Judge to rule on admissibility of newspaper report in challenge to parking contract

Justice Brassington Reynolds is expected to rule next month on the admissibility of a newspaper report in the challenge by conveyancing clerk Mohendra Arjune to the city’s contract with Smart City Solutions (SCS) for the parking meter project.

The April 13, 2017 report, headlined ‘Councillors to receive original parking meter contract,’ was published in Stabroek News.

An affidavit, submitted by Arjune’s attorney, Kamal Ramkarran, on June 16, argues that the fact that the Mayor is reported in the report as saying that city councillors did not have the opportunity of seeing a contract which they purportedly entered before that contract was entered into is a significant fact that goes to the root of the proceedings.

It further contends that since the article has never been withdrawn by the Stabroek News on a complaint by the Mayor that it was inaccurate or misreported or otherwise, it provides additional grounds for the granting of the orders sought by him and asks in the affidavit that the court takes these grounds into consideration in arriving at its decision.

“This is not a fact which could reasonably be in the possession of the applicant since, before the Mayor admitted it, it was a fact known only by the Mayor and Councillors of the City of Georgetown. There is therefore good reason for its omission from the applicant’s original affidavit and for its inclusion into the Court’s record through the applicant’s supplementary affidavit,” Ramkarran has argued.

In response, the city and SCS on June 29 argued that temporary orders Nisi, having been granted, the procedure under the Civil Procedure Rules, 2016, do not contemplate a Supplementary Affidavit being filed after the application is granted, to support or buttress such application.

The respondents further argue that the newspaper article constitutes “inadmissible hearsay evidence.”

“The purported Supplementary Affidavit of the Applicant in which he references a report contained in the Stabroek News article of the 13th day of April, 2017, does not allude to the source of the said report and the grounds for the applicant’s information and belief in the accuracy of the report and thus is inadmissible.

A July 7 response from Ramkarran states among other things that in the absence of a retraction of the article with or without an apology or something else qualifying the Mayor’s comments, it is more probable than not that the Mayor said what was reported in Stabroek News.

On the contention that the article constitutes hearsay, Ramkarran argued that because the newspaper report is simply a report of what the mayor said, it is an admission made by the Mayor which is admissible in evidence, whether or not it constitutes hearsay. “It is therefore clear that the Mayor’s statements, as reported by Stabroek News, constitute admissions by the Mayor as alleged by the applicant and are admissible as such through the newspaper report exhibited to the applicant’s supplementary affidavit,” he argues.

Justice Reynolds is expected to rule once he returns from leave in October.

Arjune, a conveyancing clerk attached to the Cameron and Shepherd law firm, has made an application for judicial review on the contention that the city failed to comply with the law in entering the contract. Ramkarran, on behalf of Arjune, has argued that the council failed to comply with mandatory prerequisites set out in Sections 230 and 231 of the Municipal and District Councils Act. Section 231 of the Act states that before entering into any contract for the execution of any work or the supply of any goods to the value of $250,000 or more, a council is required to give notice of such proposed contract and “shall by such notice invite any person willing to undertake the same to submit a sealed tender thereof to the council….” The project was not publicly tendered, which has been one of the bases upon which it has been criticized.

Ramkarran also contends that by entering into the May 13, 2016 contract, the council unlawfully and in an ultra vires manner delegated its statutorily derived power to erect and maintain parking meters under and in terms of Section 276(b) of the Act and acted contrary to Section 21 of the Civil Law Act of Guyana, which prohibits the establishment of monopolies in Guyana.

He also argued that the decision by the council and SCS to exempt teachers and employees of the Bank of Guyana from charges was arbitrary, discriminatory and contrary to the operation of the rule of law.

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