Monetary lawsuits against the State

Aug 14, 2022 News

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The Court Journal

By Renay Sambach

Kaieteur News – Attorney General (AG) and Minister of Legal Affairs, Anil Nandlall, SC, recently unveiled in the National Assembly that “almost every day” the State is being sued. He also noted that with each lawsuit against the State comes with a price attached and taxpayers’ dollars will have to be used to for legal fees.

As such, this week I will highlight recent lawsuits that were filed against the State seeking monetary damages. Monetary damages, also referred to as legal damages, are material compensation, essentially money that is awarded to an injured party in a lawsuit.

WRONGFUL INCARCERATION  

In December 2021, Colin Bailey, 57, who spent five and half years incarcerated for the capital offence of murder, sued the State for in excess of $100 million on claims of unlawful arrest, detention, inhumane and degrading treatment.

Despite there was no evidence against Bailey for the capital offence, he was charged with the August 2013 murder of his reputed wife Sirmattie Ramnaress – and spent years behind bars.

Bailey has always maintained his innocence. In his defence, Bailey had stated that he and Ramnaress met in 1992 and started living together.

According to him, at the time of her death, they were building a house in Diamond, East Bank Demerara. He explained that on the day his wife was found murdered, he was on duty at the Cheddi Jagan International Airport (CJIA) for a State visit by the President of Venezuela.

After investigations, Bailey was initially charged for murdering his wife on November 24, 2016.  Justice Jo-Ann Barlow in making her decision at the Demerara High Court, said that he should not have been before the court and that it was a waste of judicial time, as such, Bailey was freed on October 13, 2021.

Following his release, Bailey filed legal proceedings against the State. He named the AG and the Director of Public Prosecutions, Shalimar Ali- Hack, SC, as respondents in his Statement of Claim.

Through his lawyer, Nigel Hughes and Associates, Bailey is seeking a number of declarations and monetary compensation.

He is asking for a declaration that his arrest and detention was without lawful justification, that the decision by the DPP to institute murder charge was an abuse of power and also a declaration that the delay in his trial was a breach of his guaranteed right to liberty and a fair trial. He has also asked the High Court to declare that the failure to provide basic medical facilities at the Lusignan Prison and his exposure to COVID-19 was inhumane and degrading.

In addition, he has asked for several $100,000 sums to compensate individually for wrongful preferment of the charge of murder, wrongful detention, malicious prosecution and denial of his right to protection from inhumane and degrading treatment, among others.

COMPENSATION FOR PARKING METERS

Also in December 2021, the AG had announced that Smart City Solutions (SCS), a Mexican Company, had sued the Government of Guyana (GOG) for US$100 million as compensation in relation to a parking meters project which was introduced under the previous administration, some five years ago.

The project was introduced in 2016 by the Georgetown Mayor and City Council (M&CC) under the stewardship of Mayor Patricia Chase-Greene. However, the project was stalled after it was rejected and faced massive protest by many citizens.

Nandlall said that most people might have forgotten about the parking meters project but the company has not. “We all forgot about the parking meters project. Well, the company that was responsible has not forgotten. The company has filed proceedings in an institution called the International Center for Settlement of Investments Disputes (ICSID) in Washington DC, against the Government of Guyana,” he related.

The ICSID is an international arbitration institution established in 1966 by the World Bank Group for legal dispute resolution and conciliation between international investors and States.

The case was filed on December 22, 2021, by the claimants: Pillsbury Winthrop Shaw Pittman, New York, NY and Houston, TX, U.S.A, and Fraser & Housty, Attorneys at Law, Georgetown, Guyana. The Attorney General’s Chambers, Ministry of Legal Affairs, Georgetown, Guyana, was listed as the respondent.

According to the ICSID website, the status of the matter is pending and the latest development in the matter is that the acting Secretary-General has registered a request for the institution of arbitration proceedings.

NEGLECTING TEEN IN CUSTODY

Earlier this year, a monetary lawsuit was filed against former Director of the Childcare and Protection Agency (CPA), Ann Greene and the agency for in excess of $25 million for neglecting a 14-year-old girl in police custody for days where she endured inhumane and adult-like accommodation.

In this lawsuit, the third name respondent was listed as the AG; he was listed in the matter owing to CPA not being a statutory body in the statute – resulting in the liability of the entity falling on the AG as representative of the State.

According to the court document, at the time of the incident, the claimant was 14 years old.

The teen is being represented in the matter by her sister and a friend. On behalf of the claimant, attorney-at-law Eusi Anderson filed the legal proceedings in the High Court.

The claimant is seeking monetary compensation against Greene and the agency for negligence – in which they breached the duty of care owed to the claimant, imposed on them by the laws of Guyana.

In addition, the claimant is also seeking the following: a declaration that CPA and Greene breached the statutory duty of care to the claimant imposed on them by, inter alia, the CPA ACT 2009, and the Juvenile Offenders Act, Chapter 10:03; another declaration that Greene and the agency breached the duty of care to the claimant imposed on them by virtue of Guyana’s accession to and ratification of the Convention on the Rights of the Child (Resolution No. 44/25 of 20 No. 1989.)

For exemplary and punitive damages for negligence in which Greene and CPA failed to remove the teen from the custody of the Commissioner of Police during the period December 4 to 7, 2020 after visiting her in his custody on December 3, and 4, 2020, the claimant is also seeking cost, interest pursuant to the Law Reform (Miscellaneous Provisions) Act and such further or orders as the court deems just.

The document states that between December 3 and 7, 2020, the minor was held against her will and under arrest at the East La Penitence Police Station in a narcotics investigation. At the time of the arrest, the claimant was 14 years old and 11 months.

The applicant is claiming that she spent five days in the prisoners’ cell at the police station with adult female prisoners. During that time, the document states that the teen was subjected to sleeping in an upright position on a wooden chair, sleeping on a mattress and cardboard on the cold concrete, sexual predatory advances by other prisoners, being foot cuffed to a wooden chair by her ankles for hours and is a victim of infinite pain and trauma.

It was further stated that Greene and CPA were aware of the aforementioned transgressions except the sexual advances.

On December 7, 2020, a bail application and habeas corpus proceedings in favour of the claimant were filed and heard by the acting Chief Justice, Roxane George-Wiltshire. The Judge had ordered that the minor be released into the custody of Greene and CPA on December 7, 2020. It was further mentioned that Greene and the agency had indicated to the Judge that they were aware of the teen’s detention and had even noted that officers from CPA had visited the teen while she was being kept at the station.

During the hearing, Greene had informed the court that efforts were being made to persuade the Commissioner of Police for the release of the teen into their custody since December 3, 2020.

“The first and second name defendants [Greene and CPA] had a primary duty; and the third named defendant [Attorney General], a secondary duty, to ensure that the statutory duty of care imposed by the Juvenile Offenders Act, the Rights of the Child Convention and the Child Care and Protection Agency Act 2009 on them, to the claimant, was discharged,” the document states.

In February 2022, a second legal proceeding was initiated in relation to the teenage girl that was left in police custody.

The second proceeding was filed against the AG, former Commissioner of Police, Nigel Hoppie, and two police ranks.

While in the first lawsuit, the claimant was seeking in excess of $25 million – in the second lawsuit, the claimant is seeking in excess of $155 million.

The first named respondent is Police Constable Orlando Harris, and the second named respondent is Police Corporal Amelia James. Harris is the rank who reportedly arrested the teen and James is the rank who supervised the detention of the teen at the East La Penitence Police Station, Georgetown.

The top cop was listed as the third named respondent as he is the operational head of the GPF and makes policies, while the AG was sued as an official representative of the State.

 

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