Prices and Income Board v Kelton Investment Ltd [2009] FJMC 2 ...

Prices and Income Board v Kelton Investment Ltd [2009]FJMC 2; Criminal Case 1510.2006 (20 July 2009)IN THE RESIDENT MAGISTRATES COURTCENTRAL DIVISION, SUVACriminal Case No. 1510 of 2006BETWEEN:PRICES AND INCOME BOARDCOMPLAINANTAND:KELTON INVESTMENT LIMITED a limited liability company having itsregistered office at 51 to 55 Foster Road, Walu Bay, Suva.ACCUSEDProsecution: Mr S RaikanikodaAccused: Mr I Fa & Ms A Tavo, Fa & CompanyDate of Hearing: 02 October, 2007 & 14 January 2009Date of Judgment: 20 July 2009JUDGMENT[1] The Complainant, the Prices and Income Board, has charged the Accused, KeltonInvestment Limited, with failing to give 12 weeks written notice to the Prices andIncome Board [hereinafter referred to as the "PIB"] of a proposed increase in rent inrespect of the letting of certain commercial premises at 25 Gladstone Road, Suva,contrary to Clause 2 of the Counter-Inflation (Notification of Proposed Increase inRent) Order 1996 (Legal Notice 63/96) and Sections 30(1) and 32 of the Counter-Inflation Act (Cap 73 of the Laws of Fiji).[2] This matter first came for hearing before Magistrate J Waqaivolavola on 2ndOctober, 2007. The Complainant called its witnesses to give evidence, after whichCounsel for the Accused, Mr Fa, made a submission of no case to answer.

[3] The Court ruled on 2 October 2007 that the prosecution had established the chargeon a prima facie basis, and adjourned the matter to another date for continuation ofhearing.[4] After several adjournments, this matter finally proceeded with continuation ofhearing on 14 January 2009. At the end of the hearing counsel were ordered to filesubmissions and the matter was adjourned to 10 February 2009 for judgment.[5] On 10 February, 2009, the matter was adjourned to 24 February 2009 and on thatdate the Court adjourned the matter further for judgment on notice.[6] Mr Wagaivolavola’s appointment as a Resident Magistrate was revoked on 10thApril 2009 by the Revocation of Judicial Appointments Decree 2009 withoutjudgment having been given in this matter.[7] The matter has been assigned to this Court under s 47 of the Magistrates CourtAct, which provides that where a Magistrate has ceased to act as magistrate,proceedings may be heard, determined or carried to completion by his or hersuccessor. Section 196 of the Criminal Procedure Code allows a magistrate toconclude criminal proceedings begun by another magistrate.[8] Given that the trial had been concluded and the material evidence is contained inlease documents, receipts and correspondence, the Court does not considerresummoning the witnesses to be necessary to do justice in this matter.[9] The Court has therefore prepared Judgment on the basis of the pleadings, theexhibits submitted by the Complainant and the Accused at trial [there are twodifferent sets, one from each hearing date], the submissions filed by both parties andthe transcript of the Judge’s Notes from the hearing.[10] Except where otherwise indicated, references to exhibits will be to theDefendant’s bundle of exhibits provided by the Accused’s solicitors on the secondhearing date.The Background to the Complaint[11] The premises in question at 25 Gladstone Road, Suva were leased by I. Naiveli &Co., Chartered Accountant, [hereinafter referred to as the tenant] from the Accused aslandlord.[12] The Lease Agreement is Exhibit 1, it is dated 30 March, 2000, it commenced on

1 April 2000 and expired on 1 April 2003, and the monthly rent thereunder is$1,125.00 VIP.[13] The Lease contains the following provisions at clause 7 thereof:"LESSEE’S RIGHTS TO RENEW LEASE[a] The Lessee may, by notice in writing to the Lessor at least three (3) months beforethe expiration of the term hereby created, provided that at that time there is noexisting breach or non-observance of any of the covenants on the part of the Lesseehereinbefore contained, require the Lessor to Grant the Lessee a lease of the demisedpremises for a further three (3) years from the expiration of the term of this presentLease at a rental to be mutually agreed upon between the parties [and failingagreement, to be fixed by arbitration as provided herein] and otherwise containingthe like covenants and provisos as are herein contained, this covenant for a furtherrenewal excluded.[b] If the Lessee fails to provide notice of its intention to renew the lease as providedfor in clause 7[a], then it is mutually agreed by the parties that the lease will beautomatically renewed for a further term of three (3) years on the same terms andconditions as provided for herein."[the emphasis is the Court’s][14] Exhibit 2 is copy of letter dated May 20, 2003 from the landlord to the tenant,stating as follows:"Your lease of 30th March 2000 has now expired and under the terms of the leaseagreement clause 7(a) you were to give us 3 months notice of your intention to renew.It appears you do not wish to renew; therefore could you please confirm this within 7days."[15] Exhibit 6 is a copy of letter dated August 27, 2004 from James M Ah Koy, GroupExecutive Chairman of the Accused, to the tenant stating as follows:"1. You have been occupying those premises without a lease for over 16 months at theold rate, and you did not bother to renew the lease because it was to your advantage,despite the fact that you were advised months before your lease expired. Is that how aChristian brother should behave? I let you remain precisely because I am a Christian.2. So in fact you don’t have a lease because you let it lapse 16 months previously atthe time we signed a new lease.

