The Georgetown Mayor and City Council (M&CC) has filed an application to set aside the recent ruling by Justice Gino Persaud that the Bel Air Park Community Playground be used specifically for community purposes and no other.
The M&CC is contending that its lawyer was unaware of the hearing of the action brought against it, and so was the Town Clerk.
The ruling had capped a two-year fight by residents of Bel Air Park against the M&CC’s move in 2016 to convert the recreational space into residential house lots for the Mayor, Town Clerk, City Engineer and Medical Officer of Health.
However, despite the ruling, the M&CC has moved to clear the land and residents have since claimed that its actions are a violation of the court ruling.
However, in their application, Town Clerk Royston King, the M&CC and the Central Housing and Planning Authority (CH&PA) are seeking, among other things, an order pursuant to Rule 12:03 (1) of the Civil Procedure Rules, 2016, to set aside the judgment which was made in default of appearance of the Council and Town Clerk.
They are also seeking a stay of execution of Justice Persaud’s order.
In the application, which comes up before Justice Persaud on February 12th, the Council is arguing that Kissoon’s application had been served on the Town Clerk on its behalf, though the procedure is for such matters to be referred to its legal affairs officer, whose responsibility it is to ensure that same is sent to its legal advisers in sufficient time for action.
Attorney Roger Yearwood, who is representing the Town Clerk, has advanced in the application seen by this newspaper that “on all occasions there was a breakdown in efficiency regarding the timely sending of the documents to our legal adviser.”
He has advanced that as a result, neither he nor the Town Clerk was aware when the matter was being heard.
According to Yearwood, he only became aware of the matter on the very day Justice Persaud would deliver his ruling, January 8th, 2018.
He noted that he was on the corridors of the Georgetown High Court when he heard a Marshal announcing the matter and enquiring whether there was anyone on behalf of, or representing the Town Clerk.
Stating that it is he who usually represents the council, Yearwood said he indicated this to the Marshal, but noted that he had been unaware of the matter.
The application goes on to explain that this was related by the Marshal to the judge, who thereafter invited Yearwood into his Chambers, where Kissoon, his attorney and counsel for the CH&PA were seated.
According to the court document, Yearwood indicated to the court that he was unaware of the matter and sought an opportunity to communicate with the Town Clerk, and possibly seek an extension of time to defend the matter on the council’s behalf.
He said that this request was, however, objected to by Kissoon’s attorney, “and ultimately denied by the Court who opined that the Town Clerk had been served twice.” The judge thereafter proceeded to make the order.
Yearwood’s account of events is that after all this had transpired, he contacted the Council “and a copy of the proceedings was unearthed from where it had mistakenly and inadvertently been placed.”
According to the application, Yearwood contends that the judgment impacts upon the council’s ability to treat with the land “standing in its name, or under its management and control.”
It is argued that while the order gives the land to the community as a recreational space, a burden has at the same time been placed on the council to maintain the land for the Bel Air residents and others.
Pointing out the deplorable state in which the land had been kept, Justice Persaud had also granted Kissoon a declaration he was seeking that the M&CC and Town Clerk are under a duty, pursuant to Section 302 (7) of the Municipal and Dis-trict Councils Act, to maintain the space.
The council is arguing that the orders infringe its right under Article 142 (1) of the Constitution to protection from deprivation of property.
While acknowledging its fault for not responding to the action within timelines set by the Civil Procedure Rules 2016, the council argues that “it is a universal and constitutional principle of law that no man should be deprived of his right to his property unless afforded a reasonable opportunity to be heard.”
The application also contends that Kissoon falsely represented to the court that the transport contained a servitude, which restricts the erection of dwelling houses on the land, the subject matter of the transport.
Clause (a) in the description in the transport, it said, provides that “no building or erection shall be built or placed on the said block and lot until transport has been passed and unless such buildings or erections have been approved of and consent therefor given by the company.”
The council’s argument is that the language of the clause “clearly contemplated that buildings or erections could be placed on the property provided transport was passed and approval and consent given by the company.”
It went on to assert that “the conditions set out in clause (a) have been satisfied, in that the transport has been passed,” and it noted that since the Blair Development Company Limited no longer exists, obtaining consent from the company is a legal impossibility and therefore a condition that is discharged.
Kissoon had contended that the servitude was enforceable and binding upon the respondents as a real servitude under Roman-Dutch law, which applies to real servitudes in Guyana pursuant to section 3(d) (ii) of the Civil Law of Guyana Act.
Justice Persaud had granted an injunction, restraining the Town Clerk and the M&CC by themselves, their representatives, officers and or agents collectively and individually from using, leasing, transferring, assigning, conveying, licensing, selling, encumbering, dealing or permitting the use of the property for the purpose of building residential homes or otherwise other than for community purposes, or doing any act which would breach the Servitude contained in transport No. 1580.
According to Kissoon, the servitude was created on October 6th, 1958 in Transport No. 1580 contained on Plan No. 6015, dated March 8th, 1952, which states that “no trade or industry whatsoever shall be carried on the said block and lot which are reserved for community purposes only.”
He has always maintained that the servitude remained in full effect.
It is the Council’s contention, however, that Clause (d), upon which Kissoon relied as establishing the servitude, was too widely interpreted. It says that it provides merely that “no trade or industry whatsoever shall be carried on the said block and lot which are reserved for community purposes only.”
A servitude entitles the person who enjoys it to prohibit something or to do something for his own benefit, upon another’s land. Its registration in transport constitutes notice to all the world, of the existence of a real right.
The council is contending that Clause (d) cannot be read as derogating from the import of clause (a) so as to take away the right to erect buildings in accordance with clause (a).
As a result, it is arguing that the reference to “community purposes only” can only be interpreted to mean that which came before it; that is to say, in relation to the restriction on the conduct of any trade or industry whatsoever on the block and lot.
Another point raised by the council is that it is trite law that where a servitude is created by title, as is stipulated in clause (d) of Transport No. 1580, that the title governs the extent of the servitude and the dominant owner cannot unilaterally increase the burden of the servient tenement.
It reasoned further that by seeking to extend the servitude to prevent the transport holder from erecting buildings on the land, which is clearly contemplated by clause (a), Kissoon is seeking, “unlawfully, to extend the servitude contained in clause (d), which is restricted only to the conduct of trade or industry on the land.”
Making a case as to why it is not mandatory that it maintains the land, the City Council is arguing that this expectation of the residents offends the “timehonoured principle that he who takes the benefit must also take the burden.” According to the M&CC, Kissoon has incorrectly interpreted section 302 (7) of the Municipal and District Councils Act. It argues that nowhere in that section is the power of the Council in that provision couched in imperative language but rather that it seeks only to set out the powers of the council “as regards to matters contained therein and not their duties.”
The council pointed out that section 302 (7) provides, “the City Council and the Town Council shall each have power to do all or any of the following things: to establish, maintain and control recreation and sports grounds (including swimming pools), theatres and promenade gardens, in parks, open spaces and any other land vested in the council.”
The Council is of the view that it has a good and arguable defence and that its case has reasonable prospect of success.