Attorney-General v Super Entertainment Centre Ltd [1996] SBHC 24; HC-CC 031 of 1996 (7 May 1996)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 31 of 1996

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ATTORNEY GENERAL

v

lign="center" ter" sty" style="margin-top: 1; margin-bottom: 1">SUPER ENTERTAINMENT CENTRE LIMITED
(Trading as Solomon Casino)

AND THE GAMING AND LOTTERIES BOARD

Before: Palmer, J

Hearing: 23 February 1996 & 12 March 1996

Judgment: 7 May, 1996

Counsel: The Attorney-General in person - A. Radclyffe for the First Respondent, N. Ne'e (Chairman) on behalf of the Second Respondent

[The hearing of this case took two days mainly for deponents to a number of affidavits filed in court to be cross-examined. On 12th March, 1996 the hearing of oral evidence was concluded. However, the case was further adjourned for 14 days to allow written submissions to be made by /earned Counsels. Written submissions were duly filed by learned Counsel for the First Respondent within the time period stipulated, but none by the learned Attorney-General. No extensions have been requested and even right up to the date of this judgment, no written submissions have been received. This judgment accordingly has been prepared in the absence of any written submissions from the Applicant]

PALMER J:

The Attorney-General applies in his capacity as custodian of the law and defender of public rights, for declaratory orders inter alia, that the Declaration of Approved Premises made by the Honourable Minister of Home Affairs on 8th September 1995, and the Establishment Licence and Gaming Permit issued on 8th September and 19th September, 1995 respectively, in favour of the First Respondent, were made in breach of the Gaming and Lotteries Act (Cap. 32) ("the Act"), and the Gaming Regulations 1994 ("the Regulations"), and therefore invalid.

THE BRIEF FACTS

The Respondent operates a casino business and trades under the business name SOLOMON CASINO. It has been in operation according to the affidavit of Patrick Leong (General Manager of the Respondent Company) filed on 2nd February 1996, since 25th September, 1995.

DECLARATION NO.1

The first declaration sought by the Applicant is:

"A declaration that the former Games and Lottery Board under the Chairmanship of Mr. Mostyn Habu (hereinafter called the "Habu Board") did not comply with the requirements of reg. 4(1) of the Gaming Regulations 1994 prior to the issuance by the former Minister of Home Affairs Hon. Dennis C. Lulei (hereinafter called the "Minister") of his declaration on 8 September 1995 of approved premises of the Respondent in that the Habu Board did not inspect the said premises as required by the said regulation and in the alternative if there was such an inspection such was and is invalid in that it was not done by the Habu Board as fully constituted or with the legal quorum as stipulated in s. 10A (7) of the Games and Lottery Act (Cap. 32). "

THE APPLICANT'S ARGUMENT

The Applicant takes the view that reg. 4 of the Regulations imposes a number of mandatory requirements on the Board, which if not complied with, vitiates any exercise of the powers of the Board to issue inter alia, a Gaming Permit. Under reg. 4(1), the first mandatory requirement claimed to have been imposed is that there must be an inspection, and that it must be carried out by the Board, either fully constituted or with the legal quorum. The Applicant submits that no inspection was carried out, and even if an inspection had been carried out, it was not done by the Board fully constituted or with the legal quorum.

The second mandatory requirement claimed by the Applicant to have been imposed under reg. 4(2), is that the inspection by the Board must be done prior to the declaration issued by the Minister. The Applicant submits here that no inspection was carried out, but that even if there was an inspection, it was not carried out prior to the declaration made by the Minister.

THE FIRST RESPONDENT'S ARGUMENT

The First Respondent takes the view that the Court must look to the Act first for guidance, for the proper construction of reg. 4; in particular, section 6 (4) of the Act. Learned Counsel for the First Respondent submits that under the Act, it is the function of inspectors to inspect the premises. The Act does not say that the Board as a whole must carry out the inspection, though he conceded that reg. 4 (1) does impose such a requirement. He points out however, that the Regulations can only contain matters authorised by the Act, and in this particular case, what section 6 (4) says. He stresses that the Regulations cannot over-ride the express provisions of the Act, that it is the inspectors who are to perform the function of inspection and not the Board. It follows from this, that what learned Counsel is suggesting is that the requirement imposed by reg. 4 (1) should not be construed as imposing a mandatory requirement, but rather a directory requirement only.

