Albert Deterville Applicant v 1. Wilbert King 2. Egbert Andrew 3. Jacques Compton 4. Attorney General Respondents [ECSC]
| Jurisdiction | St Lucia |
| Judge | Matthew J. |
| Judgment Date | 09 October 1996 |
| Judgment citation (vLex) | [1996] ECSC J1009-5 |
| Docket Number | SUIT NO. 84 of 1996 |
| Court | High Court (Saint Lucia) |
| Date | 09 October 1996 |
IN THE HIGH COURT OF JUSTICE
(Civil)
A.D. 1996
SUIT NO. 84 of 1996
After obtaining leave presumably (because no order has been filed) on May 10, 1996 pursuant to Order 44 Rule 1 of the Rules of the Supreme Court, the Applicant filed an originating motion on May 15, 1996 asking for an order of certiorari to quash the decision by the Telecommunications Advisory Board and the Government of Saint Lucia dated November 15, 1995 refusing to grant him a radio licence to continue broadcasting on the 105.1 FM frequency.
The application was supported by an affidavit filed on March 28, 1996 which had been used in his application for leave.
In that affidavit the Applicant stated that he had been granted a test licence by letter dated August 25, 1989 subject to a payment of $75.00 each year. He stated that on Jaruary 11,1 991 he had requested that the test licence be extended and by letter dated January 23, 1S91 an extended time was granted pending reply for a permanent licence from the Government of Saint Lucia.
He said on June 15, 1994 a further application for a permanent broadcast licence was made to the Ministry of Communication and Works.
He alleged that on September 7, 1995 the Cabinet of Saint Lucia approved the establishment of a telecommunications Advisory Board to advise the Ministry of Communications, Works and Transport on the issuing, renewal, amendment and revocation of licences to operate a radio station and that on October 12, 1995 the Board met to consider the application of eight persons including his company, for radio broadcast licences.
He stated that on November 15, 1995 the Ministry informed him that the Government was unable to grant him a radio broadcast licence at this time and that as a result he should cease his broadcast.
He alleged that no reasons were given for the decision and that he had expended a large sum of money in the fair, reasonable and legitimate expectation that he would have been granted a permanent radio broadcast licence.
He alleged that his broadcasts had become very popular with alarge number of listeners throughout Saint Lucia, Martinique and Saint Vincent and a large number of listeners from ail walks of life would call and express their views on national issues, including the expression of views sometimes critical of the Government.
He said that he believes that the true reason for not granting him a licence was because of the last statement.
He said he had been informed that of the applicants, only two had been granted radio broadcast licences and he said that neither of the two who are known supporters of the Government of Saint Lucia had undertaken an initial radio broadcasting investment comparable to his.
He said the decision was tainted with bias, malice and extraneous considerations and his fundamental rights and freedoms had been infringed; that the decision was contrary to the rules of natural justice and was unreasonable in all the circumstances.
In reply to a request for further and better particulars he alleged that the particular rights and freedoms infringed were those granted by sections 1, 10 and 13 of the Saint Lucia Constitution. In respect of the rules of natural justice he alleged that the rights infringed were:
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a) the right to be heard by an unbiased tribunal;
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b) the right to be heard in answer; and
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c) the right to be given reasons for the decision.
On May 31, 1996 Wiibert King filed an affidavit in reply. In that affidavit he stated that he was the Permanent Secretary of the Ministry of Communications, Works and Transport and that by virtue of thatoffice he was the Wireless Officer of the Government of Saint Lucia. He referred to the setting up of the Telecommunications Advisory Board and its subsequent meeting to consider licences on October 12, 1995. He stated that of the nine applicants, four, including the Applicant in this case, were short-listed and were subject to detailed analysis on the basis of established criteria which he set out.
He said the Board was informed by the Telecommunications Officer that notwithstanding the qualifications by all four applicants for a licence, in light of certain technical problems relating to the RF spectrum a maximum of only two licences should be granted at this time.
He said that acting on the technical advice thus offered the Board selected tne two applicants wmcn did not include the Applicant in this case.
