Winston Jordan still to answer challenge to cancel ECD land deals

Aug 15, 2020 News

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Former Finance Minister Winston Jordan is still to file an affidavit in answer to the legal challenge by Kaieteur News Publisher, Glenn Lall over the sale of prime lands on the East Coast Demerara (ECD).
Lall moved to court last July to have the sale of 130 acres of lands on the ECD by A Partnership For National Unity +Alliance For Change government quashed.
The case lists Former Finance Minister Winston Jordan, National Industrial and Commercial Investments Limited, (NICIL) and the Attorney General as respondents.
However, weeks after the litigation began, nothing has been filed by or on behalf of the former Finance Minister as it relates to his role in the sale of the state properties.
During the hearing of the case yesterday, Attorney for Jordan, Olayne Joseph indicated that she still had no submissions to file.The Court was also informed that the newly appointed Attorney General (AG) Anil Nandlall needed time to consider his response since his office is in transition mode.In the meantime, Devindra Kissoon, the lawyer for NICIL has moved to have the matter struck out.

Presiding Justice Sandra Kurtzious heard arguments on the application to throw out the case yesterday. She is scheduled to rule on her finding next Thursday at 2:00 pm.
At the interim, the Judge is left to consider issues raised by Lall‘s Attorney, Sanjeev Datadin and the Counsel for NICIL.Kissoon had laid over submissions in which he contended that among other things, Lall had wholly misinterpreted Section 8 of the Public Corporations Act (PCA), Cap. 19:05.
The Attorney had referenced the explanatory memorandum, which states that “Section 8 of the Public Corporations Act was amended by the passage of the Public Corporations Amendment Act 1990 to empower the Minister assigned general responsibility for public corporations to transfer by order under that section to a private company or individual the undertaking or any other property of any public corporation or body corporate owned or controlled by the State…”

He explained further in the defence, that from at least 1992 to present, Vesting Orders have been used to vest numerous State lands to NICIL and from NICIL to private companies or persons.
According to the lawyer, the practice facilitated the resale of state lands to various individuals and companies.
However in response to the contention, Datadin told the Court that it was NICIL that has misconstrued its position in the action filed.
The lawyer stressed that the matter was challenge to the Minister of Finance and not NICIL.
“The allegation is against Minister and not NICIL,” he said.
He stressed that NICIL is just a party to the proceeding: “NICIL has no power or authority to transfer State land under the PCA.”
The lawyer noted that it is the action of the Minister that is being challenged.
He noted too that in the absence of an affidavit in answer from Jordan it would be difficult for the court to assess whether action by the former Minister was lawful.
He said that because Jordan acted on June 1, 2020, after elections, when there was no Parliament or Cabinet in place, his conduct is brought into question.
Further, Datadin told the Court that Kissoon’s reliance on the explanatory memorandum to the 1990 Bill which amended the PCA 1988 is only available for consideration by the Court in determining the meaning of Section 8.
He noted that external aids to statutory interpretation are not to be used when the statute has clear and precise words capable of interpretation.
“There is no ambiguity,” he said.
Further the lawyer denied that the PCA has ever been used to transfer government assets from NICIL to private companies.
Datadin argued too that the words of Section 8 of the PCA refer to a “corporation” which is defined in the Act itself to mean an entity incorporated under the PCA or its predecessor legislation.
This, according to Datadin, could not in any way lend itself to private companies.
He emphasized that the legislation could not be interpreted in a manner to defeat the common law and statutes which relate to the conveyance of land.
“The need to have transfers advertised and gazetted with the right to opposition could not be implied in the statute,” he said.
The lawyer held that in the circumstances, the Minister is obliged to act reasonably and act in a manner consistent with the common law and all statutory provisions.
“The statute could not be interpreted without recourse to reasonableness; no public official is entitled to absolute authority. Every public official must exercise their authority in a reasonable manner; the failure to do so would render the exercise of the discretion unlawful,” he added.
Further, Datadin told the Court that even if one is to assume that the Minister was entitled to transfer property to private companies/individuals, the gazetted orders relates to the sale of the lands.
He advanced therefore that “The transfer powers mentioned in the PCA are different.”
“The transfer of state property pursuant to Section 3 of the PCA is vastly different from Section 8. In Section 3, there is the ability of the Minister to have his order stand as a title; this is not permitted in Section 8… [it]is more limited and does not permit a full transfer to be done,” the attorney held.
He noted further that the orders all provide for “amendment.” to have the actions reversed by a Minister.
“That is inconsistent with the transfer of title. The transfer must be absolute and cannot be fettered.” Further, describing the transaction as inchoate, the attorney said that transfer pursuant to Section 8 could not be in the terms expressed as being final.
“In so far as the gazetted order reflects that position, it’s ultra vires. In the event reliance is being placed on Section 3, that would be inoperative because it would require a negative resolution in Parliament,” he stated.
Last July, publications of the Official Gazette of orders numbered No. 64, 66, 67, 68, 69, 70, 71, 72 and 73 pointed to the sale of several plots of lands on the ECD.
The massive land deal came to light after the vesting orders, bearing Jordan’s signature, were posted on Facebook, mounting suspicions that the then Coalition government was giving away lands before demitting office.
As such, Lall filed an application seeking orders from the Court to reverse the action that the former Minister on the ground had no power or authority to transfer State lands to any person or entity under the control of the Minister, pursuant to Sections 8 and 11 of the Public Corporations Act (PCA); Cap. 19:05. PCA.
The newspaper publisher believes that the patrimony of the country must be disposed of transparently and in a manner which ensures value for money.”
He noted that “if the lands and the country’s natural resources, which are being given out, are done in a transparent manner and at real market value, Guyana can alleviate poverty, eliminate its foreign debt and triple the salaries of public servants.

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