The Linden Commission of Inquiry (COI) has deemed the compensation sought by the National Industrial and Commercial Investments Limited (NICIL) for the destruction by fire of the Linmine Secretariat on July 18, 2012 as absurd and leading to a dead end.
“… It does not make sense, in my mind, to pursue a claim like this by the government against the government,’’ Senior Counsel K.D. Knight, one of the commissioners, stated yesterday in response to the over $200M being sought by NICIL.
The commission yesterday resumed its work for the first time since its adjournment in November last year. It has already taken detailed testimony from a variety of persons mainly in relation to the fatal shooting of three Linden protesters on July 18. This shooting triggered an apparent arson spate which saw the Linmine building and others being burnt to the ground.
Some of those who were injured and suffered losses in the July 18 and 19 Linden protest also gave evidence yesterday in an effort to receive compensation
Director of NICIL, Winston Brassington, took to the witness stand to give his evidence as it pertains to the damage suffered by his company. Brassington, who was represented by attorney Latchmie Rahamat, who represented the Guyana Police Force along with Peter Hugh, is seeking compensation for the losses NICIL suffered after the Linmine Secretariat was burnt down during the protest.
He stated that an estimate of the losses was done by Rodrigues Architects Limited and the damage was estimated at $204,070,000.
Before Brassington could have gotten further into his evidence Knight asked him “from the information you received, was any of this damage caused by an agent of the state?’’ Brassington then replied “not to my knowledge.”
Knight further asked if the building was insured to which Brassington replied “no” causing Knight to add that it was by choice that the building was not insured and as such the decision has been that should the Linmine property be damaged the cost of repair or replacement would be borne by Linmine. Brassington stated “yes” in response.
This caused Knight to suggest that the current situation before the commission is one where the government is seeking compensation from the government since NICIL is a state-owned company. This statement was accepted by Brassington but Knight went on to ask him “what do you have to gain as a result of this process.”
Brassington stated in response that they have suffered a loss as a result of the fire and even went on to state that the persons involved in the protest should bear the cost of the loss.
Knight also asked that after having suffered a loss who pays but Brassington said that has to be determined. Knight then asked him if he expects that determination to be made by the commission and Brassington said “based on your terms of references you can make recommendations.”
To further establish the point he was making, Knight said that based on the recommendations that the commission makes, the persons who turned up there are expecting something and they expect it from someone or from somewhere. So, he said, assume that you are successful in showing losses, from whom do you expect compensation?
Brassington’s answer was “from government or another arm of government…”
Knight then told him that the government has three arms so which arm did he expect that compensation from and he stated more than likely the central government.
Knight then asked that “if the commission is to say that the government is at fault, it is the government that would have to bear the cost so why are we embarking on an exercise that cannot possibly affect government policies?”
After the fact was established that it is the government that is seeking compensation from itself, Knight then turned his attention to Rahamat in an attempt to see whether she anticipated that there may be another entity that could be liable for the fire at Linmine. He asked Rahamat if that is possible and if so how could they obtain an order against that agency.
South Africa
In reply Rahamat said “claims were made in relation to NICIL, now I can appreciate government compensating government… but I do not believe that it may be an act in futility. In other jurisdictions such as South Africa, there is legislation that allows protesters and organizers to pay compensation for any (damage) that they caused.”
Before Rahamat could complete her sentence, Knight interjected to ask, what is the legal instrument that will make the legislation in South Africa applicable in Guyana? In answering the question, Rahamat told the commission “I do believe that an assessment of the entire situation unfolded must be made… I do believe certain recommendations can be made in relation to having such recommendations enacted in our country.”
Chairman of the COI and former Chief Justice of Jamaica, Lensley Wolfe then said “if we are to say `yes, the owners of this building ought to be compensated’ then the question arises who is responsible for that compensation and from what you (Rahamat and Brassington) have said that the government took the decision to be responsible to replace the building if anything happens… if you are going to say that, it is not enforceable, it is not enforceable. Because who is going to go against the government to say you must repair this place that belongs to you…”
Representing the people of Linden was attorney Basil Williams. Williams said that he agreed with the views expressed by the commission as it pertains to NICIL seeking compensation but noted that the COI terms of reference only contemplate injuries to citizens and not to the government. Williams further went on to say that that neither he nor Brassington owns NICIL but the government, so NICIL does not have to get money from the government when it already owns the assets of the government.
