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Court of Appeal of Fiji |
IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT
Civil Appeal No.ABU 0056 of 2010
(High Court Civil Action No. HBC 180 of 2010)
BETWEEN:
R.B.PATEL GROUP LIMITED
Appellant
AND:
SUVA CITY COUNCIL
1st Respondent
LAUTOKA CITY COUNCIL
2nd Respondent
NASINU TOWN COUNCIL
3rd Respondent
NAUSORI TOWN COUNCIL
4th Respondent
SIGATOKA TOWN COUNCIL\
5th Respondent
Coram: Hon. Justice William Calanchini, Acting President
Hon. Justice Suresh Chandra, Justice of Appeal
Hon. Justice Ariam B. Mutunayagam, Justice of Appeal
Counsel: Mr. H. Nagin for Appellant
Mr. Z. Sahu Khan for 1st Respondent
Mr. N. Lajendra for 2nd,4th and 5th Respondents
Mr. S. Tinivata for 3rd Respondent
Date of Hearing: Wednesday 5th September, 2012
Date of Judgment: Friday, 28th September 2012
JUDGMENT
William Calanchini, AP
1. I have read the judgment of Chandra JA and agree with his proposed orders.
Suresh Chandra JA
2. This is an appeal by the Appellant (hereinafter referred to as the Plaintiff) from the judgment dated 28th September 2011 of the learned High Court Judge at Suva.
3. The Plaintiff filed originating summons against the Respondents (hereinafter referred to as the Defendants) stating that
(a) The Plaintiff is a limited liability company that operates a chain of supermarkets in Fiji and that some of them are situated within Councils of the Defendants, and that the Defendants issued business licences to the Plaintiff's supermarkets located within their authority.
(b) That the Plaintiff had paid business licence fees levied by each Defendant for designated businesses as follows:
(i) Suva City Council (1st Defendant)
- Shop, large supermarket with liquor licence
- Agent, gas cooking
- Refreshment Bar
- Butcher.
(ii) Lautoka City Council (2nd Defendant)
- Shop, Large Supermarket with liquor licence
- Agent Gas cooking
- Butcher
(iii) Nasinu Town Council-Center Point (3rd Defendant)
- Shop, Large Supermarket with Liquor License
- Butcher
- Refreshment Bar
- Retail Shop
(iv) Nausori Town Council (4th Defendant)
- Shop liquor
- Gas Agent
- C. Shop Wholesale & Retail
- Frozen & Pre-Packed Meat
- Shop Toys & Curios
(v) Nausori Town Council-South Point (Nakasi)
- Shop liquor
- Gas Agent
- Shop Wholesale and Retail
- Frozen & Pre-Packed meat
- Shop Toys & Curios
(vi) Sigatoka Town Council (5th Defendant)
- Shop & Large Supermarket with Liquor Licence
- Agent Gas Cooking
- Butcher.
(c ) That the Defendants charge the plaintiff licence fees for various types of business activities, though carried out within the same premises.
(d) That the Business Licensing Act, Cap.204 together with the Defendants' respective Business Licence Fees By-Laws do not restrict the nature of the items sold at large supermarkets such as those operated by the Plaintiff and that supermarkets by their nature carry multiple types of products.
(e) That the Plaintiff accepts that it must pay for licence 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.
4. The Plaintiff sought the following orders and declarations:
(a) An Order and/or Declaration that the Business Licence Fees payable by the Plaintiff for its supermarket businesses to the Defendants pursuant to the Defendants' respective Business Licence Fees By-Laws shall be for "Shop, Large Supermarket with Liquor Licence" only and no other Business Licence Fees in respect of its supermarkets situated with the Defendants' respective boundaries.
(b) An Order that the Defendants by themselves, their respective servants and/or agents be permanently restrained from demanding payment of other business licence fees from the Plaintiff apart from business licence for shop, large supermarket with liquor licence, and not to interfere in any manner whatsoever in the Plaintiff's day to day running of its supermarkets situated within the Defendants' respective boundaries.
(c ) An Order that the Defendants do pay costs on indemnity.
5. The learned High Court Judge dismissed the Plaintiff"s summons with costs to be taxed if not agreed by Judgment dated 28th September 2011.
6. In the notice of Appeal filed by the Plaintiff against the judgment of the High Court the following grounds of appeal have been set out:
7. The learned High Court Judge in the course of his judgment referred to and considered the provisions of the Business Licensing Act (Cap.204) and the By-Laws made pursuant to the provisions of the said Act and the interpretation that could be given to the said provisions.
8. The learned Judge arrived at his conclusion thus at para.70 of the Judgment:
"That Sections 3,4 and 5 of the Business Licensing Act does not appear to this Court produce any ambiguity in their respective meanings, and that it was plain and obvious according to the Business Licensing Act and Buy-Laws that 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 licences."
