Enga Provincial Sales Tax, Re [1988] PGSC 12; [1988-89] PNGLR 225 (2 December 1988)

Papua New Guinea Law Reports - 1988-89

[1988] PNGLR 225 - SCR No 1 of 1988; Re Enga Provincial Sales Tax 

[1988] PNGLR 225

SC358

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCR NO 1 OF 1988; RE PROVINCIAL RETAIL SALES TAX LEGISLATION

SPECIAL REFERENCE PURSUANT TO S19 OF THE CONSTITUTION BY THE ENGA PROVINCIAL GOVERNMENT

Waigani

Bredmeyer Woods Los JJ

26 July 1988

2 December 1988

CONSTITUTIONAL LAW - Provincial governments - Law making powers - Extra-territorial effect of - Power to impose retail sales tax - Retail sale in province of goods - Tax on wholesale sales outside province made for purpose of retail sale within province - Law beyond power - Organic Law on Provincial Governments (Ch No 1), ss 14, 21, 56, 57, 58 - Retail Sales Tax Act (Enga Province).

The Organic Law on Provincial Governments (Ch No 1), s 21, provides:

“Except as provided in Part IV, a provincial law has effect only in and in relation to the province.”

Section 14, which is within Pt IV, provides:

“Full faith and credit shall be given throughout Papua New Guinea to the laws, the public acts and records and the judicial proceedings of all provinces.”

Sections 56, 57 and 58 empower a province to impose taxes, including retail sales tax “imposed on or by reference to ... the retail sale in the province of all or any goods”, where “retail sale of goods” means the sale of goods for consumption or use and not for re-sale.

Held

(Bredmeyer J dissenting). The Organic Law on Provincial Governments (Ch No 1), s 21 and s 58, do not permit a Provincial Government to impose a retail sales tax on wholesale sales outside of the Province made for the purpose of retail sale within the province.

Cases Cited

Broken Hill South Ltd v Commissioner of Taxation (NSW) [1937] HCA 4; (1936) 56 CLR 337; 10 ALJR 465; 54 WN (NSW) 70; 37 SR (NSW) 178; [1937] ALR 221.

Croft v Dunphy [1933] AC 156.

O’Sullivan v Dejneko [1964] HCA 13; (1964) 110 CLR 498; 37 ALJR 456; [1964] ALR 640.

Pearce v Florenca [1976] HCA 26; (1976) 135 CLR 507; 50 ALJR 670; 9 ALR 289.

R v Burah (1878) 3 App Cas 889.

Thompson v Commissioner of Stamp Duties [1969] 1 AC 320.

Special Reference

This was a special reference to the Supreme Court by the Enga Provincial Government pursuant to s 19 of the Constitution, which empowers the Supreme Court to give its opinion on any question relating to the interpretation or application of any provision of a Constitutional law. The questions referred are set out in the reasons for judgment of Woods J at 229.

Counsel

H Derkley, for the referor (Enga Provincial Government).

J Baker and P Ame, for the Principal Legal Adviser, to argue the negative case.

Cur adv vult

2 December 1988

BREDMEYER J: The questions under reference and the facts which give rise to them are set out in the judgments of Woods and Los JJ. I have the misfortune of differing from them on the law.

Can a limited legislature like the Enga Provincial Government pass a law with extra-territorial effect? To discuss this question I quote s 14 and s 21 of the Organic Law on Provincial Governments (Ch No 1) (the Organic Law). Section 14 appears in Pt IV of that Law:

N2>s 14    “Recognition of Provincial Laws

Full faith and credit shall be given throughout Papua New Guinea to the laws, the public acts and records and the judicial proceedings of all provinces.”

N2>s 21    “Extra territoriality

Except as provided in Part IV, a provincial law has effect only in and in relation to the province.”

Note that s 21 is subject to s 14. Thus if the full faith and credit provision of s 14 requires province b to give some effect to province a’s laws, then s 21 is not breached. For example, under s 57 of the Organic Law a provincial government may impose liquor licensing fees and land tax. If a man living in Mt Hagen in the Western Highlands Province, for example, owned a tavern and a block of land in the Enga Province, and failed to pay licence fees and land tax to the Enga Provincial Government, I have no doubt that s 14 would enable him to be sued in the Western Highlands Province for the outstanding fees and tax. To that extent those Enga laws would have an extra-territorial effect.

