A blog that is organized around the lawyering experience of Criminal and Human Rights Lawyer Selwyn Pieters and things that interest him!!!!!
Saturday, January 11, 2025
Saturday, December 21, 2024
The imperative for appointment of a substantive Chancellor of the Judiciary and a substantive Chief Justice in Guyana
By Selwyn A. Pieters B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Pieters Law Office
Created December 21, 2024
The Executive President of Guyana, His Excellency Mohamed Irfaan Ali and the Leader of the Opposition, Aubrey Compton Norton, are required by Article 127 of The Constitution of the Cooperative Republic of Guyana, Chapter 1:01, (the Constitution) to agree on the appointment of the Chancellor and the Chief Justice of Guyana. Two of the highest judicial officers in Guyana's local courts, the highest being the Caribbean Court of Justice (President and other CCJ Judges). A recorded version is on youtube: Imperative for appointment of Chancellor and CH
Guyana Constitution was amended 2001, by Act No. 6 of 2001, The Constitution (Amendment) (No 4) Act of 2001, Article 127 (1) and (2) of the Constitution require agreement between the Executive President and the Leader of the Opposition on the Jurists to substantively occupy the posts of a Chancellor of the Judiciary and Chief Justice of Guyana.
There has been no agreement since 2005 between Executive Presidents (Jagdeo, Ramotar and Granger) and LOO (Corbin, Granger and Jagdeo) on jurists to occupy the positions of Chancellor of the Judiciary and Chief Justice of Guyana.
In June 2022, an application was filed in the Supreme Court of the Judicature styled as Vinceroy Jordan v. Attorney General 2022-HC-DEM-CIV-FDA-865. Materials were exchanged by the parties and filed in Court, written and oral arguments were presented and a written judgment was rendered on April 26, 2023. In that decision the Honourable Madam Justice Damone Younge made the following declarations in Jordan, at paragraph 45:
a. A Declaration that Article 127(1) of
the Constitution creates a mandatory constitutional duty and obligation on the
part of the President and the Leader of the Opposition to comply with its
provisions.
b. A Declaration that for as long as there
are no substantive appointments to the offices of Chancellor and Chief Justice
under Article 127(1) of the Constitution, the President and the Leader of the
Opposition are under a continuous mandatory constitutional duty and obligation
to engage in a process which results in compliance with Article 127(1) of the
Constitution.
c. A Declaration that notwithstanding that
Article 127(1) of the Constitution does not set any timelines for compliance
with its provisions, the duty imposed on the Constitutional actors by Article
127(1) of the Constitution must be discharged with all convenient speed.
d. A Declaration that any protracted or
further delay in complying with Article 127(1) of the Constitution is, and
would be, inimical to the independence of the Judiciary as set out in Article
122A of the Constitution.
The Court urged the parties to bring life to the declarations would be complied with “all convenient speed.” The Court stressed in para. 41 of its judgment that “no further delay or excuses ought to be countenanced.”
For too
long Guyana has been without substantive office holders for the two top
positions in the Judicial arm of the State, a situation which continues to be
untenable and unacceptable to the citizenry and inimical to the independence of
the judiciary that the Supreme Law of the land provides for. Any further delay
in commencing this process should be eschewed so that this "significant
blot on an otherwise impressive Guyanese legal and judicial landscape” is not
perpetuated further.
Both parties appealed the ruling for various reasons but none of the parties have taken steps to perfect the appeal.
As well, it is not apparent that the President and the Leader of the Opposition has engaged further as required by the Constitution on these appointments.
Progress has been made in the judicial appointments process in Guyana:
1)
There is a fully functioning Judicial
Service Commission;
2)
There were 10 judges appointed to the High
Court recently;
3) There were vacancies for six Court of Appeal Justices posted in May 2024. Applications were received, there was the vetting of each qualified candidates, those candidates were interviewed by the Judicial Service Commission and the Executive President has a short-list of suitable candidates from which he can appoint on the advice of the Attorney General and Minister of Legal Affairs.
With the fix in the judicial shortage at both levels of Courts, the building and provision of more courthouses and courtroom facilities and judicial staff nationwide, the order of business in 2025 prior to the government going into election mode should be another meaningful engagement between the Executive President and the Leader of the Opposition in respect to the substantive appointments to the office of Chancellor and Chief Justice.