9. In considering the submissions made by the Plaintiffs regarding the grounds of appeal, it is necessary to consider the relevant provisions of the Business Licensing Act (Cap.204) and the By-Laws made pursuant to the provisions of the said Act by the relevant Town Councils.
10. The relevant provisions in the Business Licensing Act are:
"S.3 (1) There shall be for the purposes of this Act the following licensing authorities:
(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.
S.4. 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.
S.5. 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."
11. According to S.3 above, the licensing authority in respect of a municipal area would be the Council of such area and therefore the Defendants are clearly licensing authorities of their respective Council areas.
12. In terms of S.4 above different types of businesses have been designated as businesses requiring licences and are set out in the By-Laws relating to the said Act. It is to be noted that in the said list of "Designated Businesses", "Shop, Large Supermarkets with Liquor Licence" is one of such businesses.
13. According to S.5 a person who wishes to engage in a business designated under S.4 has to obtain from the Licensing Authority a license to engage in such business. The Section caters to two types of situations, firstly where the business is carried on in a designated place, when it stated "in respect of each place in which such business is carried on" and secondly to a situation where there is no fixed place of business, such as in the case of a hawker or other person who has no fixed place of business. In both situations to engage in business, a license has to be obtained.
14. From the above provisions it would appear that if an entrepreneur wishes to engage in the business of a Supermarket, and call it as such, would come under the category of Designated Business of "Shop, Large Supermarket without Liquor License" or "Shop: large Supermarket with Liquor License". The venture in the present case falls under the second category, namely "Shop: large Supermarket with Liquor License".
15. There is no dispute that an entrepreneur who wishes to have the business of a Supermarket has to obtain and pay a licence fee. But the question at issue is as to what "activities" of trade or business could he carry out in such a Supermarket with or without paying a further licence fee. Should he pay a license fee for every activity in the nature of a business that is carried on in such a Supermarket or is he entitled to carry any such activity as he has obtained a license to carryon on a Supermarket under the designated category of "Shop: large Supermarket with liquor licence".
16. Obviously, having obtained such a license, the plaintiff would have had to obtain the necessary authorization from the relevant authorities apart from the City Council to carry on the business relating to sale of liquor.
17. In the present case, according to the argument of the Plaintiff, it should be able to carry on different activities of trade from the Supermarket once they have obtained a licence under the designated category of Shop: large Supermarket. This is what is being opposed to by the City Council, whose argument is that if the Plaintiff is carrying different activities of trade within such a supermarket and they fall under the categories of designated business, the plaintiff should obtain licenses for such activities too in addition to the license for the Supermarket. Needless to say that if the Plaintiff did not call itself a supermarket, the other activities that he was carrying on could be carried on by paying the respective licence fees for such activities without paying a separate licence fee for the Supermarket.
18. This situation has thus arisen as there is no definition or interpretation in the Statute regarding the term "Supermarket". It is a well known phenomenon that in the modern business world, Supermarkets are a matter of commonplace in many jurisdictions. They serve the community in making available many items that consumers would need under one roof which makes the activity of marketing especially for household goods so very convenient.
18. In such a situation that is as present, would it be possible for the Court to give a meaning and interpret the term "Supermarket" to keep with contemporaneous situations? It is to be observed that the subsidiary legislation which designated "Supermarkets" under the Designated Businesses was formulated in 1985, and the phenomenon of Supermarkets has advanced much more up to the present time. However, no attempt has been made to give a Statutory Interpretation to the term by the Legislature and it would be appropriate for such measures to be taken.
19. The question at issue for this Court is to determine the correctness of the judgment of learned High Court Judge in the light of the grounds of appeal raised by the Plaintiff in this appeal.
20. The learned Judge has interpreted the relevant statutory provisions cited above referring to several decisions relating to interpretation of statutes and adopted the literal interpretation on the basis that the words are plain and clear and unambiguous. The intention of the Legislature is clear when it set down the statutory provision to the effect that any person who wishes to carry on a business has to obtain a license for such purpose. As far as that point of view is concerned, the learned Judge's interpretation that any person who wishes to do a business should obtain a license from the relevant local authority as stated in paras. 61 and 62 of the judgment cannot be faulted.
"6l. 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 license 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 license.
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."
21. However, in paras. 63-66 of the judgment the learned Judge has stated thus:
"63. Similarly, once a license is obtained to carry out a designated business in a particular place, one cannot carry on different kinds of designated businesses in the same place unless and until he obtained separate licenses 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 5of the Business Licensing Act. That is whoever intended to carry on any of the businesses designated under the provisions of section 4 of the Business Licensing Act, a license has to be obtained for each and every business irrespective of the place where the business is carried on."
