July 21, 2008

CCJ rules in favour of TPL ( Guyana)

CCJ rules in favour of TPL for part of long-disputed Turkeyen land
Source: Stabroek News - Guyana
Published July 16, 2008

State to retain control over other parcels
The Caribbean Court of Justice (CCJ) yesterday ruled in favour of Toolsie Persaud Limited (TPL) for a section of land at Turkeyen that had been tied up in a marathon legal dispute dating back to 1989 but lost its claim to land that the court said was always in possession of the State.

Land identified in Toolsie Persaud’s petition to the CCJ as areas, `F’, `G’ and `H’ were found to be within lawful claims of the company in addition to an area identified as `C’ but the court ruled that a complication arose with `C’ given that the previous owner, Shivlochnie Singh had transported the land to another person and that individual was not a party to the proceedings.

The court in a lengthy judgment ruled that TPL had successfully petitioned for prescriptive title by adverse possession for 12 years by combining the state’s and its hold over the land since 1977 but it cannot now assert any rights against the current owner of land referred to as C’, who was named as Raymond Austin, since he was not a party to the proceedings in court. According to the judgment, the CCJ, Guyana’s final court of appeal, found that it was quite improper to make any order which affected Austin without giving him an opportunity to be heard.

“It is unfortunate that, given the inordinate length of time that these proceedings have been in progress, that is, some fifteen years (the duration of the appellant’s case), the final disposition of this case will still leave the appellant with another hurdle to cross if it is to succeed in securing title for area ‘C’, but this is a consequence of events over which we had no control’, the CCJ said in its decision.

But ruling on the principal issue of whether the State can acquire by adverse possession land, which it had taken possession of under an order for compulsory acquisition, which had subsequently been declared by the court to be invalid, presiding Justices of the court President Michael de la Bastide; Rolston Nelson; Duke Pollard; Jacob Wit and David Hayton said that physical occupation and use of land with the intention of excluding everyone else, amount to adverse possession, whether the occupier acts in good faith, believing himself to the owner, or in bad faith, knowing that someone else is the owner.

Further they said that the state appears on the record of title as the lawful owner of the other parcels of land and cited a fundamental rule which is that, “possession is never adverse if it can be referred to as a lawful title” and therefore dismissed Toolsie Persaud’s petition for prescriptive title to those areas identified as `K’; `J’; `N’ and `O’ calling it, misconceived. The company’s petition against the State in respect in respect of the area called `K’ was also dismissed since the court found that an Albert Chung-Wee had been the lawful title holder at the time of the compulsory acquisition of the land in 1977.

In its judgment, the CCJ pointed out that the legal disputes relating to the October 1987 contract between the state and Toolsie Persaud remain to be resolved as they, too, were not within the ambit of the appeal.

“It would be an extremely unfortunate waste of resources if these prime lands for development stagnated for decades yet to come due to protracted litigation over the contract. It is hoped, therefore, that the disputes arising from the contract can be speedily settled by the parties with the aid of their legal advisers”, the court said.The CCJ also expressed hope that such a settlement will not be delayed by a protracted dispute between the Toolsie Persaud and Raymond Austin over area C’.In April, 2008 when the matter went before the CCJ the court reserved judgment but requested that the attorneys make written submissions in 14 days on how the court should fashion relief or remedies, were it to find favour with Toolsie Persaud’s application.

In its petition before the court Toolsie Persaud named the Attorney General; Andrew James Investment Limited and Shivlochnie Singh as respondents and was seeking a declaration that it had acquired title by prescriptive title by undisturbed adverse possession of land for 12 years referred to as areas, `C’; `F’; `G’; `H’; `K’; `N’; `J’ and `O’ as being part of Plantation Turkeyen, East Coast Demerara.

But the petition was opposed as to areas `F’; `G’ and `H’ by Andrew James Investments Limited; area `C’ by Singh and areas `K’; `N’; `J’ and `O’ by the Attorney General on behalf of the state.

