…but upholds $30M award

THE Caribbean Court of Justice (CCJ) on Tuesday dismissed an appeal brought by Deorani Singh against the Attorney General (AG) of Guyana and the National Industrial and Commercial Investments Limited (NICIL), for what she perceived to be a violation of her constitutional right to protection of property when the State compulsorily acquired commercial premises approximately 35 years ago.

The estate of the late Mohan Pirtam Singh presented by his widow, Deorani Singh, and administratrix, sought compensation for the alleged violation of the appellant’s constitutional right to the protection of property following the acquisition.

Singh had carried on a business on the contested property and held a transport No. 1755 of 1967 until his death in 1980. After he died, the estate leased the property to the Guyana Pharmaceutical Corporation Limited (GPC), a state entity for five years. In 1982, during the subsistence of the lease, the Government of Guyana acted to compulsorily acquire the property by making orders for entering the property pursuant to the laws.

In February 1984, the Commissioner of Lands passed Transport No. 72 of 1984 in respect to the identified property to GPC. In 1984, at the request of the lawyer then acting for the estate, the AG filed an ex parte motion in the High Court to ascertain the amount of compensation to be paid.

An Order dated October 16, 1984 and entered on January 30, 1986 records the hearing of the said motion by Justice Prem Persaud, attended by the lawyer for the estate. The judge ordered that notice of the proceedings be advertised by publication in two newspapers and the Official Gazette, and called on all persons interested to protect their rights in the property, that the value of the property be ascertained by the Chief Valuation Officer (CVO) and that the matter do stand adjourned to March 8, 1986 in chambers.

An Order made in the same proceedings dated March 5 and entered on March 18, 1987 before Justice Pompey was noted. The order said that the judge ordered and declared that the property be deemed compulsorily acquired and that fixed compensation be paid for the property at $578, 000 less the sum of $496, 850.13.

On September 9, 1991 a lawyer for the estate wrote the then president of Guyana asking for the property to be returned to the estate for a sum to be paid by the estate that should not be exorbitant compared to the amount the state had paid as compensation. In 1994, the property was leased to Citizens Bank by GPC and possession was taken by the bank as lessee. In 2003, the property was transferred to NICIL. Some 14 years after the acquisition order had been published; the appellant brought a motion in the High Court contending that her and the estates fundamental rights and freedoms as guaranteed by Articles 40 and 142 of the Constitution had been contravened.

As such, she sought redress declaring among other things that her fundamental rights had been breached; that the purported acquisition of the property was unconstitutional, ultra vires, null, void and of no effect; that the purported registration of title in favour of the Government of Guyana and in the name of the Guyana Pharmaceutical Corporation was also unconstitutional, ultra vires, null, void and of no effect; that the property so acquired was never used for the purpose of public works for which it was acquired and that not having fulfilled that purpose, the property remained in the ownership of the estate; that the transport in the name of the deceased remained valid and effective; and that the said property purported to be acquired could only have been acquired on fulfillment of the conditions set out in the Act, that these had to be strictly observed and the failure to do so rendered the acquisition null, void and of no legal effect.

The constitutional motion was heard by Justice Roy in 2002 but the judgment was not delivered until 2010. That delay the judge said was as a result of missing files. In his ruling, Justice Roy said Singh’s constitutional right to property was violated by the acquisition.

He contended that by virtue of the aforementioned, the compensation of the acquisition must have been voted by Parliament and the certificate must have been given by the Minister as conditions precedent to enable the land to vest. This was not done and as such, he posited that the property did not vest. Instead, it remained in the estate of the deceased and the passing of transport to GPC was a nullity. Additionally, Justice Roy held that Justice Pompey had no jurisdiction to make the order which deemed the property compulsorily acquired and that order was also a nullity.

As a result, the assessment and payment of compensation was a mistake of law. In considering the appropriate remedy, Roy J considered the Appellant’s delay in instituting proceedings and the accrual of third party rights but decided to exercise his discretion to grant relief. He ordered a hearing to assess compensation and, further, that in the event of non-payment of the sum awarded as compensation, within three months from the date of assessment by the Court, declaration would be granted without further order that the property remained the property of the land owner’s estate.

