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Prices and Incomes Board (PIB) v Prasad [2009] FJMC 17; Criminal Case 85.2009 (9 September 2009)

IN THE FIRST CLASS MAGISTRATE’S COURT
AT NAUSORI
FIJI ISLANDS

Criminal Case No: 85 of 2009

PRICES & INCOMES BOARD (PIB)

V

VINOD PRASAD (F/N DAYA RAM)

Before: Chaitanya Lakshman
Resident Magistrate

For Prosecution: Mr Adesh Kumar
Accused: Present
For Accused: Mr. S Kumar

RULING ON NO CASE TO ANSWER

Introduction

The accused is charged (statement of offence) by the PIB for: "Failing to keep to the satisfaction of the Board such records: including letting agreement as it is customary and proper for the letting or continued letting of the said premises to which the Act applies. Contrary to Paragraph 4 of the Counter-Inflation (Notification of proposed increase in rent) Order Legal Notice 63 of 1996 and Section 30 (1) and 32 of the Counter Inflation Act, Cap 73."

The particulars of the offence stated by PIB in the charge is that: "Vinod Prasad (f/n Daya Ram) did on the 15th day of August 2008 at Nausori in the Central Eastern Division being the Landlord of a residential premises failed to keep to the satisfaction of the Board such records including letting agreement in respect of his tenant Are Siri as it is customary and proper in respect of the letting or continued letting of the said premises under any tenancy to which the Act applies."

The hearing for the case took place on 10th August 2009. The Prosecution called 3 witnesses. At the close of the prosecution case the Counsel for the accused submitted that there was no case to answer. The prosecution for its part stated that there was case to answer.

The Law on No Case to Answer

Section 210 of the Criminal Procedure Code provides that: "if at the close of the evidence in support of the charge it appears to the Court that a case is not made out against the accused person sufficiently to require him to make a defence, the Court shall 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 result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it. Apart from these two situations a tribunal should not in general be called upon to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If however, a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. 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 Law

The 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 class of persons (including the State) shall keep to the satisfaction of the Board such records including letting agreements and or receipts as are customary and proper in respect of the letting or continued letting of the said premises under any Tenancy to which the Act applies."

Section 30 (1) and 32 of the Counter-Inflation Act (Cap 73) respectively provide as follows: "a person who contravenes or fails to comply with any of the provisions of this Act or of any order, notice or requirement lawfully made or given thereunder shall be guilty of an offence." and "every person who commits an offence under this Act 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 of the Board such records and accounts, including stock and costing records, as are customary 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 are specified in the notice."

The elements of the offence as per the charge laid by the Prosecution

The elements of the offence that the prosecution needed to prove in order for it to prove 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 the accused]

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 law

1. 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 letting agreement and or receipts]

4. with respect to his tenant [to the complainant]

The Evidence

The Complainant to the Board, Are Siri (the tenant) (PW-1) was the 1st prosecution witness. In his evidence in chief this witness positively identified the accused and told the Court that on 15th August 2008 he rented the house of the accused. This witness tendered a receipt to the court for the sum of $150.00 (exhibit 1) which he said was issued to him by the accused. He also told the Court that he had no written letting agreement with the accused but a verbal one.

In cross examination PW-1 told the Court that he had a rent receipt and took the rent receipt as rent paid for 1 month. PW-1 also told the court that the agreement he had with the accused was a month to month agreement.

The 2nd Prosecution witness was Mr Seru Lagilagi (PW-2) an Inspector of PIB (who told 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 the interview. The caution interview is recorded in English by PW-2. According to PW-2 he questioned the accused in English this was translated by an Indian officer accompanying him. This officer according to PW-2 could speak in hindi, but could not write in Hindi.

The tendering of the caution interview of the accused was not objected to by his Counsel. However, his counsel in his cross examination drew out the evidence that the prosecution did not properly interview the accused. The Court wishes to express its concern that basic rules and procedures have not been adhered to in interviewing the accused who spoke in vernacular (Hindi). The interview should have been recorded in vernacular as the accused understood vernacular. The questions should have been put to the accused in Hindi and the responses recorded in Hindi. The recorded questions and the responses of the accused should then have been translated into English and not in the manner as it was carried out by the two officers of PIB. The mode of questioning and recording of responses is not an acceptable procedure and the PIB officers 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 him meant that every landlord should provide tenancy agreement and receipt whether there is an increase or not.

