Veronica Mocke (trading as Ac Unann Bottle-Shop) v Yama [2019] PGNC 31; N7738 (7 March 2019)

N7738

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 45 OF 2019

VERONICA MOCKE TRADING AS AC UNANN BOTTLE-SHOP FOR HERSELF AND ON BEHALF OF EIGHT OTHER
BOTTLE-SHOP OWNERS OF MADANG
Plaintiffs

V

THE HONOURABLE PETER YAMA, GOVERNOR,
MADANG PROVINCE, IN HIS CAPACITY AS CHAIRMAN, MADANG PROVINCIAL EXECUTIVE COUNCIL
First Defendant

MADANG PROVINCIAL GOVERNMENT
Second Defendant

Madang: Cannings J
2019: 20^th, 21^st February, 7^th March

LICENSING AND REGULATION – control of liquor sales – provincial liquor ban – proper authority to license and control sale of liquor – whether provincial executive council has power to ban sale of liquor – whether provincial law provided an exclusive code for licensing and regulation of liquor sales.

A provincial executive council imposed a ban of indefinite duration on the sale of liquor in the province, including sales from bottle-shops and other licensed premises, and excluding sale and consumption of liquor at licensed hotels, lodges, guesthouses and clubs. The plaintiff, the holder of a bottle-shop licence issued by the provincial liquor commission under the provincial liquor law, supported by eight other bottle-shop licence-holders, challenged the legality of the liquor ban, seeking amongst other relief a declaration that the ban is null and void and an order that it be uplifted, on grounds that the provincial executive council had no power to impose such a ban as such a power is vested exclusively in the provincial liquor commission, which can only impose such bans for a period of 21 days, in circumstances prescribed by the provincial liquor law, which circumstances, it was argued, did not exist.

Held:

(1) The provincial liquor law provided an exclusive code for licensing and regulation of sale and distribution of liquor in the province, including the imposition of liquor bans.

(2) The provincial liquor law conferred exclusive power on the provincial liquor commission to impose liquor bans, in prescribed circumstances. The provincial executive council had no such power. The liquor ban was unlawful.

(3) If it were presumed that the provincial executive council had power to impose a liquor ban of any sort, a ban of the nature and extent actually imposed would still be unlawful as being contrary to the provincial liquor law due to the absence of the prescribed circumstances to warrant imposition of a ban and its indefinite duration.

Cases cited

The following cases are cited in the judgment:

Mudge v Secretary for Lands [1985] PNGLR 387
Zachary Gelu v Francis Damem (2004) N2762

ORIGINATING SUMMONS

This was a trial in which the plaintiffs argued that a liquor ban was unlawful and sought declarations and orders to remedy the illegality.

Counsel

D F Wa’au, for the Plaintiffs
J Lai, for the Defendants

7^th March, 2019

1. CANNINGS J: The plaintiff, Veronica Mocke, conducts a business known as AC Unann Bottle-shop in Madang town. She was until recently selling liquor from her retail premises in accordance with a bottle-shop licence issued by the Madang Provincial Liquor Commission under the Madang Provincial Liquor Law 2009.

2. In December 2018 the Madang Provincial Executive Council imposed a ban of indefinite duration on the sale of liquor in the province, including sales from licensed premises and bottle-shops, and excluding sale and consumption of liquor at licensed hotels, lodges, guesthouses and clubs.

3. Public notice of the ban was given on 3 January 2019 by the Acting Provincial Administrator in the following terms:

To: All Hotels

Clubs

Restaurants

Bottle shops

Trade stores

Other liquor trading outlets in Madang Province

General Public

I refer to the above and inform you that the Madang Provincial Executive Council in its meeting No 11/2018, Decision No 124/2018 resolved and endorsed a LIQUOR SALES BAN in Madang Province.

The ban on sale of liquor is effective from 23^rd December 2018 and onward until such a time when the ban is uplifted. The ban applies to all bottle shop operators in Madang town and rural areas of Madang Province but will not affect the sale and consumption of liquor in licensed hotels, lodges, guest-houses, restaurants and clubs. Be advised that the decision to ban the sale of liquor was made to help minimize the rise in law and order issues within the Province.

Hence I am now appealing to you all to appreciate and comply with the decision of the Madang Provincial Executive Council as the decision to impose a liquor sales ban in the Province is only for the common good of everyone.

Please adhere to this instruction.

