Club Freeway v Honiara Liquor Licensing Board [1998] SBHC 112; HCSI-CC 28 of 1998 (28 August 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 28 of 1998

CLUB FREEWAY

-v-

HONIARA LIQUOR LICENSING BOARD

High Court of Solomon Islands
(Kabui J)
Civil Case No. 28 of 1998

Hearing: 24th August 1998
Judgment: 28th August 1998

G. Suri for the Applicant
R. Johnson for the Respondent

KABUI J: This is an appeal by the proprietor of the Freeway Night Club (“the Club”) Mr. William Lai (“the Appellant”) against the decision of the Honiara Liquor Licensing Board (“the Board”) in refusing to renew the Club’s licence on 16th December, 1997. The Club is located on the Ground Floor of the Tongs Building on Gubbay Street along the Hibiscus Avenue opposite the Hong Kong Palace Restaurant. There is a Fuel Depot next to the Club. The Club was permitted to open for business between 6 pm - 2 am The Club provided entertainment and sold liquor and cigarettes for that purpose. As part of preparation for the opening of business, the Appellant had spent a lot of money on m.0difications to the Club premises as requested by the Fire Service. The Club was opened for business in July, 1996 after its application for a Night Club Licence was approved in April and issued in May 1996 respectively. Following a fight outside the Club in July, 1996, the Club was closed by the authority of the Honiara Town and Country Planning Board. The allegations then were that the toilets did not meet health standards plus the general standard of health in the Club being unsatisfactory. The Appellant rectified these problems and the Club was opened again for business in September, 1996. In June, 1997, the Health Authorities again carried out a follow-up inspection of the Club and ordered further rectification measures. The Appellant again complied to the satisfaction of the. Health Authorities who recommended renewal of the Appellant’s Club Licence. However, a joint inspection by the Police, the Fire Service and the Environment Health Division of the Honiara Town Council was subsequently carried out at night on 27th September, 1997 of the Club premises. By this time, the Club Licence was due for renewal. On 19th December, 1997, the Appellant received a letter from the Secretary to the Board advising the Appellant that the Club’s licence had been refused without further ado.

The Appellant’s Case.

The main contention by the Appellant is that the Board did not have jurisdiction at the time it made its decision on 16th December, 1997 to refuse the renewal of the Appellant’s Club Licence. Also allied with this contention on jurisdiction is the contention that the Chairman of the Meeting of the B6ard on 16th December, 1997 was the Chief Magistrate of the Central Magistrates Courts. The point being that section 16 of the Liquor Act (Cap. 33) (“the Act”) does specifically stipulate the Principal Magistrate being the Chairman of the Board. Mr. Suri strongly argues that there is no evidence to show that the Board was validly constituted under section 16 of the Act on 16th December, 1997. In other words, no Board was in legal existence since Gazette Notice No. 234 of 1996 expired on 22nd November, 1997. The following were the members of that Board which ceased to exist on 22nd November, 1997 -

Denzil Senevirantne (Chairman)

Joyline Liolea

Philip Solodia Funifaka

Joseph Leo

Fred Seda

Bobo Chan

Kevin Leong

They were appointed for a period of one year with effect from 22nd November, 1996. The date of 16th December, 1997, being the date of the Board Meeting was well beyond 22nd November, 1997, the expiry date of the one year term appointment.

The Respondent’s Case.

The case for the Respondent is set out in affidavits sworn and filed by the Secretary to the Board, Mr. Bobby Kamausi, and the President of the Honiara Town Council, Mr. Robert Wale. In Mr. Bobby Kamausi’s affidavit filed on 21st August 1998, he says that he believes that the President of the Honiara Town Council had reappointed the same members of the Board soon after the expiry- date of 22nd November, 1997 because the President has said so in his affidavits filed on same day. In paragraph 4(d), Mr. Bobby Kamausi, deposes -

“It has been pointed out to me that the entry in the Solomon Islands Gazette dated 9th February 1998 (page 2 of Exhibit “BK1”) advises that the new Board was appointed by the Hon. Robert Wales on 22nd January 1998 with effect from 22nd November 1997. I confirm that this was a simple clerical error on my part. As stated above, and in the affidavit of the Hon. Robert Wale, the previous Board were reappointed up until the appointment of the new Board on or about, 22nd January 1998. I did not publish in the Solomon Islands Gazette the reappointment of the previous Board because I did not then know when the President would appoint the new Board and therefore for how long the reappointments would last. I understand and believe it is not a strict requirement under the Liquor Act or otherwise that the appointment/reappointment of Boards is published in the Gazette and it is therefore for public information only that I so publish new appointments. Unfortunately, when I arranged to publish the new appointments I calculated the start of those appointments from the expiry of the original terms of the previous Board rather than the reappointed terms.”

