Citing case studies in support of President Granger’s decision

Jan 12, 2017 Letters

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Dear Editor,
The law, and fact, of the matter is that the President in the exercise of his own deliberate judgment (no doubt taking as he is entitled to do, the learned Attorney General’s advice) decided and acted to revoke the unsanctioned Red House Lease. Learned PPP Counsels have the effrontery to suppose that some “rule of law” does not permit the President to act on the advice of the constitutionally assigned government’s principal legal adviser, that the non-sanction makes the Red House Lease void.  As Cummings, JA., put it long ago in a Guyanese constitutional case of Jaundoo V Attorney General “lend wings to our feet”, so that Mr. Ramkarran and Mr. Nandlall would not advise themselves or commentate, rightly, that what President Granger did is unarguably and unquestionably, legally sound and correct.
Does validity of one’s act, if valid, depend ex post facto a court order? Where is their judgment? Where is their reason? They remind me of Mark Anthony’s epistle in Shakespear’s Julius Ceaser – “Oh judgment thou art fled… and men have lost their reason”. Would it not have been the “height of executive lawlessness” if, President Granger, being aware of the unsanctioned, Lease had allowed its perpetuation? Most certainly. So, it was in the exercise of his own deliberate judgment as if to invoke his Common Law right as President (a right arises also at least by necessary implication of section 10(1)), he condignly acted to avoid such perpetuation. Perpetuation of such a flagrant fundamental statutory breach was not an option.
No “security of tenure” can only be based on the existence of a statutory tenancy under the Rent Restriction Act Cap. 36:23, arises in the events which have happened in this matter; how both statutes (section 10(1) of the Lands Department Act, Cap. 59:01; the Civil Law of Guyana Act Cap. 6:05 – section 3(d)(iv) about evidence in writing and statute of Frauds; State Grants (President’s Signature) Act Cap. 62:04) and case law (Commercial Cable Co V Government of Newfoundland (1916) PC; Bull and Other (1916) 2AC564, Cramped Int. V Thomas (1989) PC, shows that as the learned AG Basil Williams has submitted, the Red House Lease is void; how as case law shows there is no statute or common law that requires the Government to first obtain an order or leave of the court to eject/evict the CJRC I Trustees (the lessee) for as Harman, J. stated in Aglionby V. Cohen(1955) viz “ It has been well known to the law ever since the celebrated case… that if no more force be used than is necessary, a man may turn a trespasser off his property and put his chattels out of the house” or as Lord Greene, MR puts it in an illuminating judgment in Butcher (1942): “They were exercising a remedy inherent in their right of property, namely, the right to take their own property by lawful means whenever they could and to eject a trespasser”
Lord Greene, MR. gave illustrations (including that of the owner of a bicycle retaking it from a thief) that exploded the mythical fallacy of a landlord (except where a statutory tenancy exists) first having to obtain an order of court; and how the maxim: ex nihilo, nihil fit (ie out nothing can come nothing) applies to this void Red House lease. And how it is one possible view, that upon an interpretation of the National Trust Act, as a whole, (esp section 5&7 too), the National Trust had to also be a party to any lease, (not of course as Landlord/ lessor) but in its capacity of statutory trustee of the building. The evidence is that that did not happen. Such omission was repugnant to the NTA and accordingly the lease is void for repugnancy.
The lessee (ie the CJRC I) and their Attorney are advised that they have a duty to mitigate, not exacerbate their wrong, and that government has an option to claim and obtain from the lessee substantial damages (mesne profit), they being trespasser, for wrongful user of the Red House premises. They are also advised although I express no detinitive opinion, that wilful trespass is a criminal offence in Guyana (section 33(c) Summary Jurisdiction (offences) Act Cap. 8:02) and it may well be that having been asked to vacate, and having refused the trustees are liable as wilful trespasser. And, now omission, or failure to obtain, and to sanction (as required by section 10(1) of LDA) is a (statutory) fundamental breach.
The Common Law of contract does not require first that one seeks a judicial determination that a fundamental breach has happened, and that he can elect to treat the contract has ended, before he can so do, albeit he does so at his own risk of being found to be wrong in the event of litigation eventuating. The same Common Law of recessionary fundamental breach applies to this Red House Lease. What is required in this matter, is a judge-like, detached sobriety of judgment. While PPP aligned lawyers may disagree with some of the AG’s submissions, he has reached the right conclusion that the Red House lease is void, the President’s revocation is legally in order, and the Government, as it attempted to do, can peaceable reenter.
Maxwell.E. Edwards
Attorney-At-Law

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