The entire tract of land had been the subject of a compulsory acquisition order (CAO) of June 8th 1977. In October 1987 the state contracted to sell the entire tract to TPL and the company took possession in April 1988. In March 1989, the First Respondent (James) filed a constitutional motion challenging the CAO. Kissoon J ruled in the favour of the First Respondent in May 1990 and title was returned to it. An appeal by the state of this decision was dismissed by the Court of Appeal in March 1995. The second respondent (Singh) also succeeded in having title returned to her in July, 1995 after launching proceedings in November 1989.

In 1993, TPL filed a petition claiming prescriptive rights by adding its own adverse possession to that of the state. It was this tack that won its case against the First and Second respondents as the CCJ found that the respondents could have taken action earlier against the CAO.

The CCJ held that “a landowner’s right of action to recover his land arises as soon as he can bring an action in which he can claim recovery of title and possession. Thereafter, time runs against him. An action could have been brought against the State from 8th July, 1977 claiming that the CAO and the acquisition of title thereunder were invalid and requiring title and possession to be restored to the relevant landowner. After the appellant took possession in April 1988, the action needed also to be brought against the Appellant. However, no action was brought against the Appellant by the First or Second Respondents up to the time the Appellant filed its petition. There had therefore been the requisite twelve year period (1977 to 1989) during which the State and then the Appellant were successively in possession of the land”.

Attorneys Sir Fenton Ramsahoye SC; Anand Ramlogan and Chandraprakesh Vikash Satram appeared for the appellant, Toolsie Persaud while Ashton Chase SC and Sase Narain represented Andrew James Investments Limited and Rex McKay SC; Neil Boston and Hukumchand appeared for Singh.

The court has ordered that Andrew James Investment Limited and Singh are to pay two thirds of the costs incurred by Toolsie Persaud in the petition while TPL is to pay one third of the AG’s costs.

July 09, 2008


CARICOM or Guatemala

“Man, proud man
Dress’d in a little brief authority
Most ignorant of what he’s most assur’d
His glassy essence – like an angry ape
Plays such fantastic tricks before high heaven
As make the angels weep.”
—William Shakespeare

I prefer the Jamaican creole patois version of the above, which goes as follows:

“Likkle men wid brief authority
Beat dem likkle puny chests to the sky
Whilst di angels dem haffi cry.”

As the Opposition during the last administration, the present government voted against Belize signing on to the CCJ (Caribbean Court of Justice) at a vote taken in the National Assembly. Following the recent visit and seminar given by the Justices of the CCJ, the present government, in the person of the Attorney General are now saying they are willing to “revisit” their previous stance on the CCJ. We’ll see.

“During the past few years, the people of British Honduras have begun to realize that they are the victims of a monstrous conspiracy to deprive them of their country.” –Hon. Philip S.W. Goldson,
United Nations, New York, 30 August 1967

“ The time to save your country, is before you lose it.” —Hon. Philip S.W. Goldson

In the mean time, the life-sized bust of this Belizean patriot, tireless benefactor, and national hero is allowed to sit languishing on the muddy roadside along the Northern Highway. The attitude seems to be that if you ignore it, and its messenger (the sculptor), somehow the message will likewise be ignored, maybe even go away. We’ll see.

It is sometimes said that one’s attitude will determine one’s altitude. However the converse is also true. Altitude can determine attitude. Pilots learn very early in flight school that adequate altitude is the aircraft’s life blood. Fly low and the engine fails, no chance for recovery, gravity quickly determines the aircraft’s attitude, nose dive, spin, crash and burn. On the other hand, fly high enough, the engine fails, there is room for recovery, maintain a nose up attitude, glide, find a landing area, land, survive.

So, just as choosing an adequate flight level (altitude) is important for survival in an aircraft….similarly choosing and maintaining a high standard of association is important for survival as a people and as a country.

CARICOM, and its two main organs - the CSME ( Caribbean Single Market and Economy), and the CCJ, I venture to say, do not need Belize half as much as Belize needs them. For Belizeans of the Caribbean diaspora, it may just be our last chance of survival as a people. I am again reminded of the statement Derek Walcott from St. Lucia made on receiving his Nobel Prize in Literature....” That a day may come when people may ask not only what became of our shores and bays, but of a whole people.”

