April 21 2018
(November 2015: An aerial shot of the large-scale construction works that are ongoing at the site of the US$30M MovieTowne Guyana complex at Turkeyen, East Coast Demerara.)
The government was yesterday ordered to pay over $1.7 billion in damages to Toolsie Persaud Limited (TPL), after losing its challenge to the company’s ownership of land at Turkeyen, including the site of the MovieTowne cinema complex and shopping mall.
The judgment in the legal dispute, which dates decades, was handed down yesterday morning by Justice Brassington Reynolds, who also ordered the government to pay interest as well as half a million dollars to the hardware company in court costs.
In its action in the High Court for damages against the government and its agent, the National Industrial and Commercial Investments Limited (NICIL), the plaintiff TPL argued that it never repudiated its 1987 agreement by which it bought from the State, led then by the PNC government, several plots of land in the disputed Turkeyen/Liliendaal, East Coast Demerara area.
The specific disputed areas were those of ‘K,’ ‘O,’ ‘J’ and ‘N.’
It had been the State’s case that TPL had repudiated the contract after applying for prescriptive title and so the plots of land could no longer have been considered to be the company’s.
The court, however, ruled that the plaintiff had not repudiated its agreement for the purchase of the land.
In a detailed ruling delivered from the bench over the course of almost two hours, Justice Reynolds noted that the State could not seek to, as it had done, compulsorily acquire the lands for the more than 12 years it had belonged to the plaintiff.
The court noted, too, that the State’s claims to adverse possession could not operate.
The judge noted that as opposed to the State’s arguments that TPL had repudiated its agreement by applying for prescriptive title, it was in fact seeking an alternative route of retaining the lands through that process which can be afforded after an elapse of 12 years.
The court noted with consternation, also, the fact that the defendants never once sought to enquire from TPL during that 12-year period the status of the agreement, which was still in existence at that time.
To the government’s argument that the purported repudiation frustrated the 1987 agreement, the judge said it did not, nor was it rendered void for any common mistake under which either party may have been labouring as to who the disputed plots belonged to.
The court held that from the agreement, the lands belonged to TPL in accordance with the 1987 agreement and never ceased to so be.
Referencing case law, Justice Reynolds said that before a contract could be considered frustrated and no longer capable of being performed, there must be a supervening event which causes a change so radical that what was contracted could no longer be possible.
He said it must be something which radically changes the very “thing” that was contracted for, while adding that the frustrating event could not be the cause or fault of either party.
Having regard to these principles, the judge said that the contract was at no time frustrated, as there were no circumstances in the agreement which qualified it as so being.
Additionally, the court highlighted that any fault would lay at the feet of the defendants, who sought to acquire the lands after sale and tried thereafter to invoke rights to adverse possession.
Also noted by the judge was that the plaintiffs have always demonstrated a readiness to execute the terms upon which the sale of land was made to it. In this regard, the court noted payments which TPL had already begun paying towards the purchase price.
Ruling that the defendants were in breach of the agreement, Justice Reynolds ordered the government and NICIL, jointly and severally, to pay over to TPL damages to the tune of $1,745,203,346.
Of that sum, he awarded for area ‘K,’ $1,104,679,346 and for area ‘O,’ $640,524,000.
Meanwhile, for areas ‘J’ and ‘N,’ he ordered specific performance by the defendants.
To the sums awarded, the judge ordered that interest be paid at a rate of 6% per annum from the filing of the writ in 2008 to yesterday’s date. Additionally, interest of 4% per annum has to be paid from the date of judgement, until full payment.
The court also awarded TPL court costs in the sum of $500,000 which also has to be borne by the defendants.
To the $2, 170,000 purchase price for the land, part of which TPL had already paid, the judge said that it is to be allowed to pay the remaining balance.
Lawyers for the State asked for and were granted a six-week stay of execution in the event of an appeal.
TPL and the government were represented by Senior Counsel Robin Stoby and Ashton Chase, respectively. NICIL, meanwhile, was represented by attorney Timothy Jonas.
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 May of 2011, Multicinemas Guyana Inc. purchased part of the disputed land from NICIL for $187 million for the building of a cinema and a mall. Multicinemas is owned by the MovieTowne shopping complex, located in Port of Spain, Trinidad.