Principles

·  Rates—” Occupied property “—Rates Ordinance, s.5

Appeal against assessment in respect of period 1uring which the premises were unoccupied.
Held: The intention of the Ordinance was to make the owner responsible for the payment of rates irrespective of whether he is in occupation or not. It did not go so far as to render rateable premises which are not occupied.

Judgment

   Babiker Awadalla J. February 10, 1964 —This is an application on behalf of the Town Clerk, Omdurman Municipality, against the judgment and decree of the honourable judge of the High Court, Khartoum, setting aside the decision of the Rates Court, Omdurman, dated February 10, 1960, and ordering respondent to pay a sum of £S25 being arrears of rates of shop 11/2, Block 13, Omdurman suk, up to December 31, 1959.

   It appears from a perusal of the record of the case before the Rates court that respondent was duly summoned before the court under Rates Ordinance s. 26, and that failing appearance by him as required by the section referred to, an order was duly passed by the court under section 29 calling upon respondent to pay the above sum plus an extra sum of £S.625om/ms being the amount collectable, inter alia, in default of appearance under the section last referred to.

   An order under Rates Ordinance, s. 29, being, for all purposes, an order for sale, respondent applied to the honourable judge of the High Court for revision of that order, on the ground, inter alia, that the shop in question was vacant from the beginning of May 1957 until April 1958.

   The honourable judge of the High Court framed an issue of law on the point: “Has the council the right to claim rates in respect of vacant premises?” and laid the onus of establishing that right on the council.

   It was contended for the Attorney General, on behalf of the council, as follows:

(??) that the criterion of rateability under the Ordinance is not one of physical occupation but of benefiting from the services rendered by the local authorities;

(??) that accordingly the Ordinance considers any physically vacant property as occupied so long as there is some body who has the right upon it to exclude others, be it the owner or any other person;

(??) that evidence of this intention on the part of the legislature is to be found in the preparatory notes of the enactment.

Advocate Wanni on behalf of the ratepayer, present respondent, answered as follows:

??. that if the legislature meant to levy rates on property irrespective of whether such property is occupied or not, then it would not have gone into the trouble of defining the words “occupied property”;

??. that the intention of the legislature should not be ascertained other wise than within the Ordinance itself and it would therefore be wrong to attempt ascertaining that intention by reference to preparatory works;

??. that the use of the word “from” in the definition of the expression “occupied property” connotes that the person who possesses the right of excluding other persons has to be departing or moving away from or coming out of the property in respect of which the right is sought to be exercised and so “occupation” must mean physical presence within the property.

   The honourable judge of the High Court accepted the arguments put forward on behalf of the ratepayer and set aside the order of the Rates Court in so far as it ordered payment of rates for the period during which the shop was vacant. In his judgment, the honourable judge of the High Court said:

   “I agree to the interpretation given by the learned advocate for the application in respect of the meaning of ‘occupied property’ as could be understood from the interpretation of section taken as a whole and from the meaning of the word ‘occupation’ as distinguished from the word ‘possession.’ In respect of the former, I agree that from the word ‘from’ contained in the section, it should presuppose the physical presence of the owner in order that he can effectively use his right of expulsion”.

   From this decision the present application for revision was made on behalf of the Town Clerk. The learned counsel for applicants contends in his grounds for this application:

??) that the honourable judge of the High Court was wrong in agreeing with the submission of the learned counsel for respondent concerning the word “from” in the definition because that word has nothing to do with the quarters out of which the owner should move in order to exercise his right of expulsion but simply means that expulsion must relate to the property in question; and

??) that the honourable judge of the High Court was wrong in exempting vacant property from payment of rates, thereby adding to the provisions of the Ordinance an exemption which is not conceded by section 9; and

??)

that the honourable judge of the High Court was wrong in finding that the word “occupied property” has any meaning other than property which is owned as distinguished from one that is not.

   Advocate Wanni repeated the arguments made before the court below with the addition of some references to English and Indian authorities as to the meaning of the word “occupation.”

   Although I do not agree with the reasons given by the honourable judge of the High Court, yet I entirely agree with his conclusion and I regret I see nothing in the arguments on behalf of applicant justifying intervention with that decision, and I am therefore of opinion that this application should be dismissed.

   It is clear that if the Rates Ordinance, 1954, was intended to levy rates on vacant buildings then certainly it had failed completely to fulfil that object. I think that the only major change brought about by the new Ordinance was to make the owner and not the occupier of a building primarily liable for the payment of rates. Further than that the Ordinance did not go.

   To contend that the meaning of “occupied property” in section 2 of the Ordinance is determinable by the ownership of a right of exclusion of others would in my view find no support either in the definition of those words or in the general theme of the Ordinance.

   As regards the definition, it will be seen that the words “occupied property” are defined as follows: “any property from which any person or ascertainable body of persons, natural or legal possesses the right of excluding other persons, and occupier means the person possessing such right.” The words “possesses” and “possessing” are in my view the operative words in this definition. The legislature did not avoid the words ‘has the right” or “owns the right” without reason. He meant to ascribe the quality of occupation to property even though the person occupying that property has no right to do so. Possession does not mean ownership and a man may possess a right of excluding others even though he may have no interest in the property occupied or though his interest therein does not confer upon him the full ownership of a right of exclusion. A mere squatter, for example, has no interest that is recognised by law but he normally does exclude all other persons, including the owner, from the property in his possession.

   As regards the general theme of the Ordinance, I think that the legislature in bringing about a change in the 1919 Ordinance simply meant to make the owner responsible for the payment of rates irrespective of whether he himself or someone else is in de facto occupation of the property and whether that de facto occupation has the sanction of the law or otherwise. If the legislature meant to make the owner of vacant

premises responsible for the payment of rates, then it would have said so without in any way defining “occupation” or using the words “occupied and occupier” in practically every section.

   To give but one example, the word “occupied” in sections 5 and 6 would be mere surplusage. The golden rule of interpretation, however, is that superfluity should not be imputed to the legislature and accordingly every word used in a statute must be presumed to have some effect or be of some use.

   I think the best evidence of the intention of the legislature in this respect can be found in section 14, subsection 2 which, in the case of new buildings, calls upon the occupier and not the owner to give notice of completion, so that the property may be assessed for the purpose of rates, If the Ordinance meant that rates should be paid by the owner in respect of vacant premises, then I can see no wisdom in placing this burden on the occupier rather than the owner.

   Finally, I think it would be incorrect in a fiscal enactment of this type to impute an intention on the part of the legislature to impose an obligation on citizens which the clear words of that enactment do not support. In Re Michlethwait (cited by Craies, Statute Law 107 (5th ed.)) Parke B. said:

   “It is a well-established rule that the subject is not to be taxed without clear words for that purpose.”

   Again, in Partington v. Attorney-General (1869) L.R. 4 H.L. 11, Lord Craies said:

   (… as I understand the principle of all fiscal legislation, it is this: if the person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be. On the other hand, if the Crown, seeking to recover the tax, cannot bring the subject within the letter of the law, the subject is free, however apparently within the spirit of the law the case might otherwise appear to be. In other words, if there be admissible in any statute, what is called an equitable construction, certainly such construction is not admissible in a taxing statute, where you simply adhere to the words of the statute.”

   This application should therefore, in my view, be dismissed with costs.

   M. A. Abu Rannat C.J. February 10, 1964 :—l concur.