In other words, the same members of the Board were reappointed up to 22nd January, 1998 but the appointments were not published in the Gazette due to oversight. The fact that the new appointments in Gazette Notice No. 14 of 1998 were back-dated to 22nd November, 1997 is purely an unfortunate fact.

The Jurisdiction Question.

It would seem to be the case that the Respondent may stand or fall on the jurisdiction question. Whether to believe the Appellant’s case or that of the Respondent would largely depend upon the evidence produced to the Court. I have read the two affidavits filed on 21st August, 1998 by the President of the Honiara Town Council, Mr. Robert Wale (“the President”). These affidavits were filed almost simultaneously, within 6 minutes of each other. In the affidavit filed at 11.52 am, the President deposes thus:

“2. One of my responsibilities as President is to appoint (or reappoint) members of the Honiara Liquor Licensing Board (“the Board”).

3. In about September 1997, the secretary to the Board (Bobby Kamausi) advised me that the appointments of the then Board members would come to an end on 2lst November 1997, but that the members were eligible for reappointment.

4. At the time I had a number of other pressing commitments but believed that as with my other ‘duties I should give careful consideration to the matter. I therefore reappointed the existing Board members in the meantime while I considered whether I should appoint each of those members for a further period of 12 months or should offer the posts of some of the Board members to other representatives of the community.

5. After discussing the matter with various people and after giving the matter due consideration, in or in about January 1998 I decided to make some fresh appointments to the Board. Under my powers under the Act I therefore relieved certain members of the then Board of their posts and appointed new members in their place.

6. I confirm that the meeting of the Board on 16th December 1997 (at which the Board considered the renewal of the licence of Freeway Night Club) was beard after my reappointment of the previous Board (following the expiry of the members’ appointments by the previous President of Honiara Town Council, David Maesua) and before I appointed the new Board in or in about January 1998. The first meeting of the new Board was in March 1998.”

In the second affidavit filed at 11.58 am, the President says very little about the reappointments he allegedly made referred to in his first affidavit. In so far as the question of reappointment is concerned, the President and the Secretary to the Board have said the same thing, that is to say, the same members of the Board had indeed been reappointed after 22nd November, 1997. This may well be so. However, the President nor the Secretary to the Board has said how the same members of the Board were reappointed. Were they reappointed by letter or by word of mouth or were they telephoned by the President to tell them of their reappointments. No letters of appointment have been produced to the Court. No affidavits by the reappointed members of the Board have been filed to confirm such reappointments having been done by word of mouth or by telephone calls.

It would be unsafe to assume that the President and Secretary to the Board are telling the truth. What they say in their sworn affidavits have not be tested by cross-examination. The Court has not had the opportunity of seeing them speak from the witness-box and being cross-examined by Counsel. There might have been indeed reappointments but where is the evidence of the mode of appointment at least from Minutes in the relevant File or a Diary book of some sort?

The Board Meeting.

The Board Meeting was attended by 5 members of the Board including the Chairman who is the Chief Magistrate of the Central Magistrates Courts. The quorum for a valid Meeting to take place is 4 members including the Chairman or in his absence, the acting Chairman. There was nothing wrong with the quorum at the Board Meeting of 16th December, 1997. The Board Meeting would have been a valid one if the Board itself had been legally constituted, under the Act.

The Law.

The composition of the Board is provided for under section 16 of the Act. This section is as follow -

“Liquor Licensing Board.

16. (1) There is established in each Province a Liquor Licensing Board which shall be the liquor licensing authority for that Province.

(2) The Boards shall consist of a Magistrate to be appointed by the Premier acting in accordance with the advice of the Chief Magistrate in that Province who shall be Chairman and each of the following persons as members -

(a) a Church representative in that Province;

(b) a woman representative in that Province;

(c) a police officer in that Province nominated by the officer in charge of the police force in that Province;

(d) a representative of the business sector in that Province; and

(e) two other members resident in that Province.

(3) The members shall be appointed by the Premier of the Province and hold office at the pleasure of the Premier for a period not exceeding one year commencing on the date they are appointed and are eligible for reappointment.

(4) A member of the Board may resign at any time by giving notice in writing to the Premier and the resignation shall bike effect on the date specified in the notice or, if no date is specified, on the date the Premier receives the notice.

(5) Where the Chairman is unable to perform his functions as Chairman, the Premier may appoint one of the members to act as Chairman of the Board.

(6) At any meeting of the Board, the Chairman or in his absence the acting Chairman and three members shall constitute quorum.

(7) The Chairman of the Board shall have a deliberate vote and, in the case of an equality of votes, shall also have a casting vote.

