Source: Kaieteur News

The legal challenge to the sale of plots of land at Pradoville 2 took a surprising turn when Attorney for Ramesh Dookhoo and Florrie Ramnauth, Devindra Kissoon, intervened in the proceedings and filed an application to dismiss the case instead of defending the matter.
A group headed by former APNU Member of Parliament Desmond Trotman moved to the High Court last September seeking, among other things, to have the sale of the land declared null and void. They argued that the sales were done surreptitiously at undervalued prices to former government Ministers, officials and cronies of the PPP/C.

Trotman and the Committee for the Defence for the Constitution Inc, represented by Senior Counsel Rex McKay and Neil Boston, Bettina Glasford and Brenden Glasford, filed the constitutional action claiming that they were discriminated against in violation of Article 149 of the Constitution, seeking ten declarations to have the court declare the transfer of lands unlawful and asking the Court to set aside the “purported sale and transfer to the putative owners” of the said parcels of land and an order directing each owner that the legal and beneficial ownership of the lands vest in the Minister of Finance.
Both Ramesh Dookhoo and Florrie Ramnauth purchased lands in Pradoville 2 in 2010. Ramnauth later constructed a house.

Kissoon, in filing his application to dismiss, argued that the action “Constitutes a gross abuse of the Court’s process, being filed more than five years after the passage of title to the Intervenors, this in ordinate delay alone as a matter of law being sufficient to dismiss the Applicants’ motion.”

Kissoon argued that if the Court grants the reliefs sought, the intervenors would be deprived of their property in violation of the constitution without just compensation. Kissoon also argued that the applicants have failed to demonstrate that they are true comparators to the purchasers of the Pradoville 2 land, that they have failed to properly state how they have been discriminated against, there being no proof that they even attempted to purchase the lands, and that there is a separate procedure under the Acquisition of Lands for Public Purpose Act which provides the only constitutional basis upon which land can be seized from a private citizen.

Kissoon argued that the Trotman-led applicants were laboring under the “misconception that the Constitution is panacean in character, capacitated for the eventual solution of all legal problems.” Kissoon’s motion to dismiss comes up before Chief Justice Yonette Cummings on Tuesday.

Source: Stabroek News

City Hall has been called upon to reverse a published decision to provide housing for its staff on a property in Bel Air Park.

Attorney Devindra Kissoon, of London House Chambers, representing several property owners in the vicinity of the open space that is R3 Eping Avenue, has written City Hall asking that it confirm that the Mayor and City Council (M&CC) has no plans to develop the property and that it commit to maintaining the property for the benefit of the residents of Bel Air Park.

In a letter to Town Clerk Royston King, dated February 17, 2016, Kissoon said that the property forms part of the mandatory open space requirements necessary for Bel Air to remain a residential community.

According to the letter, these requirements were established by the Town and Country Planning Act, the Housing Act and the Public Health and Municipal Services Ordinance, each of which stipulates the need for open spaces to be identified in any community.

Kissoon said the residents further support their claim with a transport, dated October 6, 1958, in which the tract cited a block R3 is part of a section of what was the Bel Air Plantation identified as “reserved for community purposes.”

According to the transport, “no building or erections shall be built or placed on said block unless they have been approved of by the Country authority of Bel Air Park.”

City Hall has, however, professed ownership of the space and has contracted attorney Nigel Hughes of the law firm Hughes, Fields and Stoby to respond to the residents.

In his response, dated February 19, Hughes maintains that the land is owned by the city. He goes on to state the city is “unaware of any of the restrictions expressed and/or implied in the letter sent to the council. He further undertakes to respond in detail to Kissoon’s correspondence in seven days. The seventh day is today.

In January of this year, City Hall had told the public through the state-owned Guyana Chronicle that lands owned by the council and underutilised in Guyhoc, South Ruimveldt and Bel Air had been identified for the creation of housing schemes to provide housing to council workers.

