Supreme Court of Belize
Action No. 40 of 2002
11th February, 2002
A.O. Conteh, C.J.

Ms. Lois Young Barrow S.C., for the Applicant
Mr. Elson Kaseke, Solicitor General, with Ms. Minnet Hafiz, Crown Counsel, for the Respondent

Application for leave to apply for judicial review - Applicant failing to make its application promptly and in any event within three months from the date on which the grounds for the application first arose - When does time to make application for leave begin to run - Applicant failing to advance good reason to explain the reasons for the delay - What constitutes good reasons to explain delay - Applicant found to have "slept on its rights" - Consideration of the interests of third parties - Court taking judicial notice of investments in the telecommunications by third parties which would prejudice their interests if leave were granted - Court taking into account likelihood of prejudice to the administration in refusing leave - Court finding Applicant's complaints to be founded on the law of contract pursuant to its monopoly licence to provide telecommunication services in and for Belize until 31st December, 2002 - Whether judicial review appropriate mechanism to challenge alleged breaches of contract - Application for leave to pursue the remedy of mandamus to require the Director of Telecommunications to keep a register of telecommunications as required by section 14 of the Act - Court granting leave to apply for mandamus to require the Director of Telecommunications to keep a register as required by the Act.

J U D G M E N T

1. The Applicant in this matter before me is the Belize Telecommunications Ltd. It carries on business as a licensed provider of national and international telecommunication services in and for the country of Belize.

2. The Minister responsible for telecommunication is charged by section 20 of the Telecommunications Act - Chapter 229 of the Laws of Belize, Revised Edition 2000 with the responsibility and power to licence the running of telecommunications systems in Belize. The Attorney General is cited as the Respondent in this application no doubt as the representative of the Government.

3. The Applicant was granted a licence on 30th December 1987 for fifteen-year period, which is set to expire on 29th December, 2002.

4. The Applicant avers that it was an express provision of its licence in clause 7 that the Government of Belize would not, during the existence of the Applicant's licence, grant any other licence pursuant to section 20 of the Telecommunications Act, to any other person.

5. The Applicant's complaint in this application concerns principally the grant of two operating agreements or telecommunications licences by the Government, first, on 27 April, 1999 to DATAPRO INTERNATIONAL LTD. and then the second, on 5th May, 2000 to INTERNATIONAL TELECOMMUNICATIONS LTD. (which I shall refer to as INTELCO hereafter). I say principally in regards to the Applicant's complaint because in this application it is seeking leave to have issued orders of mandamus directed at the Director of Telecommunications in relation to the Register of telecommunications licences issued under the Act, as well as to get him to prevent persons or other entities from operating telecommunications services contrary to section 34 of the Act. I shall say more on this later.

6. Having carefully listened to the arguments and submissions of Ms. Lois Young Barrow S.C., the attorney for the Applicant and the learned Solicitor General for the Respondent, I am of the considered view that in all the circumstances of this application, leave should not be allowed the Applicant to seek judicial review of the decisions dated 27 April, 1999 by which the Minister of Public Utilities granted what is described as an "operating agreement" to DATAPRO LTD; and that dated 5 May 2000 to grant an operating agreement to INTELCO LTD.

7. I have come to this conclusion after a careful review of all the materials put before me and the applicable legal rules and principles a Court must bear in mind when considering whether to grant or refuse leave to an Applicant for judicial review.

8. I have arrived at this decision for the following considerations, which I will now set out.

9. It is clear from the facts of this case that the Applicant became aware of the issuance of what in effect were licences to the two other entities, that is, DATAPRO and INTELCO from as early as April 1999 and May 2000 respectively. But the Applicant however chose to do nothing. This inaction of the Applicant was perhaps not to antagonize the regulatory officers of the telecommunication industry,

10. In my view, the delay in having recourse to the Courts by the Applicant may be commendable on its part as a less litigious corporate citizen, but it does not however, in the circumstances of this case, warrant the exercise of my discretion to grant it leave to have those decisions now reviewed by the Courts. Since the grant of those licences or agreements, much water, as it were, has flowed under the bridge. In the nature of the telecommunications industry, no doubt, some expenditure of time, money and other resources would have ensued. I have, of course, no evidence on this. However, one of the grounds on which an application for leave for judicial review might be denied is that if, as a result of the delay on an Applicant's part, such delay may lead to prejudice or hardship on third parties.

