Cable & Wireless (Seychelles) LTD v Seychelles Licensing Authority (MC20/2016) [2018] SCSC 8162 (14 May 2018)

IN THE SUPREME COURT OF SEYCHELLES Civil Side: MC 20/2018 12018] SCSC L,60 CABLE & WIRELESS (SEYCHELLES) LIMITED Petitioner versus SEYCHELLES LICENSING AUTHORITY (herein represented by its CEO Mr. Andre Pool) Respondent Heard: Counsel: 28th March. 2018 Mr. Frank Elizabeth for petitioner Unrepresented for respondent Delivered: 15th May, 2018 RULING E. Carolus, J The Application [I] The Petitioner Cable & Wireless (Seychelles) Limited ("CWS") has filed an Application for Judicial Review ofa decision of the Seychelles Licensing Authority ("SLA") contained in its of letter 19th February, 2018. The Application is made by way of Petition supported by an Affidavit sworn by Mr. Charles Hammond the Chief Executive Officer of CWS, as well as other supporting documents. Background [2] CWS is a company incorporated in Seychelles and licensed by SLA to provide telecommunication services in Seychelles including 3G mobile services. The Petitioner avers that licenced mobile operators are legally obligated to, subject to technical limitations and agreement on terms and conditions, share infrastructure (Paragraph 5 of the Petition and paragraph 7 of the supporting Affidavit). [3] Intelvision Ltd wrote a letter dated 30th October, 2017, to CWS seeking access to CWS' tower infrastructure under the Communications Tower and Antenna Policy Guidelines ('CTAP"). The Petitioner avers that the CTAP are intended to allow Iicensed providers offering mobile services to build their own mobile network, using (amongst other elements) access to existing infrastructure assets belonging to another licensed operator and that Intelvision Ltd is a telecommunications provider in the Republic of Seychelles which does not offer mobile services (Paragraph 7 of the Petition and paragraph 9 of the supporting Affidavit). [4] By letter dated 16th November, 2017, CWS requested proof of Intelvision 's mobile services license so that it could proceed with the latter's tower sharing request. [5] Intelvision replied to CWS' by letter dated II th January, 2018, without providing its licence. In its letter it stated the following " ... whilst having no legal obligation to furnish any proof oflntelvision's license for mobile but in the interests of transparency and wishing to move forward in a cooperative manner, please find attached letter from Seychelles Licensing Authority, dated 18th December, 2017, providing confirmation of intelvision's mobile license." The letter of the SLA dated 18th December, 2017, addressed to Intelvision Ltd confirmed that Intelvision Ltd has the appropriate license for mobile services and is allowed to do tower sharing for installation of mobile network equipment. [6] By letter dated 7th February, 2018, addressed to the Chief Executive Officer of SLA, Mr. Frank Elizabeth acting on behalf ofCWS formally requested the SLA to provide him with a copy of the mobile services licence of Intelvision Ltd referred to in SLA's letter to Intelvision dated 18th December, 2017, giving SLA until 19th February, 2018, to respond. [7] By letter dated 19th February, 2018, the SLA informed Mr. Frank Elizabeth that his request for a copy of the mobile services Iicense of Intelvision Ltd was under consideration. SLA further stated that it had sought the legal opinion of the Attorney General's Office on the issue and that a reply would be given to Mr. Elizabeth on the contents and issues raised in his letter, in due course. [8] It is averred in paragraph 14 of the Petition that 'the decision of SLA to fail to provide a copy of the license of Intelvision is administrative in nature and is both grossly unreasonable and irrational and amounts to an abuse of power. As the Act of a public authority, any such license is a public document. CWS has not only a material interest in seeing the license of Intelvision, it has a duty to examine it, in order to comply with its own license terms before it can consider Intelvision's infrastructure sharing request." It is averred at paragraph 15 of the Petition that the Respondent failed to give reasons or adequate reasons for its failure to provide a copy of any such license, and at a paragraph 16 of the Petition that the Petitioner has sufficient interest in the subject matter of the petition and that the petition is being made in good faith. It is also averred at paragraph 17 of the Petition that the Petitioner has an arguable case and that leave ought to be granted to the Petitioner to proceed with its application for judicial review seeking a writ of mandamus requiring the Respondent: a. To provide to the Petitioner a copy of any license issued to Intelvision to provide mobile services and/or to use radio spectrum to provide radio services b. To confirm in writing either (a) that no such license has been issued or (b) that any such licensethat was previously issued has been withdrawn. [9] The following is further averred at paragraphs 18, 19 and 20 respectively of the Petition: that the Petition is not frivolous or vexatious and that leave ought to be granted to allow the Petitioner to pursue its action for judicial review against the Respondent's failure to act; that the Petitioner has been affected by the decision of