3. It was only when I told you that you don’t have a lease and that we wanted tooccupy the space ourselves for an office, that you begged me to stay. It was myChristian consideration for you that allowed you to stay and to protect you, I insistedthat you take out a new lease because you didn’t have a lease at the time.4. In cases where no lease exist, as such in your case, then negotiation for a new leaseand its rental do not come within the bailiwick of the Prices and Income Board.5. Your lease is considered an entirely new lease."[16] Exhibit 4 is the Lease Agreement dated 14th July 2004 between landlord andtenant, under which the tenant is required to pay monthly rent of $1,866.67 plus VAT.[17] Exhibit 8 is a letter dated 19th April 2005 from the PIB to the landlord, referringto the landlord’s application notifying the PIB of proposed increase in rental, andinforming the landlord that the PIB had made an order restricting the rental.The Landlord’s Defence[18] The Accused as landlord has denied that it was required to give 12 week’s noticeof rent increase under Clause 2 of the Counter-Inflation (Notification of ProposedIncrease in Rent) Order 1996 (Legal Notice 63/96) prior to increasing the rent on thegrounds that it entered into an entirely new lease with the tenant that did not constitutea continued letting of the premises within the meaning of the said Order and said Act.The Counter-Inflation Act[19] The Counter-Inflation (Notification of Proposed Increase in Rent) Order 1996(Legal Notice 63/96) requires that at least 12 weeks’ written notice be given to PIB ofany proposed increase in any rent in respect of the letting or continued letting of anypremises to any person under any tenancy to which the Counter-Inflation Act applies.[20] Sections 12 and 13 of the said Act give the PIB broad powers to restrict increasesof rent.[21] The Act does not define "letting" or "continued letting" or "tenancy".[22] The Prosecution cited Surend Pal Nandan v Prices and Income Board, 29 FLR159 (Court of Appeal) in support of its case in its submissions.[23] In that case the Court of Appeal had dismissed a charge under paragraph 2 ofthe Counter-Inflation Act because the rent alleged to have been increased was under a

tenancy that expired prior to the effective date of the relevant Order. The premiseswere not let again until some six years later when a new tenancy commenced with adifferent tenant. The Court of Appeal held that the relevant Order did not haveretrospective effect.[24] The Court of Appeal clarified the application of the Counter- Inflation Act atp.162 as follows:"The intention of the act and the orders made under it, is clear. Existing rents,payable at the date of the order, are "frozen". If there is no such rent then payable buta tenancy is thereafter created, that rent is "frozen". Such rents will be referred to as"base rents". The orders do not, by reason of what we have earlier said, haveretrospective effect. They control as on and from the date when promulgated, onlybase rents, and of course, any permitted increase thereof. Any subsequent increase ofa base rent is an offence unless the requisite notice has been given."[the emphasis is the Court’s][25] Here the relevant Order is the Counter-Inflation (Notification of ProposedIncrease in Rent) Order 1996 (Legal Notice 63/96), which would have come intoeffect prior to the tenant’s first Lease dated 30th March 2000.[26] The case of Surend Pal Nandan v Prices and Income Board [supra] was followedby the Magistrates Court in PIB v Narayan, [2007] FJMC25, Criminal Case No. 1158of 2006 (30 August 2007).[27] The 1996 Order was applied in that case to a landlord who let premises to a newtenant at a rental higher than that charged to the previous tenant. The Court found thatthe letting to the new tenant at a higher rental did require the 12 weeks’ notice to PIBof rent increase.[28] The Court notes that the decision of the High Court in Ambika Prasad Sharma v.P.I.B. Suva Cr. App. 92/76 was apparently overruled by the Fiji Court of Appeal. SeeChand v Sharma, [1979] FJSC 70, High Court of Fiji Action No. 212 of 1978 (12October 1979)[29] The Court has no information as to the letting of the premises at 25 GladstoneRoad prior to 1 April, 2000, but on that date they were let to I. Naiveli & Co.,Chartered Accountants, at a rent of $1,125.00 per month VIP, per Lease Agreementdated 30th March 2000.

