REPUBLIC OF TRINIDAD AND TOBAGO
IN THE COURT OF APPEAL
NO. 40 OF 1998
AND
GEORGE
DIFFENTHALLER AND
THOMAS
REGINALD EVANS
RESPONDENTS
PANEL:
MS. C. SEUNATH appeared on behalf of the APPELLANT
MR. G. MUNGALSINGH appeared on behalf of the RESPONDENT
DATE DELIVERED: January
22nd, 2001.
JUDGMENT
Judgment Delivered by M. de la Bastide C J.
This is an appeal by the Attorney General against a judgment given against him on a constitutional motion filed by the respondents. The respondents are a company which owns a hotel in St. Anns and two gentlemen who were appointed receivers of that company under powers contained in a debenture issued by the company. The complaint which was pursued by way of a constitutional motion was of the seizure by the Comptroller of Customs and Excise of a quantity of liquor representing all the liquor stocks of the hotel on the date of the seizure (which was the 14th November, 1997.) The basis on which the Comptroller acted was that the special hotel licence, under which the company sold liquor to its guests and to members of the public, had been terminated as a result of the surrender of that licence by the person, Mr. Norman Samaroo who was the joint licensee with the company named in that licence.
With the appointment of the receivers on the 20th May, 1997, Mr. Samaroo who was a director of the company, ceased to have any authority to act on behalf of the company or any right to participate in its management. The Liquor Licences Act, Chap. 84:10 requires that where a hotel is owned by a company a special hotel licence be issued in the joint names of the company “and of the manager or other person required by section 28 to appear before the Licensing Committee.” That is to be found in section 13(2).
Turning to section 28, this provides as follows:
“No new licence shall be granted or current licence transferred except the person, applying for such a grant or to whom such transfer is to be made, personally appears before the licensing committee or, in the case of a company, the manager or other servant of the company by whom the business is to be carried on behalf of the company so personally appears. However, the licensing committee, on special grounds, may dispense with such appearance in case of unavoidable absence.”
The licence which was claimed to be still in force at the time of the seizure of the liquor, had been renewed on the 31st July 1997: that renewal had been granted to the 30th March, 1998, since the 31st March was the date from which the licence had initially been granted back in 1988.
The case, as argued before the learned judge, turned on what effect, if any, flowed from a letter written by Mr. Samaroo to the Comptroller of Customs on the 4th November, 1997.
This letter reads as follows:
“This is to inform you that as of the 20th May, 1997, I ceased to operate as a Director of the Valley Vue Hotel on Ariapita Road, St. Anns, Port of Spain. This was as a direct result of the First Citizens’ Bank Limited appointing a receiver to take charge of the facilities. I subsequently wrote the receivers, Messrs. George Dieffenthaller and Thomas Reginald Evans requesting they seek to have the liquor licence, re: special hotel licence, transferred from my name to theirs. To this date this has not been done. I now, therefore, wish to officially surrender this licence issued to me No. 3282, 31.7.97 in accordance with section 87 of the Liquor Licences Act Chap. 84:10. Please be guided accordingly.”
The argument in the court below advanced by the Applicants and again by them as respondents before us on this appeal, was that this purported surrender by Mr. Samaroo was of no effect, and the special hotel licence under which this hotel was operating, continued in full force and effect, thus rendering the seizure of the liquor unlawful, and, according to them, a breach of their constitutional rights.
A number of reasons were advanced why this surrender was said to be ineffectual; one was that Mr. Samaroo could not surrender the licence effectively as he was no longer authorized to act on behalf of the company. The obvious answer to that, if I may say so with respect, is that he was clearly attempting to surrender the licence in his own individual capacity as it had been granted to him in that capacity, jointly with the company. It was also argued that in any event, he, being a joint licensee, could not surrender the licence without the concurrence of his co-licensee, the company. If this argument were sound, it would lead in certain circumstances to some very inconvenient results, to say the least,
I put to Mr. Mungalsingh, counsel for the respondents, what would happen in the converse case, where the company wished to terminate the licence but Mr. Samaroo was not willing to join with them in surrendering it. This might, for instance, have come about if the company passed into the hands of new owners and directors, and Mr. Samaroo, whether lawfully or unlawfully, continued to operate the hotel for his own account in the same premises. But even without supposing what it may be suggested is an improbable scenario, the Act imposes certain responsibilities and liabilities on the holder of a license, whether he be a joint holder or not. So that, for instance, in the case of a special hotel licence, there is an obligation on the holders to ensure that a register is maintained in which are entered particulars of all guests staying in the hotel. There is a liability to a fine imposed on the holders of such a licence if this register is not properly maintained. (Section 57.)
There are also responsibilities on the holder of any liquor licence with regard to proper records being made and kept in relation to the delivery and receipt of liquor. Again, certain liabilities are imposed on the licence holder if these provisions are breached.
In my view on a proper interpretation of the Act, the granting of a licence to a company requires the acceptance of the responsibilities of a co-licensee by an individual who is the manager of the business or involved in the running of it. The voluntary assumption of these responsibilities is a condition precedent not only for the initial grant of the licence, but for its continuance in force. If that acceptance of these responsibilities by the individual concerned is terminated, and such termination is effectively communicated to the proper authority, then the licence too comes to an end.