Currently CARICOM has fifteen (15) full members - Antigua & Barbuda, Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, St. Kitts & Nevis, St. Lucia, St. Vincent & the Grenadines, Suriname, Trinidad & Tobago. There are five(5) associate members - Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Turks & Caicos Islands. There are seven observers - Aruba, Colombia, Dominican Republic, Mexico, Netherlands Antilles, Puerto Rico, Venezuela.

The entire population of the fifteen full members is approximately 15 million. The associate members number about 154,000, and observer countries 290 million.

At the last census July 2007, the population of Guatemala was around 13 million.

There is a CARICOM Common Passport which is aimed at making intra-regional and international travel much easier for CARICOM citizens. As of late 2007, ten member states have already introduced the CARICOM passport. Unfortunately, we have been fed negative attitudes, and imagined obstacles to the Caribbean integration process – “distances too large,” “lack of transportation,” “lack of market access.”

We had intra-regional economic, educational, cultural, sport, and every other exchange with the Caribbean long before container ships, airplanes, and, of course, the Internet. CARICOM detractors, and our enemies fuel the negativity. Meantime the illegal immigration and illegal citizenship continue unabated, changing our demographic landscape.

“No person shall be entitled under provisions of this Chapter to be a citizen of Belize or be granted citizenship of Belize if such person shows any allegiance to or is a citizen of a country which does not recognize the Independence, sovereignty, or territorial integrity of Belize”

—Constitution of Belize Chapter III 29 (3)

CARICOM, the CSME, and the CCJ are a work in progress headed in the right direction, especially for Belize, a nation of 300,000 people, a large portion of which are citizens of a retrograde country which has long since, and still does not recognize our right to survive independent, sovereign, and with territory intact.

October 18, 1999 - Foreign Minister of Guatemala, Eduardo Stein, in a long note to the then Prime Minister of Belize, wrote that all the territory between the Sibun and Sarstoon Rivers must be “returned”to Guatemala, together with all the cayes, except St. George’s Caye,…additionally declaring Guatemala’s non-recognition of our borders as laid down in the 1859 Boundary Treaty.

April 29, 1987 at a ministerial meeting in Miami, Guatemala demanded that Belize cede the Toledo District and the Ranguana and Sapodilla Cayes, and British compensation totaling one hundred million pounds sterling as the price of settlement. One must note today the recent land disputes in the Toledo District with considerable interest and concern, if not suspicion.

So, we in Belize, especially those of the Caribbean diaspora, have a sacred responsibility to embrace CARICOM, the CSME, and the CCJ, and to do all in our power to make it work. If it means encouraging government to subsidize a small airline to link us with Jamaica and the Cayman Islands, thus eliminating the need for travel through Miami, the associated costs, and US transit visa requirement, then begin thinking about it. If you think it, you will do it.

May seem a small step, but will be the opening of the gateway, that elusive bridge that our fellow CARICOM citizens and ourselves will use to enhance the integration process, encourage freedom of movement, drive market access, nurture cultural exchanges, grow the tourism product, revive sports through serious competition, renew educational opportunities, maintain military and security support, sharing all the other aspects of life in the Caribbean Community.

“One Love. One Heart. Let’s get together and feel alright.” —Bob Marley

July 08, 2008

CCJ Reserves Ruling Under Original Jurisdiction - TCL/TGI Case

TCL/TGI case against Guyana gov’t -CCJ reserves ruling on special leave to sue
By Miranda La Rose
Source Stabroek News
July 7, 2008

Arguments in the application to the Caribbean Court of Justice (CCJ) by Trinidad Cement Limited and TCL Guyana Limited (TGI) to be granted special leave to commence proceedings against the Guyana government have been heard but a ruling has been reserved for a later date.

