Attorney-General v Super Entertainment Centre Ltd [1996] SBHC 5; HC-CC 031 of 1996 (6 February 1996)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 31 of 1996

THE ATTORNEY GENERAL

v

SUPER ENTERTAINMENT CENTRE LIMITED
(Trading as Solomon Casino)

Before: Palmer, J

He: 5th February 1996

Judgment: 6th February 1996

Counsel: Attorney General in person

Andrew Radclyffe for Respondent nbsp;

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PALMER J: The Applicant applies by Notice of Motion filed on 30 January 1996 n interlocutory injunction to restrain the Responespondent by its proprietors, servants and/or agents from continuing with its commercial gaming activities until trial of the main cause of action.

The main ground on which the application is based is that there had been a breach of the provisions of the Gaming and Lotteries Act (Cap. 32) and Gaming Regulations 1994 and that in the exercise of his fiat the learned Attorney-General had decided to intervene, in the public interest, and to put a stop to the alleged illegal activity of the Respondent.

It is not in dispute that the Respondent had opened for business since 25^th September, 1995 (see affidavit of Patrick Leong, filed on 2^nd February, 1996 at paragraph 3). The Respondent claims that it had been granted the necessary permits in form similar to those granted to other Casinos in Honiara and that it had complied with the conditions attached to the gaming permit. It also claims that the permit had not been suspended or cancelled up to the date of hearing of this application.

The first issue which arises for consideration is whether the learned Attorney-General has locus standi. It is important to have this issue sorted out at the outset because if I should rule in favour of the Respondent, then that puts an end to the application of the Applicant, and I would not need to consider the question whether it would be proper for an interlocutory injunction to issue.

Learned Counsel for the Respondent submits that the learned Attorney-General is not asserting a public right and that therefore he does not have locus to bring this action. He relies on a judgment of this Court, in civil case number 209 of 1988, judgment delivered on 25 November, 1988 by the then Chief Justice Ward, in which he made the general remark: "No one would deny that the public have an interest in seeing that these laws are properly applied but public interest does not necessarily indicate a public right". Mr. Radclyffe points out that he is not disputing that it is in the public interest for the learned Attorney-General to see that the laws of this country are complied with. However, there is no public right on which he can base his action on, and therefore activate his locus to bring this application.

The general remarks of Ward CJ in the above case, relied on by learned Counsel for the Respondent, to support the proposition that this Applicant must show that he is asserting a public right before he can have locus, in my respectful view is correct, although in civil case 209 of 1988, that application did not involve the question of the issue of an interlocutory or perpetual injunction. That general principle has been well established in the English Courts as described by Devlin J. in the case referred to by the learned Attorney-General; Attorney-General (on the relation of Homchurch Urban District Council) -v- Bastow [1957] 1 All E.R. 497. In that case, one of the issues which the learned judge considered was whether the Court had jurisdiction to grant a remedy by way of injunction in a case where the Act itself prescribes what steps are to be taken to enforce the law. I do note that the above question is slightly different, but the principle described in that judgment in my respectful view is equally applicable in this case. The learned judge referred to two cases, Attorney General v. Ashborne Recreation Ground Co. [1902] UKLawRpCh 171; [1903] 1 Ch. 101, and Attorney-General v. Wimbledon House Estate Co., Ltd. [1904] UKLawRpCh 77; [1904] 2 Ch. 34, then made the following pertinent comments:

"Those cases establish that a remedy by injunction for a breach of a statute exists only if a right has been infringed. The mere fact that an illegality has been committed because the provisions of a statute have been broken is not, of itself, enough. The statute, presumably, will provide what is to happen in such circumstances by way of a penalty, as it does provide in the present case, and no other remedy is open unless, as I say, a right has been infringed."

The learned judge then goes on to recognise that the infringement of rights include the infringement of public rights, and that where that had been shown, the Attorney-General had locus to bring an action.

The same question therefore asked by Ward CJ in civil case 209 of 1988 must also be asked here: "What then is the public right he (the Attorney-General) seeks to assert?" The gist of the learned Attorney-General's claim is that there had been a breach or non-compliance with the mandatory requirements of The Gaming Regulations, 1994, in particular regulation 4(1) & (2), which required the Board to inspect the premises to ensure that such premises were suitable for commercial gaming before any recommendation could be given to the Minister responsible to declare the said premises, an "approved premises". Also that it was a prerequisite to the issue of a gaming permit. The learned Attorney-General asserts that those breaches are so fundamental to the validity of the permit issued, and that the non-compliance with those requirements meant that an invalid permit had been issued. This in turn meant that the Respondent had been operating illegally. Members of the public therefore who enter the Respondent's Premises and gamble, are doing so illegally and are being "injured" by it. When asked by the Court to particularise the injury caused to the members of the public, the learned Attorney-General pointed out that it was by virtue of the claim that the Respondent did not have a valid permit, and not that they were being cheated, or I might add, that the actual gaming activities of the Respondent were tainted.

