The Commissioner of the Guyana Geology and Mines Commission v Diamond Quarry Inc., Baracara Quarries Inc.
| Jurisdiction | Caribbean States |
| Judge | Mr Justice Saunders, PCCJ,Mr Justice Wit, JCCJ,Mr Justice Anderson, JCCJ,Mme Justice Rajnauth-Lee, JCCJ,Mr Justice Burgess, JCCJ |
| Judgment Date | 15 June 2022 |
| Court | Caribbean Court of Justice |
| Docket Number | CCJ Appeal No GYCV2021/007 |
[2022] CCJ 11 (AJ) GY
Mr Justice Saunders, PCCJ
Mr Justice Wit, JCCJ
Mr Justice Anderson, JCCJ
Mme Justice Rajnauth-Lee, JCCJ
Mr Justice Burgess, JCCJ
CCJ Appeal No GYCV2021/007
GY Civil Appeal No 61 of 2015
IN THE CARIBBEAN COURT OF JUSTICE APPELLATE JURISDICTION
Administrative law — Judicial review — Legitimate expectation — Respondent applied for quarry license — Unambiguous assurances given to respondent by Guyana Geology and Mines Commission that its application for quarry license had been favourably considered — Commission published Notice of Intention to grant licence — No objection to grant of licence received — Whether respondent had substantive legitimate expectation to be issued quarry licence — Whether respondent entitled to order of mandamus directing that quarry licence be issued to it — Mining Act, Cap 65:01, s 89.
The Guyana Geology and Mines Commission (‘the Commission’) is the statutory body with power to grant and renew quarry licences in Guyana. On 28 March 2014, Diamond Quarry Inc (‘the first respondent’) applied for a quarry licence pursuant to s 89 of the Mining Act, Cap 65:01 in respect of 848 acres of land in an area of the interior of the country known as ‘Monkey Jump’. Prior to the application, the first respondent did the necessary research to satisfy itself that the land applied for was not legally held or applied for by anyone. On 19 July 2014, the Commission surveyed Monkey Jump and on 15 September 2014, issued a Cease Work Order against Baracara Quarries Inc (‘the second respondent’) in respect of its occupation of a portion of Monkey Jump for which the first respondent had applied. The Land Administration Manager of the Commission represented to the first respondent that the application would be processed as soon as the statutory documentation was submitted and verified.
On 16 September 2014, the Commission published in the Official Gazette a Notice of Intention to grant a quarry licence to the first respondent. 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. No one lodged an objection within 21 days, or at all. On 15 October 2014, the Commission requested and was supplied with additional documents pursuant to the Mining Regulations Cap 65:01. The Commission indicated to the first respondent that it had ‘favourably considered’ the first respondent's application.
Just over three months later, at a meeting convened by the Commission on 10 February 2015, the Commission stated that many years earlier, the second respondent had applied for the same land for which the first respondent had applied. 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 the land would be subdivided between the first and second respondents.
The first respondent applied to the High Court of Guyana alleging that the Commission's decision to subdivide the land was grossly unfair, discriminatory, and based on mala fides and favouritism. The second respondent 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 the first respondent had applied had been occupied and quarried by the second respondent for several decades.
Chang CJ (Ag), on 12 March 2015, granted: (1) An order of certiorari directing the Commissioner of the Guyana Geology and Mines Commission (‘the Commissioner’) to quash the decision to subdivide the land for which the first respondent had applied; (2) An order of mandamus directing the Commissioner to grant the first respondent a quarry licence over the said land; and (3) 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 Commission appealed to the Court of Appeal and the second respondent applied for and was granted leave to intervene. The second respondent deposed that it occupied the land applied for by the first respondent for over 50 years; that the land was home to 12 of its employees; and that it had undertaken substantial infrastructural work on the land. The second respondent 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 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 the first respondent. 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 the first respondent was entitled to the licence as a matter of fact and that the second respondent had no legitimate expectation to the land. The second respondent did not appeal this decision.
The Commission appealed to this Court against the entirety of the judgment of the Court of Appeal. The first respondent cross-appealed only that part of the judgment of the Court of Appeal relating to the decision to set aside the High Court's order of mandamus directing the Commission to issue or grant the licence to the first respondent. The second respondent did not enter an acknowledgment of service and took no part in the proceedings before this Court.
This Court considered four issues, namely: (1) whether the second respondent had applied for the same land for which the first respondent had applied; (2) whether the Commission had made a decision to subdivide the land; (3) whether the first respondent had a legitimate expectation to be issued a quarry licence; and (4) whether the first respondent was entitled to an order of mandamus directing that a quarry licence be issued to it.
The Court held, first, that the 848 acres of land for which the first respondent had applied to conduct quarrying operations had not been the subject of an application for a quarry licence by the second respondent. It appeared clear from documentary evidence proffered by the Commission that the second respondent applied for 1200 acres in Monkey Jump but that this was to the north of the 848 acres applied for by the first respondent. 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 the first respondent was always displeased with that decision.
The Court next considered the doctrine of substantive legitimate expectation. The 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. In the present case, the first respondent had received the unequivocal assurance from the Commission that its application had been favourably considered and that the Notice of Intention to Grant the licence would be published. That Notice was published and there was no objection to the grant of the licence by anyone and no claims of public interest had been proffered to justify frustrating the first respondent's expectation that it would be granted the licence.
Finally, the Court noted that a finding of a substantive legitimate expectation did not always warrant the grant of mandamus to give effect to that expectation. However, in cases where there was only one lawful outcome, a mandatory order could be given to require that result. 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 and no such reason was presented. The only lawful outcome was therefore the grant of the licence to the first respondent.
Accordingly, the Court dismissed the appeal, upheld the cross-appeal and issued consequential orders (1) affirming the orders of Chang CJ (Ag); (2) reaffirming the costs orders made in the courts below; and (3) ordering the Commission to pay to the first respondent the costs of the appeal.
A-G v Joseph [2006] CCJ 3 (AJ), (2006) 69 WIR 104 (BB); Air Services Ltd v A-G [2021] CCJ 3 (AJ) GY; Beacon Insurance Co Ltd v Maharaj Bookstore Ltd [2014] UKPC 21, (2014) 84 WIR 478; Camacho v Collector of Customs (1971) 18 WIR 159; Campbell v Narine [2016] CCJ 07 (AJ) (GY), (2016) 88 WIR 319; Central Broadcasting Services Ltd v A-G of Trinidad and Tobago [2006] 1 WLR 2891, [2006] UKPC 35 (TT); Diamond Quarry Inc, Re (Guyana HC, 14 August 2015); Gilharry v Transport Board [2017] CCJ 11 (AJ) (BZ); Grenada Electricity Services Ltd v Peters (Grenada CA, 28 January 2003); Guyana Geology and Mines Commission v BK International Inc [2021] CCJ 13 AJ (GY); Guyana Geology and Mines Commission v Pharsalus Inc [2013] CCJ 10 AJ, 2013) 83 WIR 401 (GY); Harracksingh v A-G of Trinidad and Tobago [2004] UKPC 3, (2004) 64 WIR 362 (TT); Leacock v A-G (2005) 68 WIR 181 (BB); Observer Publications Ltd v Matthew (2001) 58 WIR 188 (AG PC); Pan Trinbago Inc v National Carnival Commission of...
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