Minibus terminus project for Hadfield Street, scrapped

IN 1997 the law firm of Hughes, Fields & Stoby won a court battle that prevented the Mayor and City Council from constructing a minibus terminus and car park outside of their Chambers, Hadfield Street, that would have produced nuisance value and economic loss to the well established law firm.

The law firm firstly, approached a Judge in Chambers for a restraining order to compel the Council to discontinue its operations and was granted an exparte nisi order prayed for on November 24, 1994..

However, on December 2, the same year, the Judge, Mr. Prem Persaud after listening to counsel for all of the parties, discharged the injunction previously granted by him.

Originally, the Plaintiffs – lawyers – had applied for an interlocutory quia timet injunction to restrain a nuisance pending the hearing of the main action in which they sought permanent injunctions and damages. On the question whether the plaintiffs had to show positively that their stated fears would materialise before the court could grant interlocutory relief.

The plaintiffs appealed to the Full Court of five judges which allowed the appeal and set side the order of discharge by the trial judge and grant an interlocutory quia timet (because he fears) injunction in the terms prayed.

According to Chancellor Kennard of the Court of Appeal, the respondents had instituted proceedings by way of a generally-indorsed writ on 24 November, 1994 claiming the following reliefs (a) an injunction restraining the mayor and councillors of the city of Georgetown whether by themselves, their servants, and/or agents or otherwise, howsoever, from constructing and/ or making a park or terminus for minibus over and along the parapet situate or running along the northern side of Hadfield Street, Stabroek, Georgetown, Demerara, between High Street, and Manget Place (b) an injunction restraining the Mayor and councillors of the City of Georgetown whether by themselves, their servants and/or agents, or otherwise howsoever from causing or permitting the parapet on the northern side of Hadfield Street , Stabroek, Georgetown, Demerara, running along between High Street and Manget Place to be used as a car park or terminus for mini-buses; and (c) damages in excess of $50, 000 for nuisance.

On the same day, 24th November, 1994, the respondents sought by way of an ex parte application by way of affidavit an interim injunction restraining the mayor and councillors of the city of Georgetown,whether by themselves, their servants and or agents or otherwise, howsoever, from constructing and /or making a park or terminus for minibuses over and along the parapet situate on and running along the northern side of Hadfield Street, Stabroek, Georgetown, Demerara between High Street and Manget Place, and restraining the mayor and councilors of the city of Georgetown whether by themselves, their servants and/or agents or otherwise, howsoever, from causing or permitting the parapet on the northern side of Hadfield Street, Stabroek, Georgetown, Demerara running along and between the Avenue of the Republic and Manget Place to be used as a park or terminus for minibuses.

On the same day, 24 November, 1994, Persaud J. granted the injunction in the terms prayed for. However on December 2, 1994, after listening to counsel for all of the parties, Justice Persaud discharged the injunction previously granted by him. In doing so he stated (inter alia)

“I have given careful and anxious consideration to the concerns and anxieties expressed by the respondents, and am unable at this stage to find positively that their fears would materialise. I have to take into account also that if the reliefs sought are granted it would open the flood-gates and cause developmental works in the city may grind to a halt. In any event, if the fears of the respondents do materialise, the judge hearing the matter will certainly take that into account. The interim injunction is accordingly discharged.”

According to Chancellor Kennard, the respondents being dissatisfied with that order, appealed to the Full Court. In its decision Justice Ganpatsingh who presided over a court which comprised of five judges stated:

“To rule at this stage that the court should positively find that the fear of the respondents would materialise is to place too heavy a burden on them. In my opinion, the matters complained of show a sufficient interest to challenge the decision of the council on the ground of unfairness, but equally on the case they would have a legal right to a remedy in the probable event that their fears are realised.

“I cannot agree that on the available material before me and in the light of my analysis above, that the respondents have no real prospect of succeeding on their claim for a quia timet injunction.

“The question then is, would the creation of a nuisance cause incalculable harm to the respondents? Having regard to the nature of their business, the probability is that it may. In that event they would hardly be adequately compensated in damages, as a result of any serious interference, for any loss sustained between the time of the application and final judgment.

“The damage suffered could be recurring in nature. On the other hand, it could scarcely be said that the council would suffer reparable damage as a result of a delay in the establishment of the park.

“In the final analysis, I would have thought that the balance of convenience lies in favour of maintaining the status quo, until the issues are fully ventilated at the trial.

“I have come to the conclusion both in law and on the evidence that on the exercise of his discretion the trial judge, with due respect, fell into error. I would therefore allow the appeal and set aside the order of discharge, and grant an interlocutory quia timet injunction in the terms prayed.”

Dissatisfied with the Full Court ruling, the Mayor & Town Council, represented by lawyers Mr. C. M. Llewellyn John and Mr. Lennox Hannoman, appealed to the Guyana Court of Appeal.

At the hearing of the appeal, Senior Counsel Mr. Rex Mc Kay and Mr. Ashton Chase, S.C. appeared for the Respondents Law firm.

In his judgment, Chancellor Kennard who sat in the Court of Appeal along with Justice of Appeal Lennox Perry and Justice Carl Singh as an additional judge, added, “I am satisfied that the claim of the respondents is not frivolous or vexatious as there is a serious issue to be tried and this ought to be ventilated at the trial. Whether the establishment of the terminus would inevitably lead to the creation of a nuisance by others and likely to be adopted by the council is essentially and seriously the triable issue here:

“But to prevent the jurisdiction of the courts being stultified equity has invented the quia timet action, that is an action for an injunction to prevent an apprehended legal wrong though none has occurred at present , and the suppliant for such an injunction is without remedy at law. My Lords, quia timet actions are broadly applicable to two types of cases: first, where the defendant has as yet done no hurt to the plaintiff but is threatening and intending (so the plaintiff alleges) to do works which will render irreparable harm to him or his property if carried to completion…..”

Chancellor Kennard added, “In the circumstances the appeal is dismissed and the order of the Full Court is affirmed.”