Dennis Meadows and Others v Attorney General of Jamaica and Others

 
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[2012] JMSC Civ 110

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

CLAIM NO. 2011 HCV 05613

Between
Dennis Meadows
First Claimant

and

Betty Ann Blaine
Second Claimant

and

Cyrus Rousseau
Third Claimant
and
The Attorney General of Jamaica
First defendant

and

The Jamaica Public Service Company Limited
Second Defendant

and

The Office of Utilities Regulation
Third Defendant

Hugh Wildman instructed by Marvalyn Taylor Wright and Co for the claimants

Althea Jarrett instructed by the Director of State Proceedings for the first defendant

Michael Hylton QC and Sundiata Gibbs instructed by Michael Hylton and Associates for the second defendant

David Batts QC and Daniella Gentles-Silvera instructed by Livingston Alexander and Levy for the third defendant

STATUTORY INTERPRETATION — SECTION 3 OF THE ELECTRIC LIGHTING ACT — WHETHER THE MINISTER IS PERMITTED TO GRANT LICENCE TO ONE PERSON TO SUPPLY ELECTRICITY FOR THE WHOLE ISLAND OF JAMAICA

Sykes J
1

This case has generated wide public interest and understandably so, as there is general dissatisfaction with the cost of electricity. The dissatisfaction cuts across all classes of the society from the businessman to the householder. They have been complaining about the high monthly bills that they receive from the Jamaica Public Service Company Limited (JPS), the nation's monopoly supplier of electricity. However, this case is not about the billing practices of the JPS and neither is this case intended to be a facility of redress for those representing the dissatisfied JPS clientele.

2

Some persons believe that the reason for these high bills is the absence of competition in the electricity transmission, distribution and supply sector. They also believe that the JPS which has a twenty-year all-island exclusive licence over the transmission, distribution and supply of electricity is a stumbling block to their vision of greater competition in the respective markets. The citizens with this view have sought to bring an end to this monopoly by organizing themselves in groups and have launched this claim.

3

There are at least two such groups. One is known as Citizens Action for Securing Cheaper and Better Supply of Energy. Mr Meadows, the first claimant, is a member of that group. There is another group known as Citizens United To Reduce Electricity Rates. Miss Betty Ann Blaine, the second claimant, is a member of this second group. There is also Mr Cyrus Rousseau, Chairman of Heavensent Distributors, a company that bottles spring water. What unites the groups and Mr Rousseau is their desire to bring an end to the monopoly that JPS has over the transmission, distribution and supply of electricity in Jamaica.

4

They are asking this court to say that the all-island exclusive licence granted to JPS is illegal because the Minister did not have the power to grant an all-island licence to one company to transmit, distribute and supply electricity for the whole of Jamaica. It should be mentioned that there are other companies which generate electricity which is sold to the JPS.

5

The citizens' groups and Mr Rousseau are also saying that the Office of Utilities Regulation (OUR) breached its own statute, the Office of Utilities Regulation Act (OURA) when it recommended that the Minister grant the all-island licence to JPS.

6

The resolution of the main issue in the case, that of the all-island licence, comes down to the interpretation of section 3 of the Electric Lighting Act (Jam), 1890 (ELA). The ultimate question is whether the Minister with responsibility for mining and energy has the power under section 3 of the ELA to grant an all-island licence to one entity to transmit electricity to the entire island of Jamaica. Reference is only made to transmission here because of how some of the declarations sought were framed. Section 3 in its current form reads:

The Minister may from time to time license any Local Authority as defined by this Act, or any company or person, to supply electricity under this Act for any public or private purposes within any area, subject to the following provisions

  • (a) the licence may make such regulations as to the limits within which, and the conditions under which a supply of electricity is to be provided, and for enforcing the performance by the licensees of their duties in relation to such supply, and for the revocation of the licence where the licensees fail to perform such duties, and generally may contain such regulations and conditions as the Minister may think expedient;

  • (b) where, in any area or part of an area in which any undertakers are authorized to supply electricity under any licence, the undertakers are not themselves the Local Authority, the licence may contain any provisions and restrictions for enabling the Local Authority, within whose jurisdiction such area or part of an area may be, to exercise any of the powers of the undertakers under this Act with respect to the breaking up of any street repairable by such Local Authority within such area or part of an area, and the alteration of the position of any pipes or wires being under such street, and not being the pipes or wires of the undertakers, on behalf and at the expense of the undertakers, and for limiting the powers and liabilities of the undertakers in relation thereto, which the Minister may think expedient.

