Mon | Dec 16, 2019

Appeals court upholds constitutionality of NHT drawdown

Published:Friday | November 15, 2019 | 12:21 AM

The Court of Appeal has dismissed a claim brought by businessman Fitzroy Fagan challenging the withdrawal of $45.6 billion from the National Housing Trust, NHT, funds that were earmarked for budgetary support under a past Government administration led by Portia Simpson Miller.

In February 2013, the Simpson Miller administration tabled a bill to amend the NHT Act to permit four annual withdrawals of $11.4 billion each, starting with the 2013-14 fiscal year.

At the time the Government explained 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, IMF.

The National Housing Trust (Amendment) (Special Provisions) Act came into force in March 2013 and was to continue until its expiration on March 31, 2017.

At the passage of the legislation, Fagan, an NHT contributor based in St James, filed a claim challenging the constitutionality of the amendment, saying that while it allowed for the withdrawal of funds from the NHT, it constituted a deprivation of his property.

He also applied for an injunction to restrain the NHT from “handing over the funds to the minister of finance”, a position held by Dr Peter Phillips at the time.

Three years later, on July 28, 2016, the Constitutional Court dismissed the claim, against which Fagan then filed an appeal.

The Housing Trust, which is state-operated, argued to the court that the NHT Act did not create a statutory trust and Fagan had no property right in the housing agency’s resources.

It further contended that in any event, even if Fagan had a right to a refund of his contributions, the NHT was able to repay those even after providing funds to the Government for fiscal consolidation. The Attorney General’s Chambers also made submissions to the same effect.

The Court of Appeal heard legal arguments from all the parties and on November 5, 2019, dismissed the appeal. The panel, comprising Court of Appeal President Dennis Morrison, Justice Marva McDonald-Bishop and Justice Paulette Williams, promised to give written reasons for the judgment at a later date.

Fagan was ordered to pay the NHT’s legal costs. He was represented in the case by attorney Hugh Wildman who was not reached for comment on whether the businessman would be appealing the matter further.

The NHT was represented by attorneys Kevin Powell and Sundiata Gibbs of Hylton Powell. Susan Reid-Jones and Carla Thomas represented the attorney general and the minister of Finance.