Prices & Incomes Board v Lochan [1979] FJSC 42; Criminal Appeal No. 45 OF 1979 (16 November 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA

Appellate Jurisdiction
Criminal Appeal No. 45 of 1979

BETWEEN

PRICES AND INCOMES BOARD
(Prosecutor)

AND

HARRY RAM LOCHAN
f/n Ranjeet Chaudhary
(Accused)

Mr. D. Williams, Counsel for the Prosecutor
Mr. B. S. Patel, Counsel for the Accused

JUDGMENT

In this case there are cross appeals by the accused and the prosecutor and to avoid confusion I will continue to refer to them as such.

The accused was charged on three counts of raising the rent on shops owner by him without giving 6 weeks written notice of the proposed rent increase to the Prices and Income Board contrary to para. 2 of the Counter Inflation (Application of Section 15) Order 1976, and sections 33(1) and 35 of the Counter-Inflation 1976, and sections 33 (1) and 35 of the Counter-Inflation Act 1973.

After hearing evidence the magistrate convicted the accused on all three counts, fined him $50 each on the first two counts and $100 on the third count. He also ordered the accused to pay $37.50 costs, but he declined to make an order for compensation to the tenants under section 158(2) of the Criminal Procedures Code and section 28 of the Act. The accused now appeals against his conviction on all counts and the prosecution appeals against the magistrate's decision not to make an order for compensation.

The accused's appeal in respect of count 3 was abandoned so that that conviction and sentence must stand.

The circumstances giving rise to the charges were rather confusing but are set out quite clearly at the beginning of the magistrate's judgment and I do not need to repeat them.

It is not disputed that the accused did raise the rent of the shops in question as specified in the charges. Counts 1 and 2 refer to the same shop shop No.3, and the reason for the two counts is that the rent was raised twice, i. e. on each of the dates specified. Count 3 refers to shop No. 2, the shop that was on 28/10/75 occupied by the accused himself.

The question in each case was whether the accused gave the necessary notice to the P.I.B. and whether the increases were authorised either expressly or by implication.

The essence of the problem in each case was whether a letter, Exhibit "B" written by the accused to the P.I.B. dated 15/12/75 referred to shops Nos. 2 and 3. Since the accused himself was occupying shop Nos. 2 at the time it was conceded by the accused the Exhibit B and could not have referred to it and thus the appeal on Count 3 has been abandoned. It is not disputed and letters Exhibit A and Exhibit B refer to Shop No. 1 and the only issue really was whether Exhibit "B" could be said to refer to Shop No. 3 as well.

It is to be remembered that Exhibit B was a follow up of Exhibit A, and the request by the P.I.B. for a valuation report on the whole plot. It is not disputed that the valuation report covered the three shops and the two flats comprising the whole site, but no doubt P.I.B. considered that all the information contained in that report was necessary for them to consider the application contained in Exhibit A. The letter requesting the valuation was not exhibit and so presumably is not relevant to the issue. Exhibit B merely refers to it and proceeds as follows:

"With reference to your letter C/10/2/120, I wish to advise that the present rental for the shop spaces rented out to Mr. Harak Narayan of Lautoka is $70.00 per month.

Town Council rates.........$212.00

Insurance Premium.........$250.00

As requested please find attached a copy of valuation report on the property.

I shall be grateful if you would allow me a 10% return, which is as follows:

Flats (a)...........$175.00 each

Shop (b)...........$250.00 each

To say the least the letter does not express very concisely just what it is setting out to do. The accused says that the letters, which he wrote himself, is a notice of intention to increase the rent of each of the two flats and each of the shops but that as the accused's knowledge of English is not good he has not expressed himself very clearly. He says that although the letter refers under (b) to "shop" the word "each" shows that more than one shop was intended. Of course the first paragraph refers to "shop spaces" (Shop No.1) rented out to Harak Narayan whereas the reference should be to "shop space" or just "shop", but otherwise the letter, although not by any means a model, whatever its purpose does not contain errors. Clearly there is in (b) a contradiction between the word "shop" and "each", but is the error in the addition of the word "each" or the omission of the letter "s" to the word "shop"?. As a follow-on from Exhibit A it should be only concerned with shop No. 1, and we do know that it could not refer to shop No. 2 which was occupied by the accused at that time.

