The High Court on Tuesday ruled that the Central Housing and Planning Authority (CH&PA) had acted in breach of the rules of natural justice and in breach of the fundamental right against compulsory acquisition of property when it repossessed the Tuschen home of Linda Persaud.
Persaud, a mother of three, whose house at Tuschen, East Bank Essequibo, was repossessed by the CH&PA after it claimed she breached the terms under which it was built for her is the second applicant to be granted a favourable judgement. Last month, Gaytrie Singh of Parfait Harmonie was granted a similar judgement.
The two women along with others who had been allocated homes under the previous administration decided to move to the court after they were evicted from their homes last December for failure to occupy the homes provided.
Their attorney Anil Nandlall in a statement to the press noted that after all the affidavits were filed and after detailed written submissions were presented by the attorneys representing both sides, Chief Justice (ag) Yonette Cummings-Edwards ruled in favour of Persaud and granted several orders.
According to order issued, the Chief Justice, declared that taking of possession of and the prevention of the Applicant from entering and occupying her property at Lot numbered 3608 Block 8, Plantation Tuschen, on the 3rd day of December, 2015, was a “violation of the Applicant’s fundamental right and freedom as is guaranteed to her by Article 142 of the Constitution of Guyana;
It was also declared that the summary forfeiture or expropriation or compulsory acquisition or taking of possession of any land held by Transport or Certificate of Title on the ground that the Transportee or the Title holder is in violation of or has breached any term or condition contained in any Agreement of Sale in respect of the said land or any Transport or Certificate of Title in relation to the said land, “is unlawful, contrary to and in breach of Article 142 of the Constitution of Guyana, in breach of natural justice, arbitrary, oppressive, unreasonable, capricious, null, void and of no effect”.
He further noted that an Order was also granted prohibiting servants and/or agents of the CH&PA, the Ministry of Housing or any other Officer of the State from “entering upon, remaining, occupying or in any manner whatsoever interfering with the Applicant’s quiet and peaceful possession, occupation and enjoyment at her property…”
The Judge also ordered the State to pay to Singh $200,000 in damages and $75,000 in costs after ruling that “even assuming that CH&PA had the power to retake the Applicant’s property for breach of a term of the transport i.e. to build within a particular time, in this case, CH&PA was estopped from doing so by their conduct. CH&PA had, after the alleged breach entered into a contract with the Applicant to build a core home for her and in any event, no hearing was given to the Applicant.”
Also decided was that the actions of the CH&PA, acting under the terms of the contract for the building of the core home when it attempted to retake the property was arbitrary, in breach of the rule of natural justice and in breach of the applicant’s fundamental right against compulsory acquisition of property.
Persaud in her court documents had said that by a written Memorandum of Agreement of Sale, dated April 19, 2011, she purchased from the Government of Guyana/ CH&PA Lot 3608 Tuschen Block 8, Lots 2625-4009, at the agreed purchase price of $92,000.
She swore that she fully paid the purchase price upon the signing of the said Memorandum of Agreement of Sale and was issued with a Transport in relation to the said lot of land. By a contract, titled “Contract for the Participation in Core House Pilot in Existing Schemes,” dated March 28, 2014, she said that she purchased from the Government of Guyana/ CH&PA a concrete and wooden building. Under the Agreement, she said that she was required to pay and did pay the sum of $100,000 “equity” towards the construction of the core house. The Agreement, she averred, contained a number of terms and/or conditions, including the following: “Upon failure if the beneficiary(ies) to occupy the said property within one month of its delivery, the beneficiary(ies) shall be bound to give up possession of the land and building to the Authority and to re-convey Title to the Central Housing and Planning Authority.”
Persaud noted that that Agreement post-dated her Transport by nearly two years and the terms and conditions of the Agreement were not and were never made conditions of her Transport.
She further said that the house was completed during the month of August, 2014, and she moved in and commenced occupation of the same.
In excess
Persaud said that she also spent in excess of $1M to fence and build up and landscape the land and build cupboards, erecting a wall in the house and tiling the washroom floors of the house. She said that at all material times, she has been in occupation of the property along with her children. However, Persaud stated that on November 18, 2015, she received a letter from Hannifah Jordan, Attorney-at-Law/ Corporate Secretary of the CH&PA, accusing her of not occupying the building within a month after receipt of the keys and of living elsewhere.
The letter also advised that she was in breach of her obligation to occupy the property within the stipulated period and as a result the CH&PA would be taking steps to rescind the Agreement. As a result, she was asked to seek a refund of monies paid for the land and equity contribution by submitting her original Housing Allocation Letter, Agreement of Sale for land/building, Certificate of Title to Land, and receipts showing payment no later than December 18, 2015. She was also directed to sign an Originating Summons to cancel the Certificate of Title to Land before the High Court to ensure that the property is transferred back to the government.
Persaud noted that the letter said if she failed to act, the CH&PA would have no option but to approach the High Court for an Order seeking redress to have the Certificate of Title to land cancelled.
However, Persaud said she never received a Certificate of Title though at all times had been occupying the premises. She added that prior to the receipt of the letter from the agency, she was never afforded a hearing.
Further, she said that on December 3, 2015, while she was at her mother’s Tuschen premises, because she took ill and she was required to nurse and care of her, her neighbour called and told her that persons were in her home. She said when she travelled to her property, CH&PA agents introduced themselves and informed her that the agency had “repossessed” her property. They also erected a sign on the property, which reads “this is the property of Central Housing and Planning Authority,” she said.
