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Case: Citizens versus JPS; CURE calls for judgement in its favour

Published:Sunday | March 25, 2012 | 12:00 AM

Barbara Gayle, Staff Reporter

The concerned group Citizens United for the Reduction of Electricity (CURE) is now taking steps to have judgment entered in its favour against the Jamaica Public Service (JPS).

Last week, CURE filed an application in the Supreme Court seeking an order to strike out the defence of the JPS and the Office of Utilities Regulation (OUR).

Apart from complaining about the high electricity costs, CURE is contending that the OUR acted illegally in recommending an exclusive licence to the minister in 2001 for JPS to have monopoly of generating and transmitting electricity in Jamaica.

Attorney-at-law Hugh Wildman, who is being instructed by attorney-at-law Austin Francis of the law firm Banjoko and Francis, told The Sunday Gleaner that the application to strike out the defence was based on admissions which the defendants made in their affidavits.

He said JPS admitted in its affidavit that when it was first set up, it never had an exclusive licence to generate and transmit electricity in Jamaica under the Electric Lighting Act.

"In fact, JPS conceded and we are claiming in our case that Jamaica was divided into areas and JPS only had a licence for a part of the country. And other companies had licences for other parts of the country.

"JPS made reference to St James Electric Company, so JPS is admitting our case that the country was broken up into areas and licence was given to one entity or com-pany for a particular area. We are saying that is what the law permits and nothing more," Wildman stressed.

But Michael Hylton, QC, who is representing the JPS, says no concession was made by JPS in its affidavit as Wildman contends. "He apparently misunderstands the purpose and effect of our affidavit and we will resist any such application," Hylton said.

He also added that he was confident in the defence being put forward by JPS.

Wildman further explained that the JPS in its affidavit said that it was by government policy in 1966 that the then government granted an exclusive licence to the JPS. The licence was granted for 25 years.

He pointed out JPS said in its defence that it invested millions of dollars in the generating and supplying of electricity in Jamaica and refuted allegations about billing processes and overcharging and high electricity bills.

Illegal licence?

According to Wildman, "Those are peripheral to the case because what we are challenging is the legality of the licence."

JPS submitted the licence in its affidavit. The licence was renewed in 1978 and further renewed when Minister Robert Pickersgill granted JPS exclusive licence in 2001 and Minister Philip Paulwell further extended it in 2007.

"All of this was done but the law was not changed to accommodate this exclusive licence, and this is what we are contending.

Section 3 of the Electric Lighting Act of 1890 states: "The minister may from time to time license any local authority as defined by this Act, or any company or person to supply electricity under this Act for any public or private purposes within any area subject to the following provisions."

Wildman said, "So the Act confines the licence to an area and not over the entire country."

In its defence, the OUR, which is represented by attorney-at-law David Batts, said it did not advise on the granting of an exclusive licence to the JPS and even if it did, which was not admitted, the minister was not obliged to accept such recommendation. The OUR said it did not agree with the complete exemption of the JPS from the Fair Competition Act.

Wildman, in referring to the OUR's defence, said it had clearly stated in its affidavit that it never agreed to the exclusive licence, but sought an opinion from the attorney general (AG) before the exclusive licence was granted in 2001. Despite its disagreement, the OUR drafted the licence and gave the minister to sign.

"We are contending that the OUR, in breach of section 4 of the Office of Utilities Regulation Act, recommended the exclusive licence to the minister."

He said Section 4 of the Act was clear that it must encourage competition and not monopoly, so the OUR is in breach of its own Act and Wildman said that was the reason the OUR was joined as a defendant.

The case came for mention on November 24 last year and the defendants were given until February 17 to file and serve their affidavits. The OUR and JPS have filed their defence but the AG, which is also a defendant, has not yet filed a defence. Wildman said the AG is now out of time.

- barbara.gayle@gleanerjm.com