Source: Kaieteur News

Chief Justice Ian Chang in an 80-page decision has ruled in favour of BK International, Inc. in a long standing dispute between the Ministry of Local Government, prohibiting the Ministry, Minister and Permanent Secretary of Local Government Ministry from terminating the Haags Bosch landfill contract.

The Ministry is now the Ministry of Communities and there is a new Minister in place. The new Minister, Ronald Bulkan, had also agreed to enforce the decision of the previous administration.

BK International was represented by Devindra Kissoon of London House Chambers.

In March, BK’s Counsel Mr. Kissoon, in response to a termination notice received from the Ministry on February 27, 2015, obtained orders nisi against the Permanent Secretary and Minister of Local Government, among other things, preventing them from terminating the contract with BK for the construction and operation of the Haags Bosch dumpsite.

In his affidavit in support of BK’s application, Mr. Brian Tiwarie deposed that the Ministry, the Permanent Secretary and the Minister acted “unjustifiably” and “in egregious bad faith as part and parcel of practice and pattern of conduct victimizing BK.

He also accused the Minister and/or the Permanent Secretary of abusing their power, and in so doing, reached a decision that no reasonable authority could have adopted, if it had taken account of all relevant considerations and had left out of account all irrelevant collateral matters.”

Tiwarie stated that “The Ministry has constantly delayed and changed design instructions due to shoddy design work, expecting BK to immediately adapt to the Ministry’s ever evolving needs, while at the same time pressuring BK to accept and process an increase of almost double the amount of waste originally contemplated at an incredibly high standard.
This was being done against the backdrop of withholding payment for operational or construction costs from BK for years at end, and failing to establish required accounts necessary to fund the Ministry’s shortfall in payments to BK as agreed.

This was done, according to the lawyer, to stifle BK and force a termination of the parties’ contract, to corner BK to expend and utilize its own resources to comply with the Ministry’s ever increasing unreasonable demands.”

“Despite the fact that BK not only complied with the Ministry’s demands and constructed and operated the Landfill Site without any failure whatsoever, and invested more than five years and millions of dollars of its own money into the project, with the reasonable and legitimate expectation that it would reap the benefit of its hard work until the end of the contract in 2019 the evidence showed that the Ministry conjured up a scheme to terminate the parties’ contract.

Solicitor General, Sita Ramlal, on behalf of the Government argued that BK’s action was unsustainable since BK could not seek prerogative relief, instead having to rely on private law remedies.

She argued that the State contracted BK in its capacity as a private party, and that the dispute concerned private law rights and not of public law.

The Government’s decision to terminate was susceptible to judicial review and that BK should bring a separate private law proceeding to determine any alleged wrongs.
Kissoon retorted that the Government was relying on outdated law.

Chief Justice Chang, in dismissing the Ministry’s arguments, found that the remedy of judicial review was appropriate, given the fact the State entered its contract with BK “in the exercise of the State’s common law power to contract”; that “the general public had a direct interest in the project” given “the level of public expenditure…the importance of the project to public health and welfare.”

Chief Justice Chang went on to find “that the failure of the respondents to take into consideration such relevant factors rendered its decision to terminate as irrational in public law sense, since in the circumstances, no public authority could reasonably fail to consider its own breaches of the provisions of the contract in making a decision whether to terminate its contract with BK.”

Source: Kaieteur News

Within weeks of hearing an appeal made by Mr. James Samuels, the Caribbean Court of Justice (“CCJ”) unanimously overturned the Guyana Court of Appeal’s decision that Samuels’ use of VoIP breached his contract with GT&T.

The CCJ ruled that “neither the Court of Appeal proprio motu [on his own impulse] nor GT&T, before this Court properly applied the principles on implied terms set out in Attorney-General of Belize v. Belize Telecom” which “represents the law of Guyana”, and found that the Court of Appeal’s decision as “unsustainable”.

They added that “the Court of Appeal came to the conclusion that an implied term was necessary in the interests of business efficacy, even in the absence of any evidence led by GT&T as to how Mr. Samuels’ actions would jeopardise their business interests….falling into error”.