Thank you,

___________________

JOHN GILBERT BIVI

Acting Provincial Administrator

4. Ms Mocke, acting on behalf of herself and eight other bottle-shop licence-holders, challenges the legality of the liquor ban, seeking amongst other relief a declaration that it is null and void and an order that it be uplifted. She argues that the Provincial Executive Council has no power to impose liquor bans as that power is vested exclusively in the Provincial Liquor Commission, which can only impose such bans for a period of 21 days, in circumstances prescribed by the provincial liquor law, which circumstances, it was argued, did not exist. The following issues arise:

1. Does the Madang Provincial Executive Council have power to impose a liquor ban?
   
2. Do any other grounds of illegality have merit?
   
3. What orders should the Court make?
   
1. DOES THE MADANG PROVINCIAL EXECUTIVE COUNCIL HAVE POWER TO IMPOSE A LIQUOR BAN?
   

5. The Madang Provincial Liquor Law 2009 (“the 2009 Law”) is the relevant law. It was made by the Madang Provincial Legislature as a provincial law, in the exercise of legislative power conferred by Section 42(1)(c) (law-making powers of the provincial legislatures) of the Organic Law on Provincial Governments and Local-level Governments.

6. There is no evidence or reasonable argument before the Court to defeat the plaintiffs’ argument that the 2009 Law provides an exclusive code for the licensing and regulation of the sale and distribution of liquor in Madang Province. All licensing and other powers of regulation including the power to impose bans on the sale of liquor from licensed premises are conferred on the Provincial Liquor Commission.

7. The Commission is established by Section 4 of the 2009 Law and by virtue of Section 5 consists of seven members: three ex officio members (the Provincial Administrator, the Provincial Police Commander and the Provincial Liquor Commissioner) and four other persons appointed by the Provincial Executive Council, each as a representative of prescribed “sectors and groups in the province”: the business sector, the community sector, women and churches.

8. The 2009 Law consists of 98 sections, divided into nine parts, and a set of forms contained in five schedules. Part 8 is entitled Liquor Bans. It contains Sections 86 to 90, which are in the following terms:

86. Imposing a liquor ban

(1) The Commission may impose a liquor ban if the Commission is satisfied that in the Province or a part of the Province:

• (a) law and order had deteriorated to such an extent that:
  • (i) the local authorities cannot control the situation: or
  • (ii) the local economy is being seriously disadvantaged; or
    
• (b) a significant threat to public health exists.
  

(2) A liquor ban may:

• (a) be imposed for the entire Province or part of the Province, and:
  
• (b) prohibit all licensees and permit holders in the Province, or those specified in the liquor ban, from selling, supplying or disposing of liquor on their licensed premises:
  

(3) A liquor ban may be imposed:

• (a) by notice displayed on a notice board at the entrance of the Commission’s office: or
• (b) by notice broadcast on a radio service generally able to be received to persons in the liquor ban areas.
  

87. Period of liquor ban

(1) The commission may impose a liquor ban for a period of 21 days.

(2) A liquor ban imposed by a notice displayed on a notice board at the entrance of the Commission’s office takes effect from the day the notice is displayed.

(3) A liquor ban imposed by a notice broadcast on a radio service takes effect from the day and time stated in the notice, being a day and time after the first radio broadcast of the notice.

(4) A liquor ban remains in force until:

• (a) the period of the ban stated in the notice imposing the ban ends; or
• (b) the ban is cancelled,

whichever occurs first.

88. Extension of liquor ban

(1) After consulting with representative of the Local Community to which a liquor ban applies, the Commission may extend a liquor ban if the Commission remains satisfied that in the Province or the part of the Province where the liquor than applies:

• (a) law and order has continued to deteriorate to such an extent that:
  • (i) the local authorities remain unable to control the situation: or
  • (ii) the local economy continues to be seriously disadvantaged; or
    
• (b) a significant threat to public health continues to exist.
  

(2) The Commission may extend a liquor ban on one occasion for a period not exceeding 21 days and if the liquor ban has not expired.

(3) A liquor ban may be extended:

• (a) by notice displayed on a notice board at the entrance of the Commissioner’s office: or
• (b) by notice broadcast on a radio service generally able to be received to persons in the liquor ban areas.
  

(4) A liquor ban that has been extended remains in force until:

• (a) the period of the ban stated in the notice imposing the ban ends: or
• (b) the ban is cancelled:
  

whichever occurs first.

89. Contravening liquor ban

If a licensee or permit holder sells, supplies or disposes of liquor on licensed premises in contravention of a liquor ban, the licensee or permit holder is guilty of an offence punishable on conviction by:

(a) in the case of an individual, a fine not exceeding 5,000 kina or a term of imprisonment not exceeding 6 months: or
(b) in any other case, a fine not exceeding 25,000 kina

90. Cancellation of liquor ban

(1) If while a liquor ban is in force, the Commission considers the circumstances for which the ban was imposed have ceased to exist, the Commission must cancel the ban.

