Finding that Diamond Quarry had been given an “unequivocal assurance” from the Guyana Geology and Mines Commission (GGMC) that its quarry licence application over 848 acres had been favourably considered, and Notice of the Intention to Grant would be published, the Caribbean Court of Justice (CCJ) in a unanimous judgment, on Wednesday ruled that licence over what was deemed disputed lands, belongs to Diamond Quarry Inc.
In fact, the Trinidad-based court of last resort for Guyana said it was clear from documentary evidence provided by GGMC, that Baracara Quarries Inc., (the second Respondent) in the action, had applied for 1200 acres in the said Monkey Jump, Essequibo location as Diamond Quarry; but that this was to the north of the 848 acres applied for by the latter.
The Court resultantly held that the 848 acres of land for which Diamond Quarry had applied to conduct quarrying operations had not been the subject of an application for a quarry licence by Baracara Quarries.
On the issue of subdivision, the Court concluded that even though this was an issue which would have benefitted from cross-examination, there was enough in the documents and surrounding circumstances to reach the determination that, on a balance of probability, the Commission had made the decision to subdivide, and that Diamond Quarry was always displeased with that decision.
Justice Winston Anderson who read the ruling said that Court held that where a public body gave an unambiguous assurance to a claimant that the claimant would enjoy the substance of an existing policy, “it would be unfair to the claimant to allow the public body to change or abolish the policy unless some overriding public interest was shown to justify the change.”
The judge said that in the instant case, the Judge said that Diamond Quarry (the first Respondent), had received the “unequivocal assurance” from the GGMC that its application had been favourably considered and that the Notice of Intention to Grant the licence would be published.
That Notice, the Court found, was in fact published, and that there was no objection to the grant of the licence by anyone, and further that no claims of public interest had been proffered to justify frustrating Diamond Quarry’s expectation that it would be granted the licence.
The Court said that a finding of a substantive legitimate expectation did not always warrant the grant of mandamus to give effect to that expectation; but noted that in cases where there was only one lawful outcome, a mandatory order could be given to require that result.
Justice Anderson said the Court considered that the course of conduct between the parties, and the written assurance given by the Commission, represented a “clear and unambiguous promise” from which the Commission could only resile for reason of some overriding public interest.
The CCJ held that “No such reason was presented,” in the case, and that the only lawful outcome therefore, was to grant the licence to Diamond Quarry.
Accordingly, the Court dismissed the appeal filed by the Commission and upheld the first Respondent’s cross-appeal and issued consequential orders: affirming the orders of the High Court, reaffirming all costs orders made in the courts below; and ordered the GGMC to pay to Diamond Quarry, the costs of the appeal.
Apart from Justice Anderson, the appeal was heard by President of the Court, Justice Adrian Saunders; along with Justices Jacob Wit, Maureen Rajnauth-Lee and Andrew Burgess.
Diamond Quarry was represented by Senior Counsel Edward Luckhoo, Timothy Jonas SC, and Eleanor Luckhoo
The GGMC was represented by Senior Counsel Ralph Ramkarran and Kamal Ramkarran.
BACKGROUND
On March 28th, 2014, Diamond Quarry had applied for a quarry licence pursuant to Section 89 of the Mining Act, in respect of 848 acres of land at Monkey Jump in the interior.
According to court documents, prior to the application, the first respondent had done all the necessary research to satisfy itself that the land applied for was not legally held or applied for by anyone else.
Four months after, the Commission surveyed the area and later that same year—on September 15th, issued a Cease Work Order against Baracara Quarries in respect of its occupation of a portion of Monkey Jump for which Diamond Quarry had applied; following which the Land Administration Manager of the Commission informed the first Respondent that its application would be processed as soon as statutory documentation was submitted and verified.
The very next day, the Commission published in the Official Gazette a Notice of Intention to grant a quarry licence to Diamond Quarry.
The Notice required that any person claiming any right or interest in the area to be granted, lodge with the Commission a petition objecting to the grant of the licence within 21 days after publication.
However, no one lodged an objection within the time stipulated, or at all; following which the Commission communicated to Diamond Quarry that it had ‘favourably considered’ its application.
According to court documents, in early February of 2015, at a meeting convened by the Commission, the GGMC would then inform that many years earlier, Baracara Quarries had applied for the same land as applied by Diamond Quarry.
The report of the meeting, compiled by the Commission’s Land Administration Manager, represented that the Commission had accepted two quarry licence applications for the same land and that as a result, the land would be subdivided between both Diamond and Baracara Quarries.
This decision led to Diamond Quarry filing an action in the High Court, challenging the Commission’s decision to subdivide the land as being “grossly unfair, discriminatory, and based on mala fides and favouritism.”
Baracara was not a party to the High Court proceedings, but the Commission submitted an affidavit in answer sworn by its Land Administration Manager alleging that a portion of the area for which Diamond Quarry had applied, had been occupied and quarried by Baracara for several decades.
Then acting Chief Justice Ian Chang, on 12 March 2015, granted an order of certiorari directing the Commissioner to quash the decision to subdivide the land for which the first respondent had applied; An order of mandamus directing the Commissioner to grant the first respondent a quarry licence over the said land; and an order of prohibition preventing the Commission from granting a quarry licence or any other licence to any other person or corporate entity in respect of the said land.
The GGMC appealed to the Court of Appeal and Baracara applied for and was granted leave to intervene; arguing that it had occupied the land applied for by Diamond, for over 50 years and that the land was home to 12 of its employees; and that it had undertaken substantial infrastructural work thereon.
Baracara also deposed that in 2006 it made a Monkey Jump Licence application but that the publication was in error, in that the coordinates gazetted by the Commission were different from that contained in its Monkey Jump Licence application.
The Guyana Court of Appeal dismissed the appeal and upheld the decision and orders of the Chief Justice in all respects except for the order that the Commission issue the licence to Diamond Quarry.
Instead, the Court of Appeal remitted the application to the Commission for its consideration according to law. However, the Court of Appeal made clear that Diamond Quarry was entitled to the licence as a matter of fact and that Baracara Quarries had no legitimate expectation to the land.
Baracara did not appeal that decision. It was the GGMC who appealed to the CCJ against the entirety of the judgment of the Court of Appeal.
Diamond Quarry cross-appealed only that part of the Court of Appeal judgment relating to the decision to set aside the High Court’s order of mandamus directing the Commission to issue or grant the licence to it (Diamond Quarry).
Baracara did not enter an acknowledgment of service and took no part in the proceedings before the CCJ.