What should be the extent of that extra-territorial effect? What is an appropriate test to decide when a provincial law should be given extra-territorial effect under the “full faith and credit provision” of s 14 and when should it be struck down as exceeding the legislative powers of the province? There is no local case on the point and there is no applicable custom so l turn to the English common law.

Let me begin by considering a sovereign legislature and progress to a limited legislature. According to the Privy Council in Croft v Dunphy [1933] AC 156 at 162, a State can legislate only for its own territory and for its territorial waters as defined by international law. But in addition it has long been recognised that for certain purposes, notably those of police, revenue, public health and fisheries, a State may enact laws affecting the seas surrounding its coast to a distance seawards which exceeds the ordinary limits of its territory. The Privy Council in that case held (at 163) that the Parliament of Canada had the same full powers of the English Parliament. That is, although the Parliament of Canada got its powers from a British statute, the British North America Act 1867 (UK) once it legislated for the peace, order and good government of Canada upon one of its enumerated topics, its legislation could be as wide as that applicable to the legislation of a fully sovereign state.

The Privy Council said the same thing of the Parliament of colonial India. In R v Burah (1878) 3 App Case 889 at 904, it said:

“The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can, of course, do nothing beyond the limits which circumscribe those powers. But, when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature, as those of Parliament itself.”

The Australian States, like Canada and colonial India, have limited legislatures, and the Australian cases have held that they have power to make laws having extra-territorial effect, and those decisions have been upheld on appeal by the Privy Council. Let me give three examples. In Broken Hill South Ltd v Commissioner of Taxation (NSW) [1937] HCA 4; (1936) 56 CLR 337, a New South Wales statute taxed as income interest on money secured by a mortgage of land in New South Wales. A Victorian company borrowed money from a Victorian company and paid the interest in Victoria, but had the loan secured over land in New South Wales. The High Court upheld the law as within the constitutional power of the Parliament of New South Wales to make laws for the peace, order and good government of the State.

In O’Sullivan v Dejneko [1964] HCA 13; (1964) 110 CLR 498, the High Court considered a New South Wales law requiring truck owners to submit a monthly return of commercial journeys made within the State and the return was then used as a basis for levying a contribution on the truck owners to pay for the upkeep of the roads. A truck owner resident in South Australia, and who had never been inside New South Wales, failed to submit a return for his truck which had made journeys in New South Wales. The High Court of Australia upheld the law in its application to the truck owner; the fact that his truck used the New South Wales roads was sufficient nexus to make the law within the legislative competence of New South Wales. He was fined with imprisonment in default for his breach.

A third example is afforded by Pearce v Florenca [1976] HCA 26; (1976) 135 CLR 507. The Western Australian Fisheries Act 1905 made it an offence to be in possession of an undersize lobster within three miles of high water mark. Florenca, a fisherman, was caught and fined and he challenged the validity of the Act. The High Court held that the law was within the State’s power. Gibbs J (at 520) said:

“A law to regulate fishing within off-shore waters has a close connection with the State and can truly be described as a law for the peace, order and good government of the State. Such a law is within the competence of a State legislature.”

But there must obviously be some limit to the power of State to make laws of extra-territorial effect. As to the limits, Dixon J in Broken Hill South Ltd v Commissioner of Taxation (NSW) (at 375) expressed some principles which have been widely followed in Australia and have been upheld in the Privy Council. I quote from the Privy Council in Thompson v Commissioner of Stamp Duties [1969] 1 AC 320 at 335-336:

“For the purpose of ascertaining whether there is a relevant territorial connection the scope of possible relevancy is wide. In Broken Hill South Ltd v Commissioner of Taxation (NSW) in the High Court of Australia Dixon J said:

‘The power to make laws for the peace, order and good government of a state does not enable the State Parliament to impose by reference to some act, matter or thing occurring outside the state a liability upon a person unconnected with the state whether by domicil, residence or otherwise. But it is within the competence of the state legislature to make any fact, circumstance, occurrence or thing in or connected with the territory the occasion of the imposition upon any person concerned therein of a liability to taxation or of any other liability. It is also within the competence of the legislature to base the imposition of liability on no more than the relation of the person to the territory. The relation may consist in presence within the territory, residence, domicil, carrying on business there, or even remoter connections. If a connection exists, it is for the legislature to decide how far it should go in the exercise of its powers.’