Tuesday, December 10, 2024
Wednesday, December 06, 2023
Venezuela already launched a soft invasion of Guyana
By Selwyn A. Pieters B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Pieters Law Office
The Cooperative Republic of Guyana
(“Guyana”) / the Bolivarian Republic of Venezuela (“Venezuela”) border dispute
and Guyana’s continued existential threat from Venezuela (Speaking notes)
By Selwyn A.
Pieters
Attorney at Law
The demarcation of the Guyana and Venezuela existing
boundary was laid down in a final and binding international Arbitral Award October
3rd, 1899 (Boundary between British Guiana and Venezuela (1899)), to which both
Guyana and Venezuela are still bound. Venezuela accepted and honoured the
border determined by the 1899 Arbitral Award for more than half a century.
The post-independence era has had
periods where the Guyana-Venezuela Border Controversy
has risen its ugly head and moreso for political mileage on the part of
Venezuelan politicians.
Venezuela from time to time since the 1962 (during
Guyana’s struggle for independence from Great Britain) continue to raise the
issue of a claim to Guyana’s territory. Venezuela current claim to Essequibo
covers 70 percent or two-thirds of Guyana’s total land mass.
Venezuela and Guyana had armed military conflict when
our soldiers removed Venezuelan Forces from Ankoko Island in 1966 and has
engaged Venezuelans in respect to Eteringbang twice.
Guyana is 83,000 square miles with a population
approximately 750,000. About 90 percent of the population inhabits the narrow
coastland area. Our borders are porous. And from time to time there are events
involving Venezuelan soldiers and civilians at Eteringbang, Mabaruma, Kaikan,
and other areas in the Cuyuni-Mazaruni region of Guyana
In 2016 Venezuela resurrected its claim. The incursion
of Venezuelan soldiers near Eteringbang in May 2016, and their firing of
weapons at officials of the Guyana Geology and Mines employees forced the
government of the day and then then opposition PPP in a bi-partisan move took
the case to the International Court of Justice.
The legal issues before the International Court of
Justice (ICJ) with regard to the claim brought by Guyana was heard. The
Honourable Attorney General and an able team of lawyers provided oral arguments
in Arbitral Award of 3 October 1899 (Guyana v. Venezuela) in the International
Court of Justice on 22 November 2022 and following before the ICJ. Guyana
prevailed on jurisdiction. It is unknown when its final determination will be
made. In light of Venezuela's Referendum to be held on December 3, 2023, the
ICJ last Friday issued provisional orders so that the status quo ante remains
and that Venezela does nothing that would annex the Essequibo Region whilst
this matter is under consideration by that Court.
However, what is apparent is Venezuela’s move to
settle the border regions of Guyana with its citizens. In a Demerara Waves Online publication of July 18, 2022, Captain
Gerry Gouveia, National Security Adviser, was quoted at an AMCHAM Guyana forum
setting out the security threats posed to Guyana by persons from Venezuela. He
gave a number of examples, including, and I quote: “a lot of non-state actors
on our Western border that are terrorizing our business people and challenging
our security forces, whether it is orchestrated or not.” And I further quote
him: “You could understand the security dilemma we face that in the migrants
could be embedded Venezuelan agents and so this is not something that we don’t
appreciate, that we are looking at as well as we open our arms with compassion
and with humanity. . . . There are an estimated 60,000 Venezuelans in
Guyana now.”
Venezuela with a population of more than 28.2
million person is capable of launching a bloodless takeover of our borders
simply by overwhelming our population with Venezuelan settlers, refugees and
persons with military-like bearing. In other words, sleeper cells. Deportation
of Venezuelan migrants who are not Conventional Refugees or persons in need of
protection or persons who are legitimately in Guyana for a proper purpose would
not be in violation of International Law, it would be consistent with the laws.
It is possible that Venezuela can launch a
soft invasion of Guyana by simply overwhelming its population and resources. Spanish
speaking Venezuelan nationals specifically warraus are reported to be amongst
the populations of significance who are migrating from Venezuela to Guyana.
Thus, Guyana cannot only rely on the
International Court of Justice and its strategic business and military partners
to secure its borders but must in its deliberate judgment ensure that the
immigration, military, social welfare and policing resources are adequately
deployed to interdict, document and deport those who are indeed trafficked to
Guyana for purposes that can indeed threaten its security and overwhelm its
population.