Another point raised by learned Counsel for the First Respondent, relates to section 10A (8) of the Act, which provides that the Board can regulate its own procedure. He submits under this provision, that the Board can send an inspector to carry out the inspection, or as was done in this case, one or two members of the Board to accompany the inspector. The requirement of a legal quorum in those circumstances becomes immaterial.

THE LAW

The Gaming and Lotteries Board is a creature of statute. Its powers therefore are prescribed by statute (the Gaming and Lotteries Act). We must look to the Act therefore to identify and define those powers. For our purposes, we are interested in a particular power of the Board. This is the power to do with the issue or granting of a Gaming Permit. and is contained in section 6 of the Act, as amended.

Section 6(1) and (3) of the Act sets out what the holder of such a permit is authorised to do; that is, to use such premises for commercial gaming and to authorise the holder to operate any form of commercial gaming. The Act also sets out the matters which the Board should consider, and this is what we will consider next, especially, the provisions relating to the inspection of premises.

Section 6A of the Act sets out four matters, which the Board must consider. Only two are relevant for our purposes and these are set out below:

"In granting a permit the Board shall be satisfied

(a) that, having regard to the lay-out, character, condition or location of the relevant premises, or any premises to be altered or erected, those premises are suitable or will be suitable, for the purpose of commercial gaming;

(d) that the Principal Inspector of Gaming has been given all reasonable facilities to inspect any premises referred to in the application."

The requirement in section 6A of the Act, is that "the Board shall be satisfied" with the matters set out in paragraphs (a) to (d). How the Board satisfies itself about those matters, listed in section 6A, is a matter for the Board to decide (see section 10A(8)). For instance, under paragraph (a) of section 6A above, the Board may or may not. decide to carry out an inspection, to satisfy itself about the lay-out, character, condition or location of the premises, whether they are suitable or will be suitable for commercial gaming. There is no mandatory requirement for an inspection of the premises to be undertaken by the Board itself. If the Board decides not to carry out an inspection, that is not fatal to the exercise of the power of the Board to issue a Gaming Permit, provided that it had considered the matters in paragraphs (a) to (d) and that they had been complied with to its satisfaction.

This is a crucial point, and pertinent to the proper construction that should be given to reg. 4(1).

Paragraph (d) of section 6A on the other hand, does make specific references to the question of inspection of premises, but that this should be done by inspectors, (in the Act it refers specifically to the Principal Inspector). Again there is no mention or requirement, that it is the Board who shall carry out the inspection. The only requirement however indicated is that an inspection should be carried out by the inspectors

The next relevant provision I will consider is section 10B(1)(c) of the Act, which states:

"The functions of the Board shall be

…..

(c) to ensure that all licensed premises comply with the requirements laid down by the regulations."

Paragraph (c) above could possibly be construed as imposing a requirement on the Board to carry out an inspection, in that the only way it could ensure that all licensed premises comply with the requirements laid down by the regulations is to carry out an inspection. Unfortunately, I do not think that that is the only way open to the Board to fulfil that function. First, it would have to identify the requirements laid down by the regulations, and then decide for itself whether, an inspection is necessary or not, and if so, whether, it would perform the inspection itself or by the inspectors. Again, there IS no mandatory requirement under the above provision for an inspection to be carried out by the Board.

The fourth relevant provision in the Act which contains references to the inspections of premises, is section 10B(2) (b), and states as follows:

"In the exercise of its functions the Board may

…..

(b) authorise the inspectors to carry out inspection of premises used in connection with commercial gaming;"

The above provision clearly gives the Board power to authorise inspectors to carry out inspection of the premises used for commercial gaming. It does not require however, that the Board must carry out the inspection. It may or may not, and if not, then it should authorise the inspectors in lieu thereof, to carry out that inspection.

The fifth provision I will consider, is contained in section 6(4) (b) and (d):

"The Minister may for the purpose of giving effect to the provisions of this section In consultation with the Board prescribe by regulations

(b) the manner in which inspectors may carry out inspection of Premises and gaming machines;

(d) the manner in which the premises is to be maintained, including provision for facilities to be afforded to persons resorting to, such premises;"

Subsection 6(4) of the Act above gives the Minister power to prescribe by regulations the matters inter alia. set out in paragraphs (b) and (d) above. Under paragraph (b) above, the matters which the regulations should deal with would include the question how the inspectors are to perform their task of inspecting the premises. Under paragraph (d), the regulations should deal with the question inter alia, how the premises are to be maintained, and the facilities that should be made available in such premises. No where in the above provision does it say however, that the inspection of the premises should be carried out by the Board.