[30] Base rent for those premises was therefore set by the Lease Agreement dated30th March 2000 at $1,125.00 per month VIP.[31] Any increase in the base rent for those premises, whether for the same tenant or anew tenant, required prior notice to PIB according to the Court of Appeal’s decisionin Surend Pal Nandan v Prices and Income Board, [supra].[32] The Accused has admitted that it did not file the required notice prior to the saidrent increase in paragraph 6.3 of the Closing Submissions for the Accused.[33] It relies solely on the expiry of one Lease Agreement and the effluxion of timebefore the signing of a new Lease Agreement with the same tenant to support itscontention that there was an entirely new letting, as distinguished from a currentletting or continued letting.[34] The weakness in the Accused’s defence is that clause 2 of the said Order refers to"letting" and "continued letting", therefore an "entirely new letting" as alleged by theAccused is caught by the terms of the said Order as a "letting".[35] Further, the tenant remained in those premises after the expiry of the first LeaseAgreement until the execution of the second Lease Agreement.[36] This holding over was permitted under clause 7 (b) of the said Lease Agreement,which provided for automatic renewal for a further term of 3 years on the same termsand conditions if the tenant failed to give notice to renew.[37] The argument that there was no letting or continued letting between the twoLease Agreements appears disingenuous to this Court.[38] It is not necessary to have a written lease agreement to have a tenancy or aletting.[39] Halsbury’s Laws of England, Fourth Edition, Volume 27(1), describes a tenancyas follows in paragraph 2 thereof:"Tenancy by contract. A contract of tenancy may be created by writing or orally byany words which express the intention of entering into legal relations and which grantexclusive possession for a fixed or periodic term, or by conduct."[40] Lease, however, is defined in paragraph 73 as follows:

"Leases. An instrument in proper form by which the conditions of a contract of lettingare finally ascertained, and which is intended to vest the right of exclusive possessionin the tenant, either at once, if the term is to commence immediately, or at a futuredate, if the term is to commence subsequently, is a lease which takes effect from thedate fixed for the commencement of the term without the necessity of actual entry bythe tenant."[41] Clearly there are other forms of tenancies than leases.[42] Mr Ah Koy admitted in his own letter to the tenant that the tenant continued tooccupy those premises for 16 months at the old rent rate after the Lease Agreementdated 30th March 2000 expired [Exhibit 6, para 1].[43] I. Naiveli & Co. may not have had a written Lease Agreement at that time, butthey certainly occupied those same premises as a tenant of the Accused for those 16months.[44] The landlord cannot avoid the provisions of the said Order simply by waitingseveral months between the expiry of one written lease and the execution of a furtherlease with the same tenant for the same premises.[45] Further, the landlord has not given any authority for its position that an entirelynew lease of the premises is not subject to the Act.[46] The Order applies to "letting" as well as continued letting, and the second LeaseAgreement was a letting of the premises. Since there was a base rent established bythe prior Lease during the term of the Order, the Court finds that the second LeaseAgreement is subject to the Order, and that the Accused failed to comply with therequirement of 12 week’s written notice to PIB of the rent increase under clause 2 ofthe said Order.[47] The Court therefore finds that the Accused is guilty as charged of the offence offailing to give twelve weeks written notice to the Prices and Income Board for theProposed Increase in Rent contrary to clause 2 of the Counter-Inflation (Notificationof Proposed Increase in Rent) Order 1996 (Legal Notice 63/96) and sections 30(1) and32 of the Counter-Inflation Act.Dated this 20th day of July, 2009

Mary L MuirRESIDENT MAGISTRATESUVA

Prices and Incomes Board (PIB) v Prasad [2009] FJMC 17;Criminal Case 85.2009 (9 September 2009)IN THE FIRST CLASS MAGISTRATE’S COURTAT NAUSORIFIJI ISLANDSCriminal Case No: 85 of 2009PRICES & INCOMES BOARD (PIB)VVINOD PRASAD (F/N DAYA RAM)Before: Chaitanya LakshmanResident MagistrateFor Prosecution: Mr Adesh KumarAccused: PresentFor Accused: Mr. S KumarRULING ON NO CASE TO ANSWERIntroductionThe accused is charged (statement of offence) by the PIB for: "Failing to keep to thesatisfaction of the Board such records: including letting agreement as it is customaryand proper for the letting or continued letting of the said premises to which the Actapplies. Contrary to Paragraph 4 of the Counter-Inflation (Notification of proposedincrease in rent) Order Legal Notice 63 of 1996 and Section 30 (1) and 32 of theCounter Inflation Act, Cap 73."The particulars of the offence stated by PIB in the charge is that: "Vinod Prasad (f/nDaya Ram) did on the 15th day of August 2008 at Nausori in the Central EasternDivision being the Landlord of a residential premises failed to keep to the satisfactionof the Board such records including letting agreement in respect of his tenant Are Sirias it is customary and proper in respect of the letting or continued letting of the saidpremises under any tenancy to which the Act applies."