(8) The procedure at each meeting of the Board shall be regulated by the Chairman or, in his absence, the acting Chairman

(9) In this section, the expression - “Province” includes Honiara Town Council; “Provincial Secretary” includes the Clerk to Honiara Town Council; and “Premier” includes the President of Honiara Town Council.

The intention of Parliament obviously is that the granting, renewal or refusal of liquor and Club licences would be administered and controlled by an independent Board, the members of which are to be appointed by the President to hold office for a term of one year at his pleasure. At the end of the term of one year, the President may reappoint the same members of the Board for another term of one year. The President may also appoint completely new members or may combine some old members with new ones provided they are 7 members as required by the Act. It is essential that there be a Board at all times to perform the functions required of it under the Act. There is nothing in section 16 nor in the Act which empowers the President to appoint members of the Board on a temporary basis such as for a period of less than one year term as required under section 16 of the Act. Either there is a Board appointed or reappointed for a term of one year or nothing at all. Gazette Notice No. 14 of 1998 has the effect of back-dating the new appointments to 22nd November, 1997. There is no power in section 16 of the Act nor in the Interpretation and General Provisions Act, 1978 enabling the President to back-date appointments under section 16 of the Act. He has no discretion to do that either. Whilst saying this, I am also mindful of section 9 of the Interpretation and General Provisions, Act referred to above. This section is as follows –

“9. (1) An Act speaks from time to time.

(2) Each Act is intended to be read as a whole.

(3) Each Act shall be deemed to be remedial and shall receive such fair and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.”

In other words, an Act is always speaking in the present tense. It does not speak retrospectively per se or by validation unless by expressed or implicit terms in the Act itself. Secondly, the Act must be read as a whole. And thirdly, the Act should be interpreted in such a way that the object of the Act is attained. This is what is called the “purpose approach” in the interpretation of statutes. In my view, the language in section 16(3) of the Act is very clear. I give the words in subsection 3 their natural meaning. There is no room for back-dating of appointments in that subsection. Also, the purpose of the Act is to provide for a machinery whereby the object of the Act is attained within the legal framework of the Act without being questioned by those who are affected by the decisions of the Board and the like in the Provinces.

Conclusion.

As I have said, this case either stands or falls on the jurisdiction question. It is a fundamental issue in so far as the legal powers of the Board are concerned. I find that although the President and the Secretary to the Board have said in their affidavits that reappointments had in fact been made, there is no evidence to show the mode of such reappointments. This is important. It is all very well to say reappointments had been made but if there is no evidence to support that statement, then, the position on the balance of probability is that no such reappointments had been made. I find that there is no such evidence in this case. Even if I am wrong in my conclusion, I do not think the President has got power under section 16 of the Act to appoint the same members of the Board or even fresh members for a period of less than one year term as stipulated under section 16 of the Act.

The period between 22nd November, 1997 and 22nd January, 1998 is only 2 months. It is not a term of one year. Administratively, back-dating the new appointments In Gazette Notice No. 14 of 1998 2 months may not be fatal. In my view, such is fatal in law. If there had been indeed reappointments for 2 months, such would be of no effect in law. In view of this conclusion, I do not think it is necessary to consider and rule upon the supplementary question of the legality of the chairmanship of the Board on 16th December, 1997. All I can say is that the position advanced by Mr. Suri in his submission has now been slightly altered by the Liquor (Amendment) Act, 1992 (No.6 of 1992). That is, the Principal Magistrate is no longer the automatic Chairman of every Liquor Licensing Board. The Appellant’s appeal is allowed and the decision of the Board on 16th December, 1997 set aside. This being the case, I do not think it is necessary now to deal with the other arguments advanced by Mr. Suri on the other aspects of this appeal.

Appeal By Case Stated.

There appears to be some confusion as regards the exact form a special case stated should take. In my view, Part IX of the Criminal Procedure Code (Cap. 4) as prescribed in section 33(2) of the Liquor Act applies with modifications where necessary. This is rather a tricky procedure. What begins as a civil matter under the Act ends up being dealt with under the criminal procedure for criminal appeals by case stated. The Court is faced with the task of making modifications where necessary. That is not an easy task

The judgment of the Court is that -

1. the Board not have jurisdiction to hear the Appellant’s application for renewal of the Club Licence on 16th December, 1997;

2. the Board’s decision in refusing to renew the Appellant’s Club Licence on 16th December, 1997 be set aside.

And the Court makes the following Orders -

3. The Appellant’s application for the renewal of the Club Licence be remitted to the Board as constituted in Gazette No. 14 of 1998 for due determination;

4. The Board pays the Appellant’s cost to be taxed if not agreed.

F. O. KABUI
JUDGE