Berbice Bridge company wants court to reverse Gov’t takeover

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The Berbice Bridge Company Incorporated (BBCI) wants the High Court to reverse the Government’s takeover of the operations of the bridge.

The company wants to regain control of the bridge and implement the increased toll charges – the same increases the Government saw as draconian and seized control.

The legal notice was served on Minister of Public Infrastructure David Patterson and Attorney General Basil Williams on November 28, a press release from the BBCI stated.

On November 5, 2018, Patterson issued an order declaring that the Government will take over the maintenance and operation of the Berbice River Bridge “hopefully” for a temporary period.

“In accordance with the powers conferred upon the Minister by Sections 4 (1) and 11 of the Berbice River Bridge Act, in the interests of public safety, the Minister issued (today) an Order declaring that the functions of the Concessionaire to maintain and operate the Bridge shall be exercised by the Government of Guyana as of 5th November 2018 until the date the Minister specifies by notice on the cessation of the threat to public safety,” Patterson declared.

Minister of Public Infrastructure, David Patterson and Chairman of the BBCI, Dr Surendra Persaud

According to section 11 of the Berbice Bridge Act, “A function exercisable by the Concessionaire may be exercised by the Government -in the event of a national emergency declared by the President; or if the Minister determines that its exercise is necessary or expedient in the interests of public.”

This power can also be exercised if the Concessionaire has defaulted in the performance of its obligations under the Concession Agreement.

The order meant no change to the toll structure.

The Bridge company had intended to implement a revised fee structure from November 12, 2018.

To cross the bridge, cars and minibuses would have had to pay $8,040; small trucks, pickups and four-wheel drive vehicles $14,600; medium trucks $27,720; large trucks $49,600; boats $401,040; and freight $1,680.

The Bridge Company said the increase was necessary because it was making losses in excess of $2.8B.

Below is a list of orders the company is now seeking from the court: 

(a) An order of certiorari quashing paragraph 2 of the Berbice River Bridge (Public Safety) Toll Order 2018 dated the 111 November,2018, No. 42 of 2018, made by the first named defendant under the Berbice River Bridge Act Cap 51:06 ordering that the functions of the concessionaire, namely the claimant, to maintain and operate the Bridge shall be exercised by the Government, the first named defendant having determined that the exercise of those functions by the Government Is necessary and expedient in the interests of the public during the period 5th November, 2018, to the date the Minister specifies by notice on the cessation of the threat to public safety.

(b) An order of certiorari quashing paragraph 3 of the Berbice River Bridge {Public Safety) Toll Order 2018 dated the 1’1 November, 2018, No. 42 of 2018, made by the first named defendant under the Berbice River Bridge Act Cap  51:06  ordering that  the  tolls  levied  and collected  and any exemptions shall be the same as those levied, collected and exempted immediately before the coming into operation of the said order.

(c) An order of prohibition prohibiting the first named defendant or the Government of Guyana from exercising the functions of maintaining and operation the Berbice River Bridge.

(d) An order of prohibition prohibiting the first named defendant from ordering that the tolls levied, collected and exempted immediately before the coming into operation of the Berbice River Bridge (Public Safety) Toll Order No. 42 of 2018, shall be the same as those levied, collected and exempted before the coming into operation of the said order.

(e) A declaration that the first named defendant has no power under the Berbice River Bridge Act, or otherwise, to approve or reject an increase in tolls by the claimant.

(f) A declaration that the Berbice River Bridge (Public Safety) Toll Order No. 42 of 2018 is ultra vires sections 4 and 12 of the Berbice River Bridge Act.

(g) A declaration that the Berbice River Bridge (Public Safety) Toll Order, No. 42 of 2018, made by the first named defendant under the Berbice River Bridge Act is unconstitutional, null and 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, to wit, the Berbice River Bridge, owned by the claimant without prompt  and adequate compensation in violation of article 142(1) of the Constitution of Guyana.

(h) 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 Berbice River Bridge under the Berbice River Bridge (Public Safety) Toll Order No. 42 of 2018 made under the Berbice River Bridge Act Cap 51:06.

(i) A conservatory order 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 immediately before the coming into operation of the Berbice River Bridge (Public Safety) Toll Order No. 42 of 2018 made under the Berbice River Bridge Act Cap 51:06.

(j) An order directing the first named defendant to supply to the claimant as a body affected by the Berbice River Bridge (Public Safety) Toll Order, No. 42 of 2018, 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 giving the reasons for the decision.

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