Gov’t sued over Berbice bridge takeover, freeze on tolls
The Berbice Bridge Company Incorporated (BBCI) has mounted a legal challenge to government’s takeover of the operations of the bridge and the authority of the Public Infrastructure Minister David Patterson to prevent it from instituting increases.
In its application to the High Court, which lists Patterson and the Attorney General as first and second named defendants, respectively, the BBCI has given notice that it is seeking orders from the court quashing the proclamation issued for the takeover of the bridge.
As a matter of fact, the company says that both Patterson and his predecessor under the previous PPP/C administration, Robeson Benn, had been written to concerning its plans for toll increases but neither ever responded.
The BBCI is contending that Patterson is not required by law to approve toll increases and has no lawful authority to prevent it from moving ahead.
About two months ago, the bridge company announced huge toll increases for users of the bridge, which it was hoping to implement with effect from November 12th, 2018.
The announcement had been met with opposition from Patterson, who noted that government was in no way going allow “unconscionable increases.”
Later, while calling the planned increases a threat to public order and safety, Patterson issued an order for the functions of the BBCI, to maintain and operate the bridge to be exercised by government and to prevent toll increases.
The BBCI argues that in accordance with clause 17.1 of its concession agreement, dated June 12th, 2006 with the government, it is the bridge company which shall be obliged at its own expense to operate and maintain tolls.
Further to that, the company is contending that Section 4(2) of the Berbice River Bridge Act provides that subject to subsection (l) (d) (iii) and to the terms of the concession agreement, it is the BBCI which may specify different toll amounts in relation to the use of the bridge by reference to such circumstances or combination of circumstances as the company may, after consultation with the subject minister determine.
On this point, it is arguing in its application that the Act makes no provisions authorising the minister to approve toll increases or adjustments proposed, suggested or recommended by it.
According to the BBCI, the toll increases it announced were an essential requirement to ensure that it can continue to execute its mandate. Against this background, it noted that it had applied to the government for an adjustment on three occasions— namely, March and August 2015 and January 2016, but received no responses.
Further to that, the company said that it has accumulated losses of $2.8 billion and now faces bankruptcy.
According to the BBCI’s application, Chairman of its Board of Directors Dr Surendra Persaud said that discussions with Patterson yielded no success in achieving any adjustment to tolls and so he (Persaud) had announced that increases would have been made.
The company is advancing the argument that its applications to Patterson and Benn for toll adjustments in 2015 and 2016 were in effect requests for consultations.
The failure of either minister to respond to those requests, it is arguing, is tantamount to a refusal to consult. By making efforts to consult with Patterson, the bridge company says it has complied with its lawful duty and expectations under the Act.
The BBCI says that contrary to a letter dated 17th October, 2018 from Patterson to Dr Persaud accusing the claimant of unilaterally increasing tolls, Patterson at a meeting with the company six days earlier repeatedly rejected its proposal for an increase in the tolls.
The bridge says that in response to Patterson’s letter, its Finance Controller/ Corporate Secretary Stephen Rambajan reminded Patterson of their meeting of October 11th, 2018 at which he (Patterson) had repeatedly rejected their requests to increase tolls.
The claimant outlines in its application that in accordance with Section 11 of the Act, “a function exercisable by the concessionaire may be exercised by the Government... (b) if the minister determines that-(i) its exercise is necessary or expedient in the interests of public safety.”
Against this background, the BBCI is arguing that an increase in toll is not a threat to public safety.
By letter of November 5th, 2018 to the BBCI’s Human Resources Manager Amarnauth Singh, the claimant said that Patterson had assured staff that there would be no changes in their roles, responsibilities or positions during the transitional period.
The claimant said that while it was not specified what constituted the transitional period, it could only mean the period of government takeover.
Section 15 of the Judicial Review Act, the company argues, provides that it is the duty of a body making an administrative decision, if requested in accordance with the section by any person adversely affected by the decision, to supply that person with a statement setting out the findings on material questions of facts, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.
According to the BBCI, it never got a response to its request to Patterson for such a statement.
The company is seeking the following orders: (a) An order of certiorari quashing minister Patterson’s edict that the functions of the bridge to maintain and operate it be exercised by government; (b) An order of certiorari quashing Patterson’s pronouncements prohibiting an increase in tolls; and (c) An order of prohibition prohibiting Patterson or the government from exercising the functions of maintaining and operation the bridge.
Apart from the orders being sought, it is also asking the court to make declarations that the minister
has no power under the Act, or otherwise, to approve or reject an increase in tolls by the claimant and that his order so doing is ultra vires sections 4 and 12 of the Act.
It also wants a declaration that Patterson’s order was unconstitutional, null, void and of no effect in that it is tantamount to the compulsory taking of possession or compulsorily acquiring an interest in or right over property, that being the bridge owned by the claimant, without prompt and adequate compensation in violation of article 142(1) of the Constitution of Guyana.
Additionally, the company is seeking a conservatory order prohibiting the defendants, by themselves, their servants and/or agents from assuming the functions of the claimant as the concessionaire to maintain and operate the bridge.
A conservatory order is also being sought prohibiting the defendants by themselves, their servants and/or agents from ordering or continuing to maintain the order that the tolls levied and collected and any exemptions from the payment of tolls shall be the same as those levied, collected and exempted not to be increased.
The BBCI wants the court to order Patterson to supply to it a statement setting out the findings on material questions of fact referring to the evidence or other material on which those findings were based and to give reasons for his decision.
Additionally, the bridge company is seeking costs and all other orders which the court may deem just to grant. The case comes up for hearing before Justice Gino Persaud on December 5th at 3 pm at the High Court.
In announcing what he said was the planned increases, Dr Persaud had said the decision was based on legal advice that the company had received, while also noting that no prior adjustments were ever made and no surpluses had been earned, resulting in the required hikes in the tolls being compounded.
In a statement accompanying Patterson’s order, the ministry indicated that too many citizens depend on the continuous operations and the use of the bridge, and as a result, “we should not allow anyone to unreasonably and capriciously endanger their livelihood and public order in one of our vital regions.”
The ministry had further noted that the government would not be accused of failure to act in the people’s interest or for dereliction of duty in protecting the vital economic region of the country, which is showing signs of economic recovery and growth.
“The Berbice River Bridge operates as an essential service, and like all other services in such category, it requires government action in times of national emergency. In the present dispute, we have taken management control of the operations of the Berbice River Bridge in the interest of public safety and this will remain in effect until an agreement can be reached with the other stakeholders in the dispute,” the statement added.
The move announcing government control of the bridge had raised concerns in the investment community and was seen as draconian use of ministerial powers in relation to private property.
Many Berbicians had, however, condemned the planned hikes in tolls to cross the Bridge and bus operators who ply the route between New Amsterdam and Rosignol had said that the move would likely put them out of work.