Businessman Bernard Yhun who runs Celina Atlantic Resort has moved to the High Court to stay in business after his lease was cancelled by the Guyana Lands and Survey Commission, which asked him to clear the Kitty Seawall site.
Late last month, the Commission wrote Yhun, who owes over $3M in rent, saying that he was unlawfully occupying the land and as a result would have to remove all buildings and erections within three months.
But Yhun has challenged the Commission’s authority to remove him from the land and has been granted temporary orders from Justice Diana Insanally. Yhun in an affidavit in support of his motion said that President Bharrat Jagdeo granted him a lease for 50 years, commencing July 1, 2003 for tourism purposes.
The judge granted an Order or Rule Nisi of Certiorari directed to the Commissioner of Lands and Surveys Doorga Persaud, a public officer, and the Guyana Lands and Surveys Commission, a body corporate and a public authority, quashing a decision of the said Commissioner and Commission, contained in a letter dated the 20th day of December, 2010, cancelling State Land Lease No. A 15377, issued to Yhun. Orders were also granted restraining and prohibiting the Commissioner and Commission, their servants and/or agents from doing any thing or act or from taking any steps whatsoever to remove Yhun’s buildings and erections, and for the Commission to show cause why it should not be compelled to accept $3,375,000 from Yhun, being arrears for rent due.
Yhun challenged the Commission’s cancellation order on the ground that it is “arbitrary, capricious, unreasonable, whimsical, influenced by extraneous and irrelevant considerations, ultra vires, in breach of and contrary to the rules of natural justice, in breach of and contrary to his legitimate expectation, in breach of and contrary to the State Lands Act, Chapter 62:01, unconstitutional, unlawful null, void and of no effect.”
Yhun, in his supporting affidavit, spoke of how he cleaned and cleared the land, building it up with over nine hundred (900) truck loads of mud, sand and stone. He said that he also built and erected barriers to prevent flooding and erosion of the soil and installed suitable drainage facilities. “The Celina Atlantic Resort was opened to the public sometime in December, 2003, and to date, it continues to serve the Guyanese public and tourists to our country as the first and only resort of its kind,” he said.
He added that he has expended in excess of one hundred million dollars in land filling, erection of buildings, equipping the resort with furniture, appliances and fixtures, landscaping and general development over the years. Yhun said that the resort currently employs sixteen (16) persons, all of whom depend upon the income received from the business to support and maintain themselves and their families. “I also depend upon the income received from the resort as my only source of income to support and maintain myself and my family,” he stated.
Yhun said that Sea Defence Board, Ministry of Public Works and Communications, granted a no-objection for him to pave a stretch of the sea defence embankment outside the Celina Atlantic Resort measuring 160 feet in length and 20 feet in width to be used as parking facilities in 2006. But shortly after that the Guyana Police Force issued a prohibition on vehicular parking in front of and in close proximity to the resort and commenced a campaign of removing and towing away vehicles which were so parked. This, he said, resulted in heavy losses and he ended up in financial trouble.
Since then, Yhun has failed to pay his rent to the Commission, but pointed out that this was due to them initially misplacing his records and later his own problems in raising the money. During that period, the Commission institiuted legal proceedings against him for rent, but agreed to settle out of court.
He was served subsequently notices to pay up the outstanding sum, but Yhun said that when he went to make the payments in December last year officers at the Commission refused his money. He said that he later raised the issue with Cabinet Secretary Dr. Roger Luncheon at a meeting and a letter was sent to the Commission from Luncheon.
The letter said that Yhun was no longer interested in the ongoing negotiations in respect of the arrears of rent and that he was willing to make full and complete payment for all outstanding lease fees with immediate effect, and that the Office of the President welcomed the development in the matter.
But the Commission then wrote him to say that the lease was cancelled; a subsequent letter said that he was unlawfully occupying the land and was required to remove all buildings and erections on the land before handing it back to the within three (3) months of the date of the letter (December 22, 2010). In subsequent correspondence, Yhun said while the Commission indicated that it was willing to consider his offer to clear a portion of the arrears of rent, it would not reverse the cancellation of the lease and repossession of the land.
Yhun’s application was made by his attorneys Jainarayan Singh and Manoj Narayan and the matter comes up again for hearing later this month.