It should be noted on April 15, 2019 in Santiago,
Chile in what is known as the “Lima Group declaration”, several Latin American
Countries “Agree that Venezuela is experiencing a humanitarian, political,
economic and moral crisis generated by the illegitimate and dictatorial regime
of Nicolás Maduro, which constitutes a threat to international peace and
security, with regional and global effects.” The rule of law in Venezuela under
President Maduro is honoured in the breach rather than the observance.
Venezuelans, including the Venezuelan
President himself, Nicolas Maduro, has up the ante (particularly on with the
referendum, inflammatory rallies and speeches on social media and amassing
troops at the Border with Guyana). The stakes are high given Guyana’s recent
economic shift as an oil producing country. This is not a diplomatic exercise
on Venezuela’s part nor is it an exercise in which it will abide by the orders
of the ICJ, it is an exercise that potentially can destabilize investor
confidence in Guyana, cause Guyanese citizens grave unease and discomfort and
indeed set the stage for a soft invasion. The very legitimacy of the Venezuelan
government questionable.
We as Guyanese have to stay woke and stay
engaged. This is the time for all Guyanese to support our government in its
fight against this existential threat from Venezuela and its President Nicolas
Maduro.
Friday, July 28, 2023
Attorney General of Guyana, Sarah Browne, Vikash Ramkissoon v. Christopher Jones & Speaker of the National Assembly
Electronic Copy of the Full Judgment of the Guyana Court of Appeal in Attorney General of Guyana, Sarah Browne, Vikash Ramkissoon v. Christopher Jones & Speaker of the National Assembly Civil Appeal No. 50 of 2021
Desmond Morian v. Attorney General of Guyana Civil Appeal No. 19 of 2016 Order of the Court of Appeal
Desmond Morian v. Attorney General of Guyana (Civil Appeal No. 19 of 2016, 23rd January 2020) - Transcript Guyana Court of Appeal
Desmond Morian v. Attorney General of Guyana Ian Chang C.J. decision (2015-HC-DEM-CIV_CM-55, 19th February 2016
Wednesday, July 12, 2023
Ethical Conduct in Public Officer - meeting the test of rectitude
No one really is above the law, however that law is defined. As persons in the public eye, where as a Judge, Adjudicator, lawyer, Police Officer, Government Minister or even Influencer, we can be subjected to excessive scrutiny in terms of our actions and/or omissions. Obviously, it calls for some risk management in our personal and professional lives. In my professional life we call it "defensive lawyering", which means dotting the i's and crossing the T's. In our private lives it involves risk management or avoiding situations that can embarrass our profession, employer, family and friends. if one is living a risky lifestyle the odds of things going terribly wrong is greater given the obvious pitfalls.
This calls for an understanding that we are under a greater level of scrutiny. I know that as a lawyer of prominence whose images are flashed on televisions and who appears in newspapers and the internet more often that I like. It means that I can't do some of the things I would like to do or go to some of the places where I can socialize with people that I like.
I also know that as a Black man with dreadlocks if things go south I would be held to a higher standard: See, for example, Law Society of Ontario v. Guiste, 2023 ONLSTH 59 (CanLII), <https://canlii.ca/t/jwx9r>. See also my writings on the plight of Black lawyers in Selwyn Pieters, “Lawyer Regulation, Race and Justice: An updated Look at LSUC disciplinary matters involving Black and Visible Minority lawyers.” Selwyn Pieters : A Blog That is Organized Around the Lawyering Experience of Criminal and Human Rights Lawyer Selwyn Pieters and Things that Interest Him!!!!! (blog)12 December 2014, <http://selwynpieters.blogspot.com/2014/12/an-updated-look-at-lsuc-disciplinary.html> and Selwyn Pieters “Lawyer Regulation, Race and Justice”; Law Society of Upper Canada v. Selwyn Milan McSween, 2012 ONLSAP 003 <http://selwynpieters.blogspot.com/2014/12/an-updated-look-at-lsuc-disciplinary.html>
The task therefore is for us to recognize this and in so doing for us to meet the test of rectitude because we are constantly under public scrutiny.