11. I am of the view that to grant leave now to review the decisions to grant the operating licences to DATAPRO and INTELCO, would, whether there has been any outlay by them in furtherance of their licences or not, cause some prejudice and hardship.

12. Moreover, since the lapse of time that has ensued, to grant leave now to review those decisions will, my view, be destabilizing or detrimental to good administration. This is an additional reason why I think leave should be refused to the Applicant.

13. An application for leave must be made promptly and in any event within three months from the date on which the grounds for the application first arose, unless the Court considers that there is good reason for extending the period within which the application can be made - Order 53 r. 4(1) of the Court Rules in England, which for want of readily applicable or available local rules we must, perforce, have recourse to in Belize in this area of the law and practice in this jurisdiction.

14. In this type of application to the Court where the issue of delay may be involved, the Courts have even held that an application would not necessarily be prompt simply because it was made within three months; see for example, R v Exeter City Council, ex parte J.L. Thomas & Co. (1990) 1 All E.R. 413. The learned Solicitor General has, on behalf of the Respondent, strenuously argued that the Applicant has, to use with respect, his somnolent phraseology, "slept on its rights."

15. I am persuaded after a careful perusal of the applicable rules and principles that the time-limit for applying for leave begins to run from the date when grounds for the application arose. This I think is the clear intent of Order 53 r. 4(1). Therefore, I believe as a matter of common sense and construction of the rules, the date on which the grounds first arise would be ordinarily, the date on which the decision, for which leave is sought is to be impugned, was taken.

16. From the evidence before me in this application, it is evident that the date on which the Applicant became aware of the decision or the grant of telecommunications licence to INTELCO was on 16th May, 2000 - see para. 15 of Ernesto Torres's Affidavit.

17. I must state here that at the heart of the Applicant's case is the grant of two telecommunications licences by the Respondent to DATAPRO INTERNATIONAL LTD. and INTERNATIONAL TELECOMMUNICATIONS LTD. The Applicant avers as much - see para. 14 of Mr. Torres' Affidavit, the Applicant's Chief Operating Officer.

18. What is also manifestly clear is that at least on 30th October, 2000, the Applicant had realised that the game was up. That is, the fog enshrouding the issue as to whether or not other licences had been granted to others had lifted. Its Attorney wrote to the Director of Telecommunications in respect of the telecommunications operations of these two entities. See para. 16 of Torres' Affidavit and Exhibit "ET 3" annexed thereto. This application could have been launched soon thereafter. But this was not done.

19. It is significant to remember on this issue of delay that two principal reliefs the Applicant is seeking leave to avail of are Orders of Certiorari. Now by Order 53 r. (2) it is provided that where the relief sought is certiorari the date when the grounds first arose is to be the date of the judgment, order, conviction or other proceedings. It is reasonable to think that reference to proceeding is to be construed as meaning any decision-making process by any public law body.

20. Therefore in my view, commendable as the restraint of the Applicant might be in not rushing to Court when it became aware of the decisions it now seeks to challenge, it does not, I think, or should not, absolve it of blame for the delay in making this instant application. I think the Applicant has not acted with the promptitude that would otherwise incline this Court to exercise its discretion and grant it leave. There is no good reason in my estimation on the evidence before me to justify or indulge the Application not being prompt in bringing this application.

Although no comprehensive definition of good reason can be offered, the reason for the delay must be scrutinized to see if it's good enough to warrant an extension of the time-limit. The Applicant's desire to avoid a full frontal confrontation (to use its Attorney's own words) with the Respondent, is not, in my view, good enough reason to excuse the lapse of time attendant on this application since the grounds first arose.