22. In my view, the position taken up by the learned High Court Judge in paras. 63 to 66 would be contrary to the position taken up by him in paras.61 and 62. The words in Section 5 'in any business designated under the provisions of section 4' have to be read with the remaining portion of the section namely 'in Fiji without a license issued by a licensing authority in respect of each place in which such business is carried on' and cannot be dissociated from that portion. As I have stated in para.13 above, the issue of a license applies to the place of business.
23. The contention of the Plaintiff is that as he has obtained a license for the place of business which is designated as "Shop: large supermarket with liquor license" he need not pay for the different trading activities therein though such trading activities taken individually would encompass the different "designated businesses" in the schedule of "Designated Businesses" in the Schedule of the By-Law of the particular Council.
24. It is observed that as far as the 4th Defendant is concerned, that is the Nausori Town Council, there is no designated business in their By-Law as "Shop: large Supermarket with liquor" and the plaintiff is not claiming to have taken a license of that nature. Therefore the position that the Plaintiff has taken regarding "Shop: large Supermarket with liquor" would not apply to the said 4th Defendant Council. Consequently, the appeal of the Plaintiff would fail as far as the 4th Defendant is concerned.
25. A consideration of the manner in which the different Councils have levied license fees from the Plaintiff as set out in para.3 above reveals that:
26. Now, the question revolves round the issue regarding the 1st, 2nd, 3rd and 5th Defendants charging the Plaintiff for different "Designated Businesses" such as "Butcher". "Agent, Gas Cooking", "Refreshment Bar", "Retail Shop", "Petroleum" and "Wholesale & Retails" while charging for another "Designated Business" named "Shop: large Supermarket with Liquor". It is also to be observed that the fee for "Shop: large Supermarket with Liquor License" is the highest fee when compared to the other named Designated Businesses for which fees have been charged from the Plaintiff.
27. The perusal of the Schedule of the Designated Businesses in the By-Laws of the several Defendants reveals that under the category of "Shops" that the following are set out:
S20 Shop, Agriculture, Industrial and Consumer, Chemical Sales
S21 Shop, Boatbuilding
S22 Shop, Cabinet Joinery or Furniture
S23 Shop, Domestic Appliances
S24 Duty Free Goods
S25 Shop, Electrical and/or Contractor
S27 Shop, Engineering, small/light
S26 Shop, Engineering, heavy
S28 Shop, Green grocer
S231 Shop, Jewellery
S34 Shop, Motor Mechanic
S36 Shop, Pawn
S37 Shop, Plumber
S38 Shop, Retail
S39 Shop, Retreading and/or Recapping of Tyres
S41 Shop, Small Retailers
S33 Shop, Large Supermarket Type without Liquor Licence
S30 Shop, Household Appliances Retail Sale (Refrigerator, W/Machine, etc).
S29 Shop, Household Appliances, Wholesale and Retail
S40 Shop, Sales and Services of Life Rescue Equipment
S42 Shop, Spray Painting and/or Panel Beating
S43 Shop, Tailor and/or Drapery
S44 Shop, Tailor (solely)
S45 Shop, Toys and/or Curios
S46 Shop, Upholstery (solely)
S48 Shop, Wholesale
S49 Shop, Wholesale and Retail
S47 Shop, Welding, including Mobile Welding
S35 Shop, not otherwise defined
S35 Shop, Service and Bowser.
28. It is seen that in the above list there a few designated businesses which appear to be very wide and vague, such as "Shop Domestic Appliances", "Shop Green Grocer", "Shop Small Retailer", "Shop Household Appliances", "Wholesale and Retail", "Shop Wholesale", "Shop Wholesale and Retail".
29. It would be rather difficult to demarcate the activities that any one of the above would really mean as far as their scope is concerned, and these are similar to activities that would be carried on in Supermarkets. Taking for instance the activities that the Plaintiff is said to carry out as stated in his affidavit (page 29 of the High Court Record) such as "Frozen & Pre-packed Meat", "Clothes", "Toys", "Refreshments". "Fast Food", "Gas for Cooking". In the Plaintiffs submissions to the High Court (page 158 of the High Court Record) it is further stated as "Agent for Fiji, Vodafone and Digicel in the Sale of Telecards", "Cosmetics in the Cosmetic Department", "Small Hardware", "Electrical Appliances", "Milk Bar", "Liquor Department",. Each such activity may be caught up under designated businesses in the classification of designated Business in the Schedules of the By-Laws of the several Town Councils.
30. The activities of trade as set out above are similar to activities in a Supermarket as stated in the Judgment of Kermode J in R v Central Divisional Liquor Tribunal Ex parte Hari Ram Maharaj (S.C. Judicial Review No.19 of 1984). "A reasonable requirement of anyone living in the neighbourhood of a supermarket is that a shopper should be able to purchase groceries and beverages and other household requirements in the one store".
