A rice farmer won judgement in his favour last Friday when former acting Chief Justice Ian Chang ruled that he be restored his land since the Mahaica, Mahaicony, Abary-Agricultural Development Authority (MMA-ADA) had no authority to cancel his lease.
“In the instant case, it was not open to the MMA-ADA to determine the legal validity or invalidity of the grant of the lease and then to purport to cancel it on the basis of its own legal finding,” Justice Chang declared.
In the affidavit supporting his motion, farmer Phillip Johnson said that on July 15, 2014, upon an invitation made by agents of the MMA-ADA, he applied for a lease of state land situated at Seafield Village, West Coast Berbice.
After paying the requisite application and other fees, Johnson said in his affidavit, in November of the said year, he was issued the lease for agricultural purposes under Section 3 (b) of the State Lands Act, Chapter 62:01 and in accordance with the MMA-ADA Act No. 27 of 1977.
He said he expended high sums in preparing and maintaining the land for rice cultivation and was up-to-date with rent payments and other charges to 2015.
The farmer said that he then saw a notice from the MMA-ADA in the September 26, 2015 edition of the Kaieteur News regarding the cancellation of state land leases in Seafield, West Coast Berbice.
He said the notice spoke of the leases having been issued in contravention to an Order of Court dated October 15, 2014, in Action No. 2014-HC-DEM-CIV-M-114, by virtue of which the leases had been cancelled with immediate effect.
He deposed that the lease issued to him, was one of those mentioned in the notice.
The farmer said that he was unaware of Action No. 2014 – HC – DEM – CIV – M – 114, was not a party to those proceedings, was never heard therein, and was never served with any document in relation thereto, and only became aware of those proceedings through the notice.
He argued that the MMA-ADA never afforded him a hearing, nor did he receive any notice before his lease was purportedly cancelled. He advanced further that he never violated any term or condition of his lease, neither was he informed by the MMA-ADA of any allegation that he was in any such violation.
He stated in his affidavit that many persons were aware of the purported cancellation and were threatening to eject him from the land and reap the crop of rice he had planted.
Johnson applied to the court for, among others things, an order or rule nisi of certiorari quashing the MMA-ADA’s decision to cancel his lease on the ground that the said decision was contrary to the rules of natural justice and null and void.
Johnson said that in its affidavit in answer, the MMA-ADA, through its general manager Aubrey Charles, advanced that the leases, including his, were issued in breach of an order or rule nisi issued by Justice Nareshwar Harnanan against the MMA-ADA in October, 2014, and that the action taken by the MMA-ADA to cancel the leases issued by them was intended to correct the illegal act of granting the leases in breach of the said order or rule nisi.
According to Johnson’s affidavit, Charles said that MMA-ADA had been advised by its counsel that it owed no duty to him since the MMA-ADA had acted in breach of the law in issuing the leases which were invalid ab initio.
In his affidavit in reply, Johnson advanced that the MMA-ADA could not unlawfully revoke the lease granted to him to correct some alleged wrong it might have committed.
Does not appear to be invalid
The court considered whether it was open to the MMA-ADA to “cancel” the grant of the lease on the ground that it was invalid for reason of breach of orders made by Justice Harnanan, as well as whether it was invalid in the first place.
The judgement referenced the case of Smith V Elloe R.P.C (1956) AC 736, where it was stated that “an order, even if not made in good faith, is still an act capable of legal consequences. It bears no mark of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity or to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.”
The court reasoned further from the said case that “it is a settled legal proposition that, even if an order is void, it requires to be declared by a competent forum and it is not permissible for any person to ignore the same merely because, in his opinion, the order is void.”
Justice Chang further asserted from the case, “thus, from the above, it emerges that, even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. It has to approach the court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the same- on various grounds, including the standing of the petitioner or on the ground of delay or on the doctrine of waiver or any other legal reason. The order may be void for one purpose or for one person; it may not be so far another purpose or another person. ”
He said that “in the instant case, it was not open to the MMA-ADA to determine the legal validity or invalidity of the grant of the lease and then to purport to cancel it on the basis of its own legal finding.”