Tuesday, December 20, 2022
Friday, December 02, 2022
Summary of the December 2, 2022 Rulings in Police Service Commission and Paul Slowe v. The Secretary of the Police Service Commission et al 2021-HC-DEM-CIV-FDA1004
By Selwyn A. Pieters B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Pieters Law Office
Police Service Commission and Paul Slowe v. The Secretary of the Police Service Commission et al 2021-HC-DEM-CIV-FDA1004
Georgetown, Guyana – December 2, 2022 - The Honourable Mister Justice Gino Persaud delivered an oral judgement via zoom videoconference on December 02, 2022 at 1:15 PM at the Demerara High Court in Guyana in the matter PSC and Paul Slowe v. The Secretary of PSC et al 2021-HC-DEM-CIV-FDA1004 in relation to two interlocutory applications brought by The Attorney General of Guyana, Commissioner of Police, and the Honourable Prime Minister as well as the Police Service Commission.
Mr. Paul Slowe was represented by Selwyn
Pieters, Dexter Todd and Dexter Smartt.
The Attorney General was represented by
Solicitor General Nigel Hawke, Shoshanna Lall, Chevy Devonish, R. Clarke and
Arti Outar.
The PSC was also represented by a lawyer
standing in for Darshan Ramdhani, K.C.
On July 5, 2022, The PSC Attorney, Darshan
Ramdhani, K.C., filed an application seeking permission for the application to
be wholly discontinued and for the Commission to withdraw the matter. The
matter then came back before the Court on July 11, 14, 22, August 24, and
September 20, 2022.
Attorney General and Minister of Legal
Affairs Mohabir Anil Nandlall, S.C., M.P., at the September 20, 2022 hearing
made an oral application for a stay of the proceedings pending the outcome of
an appeal filed on the Chief Justice’s ruling in Aubrey Norton v. Attorney
General of Guyana et al. 2022-HC-DEM-CIV-FDA-902, which held that the
Police Service Commission was not properly constituted.
Justice Persaud commenced his ruling on
December 2, 2022 by discussing the purpose of judicial review repeating
paragraphs 12-15 of his March 9, 2022 ruling:
No Lis between the parties to a claim for
judicial review
12. In
Trinidad, the C.A. in the matter of Dr. Myron Wing-Sang Chin, Farrell
(in their capacities as the Commissioners of the COI into the construction of
the Las Alturas Towers) v Noel Garcia, AG (CA# P-342/2017) delivered
on 16 January, 2019 reaffirmed the existing principle of public law that there
is no “lis” between the parties to a claim for judicial review.
Justice of Appeal Mendonca at para. 14 stated:
It is correct
to say that in judicial review proceedings there is no lis between
the parties. Judicial review proceedings are directed at the decision and not
the parties. As was said in Gilharry v. Transport Board et
al BZ 2012 CA 10, “what is vulnerable [in judicial review
proceedings] is the decision and not the decision maker” it is the “process by
which the courts exercise a supervisory jurisdiction over the activities of
public authorities in the field of public law”.
13. In the
case of R v Stratford-on-Avon District Council and another, ex parte
Jackson - [1985] 3 All ER 769 it was held that,
In judicial
review proceedings there is no true lis inter partes or suit by one
person against another: see R v Secretary of State, ex p Hackney London
BC
14. In the
case of R v Secretary of State for the Environment, ex parte
Hackney London Borough Council and another - [1983] 3 All ER 358 it was
stated at page 367 that,
Moreover, we
do not think that there is in judicial review proceedings any true lis between
the parties…
…the court
“is not finally determining the validity of the tribunal's order as between the
parties themselves” but “is merely deciding whether there has been a
plain excess of jurisdiction or not”. They are a special class of
remedies designed to maintain due order in the legal system, nominally at the
suit of the Crown, and they may well fall outside the ambit of the ordinary
doctrine of res judicata.
15. In the
case of Chief Constable of North Wales Police v Evans [1982] 3
All E.R. 141 at p. 143 per Lord Halsham stated.
The remedy by way of judicial review is directed at the decision-making
process itself rather than at the parties who made it. Its purpose “is to protect the individual against an abuse of
power by a wide range of authorities, judicial, quasi-judicial, and
administrative to ensure (he) is given fair treatment by the authority, to
which he has been subjected …”
Justice Persaud in his ruling said the two
applications has stymied the hearing of the substantive matter filed by Mr.