At the three-hour hearing at the CCJ in Port of Spain, Trinidad and Tobago on Monday, Queen’s Counsel Dr Claude Denbow presented the case for TCL (the parent company) and TGI while Guyana’s Attorney General Doodnauth Singh argued against the CCJ granting special leave to commence the hearing. CCJ President Michael De La Bastide presided over the court

Doodnauth SinghTCL/TGI are asking that their matter, in which they are claiming losses due to the Guyana government’s unilateral waiver of a 15% Common External Tariff (CET) on cement imports, be dealt with in accordance with Article 222 of the Revised Treaty of Chaguaramas and Part 10 of the Caribbean Court of Justice (Original Jurisdiction) Rules of 2006. It is the first time that the regional court has been approached in its original jurisdiction.

In their application TCL and TGI said that under Article 82 of the Revised Treaty they are entitled to protection under the Common External Tariff (CET). Their written submission said they “have been prejudiced in the enjoyment” of their rights by the government.

They also said that T&T as the contracting party was entitled to espouse TCL’s claim but had not done so and the same was the case in relation to Guyana and TGI. Appended to the application was a letter by TCL to the T&T Attorney General Bridgid Anissette-George, dated February 20, 2008, asking for permission for TCL to pursue the claim on its own behalf or for Port of Spain to forward the claim on its behalf. Anissette-George replied on March 4, 2008 with a three-line letter that said the matter had been duly noted.

In his summary, Denbow said that it was important to note that the issue of public importance was the preservation of the integrity of the Revised Treaty and the TCL was acting in a fashion wholly consistent with the Revised Treaty. He noted that TCL was engaged in substantial cross-border investment, investing over US$10 million in a state-of-the art facility in Guyana on the condition that it would enjoy market access, have the opportunity to expand, produce and supply its products to the Guyana market. The US$10 million investment was part of an overall loan package of US$105 million obtained from the International Finance Corporation in Washington DC to expand and modernize TCL plants in Jamaica, Trinidad and Tobago and Guyana.

He said that the company’s expectation was not made possible because of the steadfast refusal of the Guyana government to implement the CET. After the further suspension of the CET from 2004 to 2006, TCL and TGI approached the government but after not getting any results in 2007 they approached the Caricom Council for Trade and Economic Development (COTED) in November 2007 which suggested that Guyana should once again implement the CET because the supply issue which the country had raised in the past no longer existed. Denbow said that there was total silence on the part of the government and the CET remained in place.

Community law“On what legal authority, one does not know,” he said adding that, “What you have here is a flagrant breach of community law.” In the circumstances, he submitted that as guardians of the Revised Treaty the CCJ ought to intervene to uphold the community law. “That is why I am asking the court to grant special leave to prosecute these proceedings,” he said, noting that correspondence between TCL and TGI to resolve the matter between ministers of the Guyana government and his clients were repeatedly ignored.

He said that the case cries out for the CCJ to intervene in order to protect the integration process of Caricom and to uphold the law between the state and investors under the Caricom agreement.

In defence of the Guyana Government, Attorney General Singh said that Denbow did not define who in terms of nationals was entitled to be heard by the CCJ and the circumstances. No where in his arguments did he establish the issue of management and control but instead referred to the history of the company and its shareholders of which Sierra Trading 9 Cemex SA de CV) held 20% of the shares, the largest in the company.

He said it was significant that when a contracting party alleges a violation between a contracting party and another it was obligatory that they enter into consultations and attempt to arrive at amicable settlement within the provisions of the Revised Treaty and further to take steps to arbitrate in disputes but this was not done.

The absence of consultation and arbitration, he said, were reasons why special leave should not be granted, adding that litigation should be a last resort.
Even though Guyana acted unilaterally in waiving the CET, he said, TCL never objected to the waivers. While the government ought to have imposed the CET, he said that it would appear that because of the difficulty being experienced the GOG implemented the policy on a yearly basis. It was because TCL appreciated their inability to meet the demand that the T&T government never implemented the CET as well, he contended.