Finally, section 6(4)(i) of the Act, empowers the Minister as follows:

"The Minister may for the purpose of giving effect to the provisions of this section in consultation with the Board prescribe by regulations

(i) such other provisions as may be required for giving effect to the requirements of this Act."

The above provision may be invoked to justify the imposition of the requirement in reg. 4(1), by the Applicant. However, the precise words used in pare. (i) above, should be noted, which is that, whatever regulations under pare: (i) above are passed, their function should be to give effect to the requirements of the Act. Now, one of the requirements stipulated under the Act relates to the suitability of the premises to be used, that is, that the Board must be satisfied that having regard to the matters set out in pare. (a) of section 6A, the premises are suitable or will be suitable. As read with pare. (d) of section 6A, it was noted that there is no mandatory requirement that the Board must carry out an inspection itself. On the other hand, it was noted that there is a requirement that an inspection nevertheless, must be carried out, and that by the inspectors. Now bearing in mind that the purpose of regulation 4(1), is to give effect to the requirements of the Act, it is clear that a strict construction of that regulation would not achieve that objective. Rather, as has been canvassed, reg. 4(1) should be construed as imposing merely a directory requirement, and not a mandatory requirement on the Board. So although the existence of reg. 4(1 ) may have been justified, the proper and correct construction that should be given to it should be that which is dictated to it by the Act.

From all that has been canvassed, the following clear propositions of law emerge.

1. That there is no mandatory requirement under the Act that an inspection of the premises must be carried out by the Board itself. The Board may or may not decide to carry out an inspection itself.

1. On the other hand, I am satisfied that the Act clearly envisages that an inspection must be carried out; but whether it is mandatory that this be done by an inspector, is not clear. From my reading of the Act, what is mandatory is that an inspection of the premises must be carried out, if not by the inspector, then it should be done by the Board.

1. The above propositions of law crystallize in my view the proper or correct construction that should be placed on reg. 4(1). That is, that reg. 4(1) should not be construed as imposing a mandatory requirement on the Board, to carry out an inspection itself. Rather. it should be construed as imposing a directory requirement only. A non-compliance therefore, that is, where the Board does not carry out an inspection itself, will not necessarily be fatal to the exercise of its power to issue or grant a Gaming Permit. Such a construction of reg. 4(1), in my view, is more consistent with the scope and objectives of the Act as a whole. To do otherwise, as suggested by the learned Attorney-General, would be unnecessarily restrictive.

APPLICATION TO THE FACTS

Was an inspection carried out either by the Board, or the Inspector? The evidence on this, in my view, is fairly clear. An inspection of the premises was carried out on 1st September, 1995, by a duly appointed Inspector, Allan Diamana, in the presence of Mr. Habu (Chairman of the Board), Mr. Gerea (member) and Daniel Manedika (non-member), (see affidavits of Allan Diamana and Daniel Manedika, both filed on 30th January 1996). The fact that the Board, whether fully constituted or with the legal quorum, was not present during that inspection, is not fatal to the exercise of the Board's powers, as has been canvassed. It is sufficient that an inspection had been conducted by a duly appointed Inspector. That fulfils a requirement of the Act that an inspection must be conducted. Further, it is pertinent to note that the Board was briefed on that inspection by the Chairman in its meeting on 6th September, 1995. In the affidavit of Primo Afeau filed on 19th February, 1996, at paragraph 8, he deposed that according to the report of the Chairman, the only outstanding item was the installation of the surveillance cameras, and that this would take a couple of days. The Board accordingly agreed, that a follow-up inspection of the premises should be done by the Inspector, and that as soon as the cameras had been installed, a recommendation should be made to the Minister to have the premises declared as, 'Approved Premises'. A follow-up inspection was subsequently conducted by the Inspector on 8th September. 1995 (see affidavit of Allan Diamana filed on 30th January, 1996).

