In a curious recent case the Court of Appeal decided that the Supreme Court had no jurisdiction to oversee a case brought by Belize Electricity Limited (BEL) against the Public Utilities Commission.

In 2005 BEL needed additional generating capacity to meet new demand for electricity. In agreement with the commission, a request for proposals protocol was developed by which qualified companies were invited to bid to supply electricity to BEL. During the process, BEL decided that two bidders did not meet the financial and technical requirements and therefore they were not shortlisted. The commission disagreed and, in discussions with BEL, insisted that the companies be allowed to continue in the process and therefore remain candidates for selection. BEL was equally insistent that they ought not to be a part of the process, as they were unqualified. The commission informed BEL that it had the power to order BEL to negotiate with any company, including the unqualified bidders, and that it could order BEL to enter into contracts with any person designated by the commission. To break the impasse, BEL opted to have the Supreme Court decide the issues.

BEL instituted a claim against the commission, asking the Supreme Court to answer three questions:

  • Does the commission have the right, power or authority in law to order BEL to negotiate or enter into a contract with a particular potential supplier of electricity (regardless of whether it has done so)?
  • In the exercise of its duties and statutory functions, is the commission entitled to give or withhold approval of power purchase agreements (regardless of whether it has given or refused such approval) between a licensee and a supplier of electricity by which the cost of power to consumers of electricity may be affected?
  • Does the commission have the right, power or authority in law to dictate any particular term or condition of a contract between BEL and any particular potential supplier?

BEL brought these questions before the Supreme Court by a so-called 'case stated'. This is a relatively unusual procedure by which a person or body having power to hold a hearing or make a decision may be empowered to state a case to the court for its opinion; some statutes further provide a right of appeal from a tribunal to the Supreme Court by a case stated.

In a considered opinion, Justice Arana decided that all three questions were to be answered in the affirmative. She held that although neither the Public Utilities Commission Act nor the Electricity Act expressly empowers the commission to make such orders, the powers were necessary and so should be implied. The consequence of this decision was that the commission would have tremendous powers over BEL and other companies in the electricity industry. BEL contended that in the regulated, privatised electricity industry, the commission had no such powers. The case presented a clash in the approaches to the regulatory regime that prevails in the electricity industry. BEL appealed.

BEL's approach to the appeal was based on two points:

  • The Supreme Court had no jurisdiction to entertain the cases stated; and
  • Arana was wrong in concluding that the commission had such implied powers.

Such an approach was unique, given that it was BEL that had applied to the Supreme Court by case stated. Now, in the Court of Appeal, it was conceding that it had adopted a wrong procedure. BEL nevertheless asked the court to accept that the choice of the wrong procedure meant that it should win the appeal.

In the event, BEL successfully submitted that it had wrongly invoked the jurisdiction of the Supreme Court by way of case stated. It was submitted that the error in procedure led to nullity, as the case stated was not properly submitted before the judge. In its judgment, the court held that the "proceedings before Arana began life in a somewhat curious manner", because it was BEL that had applied to the court by way of a case stated.

The Court of Appeal held that the Supreme Court could be approached by way of case stated only pursuant to the procedure set out in Section 36 of the act. That procedure had not been complied with, since the section conferred power on the commission to move the court only by case stated. BEL therefore had no standing to initiate the proceedings. At case management, the parties sought to cure this difficulty by consenting to a case stated by the commission being filed at that point. This was ineffective to confer jurisdiction. The Court of Appeal also confirmed that parties cannot confer jurisdiction on a court by consent, and that reliance could not be placed on the Supreme Court Civil Procedure Rules as the source of jurisdiction.

As the court upheld the first ground, there was no need to go on to consider whether Arana was right in answering the questions in the affirmative. Her orders were set aside and the was commission ordered to pay BEL's costs on the appeal.

For further information on this topic please contact Eamon Courtenay at Courtenay Coye & Co by telephone (+1 345 814 2013), fax (+1 345 949 4901) or email ([email protected]).