Marcano v Attorney General

• Jurisdiction: Trinidad & Tobago
• Judge: Collymore, J.
• Judgment Date: 29 April 1985
• Neutral Citation: TT 1985 HC 63
• Docket Number: No. 539/84
• Court: High Court (Trinidad and Tobago)
• Date: 29 April 1985

High Court

Collymore, J.

No. 539/84

Marcano

and

Attorney General

Appearances:

Mr. Marshall for the applicant.

Mr. Bereaux for the respondent.

Administrative law - Licensing — Application for licence to operate a Radio Broadcasting Unit — Whether Minister abdicated his duties under the law by failure to act after an inordinate lapse of time — Evidence that application, along with other, had been deferred pending establishment of an authority to regulate telecommunications services in Trinidad and Tobago — No ground for saying that Minister acted in bad faith and therefore his decision was not justifiable before the courts.

Collymore, J.

1 The applicant is a calypsonian, popularly known in calypso circles as ‘Brother Superior’ who since the 6 ^th June, 1973 has been trying without success to obtain a licence from government to operate a Radio Broadcasting Unit an this country. His first application was by letter to the Prime Minister in which he set out his proposals in broad outline. To this he received an acknowledgment from the Permanent Secretary to the Prime Minister dated 15 ^th June, 1973 informing him that his application had been referred to the Minister of Public Utilities for attention. The applicant received a letter from the Ministry of Public Utilities dated 2 ^nd November, 1973 inviting him to submit a “feasibility study and projections in terms of materials to be broadcast as well as operating cost.” The applicant replied by letter dated 4 ^th November, 1973, giving full information about his project, and annexing thereto the comments from a number of well known persons in the cultural life of the country, who all gave their enthusiastic support and encouragement to the project. He also included a detailed projected Profit and Loss Account of the venture.

2 Having heard nothing further about his application the applicant wrote a reminder to the Minister of Public Utilities on the 14 ^th September, 1978, to which he received the following reply:

“PU: 38/17/15 14th September 1978

‘Mr. Andrew Marcano,

15 Dorrington Gardens,

PETIT VALLEY.

Dear Sir,

Re Application for a Broadcasting Licence

I acknowledge receipt of your letter dated 14 ^th September, 1978 on the above noted subject, and wish to inform you that your application has teen deferred.

Your request will have to await the establishment of a Telecommunications Advisory Board which will be set up under the proposed telecommunication legislation for the regulation and control of all telecommunications services.

Yours faithfully,

sgd ?

for Permanent Secretary,

Ministry of Works,

Transport & Communications

(Utilities Division).”

3 Having received no word, with regard to his deferred application, the applicant next wrote the Prime Minister on 11 ^th August, 1981 and received the following reply:

“MINISTRY OF PUBLIC UTILITIES AND NATIONA. L TRANSPORTATION

4th Floor, Sacred Heart Building,

16–18 Sackville Street,

Port of Spain.

MPU/NT: 38/17/15

7 ^th March, 1982

Mr. Andrew Marcano

15 Dorrington Gardens,

Petit Valley.

Dear Sir,

Request for Licence to operate a Radio Broadcasting Station:

I refer to your letter dated 11 ^th August, 1981 to the Honourable George Chambers, Prime Minister, seeking a licence to operate a Radio Station in Trinidad and Tobago, and to advise that your request is now being processed by this Ministry. However, in view of the time lapse and in order to pursue this matter effectively, I shall he grateful if you will provide me with the following information if you are still interested in pursuing your application:–

• 1. Whether you wish to operate the radio station in AM or FM Frequency.

• 2. Legal entity intended to operate the station –

  • – One clan ownership

  • – Partnership

  • – Company.

• 3. Estimated cost of establishing the station.

• 4. Financial arrangements planned for the establishment and operation of the station.

• 5. Number of hours per day during which it is intended that the station will broadcast.

There is other information of a technical nature which you would need to supply but which you can provide only after consultation with the Directory Telecommunications Division. I wish to advise that when you preparing your reply you should first consult with the Director, Telecommunications Division, whose office is located at 55 Prince Streets Port of Spain.

Yours faithfully,

Sgd. ?

Permanent Secretary, Ministry of Public Utilities

and National Transportation.”

4 The applicant again complied with the request for information, setting out in great detail his proposals for the operation of the radio station and annexing correspondence demonstrating some international interest in the proposal.