The second related question which arises is whether the inspection was done prior to the issuance of the declaration by the Minister. This question raises an issue of law which would need to be addressed first. That is, whether it is mandatory that an inspection must be carried out prior to the issuance of the declaration by the Minister? This issue of law in turn raises another question, whether there is any requirement under the Act for a declaration of 'approved premises' to be made by the Minister? With respect, this last question must be answered in the negative. The Act does not require that the Minister must be satisfied that the premises are suitable or will be suitable, or that his approval must first be obtained before the Board can consider whether to issue a Gaming Permit or not. It is the Board who must be satisfied with the matters set out in section 6A(a) of the Act, that the, premises are suitable or will be suitable. It is immaterial, whether the Minister is satisfied or not, or whether a declaration has been issued or not. In that respect, it is immaterial whether an inspection was carried out prior to the issuance of the declaration or not. The question posed therefore, whether it is mandatory that an inspection must be carried out prior to the issuance of the declaration by the Minister, must be answered in the negative. This in turn settles one of the main questions posed in the originating summons, whether the inspection was done prior to the issuance of the declaration by the Minister. Since there is no mandatory requirement, that question actually raises a non-issue.

But even if we are to assume that there was any such requirement, the facts as adduced before this Court showed otherwise. The declaration was made by the Minister on 8th September, 1995. Inspection of the premises was carried out on 1st September, 1995, seven clear days, before the declaration was made.

The Board was then fully informed about the results of that inspection by the Chairman, in its meeting of 6th September, 1995. In that meeting, it was agreed that a follow-up inspection be carried out before a recommendation should be made to the Minister. This was in fact done on 8th September, after which, a recommendation was made to the Minister, and the declaration issued thereafter. In the circumstances. in any event. I am satisfied that an inspection was carried out prior to the issuance of the declaration by the Minister.

THE SECOND DECLARATION

The learned Attorney-General argues that the Minister's declaration of 'approved premises' made on 8 September 1995 was invalid in that there was non compliance by the Board with reg. 4(2) in that it was the former chairman himself, Mr. Habu, and not his Board fully constituted or with the legal quorum which advised the Minister to make the declaration he made.

In view of this Court's ruling as to the law regarding the relevance and applicability of reg. 4(2), it would not be necessary to determine the question or issue raised in the declaration sought above. The declaration sought therefore should simply be denied. Nevertheless for completeness sake, I would still deal with it as if it had raised an arguable issue.

The First Respondent's argument is that there actually was compliance with the requirements of reg. 4(2), and that this is clearly supported by the records of the minutes of the venous Board meetings. Learned Counsel for the First respondent submits that according to those records, it is evident that the Board had agreed to grant a gaming permit to the First Respondent, and that what the Chairman did was merely to act in accordance with that expressed view of the Board. Accordingly, it was not necessary for the Board fully constituted or with the legal quorum, as a group to have to advise the Minister.

The issue raised in the second declaration sought, is not so much whether the Minister was advised by a fully constituted Board or with the legal quorum as stipulated in section 10A(7) of the Act, but whether the Board was satisfied that the premises are suitable or will be suitable. This essentially is a question of fact, and the matters which the Court should consider are: whether the Board did reach such a conclusion, and whether there is evidence or material before the Board to justify such a conclusion.

The starting point must be to begin with the application when first lodged, as it would have comprised part of the material that was before the Board for its consideration. A copy of that application together with the covering letter are annexed to the affidavit of Everest Ega and marked 'EE1' and 'EE2'. The pertinent points to note are as follows:

(i) At paragraph 1 of the covering letter dated 12 June, 1995(annexure 'EE1'). the following statement was made:

"We would like you to take note of the fact that the intended premises were the site of a previous casino activity which has since closed down. Accordingly there is very little work required to have the premises ready for your inspection."

(ii) At paragraph 3.5 of the application form ('EE2'), headed "Premises" the following was provided:

"Solomon Casino will operate from the Franwing Building (above R. E. G Store) in Mendana avenue, Honiara and will be open to me Gaming Board for inspection prior to opening for business

The premises will be open to all members of the public. Furthermore it should be noted that the premises have previously housed a casino activity and therefore minimal repairs are required to have the premises operational."

The above information is crucial to understanding what the decision or views of the Board was. In Primo Afeau's affidavit filed on 19 February, 1996, at paragraphs 2 to 5. but in particular para. 5 this is what he states:

"The Board did not inspect the premises prior to that meeting as it did not consider it necessary under s. 6A. All the members of the Board knew the location of the premises and that it used to house a similar (casino) operation. Further, two members of the Board, Mr. Habu (former Chairman) and Mr. Ega had been to the premises on previous occasions in the course of their duties when it was used by the Honiara Gaming Club and they had advised the Board of the suitability of the premises. Based on the foregoing the Board had satisfied itself that the premises were suitable or going to be suitable for the purpose of commercial gaming as required by s.6A of the Act. Further that gaming activities would only commence after all the renovations and alterations were completed and all necessary equipment installed. "

