The truth about the Lotto Fund cannot be more different

Jan 13, 2013 Letters

Dear Editor,
Attorney General and Minister of Legal Affairs Mr. Anil Nandlall has taken to the airwaves over an oral decision handed down by Justice (ag.) Madame Diane Insanally in the case of Desmond Trotman versus Attorney General, popularly known as the Lotto Funds case.
The Government, principally through Mr. Nandlall, has been claiming that Justice Insanally decided the case on its merit, finding that “the deposit of the monies in the Development Fund of Guyana (Lotto Fund) is in accordance with Article 216 of the Constitution, the provisions of the Fiscal Management and Accountability Act and the Lotteries Act, thereby vindicating the Government’s position.” The truth cannot be more different.
Perhaps a bit of background might help. The action was initiated in April 2010 by Mr. Desmond Trotman, a political activist and now Member of Parliament for the APNU. Essentially, Mr. Trotman asked the Court through his attorneys (Mr. Miles Fitzpatrick, S.C and Christopher Ram), whetherthe share of the revenue received by the Government from the Guyana Lottery Company Limited, a private company incorporated under the Companies Act 1991, is required to be paid into the Consolidated Fund in accordance with Article 216 of the Constitution and sections 21 and 38 of the Fiscal Management and Accountability Act 2003. And as a consequence, whether the expenditure by the Government of those moneys without the authority of Parliament is unconstitutional and illegal.
On June 2, 2010, Mr. Ashton Chase S.C. and Ms. Pauline Chase, on behalf of the Attorney General did not respond to the issues raised but instead asked the Court to strike out the plaintiff’s action on the following grounds: a) that the action failed to comply with the rules of the High Court; b) that Mr. Trotman had shown no right, legal or equitable, to seek any order by the Court; and c) that Mr. Trotmanused the wrong procedure.
On November 16, 2010, Counsel for the Permanent Secretary of the Ministry of Legal Affairs, on behalf of the Attorney General, deniedthe allegations and legal arguments and asked the court to strike out the matter on two principal grounds: failure to follow established practice; and failure to show that Mr. Trotman had any legal or equitable right to bring such an action. He also took objections to the court being referred to as humble.
On February 7, 2011 attorneys for the Attorney General submitted Skeleton Arguments in which they emphasised what they considered breaches of the Rules of Court and procedures and the question of Mr. Trotman’s standing, placing heavy reliance on a judgment given by Ramson JA in the case Trotman et al v. The Attorney General (Civil Appeal No. 79 of 2006). They also referred to the Government Lotteries Act, Cap. 80:07; and, referring to the “preliminary points” raised in the submission, asked the Court to dismiss the action.
On April 5, 2011 Attorneys for Mr. Trotman submitted their own Skeleton Arguments, and citing a number or cases, orders and rules, challenged the principal submissions made by the Attorney General. Specifically Mr. Trotman’s Attorneys pleaded that the fiscal provisions of the Constitution are not intended for the protection of parliamentarians alone and that where parliament will not act and the constitutional official responsible for the protection of the Consolidated Fund fails over years to seek the assistance of the Court, any citizen has a legitimate interest in ensuring compliance.
On April 28, 2011 Mr. Chase submitted a “Brief Response to Arguments for Plaintiff” stating thatthe Skeleton Arguments had not addressed the important issue of Mr.Trotman’sright to bring the action, claiming court was bound by the ruling in Trotman et al v. The Attorney General (Civil Appeal No. 79 of 2006).
By way of response, an Affidavit dated June 14, 2011 from Mr. Stephen Fraser, lead counsel in the Trotman case, outlined the circumstances of the case to establish that that part of the decision on which the attorneys for the Attorney General relied had been wrongly arrived at.
On December 28, 2012, Justice Diane Insanally in a brief hearing in Chambers delivered her decision on the arguments, ruling against Mr. Trotman on the procedural points, but NOT on the merits of the case. Subsequent efforts by Counsel to obtain a copy of the decision were unsuccessful, prompting Senior Counsel Miles Fitzpatrick to write the Judge requesting a written decision.
Through his Attorneys, Mr. Trotman has lodged an appeal from the decision of the Court.
Christopher Ram

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