Contending that the matter was not properly before it and was one with wider implications for the Guyanese public and the telecoms sector throughout the region, the Caribbean Court of Justice (CCJ) has declined to address the question of whether GT&T’s telecommunications monopoly here is illegal.
The issue had been raised in the arguments by James Samuels before the CCJ alleging that the Guyana Telephone and Telegraph Company (GT&T) had breached its contract with him by interrupting its Digital Subscriber Line (DSL) because he was using it to make internet calls. The CCJ on Monday ruled in Samuels’ favour that GT&T was in breach of its contract but didn’t address the monopoly issue.
The monopoly has been a subject of heated discussions here for many years and mobile services provider Digicel has lobbied several administrations for it to be brought to an end.
When Samuels took his case to the High Court here and won for breach of contract, Justice Rishi Persaud had also ruled that GT&T’s monopoly was illegal. When GT&T appealed the decision, the Guyana Court of Appeal threw out Justice Persaud’s decision on the breach of contract but declined to pronounce on the validity of GT&T’s telecoms licence.
In its ruling, the CCJ discussed the contours of Samuels’ argument noting that he had cast a wide net by challenging the legality of GT&T’s monopoly.
The CCJ said that counsel for Samuels had argued that GT&T’s exclusive licence was void because it perpetuated an illegal monopoly and facilitated a breach of the right to freedom of expression under section 146(1) of the Constitution of Guyana. Counsel for GT&T also cited Section 21 of the Civil Law Act which addresses monopolies.
Binding precedent
The CCJ noted that Justice Persaud relied on this section of the Act and the binding precedent of Vieira Communication Ltd v Attorney General of Guyana where the Court of Appeal of Guyana held that the grant of exclusive radio licences to government controlled radio stations fell afoul of the aforementioned section 21. Justice Persaud held that GT&T’s licence was similarly void by parity of reasoning but the CCJ said it is interesting to note that no declaratory order to that effect appeared in the decision of the trial judge. .
Addressing the Guyana Court of Appeal’s decision not to make any pronouncement on the validity of GT&T’s telecoms licence, the CCJ said that Chief Justice Ian Chang had rebuked Justice Persaud for focusing “his judicial attention almost solely to the determination of public law issues”. Justice Yonette Cummings-Edwards who also sat on the panel bolstered her conclusion by noting that the issue concerning the illegal monopoly did not form part of Samuels’ statement of claim among other issues and therefore “Mr Samuels’ claim cannot properly justify an investigation into the public law issue of the grant of an unlawful monopoly by the State which he seeks to raise in his claim in contract.”
After recounting all of the arguments made by Samuels’ counsel in this matter, the CCJ said that from the inception, Samuels’ claim had been framed in the language of contract law.
“There is simply no indication on his pleadings that his was a mixed claim. As such the main issues between the parties centred on whether there was an oral or written contract and what the terms of their agreement were. To allow Mr Samuels to challenge the validity of GT&T’s licence in these proceedings would be manifestly unfair to GT&T. This is simply not the pleaded case that GT&T was called upon to answer. Mr Samuels gave no notice to GT&T that wider public interest issues, such as the legality of monopolies and the infringement of constitutional rights, were at stake. It goes without saying that the principles of fairness and justice must be considered from the standpoint of all the parties to litigation”, the CCJ stated.
Exceptional circumstances
The CCJ also pointed out that neither the State nor the Director of Telecommunications, both of whom would have an interest in the resolution of this question, is a party to this appeal. The CCJ posited that there are some instances where claims of public and private law can be furthered in one action but that this would only be in exceptional circumstances.
The CCJ referred to the following passage in Swann v Attorney General of the Turks and Caicos Islands
“There are occasions where it may be appropriate to permit public law issues to be raised in what is essentially a private law claim, but they are relatively exceptional. Those occasions would normally be where the public law issues are of particular importance to the applicant or where they should be aired in the public interest.”
The CCJ stated that Samuels had regrettably not provided any basis for treating his appeal as involving exceptional circumstances. It said that the groundwork could have been laid by joining the relevant parties or framing his pleadings and evidence to alert both GT&T and the lower courts as to the public law issues now being ventilated.
“We reiterate that the issues raised in this case have wider implications for the public of Guyana and the telecommunications sector throughout the region. We note also that under the Act, both the Minister and the Director of Telecommunications have a duty to `promote the interests of consumers, purchasers and other users in Guyana … in respect of the prices charged for, and the quality and variety of telecommunications services provided and telecommunication apparatus supplied’ and to `promote research into and the development of new techniques’ by persons engaged in commercial activities involving the telecommunications sector in Guyana.”
Based on this, the CCJ said it felt secure in its conclusion that this aspect of Samuels’ appeal must be dismissed.
“In this regard, we prefer to wait until such issues are ripe for determination and are properly before us before expressing any views on such matters of fundamental public importance”, it stated.
The CCJ also disallowed a cross-appeal by GT&T that Samuels’ use of his DSL line for internet calls was a breach of the Telecommunications Act.
The CCJ noted that GT&T sought to defend suspension of Samuels’ DSL service on the ground that his actions amounted to the operation of an unlicensed telecommunications system. At the lower court, Justice Persaud concluded that he was unable to find that the subscription to and activation of Voice over Internet Protocol (VoIP) by Samuels amounted to telecommunication service within the Act. The judge observed that GT&T had disconnected Samuels’ DSL service on the assumption that he was operating a telecommunications service which fell within the framework of the Act. While Justice Chang at the Court of Appeal did not determine whether there was a breach of the Act, the CCJ noted that Justice Cummings-Edwards dealt with the matter directly.
Expert evidence
The CCJ said that she observed that what constituted VoIP service was not a known fact and that expert evidence was required to determine if such service amounted to a “telecommunication system”. She declared that the subject called for expertise which a judge could not be expected to possess. Justice Cummings-Edwards concluded that in the absence of expert evidence to explain whether VoIP fell within those activities for which a licence was required, the trial judge (Justice Persaud) could not make the determination that he had made.
“We entirely agree with Cummings-Edwards JA that the trial judge required expert evidence to determine this issue, as demonstrated by the approach in the Infochannel case. We also agree with her that the Court of Appeal was in no better position than the lower court to decide the issue of VoIP in the absence of such testimony and cross examination thereon. This Court is also in no better position. We note further the crucial significance of this issue to the general public in Guyana and we dare say in the entire Caribbean region. This Court is not disposed to decide such a fundamental issue without the requisite evidential foundation.
“Moreover, we cannot ignore the central role played by the Director of Telecommunications in enforcing the provisions of the Act. As such, we have asked the question: Could the trial judge find that Mr. Samuels’ use of VoIP was a breach of the Act in the absence of a ruling by the Director of Telecommunications to that effect?
“In Guyana, it is clear that based on section 5(7) of the Act … the only authority with power to assert a contravention of the Act is the Director of Telecommunications. We have observed that the Director has played no part in this dispute. He has not ruled that Mr Samuels has acted in contravention of the Act. He has not intervened in these proceedings on the basis that Mr Samuels has contravened the Act. He has not instituted proceedings against GT&T for facilitating a breach of the Act. In our view, in the absence of such involvement by the Director, we are not in a position to conclude that there has been a contravention of the Act”, the CCJ concluded.
