In its recent affirmation of a $30 million award to Deorani Singh for breach of constitutional rights over the state’s compulsory acquisition of the former Sijan Plaza on Camp Street, Georgetown, the Caribbean Court of Justice (CCJ) chided the local judiciary for delays.
The Trinidad-based court of last resort for Guyana observed, among other things, that there was significant delay in the case and cautioned the judiciary to do its utmost to guard against the fostering of an attitude that there is insufficient concern and commitment to avoiding excessive delay.
The regional court found that the trial judge ignored Singh’s acceptance of the acquisition of the property and payment of compensation, and failed to take account of the impact of the delay.
The court also disagreed with Singh’s contention that a 14-year delay in challenging the acquisition did not prejudice the respondents because, even when parties do not take the point, lengthy delays also infect a country’s judicial system.
The court was clear in pointing out that this case had been plagued by delays at every level.
Singh’s claim was that the Attorney General of Guyana and the National Industrial and Commercial Investments Limited (NICIL) owed her compensation for the property which—later occupied by the Guyana Pharmaceutical Corporation (GPC) and Citizens Bank—had been owned by her husband, Mohan Singh.
She sought, among other things, a declaration that the purported acquisition of the property was “unconstitutional, ultra vires, null, void and of no effect and a declaration that the Transport in the name of the deceased remained valid and effective.”
The dispute brewed after the then government compulsorily acquired the property almost 35 years ago.
After her husband’s death in 1980, Singh, as administratrix of the estate, leased the property to GPC, a state entity, for five years. During the period of the lease, the Attorney General compulsorily acquired the property and filed a motion in the High Court to ascertain the amount of compensation to be paid.
The motion was heard in January 1986 by Justice Persaud, who ordered the publication of the notice of acquisition, the assessment of the value of the property and adjourned the matter to March of that said year.
Approximately one year after the recorded adjournment date, in March 1987, Justice Pompey, in the same ex parte motion, ordered and declared the property compulsorily acquired and fixed compensation in the amount of $578,000.00 less the sum of $496,850.13, which represented the sum already paid and received by the personal representatives of the estate.
There was no attempt made to appeal or set aside Justice Pompey’s order.
In 1994, the property was leased to the bank by GPC and possession was taken by the bank as lessee. In 2003, the property was transferred to NICIL, a state-owned entity.
The court noted that there had been no attempt to appeal or set aside the order.
In 1997, 14 years after the acquisition order had been published, the estate brought a motion in the High Court contending the contravention of its fundamental rights and freedoms.
The High Court heard the matter in 2002 and judgment was delivered in 2010. Justice B.S. Roy found that the claimant’s constitutional right to property had been violated and ordered a compensation hearing and in the event of non-payment, that the property should remain in the estate of the deceased.
The Attorney General appealed the 2010 decision and in 2017 the Guyana Court of Appeal rendered an oral judgment in which it agreed with the High Court that the estate’s constitutional rights had been breached and awarded $30 million in damages. However, the written judgment, delivered almost a year later, limited the finding of breach and the award of damages solely to the failure of the state to notify the estate of the sitting of the High Court to determine compensation.
The Court of Appeal did, however, point out that Justice Roy could not order a fresh assessment of compensation because he could not sit on an appeal over the order of Justice Pompey.
Fundamental issues
Before deciding on the merits of the appeal, the CCJ highlighted two fundamental issues that it said were ignored by the lower courts—lack of jurisdiction and the collateral attack on the earlier High Court decision.
The Court held that Justice Pompey had no jurisdiction to nullify Justice Persaud’s order, while noting that it was an abuse of process for the estate to collaterally attack the order of the earlier judge instead of appealing or seeking to have it set aside.
Citing case law, the CCJ noted the order was enforceable unless appealed or set aside.
The court was instructive as to why collateral attacks on court orders must be rejected.
Noting that the appellant’s entire claim had been predicated on the complaint that she was deprived of the opportunity of being heard at the compensation hearing, the CCJ said that neither Justice Roy nor the Court of Appeal sought to interrogate that complaint any further.
The court asserted that Justice Roy should have been concerned with and considered the evidence before Justice Pompey which made him proceed in the absence of the lawyer for the estate.
More significantly, the CCJ said the Court of Appeal should have insisted on the production of the record before reviewing Justice Pompey’s proceedings instead of acting on the testimony of a partisan as to the alleged defects in the proceedings of a court of record.
