not roads.

The other witness for the Defendant was Eroni Ratunikalou who testified along the same lines as Solanki and it is to the following effect (as stated by counsel for the Plaintiff in his written submission):

agreed that all poles as they existed prior to relocation did not cause any obstruction or nuisance;

following Council decision to proceed with project these Poles then became an obstruction/nuisance i.e. SCC created it following its own decision;

T.P Scheme can be ignored by SCC if it wishes; main causes of relocation are:-

(i) Substandard Road;

(ii) T.P. Scheme Cases;

(iii) Traffic increase/congestion etc

expect LPO's issued by S.C.C. to be honoured;

The Plaintiff's submission

Mr. Suruj Sharma contended that the Plaintiff's claim is a simple one for services rendered at the Defendant's express request, vide orders Nos 365000, 2631, 00521 and 5041 between 29^th December 1982 and 5^th March 1984. The Plaintiff duly provided the said services as per the Defendant's said orders and rendered its account giving a breakdown into 'labour' and 'materials'. In short, it is a claim based on contract and accordingly the monies claimed are due and owing to them.

It was further argued that the issue of nuisance must be determined solely and exclusively on the agreed facts and on the basis of the evidence adduced at the hearing. Mr. Sharma contended that the issue of nuisance does not arise because it was never part of the agreed facts. However, if for one reason or another the issue of nuisance arises, then the Defendant created it by its request to re-site the electrical power poles. That is to say that it was only after the commencement of the said realignment or widening project that the poles became an obstruction and/or nuisance.

Furthermore, the Plaintiff submitted that it is not liable for costs associated with re-siting by virtue of Section 37(2) of the Electricity Act, Cap. 180 because there is no evidential basis for it. In this instant case, the Plaintiff did not exercise its powers under Section 37(1)(a) to (d) and therefore Section 37(2) which deals with the consequences of the Authority's exercise of its power, simply do not arise.

Defendant's arguments

Mr. Kapadia submitted that Section 37 of the Electricity Act, Cap. 180 is noteworthy because it clearly spells out the powers of the Plaintiff in respect to maintenance of electrical power poles and related electrical installations. Section 37(1)(d) of the Act outlines that the Plaintiff has the power "to maintain" posts thus empowering them to enter by statutory right upon any land for the purposes of the said Act. Essentially, this gives the Plaintiff an onerous responsibility to ensure that lamp posts are properly sited, and if they are not, to make 'sufficient amends'.

The Defendant's argument principally rests on Section 37(2) of the Electricity Act which provides that the re-location of electrical power poles must be undertaken by the Plaintiff as the work does not merely involve shifting of the posts but also electrical installations. Read in conjunction with Section 43 of the same Act which gives the power to the Plaintiff to perform those designed tasks prescribed in Section 37, it is plain that Plaintiff is liable to pay compensation to any person who may be inconvenienced by the act of repairing and restoration of electrical power poles.

It was further argued that the Defendant by virtue of Section 107 of the Local Government Act, Cap. 125 is the freehold proprietor of all streets within Suva. As such, the Defendant is at liberty to deal with the streets in such manner, as it thinks fit provided it does not break the Local Government Act and any other Laws in Fiji. Section 109(i)(b) of the same Act specifically empowers the Defendant to widen any street. It follows that electrical power poles which after a road widening exercise are placed in the middle of a carriage way constitutes a nuisance to the general public, Regulation 31(1) of the Electricity Regulation clearly points out that the Plaintiff is under a duty to see that streets are not obstructed. In this instant case, since the pedestrian or vehicular traffic are obstructed in regard to the position of the lamp posts, the Plaintiff is liable for costs under Section 37(2) of the Electricity Act.

Furthermore, the Defendant pleaded the defence of mistake in relation to payments made by LPO from 1982 to 1985 on the fundamental assumption that law required them. This mistake which is common and fundamental should, by the invocation of the doctrine of mistake as outlined in Bell v. Lever Brothers Ltd [1931] UKHL 2; (1931) All ER 1 and Solle v. Butcher (1949) 2 All ER 1107 invalidated the agreement made by virtue of the LPO issued and invoices submitted.

The issue

The issue for the Court's determination is whether on the facts of this case the resitement of an electrical power pole constitutes a nuisance on the street and thereby makes the Plaintiff liable for the costs associated with resitment by virtue of Section 37(2) of the Electricity Act Cap. 180.

Consideration of the Issue

Both counsel have provided different interpretations to the said provision. It is imperative that I set out the whole provision which provides:

Section 37(1) In exercise of the powers conferred upon the Authority or a licensee by the provisions of this Act, the Authority or the licensee, as the case may be, may by their officers, agents or servants, do all or any of the following:-

(a) survey and take levels of any Crown, Native or Private land or any part thereof and also dig out and remove any earth, stone, soil, sand and gravel whatsoever for the construction, maintenance or alteration of any line or any part thereof or for any other purposes in connection with the works authorised by this Act.