The hearing for the case took place on 10th August 2009. The Prosecution called 3witnesses. At the close of the prosecution case the Counsel for the accused submittedthat there was no case to answer. The prosecution for its part stated that there was caseto answer.The Law on No Case to AnswerSection 210 of the Criminal Procedure Code provides that: "if at the close of theevidence in support of the charge it appears to the Court that a case is not made outagainst the accused person sufficiently to require him to make a defence, the Courtshall dismiss the case and shall forthwith acquit the accused"In 1962, a Practice Note directed that in criminal cases:"A submission that there is no case to answer may properly be made and upheld (a)when there has been no evidence to prove an essential element in the alleged offence;(b) when the evidence adduced by the prosecution has been so discredited as the resultof cross-examination or is so manifestly unreliable that no reasonable tribunal couldsafely convict on it. Apart from these two situations a tribunal should not in general becalled upon to reach a decision as to conviction or acquittal until the whole of theevidence which either side wishes to tender has been placed before it. If however, asubmission is made that there is no case to answer, the decision should depend not somuch on whether the adjudicating tribunal (if compelled to do so) would at that stageconvict or acquit but on whether the evidence is such that a reasonable tribunal mightconvict. If a reasonable tribunal might convict on the evidence so far laid before it,there is a case to answer." ( [1962] 1 All ER 448).The LawThe accused is charged with the offence contrary to paragraph 4 of the Counter-Inflation (Notification of Proposed Increase in rent) Order, 1996 [Legal Notice No.63] and section 30 (1) and 32 of the Counter-Inflation Act (cap 73).Paragraph 4 of the Counter-Inflation (Notification of Proposed Increase in rent) Order,1996 [Legal Notice No. 63] dealing with Records provides that "any person or classof persons (including the State) shall keep to the satisfaction of the Board suchrecords including letting agreements and or receipts as are customary and proper inrespect of the letting or continued letting of the said premises under any Tenancy towhich the Act applies."

Section 30 (1) and 32 of the Counter-Inflation Act (Cap 73) respectively provide asfollows: "a person who contravenes or fails to comply with any of the provisions ofthis Act or of any order, notice or requirement lawfully made or given thereundershall be guilty of an offence." and "every person who commits an offence under thisAct shall be liable on conviction to a fine not exceeding $2000.00".Paragraph 4 of the Counter-Inflation (Notification of Proposed Increase in rent) Order,1996 [Legal Notice No. 63] was included in addition to Section 25 of the Counter-Inflation Act, which provides that: "(1) every trader shall keep to the satisfaction ofthe Board such records and accounts, including stock and costing records, as arecustomary and proper in the type of business carried on by him, (2) The Board may,by notice in writing, direct any trader to keep such other records and accounts as arespecified in the notice."The elements of the offence as per the charge laid by the ProsecutionThe elements of the offence that the prosecution needed to prove in order for it toprove the charge it laid against the accused was as follows:1. That it was Vinod Prasad, [identity of accused]2. who on the 15th day of August 2008, [date of offence]3. being a landlord of a residential premises at Nausori, [ownership of premises by theaccused]4. failed to keep to the satisfaction of the Prices and Incomes Board such records,including letting agreements, [accused failed to provide letting agreement]5. with respect of his tenant, Are Siri. [to the complainant]The elements of the offence as required by law1. an accused [identity of the accused]2. on a certain date [date of offence]3. being a land lord of a premises at Nausori [ownership of premises by the accused]6. failed to keep to the satisfaction of the Prices and Incomes Board such records,including letting agreements and or receipts, [accused failed to provide lettingagreement and or receipts]4. with respect to his tenant [to the complainant]

The EvidenceThe Complainant to the Board, Are Siri (the tenant) (PW-1) was the 1st prosecutionwitness. In his evidence in chief this witness positively identified the accused and toldthe Court that on 15th August 2008 he rented the house of the accused. This witnesstendered a receipt to the court for the sum of $150.00 (exhibit 1) which he said wasissued to him by the accused. He also told the Court that he had no written lettingagreement with the accused but a verbal one.In cross examination PW-1 told the Court that he had a rent receipt and took the rentreceipt as rent paid for 1 month. PW-1 also told the court that the agreement he hadwith the accused was a month to month agreement.The 2nd Prosecution witness was Mr Seru Lagilagi (PW-2) an Inspector of PIB (whotold the Court his role was to police the Counter-Inflation Act and its regulations).This witness caution interviewed the accused. The accused spoke in Hindi in theinterview. The caution interview is recorded in English by PW-2. According to PW-2he questioned the accused in English this was translated by an Indian officeraccompanying him. This officer according to PW-2 could speak in hindi, but couldnot write in Hindi.The tendering of the caution interview of the accused was not objected to by hisCounsel. However, his counsel in his cross examination drew out the evidence that theprosecution did not properly interview the accused. The Court wishes to express itsconcern that basic rules and procedures have not been adhered to in interviewing theaccused who spoke in vernacular (Hindi). The interview should have been recorded invernacular as the accused understood vernacular. The questions should have been putto the accused in Hindi and the responses recorded in Hindi. The recorded questionsand the responses of the accused should then have been translated into English and notin the manner as it was carried out by the two officers of PIB. The mode ofquestioning and recording of responses is not an acceptable procedure and the PIBofficers are to refrain from conducting caution interviews in such a manner.PW-2 in cross examination told the court that Para 4 of the Counter-Inflation(Notification of Proposed Increase in rent) Order, 1996 [Legal Notice No. 63] to himmeant that every landlord should provide tenancy agreement and receipt whether thereis an increase or not.The 3rd Prosecution witness was Selvin Ram (PW-3) a PIB Inspector. This witnesstold the Court that he accompanied PW-3 to investigate the complaint against the