He stated that by conclusion No. 1669 of 1995 dated November 2, 1995 Cabinet approved the grant of licences to Helen Television System and to Samuels and Hinkson.
King, who is a member of the Advisory Board stated that at no time during the meeting, or at any other time were matters other than the criteria in paragraph 6 of his affidavit considered in relation to the applications for licences. These criteria are as follows:
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a) technical evaluation;
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b) financial/commercial viability;
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c) broadcast content; and
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d) development potential.
He stated that he had no knowledge of the political affiliations of any of the applicants for a licence and that was never a considerationin the deliberations of the Board.
The affidavits of two other members of the Advisory Board, Jacques Compton and Egbert Andrew, were closely similar to that of Wilbert King. The Attorney-General also tendered an affidavit. She stated that she is a member of the Cabinet and she was present when the Cabinet, after due deliberations on the recommendations of the Advisory Board, approved the grant of the two licences to operate radio stations to Helen Television System and Messrs Winston Hinkson and David Samuels.
She stated that at no time during its deliberations on the issue were matters other than those raised in the relevant memorandum to Cabinet discussed. She stated that not only is the political preference of the successful applicants unknown to Cabinet, but that preference was completely irrelevant to the decision whether or not to grant a licence.
Perry Mason, the Telecommunications Licensing Officer, also swore to an affidavit filed on June 7, 1996. He stated that he was the Chief Technical Adviser to the Wireless Officer. He stated that at the meeting of October 12, 1995 he made a presentation to the Board on each application and highlighted certain technical features which were to be taken into account in considering the grant of a licence to operate a radio station.
He stated that because the RF Spectrum had become exceptionally crowded he advised that until some solution to the problem was arrived at only two applications should be granted.
He too stated that at the meeting only technical matters were raised and the political affiliation of an applicant was never a consideration in the decision to grant a licence.
He said the Applicant last had an experimental licence issued to him on January 28, 1991 which was valid until December 31, 1991 and his failure to obtain and pay for a further extension of the experimental licence meant that for nearly five years he was operating illegally.
He stated that no concessions were granted to the Applicant for the importation of broadcast equipment and so the Ministry did not in any way support or encourage the Applicant's decision to purchase broadcasting equipment.
On June 14, 1996 the Applicant filed a lengthy affidavit in reply to that of Perry Mason. In that affidavit he alleged that the Telecommunications Advisory Board is illegal. He stated that he proceeded to purchase necessary equipment for the general operation of a public broadcasting station by virtue and in pursuance of the authority granted to him in a letter by the Wireless Officer dated January 23, 1991.
He denied the allegation of Mason that the political affiliation of an applicant was not a consideration in the grant of a licence and he alleged that the decision not to grant him a licence was motivated by bias, malice and extraneous considerations.
On June 25, 1996 the Applicant filed a shorter supplementary affidavit presumably in answer to the other affidavits filed on behalf of the Respondents. In that affidavit he stated that until the time he was requested to close down his radio station, the station had become very popular in its daily programming and he tendered a petition by about 10,931 persons who were regular listeners and/or callers to the station. He stated that the station was about to grow and expand and that the "Friends of Radyo Koulibwi" had already made an offer to invest in the station and in particular to purchase a new transmitter and other equipment.
The above represent the pleadings in this case. There is no doubt that the Applicant is disappointed in not being able to continue to operate his radio station and I do not. for one moment doubt that he had a number of listeners and/or callers. It would be fanciful to imagine that one's political affiliation is not sometimes a real factor in arriving at a particular decision but that is not always easy to establish with a degree of certainty and it is also true that whenever one is unsuccessful in a particular venture he cries out politics. In his affidavit filed on March 28, 1996 the Applicant has made a number of allegations which I consider to be unfounded and some are purely conjecture. I refer in particular to paragraphs 16, 18 and 19.
But these proceedings will not be decided essentially on the pleadings and must turn on the legal submissions and authorities advanced at the hearing.
Learned Counsel for the Applicant submitted that this case raises four questions as follows:
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a) Whether the Telecommunications Advisory Board acted within the...
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