| Fiji Islands - Suva United Vendors' Association v Suva City Council - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
ACTION NO. HBC0273 OF 1997
BETWEEN:
SUVA UNITED VENDORS' ASSOCIATION
Plaintiff
AND:
SUVA CITY COUNCIL
Defendant
J. Maharaj for the Plaintiff
R. Gopal for the Defendant p class=MsoNormal>Date of Hearing: 18th July 1997
Date of Judgment: 31st July 1997
JUDGMENT
The Plaintiff is a registered industrial association under the Industrial Associations Act Cap. 95. It represents the interests and welfare of all vendors, producers and fishmongers who use the Suva Market as their focal
point of business.
On the 13th of September 1995 in exercise of the powers conferred upon him by Section 122 (2) of the Local Government Act Cap. 125
the Acting Minister for Lands, Mineral Resources, Energy, Local Government and Environment Mr. I. Kubuabola approved an amendment
to the Suva Market By-Laws 1995 entitled Suva Market (Amendment) (No. 2) By-Laws the effect of which was to increase the charges
payable to the Council by stall-holders who sold their produce in the Suva Market.
The charges were to be increased in three one-yearly intervals beginning on the 3rd of July 1995, then on the 1st of July 1996 and
finally on the 1st of July 1997.
The highest increases applied to those vendors selling groceries, kava, tobacco and fresh fruits. To give two examples: the charge
per stall per day for grocery stalls was fixed at $2.72 on the 3rd of July 1995, $3.29 from the 1st of July 1996 and $3.85 from the
1st of July 1997.
The charges for stalls selling kava and tobacco were fixed at $3.08 from the 3rd of July 1995 increasing to $3.46 from the 1st of
July 1996 and $3.85 from the 1st of July 1997.
The charges for stalls selling fresh fruits on wooden stalls were fixed at $2.50 from the 3rd of July 1995 increasing to $3.18 on
the 1st of July 1996 and $3.85 from the 1st of July 1997.
The charges for concrete stalls selling such produce were increased from $2.72 from the 3rd of July 1995 to $3.29 from the 1st of
July 1996 and $3.85 from 1st of July 1997.
On the 19th of May 1997 the Plaintiff wrote to the Defendant requesting it to delay the increase in stall fee charges for a period
of one year from the 1st of July 1997.
On the 30th of June 1997 the Town Clerk of the Suva City Council replied to the Plaintiff by letter stating among other things that
the increased charges effective from 1st July 1997 were subject to an agreement signed by the Plaintiff in 1995 and that accordingly
the Defendant obtained approval of the Ministry to implement increases in stall fee charges in three phases namely 1st July 1995,
2nd July 1996 and 1st July 1997. The Town Clerk also informed the Plaintiff that the last increase had been incorporated in the Council's
current budget and that any deferment would affect the administration and operation of the Suva Municipal Market. Accordingly the
Council recommended that the request to delay the increase in charges for a further period of one year be not acceded to and that
the final phase be effective from 1st July 1997.
The Plaintiff alleges in an affidavit sworn by its President, Jone Waqa on the 15th of July 1997 that the Executive Committee of the
Plaintiff attempted on a few occasions to see the Town Clerk but were not allowed to by officers in the Council's Head Office.
This allegation is denied by the Council in an affidavit sworn by its Town Clerk and its Executive Officer by Joveci Tuinamuana on
the 18th of July 1997.
The Plaintiff alleges that because it was refused permission to see the Chief Executive members of the Plaintiff boycotted selling
at the market on Tuesday and Wednesday 1st and 2nd of July 1997.
Members of the Plaintiff resumed selling at the market on Thursday 3rd July 1997 because they said an agreement had been reached with
the Defendant whereby the charges would be deferred for three months from July 1997.
On 4th July 1997 the Defendant wrote to the President of the Plaintiff enclosing a copy of a letter dated the same day from the Minister
for Urban Development, Housing & Environment, whom I take to be the successor of the previous Minister, in which he informed
the Lord Mayor of Suva that he would not consent to deferment of the charges. I set out hereunder relevant parts of these two letters:
"RE: SUVA MARKET INCREASE IN CHARGES
The resolution of Suva City Council's Emergency Meeting of 2nd July 1997 on the above subject is acknowledged. After careful consideration,
I have decided that the status quo on the charges remain.