accused and was present when the caution interview was conducted by PW-2. In hisevidence he told the court that the accused admitted that he failed to provide writtenletting agreement.AnalysisThis Court is mindful of Section 210 of the CPC.The Prosecution case focuses on the failure of the accused to keep records of a lettingagreement. The prosecution acknowledges that the accused issued a receipt to thecomplainant, his tenant. The prosecution does not agree that the accused by issuing areceipt to his tenant is in compliance of the law. This is the reason the Court feels theycharged him for breaching the law.The Court feels that the confusion on the part of the prosecution is largely due itsinterpretation of the law. The prosecution has charged the accused for failing to keeprecords of a letting agreement. The law provides that a landlord "shall keep to thesatisfaction of the Board such records including letting agreements and or receipts".The defence argues that the accused provided a receipt."and/or" - in the lawThe expression "and/or" has been in use in business documents for at least a centuryand half. Its meaning was discussed in Cuthbert v. Cummings [1855] EngR 206;(1855) 10 Exch 809, 156 ER 668. Viscount Simon in Bonitto v. Fuerst Bros [1944]AC 75 at 82, in discussing the confusion in the pleadings, spoke of "the repeated useof that bastard conjunction ‘and/or’ which has, I fear, become the commercial court’scontribution to basic English".In Cuthbert v. Cummings where a decision on a contract "to load a full andcomplete cargo of sugar, molasses, and/or other lawful produce" was requiredAlderson B held that "the parties were either (1) to load a full and complete cargo ofsugar and molasses and other lawful produce or, (2) a full and complete cargo of sugarand molasses, or (3) a full and complete cargo of other lawful produce. This impliedthat a full and complete cargo of sugar alone or molasses alone would not havesatisfied the contractual obligation."In Gurney v. Grimer (1932) 38 Comm Cas 7 at 13, Scrutton LJ considered theordinary business meaning of "and/or", he stated that "there is really a clearunderstanding of what the words "and/or" mean. To take one of the simplest cases andan obvious case, where there is a charter party by which a ship is to proceed to

Rotterdam and/or Antwerp at charterers option it means one of three things: thecharterer may either send the vessel to Rotterdam alone or he may send her toAntwerp alone, or he may send her to Rotterdam and Antwerp."The law (Paragraph 4 of the Counter-Inflation (Notification of Proposed Increase inrent) Order, 1996 [Legal Notice No. 63]) the accused is charged for breaching and incontention has been mentioned earlier and for ease of reference is being re-cited: "anyperson or class of persons (including the State) shall keep to the satisfaction of theBoard such records including letting agreements and or receipts as are customary andproper in respect of the letting or continued letting of the said premises under anyTenancy to which the Act applies."This Court interprets that this law requires any person or class of persons (includingthe State) to keep to the satisfaction of the Board such records including: either (1)letting agreements and receipts, or (2) letting agreements, or (3) receipts.The Court is of the view that if what the prosecution perceives is correct the drafterswould simply have put the law as reading "... such records including lettingagreements and receipts as are customary and proper in respect of the letting orcontinued letting...". If it was drafted as such the landlords would be required toprovide both a letting agreement and a receipt. The law as it currently stands providesthe landlord 3 options for the records that he is to keep, either 1) letting agreementsand receipts, or (2) letting agreements alone, or (3) receipts alone.According to the prosecution the accused provided the tenant (the complainant)receipts. The accused had complied with the law. The receipt in this case is a record ofthe letting or continued letting of the premises.In passing the Court notes that the complainant sought refuge of the Board whenthings turned ‘sour’ with his landlord. In the caution interview the Board put theallegation to the accused that he did not issue a receipt for the rental paid by the tenantand that he did not have a tenancy agreement. The accused stated in the interview thathe issued receipts and he did not have an agreement. During the hearing theProsecution on behalf of the Board tendered as evidence a receipt given to thecomplainant by the accused. Why would Board in the caution interview allege that theaccused did not issue a receipt? The only inference this Court can draw is that thecomplainant might have told the Board that the accused was not issuing him receiptsfor his tenancy and based on that the accused was asked that he was not issuingreceipts to the complainant. The Courts leaves it for the Board to enquire what thecomplainant told them.

In light of the observations that this Court made it seeks that the Board be vigilant inits statutory role and that its officers comply with the procedures and rules for cautioninterviews. That investigation is properly conducted and people are only charged forbreaching the law.The Court does not find that the accused has a case to answer. The case is dismissed.28 days to appeal.Chaitanya LakshmanResident MagistrateNAUSORI09/09/09

