Gov’t to appeal $1.7b damages award to TPL

(November 2015: An aerial shot of the large-scale construction works that are ongoing at the site of the US$30M MovieTowne Guyana complex at Turkeyen, East Coast Demerara.)

Attorney General and Minister of Legal Affairs, Basil Williams SC, has said that Government will be appealing the recent High Court ruling ordering it to pay Toolsie Persaud Limited (TPL), $1.7 billion in damages after losing its challenge to the company’s ownership of land at Turkeyen, including the site of the MovieTowne cinema complex and shopping mall.

The Attorney General’s claim is that, his Chambers had no knowledge of the case, nor did there exist any file on it.

During the almost two-hour delivery of the judgment last Friday, however, attorney Tracy Marks who is attached to the Chambers was seated in the courtroom, but for a brief couple of minutes during which she stepped out, returning shortly after.

Though this newspaper is unable to say why, Justice Brassington Reynolds momentarily paused the proceedings to enquire from counsel after she had gotten up, whether she was leaving.

Marks, however, explained to the judge that she was only stepping out briefly and would come back. She did return very shortly after.

Stating  his ignorance about the existence of the matter, Williams emphasized that the ruling will be appealed while adding “there’s no way we going to allow that $1.7 billion judgment to stand without scrutiny.”

The dispute between the State and TPL which dates back to 1987, had been before the court for a decade. The writ was filed in 2008. Additionally, an aspect of the dispute had engaged the attention of the Caribbean Court of Justice (CCJ) in 2008 as well.

Responding to questions from reporters yesterday, Williams expressed shock at what he described as representation being provided to the Government in the case by “the old regime” under his predecessor Anil Nandlall and the former PPP/C Government.

The AG was not listed as a party to the proceedings. The government and its agent, the National Industrial and Commercial Investments Limited (NICIL), were, however, represented by Senior Counsel Ashton Chase and attorney Timothy Jonas respectively.

TPL was represented by Senior Counsel Robin Stoby.

While noting that these issues are being investigated, Williams said “we had asked for a list of these cases from the Chief Justice and the Court of Appeal. And we had also asked certain practitioners whether they had any cases for us.”

Asked if he had gotten any response to the information being sought, Williams told reporters he did, but said that no such information had ever been provided regarding the TPL challenge.

For its appeal, the AG said his Chambers will be examining the records and its defence.

He said this against the backdrop of referencing the case of Government of Guyana against Trinidad road construction company Dipcon in which the Government lost a US$2.2 million challenge.

According to Williams, in that case which it also sought to appeal, “There was a strong defence.”

“Look at all the statements we made with Dipcon,” Williams declared.

On November 15 of last year, however, the state lost its bid to appeal that judgment before the CCJ—the court of last resort for Guyana.

The Regional Court among other things, had ruled that the Attorney General of Guyana failed to file an application to the court for special leave to appeal, pursuant to section 8 of the CCJ Act.

As a result, the October 21, 2015 $455m judgment of then High Court Judge, Justice Rishi Persaud, in favour of Dipcon, for road and infrastructural works done under the former administration remains intact.

In that case also, Williams had said that he was ignorant of the existence of the matter.

He had said that there was no evidence of the file containing the judgment in his Chambers after he took office in May, 2015 and that the Special Organised Crime Unit (SOCU) would be investigating what happened.

This was one of the grounds on which the AG attempted to appeal the award.

In the Dipcon case, Williams had appealed against the refusal of the Guyana Court of Appeal to extend time for appealing after more than six months had passed since Justice Persaud’s judgment.

The CCJ had, however, said that ignorance of the award of the judgment on the part of the AG was no excuse for failing to ask the Appeal Court for an extension to appeal, and thereafter asking for special leave to appeal to the regional court.

In early February, 2009, Dipcon Engineering, took the then PPP/C government to court, seeking to recover sums it said it was owed along with all other costs associated with the road construction and infrastructural works done in the Mahaica/Rosignol area.

In his judgment, Justice Persaud had ordered the government to pay Dipcon US$665,032.17 as payment for road building and construction works.

He had also ordered that it pay Dipcon the sum of US$1,563,368.50 for increased costs it incurred for those works, together with interest on both amounts, at a rate of 6% per annum from February 10th 2009, to October 21st, 2015 and thereafter at the rate of 4% per annum until fully paid.

In his judgment last Friday ordering the government to pay TPL $1.7 billion in damages, Justice Reynolds ruled that the plaintiff never repudiated its agreement for the purchase of the land.

As a matter of fact, that judge noted that the defendants—the government and NICIL, were in breach of the agreement and ordered them jointly and severally, to pay over to TPL damages to the tune of $1,745,203,346.

Of that sum, he awarded for area ‘K,’ $1,104,679,346 and for area ‘O,’ $640,524,000.

Meanwhile, for areas ‘J’ and ‘N,’ he ordered specific performance by the defendants.

To the sums awarded, the judge ordered that interest be paid at a rate of 6% per annum from the filing of the writ in 2008 to yesterday’s date. Additionally, interest of 4% per annum has to be paid from the date of judgment, until full payment.

The court also awarded TPL court costs in the sum of $500,000 which also has to be borne by the defendants.

To the $2, 170,000 purchase price for the land, part of which TPL had already paid, the judge said that it is to be allowed to pay the remaining balance.

The defendants asked for and were granted a six-week stay of execution to facilitate any appeal.

In its action, TPL had argued that it never repudiated its 1987 agreement by which it bought from the State, led then by the PNC government, several plots of land in the disputed Turkeyen/Liliendaal, East Coast Demerara area.

The specific disputed areas were those of ‘K,’ ‘O,’ ‘J’ and ‘N.’

It had been the State’s case that TPL had repudiated the contract after applying for prescriptive title and so the plots of land could no longer have been considered to be the company’s.

(November 2015: An aerial shot of the large-scale construction works that are ongoing at the site of the US$30M MovieTowne Guyana complex at Turkeyen, East Coast Demerara.)

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