THE Full Court, on Monday, dismissed the case filed by Astrolobe Technology Inc. to challenge the ruling of a High Court Judge that it was unlawfully using a portion of land on East Street, South Cummingsburg as a paid parking lot..
According to a release from the Attorney General Chambers, Justices Nareshwar Harnanan and Sandil Kissoon in the Full Court of the Demerara High Court, unanimously agreed that attorney-at-law Darren Wade presented no evidence to support the appeal.
Wade filed the appeal on behalf of the company on July 10, 2021.
The judges ruled in favour of Attorney General and Minister of Legal Affairs, Mohabir Anil Nandlall, S.C, and state lawyers, Tiffany Barton and Abiola Lowe. The court awarded $350,000 in costs to the AG chambers.
In the notice of appeal, the company had asked the Full Court to set aside the decision of Justice Morris-Ramlall on a fixed date application (FDA) which was handed down on June 14, 2021.
In the FDA, the company had contended that on October 1, 2007, it had entered into a contract with the Mayor and City Council of Georgetown (M&CC) for the provision of paid parking in the city.
The applicant claimed that pursuant to that contract it was authorised to operate parking facilities in the “Old Georgetown jurisdiction, which boundaries are seawalls to the North, Independence Boulevard to the South, Irving Street to the East and Demerara River to the West.”
The company had also claimed it had been operating a paid parking lot on the city’s reserve in the vicinity of East Street, South Cummingsburg and that on November 14, 2020, agents of the Ministry of Public Works disrupted its ongoing operations by removing the fence and gate of the parking lot.
As a result, the company moved to the court seeking a declaration that its fundamental rights of protection from deprivation of property and protection against arbitrary entry were infringed.
It had also asked the court to grant a declaration that the respondent had trespassed on their property and also caused loss to their business.
However, the company’s application was thrown out by Justice Morris-Ramlall.
Dissatisfied, the company moved to the Full Court. Justices Harnanan and Kissoon, in their ruling found that the agreement relied upon did not entitle nor grant to the applicant permission to operate such a facility at East Street, Georgetown in 2007 or at all.
The court also found that there was no evidence as to the operation of a parking facility as contemplated by the contract nor was there any evidence to prove that eight years after the agreement had been executed that there was an operationalised parking facility at the location.
Additionally, there was no evidence provided to the court by the company to show any loss of income. Also, the company did not present any evidence of any alleged income, distribution of monies, nor any evidence of any deposits to any banks or other facilities nor the presentation of any financial statement from the company as envisaged by the agreement.
According to the release, the judges ruled that the case was “… of a deficient claim, equally poor pleadings and a paucity of evidence for which there was no onus on the court in attempt to remedy or salvage same.”
Further, the court found that the applicant failed to distinguish between an appeal to the High Court and an appeal to the Full Court.
This view, on the observations of the court, was further confirmed in the appellant’s amended notice of application made on December 15, 2021, at paragraph 1(b), which makes specific reference to Part 60:02(1) of the CPR 2016.
Part 60:02 has no application to Full Court appeals but deals distinctly with appeals to the High Court in a specific category of matters, the release explained.
However, the instant appeal was not an appeal to the High Court but an appeal to the Full Court governed by Part 62 of the CPR 2016.
According to the release, “ the Honourable Justices made the observation that the claim and pleadings in the High Court filed by the applicant were bare, vague and devoid of any particulars as to date, time, place and location. Equally the claim for damages as pleaded does not specify or clarify cause of action or declaration that the claim of damages is to follow.”
“ Not a single iota of evidence was adduced before the honourable court at first instance to indicate the income generated, if any, from the applicant’s purported business on a monthly basis. There was no statement of receipts, no financial statement, and no deposit record as stipulated in the written agreement as provided by the Applicant in these proceedings,” the release added.
As it relates to the evidence presented by the applicant, the court ruled that there was simply a paucity of evidence or more accurately a complete absence of evidence before the court.
As such, the court was unable to exercise any discretion to grant any orders sought by the company that is subject to the appeal.
“The applicant has failed to provide any evidence it was lawfully in possession of the area where it was operating a parking facility,” the release said.