With Justices Desiree Bernard and Adrian Saunders noting that there were breaches by the Guyana government and asking why he was using the breaches in his arguments, he explained that it was to show that in spite of them TCL allowed the violations to continue for a year because they could not supply the market.

Vienna Convention
Justice Saunders reminded him that Guyana ratified the Vienna Convention of the Law Treaty on September 5, 2005 which says that “treaties must be fulfilled in the utmost…”Justice Bernard said that whether TCL allowed the violations, the point was that the State of Guyana flouted the treaty obligations and to try to make excuses for an apparent disregard on the basis of TCL or action or inaction was inexcusable.

However, Singh replied that he was not seeking to justify but to rationalise why TCL did not take steps earlier to correct the issue of the CET. “They came late in the day,” he said.
Accepting what was said that the Guyana government should have approached COTED to get the permission to have the waiver implemented, he insisted that he was “attempting to demonstrate that in the interest of justice and for the exercise of its discretion that those factors could be taken into account to determine whether the overall requirements of justice could be utilised in such a way that leave ought not to be granted.”

In closing his arguments, he said that based on a publication he read from, dated May 2, 2008 TCL’s profits should be noted by the courts.TCL and TGI filed their request for special leave on April 3, under Article 211 (d) and 222 of the Revised Treaty of Chaguaramas, which established the Caribbean Community, including the Caricom Single Market and Economy (CSME) and Articles XII (d) and XXIV of the agreement establishing the CCJ.

Once the CCJ hears the case TCL (the parent company) and TGI would be claiming according to the written submissions “compensation from and/or injunctive relief against the Government of Guyana in respect of breach of provisions of the Revised Treaty under which Guyana is obligated to impose and maintain a Common External Tariff on cement imported into Guyana from countries outside the Caribbean Community.”

TCL and TGI are asking the CCJ to declare that the Republic of Guyana, a party to the revised treaty, violated the provisions of Article 82 by failing to implement and maintain the CET of 15% in respect of imports of building cement. They also seek a declaration that as a party to the revised treaty and member state of Caricom, Guyana failed to maintain the CET, violating the right and entitlement of the claimants to the protection of the provisions of the revised treaty.
As a consequence, the claimants feel, Guyana is liable to pay compensation to them for any loss suffered by reason of its conduct. It is also asking the CCJ for an order to direct the government to bring its regime of imports of building cement in conformity with Article 82 of the revised treaty by implementing the CET; and for damages for loss of profits as a direct result of the government’s failure to implement the CET for the period January 2007 to December 2007 and continuing; exemplary damages; an order that the costs of the proceedings be borne by the government of Guyana; as well as such other orders that the CCJ deems fit.

According to the full statement of facts, the first claimant TCL is a limited liability company incorporated under the Companies Ordinance, Chapter 31:01 of the laws of Trinidad and Tobago but it is also registered “as an external company under the Companies Act, No 29 of 1991 of the Laws of Guyana with its registered office at 2-9 Lombard Street, GNIC Compound, George-town, Guyana.

The second claimant, TGI, is a limited liability company, which was incorporated on March 17, 2004 under the Companies Act, No 29, with registered office at Lombard Street as well. TCL holds 80% of the issued capital of TGI and the other 20% is held equally by Toolsie Persaud Ltd and Anral Shipping Ltd.

July 07, 2008

Hang Together or Hang Separately

We must Hang Together - or Separately
Social Commentary
Source: The Democrat Newspaper - St Kitts & Nevis
July 7, 2008

We blindly repeat the quotes “Unity is Strength”, and “United we stand, divided we fall” but it is never clear that we really believe them enough to walk the walk despite how .often we talk the talk.

By the time this article is printed, the CARICOM SUMMIT would have ended and we hope that apart from the eloquent ‘lippy lippy’ we hear speakers giving there, that we will see action plans being implemented quickly to unify and strengthen this organization in order to combat the common problems which could ‘hang’ each island separately.

Why does TEAMWORK seem to be a dying art – both on the local and regional levels? Is it that we are so insecure that ego-bloating and insular sovereignty must be pushed ahead of long term security to boost and maintain our stranglehold on power. The bottom line is that politicians who cannot practice the tenets of UNITY at home cannot be expected to understand it on a regional level either.