Even putting the time lapse at its lowest on the Applicant's own estimation, some nine months since it says it became officially aware of these two licences, I think this is simply not enough - this application is, in my view, made tardily. On the evidence the Applicant had known of the issuance of the licences to the two other entities since 16 May, 2000: see para. 16 of Mr. Torres' Affidavit and its Exhibit 2, an inter-office Memorandum from the Applicant's Chief Operating Officer to its Chief Executive Officer. This I find to be too long a lapse which would undermine the application for leave.

21. I have borne in mind also the observations of Lord Woolf, as he then was, in the case of R v Commissioner for Local Government, ex parte Croydon London Borough Council and Another, [1989] 1 All E.R. 1033, that so long as no prejudice is caused, the Courts will not rely on those provisions in a technical manner to deprive a litigant who has behaved sensibly and reasonably, even though late in making his application for judicial review.

Ms. Young-Barrow for the Applicant, plausibly urged this case on me. I think however, that to grant leave now to challenge the grant of these other licences would cause prejudice in view of the time that has elapsed since the grant.

There will be prejudice to the administration itself to have its decisions challenged now so late in the day after its grant of those other licences. I say nothing about probable injustice or hardship to these other grantees as they are not before me and I have no evidence of this. But it must be plain common sense that since the grant to them, DATAPRO and INTELCO must have bestirred themselves with consequential outlay of resources in anticipation of operating their licences. I therefore feel unable to grant leave to the Applicant to launch its judicial review attack on the grant of those licences.

22. For all these reasons, I find myself unable, as I stated at the outset, to grant leave to the Applicant-whatever yardstick is used to measure the time that has elapsed since the decision the Applicant is seeking leave to challenge I think it is long enough to disentitle it to leave.

23. Moreover, and perhaps more significantly, from the materials before me it is clear that the heart of the Applicant's complaint for which it is seeking leave for judicial review is the grant by the Respondent of telecommunications licences to two other entities. This, the Applicant apprehends, is an incursion into its exclusive domain, for as the Applicant avers, the Respondent, that is, the Government of Belize, had promised, covenanted or undertaken not to do so.

What has therefore agitated this application is the apprehension of the Applicant that the Government has broken faith with it, for the Applicant has since the grant of its own licence on 30 December, 1987, in its own words "placed great reliance on its Licence as the exclusive provider of telecommunication services in Belize" (see paras. 3,11,12,13, and 14 of Mr. Torres' Affidavit).

24. In other words, in the more familiar phraseology of the market place, the Applicant has since 1987 regarded itself as having a monopoly on the provisions of telecommunication services in and for Belize. That is, up until perhaps April 1999, when the Applicant avers, the Respondent issued telecommunications licences to other entities than itself.

Stripped to its bare essentials, the gravamen of the Applicant's complaint is that the Respondent has by its grant of other licences or operating agreements to other entities, breached of Clause 7 of its agreement with the Applicant. (see paras. 5, 29, 30 and 31 of Torres' Affidavit).

25. In my view, in the circumstances, the remedy open to the Applicant that is, if its averment is right, is not through the portals of the present proceedings.

26. Judicial review is pre-eminently a public law remedy to enable the Courts to scrutinize and, where necessary, correct by appropriate relief, the exercise of governmental or statutory powers that might have adversely affected citizens' rights and interests.

It is not any or every alleged breach of these powers that must lead to judicial review; for depending on the context, even though a given relationship may have as its backdrop an Act of Parliament, that relationship may however in fact be based on a contractual footing between the parties. In this event the doors of the Courts are open to proffer remedies if necessary, other than by judicial review.

I believe this is one such relationship between the Applicant and the Respondent.

27. It is salutary to remember that the Applicant is not alleging any improper action by the Respondent in relation to its own licence as such; rather, that the grant of other licences to others is, as it were, an infringement of its monopoly, a breach of the Respondent's promise not to do so.