Prices and Income Board v Nair [2009] FJMC 8; CriminalCase 2095.2007 (13 October 2009)IN THE RESIDENT MAGISTRATES COURTCENTRAL DIVISION, SUVACriminal Case No. 2095 of 2007BETWEEN:PRICES AND INCOME BOARDCOMPLAINANTAND:KRISHNA NAIR s/o Sami Trading As Urban Dairy ShopACCUSEDProsecution: Mr KumarAccused: in personDate of Hearing: 21 July 2008, 23 September 2008 & 30 July 2009Date of Judgment: 13 October 2009JUDGMENT[1] The Complainant, the Prices and Income Board [ hereinafter referred to as "PIB"or the "Board"], has charged the Accused, Krishna Nair (father’s name Sami) tradingas Urban Dairy Shop with two offences under the Counter-Inflation Act being that theAccused, on 28 September 2007 (i) failed to cause certain fixed price controlled goodsnamely 13 packets of 375g FMF breakfast crackers to be legibly and conspicuouslymarked with the maximum retail price for the information of the public contrary toparagraph 6(a) of the Counter-Inflation (Price Control)(Foodstuffs)(No 17) Order2007 and Sections 30(1) and 32 of theCounter-Inflation Act and (ii) had for sale byretail certain percentage controlled goods at an excessive price namely 19 packets of85g Maggi noodles at $0.45 per packet instead of $0.40 per packet the maximumcalculated price such price in excess of $0.05 per packet and 16 tins of 170g Sunbelltuna flakes at $0.90 per tin instead of $0.85 per tin the maximum calculated price suchprice in excess of $0.05 per tin, contrary to paragraph 9(a) of the Counter-Inflation

(Price Control)(Percentage Control of Foodstuffs and certain Household Products)(No 15) Order 2007 and Sections 30(1) and 32 of the Counter-Inflation Act Cap 73.[2] Originally there were three counts against the Accused, but the first count waswithdrawn by the Complainant on 21st July 2008, leaving only the second and thirdcounts to be heard.[3] The Accused has not been represented by legal counsel but has representedhimself in these proceedings.[4] This matter first came for hearing before Magistrate J Waqaivolavola on 21st July2008. The Complainant called one of its witnesses to give evidence, but its secondwitness was not present and the matter was adjourned to 29 July 2008 for continuationof hearing.[5] The hearing did not proceed on 29 July 2008, it was adjourned to 23 September2008 at which time the Complainant’s second witness gave evidence.[6] The matter was then adjourned to 7 November 2008 for the Court to rule if therewas a case to answer. On that date the Court held that the Complainant had proved thecharges on a prima facie basis, and adjourned the continuation of the hearing to 24March 2009 at the request of the Accused.[7] On 24 March 2009 there was no water in Government Buildings and the matterwas adjourned to 29 April 2009.[8] Mr Wagaivolavola’s appointment as a Resident Magistrate was revoked on 10thApril 2009 by the Revocation of Judicial Appointments Decree 2009.[9] The matter was assigned to this Court under s 47 of the Magistrates Court Act,which provides that where a Magistrate has ceased to act as magistrate, proceedingsmay be heard, determined or carried to completion by his or her successor. Section196 of the Criminal Procedure Code allows a magistrate to conclude criminalproceedings begun by another magistrate.[10] This matter was given a date of 30 July 2009 for hearing. On that date this Courtinformed the Accused that, pursuant to s 196 of the Criminal Procedure Code, he hadthe right to require that the Complainant’s witnesses be resummoned before this Courtto give evidence or he could agree to this Court continuing the hearing. The Accusedchose to have this Court continue the hearing without resummoning theComplainant’s witnesses.

The Complainant’s Evidence[11] Evidence was given for the Prosecution by two inspectors with the Prices andIncome Board, Liliveleti Savou [PW1] and Muneshwar Naicker [PW2], and thefollowing exhibits were tendered:Exhibit 1 Inspector ReportExhibit 2 Tax Invoice No. 29737Exhibit 3 Tax Invoice No. 29738Exhibit 4 1 packet FMF BiscuitExhibit 5 Counter-Inflation (Price Control)(Foodstuffs) (No. 17) Order 2007[hereinafter "Order No. 17"]Exhibit 6 Counter-Inflation (Price Control)(Percentage Control of Foodstuffs andCertain Household Products)(No. 15) Order 2007 [hereinafter "Order No. 15"].[12] The evidence of Inspector Liliveleti Savou is that he went to the Accused’s storeat 35 Viria Road to investigate a complaint lodged by a member of the public.[13] He initially spoke to the wife of the Accused.[14] Whilst at the shop the Accused arrived and the Inspector interviewed him.[15] PW1 said the Accused was selling some fixed control items at a price above theirmaximum retail price.[16] He also said the Accused wasn’t marking their retail price. He bought a packet ofbiscuits for $1.00 [Exhibit 4].[17] On cross examination PW1 was shown a price list and he said he did not see thatprice list. He said he had looked for one but not seen anything like the notice shown tohim.[18] Inspector Muneshwar Prasad [PW2] confirmed that he had accompaniedInspector Savou to the Accused’s shop at Viria Road to attend to a complaint.[19] He said during inspection it was noted that the trader was selling packets of 375gFMF biscuits for $1.00 without its maximum price marked on the packet.[20] PW2 admitted that previously the mark up was 13% but said it was 10% on the

