Businessman denied leave to challenge NHT drawdowns before the Privy Council

Businessman Fitzroy Fagan has been denied leave to go to the United Kingdom Privy Council to challenge the withdrawal of $45.6 billion from the National Housing Trust (NHT) for budgetary support under the Portia Simpson Miller-led administration.

The NHT Act was amended in 2013 to permit annual withdrawals of $11.4 billion from 2013 to 2017.

The government explained at the time that the funds were needed to enable Jamaica to meet fiscal targets included in the four-year Extended Fund Facility with the International Monetary Fund.

Following the amendment Fagan, an NHT contributor took the issue to court in 2013, challenging the constitutionality of the amendment. He contended that while the amendment allowed for withdrawals of funds from the NHT, it constituted a deprivation of his property. He also sought an injunction to restrain the NHT from “ handing over the funds to the Minister of Finance.”

The respondents were the NHT, the Ministry of Finance and the Attorney General and their attorneys- at-law had argued that the NHT Act did not  create a statutory trust, therefore Fagan had no property right in the housing agency's resources.

In July 2016, the Constitutional Court dismissed his claim and he appealed. The Court of Appeal heard legal arguments from the parties and in November 2019 dismissed the appeal.

Last month, Fagan who was represented by attorney -at-law Hugh Wildman sought conditional leave from the Court of Appeal to go to the UK Privy Council to appeal the matter.

The appeal questioned "Whether the NHT Act created a statutory trust on behalf of contributors and the withdrawal from the Trust by the executive for the purpose other than those intended by the Act, constitutes a breach of section 15(1) of the Charter of Fundamental Rights and Freedom, not to be deprived of property without compensation.”

Attorney-at-law Sundiata Gibbs, instructed by the law firm Hylton Powell who represented the NHT, and attorney-at-law Lisa White, instructed by the Director of State Proceedings who represented the other respondents, strongly opposed the application for leave.

The court comprising Justice Paulette Williams, Justice Carol Edwards and Justice Lorna Shelly-Williams, in refusing the application, concluded that Fagan "had not satisfied the criteria laid down under section 110 (1) (c) of the Constitution for conditional leave to be granted”.

-Barbara Gayle

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