The increase in market charges over three-year period commencing in 1995 as published in Legal Notice 104 was in the best interest
of Vendors, Ratepayers and the Council. I, therefore, see no reason or justification in agreeing to any changes or deferment.
Yours faithfully
Sgd.
V. Cagimaivei
Minister for Urban Development, Housing and Environment"
The letter dated 4th July 1997 from the Town Clerk to the Plaintiff reads as follows:
"RE: DEFERMENT OF STALL CHARGES
With reference to my earlier letter of 3rd July 1997 and your fax of 3 July 1997, you are informed that the Minister as per copy of
his letter attached has declined to defer the increase in charges that came into effect from 1 July 1997.
Since Council's resolution conveyed to you was subject to the Minister's approval, and the approval has been declined the increased
charges remain effective from 1 July 1997.
Furthermore, your request to waive the charges for three days i.e. 30 June 1997, 1 July 1997 and 2 July 1997 is also declined.
By copy of this letter the Market Master is being informed to collect the increased charges and arrears.
Yours faithfully
Sgd.
J. Tuinamuana
Town Clerk/Chief Executive Officer"
The Plaintiff alleges and the Defendant denies that the Defendant reneged on its agreement concerning the stall charges and claims
that the signatories of the agreement with the Council had no locus standi.
The Defendant also denies allegations made by the Plaintiff that it has harassed or intimidated members of the Plaintiff following
their refusal to pay the new rates and further says that some market vendors are paying the new rates.
On Tuesday 15th July the Defendant advised all market vendors that only those who agreed to pay the new rate would be allowed into
the market to sell their produce.
As a result of the Defendant's insistence that the new rates be paid, on the 17th of July 1997 the Plaintiff issued a motion for an
injunction to restrain the Defendant from closing the market forcibly, removing vendors' wares and harassing and intimidating the
vendors until this Court resolves the dispute.
In his affidavit of the 18th of July the Town Clerk, Mr. Tuinamuana states that the Council advised the Plaintiff's Association that
if they were to pay the new rates and succeed in their action in this Court, the Defendant would refund all excesses of fees paid.
He alleges that the Plaintiff has rejected this offer.
I heard argument on the Motion for injunction on the 18th of July 1997.
Before referring to the submissions made on behalf of the parties it is desirable to state the law governing this matter.
The power of a Council to make by-laws prescribing forms, fees, matters and things permitted by the Local Government Act is contained
in Section 122 of the Act. Sub-section 2 of Section 122 reads:
"All by-laws made by a municipality under the provisions of this Act, or under the provisions of any other written law by virtue
of which the council is authorized to act, shall be of no effect until such by-laws have been approved by the Minister."
Sub-section 3 provides penalties for any person contravening the provision of any by-law made by a municipality.
I was informed by counsel representing the Plaintiff that the agreement concerning the increased charges was made by the predecessor
of the Plaintiff, the Loloma Farmers' Association and Suva Market Vendors' Association with the Council in 1995. The former Association
was represented before the Defendant by Mr. S. Matawalu. The Plaintiff alleges now that at the time its members objected to any increase
in charges for stalls at the market but I was informed by Mr. Maharaj that members of the present Association made no objection to
the proposed increases in 1995 and 1996 although they had been free to do so. It must be noted however that there is nothing in the
Local Government Act or the Suva Market By-Laws 1991 which requires the Council to consult with, let alone make any increased charges
for stalls in the market subject to the agreement of the market vendors. By-law 18, consistent with Section 122 of the Act makes
this clear. It reads:
"(1) The charges for the use of stall and other market facilities shall be in accordance with the rates prescribed by Council
resolution subject to the approval of the Minister and shall be payable in advance on demand by the Market Master or any attendant.
The Market Master or attendant shall at the time of receiving payment of any charges under this by-law issued a receipt therefor."
I accept the submission of counsel for the Defendant that any such consultation by the Defendant with representatives of vendors at
the market was purely a matter of courtesy and not of legal obligation.