There is no mention of the above matters deposed to in the records of the minutes of the Board meeting on 13th July, 1995 though I also note that no evidence to the contrary has been filed or adduced before this Court to dispute what Mr. Afeau had deposed to. On the balance of probability, I am prepared to accept that what he says did actually take place. The minutes of the meeting on 13th July, 1995, (see 'PA 1' in affidavit of Primo Afeau filed 19th February, 1996) did refer to the granting of an Establishment Licence, and to be valid for 18 months. It is more likely than not that such a licence would have been granted in the first place unless the Board had satisfied itself, inter alia with the fact that the premises were suitable or going to be suitable.

But, even if it could be successfully argued that no such decision was reached or made in that meeting, the Board did specifically address that question in its subsequent meeting on 6th September, 1995. In the same affidavit of Primo Afeau, at paragraph 8, he pointed out that an inspection had been conducted on 1st September, 1995, and that in the meeting of 6th September. the Board was briefed about that inspection by the Chairman; who had participated in that inspection with the Inspector, Allan Diamana, and others.

"On 6th September 1995 the Board met again. I was present at that meeting. The Chairman briefed the Board that on 1st September 1995 some members of the Board including himself and the Inspector Alan Diamana had inspected the First Respondent's premises to determine whether or not all the renovations had been done and all the necessary equipment installed to enable the commencement of gaming activities. He reported that the only outstanding item was the installation of the surveillance cameras and that this should take a couple of days to complete. The Board accepted the Chairman's report and agreed that a follow-up inspection of the premises should be done by the Inspector and as soon as the cameras were installed, a recommendation should be made to the Minister to make a declaration of Approved Premises in respect of the First Respondent's premises."

A copy of the minutes of that meeting is annexed to Primo Afeau's affidavit and marked "PA4". The records of the minutes of that meeting is consistent with what Prime Afeau had deposed to, and in my view confirmed what he had earlier said at paragraph 5 of his affidavit that the Board had on the 13th July, 1995 satisfied itself that the premises were suitable or going to be suitable.

See in particular paragraph 4 of the minutes ('PA4'), which states:

"The Chairman explained that Mr. Patrick Leong's application has been processed by the Board to almost completion. The Board at its meeting on 13.7.95 has approved an Establishment Licence for Mr. Patrick Leong and as soon as he puts in all that is required to Casino activities and security measures, the Board will recommend to the Honourable Minister to declare the premises acceptable for the purpose before the operation permit is granted."

The above statement would not have been recorded if there had been no agreement or consensus by the Board that the premises were suitable or going to be suitable. All that was required or remaining to be done as far as the Board was concerned was for the surveillance cameras (security measures) to be set up, before a recommendation would be made to the Minister. At paragraph 4 (second page), the clear views of one of the Board members was also recorded. That could not be any clearer. Put simply, the Board in my view had satisfied itself that the premises were suitable and that the only remaining thing needed to be done was for the surveillance cameras to be installed. Once this were in place, the Board would recommend to the Minister to have those premises declared as 'approved premises'. The evidence as adduced showed that a follow-up inspection of the premises was carried out on 8 September, 1995 (see annexure ‘DM15’ in affidavit of Daniel Manedika filed 30 January 1996). Following that inspection, a recommendation was made to the Minister.

The question posed earlier therefore, whether the Board did reach the conclusion that the premises were suitable or going to be suitable must be answered in the affirmative. The evidence supporting that view is fairly conclusive as already canvassed. I am also satisfied that there is sufficient evidence before the Court on which the Board could have come to that conclusion or satisfaction. The actions of the former Chairman therefore in advising the Minister to declare that the premises were 'approved premises' was consistent with what the Board had already decided. If there should be any doubts or confusions even at this stage, then an analysis of the individual members views in my respectful view would most certainly dispel such fears. First, the views of Primo Afeau (Board member). (See his affidavit filed on 19/2/96). One only needs to look at his views as expressed in his affidavit, and what he says occurred in those meetings, to confirm that he was in agreement with the decision of the Board that a recommendation be made after the surveillance cameras had been duly installed, as certified to be so by the Inspector. Secondly, item no. 4 of the records of the minutes of the meeting of 6th September, 1995, showed very clearly the views of the second member of the Board, Mr. Gerea.

"Mr. Gerea stated that Mr. Patrick Leong's application should be processed to grant the operation permit as it has not been pending but passed the stage where it can be held back or de/eyed."

