Anwary v Secretary - Local Licensing Board - Berea and Others (CIV/APN 440 of 96) [1996] LSHC 120 (17 December 1996)

CIV/APN/440/96 IN T HE H I GH C O U RT OF L E S O T HO In the m a t t er b e t w e en A . Z . A N W A RY A P P L I C A NT and T HE S E C R E T A RY - L O C AL LICENSING B O A RD - B E R EA L O C AL LICENSING B O A RD - B E R EA MINISTER OF T R A DE & I N D U S T RY T HE A T T O R N E Y - G E N E R AL 1ST R E S P O N D E NT 2 ND R E S P O N D E NT 3 RD R E S P O N D E NT 4 TH R E S P O N D E NT J U D G M E NT D e l i v e r ed by the H o n o u r a b le M r. Justice M . M. R a m o d i b e d i, A c t i ng J u d g e, On 17th d ay of D e c e m b er 1 9 9 6. T h is application is a culmination of a r u n n i ng battle b e t w e en A p p l i c a nt a nd the first t wo r e s p o n d e n ts w h i ch c an best be g l e a n ed f r om t wo letters written by the latter to the f o r m er on 2 8 th O c t o b er 1 9 96 a nd 2 9 th N o v e m b er 1 9 96 respectively. It is n e c e s s a ry to r e p r o d u ce the said letters in full in as m u ch as t h ey highlight the r e s p o n d e n t s' stance in the m a t t er as t h ey p e r c e i v ed it to be in t e r ms of the T r a d i ng Enterprises O r d e r, 1 9 9 3. T he said letter of the 2 8 th O c t o b er 1 9 96 is to t he f o l l o w i ng effect:- "Local Licensing Board P. O. B ox 488 Teyateyaneng. 200 28/10/96 A. Z. Anwary P / B a g O x 05 Teyateyaneng Re: Inspection Of A. Z Anwary's Supermarket. The Local Licensing Board held its meeting to-day at the District Secretary's Office, you were invited but you did not turn-up. The objective of the meting was to discuss with you issues mentioned in the Health Inspectors letter copied to the Local Licensing Board, the District Secretary and the Commercial Officer. The issues are: 1. Repairing Of Leaking R o of 2. 3. 4. 5. 6. Repairing Of T he Ceiling Painting and Repairing of cracked walls Removal Of Rotten Rafters A nd Replacing With N ew Ones Repairing Chipped Floors. To Built a Proper Septic Tank. All these items mentioned above, y ou are adviced to repair them within 30 days from the 28th October 1996 to the 28th N o v e m b er 1996, This advice is m a de in conjunction with the Trading Enterprises Order 1993 Section 20 (2) ( A) and Trading Enterprises Regulations 1988 Section 20 (I) and (2). Lastly, this issue has nothing to do with your case with your Landlord. Y o ur cooperation will be highly appreciated. Y o u rs Faithfully, M . N c h o lu - Local Licensing Board - Secretary. C C: Legal Officer - Ministry of Trade & Industry." On 31st O c t o b er 1 9 96 M e s s rs G . G. N t h e t he & C o. r e s p o n d ed to the a b o ve m e n t i o n ed letter on b e h a lf of the Applicant a nd w r o te to the first t wo r e s p o n d e n ts as follows: "The Local Licensing Board Secretary, Local Licensing Board, P. O. B ox 488, T E Y A T E Y A N E N G - 2 00 Dear Sir, re: I N S P E C T I ON OF A. Z. A N W A R Y 'S S U P E R M A R K E T: Y o ur letter dated 28th October, 1996, addressed to A. Z. A N W A RY has been handed to us for action. We note with great care and interest that there are certain "issues" mentioned in your said letter which you have directed that they should be repaired within 30 days, from the 28th October to 28th N o v e m b er 1996. We have advised our client, Mr Anwary that he cannot accede to your directive as that would amount to contempt of Court. We have indicated earlier in our letter that M r. Anwary has been stopped expressly by Order of Court from handling the said "issues" in your letter. By copy of this letter, the Legal Officer, Ministry of Trade and Industry is informed for his/her action. We trust that y ou will find all in order. Y o u rs faithfully, GG NTHETHE&CO cc. Legal Officer, Ministry of Trade & Industry Maseru. Received copy hereof this day of October, 1996. Licensing Board Secretary" I n d e ed the said court o r d er of B e r ea Magistrate's court in CC 1 0 1 / 96 d a t ed 1 2 th July 1 9 96 w h i ch M e s s r s. G . G. N t h e t