day the Accused was charged.[21] He said the price for a tin of tuna was obtained from the Accused’s wife verbally.The Accused’s Evidence[22] The Accused, Krishna Nair, gave evidence on his own behalf.[23] He said he was now retired, but he had established his business Urban DairyShop in 1999.[24] He said that his shop was visited by PIB inspectors three times per year to checkretail mark-ups and price displays.[25] He alleged that there had been no prior breaches of the Counter-InflationAct found by PIB.[26] On 28th September 2007 he had attended a graduation ceremony at University ofSouth Pacific.[27] When he returned to his shop, he noticed two PIB officers in front of the shop.[28] He said he used the back entrance to enter the shop. In the shop he noticed thatPW2 was sitting in the van parked about 12 meters away.[29] He said they were about to leave as they had issued a Price Demand Notice.[30] The Notice was tendered as Defence Exhibit 1. It is dated 28th September 2007and requires invoices for four items, being Maggi noodles, Sun Bell Tuna Flakes,Brunswick Mackerel in tomato sauce and Brunswick Mackerel in oil. It is signed byManorma Nair.[31] The Accused stated in evidence that prices could be marked or displayed, andthat he didn’t have to mark individual packets.[32] The Accused also said that he operated a small canteen, where people buy fromoutside. He said the price list was stuck on the right hand side of the wall, that therewas a board above the counter and it was stuck to the board.[33] The Accused tendered a handwritten price list as Defence Exhibit 2, consisting ofone page of white paper marked "Price List" at the top, hand ruled, with the name of

items and their prices marked in felt pen on each line, and reinforced with one sheetbrown paper taped to the back.[34] This Price List, which is not dated, shows Maggi & Chow noodles are 40c andbreakfast crackers are $1.09.[35] The Accused also raised selective enforcement, or as he referred to it, doublestandard, as a defence, stating that supermarkets do not mark individual packets.[36] As evidence of this the Accused tendered two items purchased from Cost-U-Lessand the receipt for the same as Defence Exhibits 3a, 3b and 3c.[37] The Accused also admitted that his wife may have given the wrong price for tunabased on the 13% mark-up in effect prior to 10th September 2007.The Counter-Inflation Act[38] The Counter-Inflation Act, Cap 73 of the Laws of Fiji, makes provision forprescribing the maximum price of goods and services by Order in Part IV thereof.[39] The Order may prescribe the maximum price or the manner in which themaximum price is ascertained.[40] Section 21 (a) of the Counter-Inflation Act prohibits any person from selling orbuying goods at a greater price than the maximum price fixed and declared by theOrder.[41] Section 23(1) of the said Act requires a trader having goods for sale in respect ofwhich an Order has been made to display a list of the maximum prices for such goodsin a prominent position on their premises.[42] Section 23(3) of the said Act allows the Board to require specified goods to bemarked with the price.[43] Section 30(1) of the said Act provides as follows:"A person who contravenes or fails to comply with any of the provisions of this Act orof any order, notice or requirement lawfully made or given thereunder shall be guiltyof an offence."

[44] The Prosecution provided copies of the Counter-Inflation (PriceControl)(Percentage Control of Foodstuffs and Certain Household Products)(No. 15)Order 2007 [Exhibit 6] and the Counter-Inflati9on (Price Control)(Foodstuffs) (No.17) Order 2007 [Exhibit 5] to the Court.Selling Price Controlled Goods at Excessive Price[45] The Accused is charged in Count Three with having for sale certain percentagecontrolled goods at an excessive price, being 19 packets of 85g Maggi noodles at$0.45 per packet instead of $0.40 per packet and 16 tins of 170g Sunbell tuna flakes at$0.90 per tin instead of $0.85 per tin, contrary to paragraph 9(a) of Order No. 15.[46] Paragraph 9(a) of Order No. 15 states as follows:"No person may –(a) sell by retail or offer for sale by retail any price-controlled item at a price inexcess of that marked on such item, such maximum retail price having been calculatedin the manner prescribed in clauses 6 and 7; or . . . "[47] Clause 6 provides that the maximum retail price is the sum of the into-store costfor pricing of goods to the retailer plus the mark-up per the retail percentageprescribed in Schedule 1.[48] Schedule 1 prescribes the retail percentage, which is 10% for item 7, canned fish,and item 13, instant noodles.[49] The Invoices provided by the Accused to the Board show that he paid $37.20 fora carton of Sunbell Tuna containing 48 tins, and $39.00 for 2 cartons of Maggi ChowNoodles containing 60 packets per carton.[50] On the basis of those invoices, the Board determined that the maximum retailprice for the tin of tuna was $0.85 and that the maximum retail price for the Magginoodles was $0.40 at the time of the alleged offence. The Accused did not challengethat computation.[51] These are the same prices noted on Defence Exhibit 1, the PIB Notice requestingsuppliers invoices. That Notice was signed by the Accused’s wife.[52] Defence Exhibit 2, the Price List, has Maggi Chow Noodles at 40c, but there is