The dispute arose when GT&T blocked Samuels’ DSL service claiming that Mr. Samuels was illegally using VoIP in breach of the parties’ contract and GT&T’s exclusive licence.
Samuels moved to the courts claiming GT&T breached its contract with him, arguing that the company did not own the internet and was interfering with his freedom to communicate. Counsel for GT&T, Mr. Miles Fitzpatrick, S.C. and Mr. Rex McKay, S.C., argued that Mr. Samuels’ use of VOIP breached his contract with GT&T, and that since Mr. Samuels did not have a telecommunications licence for the use of VoIP, he was conducting an illegal activity. The trial court ruled in Mr. Samuels’ favour.

GT&T then promptly appealed to the Court of Appeal. In a dramatic turn of events, the Court of Appeal, in decisions rendered by Chief Justice Chang and Justice of Appeal Cummings (and Justice Drakes concurring), overturned the trial Court’s decision, siding with GT&T’s Counsel Mr. Miles Fitzpatrick, S.C. and Mr. Rex McKay, S.C., that stated Mr. Samuels was in breach of an implied term in the parties’ contract.

This was when Samuels appealed the Court of Appeal’s decision to the CCJ. GT&T also cross-appealed to the CCJ stating that the Court of Appeal should have found that Mr. Samuels admitted to the contract in his pleadings and that the trial court erred in finding Mr. Samuels’ evidence credible.

On June 2, last, Samuels’ Counsel in presenting his client’s claims to the CCJ, explained that the  Appeal Court’s decision was incorrect as a matter of law, since not only did its decision constitute an impermissible interference with the trial Judge’s findings of fact, but it also implied a term which was never contained in GT&T’s pleadings or evidence in the Court below, and did so by impermissibly considering Mr. Samuels’ post contractual conduct as an aid to imply a term in the parties contract and misinterpreting the law of contract generally.

His counsel also argued that there was no evidence of an implied term and no evidence that GT&T would be harmed by his use of VoIP, arguing that the Court of Appeal in any event incorrectly analyzed GT&T’s position only without an analysis of the consequence of such an implied term to both parties.

Mr. Samuels’ Counsel stated that not only was his client’s evidence credible, but that the Court of Appeal did not properly apply the law of implied terms. GT&T argued in rebuttal that Mr. Samuels has admitted to the existence of a contractual term restricting his use of VoIP in his pleadings, that Mr. Samuels’ evidence at trial was not credible and that the Court of Appeal’s decision was correct.

The CCJ sided with Mr. Samuels, holding that GT&T was in breach of contract when it disconnected Samuels’ DSL internet service owing to his use of Vonage. The CCJ struck down GT&T’s argument that Mr. Samuels admitted that there was a contract between him and GT&T, stating that “GT&T did not do all that was reasonably sufficient to give Mr. Samuels notice of the conditions it relied upon” and also summarily dismissed GT&T’s cross appeal attempting to undermine Mr. Samuels’ credibility, agreeing with Mr. Samuels’ Counsel that an appellate court should be slow to reverse a trial Judge’s finding of fact.

Turning to the core issue of implied terms, the CCJ also sided with Mr. Samuels’ Counsel, in so doing firmly establishing the common law in Guyana concerning implied terms, stating that “neither the Court of Appeal proprio motu nor GT&T before this Court properly applied the principles on implied terms.”

The CCJ was particularly critical of the Court of Appeal’s decision in considering Samuels’ subsequent conduct stating, “the decision of the Court of Appeal is also unsustainable given that the court was driven to imply a term on the basis of Mr. Samuels’ conduct subsequent to the formation and execution of the contract, namely his letter of April 13, 2007.

By this letter, Mr. Samuels informed GT&T of his intention to use Vonage via his DSL internet connection. Chang CJ (Ag.) considered that that fact “spoke loudly” in favour of an implied term that GT&T’s permission was required before Vonage VoIP facilities could be used on its DSL lines.

However, it is well established that conduct related to acts subsequent to the formation of the contract is of limited value in assessing the contemporaneous terms of the contract in the event of a dispute.”

The CCJ also overruled Justice Cummings’ interpretation of the business efficacy test stating, “The Court of Appeal…fell into error” by assuming “that GT&T’s business would be so adversely affected by the actions of only one of their customers that a term must be implied in their contract with Mr. Samuels.”

The CCJ therefore dismissed GT&T’s cross appeal and granted Mr. Samuels’ appeal in its entirety, setting aside the decision of the Court of Appeal and reinstating the trial court’s decision, holding that “in disconnecting Mr. Samuels’ DSL internet service, GT&T acted in breach of contract”.