he refer to specifically states in p r a y er 2 thereof:- "Respondents or any of their sub tenants are interdicted and restrained from continuing with any construction works, renovations and/or alterations to certain commercial buildings erected on plot N o. 19223-636, Teyateyaneng, pending the outcome of the Application." It is significant that the A p p l i c a nt featured as the 1 st R e s p o n d e nt in that case. I am satisfied therefore that the A p p l i c a nt w as expressly interdicted by a lawful o r d er of court f r om c o m p l y i ng w i th the repair d e m a n ds of the L o c al L i c e n s i ng B o a rd - B e r ea n a m e ly the 2 nd R e s p o n d e nt herein. Y et despite this first a nd s e c o nd r e s p o n d e n ts w r o te to the A p p l i c a nt on 2 9 th N o v e m b er 1 9 96 in the f o l l o w i ng terms:- "Local Licensing Board P. O. Box 488 Teyateyaneng. 200 Mr. A. Z. Anwary P / B O X 05 T E Y A T E Y A N E N G. Dear Mr. A. Z. Anwary, S U S P E N S I ON OF A. A. A N W A R Y 'S S U P E R M A R K ET LICENSE I am hereby directed by the Local Licensing Board Berea to suspend your Licence with effect from the 29th N o v e m b er 1996 to 28th January 1997. T he reasons for suspension are as following:- I) Y ou failed to respond to the letter which w as written to you by the Local Licensing board Berea on 28th October 1996 whereby you were adviced to m a ke the following renovations to the building which is a danger to public Health, Section 20 subsection (2) (a) of the Trading Order 1993. 1. 2. 3. 4. 5. 6. 7. repairing of leaking roof Repairing of the ceiling Painting and repairing of cracked walls Removal of rotten raffers (sic) and replacing with n ew ones repairing chipped floors To build a proper septic tank To construct a decent parcel counter. M r. A n w a ry the Health Inspector adviced you to repair all these issues from the 6th March 1995 but you failed to respond. Y ou were therefore given a notice by the Local Licensing Board Trading Enterprise Regulations 1988 Section 20 (2) but you faileded (sic) therefore subsection (3) is applied to you. Y o ur cooperation will be highly apreciated (sic). Yours obediently, S. H. N c h o l u - S E C R E T A RY L O C AL L I C E N S I NG B O A RD - B E R E A. C C :- Commissioner of Trade - Ministry of Trade & Industry Officer C o m m a n d i ng Police - Berea." I n d e ed it is c o m m on c a u se that on the s a me date n a m e ly the 2 9 th N o v e m b e r, 1 9 96 m e m b e rs of 2 nd r e s p o n d e nt a c c o m p a n i ed by a police officer arrived at Applicant's s h op a nd closed it. It w as against the a b o ve m e n t i o n ed b a c k g r o u nd that on the s a me d ay the 2 9 th N o v e m b e r, 1 9 9 6, t h a n ks to the swift action of M e s s r s. G . G. N t h e t he & C o. the A p p l i c a nt then filed an urgent application w i th this H o n o u r a b le C o u rt s e e k i ng for an o r d er in the following terms:- " 1. T h at R u le Nisi issued, returnable on the date a nd t i me to be d e t e r m i n ed by the H o n o u r a b le C o u r t, calling u p on the R e s p o n d e n ts to s h ow c a u s e, (if a n y ), w h y :- a) b) T he forms of service shall not be dispensed with; T he Respondents and/or their subordinates shall not be ordered to open Applicant's shop; c) T he Respondents and/or their subordinates shall not be ordered to reinstate applicants Trading License, d) T he Respondents shall not be ordered to stop interfering with the Applicant pending the outcome of CIV/APN/278/96; e) Applicant shall not be granted such further and/or alternative relief. 