The legal correspondence from Kissoon on behalf of the residents cite this and other published reports. He said the announcements and other actions which appear to be in support of the council’s intention have been done “in error’ and requested written confirmation within three days of receipt of the letter that council will not move forward.

He also called on council to remove a guard hut which has been erected on Eping Avenue, while saying it is both illegal and a hazard for drivers and residents.

City Hall, however, denies this.

A source told this newspaper that the hut has been erected to prevent untoward use of the space. The source said that the city found evidence of dumping at the property and has erected the hut to prevent same from continuing.

Source: Stabroek News

– attorney advises holding company

Government’s holding company NICIL is under no duty to deposit its revenue into the Consolidated Fund and Article 216 of the Constitution does not apply to it, according to advice given to NICIL last year as the public corporation faced a forensic audit.

The forensic auditor, Anand Goolsarran had cited NICIL’s “violation” of Article 216 in recommending the filing of criminal and/or disciplinary actions. Others had previously also argued that NICIL had violated Article 216. However, according to documents obtained by Stabroek News, as NICIL was being audited, its Executive Director Winston Brassington sought legal advice and was told that Article 216 does not apply to the entity.

“Section 216 applies specifically to revenues raised by the State. NICIL is not the State, but rather has a separate legal personality. The fact that the State is the sole shareholder of NICIL does not render its corporate form defunct, and accordingly, the automatic transfer provision contained in 216 does not apply,” the advice by attorney, Devindra Kissoon of London House Chambers said.

“Moreover, even deemed to be a public corporation, absent Ministerial direction, NICIL is under no duty to deposit revenue into the Consolidated Fund. If NICIL is a private corporation, not only is it under no duty to deposit monies into the consolidated fund, but from a plain reading of the byelaws, there is no Ministerial power to direct NICIL how to allocate its revenue. Only a director resolution or a change to the byelaws or similar action can mandate payment into the Consolidated Fund,” Kissoon wrote in his advice dated September 17, 2015.

In his audit report on NICIL, Goolsarran urged that criminal and/or disciplinary actions be instituted against all those responsible for the interception of State revenues totalling $26.858 billion in violation of Articles 216 of the Constitution and the related sections of the Fiscal Management and Accountability (FMA) Act. He also urged criminal and/or disciplinary actions against all those responsible for violating Article 217 of the Constitution by causing expenditure to be incurred out of State resources without parliamentary approval.

Article 216 of the Constitution states that “All revenues or other moneys raised or received by Guyana (not being revenues or other moneys that are payable, by or under an Act of Parliament, into some other fund established for any specific purpose or that may, by or under such an Act, be retained by the authority that received them for the purpose of defraying the expenses of that authority) shall be paid into and form one Consolidated Fund.”

The relevant parts of Article 217 states “(2) Where any moneys are charged by this Constitution or any Act of Parliament upon the Consolidated Fund or any other public fund, they shall be paid out of that fund by the Government of Guyana to the person or authority to whom payment is due.

(3) No moneys shall be withdrawn from any public fund other than the Consolidated Fund unless the issue of those moneys has been authorised by or under an Act of Parliament.”

According to Kissoon’s advice, since NICIL is a company formed under the Company’s Act, it cannot be considered to be an arm of the State or to raising or receiving moneys by Guyana, and accordingly Section 216 does not apply to NICIL.

Definition
“Moreover, none of the revenue NICIL generates fits the definition of public moneys as defined by Sections 2 and 37 of the Fiscal Management and Accountability Act Cap 73:02….NICIL is (a) body corporate separate and apart from the State, the term State referring to Guyana and the Government generally, and accordingly, Parliamentary approval is not required for NICIL’s expenditures,” he argued.

Kissoon also said that NICIL’s articles allow for it to retain money.

He cited NICIL’s articles 18 (1) and 19 in this regard which states that “The holders of ordinary shares be entitled to be paid out of the profits in each year a dividend at such rate per annum as the Directors may determine” and “The Directors may, before recommending any dividends, set aside out of the profits of the Company as they think proper as a reserve which shall, at the discretion or the Directors, be applicable for any other purpose to which the profits or the Company may be applied. The Directors may, whether or not they place any sum to reserve, carry forward any profits which they may think prudent not to distribute.”

