Regina v Bakolo [1993] SBHC 60; HCSI-CRC 75 of 1993 (4 June 1993)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No.75 of 1993

REGINA

-v-

PATRICK BAKOLO

CRC 75/93/EMC CASE HEARD AT LATA BY MAGISTRATE MUNA.
JUDGMENT GIVEN ON 15/4/93

The above case has been forwarded to me for review under section 50(1) of the Magistrates’ Court Act. The accused was charged as follows:

(i) Selling liquor without a licence contrary to section 60(1) of the Liquor Act.

(ii) Selling liquor by retail licence outside permitted hours contrary to section 5(1) and 5(2) of the Liquor Act.

In respect of the first count, the particulars were that he sold liquor at Otomangi village between the 1st of April 1992 and the 11th of November 1992.

In the second count, the particulars read that the accused sold liquor on the 1st of November 1992 outside permitted hours.

I have read through the record of proceedings and I am satisfied that in respect of the second count there is no evidence whereby a finding of guilty can be made. The acquittal in respect of that Count therefore was proper.

The circumstances surrounding the 1st count however are different. I will attempt to set them out in order as gleaned from the record of proceedings.

In 1991, the accused had been operating under a full retail licence for liquor. The usual notices for renewal of such licences were put out and the hearing was fixed for the 30th of November 1991.

From the evidence, it appears that the renewals were heard on that day and granted.

Section 26(1) states and I quote:

“If the licensing authority shall decide to grant an application, it shall issue to the applicant a certificate in the appropriate form prescribed in Schedule D...”

Subsection 26(2) reads:

“A certificate issued under subsection (1) shall be presented by the applicant to the Licensing Officer who shall issue the licence accordingly.”

Section 27(1) states:

“Every certificate granted under this Act shall be void unless the sum (if any) required to be paid under this Act for the licence thereby authorised be so paid within twenty-eight days after the granting of such certificate.”

The above provisions are important in determining whether a renewal licence had been issued or not.

It is not known when such certificate was issued, neither is it clear from the evidence when the licence was issued.

If the licence was not paid for within 28 days after the granting of the certificate, then no such licence can be issued unless the proviso in subsection 27(2) is relied on.

From the record of proceedings it is clear that no licence was paid for and issued for 1993. In Alfred Omengi’s statement, he said that he gave the sum of $800.00 for the licence fee to the Area Clerk on the 3rd of February 1992. In the judgment of the learned magistrate, he found that the sum of $800.00 was paid and receipted on the 15/4/92 on receipt No. 299232.

However, that payment cannot be relied on if sections 26 and 27 have not been complied with. If that is so then the defendant does not have a valid licence.

On the 26/3/92 the Temotu Liquor Licensing Board held a meeting. In that meeting a report was lodged by the Area Clerk of allegations of breaches by the defendant. As a result of that, the Board purported to revoke the licence purportedly issued to the defendant. The first important point to note is that this would not seem to be necessary at all as the defendant had not obtained a valid licence pursuant to the provisions of sections 26 and 27.

The revocation in the meeting of the 26/3/92 will only be relevant if there was a valid licence. Assuming that there is such licence, then the Board would have been in breach of the requirements set out in section 59 of the Liquor Act.

Despite all these, on the 23rd of June 1992 a temporary licence was issued to the defendant valid for 3 months to enable him to dispose of all outstanding liquor in his possession. The Board ordered him to pay a fee of $200.00 for this temporary licence. He never paid this and continued to sell liquor. It seems that he was relying on the $800.00 paid earlier on.

The simple answer to all this confusing state of affairs is that the defendant never did have a valid licence from the beginning and that accordingly he was selling liquor in breach of the Act. He should therefore have been convicted and not acquitted.

The learned Magistrate however acquitted the defendant on the ground that he found that the appointment of the Acting Chairman of the Temotu Liquor Licensing Board was wrong and therefore null and void.

The logic behind this decision assumes (i) that the defendant had a valid licence for 1993, (ii) that because the appointment of the Acting Chairman was null and void, therefore it follows that there was no properly constituted Board on the meeting of the 26/3/93 and accordingly that Board could not effectively revoke the licence of the defendant.

The obvious flaw in this reasoning is that the Board which approved the application of the defendant for renewal on the 30/11/91 was chaired by none other than the same Acting Chairman of the meeting of the 26/3/92. If as is found that his appointment is defective, then that Board could not have validly granted the application of the defendant for renewal on the meeting of the 30/11/91, chaired by the same Acting Chairman.

It was wrong for the learned magistrate to rule on that point. It was not raised in issue and therefore was not necessary to make a ruling on it.

The accused has been placed in a very confused position by all these.

The Board too should attempt to familiarise itself with all the procedures of the Act so that it can effectively deal with such applications in a lawful and proper manner. I accept there has been no full time magistrate allocated to the Temotu Province and this has added to the problems experienced. Hopefully, a little more care should be taken in the processing of applications. And having a copy of the Act readily available should be useful.

The order of the Magistrate is therefore quashed. A conviction is entered, however in view of the circumstances surrounding the case, the defendant is absolutely discharged. The sum of $800.00 paid on the 15/4/92 is not to be refunded.

(A.R. Palmer)
JUDGE

Date: 4th June 1993