21st Jul 2015

Source: Kaieteur News

Within weeks of hearing an appeal made by Mr. James Samuels, the Caribbean Court of Justice (“CCJ”) unanimously overturned the Guyana Court of Appeal’s decision that Samuels’ use of VoIP breached his contract with GT&T.

The CCJ ruled that “neither the Court of Appeal proprio motu [on his own impulse] nor GT&T, before this Court properly applied the principles on implied terms set out in Attorney-General of Belize v. Belize Telecom” which “represents the law of Guyana”, and found that the Court of Appeal’s decision as “unsustainable”.

They added that “the Court of Appeal came to the conclusion that an implied term was necessary in the interests of business efficacy, even in the absence of any evidence led by GT&T as to how Mr. Samuels’ actions would jeopardise their business interests….falling into error”.

The dispute arose when GT&T blocked Samuels’ DSL service claiming that Mr. Samuels was illegally using VoIP in breach of the parties’ contract and GT&T’s exclusive licence.
Samuels moved to the courts claiming GT&T breached its contract with him, arguing that the company did not own the internet and was interfering with his freedom to communicate. Counsel for GT&T, Mr. Miles Fitzpatrick, S.C. and Mr. Rex McKay, S.C., argued that Mr. Samuels’ use of VOIP breached his contract with GT&T, and that since Mr. Samuels did not have a telecommunications licence for the use of VoIP, he was conducting an illegal activity. The trial court ruled in Mr. Samuels’ favour.

GT&T then promptly appealed to the Court of Appeal. In a dramatic turn of events, the Court of Appeal, in decisions rendered by Chief Justice Chang and Justice of Appeal Cummings (and Justice Drakes concurring), overturned the trial Court’s decision, siding with GT&T’s Counsel Mr. Miles Fitzpatrick, S.C. and Mr. Rex McKay, S.C., that stated Mr. Samuels was in breach of an implied term in the parties’ contract.

This was when Samuels appealed the Court of Appeal’s decision to the CCJ. GT&T also cross-appealed to the CCJ stating that the Court of Appeal should have found that Mr. Samuels admitted to the contract in his pleadings and that the trial court erred in finding Mr. Samuels’ evidence credible.

On June 2, last, Samuels’ Counsel in presenting his client’s claims to the CCJ, explained that the  Appeal Court’s decision was incorrect as a matter of law, since not only did its decision constitute an impermissible interference with the trial Judge’s findings of fact, but it also implied a term which was never contained in GT&T’s pleadings or evidence in the Court below, and did so by impermissibly considering Mr. Samuels’ post contractual conduct as an aid to imply a term in the parties contract and misinterpreting the law of contract generally.

His counsel also argued that there was no evidence of an implied term and no evidence that GT&T would be harmed by his use of VoIP, arguing that the Court of Appeal in any event incorrectly analyzed GT&T’s position only without an analysis of the consequence of such an implied term to both parties.

Mr. Samuels’ Counsel stated that not only was his client’s evidence credible, but that the Court of Appeal did not properly apply the law of implied terms. GT&T argued in rebuttal that Mr. Samuels has admitted to the existence of a contractual term restricting his use of VoIP in his pleadings, that Mr. Samuels’ evidence at trial was not credible and that the Court of Appeal’s decision was correct.

The CCJ sided with Mr. Samuels, holding that GT&T was in breach of contract when it disconnected Samuels’ DSL internet service owing to his use of Vonage. The CCJ struck down GT&T’s argument that Mr. Samuels admitted that there was a contract between him and GT&T, stating that “GT&T did not do all that was reasonably sufficient to give Mr. Samuels notice of the conditions it relied upon” and also summarily dismissed GT&T’s cross appeal attempting to undermine Mr. Samuels’ credibility, agreeing with Mr. Samuels’ Counsel that an appellate court should be slow to reverse a trial Judge’s finding of fact.

Turning to the core issue of implied terms, the CCJ also sided with Mr. Samuels’ Counsel, in so doing firmly establishing the common law in Guyana concerning implied terms, stating that “neither the Court of Appeal proprio motu nor GT&T before this Court properly applied the principles on implied terms.”

The CCJ was particularly critical of the Court of Appeal’s decision in considering Samuels’ subsequent conduct stating, “the decision of the Court of Appeal is also unsustainable given that the court was driven to imply a term on the basis of Mr. Samuels’ conduct subsequent to the formation and execution of the contract, namely his letter of April 13, 2007.

By this letter, Mr. Samuels informed GT&T of his intention to use Vonage via his DSL internet connection. Chang CJ (Ag.) considered that that fact “spoke loudly” in favour of an implied term that GT&T’s permission was required before Vonage VoIP facilities could be used on its DSL lines.

However, it is well established that conduct related to acts subsequent to the formation of the contract is of limited value in assessing the contemporaneous terms of the contract in the event of a dispute.”

The CCJ also overruled Justice Cummings’ interpretation of the business efficacy test stating, “The Court of Appeal…fell into error” by assuming “that GT&T’s business would be so adversely affected by the actions of only one of their customers that a term must be implied in their contract with Mr. Samuels.”

The CCJ therefore dismissed GT&T’s cross appeal and granted Mr. Samuels’ appeal in its entirety, setting aside the decision of the Court of Appeal and reinstating the trial court’s decision, holding that “in disconnecting Mr. Samuels’ DSL internet service, GT&T acted in breach of contract”.

The CCJ ordered GT&T to pay Mr. Samuels’ legal costs. The matter was decided by Justices Wit, Hayton, Anderson, Rajnauth-Lee and Nelson.

This case is not only the first of its kind in dealing with issues of complex contract at the CCJ level arising out of Guyanese courts, but is also significant since it took just over four years to be finally decided from the filing of the Statement of Claim in April, 2011 to final CCJ ruling, this being a testament that the justice can be swift if matters are pushed by Counsel.

When asked for comment, Mr. Samuels stated, “I hope those following this case get the courage to stand up for their rights especially against large corporations with high powered Attorneys. I would also like to thank my lawyer who was confident at this outcome at every stage of the proceeding.”

Mr. Samuels was represented at the CCJ by Mr. Devindra Kissoon, of London House Chambers and GT&T was represented by Mr. Miles Fitzpatrick S.C. and Mr. Timothy Jonas of De Caires, Fitzpatrick and Karran.

View Judgement

View Media Recording (video)

Comments are closed.