ABSTRACT
It is interesting that it is in relation to property that we see the Court of Appeal more recently grappling with the rights of the subject as against the rights of the State.
As we saw in an earlier chapter, in Civil Appeal No 43 (1994), decided in January 2000, the Court of Appeal had to deal four square with the right to property in the 1980 Constitution of Guyana. Kennard Ch and Prem Persaud JA held that: ‘…the power of Eminent Domain is an essential attribute of sovereignty and it connotes the legal capacity of the State to acquire private property for public purposes…and there is no need to confer this authority expressly by the Constitution as it exists without any declaration to that effect.’ Churaman JA entered a powerful and magisterially-reasoned dissent which is certain to command attention in the future. He stated:
The consequence according to this majority view is that the State has the power and the constitutional capacity to deprive citizens of choices in action-the right to sue for money-so long as it is in the public interest so to do, and the State is prepared to give bonds redeemable twelve or so years after. In other words, the citizen’s right to the immediate enjoyment of the fruits of their judgment can be taken away by the issuance of paper bonds. This seems to me a serious violation of the citizen’s rights to property, and one specifically proscribed by the combined effects of Art 40(c) and Art 142 of the Constitution of the Co-operative Republic of Guyana…The majority decision has the effect also, without either of my brethren saying so, of overruling the much respected decision of Inland Revenue Commissioner v Lilleyman and Others (1964) LRBG 221, a landmark decision of the British Caribbean Court of Appeal…
The facts of the case, taken from the judgment of Churaman JA were as follows: In 1992, Caterpillar Americas Company was owed some US$950,000 by Guyana Mining Enterprise (Guymine), a public corporation in Guyana. The Government of Guyana held all the shares in Guymine through its nominee, The Bauxite Industry Development Co Ltd. Guymine was unable to pay its debts to Caterpillar, so the government decided to restructure Guymine. It made an order under the Public Corporations Act, 1988, the effect of which was, inter alia, to transfer liability of the debt from Guymine to the Government of Guyana who, in turn, would discharge the indebtedness to Caterpillar by the issuance of bonds to mature some 12 years later. Caterpillar wanted their money forthwith. Caterpillar
moved the High Court by motion, alleging that the order made by the minister under the Public Corporations Act contravened the provisions of the Constitution and was therefore ultra vires, invalid and void. The trial judge agreed with the contentions of Caterpillar and struck down the provisions relating to the issuance of bonds to be redeemed after 12 years as being violative of the Constitution. The Government of Guyana appealed to the Court of Appeal.
