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Prices and Incomes Board v Food For Less (Fiji) Ltd [2010] FJMC 141; Criminal Case 1540 of 2008 (18 November 2010)

IN THE RESIDENT MAGISTRATE'S COURT
AT SUVA

Criminal Case No: 1540 of 2008

PRICES AND INCOMES BOARD

v.

FOOD FOR LESS (FIJI) LTD

For Prosecution: Mr. Raikanikoda (PIB)
Accused: Represented by Managing Director of the Accused Co.

JUDGMENT

1. Accused in this case was charged by the Prices and Incomes Board, for two counts namely:
   
   1. "Having for sale by retail certain percentage control goods namely 180 x 170g Skipper Tuna Flakes, 250 x 500g packets Rewa powdered full cream milk, 200 x 425g Ocean Queen mackerel in tomato sauce and failed to cause the same to be legibly and conspicuously marked with the maximum retail price for the information of the public contrary to legal notice 32 of 2008 paragraph 8 (1) of the Counter-Inflation (Price Control) Percentage Control of Foodstuffs and Certain Household (Products) No. 8 Order and section 30(1) and 32 of the Counter-Inflation Act, Cap 73".
      
   2. "Having for sale by retail certain fixed price control goods namely 140 x 375g FMF Breakfast Crackers without price markings" an offence contrary to paragraph 6 (a) of the Counter-Inflation (Price Control) (Percentage Control of Foodstuffs and certain Household Products) (No.8) Order 2008 and Section 30(1) and 32 of the Counter-Inflation Act Cap 73".
      
2. Accused company's stance was that they have very clearly displayed the prices of the goods mentioned in the charges. Through witnesses accused established that prices had been displayed prominently avoiding any confusion.
   
3. However, through the evidence accused failed to prove that each and every item mentioned in charges had been separately marked with the maximum retail prices as alleged by the prosecution.
   

Issue to be dealt with

4. The main legal issue to be dealt with is whether the legislature requires each and every item mentioned in the charges to be separately marked with the maximum retail prices.
   
5. Accused in his evidence tried to attack the credibility of the two investigating officers, pointing out the fact that they have changed their written statement according to the instructions of their superior officers.
   
6. However, when one read the whole statement made by the each officer it is clear that there is no merit in the accused company's allegation and thereby I refuse to take note of the allegation.
   

Law Applicable

7. Counter-Inflation (Price Control) (Foodstuffs) (No.17) Order 2007 – Sec. 6(a)
   

Sec. 6 (a)- Any person having for sale by retail any of the goods specified in any Schedule to this Order must cause the same to be legibly and conspicuously marked with the maximum 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 the maximum retail price of the goods.

(c)- If any goods except butter (local) and bread specified in any of the Schedules are not displayed for sale in an individual packet or container, a retailer complies with this Order if he or she displays in a prominent position, a legible and conspicuous notice clearly indicating those goods to which the notice relates and the maximum retail price of the goods. (emphasis mine)

Counter-Inflation (Price Control) (Percentage Control of Foodstuffs and Certain Household Products) (No. 8) Order 2008 – Sec. 8 (1)

Sec. 8 (1)- Subject to paragraph (2) any person having any price-controlled item for sale by retail shall cause it to be legibly and conspicuously marked with the maximum retail price for the information of the public.

(2)- In the case of any retailer of items 2, 3, 8, 11, 13, 14, 15 and 18 in Schedule 1, compliance with the provisions of this paragraph may be effected by the display in a prominent position, a legible and conspicuous notice clearly indicating the goods to which the notice relates and the maximum retail price of such goods.

(3)- If any of the items 5, 16, 17, 19 and 21 in Schedule 1 are not displayed for sale in an individual packet or container, a retailer complies with this Order if he or she displays in a prominent position, a legible and conspicuous notice clearly indicating those goods to which the notice relates and the maximum retail price of the goods. (emphasis mine)

8. When referring to the above-mentioned two provisions it is clear that section 6(a) and sec. 8 (1) speak of situations where prices had to be individually marked on the goods itself. Whereas sections 6(b) and 8(2) identify the situations where prices could be displayed.
   
9. Sections 6(c) and 8(3) deal with situations where the goods are not displayed for sale in an individual packets or containers. In such situations, the retailer is free to display the prices in a prominent position.
   
10. In this present case, the items in question are 180 x 170g Skipper Tuna flakes, 250 x 500g Rewa Powdered Full Cream Milk, 200 x 425g Ocean Queen Mackerel and 140 x 375g FMF Breakfast crackers.
    
11. According to Counter-Inflation (Price Control) (Percentage Control of Foodstuffs and Certain Household Products) (No. 8) Order 2008, Tuna Flakes, Powdered Milk and Mackerel are price controlled items fall under items 1 and 7 in Schedule 1.
    
12. According to sec. 8 of the above Order, items 1 and 7 does not come under the items covered by sec. 8(2) of the Counter-Inflation (Price Control) (Percentage Control of Foodstuffs and Certain Household Products) (No. 8) Order 2008 and neither come under sec. 8(3) of Counter-Inflation (Price Control) (Percentage Control of Foodstuffs and Certain Household Products) (No. 8) Order 2008.
    
13. Therefore it is clear that price – controlled items mentioned in Count 1 comes under Sec. 8(1) of Counter-Inflation (Price Control) (Percentage Control of Foodstuffs and Certain Household Products) (No. 8) Order 2008, and thereby each individual item has to be legibly and conspicuously marked with the maximum retail price.
    
14. According to Counter-Inflation (Price Control) (Foodstuffs) (No.17) Order 2007, FMF breakfast crackers comes under item 4 of the Schedule 1. All 140 FMF Breakfast cracker packets are individually wrapped and each packet contains 375g. Therefore, those items do not fall within the limits of sec. 6(c) of Counter-Inflation (Price Control) (Foodstuffs) (No.17) Order 2007 and there is no doubt that sec. 6(b) does not have any applicability to FMF Breakfast crackers.
    
15. Therefore it is clear that FMF Breakfast crackers falls under sec. 6 (a) of Counter-Inflation (Price Control) (Foodstuffs) (No.17) Order 2007.
    
16. It is proved beyond reasonable doubt that accused company failed to mark each individual item with maximum retail price as required by the law. Therefore, I find accused guilty as charged for both counts.
    

On this Thursday the 18th day of November 2010

Kaweendra Nanayakkara
Resident Magistrate