(b) cut and remove from any Crown, Native or Private land any tree or any branch, bough or other part of a tree growing on such lands within 30 metres of any main or sub-main used for conducting energy and which may in any way effect or interfere with the works;

(c) open or break up any road;

(d) erect and maintain posts, staywires, poles or pillars in or upon any land and attach place and maintain wires, lines, conduits or other appliances and things necessary for the works in, under, through or over, across or upon any street, roads, land, building, houses or premises.

Provided that, before the exercise of any of the powers conferred by the provisions of this paragraph, notice of the intention of the Authority or the licensee, as the case may be, shall be served on the owner or other interested party at least three clear days before the exercise of such power.

(2) In exercise of the powers given by the provision of this Section, the Authority or the licensee, as the case may be, shall not be deemed to acquire any right other than that of user only in or over the soil of any land through, over or under which the Authority or the licensee, as the case may be, causes to be placed any of the works and should any of the work so carried through, over or under any such land become nuisance or the cause of loss to the owner of such land, the authority or the licensee, as the case may be, shall at the expense of the Authority or the licensee, as the case may be, remove or alter compensation as may be agreed or in the case of difference to be determined by arbitration.

Part V of the Act, covers Acquisition of the Property etc. Section 37 is found under Division 5 of Part V and deals specifically with the power to enter on and examine land. It is clear from the wording in Section 37(1) that it provides the lawful basis upon which the Authority can exercise its powers on four main grounds, from (a) to (d). Meanwhile, Section 37(2) deals specifically with the consequences of the Authority's exercise of its powers under Section 37(1). There is an important condition imposed on the exercise of power under Section 37(1) as prescribed by the proviso. That is, the Authority shall serve on the Defendant a notice of their intention to exercise the powers conferred by the provisions of the said paragraph at least three clear days before the exercise of such powers. Practically, this means that the Plaintiff should give three days' notice to the Defendant before it exercises such powers.

However, the factual situation in this instant case is slightly different in context from what Section 37 of the Act envisages. In this case the Defendant is giving notice of its request to re-site the electric power poles. The question that arises is whether the Plaintiff did exercise its powers by virtue of Section 37(1).

Section 13(1) of the Act, spells out the general functions of the Authority. It states:

Subject as hereinafter in this Act provided, it shall be the duty of the Authority -

(a) to manage and work any electrical installation transferred to the Authority and such other installations and apparatus as may be acquired by the Authority;

(b) to establish, manage and work such electrical installations as the Authority may deem it expedient to establish;

(c) to promote and encourage the generation of energy with a view to the economic development of Fiji;

(d) to secure the supply of energy at reasonable prices;

(e) to advise the Minister on all matters relating to the generation, transmission, distribution and use of energy.

(2) For the purpose of sub-section (1), the Authority may -

(a) .....

(b) purchase, construct, reconstruct, maintain and operate supply lines, generating stations, transformer stations and all other appropriate stations, buildings and work;

(c) sell, line or otherwise supply electrical plant and electrical fittings, and install, repair, maintain or remove any electrical plant and electrical fittings;

(d) acquire, in accordance with the provisions of this Act or otherwise, any property, real or personal, which the Authority deems necessary or expedient for the purpose of construction, extending or maintaining any installation or otherwise for carrying out its duties and functions under the provisions of this Act;

(e) carry on all such other activities as may appear to the Authority requisite, advantageous or convenient for it to carry on for or in connection with the performance of its duties under the provisions of this Act or with a view to making the best use of any of its assets or skills."

To determine the answer to the central issue, it is essential to first focus on the ways statutes are interpreted. It is noted that one of the approaches is to look at the object or the purpose of the legislation concerned. In Farrel v. Alexander [1976] UKHL 5; (1977) AC 59 at 81, Lord Simon of Glaisdale pointed out that:

"First in the construction of all written instruments including statutes, what the court is concerned to ascertain is, not what the promulgators of the instruments meant to say, but the meaning of what they have said. It is in this sense that "intention" is used as a term of art in the construction of document."

The purposive interpretation of the Act in the light of said Section 13 provides guidance to the intentions of Section 37(1). By virtue of Section 13(e) the Plaintiff is required to carry out such activities that are advantageous or convenient to the performance of its duties. Thus, the intention of Section 13(e) is to confer a benefit or an advantage to the Plaintiff.

In the instant case, there is no benefit or convenience that the Plaintiff will receive from the re-siting of electrical power poles. Rather it is a question of inconvenience to the Plaintiff to be financially responsible for carrying out the re-siting process in the Municipality of Suva. It is unfair on the part of the Defendant to place this burden on the Plaintiff.

