The Georgetown Mayor and City Council (M&CC) was yesterday denied its application to have Justice Gino Persaud set aside a ruling he had previously made to return a community playground to Bel Air Park residents for recreational purposes and no other.
As a result, Justice Persaud’s ruling of January 18th, 2018 returning the playground, which the M&CC was attempting to convert to residential house lots for the Mayor, Town Clerk, City Engineer and Medical Officer of Health, remains in force.
The judge yesterday ruled that the procedure employed by the Council to have him set aside his judgment was misconceived and resultantly had to be denied.
The M&CC had applied to Justice Persaud to have him set aside his ruling against it.
Attorney Devindra Kissoon, a resident of Bel Air Park and by whom the original action had been brought had, however, argued on behalf of the plaintiffs that the ruling could only have been set aside if it were a default judgment.
A default judgment, he argued, could only be rendered via the filing of a statement of claim. Since their application had been made by way of fixed date application, however, Kissoon said that the ruling could not be set aside.
The court found favour with the plaintiff’s argument, noting that the default judgment procedure was not applicable.
Attorney for the M&CC Roger Yearwood was a no-show at yesterday’s hearing.
In his previous ruling, Justice Persaud had declared, among other things, that the intended use of the community reserve property by the Council for the building of residential homes was in breach of the servitude designating its use for community purposes only.
As a result, the judge had also granted an injunction restraining the Town Clerk and the M&CC by themselves, their representatives, officers and or agents collectively and individually from using, leasing, transferring, assigning, conveying, licensing, selling, encumbering, dealing or permitting the use of the property for the purpose of building residential homes or otherwise, other than for community purposes, or doing any act which would breach the Servitude contained in transport No. 1580.
A servitude entitles the person who enjoys it to prohibit something or to do something for his own benefit, upon another’s land. Its registration in transport constitutes notice to all the world of the existence of a real right.
The Council began its attempts to convert the space in 2016.
Kissoon, in his application, had argued that the M&CC, the respondent, jointly and severally, was bound by the servitude attached to the Block R.3 and Lot C.l, part of Block R.4, Bel Air Park land.
He noted that it was enforceable and binding upon the respondents as a real servitude under Roman-Dutch law, which applies to real servitudes in Guyana pursuant to section 3(d) (ii) of the Civil Law of Guyana Act Cap. 6:01.
Justice Persaud had declared that any Central Housing and Planning Authority permission or approval issued for the use of the property as residential housing or otherwise, other than for community purposes, was unlawful.
By letter of May 16th, 2017 to Town Clerk Royston King, local developer Terrence Taljit applied for permission to develop a portion of the Community Reserve Property for the purpose of constructing modern homes.
This was indicated in the minutes of the M&CC’s Statutory Meeting for August 14th, 2017, which was used by Kissoon as exhibits and seen by the newspaper. Those minutes also noted King approaching the Minister of Housing, as the administration was desirous of building a town house for the Mayor, Town Clerk and City Engineer and Medical Officer of Health.
According to Kissoon’s application, the servitude was created on October 6th, 1958 in Transport No. 1580 contained on Plan No. 6015, dated March 8th, 1952, which states that “no trade or industry whatsoever shall be carried on the said block and lot which are reserved for community purposes only.”
The applicant has always maintained that the servitude remained in full effect.
In his ruling, Justice Persaud had also ordered the Town Clerk to pay Kissoon costs in the sum of $50,000.