5 There was, however, no further response from any ministry of government concerning this application; and therefore the applicant now moves this court by Originating Motion for the following:

• “1. A declaration that — ———————— JOHN ECKSTEIN Minister of Public Utilities and National Transportation of Trinidad and Tobago, by failing to date, to give a decision on the application for a Radio Broadcasting Licence submitted by the applicant (with accompanying date, accounts, and other relevant material requested in their original and updated forms) while granting licences to other applicants to operate Telecommunication sets and permitting Trinidad and Tobago Television to commence the operations of Channels 9 and 14 has not given consideration, nor similar consideration to the applicant as that given to other applicants and he had thus not been given equality of Treatment by the Ministry of Public Utilities and National Transportation. In this way his right guaranteed by Section 4 (d) of the Constitution of the Republic of Trinidad and Tobago to equality of Treatment from any public authority has been contravened and infringed, so too has his right under section 4 (b) of the said Constitution to equality of the law and the protection of the law.

• 2. In order that damages in respect, of the expenses incurred damage and loss suffered by the applicant as a result of the aforesaid contraventions and infringement of the applicant's constitutional rights be assessed and paid to the applicant.

• 3. Such further and/or other relief as to the court may seem just.

• 4. Costs.”

6 The grounds upon which he asserts that he has been discriminated against are set out in his affidavit of the 7 ^th February, 1984 as follows:

• “14. During this period many licences for the operation of Wireless Telecommunication sets have been granted to applicants to operate such sets in Trinidad and Tobago. Edgar H. Borde and Co. are suppliers of Telecommunication sets. They supply Base Station Equipment, Walkie Talkies and Mobile sets. I have been informed and verily believe that in November, 1983 no fewer than 20 licences were obtained by persons who purchased their Telecommunications Sets.

• 15. Cartel (Caribbean Telecoms Ltd) of Mc Allister Street, Eastern Main Road, Laventille, also sell Wireless Telecommunications Sets and assist purchasers in obtaining the necessary licences so that they may operate these sets. I have been informed and verily believe that in 1983 they successfully assisted purchasers in attaining such licences.

• 16. As stated in paragraph 11 above by letter dated 22 ^nd September, 1978 — — Exhibit “A.M – 9” — my application for a licence to operate a Radio Broadcasting Station was said to be deferred until the establishment of a Telecommunications Advisory Board to be set up under the proposed Telecommunications Legislation. Despite this, however, Trinidad. and Tobago Television was allowed to commence operation in October, 1983 of its new channels 9 and 14 while to date no information has yet been communicated to me as to the decision taken concerning my application for a licence to operate a Radio Broadcasting Station in Trinidad and Tobago.

• 17. Licences granted as referred to in paragraphs 14 and 15 above as well as the authority given to Trinidad and Tobago Television to operate channels 9 and 14 were not subjected to any decision to await the establishment of any Telecommunications Advisory Board nor any proposed Telecommunications Legislation as has unfortunately been the case of my application for a Radio Broadcasting Licence. In this way my application has not been given the same or similar consideration as the others herein referred to. There has been an infringement of right under section 4 (d) of the Constitution of the Republic of Trinidad and Tobago, 1976 to equality of Treatment from any public authority — more specifically the Ministry of Public Utilities and National Transportation – in the exercise of its functions as well as under Section 4 (b) of the said constitution to equality before the Law and the protection of the law.”

7 For the respondent there was submitted the affidavit of George Camps Roach, the Acting Director of Telecommunications in the Ministry of Public Utilities and National Transportation dated 21 ^st March, 1984, who deposed as follows:

• “5. Edgar H. Borde and Company Limited and Cartel (Caribbean) Telecoms Ltd operate Radio Telephone Systems, which systems are intended for private use only. They are engineering technical representatives in the sales and service of radio telephone equipment. They offer, to their customers, sales, rentals and maintenance of Radio Telecommunications systems and assist in the preparation of applications of customers desirous of obtaining licences.

• 6. Systems of this kind can be used by companies engaged in field work which require them to be in communication with their workers. A radio telephone system comprises one or more fixed stations along with several mobile stations and/or portable units. A fixed station is usually located in an office, while a Mobile unit is located in a motor vehicle. A portable unit may be carried by hand. Transmissions may be made interchangeably from the fixed...