Owners of the New Thriving Restaurant in Georgetown will now have to pay the Guyana Power and Light (GPL) Inc in excess of $13.7 million that was owed in electricity arrears after the Caribbean Court of Justice (CCJ) dismissed their appeal.
Che Jain Ping and Xiao Guang Zhao (appellants) – individuals doing business in Guyana under the trading names “New Thriving Restaurant” and “New Thriving Fast Food” – had taken the power company to court regarding arrears they accrued by virtue of consumption of electricity supplied by GPL (respondent) for the period January 2002 to July 2009.
The appellants were billed monthly and at the end of the period, arrears on the appellants’ account exceeded payments credited to the account by the sum of $13,768,937.
The legal action filed by the business owners commenced before the High Court on October 19, 2010 and resulted in the Court finding that the appellants were liable to pay to GPL the sum stated as arrears for electricity supplied and not paid for by them.
Based on court documents, it was noted that the main defence during the High Court trial relied upon by the appellants was that the computer-generated printout for Account No 13-003-346-11 showed a ‘current balance’ of zero. The court accepted evidence that GPL had transferred the accrued amount of $13,768,937 to another account held by the same individuals, as is allowed under Regulation 23 of the Public Electricity Supply Regulations (PESR), hence the zero balance on the computer-generated printout.
The High Court held that the appellants were liable to pay to GPL the sum owed as arrears for electricity supplied and not paid for by them. This decision was appealed and later upheld by the Court of Appeal (CoA) in Guyana.
On May 12, 2023, the decision of the Guyanese appellate court was appealed at the Trinidad-based regional court.
In their written submissions, the appellants conceded that while GPL is entitled to bill and recover payment in respect of electricity supplied under the supply contract between the parties, there are limits and restrictions which the law imposes, on the circumstances under which the power company can recover payment for electricity supplied.
The appellants contended that these limits are primarily set out under Electricity Sector Reform Act (ESRA), regs 31(2), and (3) of the PESR and clauses 6.3 and 6.4 of the Public Supplier’s Standard Terms and Conditions. The appellants argued that, in all the circumstances, the legislative framework does not allow GPL to back bill them beyond 12 months, whereas the sum claimed as arrears reflects billing for a period of seven years.
Meanwhile, lawyers for the State-owned utility company maintained that the legislation affords them varied powers in billing customers. As an example, GPL points to its power as a public supplier to estimate power consumption for periods where the meter cannot be relied upon, such as where it has been compromised or damaged. GPL asserts that the appellants, not cognisant of such powers, were erroneous in the view that the $13.7 million owed represented miscellaneous charges.
GPL argued that in fact the financial history of Account No 13-003-346-11 reveals monthly bills issued based on actual meter readings for a period of several years, with arrears of payments accruing and ultimately totalling in the sum claimed. According to GPL, the only miscellaneous charge imposed on the said account is $318,446, estimated for a billing period where a tampered meter was removed, and a new meter installed.
In its judgement issued on Tuesday, the CCJ explained that Section 23 of the ESRA expressly creates a statutory contract for the supply of electricity between the parties as consumer and public electrical supplier.
The court then went on to outline the effect of GPL’s right under Regulation 31(2) of the PESR to recover debt by civil action, ‘without prejudice’, to their rights to so recover under other laws. The court reasoned that the effect of the expression ‘without prejudice’ in reg 31(2) of the PESR is that GPL is not restricted to enforcing its debt as a statutory claim but retains all other means of access to the court, and in particular, by an action for breach of the electrical supply contract.
Next, the court turned to the question of GPL’s ability to back bill the appellants beyond a 12-month period. The court was of the view that there were provisions in GPL’s Standard Terms and Conditions for Electric Services which set out billing periods, as is required by PESR reg 31(2) to empower GPL to back bill beyond 12 months. According to the court, the evidence demonstrated that GPL billed the appellants in line with such billing periods under its Standard Terms and Conditions, and the appellants were now liable for these sums pursuant to clause 7.5(a) of the Standard Terms and Conditions.
In light of these findings, the CCJ concluded that GPL was entitled to back bill the appellants for a period beyond 12 months pursuant to PESR reg 31(2). In the circumstances, the appeal was dismissed by the regional court, and the orders of the Guyana Court of Appeal were affirmed.
The matter was heard by CCJ President, Justice Adrian Saunders, along with Justices Winston Anderson, Maureen Rajnauth-Lee, Denys Barrow, and Andrew Burgess, who read the court’s decision on Tuesday.
Meanwhile, the appellants were represented by Stephen Fraser, SC, and Attorney Shantel Scott-Lall while Senior Counsel Timothy Jonas and Attorney Krystal Abrams appeared for the respondent.