The Applicant's apprehension that the grant of these operating agreements or licences to DATAPRO and INTELCO was a breach of the Respondent's undertaking to it in clause 7 of its own licence, is readily understandable. But this I am afraid, is a different matter, for under the provisions of the Telecommunications Act, the Respondent is empowered to grant licences for the running of telecommunications systems as would be specified in the licence.

28. In the circumstances therefore, any remedy the Applicant may have must lie in the private law arena and not in the domain of public law, one of whose principal pillars is the mechanism of judicial review.

29. Additionally therefore, in the light of these considerations, I must refuse leave to the Applicant to challenge the decisions to issue licences by the Respondent to DATAPRO LTD. and INTELCO LTD. for telecommunications operating systems.

30. However, with regards to leave to pursue by judicial review an order of mandamus against the Director of Telecommunications in relation to section 34 of the Telecommunications Act, in view of what I have said concerning the licences or operating agreements issued to DATAPRO and INTELCO, this request in my view, is inextricably linked with that for the Orders of Certiorari and Declarations the Applicant is also seeking leave for. I do not think therefore, that any useful purpose would be served by granting leave to pursue this.

31. I am not convinced that the Applicant has an arguable case on this score. In any event, a perusal of section 34 would disclose that it prohibits, in order to control telecommunications systems and services within Belize and its territorial waters, certain activities and the possession of certain kind of apparatus, save in accordance with a licence granted by the Minister. Moreover, section 40 of the Act creates an offence and its punishment for the contravention of the provisions of section 34. This in my view is a penal provision that is best regulated by the prosecuting authorities and not a mandamus directed at the Director of Telecommunications. Mandamus in my view, is therefore not the most appropriate way to proceed. In the light of the facts and circumstances underlying this application, I am unable to grant leave to the Applicant to pursue this Order.

However, with regards to leave to pursue the other Order of mandamus regarding the keeping of a register of telecommunications licences and allowing access thereto by the Director of Telecommunications, I think that clearly, the Applicant has an arguable case on this score as well as a legitimate interest, being as it is, a licensed telecommunications operator.

32. The Director is under a statutory duty by the provisions of section 14 of the Act to keep a register of telecommunications licences and Orders issued or made under the Act. The register shall be open to the public for inspection during such hours and on the payment of such fee as the Minister may prescribe. Also, any person, on payment of any prescribed fee, is entitled to a copy of or extract from any part of the register, which shall be certified as a true copy or extract.

33. The Applicant deposes in paragraph 28 of Mr. Torres' Affidavit that since 5th January 2001, it asked the Director to allow it to have a sight of the Register of Licences, but no response has been forthcoming from the Director. I do not feel the same inhibitions with regards to the passage of time since the Applicant's request to the Director because the Director's statutory duty to keep a register of licences is a continuing one; failure or neglect to perform can be raised at anytime.

34. I am in the circumstances ineluctably of the view that the Applicant is entitled to leave to pursue the remedy of mandamus it is seeking. Accordingly, I grant leave to the Applicant to have judicial review of the Director's action or inaction, in relation to the duties imposed on him by section 24 of the Act.

Finally, let me say this on mandamus. Historically, it was a writ of grace as part of the prerogative writs: it alleged a neglect of a public duty. It became at once of high governmental importance to enforce the performance of a public duty and a valuable remedy of last resort for the subject. This is of especial relevance today in Belize where although the old prerogative writs of mandamus, prohibition and certiorari are no longer issued by the Court, it has nonetheless, statutory power to grant mandamus in all cases where it appears to the Court to be just or convenient to do so. (see section 27 of the Supreme Court of Judicature Act - Chapter 91 of the Laws of Belize, Revised Edition 2000). And today, the former prerogative writs are now available as orders of mandamus, prohibition and certiorari.

Their availability as remedies are however, subject to rules of Court which, as we have no local ones, as has been shown in the course of this decision, have to be extrapolated from the practice and procedure of the High Court of Justice in England as permitted by section 60 of the Supreme Court of Judicature Act.

----------OO----------