Thirdly, the views of the Chairman himself, do not need any further clarification. When those three persons individual views are put together. they clearly make a quorum anyway, (section 10A(7) ), and showed consistency throughout, that the Board was satisfied that the premises were suitable or going to be suitable.

Lastly, an important point to note is that there is no iota of evidence to suggest, or show, that any member of the former Board had expressed outrage or any objection, that what the Chairman did was not in accord with what the Board had decided There is no evidence whatsoever to suggest that the Board had expressed any contrary view, or that no decision may have been made. I am satisfied, the declaration sought in paragraph 2 must also be dismissed.

PARAGRAPH 3 OF THE ORIGINATING SUMMONS

The declaration sought in Paragraph 3 of the originating summons is that

"as the Minister invoked s. 6(4) of the Gaming and Lotteries Act (Cap. 32) and not reg. 4(2) of the Gaming Regulations 1994 to make his said declaration of approved premises of the Respondent the said declaration was and is invalid in that s. 6(4) of the Act only empowers the Minister in consultation with the Board to prescribe regulations for the purpose of giving effect to s. 6 of the Act but does not empower the Minister to make the declaration he made. "

The submission of the learned Attorney-General that section 6(4) of the Act does not empower the Minister to make a declaration of 'approved premises', is a correct statement of the law because as has already been canvassed in this judgment, there is no requirement under the Act for the Minister to be so endowed with such a power. There is not even any requirement that the Board's decision or determination as to the suitability of the premises should be subject to the approval of the Minister. The clear requirement imposed under the Act is that:

"In granting a permit the Board shall be satisfied

(a) that, having regard to ... those premises are suitable, or will be suitable, for the purpose of commercial gaming;". (S. 6A(a) ).

It is not the Minister who should be satisfied, but the Board. It is correct in law therefore for the learned Attorney-General to assert that section 6(4) of the Act should not be invoked, and to rely on it to justify any power of the Minister to issue a declaration. On the other hand, he seems to be saying that had reg. 4(2) been invoked, that the declaration would have been valid, because it is reg. 4(2) that authorises the Minister to make a declaration. Whilst this is also correct, it should be reiterated that the requirement imposed under reg. 4(2), for the Board to advise the Minister to declare the premises to be an approved premises is a superfluity. There is no such requirement under the Act, and therefore that requirement can only be viewed as merely directory, if not, it is tantamount to being ultra vires. Whether or not a declaration is made, under that regulation by the Minister, will not affect the exercise of the power of the Board to issue a Gaming Permit.

It is also important to point out that the requirement imposed under reg. 4(2), that the Board be satisfied that the premises is suitable, is unnecessarily restrictive of the requirement imposed under the Act.

The issue raised in the above originating summons however, relates more in my view, to the form in which the declaration was made than anything else. What seems not to have been appreciated is that the form used for the declaration (see annexure 'DM18' in affidavit of Daniel Manedika) is a standard form, and the very same form used for the other casinos, as pointed out also by learned Counsel for the First Respondent in his submissions, at page 5. By attacking the validity of this form, the Attorney-General was more or less attacking the validity of those other declarations that had been issued using exactly the same format, (see LN 105/94, LN 36/95, LN 49/95). I do not think that was what was intended by the Attorney-General. The standard form does refer to reg. 3 and 4 of the Gaming Regulations nevertheless, and so can be construed, as justifying the issue of the declaration by the Minister. But even if it could be regarded as defective, the irregularity relates only to the form rather than the substance, and can be validated by section 53 of the Interpretation and General Provisions Act, 1978, as correctly submitted by learned Counsel for the First Respondent. In the circumstances, I am satisfied, the declaration sought need not be granted and is also dismissed accordingly.

PARAGRAPH 4 OF THE ORIGINATING SUMMONS

The declaration sought here, is a consequential declaration and was based on or dependent on, the assumption that this Court would also grant the declarations sought in paragraphs 1 and 2 of the originating summons. But as has been covered in this judgment, the declarations sought in paragraphs 1 and 2 have been denied by this Court. This effectively means that the declaration sought in paragraph 4 must also be denied.