31. In Fine Fare Ltd v Aberdare Urban District Council 1965 1 All E.R. 679 which involved a case of the effect of a closing order of the Local Authority in respect of the businesses carried on in a Supermarket, it was stated that the Supermarket in question had carrried on a variety of retail businesses, including those of grocery, tea dealers, greengrocery, fruiterer, provision merchant, florist, driedfishmoner, poulterers, butcher, domestic hardware merchant, stationer, confectioner, baker and seedsman.
32. In Metro International (Pvt) Ltd v Old Mutual Property Investment Corporation (Pvt) Ltd and Another (2007) ZWSC 109 a decision of the Supreme Court of Zimbabwe, where an issue arose regarding the content of a Supermarket in a building relating to a lease, the Court referred to the following meanings given to the term Supermarket. In the New Collins Concise Dictionary (1982) Supermarket is defined as 'large self-service store retailing food and household supplies'.
The Court also referred to the definition of Supermarket in Wikipedia Free Encyclopedia where it is stated that:
"A supermarket is a departmentalized self-service store offering a wide variety of food and household merchandise. It is large in size and has a wider selection than a traditional grocery store.
The supermarket typically comprises meat produce, dairy and baked goods departments along with shelf space reserved for canned and packaged goods as well as for various non-food items such as household cleaners, pharmacy products and pet supplies. Most supermarkets also sell a variety of other household products that are consumed regularly such as alcohol (where permitted) household cleaning products, medicine, clothes and some sell a much wider range on non-food products.
The traditional supermarket occupies a large floor space on a single lever and is situated near a residential area in order to be convenient to consumers. Its basic appeal is the availability of a broad selection of goods under a single roof at relatively low prices."
33. The above meanings or definitions given to the term Supermarket has thus drawn the attention of Courts in relation to the activities that are carried on in them. In the context of the present case too, as claimed by the Plaintiff their Supermarkets also have a wide array of trading activities and therefore some meaning should be attached to the term Supermarket when the Town Councils charge a license fee for such an establishment and more so when they charge a higher fee than for other designated businesses.
34. The By-Laws of a Town Council come within the scope of delegated legislation where such Councils are authorized to formulate laws to be operative within their Council limits. It is in terms of such authorization that the By-Laws relating to Designated Business too have been formulated. It is an accepted principle of law that such by-laws should be certain and be reasonable. The judicial authorities starting with the introduction of the Wednesbury Principle (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 K.B. 223) have been adopted in many jurisdiction in dealing with such delegated legislation. The Courts have gone to the extent of striking down by-laws on such basis as had occurred in Bugg v D.P.P. [1993] 2 All ER 815.
35. When applying those principles to the present situation, it cannot be strictly said that the by-laws formulated by the Councils regarding Designated Businesses are unreasonable. However in the operation of them a certain amount of certainly should attach to them. If vague or wide terms are used, it should be possible to circumscribe their limits. It is my view that though the by laws relating to designated businesses have been properly laid down, in their operation they should be certain and be able to lay down their scope.
36. I am of the view that the 1st, 2nd, 3rd and 5th Defendants Councils who have charged a license fee from the Plaintiff for "Shop: large Supermarket with liquor" should not charge a separate fee for the other activities which have been categorized by the Councils as Designated Businesses among the activities of the Plaintiff's Supermarket. However, where such business activity requires special authorization from the Council itself or other Regulatory Bodies, in relation to excise matters or hygienic matters or safety measures etc. such authorizations should be obtained and fees for such would have to be paid regarding such authorizations. If as submitted by the 1st Defendant, if such Council has to assist in matters requiring such authorization, they should formulate measures to accommodate such assistance and work that they have to do in such circumstances.
37. Therefore I would set aside the order of the learned High Court Judge dismissing the summons of the Plaintiff and allow the appeal of the Plaintiff in respect of the order of dismissal in respect of the 1st, 2nd, 3rd and 5th Respondents in that the Business Licence Fee payable by the Plaintiff for its supermarket business shall be for "Shop: Large Supermarket with Liquor Licence" only.
38. The Courts in dealing with By-Laws of Local Authorities have been over the years treating them rather benevolently (Lord Russel of Killowen C.J in Kruse v Johnson [1898] UKLawRpKQB 101; (1898) 2 Q.B. 91).
Therefore in the present circumstances I would not award any costs against the Defendants.
Ariam Brito Mutunayagam, JA
Suresh Chandra, JA
ORDERS OF THE COURT
40. The Orders of Court are:
Hon. Justice William Calanchini
Acting President
Hon. Justice Suresh Chandra
Justice of Appeal
Hon. Justice Ariam Brito Mutunayagam
Justice of Appeal
Solicitors:
Sherani & Co. for Appellant
L/O – Suva City Council for 1st Respondent
L/O – Nasinu Town Council for 3rd Respondent
Lajendra Law for 2nd, 4th and 5th Respondents
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