Supreme Court
No. 138 of 2002
14th June, 2002
Blackman, J.

Mr. Michael Young, S.C. together with Mrs. Tanya Longsworth-Herwanger, for BEL/BECOL.

Mrs. Lois Young Barrow, S.C. together with Mr. Dean Barrow, S.C., for BACONGO.

Mr. Derek Courtenay, S.C. together with Mr. Michel Chebat for the PUC.

Application for Judicial Review - Applicants applying to the Supreme Court to review the decision of the Public Utilities Commission ("PUC") to approve the Power Purchase Agreement - Whether such approval by the PUC amounted to an approval of the Chalillo Dam Project - Onus of proof in judicial review applications - Proof on a balance of probability suffices - Principle of omne praisemanta rite esse acta to be presumed to apply to decisions of public authorities until the contrary is shown - Affidavit evidence - Approach which should be adopted by the courts where there is conflicting affidavit evidence - Courts should proceed on the basis of the Respondent's affidavit evidence.

D E C I S I O N

This application was being argued by the Applicant on the basis that the approval or decisions given by the Public Utilities Commission in January of this year to B.E.L. and/or BECOL authorized without the public hearings mandated by the Electricity Act, Chapter 201 of the Laws of Belize, the construction of the Chalillo Dam. It has also been contended that in approving the Amended Power Purchase Agreement, the PUC also approved and gave the green light for the Chalillo Dam project.

There has been reliance on the part of the Applicant, on the affidavit evidence of Ambrose Tillett and Jamilla Velasquez. Mr. Tillett's affidavit is at some length, giving a background to the analysis of the agreements. However, it is the affidavit of Ms. Velasquez which more or less seeks to ground the rationale for the application for Judicial Review on the part of the Applicant, BACONGO. The affidavit in its terms and its annexes deals specifically with the issue of the concerns in relation to Chalillo and in particular paragraph 20 of the affidavit sworn to on March 19th. There is particular reference to the fact that no public enquiry was held or notice given by the PUC of its deliberation and consideration process before the decision at 15th January, 2002. I think for purposes of the Record the actual date by which the approval was an issue, is more properly January 8th rather than January 15th. However, it is not material for the purposes of this decision. Attached to the affidavit of Jamilla Velasquez there is an exchange of correspondence between herself and the PUC, very courteous letters, seeking information and responses given: Mr. Cantun in a letter of December 12th, 2001 advised the Chairman of BACONGO, Tony Garel as to how the PUC dealt with the process for competition and that when they thought they would need to have a public hearing, they will do so. The responses from Ms. Velasquez to Dr. Cantun were in terms essentially to ask for a number of clarifications are in fact asking for a hearing which eventually Dr. Cantun replied to say that they will not be doing. I think there was then a seeking of information under the Freedom of Information Act which enabled the Applicant to get information as to the dates and copies of these agreements.

There is the evidence also, so far, of Mr. Lynn Young and Dr. Cantun which said that the Revised Power Purchase Agreement was sent to the PUC for approval because they thought approval was necessary for the Electricity Tariff Charges By-laws that made such approval mandatory.

Section 19 of the Act seems to me to be the tie-in section with the By-laws in that it is Section 20 of the Act which speaks of approval by the Commission of fees as prescribed by the applicable By-laws. That is the only section that I have been able to find that makes any tie-in with these By-laws, but I will make the observation that the By-laws are deficient in not making a proper tie-in between the Act and the By-laws in terms for application. Certainly the reference in the correspondence, to Regulation 2 is faulty.

The point has been made in Lewis' Judicial Remedies in Public Law (Chapter 9 - 124 at page 307) that the onus is on the Applicant to establish that a ground for review exists and the standard of proof is the civil standard of the balance of probability. This principle has been affirmed by Lord Bridge of Harwich in the case of R v The Home Secretary ex parte Khawaja (1984) AC p. 84 particularly at page 124 where Lord Harwich observed at letters E and G, "the civil standard of proof by a preponderance of probability will suffice, always provided that, in view of the gravity of the charge of fraud which has to be made out and of the consequences which will follow if it is, the court should not be satisfied with anything less than probability of a high degree… it must be accepted that proof to the appropriate standard can, and in the vast majority of cases will, be provided, in accordance with the established practice of the Divisional Court, by affidavit evidence alone." I think the principle of omne praisemanta rite esse acta is applicable in this case; the maxim of law that things are presumed rightfully to be done. The assertion by the PUC that when the matters are brought that will require hearing to be done, I think this Court must give some recognition to it. This is certainly in the averment of Dr. Cantun in his affidavit. There is also the statement by the interested party, Mr. Lynn Young on behalf of BEL and BECOL that no licence was sought to be modified or modified and no approval has been sought to be given at paragraph 12 of Lynn Young's affidavit in respect of any generation of electricity of the Chalillo site or has any such licence been granted.

The second issue that falls for determination is the issue of the bidding process and there is the contrast between Mr. Tillett's affidavit and that of Mr. Cantun to which reference has just been made and again the statement in Lewis, that when there is a conflict between that of the Applicant and the Respondent, the Courts will proceed on the basis of the Respondent's affidavit. (See Chapter 9 - 112 at page 302).

In the result, having considered this matter carefully and taken note of the affidavit evidence, I am of the view that the application by BACONGO is premature, in that the approval by the PUC of the Power Purchase Agreement did not amount to an approval for the construction of the Chalillo Dam. I the result, the reliefs and remedies sought should be denied.

Accordingly, I dismiss the application which costs to the Respondents, the PUC and BEL to be taxed or agreed.

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