Uluilakeba v Western Province Liquor Licensing Board [1998] SBHC 127; HCSI-CC 51 of 1998 (23 October 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 51 of 1998

WILLIAM ULUILAKEBA

-v-

WESTERN PROVINCE LIQUOR LICENSING BOARD

HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)
Civil Case No. 51 of 1998

Hearing By Written Submissions
Judgement: 23rd October, 1998

Bridge Lawyers for the Applicant
L. Hamilton for the Respondent

PALMER J.: The Applicant was the holder of a retail beer licence at Munda. It had been transferred from premises in Noro in 1997. Approval for the transfer was granted on 5th February, 1997.

Towards September of 1997, the Respondent sent a letter reminding the Applicant to complete an application form for renewal. This was duly completed and returned to the Respondent.

On 22nd November 1997, the Respondent met and considered all the objections it had received in respect of the Applicant’s application. The Applicant himself attended and was given opportunity to respond to the objections raised. The Respondent refused to grant a renewal of the licence of the Applicant citing three reasons for its decision:

“1. The Church Leaders, Community Leaders in and around Munda and Roviana Lagoon strongly objected the renewal of the applicants Licence because of the increase in drinking problems affecting the peace and harmonies of the respective Communities.

2. The police Report revealed the continuous violation of the condition of the applicant’s Licence by allowing his customers to drink on the area of the licensed premises.

3. The Board convinced after having the opportunity to question the applicant on the allegation that he had been warned but continued to entertain customers to drink in the licence premises.”

The Applicant now appeals against that decision pursuant to section 33 of the Liquor Act as being erroneous in point of law or ultra vires.

Two grounds were relied on. First that the Respondent erred in law in finding that beer had been consumed within his “licensed premises”. Secondly, that the Respondent took into account irrelevant matters when making its decision and thereby acted ultra vires its powers.

THE LAW:

Section 19(1) of the Liquor Act provides:

“Save as otherwise provided in this Act, any person wishing to make an application for the grant, renewal, removal or transfer of a licence, shall apply to the Chairman of the licensing authority in the appropriate form prescribed in Schedule C:

Provided that it shall not be necessary to make application to the licensing authority for the renewal of a retail licence or a wholesale licence unless objection to the renewal of such licence has been lodged by a police officer with the holder thereof before the month of November in the year immediately prior to that to which the renewal would relate.”

It is not in dispute that the Respondent did convene a meeting to consider the application of the Applicant for renewal.

Section 23(6) sets out the grounds of objections that may be lodged against an application for renewal of a licence. I quote:

“Any one or more of the following objections may be made to an application for the renewal of a licence-

(a) that the conditions of the applicant’s licence have not been satisfactorily fulfilled;

(b) that the frequent breaches of the law have occurred on the licensed premises within the twelve months preceding the application;

(c) except in the case of a wholesale or retail licence, that the facilities for serving liquor are unsuitable; ....”

GROUNDS OF APPEAL:

One of the specific grounds relied on by the Respondent was that the Applicant had continued to allow customers to drink within his licensed premises.

In his submissions on this appeal, one of the matters raised by Mr. Nori was that no consumption of beer occurred within the licensed premises of the Applicant as described in his affidavit filed 1st April 1998 at paragraph 5 and exhibit “WU3”. Exhibit “WU3” delineates the boundary of the said licensed premises. In paragraph 7 of the said affidavit, the Applicant denies that any beer had been drunk at or within the said premises.

Unfortunately, this appears to be inconsistent with what was raised by Ms Hamilton in her submissions that during the hearing on 22nd November 1997, the Applicant did not deny that he allowed people to drink within his area because he believed he was doing a good thing in that it prevented them from causing problems in their villages. There appear therefore to be clear admission on the part of the Applicant.
In documents now filed before this court for its consideration the Appellant seeks to explain it seems that the admission had been made in respect of areas of land outside his “licensed premises” but adjoining and near his premises which may be regarded as coming within his control or his permission, although I note as well that before this court the Applicant denies that he had any control over the said premises.

For purposes of this appeal, I accept that the admissions of the Applicant in the hearing before the Board related only to drinking of beer outside his licensed premises in adjoining or nearby lands. The issue of law before this court is whether this prohibition under section 67(2) of the Liquor Act forms part of the conditions of the applicant’s licence and that it had not been satisfactorily fulfilled.

In my respectful view, that prohibition is part and parcel of the conditions attached to his licence that beer is to be sold and delivered in unbroken containers from his premises and shall not be intended to be consumed or permitted to be consumed upon the premises. Adjoining areas or near places within his control and where the consumption of beer in such places is done with his consent or privity, are included by section 67(2). That section specifically and expressly prohibit the consumption of beer in such places. Before the Board, the Applicant admitted allowing consumption to take place “within his area”. That is contrary to the terms of his licence and the Liquor Act. Section 67(2) expressly makes it an offence for him to permit or consent to have beer consumed in such places. I am satisfied there was evidence before the Board in which it was entitled to come to the conclusion that the conditions of the applicant’s licence had not been satisfactorily fulfilled.

But even if the above situation is not part of the conditions of the applicant’s licence, I am not satisfied either that the Board had acted ultra vires its powers when it took into account the various objections raised by church leaders, elders and others and in particular the police.

Paragraph (g) of section 23(6) of the Liquor Act also allows objections to be raised pursuant to paragraphs (a), (b), (c), (f) or (h) of subsection (4). Paragraph (g) reads:

“in the case of a licence other than a club licence, any objection specified in paragraphs (a), (b), (c), (f) or (h) of subsection (4).”

Note the word “licence” is defined as “means a licence for the sale of liquor granted under this Act”. It therefore must necessarily include a retail beer licence. Further, paragraph (g) is part of subsection (6) of section 23 which specifically deals with the question of objections to renewals of licences. Paragraphs (a) and (b) are general objections which apply right across the board. They may be raised in respect of any licence. Paragraph (c) does not include a wholesale or retail licence. Paragraph (d) applies only to a publican’s licence, a residential licence, a restaurant licence or a residential and restaurant licence. Paragraph (e) is confined only to a club licence. Paragraph (f) again excludes a wholesale or retail licence and finally paragraph (g) applies to all licences other than a club licence. Paragraph (g) therefore is relevant to this case.

Paragraphs (a), (b), (c), (f) and (h) of subsection (4) read as follows:

“(a) that the applicant is of drunken or dissolute habits or is otherwise not a fit and proper person to hold the licence;

(b) that the applicant has, within the period of twelve months preceding the date of application, been convicted of an offence under this Act or any other Act at any time in force regulating the sale of liquor;

(c) that a licence issued to the applicant has, within the twelve months preceding the date of application, been cancelled;

(f) that the quiet and good order of the neighbourhood in which the premises in respect of which the application is made are situated will be disturbed if a licence be granted;

(h) any other objection (not being frivolous or vexatious) which appears to the licensing authority to be relevant.”

Paragraphs (f) and (h) above are relevant. The objections raised and considered by the Board fall within those categories. I am not satisfied therefore the Board acted ultra vires in considering those objections and ruling against the renewal of the Appellant’s licence.

No error of law was committed by the Board and neither did it act ultra vires its powers.

ORDERS OF THE COURT:

1. APPEAL DISMISSED.

2. COSTS OF THE RESPONDENT TO BE BORNE BY THE APPELLANT.

THE COURT.