…after company threatened 360% hike in tolls

By Clestine Juan
ACTING Chief Justice, Roxane George-Wiltshire, on Wednesday, ruled that government’s decision to take temporary control over the Berbice Bridge is lawful.

Government had stepped in to manage the company after it had a 360 per cent increase on the toll for all users that was set to take effect from November 12, 2018. The CJ made her ruling stemming from the challenge brought by the Berbice Bridge Company Incorporated (BBCI), requesting that the High Court reverse the decision of government to take control of the facility.

The State was represented by Solicitor General, Nigel Hawke, and Deputy Solicitor General, Deborah Diane Kumar. Senior Counsel, Ralph Ramkarran, appeared on behalf of the Berbice Bridge Company Inc. (BBCI).
The Attorney General, Basil Williams, and Minister of Public Infrastructure, David Patterson, were listed as defendants in the case.

The CJ, after reviewing the case, agreed with the submission made by the Solicitor General, who represented the interests of the government. The solicitor argued that the Berbice Bridge links two counties and if the toll was to be hiked, citizens would use alternative means to cross the Berbice River which would result in the loss of lives. Thus, government intervention was necessary on the grounds of national safety and public interest.

In her ruling, the CJ said that Minster Patterson is empowered in setting the maximum toll of the Bridge and his actions were justified and lawful. Additionally, the Chief Justice said BBCI cannot act unilaterally and has to consult with Patterson before proposing new tolls for the bridge. The CJ dismissed BBCI’s petition and ordered that it pays $50,000 in cost each to the Attorney General and Minister Patterson.

Patterson had referred to the move by the company as “draconian”, “unreasonable” and “unwarranted”, which would have only become burdensome to Berbicians and the public at large. He further stated that the demand for an increase in toll is based on a “flawed formula and computation” and, as such, the government will do everything in its powers to alleviate disruption and ensure smooth function. “On the basis of correspondence between both sides as recently as over the past few days, we do not envision a swift resolution to this crisis. Therefore, in accordance with the powers conferred upon the minister by Sections Four (one) and 11 of the Berbice River Bridge Act, in the interest of public safety, the minister issued (today) an Order declaring that the functions of the concessionaire to maintain and operate the bridge shall be exercised by the Government of Guyana as of 5th November, 2018 until the date the minister specifies by notice on the cessation of the threat to public safety,” Patterson stated.

ORDERS SOUGHT
The BBCI had approached the court for several orders, the first being an order of certiorari quashing paragraph two of the Berbice River Bridge (Public Safety) Toll Order 2018 dated the 1st of November, 2018, No. 42 of 2018, made by the first named defendant under the Berbice River Bridge Act Cap 51:06 ordering that the functions of the concessionaire, namely the claimant, to maintain and operate the bridge shall be exercised by the government, the first named defendant having determined that the exercise of those functions by the government is necessary and expedient in the interest of the public during the period 5th November, 2018, to the date the minister specifies by notice on the cessation of the threat to public safety.

(b) An order of certiorari quashing paragraph three of the Berbice River Bridge (Public Safety) Toll Order 2018, dated the 1st November, 2018, No. 42 of 2018, made by the first named defendant under the Berbice River Bridge Act Cap 51:06 ordering that the tolls levied and collected and any exemptions shall be the same as those levied, collected and exempted immediately before the coming into operation of the said order.

(c) An order of prohibition prohibiting the first named defendant or the Government of Guyana from exercising the functions of maintaining and operating the Berbice River Bridge.

(d) An order of prohibition prohibiting the first named defendant from ordering that the tolls levied, collected and exempted immediately before the coming into operation of the Berbice River Bridge (Public Safety) Toll Order No. 42 of 2018, shall be the same as those levied, collected and exempted before the coming into operation of the said order.

(e) A declaration that the first named defendant has no power under the Berbice River Bridge Act, or otherwise, to approve or reject an increase in tolls by the claimant.
(f) A declaration that the Berbice River Bridge (Public Safety) Toll Order No. 42 of 2018 is ultra vires sections Four and 12 of the Berbice River Bridge Act.

(g) A declaration that the Berbice River Bridge (Public Safety) Toll Order, No. 42 of 2018, made by the first named defendant under the Berbice River Bridge Act is unconstitutional, null and void and of no effect in that it is tantamount to the compulsory taking of possession or compulsorily acquiring an interest in or right over property, to wit, the Berbice River Bridge, owned by the claimant without prompt and adequate compensation in violation of article 142(1) of the Constitution of Guyana.

(h) A conservatory order prohibiting the defendants, by themselves, their servants and/or agents from assuming the functions of the claimant as the concessionaire to maintain, operate the Berbice River Bridge under the Berbice River Bridge (Public Safety) Toll Order No. 42 of 2018 made under the Berbice River Bridge Act, Cap 51:06.

(i) A conservatory order prohibiting the defendants by themselves, their servants and/or agents from ordering or continuing to maintain the order that the tolls levied and collected and any exemptions from the payment of tolls shall be the same as those levied, collected and exempted immediately before the coming into operation of the Berbice River Bridge (Public Safety) Toll Order No. 42 of 2018 made under the Berbice River Bridge Act, Cap 51:06.

(j) An order directing the first named defendant to supply to the claimant as a body affected by the Berbice River Bridge (Public Safety) Toll Order, No. 42 of 2018, a statement setting out the findings on material questions of fact referring to the evidence or other material on which those findings were based and giving the reasons for the decision.
In October 2018, the government moved to take over the operation and maintenance of the bridge until an amicable resolution can be met.

In a press statement, Minister of Public Infrastructure, David Patterson, had stated that the decision takes immediate effect and is in accordance with the powers conferred upon the minister by Sections Four (one) and 11 of the Berbice River Bridge Act.

A portion of Section 4 (11) states: “A function exercisable by the concessionaire may be exercised by the government — (a) in the event of a national emergency declared by the President; or (b) if the minister determines that – (i) its exercise is necessary or expedient in the interest of public safety; or the concessionaire has defaulted in the performance of its obligations under the Concession Agreement…” An Order regarding such, cited as the Berbice River Bridge (Public Safety) Toll Order 2018, was gazetted on November 1, 2018, and signed by the minister.