LOCAL telecom provider TSTT has lost an appeal in which it challenged a judge’s order that it be joined in a lawsuit between Columbus Communications Trinidad Ltd (CCTL) and the Telecommunication Authority of TT (TATT) over the fixed-number portability (FNP) issue.
In April, Justice Frank Seepersad ordered that TSTT be joined in CCTL’s action. TSTT appealed and Justice of Appeal Gregory Smith and Mark Mohammed held that the judge was “not plainly wrong” when he made the joinder order.
Smith said the court found no fault in the procedure adopted by the judge, who first granted the order without giving TSTT an opportunity to be heard, then at the case management hearing, invited submissions on whether that order should be set aside.
On the argument by TSTT that it was a breach of separation of powers for the court to assume authority on CCTL’s action against TATT, Smith said it was a common feature of a court to look at contractual obligations, adding that it was not a question of jurisdiction but discretion.
At the appeal, TSTT argued that it was not constitutionally desirable to join it as a party to the proceedings between CCTL and TATT because there was no “live” issue between any of the existing parties since both CCTL and TATT had agreed that enforcement proceedings should be instituted against TSTT on the number portability issue.
“We find that this argument was not made out. While TSTT claims it is capable of fixed number portability, it is not obliged to do so. This puts everything in an awkward position. If it is not obligated then TATT cannot enforce any obligation on it.
“So we see it as a live issue between the existing parties in the proceedings. There is an issue connected to the new party to resolve,” Smith said, as he held that the court found it necessary and proper to join TSTT.
In the matter between CCTL and TATT, the regulatory body has directed TSTT to implement fixed number portability which enables consumers of both fixed and mobile networks to change their service provider while keeping their existing telephone number.
It has been argued that while TSTT has configured its equipment to permit FNP, it has not permitted CCTL or other operators to access its system.
Columbus Communications has insisted that TSTT is obliged to do so and complained to TATT to exercise its statutory power to compel TSTT to implement FNP.
At the appeal, TSTT’s lead counsel, Martin Daly, SC, said TATT was doing its job regarding the enforcement, so “why is the High Court going in there?”
However, TATT’s counsel, Douglas Mendes, SC, argued that there were three options open to TATT: cancel TSTT’s concession, institute criminal proceedings against the company or go to the Attorney General for a fiat to come to court for an injunction.
He said TATT has not received a fiat (formal authorisation) from the AG “and one has to ask why? Who owns TSTT and why is the AG dragging his feet? TATT cannot come to court without a fiat from the AG and he is not giving it,” Mendes said.
Mendes said it was a false assumption that there was no live issue between the parties for TSTT to be made a joinder nor was the regulator dragging its feet on the issue.
He said even if TSTT was not joined the issue on if it was obliged to implement FNP was still one for the court to determine.
“Is there an issue in the case involving TSTT? The answer is yes. That issue must be determined before the court proceeds further.
“Principles of natural justice requires that TSTT must be joined. Especially if they are told by the court they are bound to implement FNP,” Mendes said.
“TSTT’s argument of no live issue is false assumption. There is a live issue,” he said.
After dismissing TSTT’s procedural appeal, it was ordered to pay TATT and CCTL’s costs.
The company was also represented by attorney Christopher Sieuchand while Gabrielle Gellineau also appeared for TATT. Columbus Communications was represented by attorneys Steven Singh and Amanda Adinoolah.
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