It was then put to me by counsel for the Plaintiff that in refusing to defer implementation of the charges from 1st of July 1997 the
Minister was acting contrary to Section 129 of the Local Government Act. This reads:
"If, in the opinion of the Minister, the execution of any order or resolution by a council or the doing of anything which is
about to be done by or on behalf of a council is likely to cause serious injury or annoyance to the public, the Minister may, having
notified the council and given consideration to any representations made by it, by order published in the Gazette, suspend the execution
or prohibit the doing thereof and the council shall comply with such order."
Counsel argued that before the Minister was entitled to reject any resolution of the Council deferring the increased charges he at
first had to follow the procedure set out in Section 129 namely that he should have first notified the Council after consideration
of any representations made by it and then by order published in the Gazette, suspend the execution of such resolution.
I cannot accept this submission for reasons which I attempted to indicate during argument. These are that Section 129 is clearly intended
to apply only if the Minister is of the opinion that any order or resolution of a Council is likely to cause serious injury or annoyance
to the public. I fail to see how any resolution purporting to defer an increase in charges is likely to cause any injury, let alone
serious injury or annoyance to the public; rather the contrary.
Consequently I reject this submission that the Minister was obliged to follow the procedure set out in Section 129. On the facts of
this case the position in law is that the by-law passed in 1995 increasing the rates was approved by the then Minister and as such
is still in force as it has not been repealed. If the Minister were to disapprove any resolution of a Council deferring an increase
in charges, be they rates or otherwise, on the ground that such deferment would cause serious injury or annoyance to the public,
I am satisfied that such refusal would constitute Wednesbury unreasonableness and as such be a nullity.
I am further satisfied on the evidence before me that the resolution of the Council of 2nd July 1997 referred to in paragraph 9 of
Mr. Joveci Tuinamuana's affidavit that the charges be deferred for three months was made subject to the Minister's approval which
is clear from the letter of 3rd July 1997 from the Town Clerk to the Permanent Secretary of the Ministry of Housing, Urban Development
and Environment, annexure 'B' of the affidavit of Mr. Tuinamuana. Omitting formal parts that letter reads:
"SUVA (MARKET) (AMENDMENT) BY-LAWS 1997
As discussed with you this morning relating to the outcome of yesterday's Emergency Meeting of the Council, I attach a Draft Legal
Notice taking into account the resolution reached by the Council at that meeting.
I would be grateful if urgent attention is given by the Ministry on this matter as Council is anxious to implement the resolution
as soon as possible.
Yours faithfully
Sgd.
J. Tuinamuana
Town Clerk/Chief Executive Officer"
The Minister's predecessor had approved the 1995 by-law and consequently since that by-law has not been repealed it still binds the
Council and the Plaintiff.
Accordingly I consider that the Plaintiff has not established any grounds for the Court granting an injunction against the Defendant
and the motion for injunction must be dismissed.
Towards the end of his argument counsel for the Plaintiff made what I can only regard as an alternative submission based on Section
16(2) of the Suva Market By-Laws 1991. This sub-section states that the Market Master may remove any articles kept on a stall for
which no payment has been made at the risk of the owner of the articles and recover all dues and costs to the Council upon selling
the articles without the Council being held liable for any claim arising out of such sale.
It was argued that this by-law was ultra vires Section 9(1) of the 1990 Constitution of Fiji which says, so far as relevant here,
that no property of any description shall be compulsorily taken possession of unless authorised by a law that requires the acquiring
authority to give reasonable notice of its intention to take possession of such property.
It was argued that the alleged seizure of goods belonging to members of the Plaintiff by officers of the Council was therefore unconstitutional.
The Council denies any allegation of seizure of articles belonging to members of the Plaintiff and this clearly raises an issue of
fact which it would be wrong for me to consider here. The Court would first need to be satisfied after cross-examination of witnesses
that any such seizure took place before it went on to consider whether or not Section 9(1) of the Constitution applied. The submission
is therefore irrelevant to the motion presently before me.
Accordingly I order that the Plaintiff's motion for an injunction be dismissed. The Plaintiff must pay the Defendant's costs.
JOHN E. BYRNE
JUDGE
Legislation referred to in judgment:
Constitution of Fiji 1990.
Local Government Act Cap. 125.
Suva Market By-Laws 1991.
The following additional authority was referred to in argument:
LBC Nutshell - Administrative Law, Anne Ardagh.
Hbc0273j.97s
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