The 3rd Prosecution witness was Selvin Ram (PW-3) a PIB Inspector. This witness told 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 his evidence he told the court that the accused admitted that he failed to provide written letting agreement.

Analysis

This Court is mindful of Section 210 of the CPC.

The Prosecution case focuses on the failure of the accused to keep records of a letting agreement. The prosecution acknowledges that the accused issued a receipt to the complainant, his tenant. The prosecution does not agree that the accused by issuing a receipt to his tenant is in compliance of the law. This is the reason the Court feels they charged him for breaching the law.

The Court feels that the confusion on the part of the prosecution is largely due its interpretation of the law. The prosecution has charged the accused for failing to keep records of a letting agreement. The law provides that a landlord "shall keep to the satisfaction of the Board such records including letting agreements and or receipts". The defence argues that the accused provided a receipt.

"and/or" - in the law

The expression "and/or" has been in use in business documents for at least a century and 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 use of that bastard conjunction ‘and/or’ which has, I fear, become the commercial court’s contribution to basic English".

In Cuthbert v. Cummings where a decision on a contract "to load a full and complete cargo of sugar, molasses, and/or other lawful produce" was required Alderson B held that "the parties were either (1) to load a full and complete cargo of sugar and molasses and other lawful produce or, (2) a full and complete cargo of sugar and molasses, or (3) a full and complete cargo of other lawful produce. This implied that a full and complete cargo of sugar alone or molasses alone would not have satisfied the contractual obligation."

In Gurney v. Grimer (1932) 38 Comm Cas 7 at 13, Scrutton LJ considered the ordinary business meaning of "and/or", he stated that "there is really a clear understanding of what the words "and/or" mean. To take one of the simplest cases and an 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: the charterer may either send the vessel to Rotterdam alone or he may send her to Antwerp alone, or he may send her to Rotterdam and Antwerp."

The law (Paragraph 4 of the Counter-Inflation (Notification of Proposed Increase in rent) Order, 1996 [Legal Notice No. 63]) the accused is charged for breaching and in contention has been mentioned earlier and for ease of reference is being re-cited: "any person or class of persons (including the State) shall keep to the satisfaction of the Board such records including letting agreements and or receipts as are customary and proper in respect of the letting or continued letting of the said premises under any Tenancy to which the Act applies."

This Court interprets that this law requires any person or class of persons (including the 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 drafters would simply have put the law as reading "... such records including letting agreements and receipts as are customary and proper in respect of the letting or continued letting...". If it was drafted as such the landlords would be required to provide both a letting agreement and a receipt. The law as it currently stands provides the landlord 3 options for the records that he is to keep, either 1) letting agreements and 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 of the letting or continued letting of the premises.

In passing the Court notes that the complainant sought refuge of the Board when things turned ‘sour’ with his landlord. In the caution interview the Board put the allegation to the accused that he did not issue a receipt for the rental paid by the tenant and that he did not have a tenancy agreement. The accused stated in the interview that he issued receipts and he did not have an agreement. During the hearing the Prosecution on behalf of the Board tendered as evidence a receipt given to the complainant by the accused. Why would Board in the caution interview allege that the accused did not issue a receipt? The only inference this Court can draw is that the complainant might have told the Board that the accused was not issuing him receipts for his tenancy and based on that the accused was asked that he was not issuing receipts to the complainant. The Courts leaves it for the Board to enquire what the complainant told them.

In light of the observations that this Court made it seeks that the Board be vigilant in its statutory role and that its officers comply with the procedures and rules for caution interviews. That investigation is properly conducted and people are only charged for breaching the law.

The Court does not find that the accused has a case to answer. The case is dismissed.

28 days to appeal.

Chaitanya Lakshman
Resident Magistrate
NAUSORI

09/09/09