Nevertheless it appears from decided cases that there is no ‘relevant territorial connection’ if the connection with the territory of New South Wales is too slight. There is an element of degree involved.”

After quoting the same passage I have just cited, Gibbs J in Pearce v Florenca at 518, said:

“[It] is obviously in the public interest that the test should be liberally applied, and that legislation should be held valid if there is any real connection — even a remote or general connection — between the subject matter of the legislation and the State. And it has been established by a series of well-known decisions, which are collected in Cobb & Co Ltd v Kropp [1967] 1 AC 141 at 154-156, that within their limits the legislatures of the States have powers ‘as plenary and as ample’ as those of the Imperial Legislature itself. It would seem anomalous and unfitting that the enactments of such a legislature should be held invalid on narrow or technical grounds.”

These decisions are not of the English courts and are not technically binding on me, nevertheless they make good sense to me and I propose to follow them. Also the Privy Council is largely composed of English Law Lords and nearly invariably reflects the common law of England. In the absence of English House of Lords decisions the Privy Council decisions are probably a good guide as to what English courts would decide if they had the opportunity.

Before applying these principles to the legislation in issue in this case, the first task is to see if the subject matter, the Enga Retail Sales Tax (Amendment) Act (No 5 of 1987), is within one of the Provincial Government’s enumerated powers, I believe it is. By s 57 and s 58 of the Organic Law on Provincial Governments the Provincial Government has power to impose a retail sales tax on the sale of goods, and by s 58(3) that tax may be imposed on (a) the retail seller, or (b) “a seller other than the retail seller by reference to his sale of goods for retail sale”. Subsection (b) clearly refers to a wholesaler selling to a retailer. The subject matter of the law is within the enumerated powers of the Provincial Government.

The much more difficult question is whether the ambit of the law which catches the non-provincial wholesale merchant and his out-of-the-province wholesale sale of goods intended for resale within the province, establishes a sufficient nexus with the Enga Province. Applying the principles from the Privy Council and Australia discussed above, I see no problem in allowing a provincial law to catch a non-resident of the province. In the same way in O’Sullivan v Dejneko (supra) the New South Wales transport law caught the non-resident truck owner.

I have greater difficulty with the fact that this law taxes a non-resident on a sale of goods made outside the province. The key words of the Act are found in s 3 which section taxes “all goods sold in the Province” which phrase in s 3(2) is defined to include “goods sold outside the Province where those goods are purchased for the purpose of retail sale within the Province”. The connection of “goods sold ... for the purpose of retail sale within the Province” is admittedly more remote than presence in the province, residence, or owning a business or land in the province — nevertheless I consider it is a sufficient connection. I consider that it is in the public interest to adopt this liberal interpretation. The law will be easy to enforce. The wholesalers in Mt Hagen, so we were told, are already adding 3 per cent sales tax to their sales and paying the tax to the Western Highlands Provincial Government, so there is no difficulty with them collecting and paying that tax on all sales to Engan retailers to the Enga Provincial Government. The alternative of paying the tax on the retail sale in Enga, presents problems. It has proved very difficult in the past to collect the retail tax from Engan storekeepers. Through illiteracy or cunning they fail to keep sales records and wholesale dockets, which makes them difficult to tax.

I consider the connection between the subject matter, the provincial retail sales tax, and the non-resident wholesaler selling goods for the purpose of resale within the province, is sufficient and I would rule the law within the legislative power of the province and hence valid. I would answer question (a) Yes. Counsel are agreed that question (b) should be answered No. I also answer that question No. I would answer question (c) Yes, the Provincial Government can prosecute persons outside the province for non-payment of retail sales tax due to the province.

WOODS J: This is a reference made by the Enga Provincial Government an authority referred to in s 19 of the Constitution for an opinion on a question relating to the interpretation or application of a Constitutional Law. The relevant Constitutional Law is the Organic Law on Provincial Governments (Ch No 1).

The questions are:

N2>(a)      Do Sections 21 and 58 of the Organic Law on Provincial Governments permit a Provincial Government to impose a retail sales tax on wholesale sales outside the Province made for the purpose of retail sale in the Province?