This brings me to another ground of objection to the purported surrender of the licence by Mr. Samaroo, namely that it was made to the Comptroller and not the licensing committee. Section 87 of the Act provides: “Any person to whom a licence has been granted under this Act may surrender the same to the authority by whom it was issued.”
The provisions of the Act with regard to the respective functions of the licensing committee and the authority which issues the licence, are quite clear. The licensing committee’s function is to determine whether or not it should grant a certificate that the licence should be issued. Acting upon that certificate, the authority responsible for issuing the licence, acts. Section 16 of the Act provides for the grant by the licensing committees of certificates for the issue or renewal of licences.
Section 17(1) provides for the issue of licences on the payment of the appropriate duty and upon production of the certificate of the licensing committee authorizing such issue. Section 17(2) specifies who shall issue the licences. In the case of premises situated within the City of Port of Spain, it is the Comptroller; where the premises are situated elsewhere in Trinidad it is by the authorized officer for the county in which the premises to be licenced are situated. There is no dispute that in this case the proper person to issue that licence was the Comptroller.
The surrender of a licence would be of no particular concern or interest to the licensing committee which granted the certificate for its issue. It would, however, be of interest and concern to the Comptroller who has the responsibility of ensuring that the provisions of the Act are enforced. For that purpose, it would be essential for him to know whether, at any given time, premises were licensed, and if so, who was or were the holders of the relevant licence. Indeed, under section 17(4) the Comptroller is required to keep a register of all licences granted under the Act. I have no doubt, therefore, that the appropriate person to receive a surrender of a licence is the Comptroller and not the licensing committee.
Finally, it was also argued that a surrender was not effective unless accepted by the licensing committee. The authority quoted for this proposition was Carter v Pickering [1949], 1AER 340. It is obvious, however, that that case is distinguishable from this since that case dealt with an attempt by a licensee to free himself of certain conditions attaching to his licence, by persuading the relevant licensing committee to substitute for the existing licence, a new licence without the conditions to which he objected. The licensing committee refused to do this. The question arose subsequently whether or not the licence, which he had purported to surrender to the committee, was still in force. It was held that it was.
It is made crystal clear, morever, in Halsbury’s Laws of England Volume 26, (4th edition,) paragraph 81, that there is no need for any acceptance of a surrender in order to make it effective where the person surrendering the licence does not want to have another licence substituted for it, but wishes simply to bring it to an end. This was the situation in this case, and Carter v Pickering is of no assistance to the respondents.
The learned Judge was persuaded by the arguments for the applicants/respondents that the surrender by Mr. Samaroo was not effective, and he gave judgment for the applicants without specifying exactly what relief he was intending to grant.
For the reasons which I have stated, I consider that the learned Judge came to a wrong conclusion when he held that the licence continued in force, notwithstanding the letter from Mr. Samaroo to the Comptroller, and notwithstanding the suspension of his connection with the management of the hotel and, indeed, of any participation in the running of it, as a result of the appointment of the receivers.
I would mention that it is, at best, doubtful whether or not the purported renewal of the licence on the 31st July, 1997, was lawful and effective, given that Mr. Samaroo, in whose name the licence was jointly issued, did not, at that time, have the requisite qualifications to satisfy the requirements of sections 13(2) and 28.
It was imprudent, to say the least, for the receivers to have taken the renewal of the licence in his name jointly with the company, and having done so it hardly lay in their mouths to complain in reliance on that licence of an infringement of their constitutional rights.
This leads me to another aspect of this case which gives rise to some concern. It is that a complaint of what would appear on the face of it to have been a simple trespass to goods by the Comptroller of Customs should have been clothed in the garb of a constitutional motion.
It has become fashionable for anyone with a complaint, of whatever nature, against some organ of the State to bring their action as a constitutional motion alleging a breach of constitutional rights. The obvious attraction of this course is that in this way pleadings may be dispensed with and an early date of hearing obtained. The difficulty which the learned pleader found in framing the applicant’s complaint in the form of a constitutional motion, is reflected in the unhappy wording of the first relief sought in the notice of motion, namely, was a declaration that the detention of the seized liquor stocks “constituted a contravention, in relation to the applicants, of their right not to be deprived of the provisions of the Liquor Licences Act Chap. 84:10, for the purpose of giving effect and protection of the aforesaid right as guaranteed by section 5(2)(h) of the Constitution of Trinidad and Tobago.” It is very difficult to make any sense of this sentence.
It is time, in my view, that this abuse of using constitutional motions for the purpose of complaining of breaches of common law rights, should be stopped. The only effective way of doing so is for the Court at first instance to dismiss summarily any process which on the face it seeks to force into the mould of a constitutional motion, a complaint of some tort or other unlawful act for which the normal remedy is an action at common law for damages or injunctive relief.
For the reasons which I have given, I hold that there was no licence in force permitting the sale, or the keeping for sale, of liquor on the premises of the Valley Vue Hotel on the date of the seizure i.e. the 14th November, 1997. Accordingly, the seizure by the Comptroller of Customs was justified under the Liquor Licences Act, and certainly did not constitute a breach of any constitutional right of the respondents. Accordingly, I allow the appeal, set aside the judgment of the learned trial Judge, and order the respondents to pay the Attorney General’s costs both here and in the court below.
MADAM JUSTICE PERMANAND: I agree with the judgment delivered by the learned President and I do not wish to add anything further.
JUSTICE NELSON: I agree, and have nothing to add.
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