no date on that List and PW1 said he didn’t see any list like that.[53] If there was a List posted showing that price of $0.40, then why did theAccused’s wife sign the PIB Notice agreeing to a higher price?[54] The Accused suggested in his evidence that his wife may have mistakenly quoteda price of $0.90 for the tin of tuna flakes to the inspectors. That indirectly supports theComplainant’s case.[55] The Court finds that the Complainant has met its onus of proof and hasestablished beyond reasonable doubt that the Accused was selling the Sunbell TunaFlakes and Maggi Noodles at a price in excess of the maximum retail price on 27September 2007.[56] In the case of Suva Co-Operative Association Limited v Prices and IncomeBoard, 21 FLR 1 [1975], the High Court held that the offence of selling at a price inexcess of maximum retail price is an offence of strict liability.[57] The Court finds that the Accused is guilty as charged of the offence of having forsale by retail certain percentage controlled goods at an excessive price namely 19packets of 85g Maggi noodles at $0.45 per packet instead of $0.40 per packet themaximum calculated price such price in excess of $0.05 per packet and 16 tins of170g Sunbell tuna flakes at $0.90 per tin instead of $0.85 per tin the maximumcalculated price such price in excess of $0.05 per tin, contrary to paragraph 9(a) of theCounter-Inflation (Price Control)(Percentage Control of Foodstuffs and certainHousehold Products) (No 15) Order 2007 and Sections 30(1) and 32 of the Counter-Inflation Act Cap 73.Marking of Price Controlled Goods[58] The Accused is also charged with failing to mark individual packets of FMFbreakfast crackers with their maximum retail price.[59] Paragraph 6 of the Counter-Inflation (Price Control) (Foodstuffs) (No. 17) Order2007 provides as follows:"(a) Any person having for sale by retail any of the goods specified in any Schedule tothis Order must cause the same to be legibly and conspicuously marked with themaximum retail price for the information of the public.(b) In the case of any retailer of butter (local) and bread, compliance with paragraph(a) may be effected by the display, in a prominent position, of a legible and

conspicuous notice clearly indicating the goods to which the notice relates and themaximum retail price of the goods.(c) If any of the goods except butter (local) and bread specified in any of theSchedules are not displayed for sale in an individual packet or container, a retailercomplies with this Order if he or she displays in a prominent position, a legible andconspicuous notice clearly indicating those goods to which the notice relates and themaximum retail price of the goods."[60] Breakfast crackers are found in Item 4 of Schedule 1, which applies to the city ofSuva.[61] The defence raised by the Accused is that he operates a canteen and he had aprice list conspicuously posted on the wall. He said he was not required toindividually mark the breakfast crackers.[62] Paragraph 6(c) of Order 17 provides an exception to the requirement ofindividual marking of packets if the retailer does not display individual packets forsale.[63] The evidence given by PW1 was that he purchased a packet of FMF breakfastcrackers from the Accused’s wife, and the price was not marked on the packet. Henever said that the breakfast crackers were on display at the canteen.[64] The Accused, on the other hand, gave evidence that his store is a canteen and hiscustomers buy from outside. He said there was a counter with a price list on a boardabove the counter.[65] The onus of proof is on the Prosecution to show that the Accused violatedparagraph 6(a) of Order No. 17.[66] If the Accused was not displaying breakfast crackers for sale in an individualpacket or container, he was not required to individually mark them but could insteaddisplay a notice with the maximum retail price.[67] While the Prosecution’s witnesses did not give any evidence whatsoever as towhether the Accused displayed the goods for sale, PW1 said very clearly that he neversaw any price list posted at the canteen. He told the Court that he had looked for anotice but didn’t see anything like the notice shown to him by the Accused.[68] In order to qualify for the exception from marking the individual packets, the

Accused was required to post a notice with the maximum retail prices. While theAccused said he had such a notice posted on a board above the counter, PW1 said hedid not see any such notice while PW2 said he got the price for the tin of tuna fromthe Accused’s wife verbally.[69] If there had been a price list posted, PW2 would not need to ask the Accused’swife for the price in the first place and the Accused’s wife would not have given PW2the wrong price.[70] The Court prefers the evidence of PW1 and PW2 on this point to the evidence ofthe Accused.[71] The Prosecution has met its onus of proof on this charge. There is sufficientevidence before this Court that the Accused did not qualify for the exception listed inparagraph 6(c) at the relevant time as there was no price list posted when theinspectors visited his shop. Therefore the Accused was not excused from marking theprice on the individual packets of breakfast crackers.[72] The Accused had admitted in his evidence that he did not mark the individualpackets of breakfast crackers, and the Court finds the Accused guilty as charged of theoffence of failing to cause certain fixed price controlled goods namely 13 packets of375g FMF breakfast crackers to be legibly and conspicuously marked with themaximum retail price for the information of the public contrary to paragraph 6(a) ofthe Counter-Inflation (Price Control)(Foodstuffs)(No 17) Order 2007 and Sections30(1) and 32 of the Counter-Inflation Act.DATED this 13th day of October, 2009.Mary L MuirRESIDENT MAGISTRATESUVA