N2>(b)      Do Sections 21 and 58 of the Organic Law on Provincial Governments permit a Provincial Government to impose a retail sales tax on wholesale sales within the Province made for the purpose of retail sales outside the Province?

N2>(c)      If the Court’s answer to question (a) is “yes”, can a Provincial Government rely on Section 14 of the Organic Law to prosecute persons outside the Province for offences committed outside the Province relating to the non-payment of retail sales tax due to the Province, or does Section 21 of the Organic Law prevent this?

The following are the circumstances giving rise to this reference. The Organic Law on the Provincial Government (Ch No 1) (the Organic Law) allows the provinces to raise money by way of a retail sales tax. The Enga Provincial Government is wanting to enact retail sales tax legislation to assist it in collecting sales tax and this legislation may affect wholesale sales conducted outside the province because the communication, transport and development problems within the province are creating difficulties in collecting the retail sales tax from the retail sellers within the province. The Organic Law on Provincial Government provides relevantly as follows:

N2>s56:    Exclusively Provincial Taxes

“(1)    Subject to the Constitution of the province and to this Organic Law, a provincial law may impose or provide for the imposition of taxation of all or any kinds referred to in Section 57.

(2)      The National Parliament has no power to impose or to provide for the imposition of taxation of any kind referred to in Section 57.”

N2>s57:    “The kinds of taxation referred to in Section 56 are:

(a)      retail sales Tax, in accordance with Section 58. ...”

N2>s58:    Retail Sales Tax

“(1)    For the purpose of Section 57(a), a retail sales tax is a tax that is imposed on or by reference to:

(a)      the retail sale in the province of all or any goods; or

(b)      the sale in the province of all or any services by persons holding themselves out as offering such services to the public or to any section of the public.

(2)      In Subsection (1):

‘retail sale of goods’ means the sale of goods for consumption or use and not for re-sale:

N5>(a)      at a place to which the public has access, by invitation or otherwise, for the purposes of the sale or purchase of such goods; or

N5>(b)      in pursuance of an offer or invitation to the public or a section of the public, or of an advertisement addressed to the public or a section of the public;

‘services’ does not include services under a contract of employment.

(3)      In the case of the sale of goods, a retail sales tax may be levied on:

(a)      the retail seller; or

(b)      a seller other than the retail seller by reference to his sale of goods for retail sale.

(4)      In the case of the sale of services by way of contract and subcontract, a retail sales tax may be levied on:

(a)      the principal contractor; or

(b)      the sub-contractor,

but not on both.”

Section 58 of the Organic Law thereby permits the retail sales tax to be levied on a wholesaler, by reference to his sale of goods for eventual retail sale, and many retail sellers in Enga Province purchase from wholesalers in the Western Highlands.

It is submitted that as the words “by reference to” are used in relation to retail sale, this extends the reach of the provincial powers to impose retail sales tax to certain sales made beyond the boundaries of the province. Such sales can be taxed if the following requirements are met namely: (1) the sale must be referable to a retail sale of goods in the province and (2) if imposed on a seller other than the retail seller then the sale must be referable to the sale of goods for retail sale in the province. Once a geographical connection is shown between a wholesale sale anywhere else and a retail sale in the province then the retail sales tax legislation power can extend to the wholesale sellers, for example, outside the province.

This Organic Law on Provincial Government is a law whereby power was given by the National Government to the Provincial Governments and is not a recognition of a power that the Provincial Governments may have already had. So the ambits of this power must clearly be seen in the legislation and not by any outside extraneous factors that may have existed beforehand or at any other place.

Section 21 of the Organic Law is quite clear:

“Extra-territoriality.

Except as provided by Part IV a Provincial Law has effect only in and in relation to the Province.”

The first “in” in this section is the vital delineation not the second “in relation to”. Provinces therefore cannot legislate outside their powers. The whole concept of the problem at the back of the question before this Court is retail sales tax, namely a consumption tax, where the items are to all intents consumed within the province. The proponent has submitted one can, by referring to Australian cases on extra-territoriality between the Australian States, interpret s 21 to show that for the purposes of taxes within the province, the province can place an obligation on persons outside the province. Whilst these cases are interesting it is quite clear that on the facts of each of those cases the person liable to the tax or his estate had a vital connection with the State concerned by way of domicile or residence or carrying on business. So there is no similar analogy with the problem before this Court where it is purely a possible connection of a wholesaler because he happens to sell to someone who may be a retailer and yet at all times the wholesaler does not reside in or otherwise has no connections with the province. I find that the Australian authorities are of no relevance or assistance.