7

This legislation was influenced by the Electric Lighting Act, 1882, of the United Kingdom. When the Jamaican Act of 1890 was enacted, the statutory functionary who could grant licences was the Governor in Privy Council and not the Minister as is now stated in the legislation. There have been changes to section 3 since 1890 which should be noted. First, there were three provisos and now there are two. Second, Local Authority now means Parish Councils and not Parochial Boards which are the ancestors of Parish Councils.

8

The basic contention of Mr Hugh Wildman is that the Minister does not have the authority to grant an all-island licence to one entity to generate, transmit, distribute and supply electricity to the entire island of Jamaica. Such a grant is illegal in the sense of not authorized by law. Mr Wildman was careful to make the point that this is not a challenge based on administrative law grounds such as bad faith, irrationality or irrelevant considerations. He is not saying that the Minister had the power but exercised it incorrectly; he is saying that the Minister does not have the power at all.

9

The steps to this conclusion are these. The Minister with responsibility for mining and energy when granting a license to supply electricity is acting under a power given to him by the ELA. Section 3 of the ELA sets out the full range of the Minister's powers. There is no provision in section 3 which authorises the Minister to grant to one entity an all-island licence. Therefore, the Minister could not lawfully grant JPS alone a licence for the entire island. The effect of this illegality is that no valid licence was issued to JPS. The end result being that JPS is now operating without a valid licence.

10

For this submission Mr Wildman relies on National Transport Co-operative Society Limited v The Attorney General of Jamaica [2009] UKPC 48. In that case the relevant legislation said that the Minister may grant “to any person an exclusive licence on such conditions … to provide public passenger services within and throughout the Corporate Area” (emphasis added). The problem arose because the Minister, unwittingly, ended up granting two licences to operate within the Corporate Area. The result was that there were two licences in respect of the Corporate Area in a context where the legislation said that the licence granted in the Corporate Area must be exclusive. Unsurprisingly, Brooks J, the Court of Appeal of Jamaica, and the Judicial Committee of the Privy Council held that the Minister had breached the relevant legislation. The consequence was that the terms of the licence between NTCS and the Government were unenforceable despite the fact that NTCS had acted upon the licence for many years.

11

This decision points to one of the striking features of public law which is that where a statutory body or a person authorised by statute to do an act, does an act not authorized by the relevant statute, then the unauthorised act has no legal effect even if person or persons acted on it for years. There is no such thing, as in private law, as ratification of action not authorised by the enabling statute. Everything is a nullity. This is the conclusion Mr Wildman hopes for in the instant case.

12

There was another point raised by Mr Wildman. Mr Wildman said that giving an all-island licence necessarily meant that the Minister prevented himself from considering other applicants for a licence to transmit electricity. The argument here was that granting the all-island licence was not permitted by section 3 of the ELA and this all-island licence, by the fact of being all-island, meant that the Minister had deprived himself of the power to consider other applicants. This amounted to a fettering of discretion flowing from an illegal act.

13

As will be shown below, this second point raised by Mr Wildman is a seriously flawed argument. There is a difference between saying that the Minister cannot grant an all-island licence and that he cannot grant an all-island exclusive licence. An all-island licence is not the same thing as an all-island exclusive licence (emphasis added).

The declarations
14

From these arguments, Mr Wildman urged the court to grant the following declarations:

  • 1. A declaration that the 20-year All-Island Electricity Licence granted by the then Minister of Mining and Energy to the Jamaica Public Service Company Limited on 30 th March 2001 pursuant to section 3 of the Electric Lighting Act, and extended by the Amendment...

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