Interestingly, both parties failed to make reference to s27 of the Town Planning Act, Cap. 139 which is relevant to this matter. Part III of the said Act deals with the powers of Local Authority.

Section 27 provides (inter alia):

"Section 27 - (1) Subject to the provisions of this section, the local authority may at any time -

(a) remove, pull down or alter, so as to bring into conformity with the provision of the scheme, any building or other work which does not conform with those provisions or the removal, demolition or alteration of which is necessary for carrying the scheme into effect, or in the erection or carrying out of which any provision of the scheme has not been compiled with; or

(b) .....

(c) .....

(d) .....

(2) Before taking any action under this section the local authority shall serve a notice on the owner and on the occupier of the building or land in respect of which the action is proposed to be taken and on any other person who, in its opinion, may be affected thereby, specifying the nature of and the grounds upon which it proposes to take the action."

This provision directly relates to the facts in this matter in that the Defendant between 29^th December 1982 to 5^th December 1984 wrote to the Plaintiff to shift the power poles and cables situated along the roads (owned by the plaintiff) in accordance with the new layout of the roads in question.

Part IV of the Town Planning Act; Cap. 139 covers compensation for injurious affection, etc or claims for increase in value.

Section 28 provides:

28. Subject to the provisions of this Act, any person -

(a) whose land is injuriously affected by the coming into operation of any provision contained in a scheme, or by the execution of any work under a scheme; or

(b) who for the purpose of complying with any provision contained in a scheme, or in making or resisting a claim under the provisions of this Act relating to compensation or increase in value has incurred expenditure which is rendered abortive by a subsequent modification or alteration of the scheme, shall, if he makes a claim within the time limited for the purpose by this Act, be entitled to recover as compensation from the local authority the amount by which his property is decreased in value or, so far as it was reasonably incurred, the amount of the abortive expenditure, as the case may be.

Section 16 of the said Act, requires Local Authorities to draw up Town Planning Scheme with the object of controlling the development of land and of securing suitable provision of traffic, transportation and for other useful purposes. Therefore, it was envisaged that the Local Authorities, in this case the Suva City Council, were expected in regard to Section 27 to exercise its powers to "remove, pull down or alter" any buildings or other work which does not conform with the provisions of the scheme. Furthermore as stated above Section 28 of the said Act provides compensation pursuant to the exercise of its powers in Section 27. This provision is similar to Section 37 and 38 of the Electricity Act.

From the foregoing, it is abundantly clear that the relevant law in resolving this matter is not Section 37 of the Act but Sections 27 and 28 of the Town Planning Act, Cap. 139. Further, the Defendant is liable to pay reasonable compensation for injurious affection to the Plaintiff's works (power poles) on the Defendant's land to which the former claims implied easement.

On the issue of 'nuisance', I agree with the Plaintiff's contention that it was the Defendant's very own conscious and deliberate decisions, which made the poles an obstruction. This is evidenced in the testimony of the defendant's witness Eroni Ratukalou that the lamp post at Knolly Street was neither obstructing the traffic nor the pedestrians before the road was widened but after.

From the evidence adduced at the hearing the Council (defendant) has admitted responsibility and therefore it is fanciful to allege 'nuisance' on the part of the Plaintiff Authority when all it did was to provide the very services requested of them by the Defendant. The Defendant has cited common law authorities to give meaning to Section 37(1)(d) in respect of the word 'maintain'. I see no need to give special meaning because it is clear on its face. Words must not be interpreted in isolation but in the context in which they appear.

The defence of mistake was raised by the Defendant and they relied on Bell v. Lever Brothers Ltd [1931] UKHL 2; (1931) All ER 1 and Solle v. Butcher (1949) 2 All ER 107. I agree with the Plaintiff that the parties misconceived this defence as there is no basis for it. When the Defendant issued the LPOs for payments in respect of the shifting of power poles, the Plaintiff at all material times held the belief that the Defendant should bear the costs.

Conclusion

I find the Defendant's arguments misconceived in light of the agreed facts and evidence adduced at the hearing. Both counsels have relied solely on the Electricity Act, Cap. 180. The relevant law on the issue before the Court is the Town Planning Act, Cap. 139 which spells out clearly the responsibilities of Local Authorities.

For these reasons the Plaintiff succeeds in its claim.

As for Defendant's Counterclaim, in the light of Plaintiff having succeeded in its claim for the reasons given, the Defendant cannot hope to recover the amount claimed. The Counterclaim is therefore dismissed and the Declaration and Order sought are refused.

In the outcome for these reasons I give judgment for the Plaintiff as claimed namely, the sums of $1,111.52, $483.45, $9104.17 and $7623.11 making a total sum of $18322.25 without interest for the reason that neither party took steps to have the matter resolved quickly. Costs to the Plaintiff to be taxed if not agreed.

Judgment for plaintiff.

Marie Chan and Mereseini R Vuniwaqa