The CCJ ordered GT&T to pay Mr. Samuels’ legal costs. The matter was decided by Justices Wit, Hayton, Anderson, Rajnauth-Lee and Nelson.

This case is not only the first of its kind in dealing with issues of complex contract at the CCJ level arising out of Guyanese courts, but is also significant since it took just over four years to be finally decided from the filing of the Statement of Claim in April, 2011 to final CCJ ruling, this being a testament that the justice can be swift if matters are pushed by Counsel.

When asked for comment, Mr. Samuels stated, “I hope those following this case get the courage to stand up for their rights especially against large corporations with high powered Attorneys. I would also like to thank my lawyer who was confident at this outcome at every stage of the proceeding.”

Mr. Samuels was represented at the CCJ by Mr. Devindra Kissoon, of London House Chambers and GT&T was represented by Mr. Miles Fitzpatrick S.C. and Mr. Timothy Jonas of De Caires, Fitzpatrick and Karran.

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Source: Kaieteur News

After years of dispute over who really owns a prime commercial property located at 117 “B” Regent and Alexander Streets, Georgetown, two of Guyana’s top corporate entities, Guyana Realty Investments Limited (GRIL), which is linked to Gafoors Group of Companies, and National Hardware, found themselves before Justice Roxanne George-Wiltshire at the High Court, yesterday.

Claude and Donna Deygoo, aka Eddie and Donna Boyer, the proprietors of National Hardware, claim that they have a transported title to, and have been the legal owners of the property since September 2008. However, GRIL is claiming prescriptive title, having purchased the property from a third party (Stanley Collymore) in 1993 to use the premises to operate a paint shop.

Attorneys-at-Law Rajendra Poonai and Devindra Kissoon appeared on behalf of National Hardware, while Rex McKay S.C, Edward Luckhoo S.C, and Neil Boston represented GRIL.

Today’s proceedings saw Chairman of GRIL, Sattaur Gafoor, and an employee of a sister company, Indar Chand, taking the stand and facing intense cross examination by the Deygoos attorneys. Mr. Kissoon extensively questioned GRIL’s use and occupation of the disputed property.

Kissoon pressed Gafoor on a February 27, 2008 injunction issued by Justice Yonette Cummings-Edwards, barring him from trespassing on the property, which was identified as the Boyer’s of National Hardware.

Gafoor admitted that, despite knowing of the order, he refused to disclose this information in his sworn affidavits to the court. Gafoor confessed further, that he chose not to mention the injunction in the petition, even though he had been the Chairman and or Chief Executive Officer of GRIL at the time.

When questioned why GRIL is currently not in possession of the disputed property, Gafoor explained that during December 2009, the property was destroyed by persons allegedly acting on instruction of the Boyers. Justice George-Wiltshire then questioned whether or not, Gafoor was sure that the property was destroyed on the Boyers’ order. He admitted that it was just hearsay.

He went on to say that he became aware of the demolition, when persons that he permitted to stay there, informed him that they were being forced out. At that time, the Boyers were said to be in possession of a transport, naming them as the legal owners of the property.

“In September 2007 the top of the building facing Regent Street was demolished, we subsequently built a roof to prevent rain from getting in. In 2009 December, the roof was demolished again. Before it was demolished, it was occupied by [one] Mr. Persaud… The building facing Alexander Street was demolished in September 2007, along with the two storey building at the back…” Gafoor added, “today the top storey has been replaced, but not by us.”

When it was GRIL’s attorneys turn to question Gafoor, Mr Boston asked him to explain his relationship with the persons who were occupying the building at the time. The court heard that the occupants were told by Gafoor that they could remain on the premises freely until he received the transport for the property.

Gafoor said that GRIL had not been in possession of the premises because it was yet to receive the transport.

Further probes from Boston revealed that Mr Persaud, who had permission to stay at the premises, in turn sublet to two other individuals, who Gafoor claims went to him in December 2009, complaining that they had been threatened by Boyer.

GRIL employee, Indar Chand, was then admitted to the witness box. The court heard that Chand had been employed by GRIL’s sister company since October 1969. Chand said that between 1994 and 1996, he worked as a manager of GRIL Hardware and Paint at the Regent and Alexander Street property.

The defence later used Chand’s testimony to establish that GRIL had been in sole and uninterrupted possession of the disputed property from 1993 to some time around 2008, which would verify its claim for prescriptive title.