Section 21 is quite clear and need not be interpreted by any common law historical applications.

Counsel has referred to s 14 of the Organic Law — Recognition of Provincial Laws — which states that provincial laws must be given full faith and credit throughout Papua New Guinea. There can be no arguments with this, provinces must respect provincial laws in so far as they are the law within the particular province, but such a concept can go no further than s 21; they are the laws relevant within that particular province; they cannot extend to persons outside the province unless the person has a vital connection with the province.

I cannot extend this full faith and credit to override the clear statement and meaning of s 21.

The retail sales tax law can have effect only in and in relation to the province not outside but in relation to the province.

I therefore answer question 1 “No”.

Both counsel appeared to agree that question 2 should be answered “No”, so I need not go any further into that question.

Question 3 does not arise following my answer to question 1.

LOS J: The Enga Provincial Government is heavily dependent on revenue grants from the National Government. The 1987 grants for instance made up almost 80 per cent of the provinces total revenue. The rest of the revenue is generated within the province and of this revenue the retail sales tax makes up almost 65 per cent and the bulk of the retail sales tax is imposed on the trade stores in the province.

A survey commissioned by the Chief Provincial Collector of Taxes showed that the majority of the trade store owners purchased the bulk of their stock from the wholesalers in Mt Hagen. The Provincial Government has been faced with the difficulty of imposing a correct retail sale tax on the trade stores because many of them do not keep proper records of their transactions. The province has attempted therefore to tax the wholesales sales made to the retailers from Enga at Mt Hagen. Certain agreement was reached between the two Provincial Governments to make the Enga Provincial Government’s effort successful. However, certain administrative difficulties have made it impossible to carry out the agreement and most importantly a legal question has risen as to whether the Enga Provincial Government can impose retail sales tax within the bounds of the Western Highlands Province. The province therefore refers three questions under s 19 of the Constitution to the Supreme Court for its opinion:

N2>(a)      Do Sections 21 and 58 of the Organic Law on Provincial Government permit a Provincial Government to impose a retail sales tax on wholesale sales outside the Province made for the purpose of retail sales within the Province?

N2>(b)      Do Sections 21 and 58 of the Organic Law on Provincial Government permit a Provincial Government to impose a retail sales tax on wholesale sales within the Province made for the purpose of retail sale outside the Province?

N2>(c)      If the Court’s answer to Question (a) is “Yes”, can a Provincial Government rely on Section 14 of the Organic Law on Provincial Government to prosecute persons outside the Province for offences committed outside the Province relating to non-payment of retail sales tax due to the Province, or does Section 21 of the Organic Law on Provincial Government prevent this?

Section 21 of the Organic Law on Provincial Government states:

“Extra-territoriality

Except as provided by Part IV, a provincial law has effect only in and in relation to the Province.”

Section 56 of the Organic Law on Provincial Government gives power to a province to impose various taxes listed in s 57 including “(a) retail sales tax, in accordance with section 58”.  A retail sales tax is defined in s 58:

N2>“(1)    For the purpose of Section 57(a) a retail sales tax is a tax that is imposed on or by reference to:

(a)      the retail sales in the province of all or any goods; or

(b)      the sale in the province of all or any services by persons holding themselves out as offering such services to the public or to any section of the public.

N2>(2)      In Subsection (1):

‘retail sale of goods’ means the sale of goods for consumption or use and not for re-sale:

(a)      at a place to which the public has access, by invitation or otherwise, for the purposes of the sale or purchase of such goods; or

(b)      in pursuance of an offer or invitation to the public or a section of the public, or of an advertisement addressed to the public or a section of the public;

‘services’ does not include services under a contract of employment.

N2>(3)      In the case of the sale of goods, a retail sales tax may be levied on:

(a)      the retail seller; or

(b)      a seller other than the retail seller by reference to his sale of goods for retail sale.

N2>(4)      In the case of the sale of services by way of contract and subcontract, a retail sales tax may be levied on:

(a)      the principal contractor; or

(b)      the sub-contractor,

but not on both.”

