Solomon Telikom Company Ltd v Attorney General [2006] SBHC 55; HCSI-CC 394 of 2006 (12 December 2006)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 394 of 2006

SOLOMON TELEKOM COMPANY LIMITED

–v-

ATTORNEY GENERAL
(Representing the Telecommunications Authority)

Date of Hearing: 12th December 2006
Date of Ruling: 12th December 2006

J. Sullivan QC with J. Puimana: for the Plaintiff
No appearance on this day of the Attorney whose notice of appearance was earlier entered.
A. Radclyffe as amicus curiae for Digicel Pacific Ltd.

RULING

SUMMONS SEEKING TO JOIN DIGICEL PACIFIC LIMITED AND DIGICEL (SOLOMON ISLANDS) LIMITED AS DEFENDANTS AND TO RESTRAIN SUCH COMPANIES THEIR OFFICERS AND OTHERS FROM DOING ANYTHING WITHIN THE SOLOMON ISLANDS IN PURPORTED RELIANCE UPON EXPERIMENTAL LICENCE ISSUED BY THE 1st DEFENDANT AND CONSEQUENTIAL ORDERS IN RELATION TO THE FURTHER CONDUCT OF THE PROCEEDINGS

Brown J: This summons seeks both directions for the further conduct of proceedings asking for orders of prohibition against the Telecommunications Authority (for that it appears to seek to depart from the terms of its Licence granted to the applicant plaintiff) and interlocutory injunctions against Digicel companies named as likely to interfere with Telekom’s rights under its Licence.

The difficulty I face is related more to the absence of appearance on this summons today by the Attorney-General the appropriate representative and counsel for the Authority in terms of the Crown Proceedings Act. Whilst the Court is not prevented from making appropriate orders in the absence of the Attorney, what concerns me is the absence of representation on the part of the Telecom Authority which will indirectly be affected by the orders and which should have a proper opportunity through advice from the Attorney to appreciate and address the relevant considerations which move this court. For the affidavit of the Authority Mr. Robert Bakelema sworn on the 17 October and filed in these proceedings raises the very real possibility of a misapprehension of the purpose of the plaintiff’s proceedings with a consequent mistaken view of the powers of the court.

Quoting from paragraph 9 the Authority says-"I am informed by my legal advisers and verily believe that in the circumstances of this case I am entitled in law to amend the Plaintiff’s licence by converting it into a non-exclusive licence and unless I am restrained by an order of this Honourable Court or otherwise ordered not to do so, I will proceed to follow that course."

Neither the Attorney nor "legal advisors" has appeared today. This court expects something better by its officer the Attorney especially when the affidavit couched in this offensive fashion, has been filed by the Attorney who does not appear.

From the terms of the Licence granted by the Authority to the plaintiff company, there is a process to follow to amend the terms of Licence and the process does not envisage a unilateral power to amend a particular terms, for instance as may be suggested by the Authorities assertion that he is entitled to amend unless restrained by an order of the court. Such phraseology by the Authority coupled with the absence of the Attorney, his principal legal advisor today, raised the real risk that Mr. Bokelema misapprehends his duties and obligations under the Authorities’ Licence to the plaintiff company by the apparent grant of a telecommunication and licence to Digicel.

For two Experimental Licences appear from the material in Mr. Kingmele’s affidavit read in support of this summons; one is in the fax by Mr Radcliff to Sol-Law dated 3 November 2006 and refers to Digicel P O Box 1417 Honiara and the other is one made available by Mr. Waleanisia earlier on behalf of the Attorney-General; one which speaks of the Licencee as Digicel (Solomon Islands) Ltd, P O Box 1414 Honiara.

It is conceded by Mr. Radcliff who represents Digicel Pacific Ltd., (incorporated in Fiji) that no company so described as Digicel (SI) Ltd has been incorporated in the Solomon Islands but that an application for incorporation will be made.

Mr. Radclyffe says an injunction may amount to a fetter on the power of the Authority to grant a licence.

That is an argument for a later time and is but an assertion at this point for I am faced with the fact of the Licence granted by the Authority with its various terms one of which grants the plaintiff company exclusivity of telecom business; while that is a matter for discussion if the Authority seeks to renegotiate such terms, as the Licence stands the exclusivity is plain. The Authority’s attitude evidenced by his affidavit raises the doubt in my mind that the right of the plaintiff to the benefit of the Licence as it now stands may be affected by the Authority with-out following process set out in the Licence.

It consequently follows that the status quo in so far as the plaintiff’s exclusivity is concerned supports the companies application to prevent acts by Digicel (whatever called by the Authority) since such acts, however described have a real risk of interfering with the business of the plaintiff under the licence and its commercial standing.

The public interest in these proceeding is to see due process under the licence; the balance of convenience rests with the plaintiff.

The plaintiff has shown a right to be protected. The argument by the Authority raises a serious question to be tried. For the interloper group derives its interest from the Authority which granted the Licence to the plain.

On balance the plaintiff is entitled to its injunctions which on the material disclosed should be directed to the two named licensees and to Digicel Pacific Ltd, the parent company.

Since the existing licence to Digicel or one which may be anticipated in favour of the newly constituted company reflects the Authorities intentions as stated in his affidavit (raising as it does an absence of recognition of the process provided by its terms when changes are sought to the licence) it is appropriate to include a provision precluding further application by Digicel pending suit or further order. This does not extinguish the group’s interest in providing Telecommunication services in the Solomons if that be its business, for the group will be joined in these proceedings and be heard on the substantive application for prohibition.

I make orders in terms then of the draft orders with those variations to paragraph 2.

I give liberty to apply; costs shall be costs in the cause.

(Subsequently) I make orders in terms signed by me today.

THE COURT