Court dismissed municipality's entertainment duty claim for a beauty contest due to strict statutory interpretation rules.

[*742] 1971 October 27

(G. S. STAVRINAKIS, AG. P.D.C., ST. EVANGELIDES, AG. D.J.)

IN THE DISTRICT COURT OF NICOSIA Municipality of Nicosia,

Plaintiffs,

and

1 . Hilton Cyprus Ltd. ,

2. Rissos Kyriakides,

Defendants.

(Action No. 6703/70).

"Manager"

- As defined in paragraph 7 of bye-law 173 of the Nicosia Municipal Bye-Laws 1938-1955 - Whether the occupier of land upon which a beauty contest is held is within such definition of "Manager".

Bye-Law - Ultra vires - Definition of "Manager” in paragraph 7 of Bye-Law 173 of the Nicosia Municipal Bye-Laws 1938- 1955 - Not ultra vires the powers of the Council given to it by section 124 of the Municipal Corporations Law, Cap. 240.

"Public entertainment" - Meaning of - Beauty contest - Whether a public entertainment” for the purposes of imposing entertainment duty - Ejusdem generis doctrine.

Ejusdem

generis doctrine - Meaning of and prerequisites necessary for its application. Interpretation of Statutes – Strict

Interpretation to be given to all Taxing and Revenue Laws.

Entertainment duty - Claimed under items 10 and 11 of the 3rd Schedule to bye-law 1.73 (paragraphs 1(a) and (b)) of the Nicosia Municipal Bye-Laws 1938-1955 - In respect of a beauty contest at a ticket of £2.500 mils per person - No provision in the said schedule for duty payable on tickets per person, the price of which is in excess of 500 mils - Claim dismissed on this ground.

Recommendation for the amendment of the 3rd Schedule to bye-law 173 of the Nicosia Municipal Bye-Laws 1938-1955.

K. Michaelides, for the Plaintiffs.

A. Markides, for Defendants No. 1.

S. Spyridakis, for Defendant No. 2.

JUDGMENT

The judgment of the Court was delivered by:

STAVRINAKIS, AG. P.D.C. : By this action the [*743] plaintiffs - the Nicosia Municipality - claim against the defendants entertainment duty for a beauty contest held at the Cyprus Hilton Hotel on the 29th August, 1970, for the election of "Miss Europe Tourism".

Certain facts were admitted for the purposes of this action by all parties concerned and this averted the calling of evidence.

Counsel addressed the Court on the legal aspect of the case and invited the Court to draw its own inferences from the admitted facts and from certain exhibits produced and to adjudicate on the legal points raised.

Defendant No. 1 is Hilton Cyprus Ltd., a company, carrying on the business of hoteliers in Cyprus. They provided the grounds of the hotel near their swimming pool for the holding of a beauty contest organized by defendant No.2. Tickets were sold at the entrance of Hilton Hotel and else where. The price of the tickets was £5.- each which included £2.500 mils for the meal, and the balance represented the admission fee.

It is an admitted fact that defendant No. 2 would pay to Hilton Hotel £2.500 mils per ticket sold. It has been agreed only for the purposes of this action that the number of tickets sold was 1,700.

During the event an orchestra was playing.

Defendant No. 1 denied that he was an ”organizer" of the event, his interest being only his share of £2.500 mils [*744] per ticket sold. The event was advertised in the local press inviting the public to buy their tickets before the 25th August, 1970. The announcement was made by the organizing committee and Hilton Hotel. (See exhibit No. 2 - clippings from the press).

Learned counsel for the plaintiffs relied on the Bye-laws of the Municipal Corporation of Nicosia, 1938-1955, Bye-law 173, paragraph ,7, where the word "Manager" is defined as "the person in whose name the licence for a public entertainment is granted or any person under whose supervision, care or management the public entertainment is carried out or the person who is the owner or occupier of the land or building in or on which the public entertainment takes place".

Learned counsel for defendant No. 1 alleged that the definition of "Manager" given in the Bye-laws is ultra vires as no such power is given to the Municipality by the enabling section of the Municipal Corporation’s Law, Cap.240, s. 124.

The relevant paragraph of s.124 of the Municipal Corporation's Law, Cap.240, which is paragraph (n) of sub section

(2) reads as follows:-

"(n)-(i) to impose a duty on all payments made for admission to any public entertainment;

(ii) to provide that no person shall be admitted for payment to any public entertainment except with a ticket stamped or marked in such manner as to denote that the duty has been paid; [*745]

(iii) to prescribe the manner in which the duty shall be collected and paid;

(iv) ……………………………………………………………………".

We have carefully considered the submission but we reached the conclusion that the last words of sub-paragraph

(ii) of paragraph (n) of sub-section (2) of s. 124 are wide enough to give the Municipal Council the power to prescribe the manner in which the entertainment duty will be collected and paid and by giving a definition of the word ”Manager”, they made provision for such collection and payment. There fore, this submission of learned counsel for defendant No.1 fails.

