Deorani Singh v The Attorney General and National Industrial and Commercial Investments Ltd
| Jurisdiction | Caribbean States |
| Judge | Barrow, J.CCJ. |
| Judgment Date | 13 March 2018 |
| Court | Caribbean Court of Justice |
| Docket Number | CCJ Appeal No. GYC2017/013; GY Civil Appeal No. 87 of 2010 |
| Date | 13 March 2018 |
Caribbean Court of Justice
Wit, J.CCJ.; Hayton, J.CCJ.; Rajnauth-Lee, J.CCJ.; Barrow, J.CCJ.
CCJ Appeal No. GYC2017/013; GY Civil Appeal No. 87 of 2010
Sir Fenton Ramsahoye, S.C., Mr. Roopnarine Satram, Mr. Chandrapratesh Satram and Mr. Visal Satram for the appellant.
Ms. Kim Kyte-Thomas, Ms. Oneka Archer-Caulder and Ms. Judy Stuart-Adonis for the 1st respondent.
Mr. Timothy M. Jonas for the 2nd respondent.
Constitutional law - Fundamental rights and freedoms — Compulsory acquisition of property by the State — Impact of fourteen-year delay between publication of acquisition order and bringing of proceedings — Whether actions of attending hearings in relation to the assessment and collecting payments to account of compensation amounted to acquiescence.
The estate of the late Mohan Pirtram Singh, represented by his widow and administratrix, Deorani Singh (‘the appellant’), sought compensation for the violation of her and the estate's constitutional right to protection of property when the State compulsorily acquired commercial property almost thirty-five years ago. The property, situated in Georgetown, was the site of a business owned by Mohan Singh until his death in 1980. After his death, the estate leased the property to the Guyana Pharmaceutical Corporation Ltd. (‘GPC’), a State entity, for five years. During the subsistence of that lease, the State acted to compulsorily acquire the property and made orders to that effect pursuant to the Acquisition of Lands for Public Purposes Act Chapter 62:05 (‘the Act’).
In 1984, following a request by the attorney then acting for the estate, the Attorney General (‘the First respondent’) filed an ex parte motion in the High Court to ascertain the amount of compensation to be paid as provided for by the Act. The Attorney acting for the estate entered appearance and attended hearings of the motion. An Order dated 16th October 1984 and entered 30th January 1986, recorded Persaud, J.'s hearing of the motion. He ordered the publication of the notice of acquisition, the assessment of the value of the property and adjourned the matter until March 1986. Approximately one year after the recorded adjournment date, in March 1987, Pompey, J., 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 the order of Pompey J.
In 1994, the property was leased to Citizen's Bank (‘the bank’) by GPC and possession was taken by the bank as lessee. In 2003, the property was transferred to the, Second respondent, National Industrial and Commercial Investments Limited (‘NICIL’), a state-owned entity, under the Public Corporations Act, 1988.
In 1997, fourteen years after the acquisition order had been published, the appellant brought a motion in the High Court contending that her and the estate's fundamental rights and freedoms, as guaranteed by Articles 40 and 142 of the Constitution, had been contravened. She sought inter alia 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 motion was heard by Roy, J. in 2002 and in a judgment delivered in 2010, he agreed with the appellant that her constitutional right to property had been violated by the purported acquisition. In his view, the acquisition was not done in accordance with the Act and as a result, the property did not vest in the State. Instead, it remained in the estate of the deceased and the passing of transport to GPC was a nullity. Roy, J. further held that Pompey, J. had no jurisdiction to make the order which deemed the property compulsorily acquired and that order was also a nullity. As a result, the assessment and payment of compensation was a mistake of law. In considering the appropriate remedy, Roy, J. considered the appellant's delay in instituting proceedings and the accrual of third party rights but decided to exercise his discretion to grant relief. He ordered a hearing to assess compensation and, further, that in the event of non-payment of the sum awarded as compensation, within three months from the date of assessment by the Court, a declaration would be granted without further order that the property remained the property of the land owner's estate.
The Attorney General appealed against the decision of Roy, J. in 2010. The appellant filed a notice to vary the trial judge's order seeking wider redress including an order that the property be returned to the estate and NICIL was added, on its application, to argue specific points arising from the notice to vary. The Court of Appeal rendered an oral judgement in which it agreed with the High Court that the estate's rights to property protected by Article 142 had been contravened. As to the award of damages, the Court of Appeal held that Roy, J. could not order a fresh assessment of compensation because he could not sit on an appeal over the order of Pompey, J. and instead it awarded 30 million in damages for the contravention. 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 publish notice of the sitting of the High court to determine compensation.
At the hearing of this appeal, the appellant submitted that the High Court and the Court of Appeal correctly decided that the purported acquisition was unconstitutional but urged this Court to grant, inter alia, a declaration that the ownership of the property remained vested in the estate and damages and/or compensation for the loss of income and profits from the property from the time of the purported acquisition until present day. The appellant also submitted that the estate was entitled to an award which upheld or vindicated its contravened constitutional right relying on the case of Attorney General of Trinidad and Tobago v. Ramanoop [2005] U.K.P.C. 5. In response, both the Attorney General and NICIL relied on the case of Durity v. Attorney General of Trinidad and Tobago [2002] U.K.P.C. 20 to support their submission that the appellant's unreasonable delay should result in the dismissal of the appeal. It was also argued that as third-party interests had arisen, compensation was the appropriate form of redress.
Before deciding on the merits of the appeal, the Court highlighted two fundamental issues which were ignored by the courts below: lack of jurisdiction and collateral attacks. The Court held that Roy, J. had no jurisdiction to pronounce the order of Pompey, J. to be a nullity. Pompey J's order was formally made, drawn up and perfected. As held by the Privy Council in Issacs v. Robertson [1984] 3 All E.R. 140, the order was enforceable unless appealed or set aside. The Court held that it was an abuse of process for the appellant to collaterally attack the order of Pompey, J. instead of appealing or seeking to set it aside.
The Court also highlighted why collateral attacks upon court orders must be rejected. The appellant's entire claim was predicated on the complaint that she was deprived of the opportunity to be heard at the compensation hearing. This was based on the testimony of the estate's then attorney at the proceedings before Roy J. However, neither Roy, J. nor the Court of Appeal sought to interrogate this complaint any further and based their eventual findings on this ‘evidence’. Roy, J. should have been concerned with and considered the evidence before Pompey, J. which made him proceed in the absence of the lawyer for the estate. More significantly, the Court of Appeal should have insisted on the production of the record before reviewing the proceedings before Pompey, J. instead of acting on the testimony of a partisan as to the alleged defects in the proceedings of a court of record. This advertence would have led to the realization that there was no record of those proceedings before the Court of Appeal because there was no appeal before them from the order of Pompey J, as there had been none before Roy J, and resulted in the striking out of the appellant's entire claim.
In disposing of the appeal, the Court found that Roy, J. 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 held 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 appellant accepted that the property had been compulsorily acquired. Her attorney at the time 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 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.
The Court then addressed Roy J's decision to exercise discretion in favour of permitting the appellant'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. 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...
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