“When Mr. Gafoor took me there to see if it was suitable for a paint shop. I told him yes and a few days after he bought the place…” Chand explained.

Chand was readmitted to the witness box, after attorneys for GRIL came into possession of a newspaper article from Guyana Chronicle dated October 31, 1993, where A. Gafoor and Son published the opening of GRIL’s company.

Chand was asked to identify himself in a photo that accompanied the article, and positively did so by marking off his face.

The matter is next scheduled to continue on April 23, 2015.

Source: Kaieteur News

A major court battle is brewing between the Local Government Ministry and construction giant, BK International, over the termination of a multi-million-dollar waste management contract at the Haags Bosch Landfill site, East Bank of Demerara.

Lawyers for BK International are asking the court to quash the, “unfair, improper and unreasonable” termination of the contract.

According to court documents, the company is claiming victimization on the part of the Government for failing to make payments to the company for work done.

The matter was called before Chief Justice (ag), Ian Chang, yesterday.

BK claims that it was issued a termination notice on February, 27, 2015. The contractor alleges that the Ministry has delayed payment since July 1, 2014 (and at one point for more than a year), while expecting it to process almost double the amount of garbage catered for in its contract.

BK also alleges that despite better performance than ever before, the Ministry’s Permanent Secretary, Collin Croal, nonetheless, served a termination notice, “incorrectly stating that BK has been late in completing the construction of the landfill, when in fact, it was the Ministry which keeps changing the landfill’s design pushing back the completion date.”

Chang granted a conditional order directed to Croal and Local Government Minister, Norman Whittaker, quashing the Ministry’s decision to terminate BK’s contract on the basis that the “decision to terminate and the corresponding termination notice was made and issued arbitrarily, unreasonably, irrationally, unlawfully, illegally, erroneously, in bad faith and in breach of the rules of natural justice”.

The court, based on BK’s arguments, believes that the termination was procedurally improper, unfair and unreasonable, sought to punish BK, and resulted in its unequal and unfair treatment.

Lawyers for BK also asked the court to grant orders preventing Croal and Minister Whittaker from taking any action in furtherance of the termination notice; interfering with BK’s equipment and personnel on the Haags Bosch Site, compelling the Ministry to adhere to the parties’ contract and appoint a dispute adjudication board to resolve the parties’ contract in accordance with the terms of said contract.

The company also made it clear in its court request, that in the interim, the Government should not be allowed to let the contract change hands by granting it to a third party.
BK’s affidavit supporting the application alleged that “the termination notice was unjustifiably issued by the Minister and/or the Permanent Secretary in the exercise of their public law power in egregious bad faith, as part and parcel of practice and pattern of conduct victimizing BK, the Minister and/or the Permanent Secretary abusing their power.”

The 28-page affidavit detailed BK’s allegations of the Minister’s alleged acts of victimization and bad faith. He claimed the Ministry “constantly delayed and changed design instructions of the Haags Bosch Landfill due to shoddy design work, expecting BK to immediately adapt to the Ministry’s ever-evolving needs, while at the same time pressuring BK to accept and process an increase of almost double the amount of waste originally contemplated at an incredibly high standard.”

And this occurred “all against the backdrop of maliciously withholding payment for operational or construction costs from BK for years at end, and failing to establish required accounts necessary to fund the Ministry’s shortfall in payments to BK as agreed, all in a deliberate but futile attempt to stifle BK and force a termination of the parties’ contract, cornering BK to expend and utilize its own resources to comply with the Ministry’s ever increasing unreasonable demands”.

BK claims that it “has not only complied with the Ministry’s demands and constructed and operated the landfill site without any failure whatsoever, but has invested more than five years and millions of dollars of its own money into the project, with the reasonable and legitimate expectation that it would reap the benefit of its hard work until the end of the contract in 2019 at agreed revised contractual rates, and that the Ministry would act in good faith”.

BK alleges that “upon information and belief, no other large contractor working on a project with the Ministry worth US$7,000,000 or more, has been treated in such a manner” and that the Ministry’s conduct “is epitome evidence of egregious bad faith, the decision to terminate being one which no reasonable government agency or official would have taken in light of the surrounding circumstances”.

BK International is represented by Attorney–at–Law Devindra Kissoon of the London House Chambers. The Attorney General’s Chambers has appeared for the Minister and Permanent Secretary. The Ministry has 21 days to reply to the order and parties will return to court on April 20.