Guyana: Govt.’s takeover of Berbice Bridge deemed legal by Chief Justice

The Berbice River Bridge

Minister of Public Infrastructure, David Patterson

In the wake of a 360% increase in tolls, which was demanded by the Berbice Bridge Company Inc. (BBCI) in November 2018, Government announced that it was taking temporary control of the bridge in the safety of the public. By way of a Toll Order issued in the Official Gazette, Minister Patterson, in accordance with Section 11(b) (i) of the Berbice River Bridge Act Cap 51:06, ordered that the functions of the concessionaire, BBCI, were to be maintained and operated by Government.

BBCI then moved to the High Court where it filed a Statement of Claim in which it requested that the Minister justify the reason for the takeover. In its application, the BBCI had noted that Section 15 of the Judicial Review Act provides as follows: “It is the duty of any person or body making administrative decisions, if requested in accordance with this 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.”

BBCI was granted an order compelling the Minister to validate his actions. In submissions, among other things, it was stated by the Minister that the decision was arrived at, since the bridge serves as a major link between two counties, and as a result of the burdensome toll increase, citizens may resort to other means of crossing the river which may result in death.

In her ruling, the Chief Justice held that based on certain provisions of the Berbice River Bridge Act, BBCI had no authority to unilaterally impose new tolls. In fact, Justice George said such a decision has to be discussed with the Minister, as he is charged under the Act for authorizing the tolls. Furthermore, she said that pursuant to the Act, the Minister is empowered to issue orders setting the maximum amount of toll that can be charged by BBCI. The Chief Justice was specially referring to Sections 4 (1) and (2) of the Act.

In concluding, the Chief Justice noted that BBCI cannot act carte blanche in relation to the operations of the bridge. In the circumstances, she dismissed the action filed by BBCI, which was ordered to pay costs in the sum of $50,000 to the Attorney General and Patterson who were listed as Respondents.Further on in her ruling, Justice George pointed to the fact that the Act stipulates that government will have ultimate control over the bridge. She therefore found that the Minister’s issuing of the Toll Order was not unreasonable, as it was done as a result of the proposed toll increase announced by the concessionaire. In this regard, she held that the Minister has the power to approve or reject any proposed toll increase by BBCI.

The BBCI was previously reported as saying that the toll increase was necessary to ensure that it continue to execute its mandate. It had argued that it had applied to government for an adjustment in tolls on three occasions, being March and August 2015 and January 2016, but received no response. The BBCI had also said that it had accumulated billions of dollars in losses and faces bankruptcy.

The Berbice River Bridge was constructed through a public-private partnership between the then Bharat Jagdeo Government and sections of the Private Sector. It was opened to the public in December 2008. The National Insurance Scheme (NIS) and the New Building Society (NBS) are two main investors in the bridge.

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