In what seems to be a response to the High Court’s ruling that property owners must receive proper compensation before their land is taken through compulsory acquisition, the government has moved to amend the legislation.
“This Bill seeks to amend the Acquisition of Lands for Public Purposes Act, Cap. 62:05,” the proposed amendment in this week’s publication of the Official Gazette states.
“Clause 2 of the Bill seeks to amend section 7 (1) of the Principal Act by firstly providing that the vesting of the compulsorily acquired land in the State is subject to the prompt payment of the purchase money or of any adequate compensation. Secondly, the proposed amendment amends subsection (1) to guarantee the State’s right to vacant possession of the land that is compulsorily acquired,” the Gazette states.
“Clause 3 of the Bill substitutes for section 24A which deals with the payment of land bonds, a new section 24A. The new section establishes the legal framework for the Minister to make an advance cash payment to an interested and authorised person. An advance payment will only be paid after the land is acquired by the State, if requested by the interested and authorised person and where there is satisfactory proof of title. The advance payment shall not exceed 80 per cent of the purchase money or adequate compensation. Moreover, where the land is the subject of a mortgage or any other similar registered encumbrance, the Minister shall pay such advance payment as would be required for securing the release of the interest of the mortgagee or the creditor in that land. Further, an advance payment on account of adequate compensation in respect of land which is the subject of settlement or trust shall be made to the persons entitled to give a discharge for capital money,” it adds.
In September High Court Justice Jacqueline Josiah-Graham refused applications by Attorney General Anil Nandlall 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 AG 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 had 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 $1 million 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 was “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 arise. 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.