This why just two weeks ago Prime Minister Gonsalves of St. Vincent and the Grenadines could see nothing wrong in creating more division in CARICOM by openly calling it a “ramshackle political apparatus”.

"It is most doubtful that we would see in CARICOM an integrated judiciary as in the OECS, or an enhanced institutionalised ''supranationality'' in political decision-making which is required to transform a ramshackle political-administrative apparatus in CARICOM into a purposive, matching vehicle correspondingly, for the Single Economy venture . . . ." Gonsalves said.

This will not mend fences or promote the spirit of working together to solve common challenges in the region. In the same way, some prime ministers see nothing wrong in invading the internal boundaries of a neighbouring state to campaign on behalf of another prime minister and call the opposition leaders insulting names.

This “I can do as I like’ attitude creeps right into CARICOM decision making. So Caribbean leaders still cannot “hang together” on matters like “Cruise Passenger taxing”, “LIAT financing”, “the Caribbean Court of Justice”, and the “One-China Policy”. They drag their feet on CSME, do not agree on adopting CAPE exams (Dominica), and opt out of whaling agreements. Even at this Summit this week, there is talk that Guyana will not sign on to the EPA agreement and that Tourism ministers are finding it hard to see beyond their own white sand beaches.

And while they will seek to create a single economic space in CSME, they will not even come close to adopting the common OECS currency which has proven to be stronger and more stable than other regional currencies (with the possible exception of Barbados)

So whither CARICOM? What exactly are we clinging to? How exactly is Secretary-General Carrington to forge unity among these “own way” sovereign states?

Caribbean scholar and recent Head of ACS, Professor Norman Girvan, said recently, "Our Community leaders are still clinging to an insular sovereignty that perpetuates failure to strengthen the region''s integration movement by an effective system of governance.”


If we cannot unite for the good of our country or region, what are the alternatives? Surely we cannot dump our problems, for this would be like taking on a suicidal attitude. CARICOM is great at discussing and delegating and the latter is based on the premise that each country can take on a manageable slice of problem solving. Internally, when governments fail to join with Opposition on finding solutions ESPECIALLY ON CRIME, they can at least delegate areas to civic-minded groups. Such an act can only redound to the benefit of all. Just recently a regional police officer was speaking of the areas in which action needs to be taken simultaneously for the elimination of gangs. They are:
PREVENTION – keeping children out
INTERVENTION – stopping it; providing alternatives
SUPPRESSION – more patrols; searches; law enforcement
RE-ENTRY – rehabilitation of offenders into society

Finally, since the murder of the Head of the Jamaica Urban Transit Company (JUTC), Douglas Chambers in late June, one outraged writer to the Jamaica Gleaner Newspaper has offered suggestions to the Prime Minister. We would do well to listen to all suggestions to break the circle of this escalation of crime that threatens to engulf us. Here are his suggestions:

ENOUGH! Prime Minister, Opposition leader, Security minister, Opposition spokesman on Security, Commissioner of Police and Army Chief, draw the line on the platitudes after each murder and come on TV, radio and in the printed press and speak openly and loudly in one voice. ENOUGH!

Prime minister, you need to do a number of unprecedented things NOW.

1. Speak to the nation with the aforementioned persons around you. Use the creativity shown by advertising firms during elections to have a clear, powerful message made and have the TV stations rebroadcast this at their expense in the national interest every day with the same frequency and intensity when the election messages were bombarding us.
2. Co-opt the DJs sound system owners, discos to create voice-overs with strong, powerful street messages played at every session as a rule.
3. Order radio stations to stop playing all gun-related garbage now and anyone promoting ''informer fe dead'' must be treated as a criminal and charged for inciting murder.
4. Invite churches, service clubs, schools, businesses to dedicate a half day per month to do community service work to spread the message.

We need to ‘hang together’ as a country and as a region, or we shall ‘hang separately’.