Surely to put it at its most favourable to the accused there is an ambiguity in the letter, which is precisely what the magistrate found. Had the evidence stopped there there might be a doubt that could be resolved in the accused's favour. But the evidence didn't stopped there. There was the evidence of P.W.6 Subramani who said he spoke to the accused in December 1975 when the accused cleared up the ambiguity in Exhibit B by stating or confirming that he was only seeking rent increase in respect of shop No. 1, and not shops No. 2 and No. 3. of course, the letter Exhibit B, being so ambiguous, it was only to be expected that someone from the P.I.B. would have to clarify what the accused was asking for. It should perhaps be noted that P.I.B. did accept that Exhibit B was a notice of intention to increase the rent of the flats (which has not been included in Exhibit 'A') but did not accept it as a notice of intention to increase the rent of Shops No. 2 and No. 3. Consent to some increases in the rents of the two flats and a shop was given by the P.I.B., albeit not until 26/3/76, in Exhibit D. Exhibit D is not evidence that Exhibit B was only meant to cover one shop but if P.W.6 had clarified the ambiguity as he stated then naturally the P.I.B. would have been concerned only with shop No. 1 and the two flats, and there is no doubt from Exhibit D that the P.I.B. was only so concerned.

Subramani's evidence has been attacked by the accused both at the trial and during the appeal, not surprisingly, because what he said was vital to the prosecution. Exhibit B, being ambiguous, would on its own leave a doubt which would have to be resolved in the accused's favour, but if Subramani's evidence is accepted, the ambiguity was resolved and the prosecution has proved the elements of the charges.

The magistrate dealt at some length with Subramani's evidence and his reasons for accepting it. This was a question of credibility although it was complicated somewhat by argument as to whether notes referred to by Subramani just before the trial should be produced and whether a memo written by him to his head office in Suva should be produced. The magistrate ruled that there was no reason for the notes to be produced but that the memo should be produced. The magistrate ruled that there was no reason for the notes to be produced but that the memo should be produced. The notes were not the witness' own notes to be produced, he says he merely looked at the names at the top and then handed the file back and so I see no reason to question the magistrate's ruling on this point. It appears that the witness had made his own notes at the time of his visit to the accused, and if he had been asked to produce these, and not the notes written by someone else the position might have been different.

With regard to the memo this appears to have got lost and so in spite of the magistrate's ruling this could now be produced. How this one memo could have gone astray is a matter for some concern, but the magistrate accepted that its production was no longer possible. It then remained a question of whether the court could accept the witness' recollection of the events and what the memo contained. The magistrate believed the witness as he was entitled to and he did not believe the accused. He accepted that the latent ambiguity in Exhibit B was resolved by the accused himself, and therefore that no notice of intention to raise the rent on Shops 2 and 3 was given by the accused. The conviction followed quite correctly from this and so the appeals against conviction are dismissed.

I now turn to the prosecution's appeal against the magistrate's refusal to make an award of compensation. The application for the court to award compensation was made under section 158(2) of the C.P.C. as read with section 28 of the Counter-Inflation Act 1973. section 158(2) of the C.P.C. reads as follows-

"Any person who is convicted of an offence maybe ordered to pay compensation to any person injured by, or who suffers damage to his property or loss as a result of such offence and such compensation may be either in addition to, or in substitution for, any punishment or other sentence."

Section 28 of the Counter-Inflation Act 1973 reads-

"A transaction shall not be invalid by reason only that it involves an offence under this Act; but the person paying a price or charge in excess of that fixed and declared under the provisions of this Act shall be entitled to recover the excess of any price so paid by him over such fixed and declared price unless he himself has aided abetted or procured the commission of the offence."

A magistrate certainly has the power to award compensation under section 158(2) of the C.P.C. to anyone who suffered damage to his property, or who suffered loss as a result of the offence committed. In this case the question arises firstly whether the persons who rented shops No. 2 and No.3 suffered loss as result of the offences committed by the accused. They both apparently willingly paid the rent asked for by the accused. One of them agreed that he was very anxious to get one of the shops and it was clear that he wasn't worried about paying the higher rent. I doubt very much whether section 158 (2) of the C.P.C. was intended to cover such a situation.

Section 28 of the Counter-Inflation Act 1973 certainly is intended to apply to such a situation and under that section the tenants can certainly ask to have the excess rent returned to them. But on the other hand section 28 surely was not intended to be used as authority for awarding compensation when the landlord is charged with unlawfully increasing the rent. If that was the intention the section would have spelled this out in some detail; it would not have been worded in the way it is worded. In any case it clearly raises the question of whether the tenants were aiders or abettors to the landlord in breaking the law. This question was not property gone into before the magistrate and yet clearly it is an issue that should be decided before the tenants have the excess rent returned to them. I entirely agree with the magistrate that the correct course is to allow the tenants, if they so wish, to take action under section 28 of the Counter-Inflation Act 1973, and not to make an order for compensation under section 158 (2) of the Criminal Procedure Code. The appeal by the prosecution is therefore dismissed.

(Sgd)
(G.O.L. Dyke)
JUDGE

LAUTOKA
16th November, 1979