In 2010, the AG appealed the decision and an oral judgment was handed down. That oral judgment concurred with that of the High Court which stated that Singh’s constitutional rights had been infringed. Damages to the tune of $30M were awarded. In considering the facts before it, the CCJ noted that the written judgment of the Court of Appeal was made available one year later and differed in some instances from the oral judgment. The decision read by Justice Denys Barrow noted that the written judgment only became available just about a day before the hearing at that court.

Singh contended that having upheld the ruling of the High Court, that the purported acquisition was unconstitutional erred when it set aside the order for assessment of damages which Justice Roy made and when it purported to make an arbitrary award of $30M in respect of the property. Additionally, Singh submitted that the refusal to grant an order that the property be returned to the deceased’s estate was both unconstitutional and oppressive. The AG on the other hand contended that every transport of immovable property, other than a judicial-sale transport, shall vest in the transferee the full and absolute title to the immovable property.

By statute therefore, the transports in favour of both GPC and NICIL were absolute and their validity could not be challenged. Additionally, the state argued that the appellant contributed to the status quo by waiting almost 15 years to file the constitutional motion. It was also argued that the $30M award in 2017 provided more than adequate and sufficient compensation to Singh.

Having regard to the lapse in time, the AG submitted that the issue of laches arose. He submitted that the delay in the matter is unreasonable and argued that the delay should have cause the dismissal of the claim notwithstanding that it was a constitutional claim because such claims were not exempt from the consequence of this form of abuse. NICIL, the second named appellant also raised the issue of delay. NICIL pointed to the 14 year delay before application for constitutional relief, 13 years elapsed since the transport of the property passed to a state company and ten years passed since the part payment of compensation was assessed by the High Court.

NICIL contended that Singh’s delay ought to strike down her action. “The state and GPC were allowed by the long delay in bringing the challenge to the acquisition, to believe they were accepted by all the world as the lawful and genuine owner of the property,” the court said while pointing to the considerable works done on the property over the years.

The court flayed the local judicial process as it is to bear considerable blame for the delay. “A constitutional claim is by its very nature, of the utmost gravity and should be heard expeditiously…The five years delay was wholly unacceptable. Worse, it is egregious that after the claim was heard, beginning in April 2002, the judgment was not delivered until August 2010, some eight years later. The judge apologised for that delay and explained that the file with all exhibits had gone missing but, with respect, that is a wholly unacceptable excuse.”

The CCJ pointed to the great delay at the level of the Court of Appeal and said it is regrettable that the observer is left to conclude that the inordinate wait in the High Court for the file to be found and the excessive time it took for the matter to be disposed of in the Court of Appeal, reflect an attitude of insufficient concern and commitment to avoiding excessive delay. “…the Judiciary must do its utmost to guard against and where the attitude does exist to stamp out, for both stamp out, for both itself and the legal community and, most of all, for the public good.

Today’s public is, rightly, increasingly demanding of greater accountability of its public officials, including judges. Unfortunately, the public blames the judiciary for delay even where it is attributable to systemic causes.”

That aside, the CCJ found that Justice Roy had no jurisdiction to sit as an appellate court over Justice Pompey. “It remains inescapable that the order Justice Pompey, formally made, drawn up, perfected and sealed was never set aside or appealed. It was, always and remains today, a valid, binding and effective order,” said Justice Barrow. He noted too that Justice Pompey by his order deemed the property compulsorily acquired. “It was, therefore, an abuse of process for the Appellant to bring the claim for constitutional relief directed to obtaining declarations of invalidity of the acquisition orders issued by the Executive Branch of government.”

Based on the aforementioned, the court awarded basic costs and disbursements to the State and NICIL and granted permission to the parties to apply within 21 days of the date of the judgment, to vary the order as to costs. President of the CCJ Sir Dennis Byron, along with Justices Jacob Wit, David Hayton, Maureen Rajnauth-Lee and Denys Barrow presided over the case. The State was represented by Solicitor-General Kim Kyte-Thomas, Oneka Archer-Caulder and Judy Stuart-Adonis while NICIL was represented by Timothy Jonas. Singh was represented by Sir Fenton Ramsahoye, SC., Roopnarine Satram, Chandrapratesh Satram and Visal Satram.