CJ rules against NICIL over termination of GuySuCo land leases

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The National Industrial and Commercial Investments Limited (NICIL), which was taken to court after revoking a number of leases last year, on Tuesday had its attempts to defend itself dashed out by Acting Chief Justice Roxanne George who ruled in favour of the claimants.

Among those who had contested NICIL’s revocation of their leases was Cevons Waste Management and Ankoko Equipment Rentals incorporated, as well as a number of private citizens who were joined in the proceedings.

They had claimed that NICIL’s Notice to Quit was in breach of their lease agreement and had sought an order staying the State entity’s attempts to evict them from the land. But NICIL in its counterclaim had sought the court’s dismissal of their challenges.

NICIL claimed in its application that the matter should be one for arbitration and that the court lacked the jurisdiction to entertain their case.

NICIL had also contended that the lands which were allocated to these lessees, most of which are part of the Enmore Sugar Estate and owned by the Guyana Sugar Corporation (GuySuCo), were needed by the State for sugar cane cultivation.

The leases, however, provided for three to 12 months’ Notice of Termination to be served on the lessees and according to the acting Chief Justice in her ruling on the cases involving Edwards, Baggott, Austin and Austin, Henry, Lawrence and Walters vs NICIL, NICIL has to consider its contractual obligations before terminating a lease.

She pointed out that it is only after issuance of a breach notice and a failure to comply, that Notice of Termination can be given.

Additionally, she noted that the lessee has to be given an opportunity to rectify said breach.

“I do not agree with the submission that NICIL has a right of election as to which clause it can utilise to terminate leases. Nor do I agree that it can do so at will. This reasoning also applies to the Wales Estate. Thus, I have concluded that the termination of the leases is void as being in breach of the lease agreements.”

“It is this court’s ruling that the… grounds to terminate the leases and the provisions of clause 9 as a whole would have to be complied with. There is no factual circumstance that NICIL has established that permit the termination of the leases. NICIL cannot now rely on what appears to be a self-imposed frustration of contract based on an alleged policy change.”

The CJ did agree with NICIL’s contentions that public law was not applicable to its termination of the leases. Here she cited the judgement of late Chief Justice Ian Chang, in the case of Edward Singh, 113 M of 2003, before granting NICIL’s application to strike out Statement of Claim (SOC) 231 of 2020.

Ultimately, the Chief Justice also granted a permanent injunction restraining NICIL or anyone acting on its behalf from enforcing the Notices to Quit that were served on the claimants or in any way interfering with them.

When it comes to Cevons Waste Management and Ankoko Equipment, the CJ noted that the arbitration clauses are applicable. She pointed out that Sections 3 and 5 of the Arbitration Act show that an application for this form of alternative dispute resolution can be made in this context.

“The burden is on the claimants to show cause, why the court should not give effect to the arbitration clauses, which are part of the leases they executed… while I agree with (Attorney-at-Law Devindra Kissoon, appearing for NICIL) that clause 10 of the agreement of lease does not speak to the forum that is to adjudicate, I do not consider that the (Notice of Application) from the State has merits.”

“I have concluded that these are cases which call for an interpretation of the lease agreements as a matter of law, whether the letters of termination from NICIL properly terminated the leases given the termination clauses of the contract,” the Chief Justice said, noting that the NOA for the stays are dismissed.

Meanwhile, the Chief Justice indicated that NICIL can present reasons on other grounds for its revocation of a number of leases in 2020.

Senior Counsel Edward Lukhoo, in association with Attorney-at-Law Timothy Jonas, appeared on behalf of the personal parties, while Senior Counsel Neil Boston appeared on behalf of Cevons Waste Management and Ankoko and Solicitor General Nigel Hawke appeared on behalf of the Attorney General as the second named respondent.