One of the sections in Pt IV of the Organic Law on Provincial Governments, s 14, is relied upon to support the argument that a provincial government power to impose retail sales taxes can be applied extra-territorially: Section 14 provides:

“Recognition of Provincial laws

Full faith and credit shall be given throughout Papua New Guinea to the laws, the public acts and records and the judicial proceedings of all provinces.”

I consider that this argument is misconceived. I consider the section requires recognition of the authenticity of a provincial law. It must be recognised and enforced by all the authorities including the courts as it affects a province. The section is like s 1 of Article IV of the Constitution of the United States. The wording of the section makes it clear that it is an evidentiary provision:

“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

It is argued that s 58 does not impose geographical restriction because imposition of a retail tax may be by reference to the retail sale or sale of goods for retail sale. That is, it is argued, so long as the sale in Mt Hagen, for example, is for the retail sale in Enga, the Enga Provincial Government can impose retail sales tax. Despite my appreciation of the good intention of the Enga Provincial Government, and despite my inclination against strict and literal interpretation of any statute, I consider that this argument cannot stand. If this Court accepts the interpretation advanced by the Enga Provincial Government, it would mean Enga Provincial laws would apply in the Milne Bay Province, for instance, a possibility that it prohibited by s 21. Section 58 is not one of the sections in the Pt IV which is exempted by virtue of s 21.

The referor has cited various English and Australian cases. English cases have more to do with the relationship between the laws passed by the English Parliament and the colonial acts and statutes. Australian and the United States cases may provide meaningful comparisons but they too have slightly different situations. To start with, the historical development of Papua New Guinea as it relates to provincial governments has much bearing on the legal relationship between the provinces and the National Government and between the provinces. In Australia and the United States the states existed as small nations before establishing the federal governments. Hence their federal government powers are limited as opposed to the National Government in Papua New Guinea. The National Government established each province at different times and has given limited powers to each province at different times when each province was ready to exercise those powers. It is apparent therefore that provincial government powers are limited as against the National Government and as against each other. In my view s 21 of the Organic Law on Provincial Government confirms this fact. “[A] provincial law has effect only in and in relation to the province.” In my view this section puts a geographical limit and the relationship between the law and the province together as one condition of the effectiveness of a provincial law. If I am to seek guidance from two of the decisions of the Australian High Court referred to at the hearing, I do find them to accord with the course I take. In Broken Hill South Ltd v Commissioner of Taxation (NSW) [1937] HCA 4; (1936) 56 CLR 337, the High Court held valid the state law imposing tax on income interest on money secured by a mortgage of land in New South Wales. The nexus here is clear. The company was a Victorian company but operated in New South Wales and that interest was related to land in New South Wales. The High Court in O’Sullivan v Dejneko [1964] HCA 13; [1964] 110 CLR 498, held valid a New South Wales law requiring truck owners to submit a monthly return of commercial journeys made within the state. Again the nexus here is clear. The aim of the statute was to get the owners of the truck to pay for the upkeep of the roads. Obviously, Dejneko, though a resident of South Australia, let his truck be used extensively on the New South Wales roads for business.

The business of retail sale for the purpose of Enga retail sales tax is in Enga. The business of wholesale sales between the wholesalers in Mt Hagen and the trade store owners who purchase goods for retail sale is at Mt Hagen because the transaction takes place in the Western Highlands Province and the wholesale business relates to the Western Highlands. A wholesaler is “a seller other than the retail seller”: s 58(3)(b). By definition, a retail sales tax can only be imposed on or by reference to retail sale or other sales in the province. For a wholesaler to be taxed the goods sold must be for retail sale in the province. The wholesale sale in Mt Hagen to the tradestore owners in Enga is not for retail sale in Western Highlands Province. I consider therefore, that neither the Enga Provincial Government nor the Western Highlands Provincial Government can impose retail tax upon the wholesalers in Mt Hagen for the goods they sell to the Engan tradestore owners for retail sales in Enga.

I therefore answer question 1 “No”, question 2, “No”, and in view of my answer to question 1, an answer to question (3) is unnecessary.

(By majority) question (a) answered “No”.

(By the court) question (b) answered “No”, and question (c) not answered.

Lawyer for the referor: H Derkley.

Lawyer for the State: A Tadabe, Secretary for Justice.