(2) The cancellation may be made:

• (a) by notice displayed on a notice board at the entrance of the Commission’s office: or
• (b) by notice broadcast on a radio service generally able to be received by persons in the liquor ban area.
  

9. It will be observed that all powers to impose liquor bans and to determine the nature, extent, duration and geographical area of operation of a ban and the extension and cancellation of a ban are vested in the Provincial Liquor Commission. No mention is made of the Provincial Executive Council in Part 8, which is properly regarded as prescribing an exclusive code for imposition of liquor bans in the province.

10. It is clear that the Provincial Executive Council has none of the powers it purported to exercise in imposing a liquor ban. The decision to impose the ban was made ultra vires (beyond power). The liquor ban is unlawful.

2. DO ANY OTHER GROUNDS OF ILLEGALITY RAISED BY THE PLAINTIFFS HAVE MERIT?
   

11. If it is presumed for the sake of argument that the Provincial Executive Council had power to impose a liquor ban of any sort, a ban of the nature and extent actually imposed would still be unlawful, for two reasons.

First, a liquor ban can only be imposed if the correct decision-making authority is, under Section 86(1) of the 2009 Law, “satisfied that in the Province or a part of the Province:

(a) law and order had deteriorated to such an extent that:

(i) the local authorities cannot control the situation: or
(ii) the local economy is being seriously disadvantaged; or

(b) a significant threat to public health exists.”

12. There is no evidence that any proper authority including the Provincial Executive Council, by any reasonable and properly documented decision-making process, formed the rational and considered view that it was satisfied that circumstance (a) or (b) existed. The decision to impose the liquor ban was made in the absence of the necessary statutory preconditions.

Secondly, a liquor ban can, by virtue of Section 87(1) of the 2009 Law only be imposed for a maximum of 21 days. Imposing a ban of indefinite duration is not permitted and is for that reason alone unlawful.

3 WHAT ORDERS SHOULD THE COURT MAKE?

13. The Madang liquor ban is unlawful and appropriate declarations and orders will follow as a matter of course.

14. A declaration is a discretionary remedy, in that the court needs to be convinced that it is just and appropriate to declare the law or the legal status of the parties. It might not, for example, grant a declaration on a purely academic point of law or if the declaration would serve no useful purpose or if a plaintiff seeks the relief for some improper motive or where there has been an unwarranted delay in seeking relief or where other relief such as an order for damages would be more appropriately granted (Mudge v Secretary for Lands [1985] PNGLR 387, Zachary Gelu v Francis Damem (2004) N2762). In this case, making a declaration of the law and the positions of the parties will serve a useful, practical purpose. I can detect no improper motive on the part of the plaintiffs and they are not guilty of any unreasonable delay in commencing the proceedings.

15. I will allow a period of a little over 24 hours for the Court’s orders to take effect as this will allow time for the orders to be fully publicised and in particular made known to the Provincial Police Commander and reduce the risk of any misunderstanding that might arise if the orders were expressed to have immediate effect.

16.
I decline to grant other relief sought in the originating summons, including damages. If the plaintiffs wish to pursue a claim for damages they need to commence fresh proceedings. Costs will follow the event.

DECLARATIONS AND ORDERS

(1) It is declared that:

• (a) the decision of the Madang Provincial Executive Council at meeting No 11/2018, decision No 124/2018, to impose a liquor sales ban in Madang Province effective from 23 December 2018 was made ultra vires (without power) and contrary to law, namely the Madang Provincial Liquor Law 2009, and is, subject to these orders, null and void and of no effect; and
  
• (b) the public notice of that decision issued by the Acting Provincial Administrator, John Gilbert Bivi, dated 3 January 2019, is, subject to these orders, null and void and of no effect.
  

(2) It is ordered that the liquor ban imposed through the decision of the Madang Provincial Executive Council at meeting No 11/2018, decision No 124/2018, is annulled and ceases to have effect as at 12 noon on 8 March 2019.

(3) It is declared that the plaintiffs and other persons in possession of current licences, permits and other authorities issued under the Madang Provincial Liquor Law 2009 are permitted to sell, trade in or distribute liquor in accordance with the terms and conditions attached to their licences, permits and other authorities, with effect from 12 noon on 8 March 2019.

(4) Other relief sought in the originating summons is refused.

(5) The defendants shall pay the plaintiff’s costs of these proceedings on a party-party basis which shall, if not agreed, be taxed.

(6) Time for entry of this order is abridged to the date of settlement by the Registrar, which shall take place forthwith; and the file is closed.

Judgment accordingly.
_____________________________________________________________
Ninerah Lawyers: Lawyers for the Plaintiffs
Thomas More Ilaisa Lawyers: Lawyers for the Defendants