I think there is some merit in the above submission of the learned Attorney-General, although he did not so express it as clearly as might have been intended. I am prepared to accept that members of the public at least have the right to participate in an activity that has been lawfully endorsed, and therefore should be protected where there are allegations of breaches of the law. There is however a much more important right, not mentioned, but which is evident and stems from the terms of Regulation 4(1) and (2). Parliament had deemed it important that the premises in which such activity occurs, be suitable, and therefore had made it a requirement in Regulation 4(1) and (2) that an inspection must be carried out by the Board of the premises, before a recommendation is made to the Minister responsible to have those premises declared as suitable; that is as "as approved premises" There must be some logical explanation or reasons for this requirement. One of those reasons or explanation is that Parliament must have considered it important that members of the public have a right to engage in commercial activities, in premises that are "suitable" for such purposes, and that therefore they must be protected; in this case by the lawful and valid actions of the Attorney-General, in the exercise of his fat as the defender of public rights, where there had been a breach or an alleged breach. I am satisfied that in the circumstances of this case, there has been a valid exercise of that fiat. I am satisfied therefore that the Attorney-General has locus, and that it is not open to this Court to examine his reasons for his decision to take up this case, as may have been implied from the submissions of learned Counsel for the Respondent. See the remarks of Ward CJ in the same civil case no. 209 of 1988 at the last paragraph of page 3 and continuing at the top of page 4, in which his Lordship stated:

"Where he decides to intervene in this way, the Court cannot examine his reasons for that decision and will generally be slow to rule that he has no locus standi."

This brings me next to consider the question whether an interlocutory injunction would be proper in the circumstances of this case. First, are there serious issues to be tried. I think what has been said so far in this judgment is sufficient to show that there are issues serious enough to be tried before this Court. Those issues as particularised in the Originating Summons on which this application is foundered assert inter alia, that there have been breaches of Regulation 4, of the Gaming Regulations 1994, and the provisions of the Gaming and Lotteries Act, which are so fundamental that it attacks the validity of the gaming permits, establishment licences and declarations issued in favour of the Respondent. The affidavits filed in support, of Allan Diamana, filed on 30 January, 1996, Nelson Ne'e filed also on the same date, as well as that of Daniel Manedika do show on the face of those affidavits, that there has indeed been breaches and or non-compliances of the provisions of the Gaming Regulations 1994 and the Gaming and Lotteries Act. I point out here that it is not the function of the Court at this stage of the proceedings to resolve issues of fact or law and conflicts of evidence on the face of the record. All that I need to be satisfied with is that there are triable issues. I am strengthened in my view of the existence of such triable issues, by the way in which learned Counsel for the Respondent had sought to present the second part of his submissions, which in my respectful view actually seeks to address in some way the merits of the case, as to the correct procedure to be followed or as required by the Act or Regulations, and whether inspection must necessarily be conducted in person by each individual member of the Board, or such members of the Board as will constitute a quorum, or whether the requirements of the Act would have been complied with, had an individual member or an inspector, duly authorised by the Board had carried out such an inspection, on its behalf and made a report to the Board for its consideration. These are matters which would have to be addressed in depth at a later stage. I am satisfied for the purposes of the application that there are triable issues for consideration by this Court.

The next matter for consideration is whether damages would be an adequate remedy. The learned Attorney-General has sought to submit that if no interim injunction is issued, that irreparable harm or damage would be incurred. With respect however, he has not shown what that irreparable damage or harm would be, other than to assert that members of the public have been injured or continue to be injured by the activities of the Respondent. It has not been shown that continued use of those premises where the gaming activity takes place is hazardous or injurious to the users, or that the users are being cheated when using the said premises for commercial gaming. I accept Mr. Radclyffe's submissions here that the Attorney-General or members of the Public are not being prejudiced in anyway. I think it is important to note the distinction, that the claims of the Applicant is not that the users are being cheated by engaging in the commercial gaming in the said premises of the Respondent, but that the requirements of the law regarding inter alia, inspection of the said premises, and issue of the gaming licences and permits, are the matters in dispute. There is no evidence to show that the actual gaming activities are not in order, or fair and acceptable. It has not been shown therefore that damages would not be an adequate remedy. And in fact it appears not contested, that me real culprits here may not have been the Respondent but rather the Board and the Minister responsible, which dealt with the application of the Respondent. If damages therefore are due, then it is highly unlikely that the Respondent would be made liable for the full amount.

Any suggestions that the issue of an interim injunction is a right by virtue of the locus of the Attorney General and the exercise of his fat in this case is misconceived. His entitlement to the benefit of an interim injunction is no different to that of a private litigant, and he must meet the requirements as set out in the principle established by the House of Lords in American Cyanamid Co. -v- Ethicon Ltd. [1975] A. C.396, and as has been adopted with open arms by this Court in subsequent cases:

[See:

1. Nelson Meke -v- Solmac Construction Company Ltd. CC44 & 45 of 1982;
2. S.I. Navigation Services Ltd. -v- SINUW [1983] SILR 117;
3. SIG -v- SIPEU CC102 of 1991;
4. Beti and Others -v- Allardyce and Others CC45 of 1992;
5. Merle Agorau -v- Terry Talasasa and Ollie Talasasa CC90 of 1994: and others.]

I am satisfied accordingly that no interim injunction is justifiable in the circumstances of this case.

There is however a matter which should also be mentioned because it is also a relevant consideration in the exercise of the Court's discretion to grant interlocutory relief by way of injunction. This relates to the question of delay, and the appropriate maxim is "Vigilantibus non dormientibus jura subvenient - a plaintiff should not sleep on his rights". If the matter had been so urgent then an application for an interim or interlocutory injunction would have been made earlier. The affidavit evidence adduced, which is not contested, was that the Respondent opened for business on or about 25th September 1995. Some four months later, an application for interlocutory relief is made. No satisfactory explanation has been provided for that delay. In my respectful view, the delay is also a significant factor that would weigh heavily in the Court's mind, in addition to the question whether damages would be an adequate remedy, as to the exercise of the Court's discretion, whether to grant an interlocutory injunction. I am satisfied that the Court's discretion must be exercised against the issue of an interlocutory injunction and the application must be dismissed with costs.

I note that other matters have been raised in the submissions of learned Counsel for the Respondent but in my view these could be better addressed at trial when all relevant matters are raised before the Court for its determination

A. R. PALMER,
JUDGE