There is no doubt that defendant No.

2 was the organizer of the event and the question is whether defendant No. 1, being the occupier of the land upon which the event took place, comes within the meaning of "Manager" for the purposes of paying entertainment duty.

If he was simply the owner and he leased his property for the holding of an event, then we would have been inclined to find that being simply the owner, without taking any part in the management of the event, he would not have been liable to pay entertainment duty. However, in the present case the interest of defendant No. 1 was not simply that of an owner or occupier but of a person with a stake in the success of the event; he had an interest in the number of tickets sold; his interest appears from the announcement in the local press, which was jointly made with [*746] the organizing committee of the contest. Therefore, we draw the inference that both defendants come within the meaning of "Manager" for the purposes of paying entertainment duty.

Another point that was raised is whether this beauty contest is a "public entertainment” within the meaning of Bye-law 173 of the Nicosia Municipal Bye-laws 1938-1955.

These Bye-laws were made under s. 124 of the Municipal Corporation's Law, Cap. 240, and which have been revived by Law 64/64.

Counsel for the defence contended that the event in question which, as we have already seen, consisted of a beauty contest in which a number of girls from abroad participated, is not a public entertainment within the meaning of the Law applying the ejusdem generis doctrine.

Learned counsel for the plaintiffs cited the case of Allen v. Emmerson, (1944) 1 All E.R. page 344, where it was held that the words "theatres and other places of entertainment" do not create a genus and, therefore, a funfair is a place of public entertainment. The ejusdem generis rule is explained in Maxwell on Interpretation of Statutes, 12th Ed., p. 297, in the following terms:-

"But the general word which follows particular and specific words of the same nature as itself takes its meaning from them and is presumed to be restricted to the same genus as those words". [*747]

"For ’according to a well established rule in the construction of statutes, general terms following particular ones apply only to such persons or things as are ejusdem generis with those comprehended in the language of the Legislature’. In other words, the general expression is to be read as comprehending only things of the same kind as that designated by the preceding particular expressions unless there is something to show that a wider sense was intended, as where there is a provision specifically excepting certain classes clearly not within the suggested genus".

And on page 299 continues:-

"Unless there is a genus or class or category, there is no room for any application of the ejusdem generis doctrine".

What is, therefore, the warding used in the Law is of importance. We must, therefore, look at the wording of the definition in our Law. Section 124 of the Municipal Cor porations Law, Cap. 240, empowers the Council to do certain things among which is 124(2)(n)(i) to impose a duty on all payments made

for admission to any public entertainment.......... and the last paragraph of the last sub-paragraph of paragraph (n)

states:-

"For the purposes of this paragraph the term ’public entertainment’ means any performance of [*748] any stage play, or cinematograph exhibition, or dance, or any other entertainment to which the public is admitted, and includes any public meeting".

The terms "stage play" and "cinematograph exhibition" are further defined in section 2 of the same law;-

"'Cinematograph exhibition' means any exhibition of pictures or other optical effects presented by means of a cinematograph or other similar apparatus, whether accompanied by spoken words or not".

"’Stage play' includes any tragedy, comedy, farce, opera, melodrama, dialogue, pantomime, circus, dancing, singing, music, or other public entertainment of the like kind".

So, the full definition of the words "public entertainment" read together with the specific definitions of the term "stage play" and "cinematograph exhibition" should read as follows:-

Any performance of any stage play (including any tragedy, comedy, farce, opera, melodrama, dialogue, pantomime, circus, dancing, singing, music, or other public entertainment of the like kind, or cinematograph exhibition meaning any exhibition of pictures or other optical effects presented by means of a cinematograph or other similar apparatus whether accompanied by spoken words or not) or dance or any other [*749] entertainment to which the public is admitted and includes a public meeting.

From the aforesaid definition we cannot say that the genus is either a live show performed by actors such as a theatre or an exhibition of pictures presented by musical means or a dancing in which the public participates or acoustic entertainment.

All the specific instances may well form a separate genus of their own and cannot all of them together form a genus. They are dissimilar modes of entertainment and any form of public entertainment that falls within one or to a combination of more than the aforesaid classes, is within the definition of the term "public

entertainment". Furthermore, the last words of the definition ”.............. including a public meeting” tends to

include any public meeting having nothing to do with the preceding instances, but we take it to mean ”a public meeting” for purposes of entertainment.

We find, therefore, that the doctrine of ejusdem generis does not apply as the specific instances do not create a genus.

One may say that the only genus created is simply that of "public entertainment" of whatever form it takes, as the specific instances are so done, as to include any form of public entertainment including a public meeting.

The next question is what is a public entertainment. [*750] In the case of the Attorney-General v. The South Port Corporation, (1934) 1 K.B. p. 226, Finley J. said at p. 234:-

"Entertainment means something in the nature of an organized entertainment not necessarily organized by the persons who are to receive payment for the seat and as clearly shown by the illustration of the boat race or that of the Lord Mayor’s Show".