Kissoon also cited Section 96 (4) of the Companies Act (duty of care) which states that “Every director and officer of a company must comply with this Act and the regulations and with the articles and by-laws of the company.”

These provisions, Kissoon argued, allows NICIL to retain revenue. “…not only are NICIL’s articles clear on their face that NICIL may retain its revenue as it sees fit, but in any event, even if it were later found that Article 216 somehow applies, NICIL’s board is under a legal duty to adhere to the articles and properly exercise its duty of care, and in so doing retain monies for investment,” he wrote.

“Therefore, in the absence of a Court order or otherwise, NICIL has no duty to deposit monies into the Consolidated Fund,” he said.
The attorney argued that the proper procedure for the deposit of monies into the Consolidated Fund would be in accordance with NICIL’s articles, paying dividends on profits as the directors see fit. “Unless authorized by resolution or in accordance with NICIL’s byelaws, NICIL cannot simply transfer all collected revenue into the Consolidated Fund,” he said.

He also argued that a mandate is generally required for public corporations to deposit revenue into the Consolidated Fund. “…unless specifically directed, public corporations are not required to put monies into the Consolidated Fund, absent specific direction by the Minister or an Act. Even if NICIL is deemed to be a public corporation, it too does not have a duty to put funds into the Consolidated Fund absent Ministerial mandate,” he wrote.

In terms of NICIL’s legal status, Kissoon had argued that it was created under the Companies Act and it was not created pursuant to specialised Statute or an Act of Parliament like an autonomous or semi-autonomous corporation or body corporate entities. The Government of Guyana through the Ministry of Finance owns 100% of the shares issued by NICIL.

“NICIL is therefore bound to follow only its byelaws and the applicable provisions of the Companies Act,” Kissoon wrote.
In terms of the applicability of the Public Corporations Act (PCA), Kissoon argued that “since NICIL was not formed under the PCA, and by the Companies Act, there being no Ministerial order mandating its formation, we are of the view that, save for sections that apply to non-public corporations, the provisions of the PCS do not apply to NICIL. In that vein, it is important to note that the PCA came into force in or about 1988, prior to the incorporation of NICIL, and accordingly, it was open to the administration to incorporate NICIL as a public company, which was not done.”

In terms of the applicability of the Procurement Act, Kissoon said since NICIL is a body corporate and not a subdivision of the Government, Section 3 of the Procurement Act makes it clear that the Act does not apply to NICIL. Section 24(2) similarly does not apply to NICIL since NICIL is not using funds from the treasury.

“However, Section 24(1) appears to bring NICIL within the ambit of the Act since the Government of Guyana has the controlling interest in NICIL. The relationship between Section 3 and Section 24(1) of the Act seemingly conflict, and ultimately … the applicability of the Act to NICIL will depend on the interpretation of these sections by the Courts,” he wrote.

When in opposition, APNU and the AFC had charged that NICIL was being run by the former PPP/C government as a parallel treasury and charged that it was operating in violation of several laws.

Following the forensic audit, Brassington and his deputy Marcia Nadir-Sharma were last month sent on leave and files turned over to the police. Brassington has denied breaking any laws.

Brassington had also sought a legal opinion on a contentious December 2012 motion in the National Assembly in the name of AFC leader Khemraj Ramjattan that had resolved that no further expenditure be incurred by the NICIL or its subsidiary Atlantic Hotels Incorporated on the Marriott Hotel project without the authorisation and approval of the National Assembly.

The motion also sought to require NICIL to pay over to the Consolidated Fund “all revenues and proceeds from the sale of all State properties, except for those necessary administrative costs for maintaining and running its operations annually.”

Attorney Ronald Burch-Smith in his advice had said that barring the passage of a law, the National Assembly had no legal basis to direct NICIL and the motion approved by the opposition-controlled House in 2012 was not legally enforceable.

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.”