Cable & Wireless (West Indies) Ltd Appellant v [1] Winston Derrick [2] Venture Capital Ltd Respondents

• Jurisdiction: Antigua and Barbuda
• Judge: REDHEAD J.A,ARCHIBALD, J.A. [AG.],SINGH, J.A.
• Judgment Date: 17 September 2001
• Judgment citation (vLex): [2001] ECSC J0917-1,[2001] ECSC (ATG) J0917-1
• Court: Court of Appeal (Antigua and Barbuda)
• Docket Number: CIVIL APPEAL NO. 13 OF 2001
• Date: 17 September 2001

[2001] ECSC J0917-1

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Satrohan Singh

Justice of Appeal

The Hon. Mr. Albert Redhead

Justice of Appeal

The Hon. Mr Joseph Archibald

Justice of Appeal (Ag.)

CIVIL APPEAL NO. 13 OF 2001

Between:

Cable & Wireless (West Indies) Limited

Appellant

and

[1] Winston Derrick

[2] Venture Capital Limited

Respondents

Appearances:

Mr Russell Martineau Q.C. and Mr Justin Simon for the Appellant

Mr Dane Hamilton for the Respondent

REDHEAD J.A

1 This is an appeal from the refusal of Georges J. to grant an injunctive relief against the respondents on an ex parte summons filed by the appellant.

2 On a summons filed by the appellant on 16 ^th May, 2001 the appellant sought the following injunctive reliefs:

1

An injunction restraining the respondents whether by themselves their servants or agents or otherwise howsoever from operating or procuring the operation of the telecommunications facilities within Antigua and Barbuda and/or from providing or procuring the provision of the telecommunications services to any person in Antigua and Barbuda save and to the extent permitted by any licence granted by the relevant minister under the Telecommunications Act Chapter 423 of the Laws of Antigua and Barbuda. 2. An injunction restraining the respondents………….from committing or procuring the commission of any breaches of section 3 of the Telecommunications (Prevention and Prohibition of Unauthorised Use and Service) Act 1994 (No. 16 of 1994); and 3. An injunction restraining the respondents……………… from operating or procuring the provision of "call back service" in Antigua and Barbuda.

3 The learned trial Judge in refusing the appellant's application for an injunction, after referring to Lord Diplock's judgment in-

Lonrho Ltd and Another v Shell Petroleum Co. Ltd and Another AC.1982 173-

Where at page 185 Lord Diplock quoting Lord Tenterden C.J. in Doe & Murray v Bridges (1831) 1B and Ad 847, 859 where he said…….

"The general rule…… where an Act creates an obligation, and enforces the performance in a specified manner…… that performance cannot be enforced in any other manner…….where the only manner of enforcing performance for which the Act provides is prosecution for the criminal offence of failure to perform that statutory obligation or for contravening the statutory prohibition which the Act creates, there are two classes of exception to the general rule…………."

These exceptions are:-

• (1) "where upon the true construction of the Act it is apparent that the obligation or prohibition was imposed for the benefit or protection of a particular class of individuals, as in the case of the Factories Act and similar legislation.

• (2) Where the statute creates a public right (one enjoyed by all members of the public) and a particular member of the public suffers "particular, direct and substantial damage" other and different from that which was common to all the rest of the public".

4 The learned trial Judge then held that:-

"It is plain from the plaintiff's statement of claim and the matters set out in their (sic) affidavit that the instant case does not fall within either of those exceptions….. The only loss suffered by the plaintiff is economic."

5 The appellant's case as advanced before the learned trial judge is that it has a licence which gives it the exclusive right to provide telecommunications in Antigua and Barbuda for a period of 25 years from 22 ^nd June, 1987.

6 In June 2000 the Minister responsible for telecommunications granted the second-named respondent two licences to operate and maintain a very small Aperture Terminal (VSAT) Satellite dish for call center type service and data and to operate as an internet service provider limited to internet data service only.

7 The appellant alleged that they have discovered that the respondents in breach of their licences and also in breach of the appellant's exclusive licence, the respondents have been allowing international voice traffic to pass through their VASAT transmitted and facilitate access of general public to those calls to the appellant's detriment and loss. This the respondents vehemently deny.

8 It was the appellant's case before the court below and this court that telecommunications Act 1951 chapter 423 and Telecommunications (Prevention and Prohibition of Unauthorised Use and Services) Act 1994 give it a cause of auction.

