Justice Jacqueline Josiah-Graham has refused applications by the Attorney General for immediate possession of land earmarked for the new Demerara Harbour Bridge and ruled that in line with the constitution and relevant laws compensation must first be settled.
The attorney general had moved to the High Court under Section 13 (1) of the Acquisition of Lands for Public Purposes Act against Wilfred Brandford, the estate of Virieene Fredricks, Vashti Fredericks in her capacity as the beneficiary of the Estate of Virieene Fredricks, Pearl Layne in her capacity as the beneficiary of the estate of Virieene Fredricks, Malcolm Thomas in his capacity as the named Executor of the last will and testament of William Ovid Thomas, Merlynn Thomas and Joan Stewart.
The Attorney General had filed the five urgent notices of application seeking immediate possession of the lands contending that the required notifications were issued. The landowners have disputed the compensation offered and following the impasse the Attorney General began proceedings for the assessment of compensation which is currently at the case management stage prior to expedited trial. Amid the proceedings, the Attorney General sought urgent orders for the respondents to vacate the land without any assessment or determination of compensation. The judge’s ruling said that in his affidavit the Attorney General cited urgency and public interest due to the ongoing construction of the new harbour bridge and that there was the potential of harsh financial penalties for failing to deliver vacant possession of the properties necessary for the construction of the bridge and its associated roadways.
The Attorney General also sought permission to lodge with the Registrar of the Supreme Court sums as determined by the government’s Chief Valuation Officer, Julian Barrington with the respondents being permitted to withdraw the said sums and the applicant undertaking to pay a further sum if determined by the court as adequate compensation without prejudice to the substantive matter. Further, the Attorney General sought an order for the lodging of $1m for the cost of relocation and alternative accommodation for each of the respondents.
The respondents, on the other hand, challenged the application for immediate possession contending that it contravenes Section 7 of the Act and Article 142 of the Constitution both of which require adequate compensation for compulsory acquisitions. The urgent notices of applications were heard on August 16, 2024.
In her analysis, Justice Graham-Josiah said that the Attorney General’s application for immediate possession prior to the settlement of compensation is “contrary to the explicit statutory requirement that prohibits the State from assuming possession until compensation is settled. This is clearly stipulated in both the Constitution and the Acquisition Act, reinforcing that ownership and possession cannot be severed from the obligation of compensation”.
A number of authorities and cases were cited. She pointed out that the Acquisition Act established that “acquisition is subject to two limbs, the taking of the land for public purposes following publication in the gazette and the payment of compensation. That the parties do not agree is not a prescription by which the Court can grant immediate possession”.
The judge further said that in balancing the respondents’ individual rights against the Attorney General’s public interest duty the constitution allows for property acquisition but mandates protection of individual rights via adequate compensation.
“The Court therefore holds that payment as set out in the Act must be understood in relation to when full compensation has been determined, whether by court order, assessment or by agreement. If full compensation has been determined, it is only then, when the payment is ascertained and becomes payable that the issues of immediate possession arises. It cannot be inferred that the Government has power when the legislative provision is clear that the vesting of property is subject to compensation paid. Unless and until it is determined (or agreed as between the parties), the legislative provisions would be violated”, she ruled.
In relation to the Attorney General’s wish to have money lodged pending a determination on compensation, Justice Graham-Josiah said it was the court’s view that granting immediate possession on the basis of an interim amount not assessed and fixed by the court in keeping with the statutory framework would undermine the Act and the constitutional protections of Article 142.
The judge made the following orders:
-that the application for immediate possession is refused;
-the trial of this matter is to be expedited to determine fair compensation and a just resolution of the suits;
-the parties are encouraged to seek to settle this matter amicably;
-costs are to be paid to each of the defendants in the sum of $150,000;
-the substantive matter has been fixed for further case management on September 19.
Ms Motilall, Ms Ramdass and Mr Jaigobin appeared for the Attorney General.
Roysdale Forde SC, Dr Dexter Todd and Mr Smartt appeared for the respondents. In a similar matter, Justice Navindra Singh last week ordered the owners of three properties in the pathway of the new bridge to hand them over to the government and for the state to compensate them in various sums. The sums ordered to be paid, according to Attorney-General Anil Nandlall, were less than what the state had offered as compensation. The owners are now to deliver the properties to the government on or before September 30th while the state will have to pay the compensation on or before September 20th.
The government had initiated legal action against Dennis and Odetta Hall, Joseph Klass and others and Prince Wilson for compulsory acquisition of their properties.