2. T H AT prayer (l)(a) and (b) and (c) operate as an interim interdict with immediate effect." On 3 0 th N o v e m b er 1 9 96 I d u ly granted the R u le Nisi as p r a y ed returnable on 10th D e c e m b e r, 1 9 96 a nd on the latter date the matter w as a r g u ed b e f o re m e. I h a ve already f o u nd that the A p p l i c a nt w as expressly s t o p p ed by a lawful court o r d er f r om carrying o ut the repair w o r ks as a d v i s ed by the L o c al L i c e n s i ng B o a rd - B e r e a. I a g r ee w i th M r. N t h e t he for the A p p l i c a nt that an a t t e m pt by the A p p l i c a nt to do the said repair w o r ks w o u ld definitely a m o u nt to c o n t e m pt of court. I therefore find that the 1st a nd 2 nd r e s p o n d e n ts acted m o st u n r e a s o n a b ly a nd unlawfully in s u s p e n d i ng the A p p l i c a n t 's license on that g r o u nd alone. T he m a t t er h o w e v er d o es not e nd there. In p a r a g r a ph 7 of his a n s w e r i ng affidavit the Secretary of the L o c al L i c e n s i ng B o a rd ( B e r e a) Senoti N c h o lu states in part:- "The court order had nothing to do with the administrative functions of the Local Licensing Board." I u n d e r s t o od this s t a t e m e nt to be a clear suggestion that b e c a u se the d e p o n e nt believed the L o c al L i c e n s i ng B o a rd ( B e r e a) h ad p o w er to safeguard the conditions for trading licences t h en a ny court order w h i ch w o u ld a p p e ar to stand in the w ay of the L o c al B o a rd w o u ld s i m p ly be ignored. W e ll n o t h i ng c an be further f r om the truth. I find that the r e s p o n d e n ts are ill a d v i s ed in this v i ew a nd that there c an be no question of the licensing b o a rd c o m p e t i ng against the o r d er of court as the first t wo r e s p o n d e n ts h a ve a t t e m p t ed to do in this case. T he a r g u m e nt before me t h en turned on w h e t h er the first t wo r e s p o n d e n ts herein h ad p o w er in l aw to s u s p e nd the A p p l i c a n t 's licence. I o b s e r ve straight a w ay that in t e r ms of Section 5 ( 1) ( g) of the T r a d i ng Enterprises O r d e r, 1 9 93 the p o w er to s u s p e nd or cancel licences is clearly v e s t ed in the B o a r d. T h at section r e a ds in part:- " 4 ( 1) T he functions of the B o a rd shall be, (g) to suspend or cancel licenses granted under this order in accordance with the provisions of this Order." S e c t i on 2 of the T r a d i ng Enterprises O r d e r, 1 9 93 defines the w o rd " B o a rd as the T r a d i ng Enterprises B o a rd u n d er Section 3. N ow S e c t i on 3 of the T r a d i ng Enterprises O r d e r, 1 9 93 is to the f o l l o w i ng effect:- "3. (1) There is established a Board to be k n o wn as the Trading Enterprises Board. (2) T he Board shall consist of: (a) the Principal Secretary of the Ministry responsible for Trade and Industry or his representative, w ho shall be the chairman; (b) the Principal Secretary of the Ministry responsible for Interior and Chieftainship Affairs or his representative; (c) the Principal Secretary of the Ministry responsible for Health or his representative; (d) the Principal Secretary of the Ministry responsible for Employment and Social Welfare or his representative; (e) the Principal Secretary of the Ministry responsible for Agriculture, Cooperatives and Marketing or his representatives; (f) a representative of the Royal Lesotho Defence Force nominated by the C o m m a n d er of the Royal Lesotho Defence Force; (g) (h) the Commissioner of Police or his representative; the Commissioner of Trade w ho shall be the Secretary of the Board; and II (I) a representative of the Lesotho Chamber of Commerce and Industry, w ho shall be appointed by the Minister." I have come to the conclusion therefore that the Local Licensing Board is not the same thing as the Board itself in terms of the Trading Enterprises Order, 1993. Section 12 of the order provides that a Local Licensing Board shall perform such functions as m ay be delegated to it by the Board or m ay be prescribed in regulations. Indeed I observe that Section 20 (2) (a) of the Trading Enterprises Order, 1993 reiterates the view that the power to suspend or cancel any trading licence vests in the Board itself. That section reads as follows:- "20 (2) Subject to the other provisions of this section, The Board may, (a) on the advice of the Commissioner, if the continuance of any trade