Counsel: A Radclyffe for the appellant;
G Samuel for the respondepan>
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JNT
(LUNGOLE-AWICH, J): span lang="EN-GB">This is
an appeal by stated case, from the decision of Honiara Town Town Council Liquor
Licensing Board
made on 20.12.1996. The Board refused to renew liquor
licence of the appellant, Mr Dennis Kwan, for Kwan Ming Store at Kukum
Shopping Centre in Honiara. The licence was categorised as, “retail full
licence”. By authority of section 33 of the
Liquor Act, Cap. 33 of Laws of
Solomon Islands, appeal from the decision of the Board is to the High Court.
It must be appeal on
grounds that the decision was; (1) “erroneous in point
of law” or (2) “in excess of jurisdiction.” I set out section 33:
33. (1) Any applicant or objector who is aggrieved by
the decision of a licensing authority may, if dissatisfied with such
decision as being erroneous in point of law, or as being in excess of
jurisdiction, apply in writing within one month
from the date of such
decision to the licensing authority to state and sign a special case setting
forth the facts and
the grounds of such decision for the opinion thereon of
the High Court:
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Provided that the period of one month may be exd
by the licensing authority for good cause shown.
(2) Upon receiving an application under subsection
(1), the licensithority shall forthwith drah draw up a special case and
transmit the same to the Registrar of the High Court, and thereafter such
special case shall be heard and disposed of,
mutatis mutandis, as though it
were an appeal by case stated under Part IX of the Criminal Procedure Code
Ordinance:
Provided that the decision of the High Court in
respect of such applin shall be final and concluonclusive and shall not be
questioned in any proceedings whatsoever.
(3) Where a licensee whose licenc not been
renewed applies under subsection (1) to theo the licensing authority to state and
sign a special case for the opinion of the High Court, his licence shall be
deemed to have been renewed until the decision
of the High Court is made
known.
Appellant stated 6 groof appeal in his notice of
appeal dated 7.11.1997, addressed to the Secretary of the the Board. He did
not
specify whether the grounds were about errors in point of law or about
excess of jurisdiction. None of the grounds
suggests question of
jurisdiction, I shall assume that they were about errors in point of law.
During hearing, learned
counsel Mr. Radclyffe, for the appellant submitted
that although the Board had power to raise objection on its own, the Board
had no power to raise a particular objection it raised during the hearing of
appellant’ application. That I regarded
as a point about jurisdiction.
Appeal ground 6 is misconceived. A licensee whose licence
has not been renewed is not required under section 24 of the Liquor Act to
apply for a licence which the appellant described as “a temporary licence,”
to enable him to dispose of his stock
of liquor, and the Board is not
required or authorised under section 24 to receive and consider an
application for such
a licence; it only determines the time necessary for
the licensee to dispose of stock and any apparatus. The Board, if it
considered such an application, would have acted without authority. It might
have been aware of the lack of authority;
it did not record the making of
the application in its record of proceedings. The appellant himself did not
state in
his affidavit, filed at the High Court, that he made the
application. The affidavit was not required, but not prohibited either.
Section 24 simply requires that a licensee whose licence has not been
renewed make payment for licence, to enable him
to dispose of his stock. The
licensee is entitled to the licence upon payment of the proportionate fee.
The licence lasts
for not more than 3 months and is to enable the licensee
to dispose of his stock. I quote section 24 there.
24. If the renewal licence is refused, the
licensee shall, on payment of the proportionate part of the the fee for the
appropriate licence, be entitled to a licence of such description and for
such period, not exceeding three months, as the
licensing authority may deem
necessary for the purpose of disposing of the liquor or apparatus on the
premises, such
period to commence on the day on which the renewal of licence
was refused or on the day after the termination of the existing
licence,
whichever day is the later.
Moreover, the appellant did not even need the licence
referred to by section 24. He applied to the Bto state case for the
opinion of the High Court, as the result, his licence is deemed to have been
renewed by authority of section 33 (3),
“until the decision of the High
Court has been made known.” Subsection (3) of section 33 has been quoted in
paragraph
1 above.
Ground 1 is that appellant had not been informed under
section 25, of the, “matter or thing,” that the Board has taken notice
of as
constituting objection. The wording of ground 1 suggests that appellant was
informed on the occasion of the earlier
meeting of the Board held on
21.11.1996. Appellant ended ground 1 in these words. Despite being informed
by the Chairman
at the meeting on 21st November 1996 that
“details would be given.” So the complaint in the ground is really that
appellant had not been given
details of the objection. In paragraph 7 of his
affidavit, the appellant complained about not being informed, “in writing.”
The minutes of the meeting on 21.11.1996 states:
“Kwan Ming Store - Kukum Shopping Centrennis Kwan
Matters adjourned to 20/12/1996. For (sic) full
discussion as the Board was concerned over the number of liquor outlets in
Kukum Shopping Centre and that he had already been granted the renewal of
Jimmy Store. The applicant was informed accordingly.”
When that is considered with what I have stated above,
the conclusion is that the appellant had been informed of the matter
the
Board viewed as objection. It is not required that the notice given by the
Board be in writing although an independent
objector's notice is required,
by section 23 (2), to be in writing. If in the meeting of 20/12/1996 the
appellant felt
he had short notice and he needed more time, he would have
requested adjournment. He was entitled to adjournment, under section
25 (2),
but upon request. Ground 1 fails.
Appellant says in ground 2 that he was not given enough
time in the meeting on 20.12.1996. He does not say that he asked for
adjournment, and it is not in the record that he did. Ground 2 is baseless.