Before going on to the next issue, however, I will address briefly as an aside, the suggestion made by learned Counsel for the First Respondent, that the provisions in reg. 4(3) are ultra vires the Act. This appears to have been conceded by the learned Attorney-General during the interlocutory hearing. Unfortunately, both the suggestion and concession made by learned Counsels, appear not to have taken into account, the provisions of section 6D of the Gaming and Lotteries Act, which makes it an offence for any person to have in his possession, any instrument designed or adapted for gaming without lawful excuse:

"Any person who, without lawful excuse (the proof whereof shall lie on him) has in his possession any instrument designed or adapted for gaming shall be guilty of an offence ...." (section 6D)

Regulation 4(3) appears to address the situation raised in section 6D, where, if any person has a valid Establishment Licence, then he would not be guilty of an offence It seems to me that the requirement for an Establishment Licence addresses a somewhat distinctive issue, separate from the other matters relating to the premises and the operating permit. It relates specifically to the question of possession of instruments designed or adapted for gaming. For instance, it would protect the position of an applicant who seeks to bring his instruments into the country but had not yet been issued with a gaming permit. While he is waiting for the gaming permit to be processed and the premises made suitable, he can be issued with an Establishment Licence, which would entitle him to be in possession of gaming instruments without committing an offence as otherwise would have been the case had he not been in possession of an Establishment Licence. The suggestion therefore that the provisions in reg. 4(3) are ultra vires the Act is not necessarily correct.

PARAGRAPH 5 OF THE ORIGINATING SUMMONS

The declaration sought in paragraph 5 of the originating summons raises the point that the permit issued on 19th September, 1995, had been made unilaterally by the former Chairman himself, Mr. Habu, and not pursuant to a decision by the Board, fully constituted or with the legal quorum. This again raises a question of fact, and the evidence would need to be considered to decide this Point.

The crucial piece of evidence which lends support to the claim of the applicant, and which could possibly damage the validity of the operating permit issued is the minute (marked 'DM13' in the affidavit of Daniel Manedika fled on 30 January, 1996) issued by the Chairman, to the Secretary of the Gaming and Lotteries Board, dated 8 September 1995, and reads as follows:

MINUTE

To: Secretary

Gaming & Lotteries Board

Ref: SD 12/12
8 September 1995
cc: CF 01/5/12

From: Chairman, Gaming and Lotteries Board

SUBJECT: SOLOMON CASINO OPERATING PERMIT

In view of the fact the Board has not been able to form a quorum and that it is not likely to do so for the next two weeks due to the unavailability of three of its members, I as Chairman do hereby advise that an operating permit be now given to Mr. Patrick Leong to operate Solomon Casino on the following grounds:

(a) That an Establishment Licence has already been awarded by the Board;

(b) Solomon Casino has already spent money on its development including advance payment of rent for three months;

(c) Workers have already been contracted;

(d) The Board had already agreed in principle to giving an operating permit at its meeting on 6/9/95 as reflected in my memo. CF 01/5/12 of 7th September, 1995;

(e) The Minister at our meeting this morning has advised that an operating licence be awarded due to me above reasons and an appeal by Mr. Leong's legal Counsel.

Issuing of the permit shall be subject only to the inspection report as discussed.

(SIGNED)
M.B. Habu Chairman

A hurried and isolated reading of the above minute, could lead one to the same conclusion that the learned Attorney-General did, that the operating permit had been issued unilaterally by the former Chairman, and not by the Board. However, to accept such a conclusion without considering the context in which it was made, in my view, would not be doing justice to the whole matter. That minute must be placed within the context of the various preceding meetings of the Board. When that is done, a different picture emerges, and does show that a decision was actually made by the Board.

First, the affidavit evidence of Primo Afeau filed on 19th February, 1996 will be considered. At Paragraph 3, he states:

"After much discussion and consideration the Board approved that application to grant a Gaming Permit to the First Respondent. The Board had satisfied itself that the requirements of s 6A of the Gaming and Lotteries (sic) were met."

Mr. Afeau deposed that the decision to grant a Gaming Permit had been made on that first meeting of the Board on 13th July, 1995, and maintained his position even under persistent cross-examination by the learned Attorney-General. He explained that the Board considered all the requirements imposed under s.6A of the Gaming and Lotteries Act, and after satisfying itself that they had been met or were going to be met, the Board decided to grant the Gaming Permit. What occurred thereafter, was more a matter of formality than anything else. The crucial decision he says was made on that first meeting on 13th July, 1995. So even though only an Establishment Licence was purportedly issued, and the records of the minutes of that meeting (see annexure 'PA 1'in the said affidavit of Primo Afeau) made mention only of an Establishment Licence, the matters discussed included the question whether a Gaming Permit should be issued or not. It is pertinent to note that although Mr. Afeau had been rigorously cross-examined by the learned Attorney General, no other evidence to contradict what he says had been adduced.