“The MMA-ADA could not simply determine the legal validity or invalidity of the grant and then, taking its determination of invalidity as final, proceed to “cancel” the lease on the basis of its own finding,” the judge added.
Justice Chang said the court did not view the grant of the lease as a flagrant invalidity. “Indeed, it does not appear to be invalid at all on the basis of any contravention of the orders made by Justice Harnanan,” he noted.
He said that while the orders of certiorari and prohibition were issued against the MMA-ADA by Justice Harnanan, it was former President Donald Ramotar in his presidential capacity who granted the lease to the applicant under section 3 (1) (b) of the State Lands Act, Chapter 62:01.
According to the judge, only the President can make an absolute or provisional grant of state lands (section 3 (1) (a)) or a lease of state lands (section 3(1) (b). The Commissioner of Lands can issue licence or permission to occupy only if the President so authorises him (section 3 (1) (c) and (d)), the judge said.
Justice Chang noted that section 3(1) provides, “subject to this Act or the Forests Act, the President may – (a) “make absolute or provisional grants of any State lands of Guyana subject to any conditions (if any) as he thinks fit or as provided by the regulations for the time being in force;”
(b) “grant leases of any State lands of Guyana for such terms and subject to such conditions (if any) as he thinks fit or as are provided by those regulations made thereunder;”
(c) “subject to paragraphs (e) and (f), authorized the Commissioner to issue licences to occupy any State lands for any of the following purposes, namely agriculture or taking or obtaining any substance or thing found in those lands, or any other purpose beneficial to the occupier;”
(d) “subject to paragraphs (e) and (f), authorize the Commissioner to give permission to occupy any of those lands for any of the purposes, or to take or obtain any substance or thing found therein without giving any exclusive right to occupy any specified part thereof.”
According to Justice Chang, “it can readily be seen that only the President, and not the Commissioner or the MMA-ADA, … is authorized to issue a lease of State lands.”
He reasoned further that the orders of certiorari and prohibition made by Justice Harnanan were issued to the MMA-ADA and not the President, who made the grant. “Indeed, no prerogative writ can be issued against the President. It is therefore difficult to see how the grant of the lease by the President under section 3 (1) (b) of the State Lands Act could have been in breach or in contravention of any order a rule nisi of certiorari or of prohibition when those orders or rules could not bind the President (against whom it could not have been issued in any event),” the judge asserted.
Justice Chang further went on to say that “in any event, the MMA-ADA had no authority to cancel a lease granted by the President on the ground that it was granted unlawfully. If the MMA-ADA was aggrieved by the Presidential grant, the MMA-ADA or any aggrieved person could have taken proceedings in court, not against the President but against the Attorney-General, challenging the legality of the grant made by him. Such a challenge was never made in court – let alone upheld by the court, and therefore it was not open to the MMA-ADA or any other person to make a determination that the Presidential grant of the lease was invalid and then proceed to cancel that grant. The grant did not “bear the mark of invalidity on its forehead.””
He went on to add that since the purported cancellation of the lease was detrimental to the applicant’s financial and pecuniary interests, even if the MMA-ADA had the legal authority to cancel the lease, the applicant ought to have been afforded an opportunity of being heard before any decision was made by MMA-ADA to do so.
Justice Chang said that the court, after examining the orders or rule made by Justice Harnanan found that the orders made were not at all in the nature of provisional orders quashing the decision of the MMA-ADA to re-classify State lands or prohibiting the MMA-ADA from re-classifying State lands unless cause was shown. Rather, he said, those Orders called upon the MMA-ADA to show cause why the decision to reclassify should not BE quashed or why the MMA-ADA should not be prohibited from re-classifying the lands.
For those reasons, Justice Chang made absolute the Orders or rules nisi of certiorari and prohibition granted against the MMA-ADA.
Johnson was represented by attorney Anil Nandlall, while attorney Beulah Williams appeared on behalf of the Attorney General, who was listed as the respondent.