The court declared that this advertence would have led to the realization that there was no record of those proceedings before the Court of Appeal since there was no appeal before it from the order of Justice Pompey, as there had been none before Justice Roy, and resulted in the striking out of the appellant’s entire claim.
In disposing of the appeal, the Court found that Justice Roy acted contrary to principle by failing to consider the evidence of the appellant’s acceptance of the acquisition or the impact of the delay.
The court found that the trial judge’s finding that there was no evidence presented of the estate’s acquiescence in the acquisition ignored the oral and documentary evidence on record.
The court reminded that the appellant did accept that the property had been compulsorily acquired and that it was her attorney at the time who prompted the Attorney General to have the court assess compensation, attended hearings in relation to the assessment and subsequently collected payments to account of that compensation.
This, the CCJ held was conduct which led the contravener to believe that the alleged victim did not wish to complain about the contravention. As a result, the Court should have concluded that the alleged victim acquiesced in the contravention and was not entitled to redress.
Addressing Justice Roy’s decision to exercise discretion in favour of permitting Singh’s claim for relief to proceed, the Court highlighted the exception to the general rule that an appellate court will not interfere with the exercise of discretion of a trial court.
The CCJ pointed out that appellate courts may set aside the exercise of discretion by the lower court and exercise the discretion for itself if the lower court’s exercise of discretion was based on a wrong appreciation of the evidence.
In the instant matter, the court noted that Justice Roy’s failure to consider the evidence of the appellant’s acceptance of the acquisition meant that he misled himself as to the implications and consequence and gave no consideration to it when he considered delay.
Beyond harm
The Court also disagreed with the submission of the appellant that the delay did not prejudice the respondents so the Court need not consider it.
The CCJ held that delay goes beyond the harm to the parties and infects a country’s judicial system.
The court noted that “in this case, delay was a contributing factor at all levels.”
Referencing the timeline of hearings in the case the court noted that there had been a two-year delay in entering Justice Persaud’s order—then there was also an unexplained 14-year delay between the publication of the acquisition order and the commencement of proceedings which also resulted in the accrual of third party rights.
During this time, both the State and GPC considered themselves lawful and genuine owners of the property. There was considerable work done on the property and two transfers of ownership. The Court found that it would be a great injustice to permit the appellant to seek an order which would pronounce that the property was never acquired or vested in the State.
The Court also considered the significant delay caused as a result of the judicial process. The constitutional motion was filed in 1997, heard in 2002 and judgment delivered in 2010 due to a missing file.
The appeal was filed in 2010, oral judgment was given seven years later, on February 22nd, 2017, and the written judgment was not received by the parties or the CCJ until a day before the hearing on February 7th, 2018.
The Court expressed disappointment with the process in the disposal of the claim and urged the judiciary to do its utmost to guard against the fostering of an attitude that there is insufficient concern and commitment to avoiding excessive delay.
In pointing out the consequences of the appellant’s delay, the CCJ noted that lengthy delays not only give a defendant the right to assert a defence of the limitation of action, but extinguishes the title of the former owner under section 13 of the Title to Land (Prescription and Limitation) Act Cap 62:02.
The Court held that a delay which results in the creation of a new title in a person in possession as owner is far too great to be overlooked and was another reason why the High Court should have dismissed this claim soon after it was filed in 1997.
The appeal was dismissed. The Court upheld the award of GY$30 million as it was not appealed by the State and provisionally awarded basic costs and disbursements to the Respondents, with permission to apply within 21 days to vary the provisional order.
While the CCJ upheld the multimillion dollar award, it made it clear that Singh’s appeal of the compulsory acquisition was being dismissed.
The appeal before the CCJ was heard by Sir Dennis Byron, along with Justices Jacob Wit, David Hayton, Maureen Rajnauth-Lee and Denys Barrow.
The court’s ruling, which was delivered last Tuesday, was read by Justice Barrow.
Representing the Attorney General were Solicitor General Kim Kyte-Thomas, and attorneys Oneka Archer-Caulder and Judy Stuart-Adonis.
NICIL was represented by attorney Timothy Jonas.
Meanwhile, the appellant was represented by Sir Fenton Ramsahoye S.C., in association with attorneys Roopnarine Satram, Chandrapratesh Satram and Visal Satram.
