CIVIL RECOURSE OR AUTOMATIC SEIZURE?
It is advised that in Government, the right hand must always know what the left hand is doing.
One Minister is said to have given a logging company a deadline by which to establish a wood processing plant. If this deadline is not reached then sanction can be imposed. This is one scenario.
The other scenario is when the tax agency goes against a company which had also promised to establish a wood processing plant. How can the tax agency go after the company when one Minister had granted an extension?
The right hand must always be aware of what the left hand is doing. This is sound advice that is recalled now that a Chinese-owned logging company has written to the Secretary General of the United Nations complaining about a breach of an agreement between Guyana and China
The relevance of that particular agreement to the company’s dispute with the Guyana Revenue Authority is not clear. The tax department had reportedly seized two vehicles belonging to the company and the company is complaining that these actions by an arm of the State constitute a violation of an agreement between Guyana and China. It is not clear how a third party, the company, can claim remedies for violation of an agreement between two parties.
It is equally not clear just why the United Nations Secretary General has been approached. The agreement between Guyana and China is not a multilateral agreement; it is not therefore within the remit of the United Nations to pronounce on it. There are international arbitration bodies concerned with these disputes.
The courts in Guyana have not yet been approached and it hard to how an international organization can insert itself into this problem when the Government of China has not yet even complained to the Government of Guyana.
It is surprising that the company has not legally challenged the decision of the Guyana Revenue Authority. The GRA reportedly seized the vehicles on the grounds that the company was given certain concessions in anticipation that it would undertake certain investments.
The reports in the media are suggesting that GRA felt that the concessions were either not being used for the purposes required or that the contract had not undertaken to do what it has promised to do.
The question to be answered is whether in either circumstance the GRA can arbitrarily proceed to seize the vehicles without seeking specific performance or without suing for breach of contract.
When two parties sign an agreement, in this case the GRA and the company, in which one promises to do certain acts in consideration for acts of the other, if there is non- compliance by one party, then should the remedy not be civil recourse? No one has questioned whether the
Guyana Revenue Authority has the authority to do what it did.
Whenever there is an agreement between two parties and one sues for specific performance, the courts normally have to consider whether the anticipated circumstances had changed against the defaulting party.
Therefore if you agree to do something but because of circumstances beyond your control you cannot do it, the court will exercise its discretion in determining whether specific performance has to be immediately demanded.
Civil law is not a ‘cut and dried’ arrangement in which if one party fails to honour an agreement, the court will automatically grant the remedies requested either for breach of contract or specific performance. The court has to consider whether the circumstances have changed and if there were unavoidable circumstances which prevented the company from honoring its obligation.
The question, therefore, is whether GRA has a lawful recourse to simply seize the vehicles or whether they should have sought civil redress for breach of contract or specific performance.