At paragraphs 6 and 7 of the said affidavit of Primo Afeau, he also made the following statements:

"After the Board's approval of the First Respondent's application the Board received a letter from me Honiara Town Council expressing concern over the Board's decision to issue a Gaming Permit to the First Respondent. The Board was asked to consider revoking its decision.

The Board again met on 21st August 1995 and one of the items on the agenda was to consider the letter by the Honiara Town Council. I also attended this meeting. The President of the Honiara Town Council and the Town Clerk were invited by the Board for this particular item to make representations. After such representations and after considering the same me Board saw no legal basis for revoking its decision to issue a Gaming Permit to the First Respondent Exhibit hereto marked UPA3" are minutes of the said meeting."

At item 9 of that exhibit ("PA3"), the records of the minutes of that meeting read as follows:

"Mr. Afeau stated that the Board cannot decide against its own decision. He said that the Board has satisfied that the decision it has taken to approve the licence for Solomon Casino is consistent with the Act."

The above records of the minutes speak for themselves. They are clearly consistent with the views expressed by Mr. Afeau in his affidavit, that a Gaming Permit had been considered by the Board in its meeting on 13th July, 1995, and approved. The subsequent issue of the licence reflected this view and there is consistency with that view in the records of the minutes of the Board Meeting in August, 1995.

The next crucial meeting was conducted on 6th September, 1995. The relevant part of the minutes at item 4 (page 1) read as follows:

"The Chairman explained mat Mr. Patrick Leong's application has been process by the Board to almost completion. The Board at its meeting on 13.7.95. has approved an Establishment Licence for Mr. Patrick Leong and as soon as he puts in all mat is required to Casino activities and security measures, the Board will recommend to the Honourable Minister to declare me premises acceptable for the purpose before the operation permit is granted."

Now, according to what was recorded above, there would appear to be a contradiction in what Mr. Afeau had been maintaining all along that the decision to approve the Gaming Permit had been made on 13th July, 1995. Under cross-examination and re-examination however, Mr. Afeau explained that there wasn't necessarily a conflict, in that what happened after the meeting of 13th July, 1995, were the nuts and bolts of the whole thing. He explained that according to the regulations, an Establishment Licence would have to be issued' and an inspection carried out, to ensure that all necessary facilities had been installed before the premises could then be declared as 'approved' by the Minister. Once these requirements had been complied with, it was merely a matter of formality for the Gaming Permit to be issued. He pointed out that the crucial meeting was the first, (that is, the one held on 13th July, 1995) in which the pros and cons of the application and the requirements stipulated under section 6A of the Act were carefully considered. It follows therefore from all these that the action of the former Chairman, Mr. Habu in advising the Secretary in his minute of the 8th September, 1995 (annexure 'DM13') to issue an 'operating permit' (Gaming Permit), was in conformity to and consistent with the decision of the Board.

I can draw no other conclusion from the undisputed evidence of Mr. Afeau, and the records of the minutes of the meetings of the Board. than to agree. The action of the Chairman in that context was not and cannot be construed as a unilateral decision. Apart from the allegation raised in paragraphs 14 and 15 of the affidavit of Daniel Manedika filed on 30 January, 1995, there is no scintilla of evidence to support such view.

But even if there should be some uncertainty or doubt entertained, as to the question of fact whether the Gaming Permit was issued unilaterally by the Chairman, one only needs to look at the individual views of the members of the Board to dispel such concerns. I have already canvassed this point when dealing with paragraph 2 of the originating summons and therefore do not need to repeat them here. The affidavit of Primo Afeau and the records of minutes of those various meetings speak for themselves.

Finally, even if somehow, it could be argued that the advise given by the Chairman and his actions were unilaterally done, the evidence adduced shows that the other members of the Board did not take issue with, dispute, or object to. what he had done. His actions therefore may at the most, have been construed as irregular, but I am not satisfied that such irregularity would warrant the intervention of this court. Bearing in mind that the remedy of declaration is a discretionary remedy, when all the above factors are considered together, this court would decline even to exercise its discretion in favour of the declaration sought.

ORDERS OF THE COURT

The declarations sought in paragraphs 1 to 6 of the Originating Summons filed on 30 January, 1996 are denied.

The Applicant to bear the costs of the First Respondent.

A. R. PALMER,
JUDGE