9 In Lonhro (supra) Lord Diplock said at page 183:

"………….it is well settled law by authority of this House in Cutler v Wandsworth Stadium Ltd. A.C 1949 398 that the question whether legislation which makes the doing or omitting to do a particular act a criminal offence render the person guilty of such offence liable also to a civil action for damages at the suit of any person who thereby suffers loss or damage is a question of construction of the legislation."

10 I turn now to examine the legislation in question.

Section 4 of the Telecommunications Act 1951 (on which the appellant relies) states:-

"No person shall establish any telecommunications station or install, work or operate any telecommunications apparatus in any place in Antigua and Barbuda or on board any ship or aircraft registered in Antigua and Barbuda except under and in accordance with a licence granted in that behalf under the provisions of this Act and subject to such conditions and restrictions as may be prescribed by the rules made under this Act."

6(3)—"Any person who contravenes the provisions of subsection (1) shall be guilty of an offence under this Act and on conviction the court, in addition to any penalty provided by the Act, may order that any telecommunications apparatus in connection with which the offence was committed be forfeited to Her majesty."

11 In my opinion this section merely forbids one from establishing any telecommunication station or operating any telecommunication apparatus etc. and provides a penalty by subsection 3 for breach thereof.

12 I now examine the Telecommunications (Prevention and Prohibition of Unauthorised Use and Services) Act 1994 No. 16 of 1994-

Section 3—"No person shall use or permit or suffer to be used any telecommunication system apparatus in connection with the provision of a call back service or do anything so as to facilitate the use of any telecommunication system or apparatus in connection with the provision operation or use of such service."

Section 4—"Subject to section 5 the telecommunication authority or any person authorised by the authority may take all necessary steps to track any unauthorised use of the telecommunication apparatus."

5(1) "The telecommunications authority may, by writing, authorise a licensee or any other person to use any technical or other monitoring device to carry out any examination and test to ascertain whether section 3 is being contravened.

(2) For the purpose of subsection (1) the telecommunications authority or any person authorised by the telecommunication authority may, upon giving reasonable prior written notice to the user of such services, or on leaving such notice, at such premises, enter upon any premises to which telecommunications services have been supplied by the telecommunication authority, or the licence in order to examine and test the telecommunication apparatus located at such premises."

"6(1) If the telecommunication authority or a licensee is satisfied that the telephone service is being used to transmit voice or data services from a point in Antigua and Barbuda by a route other than a route established by the licensee and approved by the telecommunication authority for such transmission, the telecommunications authority or the licensee may take any step it considers necessary to-

• (a) block transmission over that other route or call attempts which contravenes the provision of this Act; or

• (b) suspend the provision of telecommunication services to such user; or

• (c) modify its terms and conditions of service to such user; or

• (d) withdraw the telecommunication services supplied to any such user.

(2) Any licensee who blocks transmission over any route or withdraws telecommunication services under subsection (1) shall immediately make a report of the action taken to the telecommunications authority.

(3) Where telecommunication services to any user have been suspended or withdrawn under this section, such services shall not be restored unless the user has paid a restoration fee of five thousand dollars to the telecommunication authority.

7. Any person who contravenes the provisions of section 3 is guilty of an offence and is liable on summary conviction to a fine of fifty thousand dollars or to a term of imprisonment of two (2) years."

13 Mr. Martineau, Learned Queen's Counsel, has placed great emphasis on section 6, among other things, as clothing the appellant with a cause of auction. He argued that the words in section 6(1) "may take any such step it considers necessary" must include the bringing of injunctive relief.

14 I do not agree as these words are at large. They are limited by the words that follow "may take any such step it considers necessary to:-"

• (a) block transmission etc.,

• (b) suspend the provision of telecommunication services to such user; or

• (c) modify its terms and conditions of services to such user; or

• (d) withdraw the telecommunication services supplied for any such user.

15 Moreover the actions that can be taken by the licencee or the telecommunication authority are spelt out and do not include the bringing of injunctive relief.

16 Learned Queen's Counsel, Mr. Martineau, also argued, that the legislature by investing the appellant, as licensee, with the power to block transmission, clearly indicates an intention on the part of Parliament that the legislation was for the benefit of the appellant. Mr. Martineau contended that the power to block transmission includes the right to sue for an injunction. Again I do...