Ground 3 might have been a serious matter if Mr. Kevin
Leong, one of thbers of the Board, was a licensee in the area and did
not mention the matter at the hearing of the appellant’s application. In
this case I do not have to decide the issue.
Mr. Leong is not a licensee; he
is said to have “supplied beer to two of the other licence holders in Kukum.”
It is not
clear whether it means he continues to supply. I think that is
going too far down the line in showing prejudicial beneficial
interest of a
member of an administrative tribunal. It must be remembered that it is
perhaps for good reason that some
of the members appointed to the Board are
business people in the same business or even in the same area. They are in a
position to point out the point of view of business people. They may also be
useful if the Board wishes to investigate. I
consider it important that the
appellant, if he considered the past business transactions of Mr. Leong
prejudicial to
the appellant’s application, appellant should have raised
objection at the hearing. He does not say he did. I think such damaging
imputation of improper motive should not be advanced so readily without
giving it sufficient consideration. Moreover,
Mr. Leong should have been
made aware of the damaging allegation of improper motive on his part. There
is no indication
that the affidavit filed at the High Court was served on
the Secretary to the Board or on Mr. Leong. Ground 3 fails.
Ground 5, that ownership of the premises was made clear
to the Board, but the Brefused to listen, is a matter of assessment
of
the fthe facts presented to the Board. The Board dealt with it in its record.
There is nothing to suggest that the
facts were not properly appraised.
Ground 5 is not based on error in law or on jurisdiction so that the High
Court could
exercise its jurisdiction in terms of section 33.
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Ground 4 is a contention suggesting what the appellant
believea better way of effecting the Board’s policy to reduce the the
number of liquor outlets in Kukum. He suggested in this Court that the
newest applicant is the one to be eliminated not
the applicant who has held
licence for some years - given as 6 or 8. The Board decided that it would
effect the policy
by refusing to renew one of appellant’s licences on the
ground that he already had a licence for another premises in the same
location, renewed. It is not for the court to decide upon the logic of
policy or the best way to carry out a policy.
It is not a question of law or
jurisdiction. See Judgment of Palmer J in Derek Daii -v- Palm Teaitala
and Others, Civil Case No. 200 of 1995. Ground 4 is dismissed.
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I have considered some decided cases iland about
renewal of licences. It is my view that most are inapplicable and thereforrefore
lack persuasive value in Solomon Islands. They were based on the specific
legislation in England. Moreover, some of them
are conflicting. The
compelling reason in England in some of the cases that the licence in issue
has been the only means
of earning a living is not true in appellant’s case.
He held two licences in the same location, and one of the licences had
been
renewed. The point was raised in the English case of R -v- Metropolitan
Police Commissioner Ex Parte Parker [1953] 1 WLR 1150. An important
point was natural justice. See criticism in
Merricks -v- Nott Bower [1965] 19B
417 and disapproval in R -v- Gamming Board [1970] 20B 417. The
general rule that the exercise of discretion requires acting in a fair and
unprejudiced; not arbitrary, capricious
or bias manner, according to rules
of reason and justice, was not ignored by the Board in this case. In
applying adopted
law we must note the provisions of paragraphs 2(1) of
schedule 3 to the Constitution, provided for by section 76 of the
Constitution. The paragraphs of the schedule are:
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Section 76.
SCHEDULE 3 TO THE CONSTITUTION
APPLICATION OF LAWS
1…
&GB">
2. (1) Subject to this paragraph, the principles and
rules of the common law and equityl have effect as part of thof the law
of
Solomon Islands, save in so far as:
a) they are inconsistent with this Constitution or a Act of Parliament;
b) they are inapplicable to or inappropriate in the
circumstances of Solomon Islands from time to time; or
ctheir application to any particular matter, they
are inconsistent with customary law law applying in respect of that matter.
3..pan>
4. ( court of Solomon Islands shall be bound by
any decision of a foreign court given on n on or after 7th July 1978.
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(2) Subject to receding provisions of this
Schedule or any provision in that regard made by Parliameliament, the operation
in Solomon Islands of the doctrine of judicial precedent shall be regulated
by practice direction given by the Chief Justice.
I have also considered the power of the Bon terms of
sections 25 and 23 of the Act, although it was not included in the groundsounds
of appeal filed. Mr. Radclyffe submitted that the objection raised by the
Board, that there are too many liquor outlets
in Kukum, was an objection
under section 23(4)(d) and therefore applicable to application for grant of
new licence only;
not to application for renewal of licence. Section
23(4)(d) requires the Board to consider the reasonable requirements of the
neighbourhood. Counsel insisted on the submission even after court had
inquired of him whether the Board could not consider,
“any other objection
which appears to the licensing authority to be relevant,” a provision in
subsection (4)(h). The
submission has no merit. The objections that may be
raised in application for renewal are enumerated in section 23(6) which
includes subsection (g). Subsection (g) enumerates, among other objections,
those in subsection (4)(h) which reads:
(4).
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(h) any other objection (not being frivolous or
vexatious) which appears to the licensing authority to be relevant.
Learned counsel's submission was the result of misreading or misunderstanding section 23. The Board had the power twer to raise that
objection. I do not think that the objection that there are too many outlets
in an area is frivolous or vexatious. The
submission is rejected.
What was alleged to have been a remark that the chairman
had prior to the hearing does not appear to have influenced thed the
decision of the Board. The reason for the decision was given as there being
too many outlets in Kukum and appellant had
already one licence renewed.
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Based on the opinions I have given, the appeal is
dismissed. Appe is to pay costs to the Board.
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Dated this 13th day of January 1998
At the High Court
Honiara
Sam Lungole-Awich
JUDGE
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