In the more recent case of Allen v. Emmerson (supra cited by plaintiffs' counsel, Asquith J., in delivering the judgment of the Court, at pp. 347-8 said:-

”We think a satisfactory working definition of 'public entertainment’ was one suggested by counsel for the appellant in argument:”

“…………. a place open to members of the public without discrimination who desire to be entertained and where means of entertainment are provided.”

"Judged by this test, or indeed by the ordinary use of language, these funfairs were, in our view, places of ’public entertainment', and none the less so because no fee was charged for admission to the premises".

In view of the aforesaid, we conclude that a "public entertainment" is an organized entertainment at a [*751] place open indiscriminately to members of the public who desire to be entertained and where means of entertainment are provided. It is doubtful whether such means are a necessary prerequisite in view of the inclusion of the words "including public meetings", as such meetings may and may not be provided with means of entertainment.

The event in question is, undoubtedly, an organised one. The public was admitted against the payment of the prescribed entrance fee indiscriminately, meals were offered, an orchestra was playing and a parade of beauties was held which was the main attraction of the event. The music itself is included in the definition of such play, not to mention dancing and in addition we have the parade which is in the nature of a show for the entertainment of the public, especially if it is accompanied by dinner and music.

We find, therefore, that even if the doctrine of ejusdem generis is applicable, which, as we have already stated, is not, the event in question is covered by the specific categories mentioned in the definition. In any event, it is covered by the definition of "public entertainment".

The next question is whether entertainment duty is payable or not.

Bye-law 173 of the Nicosia Municipal Bye-laws, 1938- 1955, provides:-

"(1)(a) The council shall charge a duty on all payments made for admission to any public entertainment;" [*752] and,

(1)(b) of the same bye-law -· "The entertainment duty shall be at the rates set out in the third schedule attached to the bye-laws".

Counsel for the plaintiffs had claimed under the combined effect of Items 10 and 11 of the aforesaid schedule.

They read as follows:-

"Item 10 - On each ticket for one person with an entrance fee exceeding 450 mils but not 500 mils a duty of 100 mils shall be added.

Item 11 - On each ticket for a box 10 mils on every 50 mils or part thereof, of the price of such ticket".

Learned counsel for defendant No. 1 argued that Class 10 of the 3rd Schedule provides for the tax payable on tickets, the price of which is more than 450 mils but not exceeding 500 mils and that Class 11 has no application to tickets for persons but applies only to tickets for boxes. The tickets in the present case were tickets for one person and since there is no provision for tickets for one person, the value of which is in excess of 500 mils, no duty is payable. He further argued that all revenue and taxing laws should be interpreted strictly and with this we are in full agreement.

We need only cite from Maxwell on Interpretation of Statutes, 11th Ed., p.278, under the heading "Statutes imposing Burdens":- [*753]

"Statutes which impose pecuniary burdens also are subject to the same rule of strict construction. It is a well settled rule of law that all charges, upon a subject must be imposed by clear and unambiguous language because in some degree they operate as penalties. The subject is not to be taxed unless the language of the statute clearly imposes an obligation.

'In a Taxing Act. one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used’".

Had the wording of Class 10 of the 3rd Schedule ended with the words "fee exceeding 450 mils", without the words "but not 500 mils", then we would have interpreted that the duty payable for every ticket in excess of

450 mils would have been 100 mils; but the words "but not 500 mils" encountered in the aforesaid paragraph preclude the Municipality from claiming duty for a ticket for a person the price of which is in excess of 500 mils as there is no provision for the collection or the payment of a duty for such tickets. To find that Clause 11 which refers to boxes applies to tickets for persons, the value of which is in excess of 500 mils, would be absurd. [*754]

We arrived

at the above conclusion bearing also in mind the facts of the case Attorney-General v. Bradbury, (1851), 7 Ex. 97, and we read from Maxwell on

Interpretation of Statutes, 11th Ed., at p. 280:-

"Where an Act Imposed a stamp duty on newspapers, and defined a newspaper as comprising, ’any paper containing public news, intelligence, or occurrence .to be dispersed and made public', and also any paper containing any public news, intelligence, or occurrences, or any remarks or observations thereon ....... published periodically or in parts or numbers, at intervals not exceeding twenty-six days’, and not exceeding a certain size, it was held that a publication the main object of which was to give news, but which was published at intervals of more than twenty-six days, was not liable to the stamp duty as a newspaper".

We find, therefore, that the 3rd Schedule of the Bye-law does not provide for duty payable on tickets per person, the price of which is in excess of

500 mils, and the action must fail. We are fully conscious of the injustice

created by imposing a duty on tickets the value of which is up to 500 mils and not impose a duty on tickets the value

of which if five times as much. This is undoubtedly unjust but we have no power to rectify the injustice. Our only power is to recommend the amendment of the bye-laws and this to be done as early as possible for obvious reasons.

Under the circumstances, we do not think that we should make any order as to costs.

Action dismissed.

No order as to costs.