or occupation constitutes a danger to public health or public morality; suspend or cancel any licence in relation to the trade or occupation." I observe quite amazingly that in their afforesaid letters of 25th October 1996 and 29th November 1996 respectively the 1st and 2nd R e s p o n d e n ts s o u g ht to rely on the said Section 20 ( 2) of the T r a d i ng Enterprises O r d e r, 1 9 9 3. N ow there is absolutely no e v i d e n ce in the p a p e rs b e f o re me that the B o a rd d e l e g a t ed its p o w e rs to s u s p e nd applicant's licence to 2 nd R e s p o n d e nt n or do the current T r a d i ng Enterprises R e g u l a t i o n s, 1 9 88 p r o v i de for s u ch delegation. On the contrary S e c t i on 2 0 ( 2) ( 3) of the R e g u l a t i o ns continues to vest the p o w er to s u s p e nd or c a n c el a licence in the B o a rd itself. T h at section p r o v i d es as follows:- "(2) T he Board m ay give a notice in writing to the licensee specifying the matters under this regulation which it considers require to be remedied and requiring him to remedy them to its satisfaction before a specific date. (3) If a licence fails to comply with the requirements of a notice given to him under subregulation (2) the Board m ay suspend or cancel the licence." In the c i r c u m s t a n c es I am satisfied that the p o w er to s u s p e nd licenses is the function of the B o a rd a nd n ot the local L i c e n s i ng B o a r d. In fairness to M r . M a s o a bi for the r e s p o n d e n ts he c o n c e d ed as m u ch a nd properly so in my v i e w. In the result therefore I am satisfied that the 1 st a nd 2 nd R e s p o n d e n ts acted in a m a n n er n ot c o n t e m p l a t ed by the legislature a nd thus acted ultra vires their p o w e rs in s u s p e n d i ng Applicant's licence. In my v i ew these r e s p o n d e n ts clearly m i s c o n s t r u ed their p o w e rs a nd in the c i r c u m s t a n c es therefore the p u r p o r t ed s u s p e n s i on of applicant's licence is therefore null a nd v o id a nd of no legal force a nd effect. Estate G e e k ie v U n i on G o v e r n m e nt a nd A n o. 1 9 4 8 ( 2) S . A. 4 94 AT 5 0 2. I h a ve g i v en serious t h o u g ht to p r a y er l(b) of the N o t i ce of A p p l i c a t i on s e e k i ng an o r d er that R e s p o n d e n ts o p en Applicant's s h o p. T he p r o b l em as I s ee it h o w e v er is that in C I V / A P N / 2 7 8 / 96 w h i ch w as also u n d er consideration in this m a t t er this court h as already m a de an order reinstating the interim order of the B e r ea M a g i s t r a t e 's court in CC 1 0 1 / 96 in w h i ch the A p p l i c a nt herein w as interdicted f r om trading in, or u s i ng the c o m m e r c i al building erected on the said plot N o. 1 9 2 2 3 - 6 36 T e y a t e y a n e n g. In my v i ew it w o u ld therefore be i m p r o p er to m a ke t wo conflicting orders at the s a me t i me a nd for that r e a s on p r a y er l ( b) of the N o t i ce of M o t i on is h e r e by refused. P r a y er l ( d) of the N o t i ce of M o t i on to the effect that the R e s p o n d e n ts be o r d e r ed to s t op interfering w i th the A p p l i c a nt " p e n d i ng the o u t c o me of C I V / A P N / 2 7 8 / 9 6" also falls a w ay in as m u ch as it h as b e en o v e r t a k en by e v e n ts in v i ew of the fact that the said C I V / A P N / 2 7 8 / 96 h as already b e en finalised as aforesaid a nd is therefore no longer p e n d i ng b e f o re this court. In the result therefore the application is g r a n t ed in t e r ms of p r a y er I (c) of the N o t i ce of M o t i on w i th costs. For the avoidance of doubt the order of Court shall be as follows:- (a) T he R e s p o n d e n ts and/or their subordinates are h e r e by o r d e r ed to reinstate Applicant's trading licence. (b) T he R e s p o n d e n ts shall p ay costs of this application. M M. R a m o d i b e di A C T I NG J U D GE 17th D e c e m b e r, 1 9 96 F or Applicant : M r. Nthethe For R e s p o n d e n t s: M r. M a s o a bi