the Respondent and unless the Court grants the orders prayed for the Petitioner will suffer prejudice; and that it isjust and necessary for the Court to grant leave to the Petitioner to proceed with its application for judicial review. [10] In terms of the Petition, the Petitioner prays the Court to: I. Make an ex parte order in Chambers granting leave to the Petitioner to proceed with its Petition for Judicial Review forthwith; II. Issue a writ of mandamus requiring the Respondent to disclose the license of Intelvision (or in the alternative, to confirm that no such license has been issued or remains in effect); III. Direct that notice be served on the Respondent together with the Petition, affidavit and all connected documents and exhibits after leave has been granted ex parte; IV. Make an order as to costs; v. Make any other and further order the Court deems fit an all the circumstances of the case. [11] The matter was listed ex-parte for the granting of leave to proceed with the Application for Judicial Review. Mr. Elizabeth, Counsel for the Petitioner made no submissions but moved the Court to grant leave on the basis of the Petition and Affidavit and other documents in support thereof. The Court now has to determine whether or not to grant such leave. The Law [12] Rule 6 of the Supreme Court (Supervisory Jurisdiction over Subordinate Courts, Tribunals ad Adjudicating Authorities) Rules, 1995 ("the Rules") provides that in order for the Court to grant the Petitioner leave to proceed, it must be satisfied that the Petitioner has sufficient interest in the subject matter of the Petition and that the Petition is made in good faith. [13] The requirement of sufficient interest means that the Petitioner must be affected by the decision in respect of which Judicial Review is sought. [14] The Petition must also be made in good faith. In order to show good faith, the Petitioner has to show on the basis of the material available to the Court that is, the Petition, Affidavits and other documents submitted in support thereof, that he has a genuine case as opposed to a frivolous one In other words the Court must be satisfied that the Petitioner has an arguable case on the basis of the material before it. [15] In Karunakaran v The Constitutional Appointment Authority (Judgment delivered on 14th April, 2017) the Appellant appealed to the Court of Appeal against the dismissal by the Supreme Court of his application for leave to proceed with an Application for Judicial Review. The Supreme Court had dismissed the application on the grounds that the application did not meet the conditions for Judicial Review and was premature. [16] The Court of Appeal, after setting out the reasons for the leave stage of Judicial Review proceedings, namely "to eliminate at an early stage claims that are frivolous or vexatious and to ensure that a claim only proceeds to a substantive hearing if the Court is satisfied that that there is a case fit for further consideration", stated the following at Paragraph 24 "There is also developed what is referred to as to the ripeness doctrine whereby a case is justiciable if the harm asserted has matured sufficiently to warrant judicial intervention: Warth v Selding 422 U. S. 490 1975. Hence if a dispute is only at the brewing stage and a decision is yet to be taken, the court should not be bothered unti I the matter is ripe or justiciable." Analysis [17] The decision in respect of which judicial review is sought is "the decision of SLA to fai I to provide a copy of the license of Intelvision" to CWS which was communicated to CWS in SLA's letter dated 19th February 2018, the relevant contents of which are reproduced below: "RE: REQUEST FOR MOBILE SERVICES LICENCE OF INTEL VISION LIMITED ... the Seychelles Licensing Authority (SLA) wishes to inform you that the matter is under consideration. The SLA has also sought the legal opinion of the Attorney General's Office on this issue. We would like to assure you that a reply will be given to you on the contents and issues raised in your letter, in due course ... " [18] It is clear from the above letter that Mr. Elizabeth's request to SLA to provide CWS with a copy of Intelvision's licence was still under consideration and that they had also sought advice from the Attorney General's Office. SLA, by its letter dated informed Mr. Elizabeth of the same assuring him that a reply would be given to him in due course. [19] In my view, an Application for Judicial Review of the failure of the SLA to provide a copy of Intelvision's licence is premature as no final decision was taken by the SLA to either refuse or accord CWS' request, the matter still being under consideration. For that reason, the present matter lacks justiciability in that it has not matured sufficiently to warrant judicial intervention. Decision [20] I therefore find that although the Petitioner has an interest in the subject matter of the Petition, CWS has failed to show that it has an arguable case and consequently to fulfil the requirement of good faith under Rule 6 of the Rules. [21] Accordingly I refuse to grant leave to the Petitioner to proceed with his Application for Judicial Review. Signed, dated and delivered at lie du Port on 15th May, 2018. &JG.>-O}IAS . E. Carolus Judge of the Supreme Court 6