Slowe and there has been one application after another since the matter was
filed in the Court and engaged his attention.
On the application for a stay until the
conclusion of the appeal in Aubrey Norton v. Attorney General was
resolved. Justice Persaud considered in detail the May 25, 2022 ruling of Justices
Priya Sewnarine-Beharry and Fidela Corbin-Lincoln, sitting in the Full Court in
Attorney General v. Police Service Commission and Paul Slowe
2022-HC-DEM-CIV-FCA- 18 which upheld his March 09, 2022 jurisdictional ruling
to strike out application and substituting Paul Slowe as a party. He read
paragraph 5 of that decision which held that:
[5] The effect of the term of the
appointed members of the Commission becoming vacant is simply that there are
currently no members to carry out its functions. This by itself is not a basis
to strike out the claim under CPR 14.01. Members can be appointed at any time
to continue to carry out the functions of the PSC. Upon their appointment those
members could determine whether to continue or discontinue the claim. Of course
a court would be entitled to take the continued non appointment of members to
the Commission as a basis to strike out the claim as an abuse of process as
this would delay the prosecution of the action.
Justice Persaud read paragraph 6 of the
Full Court’s decision: “We therefore agree with the learned trial judge’s
decision to refuse the application to strike.”
Justice Persaud thereafter read paras 7-8
of the Full Court decision:
[7] We do not find that the order as
framed by the learned judge had the effect of permitting a private citizen to
carry out the functions of the PSC - a constitutional body. It is clear from the
reasoning of the learned trial judge that he found that Mr. Slowe had an
interest in his own right and not that he was continuing the action on behalf
of the PSC.
[8] We fully agree with the learned trial
judge’s reasoning as to why Paul Slowe is an interested party and should be
added. However, we do not find that it was necessary to substitute Mr. Slowe in
place of the PSC which remains an existing constitutional body albeit unable to
properly function in the absence of appointed members. Based on the reasoning
of the learned trial judge Mr. Slowe should be added as a party in his own
right. Apart from the court’s power to hear from any person with a sufficient
interest in judicial review proceedings [CPR 56.04] the court has a general
power to add a party at any stage of the proceedings [CPR 19]. The addition of
an interested party saves time and costs.
Justice Persaud then went on to consider
the Chief Justice’s declarations and orders in Aubrey Norton v. Attorney
General of Guyana et al. at paragraph 116:
(2) It is hereby declared that in the
absence of the appointment of the Chairman of the Public Service Commission to
the Police Service Commission, subsequent to the expiration of the life and or
term of the appointment of the previous Police Service Commission, the said
Police Service Commission is not currently lawfully and duly constituted in accordance
with article 210 of the Constitution of Guyana.
(3) As
a consequence, it is hereby declared that unto June 29, 2022, the second
respondent could not have lawfully consulted with the other members of the
Police Service Commission on the appointment of an acting Commissioner of
Police in the absence of the appointment of the Chairman of the Public Service
Commission as a member of the Police Service Commission pursuant to article 210
(1) (b) of the Constitution of Guyana.
(6) It
is hereby declared that in order for the Police Service Commission to exercise
any of the powers, functions, and or duties conferred on it by the Constitution
of Guyana, it is a mandatory requirement that upon the constitution of the
Police Service Commission subsequent to the expiration of the life and or term
of the appointment of the previous Police Service Commission, that a Chairman
of the Public Service Commission be appointed and be made a member of the
Police Service Commission pursuant to article 210 (l)(b) of the Constitution of
Guyana.
(7) As
a consequence, for the avoidance of any unforeseen consequences of my decision
regarding my finding that there is a deficiency in the Police Service
Commission as currently constituted, it is hereby declared that any action of
the said Police Service Commission as currently constituted is validated
pursuant to the de facto doctrine.
Justice Persaud having considered the Full
Court ruling in 2022-HC-DEM-CIV-FCA- 18 and the Chief Justice’s ruling in
2022-HC-DEM-CIV-FDA-902 dismissed the application as an abuse of the process of
the Court, holding that “there can be no stay of a declaratory order, and I am
not prepared to stay the proceedings before me, pending the appeal of the Chief
Justice’s ruling, which will leave the proceedings before me in limbo, since
that appeal would take time to be heard and determine, and we have no
indication how long that would take.”
