AG appeals order compelling him to appoint board for registries

-accuses judges of breaching separation of powers

Attorney-General (AG) Basil Williams, S.C, has filed an appeal to challenge an order made by Justice Nareshwar Harnanan directing him to appoint the Governing Board of the Deeds and Commercial Registries Authority.

In the appeal, Williams is contending that the judge erred by not attaching weight to a proposed amendment that is currently before the National Assembly and by seeking to “dictate” to Williams a timeline for the appointment of the board. 

Basil Williams

Justice Harnanan on April 19 made absolute the order nisi of mandamus, which attorney and former AG Anil Nandlall had applied for to compel Williams to appoint the board.

By extension, the ruling caters for the Authority to discharge its functions in accordance with the Deeds and Commercial Registries Authority Act, which also provides for the board to hold regular meetings.

Nandlall told Sunday Stabroek yesterday that the AG is currently in breach of the court order and a letter has already been dispatched to him informing him that he is in contempt of court and that unless he takes steps to comply with the order, contempt proceedings should be filed against him.

The Notice of Appeal, prepared by Senior Legal Advisor Judy Stuart, in part said that both Justice Harnanan and Justice Brassington Reynolds committed specific illegalities in their rulings on Nandlall’s application.

Justice Reynolds was the first to hear the case and on March 8 he granted a provisional order.

Stuart, in the Notice of Appeal, asked that the ruling be set aside on a number of grounds.

It contends that Justice Harnanan erred and misdirected himself in law when he refused to attach any weight to the fact that the AG was proactive in seeking to have a more efficacious board by seeking to strengthen and widen it through the Deeds and Commercial Registries Authority (Amendment), which is awaiting passage through the National Assembly.

It is also argued that the judge erred and misdirected himself in law when he refused to attach any weight to the fact that it was Cabinet’s decision to take the proposed amendment to the National Assembly; when he failed  to consider that  under the Deeds and Commercial Registries Authority Act there were adequate  provisions  for the functioning  of the Deeds and Commer-cial Registries Authority in the temporary absence of the board, including the Minister of Legal Affairs  taking action to protect the assets of the state; and when he failed to consider that despite the presence of the board and Nandlall there was a failure to unearth the fraudulent acts that were discovered occurring under their watch, by the Minister of Legal Affairs, after they left  office.

The appeal contends too that the judge erred and misdirected himself in law when he failed to consider that Nandlall had failed to make full disclosure and had concealed from Justice Reynolds the fact that proposals  affecting the  composition of the Board were contained  in  the amendment bill that is before the National Assembly.

It was stated that both Justice Reynolds and Justice Harnanan committed a specific illegality when by their rulings they purported to “dictate” to Williams, Cabinet and the government their own timelines to constitute the Deeds and Commercial Registries Authority Board in contravention of the doctrine of the separation of powers.

Justice Harnanan, it was stated, committed specific illegalities when he failed to apply the overriding objective of the new Civil Procedure Rules to deal with cases justly and not to exercise his discretion injudiciously by directing that both Nandlall and Williams act jointly in an effort to effect a quick passage of the amendment bill through the National Assembly.

The appeal also asserts that Justice Reynolds erred and misdirected himself in law when he granted the Order Nisi of Mandamus, dated March 8, 2017, while Justice Harnanan erred and misdirected himself in law when he ruled that it be made absolute, compelling Williams to appoint members of the Governing Board.

It was stated that both judges erred and misdirected themselves in law when they failed  to consider  that the  expired  board  was the inaugural  board and that reconstituting it involved a question of  re-appointment  under Section 6(1) of Deeds and Commercial Registries Authority Act, and when they failed to consider that the reappointment of members was at the discretion  of Williams and not mandatory.

According to the appeal, Justice Reynolds also erred and misdirected himself in law when he failed to consider that the Respondent/Applicant had the burden of proving that the failure to appoint or reappoint the board was due to Williams’ dithering dilatoriness or deliberate omission, before granting the order.

Further it was stated that the judges both erred and misdirected themselves in law when they failed to consider it is not mandated that the Minister of Legal Affairs appoint the Ministerial members of the board.

In his affidavit in support of his application, Nandlall said he had written to Williams, calling upon him to discharge his obligations under the Act and to appoint members to the board but never received a response.

In a letter, which was seen by Stabroek News and dated January 27, 2017, Nandlall referred to what he termed “innumerable administrative problems,” which he said are being encountered on a daily basis by the Authority and affecting its ability to discharge daily functions.

According to Nandlall, one of the main reasons for creating the Authority was to remove the registries from Central Government and, more particularly, from ministerial influence and to make them autonomous corporate agencies that can hire their own staff on terms and conditions determined by the Authority. The ultimate objective, he said, was to increase the efficiency and speed with which they function.

Apart from Williams, the other appellants listed on the Notice of Appeal are the Governing Board of the Deeds and Commercial Registries, the Chairman of the Governing Board of the Deeds and Commercial Registries, the Registrar of Deeds and the Registrar of the Commercial Registry.

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