After listening to the point raised, Brassington responded, after he was allowed to speak, that in the same way a shareholder of a company is not the company the same way the shareholder of NICIL is not the company. He said “NICIL makes its own money and takes care of its own expenses and the staff of the secretariat is paid through NICIL. NICIL did not go to the Consolidated Fund for money. So if we have a loss, NICIL on its own will not be able to cover that loss and may need to appeal to the Consolidated Fund. In the absence of any ruling on your part that there is no loss…we will lose that separation.”
Following this, Justice Wolfe asked Brassington if he could make available a copy of the document with the agreement arrived at between NICIL and the government.
However, Brassington chose to provide the answers the document contained by telling the commission that “NICIL being a company is governed by the Company Act and that sets out the principles under which NICIL will generally operate. NICIL does not receive money from the Consolidated Fund. NICIL will periodically pay dividends to the government…”
At this point Williams began to argue about the condition of the Linmine building, which he said was “firewood” in addition to being classified as one of the oldest buildings in the world. Based on this argument he said “I don’t know what he (Brassington) is saying to you. It is an old beat up looking building… so I don’t understand what he saying about this $204 million. NICIL don’t have to spend money to do anything it merely holds separate companies.”
After Williams raised the point about the condition of Linmine, Knight said that he would like to know if Linmine was indeed in the condition Williams said it was. In response, Brassington stated that the building has been there for a long time.
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Six Lindeners
In addition to Brassington, six Lindeners also testified before the commission seeking compensation for loss of wages, injuries and other expenses they incurred after they were shot with pellets. The six Lindeners were Sheila Austin, Alicia Barker, Rueben Bowen, Jahmeke Brummel, Janice Burgan and Ulric Cameron who were all shot during the July 18 protest.
Austin is a shop owner who was shot in three places with pellets and as a result she is seeking compensation in the sum of $77,000, $17,000 for laundry and the rest as income lost from her shop. She stated that she still experiences pain as a result of her injury and is uncertain as to whether the pellet in her abdomen has been removed.
Barker said she was not part of the protest but went in search of her 15-year-old son when she was shot in both legs. Because of her injuries she stated that she had to seek medical attention at St Joseph Mercy Hospital in Georgetown. She said she travelled from Linden to Georgetown for ten days and that cost her $7,000 per trip because she had to travel by taxis. She is seeking compensation for her losses in this regard.
Protester Janice Burgan was also shot when protesters were fired at. Burgan who is a seamstress was shot in her back and as such she could not work and earn her monthly income of $15,000 to $20,000 per week.
Another protester, Cameron also gave evidence to the commission. He said he was shot in his chest and below the armpit and was hospitalised. The man said that he has four children and a wife to support but because of his injuries he was unable to work for three months thereby depending on the assistance of his mom. He said before he was shot he was employed at a tyre shop where he normally earned $15,000 to $20,000 per week.
Cameron also said that he still has foreign objects in his body because where they are located it is very difficult to remove them by surgery. He also agreed with Williams that a bullet was removed from him after he went to the hospital.
Meanwhile, Brummel is seeking compensation for his lost earnings and a damaged jersey and pants. He estimated his loss at somewhere around $90,000 while Bowen is seeking compensation in the sum of over $600,000.
Bowen said that prior to the protest, which he was a part of, he used to sell pastries, bread, salara, fudge among other baked goods in the interior. He said he would sell one pastry or bread for $500 and would make two trips per week to the interior. Each trip would give him about $75,000 to $80,000. His profit from these trips would amount to somewhere near $40,000.
After hearing the prices of the products Bowen sells, Justice Wolfe asked him if he could get bread for $1,500 and Bowen said “you can get it.”
During the protest Bowen said he was shot in the knees and as a result he cannot walk without the assistance of a pair of crutches. The injuries to his knees have caused him to stop plying his trade in the interior.
Bowen was then asked by Justice Wolfe how much money he made in Christmas 2012 but he replied “or you mean how much money people give me to maintain meself.” He said that since he cannot work he now depends on friends and family to maintain him.
After listening to Bowen explaining his situation, the commission then asked Williams what he thought about the witness’s injuries. Williams stated that he believes that he needs to see an orthopaedic surgeon to assess his condition.
Justice Wolfe then told Bowen that he should get a report from a doctor, preferably an orthopaedic surgeon, so they can have a fair knowledge of his condition. Bowen was then asked to return tomorrow.
The COI will continue today with more persons giving their explanations as to why they should be compensated.