Justice Persaud went on to say that the Norton
appeal has no impact on Mr. Slowe’s right to have the lawfulness of his suspension
adjudicated upon: “This is also an access to justice issue for Mr. Slowe. How
long should he wait as a litigant, who is entitled to access to justice to have
the legality of his suspension ruled upon while the respondents file
interlocutory application upon interlocutory application delaying the
substantive issue.
On the Police Service Commission
application to wholly discontinue the matter, filed by Darshan Ramdhani, K.C.,
the Court held that “It is patently clear that the application cannot be sustained
since the Police Service Commission is not properly constituted and cannot
participate in these proceedings. The application to discontinue the Fixed Date
Application is refused.”
Justice Persaud repeated paragraph 5 of the
Judgment of the Full Court which upheld his earlier decision on standing of
Paul Slowe as a litigant in the proceedings independent of the Police Service
Commission.
Justice Persaud found that “There are no
reasonable grounds which would allow the Police Service Commission to withdraw
the Fixed Date Application. The Police Service Commission cannot withdraw Mr.
Slowe’s right to have the legality of his suspension challenged.”
In summation, Justice Persaud made the
following orders:
·
The oral application for
a stay of proceedings pending appeal on Aubrey Norton v AG is an abuse
of process and is hereby refused.
·
The Notice of Application
filed by Mr. Ramdhani, filed 5 July 2022, is without merit and is refused in
light of the Chief Justice’s decision in Aubrey Norton which held that
the PSC is not properly constituted.
The timetable for the progress of the
proceedings are as follows:
1. The
Attorney General is directed to file an Affidavit of Defence on behalf of The Attorney General of Guyana, Commissioner of Police, and the Honourable Prime Minister by no later than
December 16, 2022.
2. The
Applicant Paul Slowe is directed to file an Affidavit in Reply by not later than December
23, 2022.
3. Written
Submissions are to be filed no later than January 9, 2023.
4. The
Police Service Commission is not entitled to file an affidavit. However, they
may provide written submissions.
5. Oral
arguments will be heard on January 16, 2023.
END/
Thursday, September 15, 2022
The Attorney General v BK MARINE INC and Winston Jordan
By Selwyn A. Pieters B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Pieters Law Office
Created September 15, 2022
The High Court recently dismissed a civil action by the Attorney General of Guyana Mohabir Anil Nandlall in 2021-HC-DEM-CIV-SOC-25 AG v. BK Marine and Jordan asserting the tort of misfeasance in public office or in the alternative breach of fiduciary duty. What is instructive in this case is Justice Brassington Reynolds relied on the seminal U.K. case Three Rivers District Council v. Bank of England (No. 3), [2000] UKHL 33, [2000] 2 WLR 1220, [2000] 3 All ER 1. In that case Lord Steyn held that: "The rationale of the tort is that in a legal system based on the rule of law executive or administrative power 'may be exercised only for the public good' and not for ulterior and improper purposes." Three Rivers was adopted and applied by the Caribbean Court of Justice in Florencio Marin v The Attorney General of Belize, CV 5 of 2010, [2011] CCJ 9 (AJ).
The test to be met to establish this tort Justice Reynolds found are as follows:
[16] The elements of the tort as adumbrated in Three Rivers supra and cited in Florencio Marin v The Attorney General of Belize, are as follows:
(i) The Defendant must be a public officer;
(ii) There must be the exercise of power as a public officer;
(iii) The Public Officer must either have acted out of malice i.e., specifically intending to injure a person or persons (“targeted malice”); or acted knowing that he had no power to do the act complained of and that the act would probably cause injury to the plaintiff (“untargeted malice”);
(iv) Any Plaintiff with a sufficient interest to found a legal standing to sue was competent to bring the action;
(v) The plaintiff must prove that his loss was caused by the abuse of power; and
(vi) The damage must not be too remote.
In applying the test to this case Justice Reynolds found that:
[23] Having regard to the above elements of the tort and the principles formulated in various case law, this Court is not of the considered view that the Claimant made out a case of misfeasance in public office. The Court found favour with Counsel for the Second Named Defendant’s contention that the instant case can be distinguished from Florencio Marin v The Attorney General of Belize. It is the court’s respectful finding that the Marin case is clearly distinguishable from the case at bar, as the subject properties for reasons to be later adduced are clearly not state property within the meaning of the authorities; any property in the state lying properly in its ‘shares’ in the fourth-named defendant company.
[24] The Claimant in this instant action has also failed to plead or prove that the Second Named Defendant has accrued any personal benefit from the alleged sale of the land and that he had acted in bad faith or had a dishonest motive. No sufficient circumstances have been pleaded or brought to the attention of the court on the evidence which can ground a finding to the extent required of misfeasance in public office. The threshold of sufficiency has not been achieved by the Claimant to ground a finding of misfeasance in public office on the authorities. It is not sufficient for the claimant to allude to or to invite the court to infer that the parties have acted in bad faith or with any dishonest motive, even more so in the absence of any true comparator as to the value of the subject property; the court being itself unable to substitute or ascribe any valuation of its own motion.
The Judge went further to find that "the claim constitutes an abuse of the Court’s process and cannot be allowed to stand."
The Court then Ordered "the Claim instituted by the Attorney General on the 8th day of February 2021 be struck out with costs to the first-named and second-named defendants in the sum of two (2) million ($2,000,000.00) dollars each."
The Attorney General of Guyana appeared in person to prosecute this claim against the former Minister of Finance Winston Jordan and was all over the media speaking about the case. His Honour however did not found that "the claim by the Attorney General to have been politically motivated or actuated by bad faith, vindictiveness, and spite..."
This decision by Justice Reynold was sound judicial reasoning about a hopeless case that was bound to fail and should not have been instituted in the first place.
However, my expectation is the State will appeal all the way to the CCJ.
Friday, September 02, 2022
Constitutional Law Cases engaging the Courts in Guyana 2022
By Selwyn A. Pieters B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Pieters Law Office
Created September 01, 2022
These are some recent cases in which I am involved as co-counsel in Guyana:
2022-HC-DEM-CIV-FDA-469 Chris Jones and Norris Witter v. Attorney General of Guyana et al. This case concerns the Sitting of the National Assembly on December 29th, 2021, the conduct of the session including the absence of the Mace and the failure to consider a petition by 64 civic minded citizens. Mr. Witter and 63 other citizens had submitted through a Member of Parliament a Petition in which it sought a pause on any debate on the Natural Resource Fund Act (Bill) in order that the Government fully engage with both the Opposition and Civil Society. That the Petition also sought a pause on any debate in order to provide an opportunity for the proposed amendments be made available to the citizens. This Bill was not put before a Special Select Committee. Parliament erupted in chaos as Government Members and some Opposition Members in engaged boisterous and loud shouting at each other across the well of the National Assembly. The Natural Resource Fund Act 2021 was passed in the absence of the Mace. The Natural Resources Bill assented to by the President on December 30th, 2021. Jones and Witter are seeking:
1.
g) A Declaration that in accordance with Article 154A of the Constitution which mandates that Human Rights enshrined in International Conventions set out in the Fourth Schedule to the Constitution shall be respected and upheld by the Executive, consequently the Executive in designing and formulating a Natural Resource Fund policy for Guyana is required and obligated by the Constitution and Covenant on Civil and Political Rights to engage in consultation with the Stakeholders and Citizenry of Guyana.
A trial is scheduled for September 12, 2022.
i.
leave to the No. 1 Respondent
to file a NOA to strike out the Fixed Date Application (FDA) on or before the 29th
August 2022
ii.
leave to the No. 2 Respondent
to file an NOA to strike out the No. 2 Respondent from the proceedings on or
before the 29th August 2022
iii.
leave to Applicants to file
Affidavit in Answer to NOAs from No 1 and 2 on or before the 19th September
2022
iv.
Respondents to file Affidavits
in Answer to the Notice (NOA) of Application for Conservatory Orders on or
before the 19th September 2022
v.
Applicants to file their
Affidavits in Reply, if necessary on or before the 3rd October 2022;
vi.
No. 1 and No. 2 Respondent to
file Affidavit in Reply if necessary, on or before the 3rd October 2022
vii.
written submissions on all four
NOA’s to be filed and exchanged on or before the 12th October 2022;
viii.
matter fixed for the 1st
November 2022 at 9:30 hrs. for oral arguments on all four NOA’s.