Thu | Jul 19, 2018

NHT faces court

Published:Wednesday | November 26, 2014 | 12:00 AM

Constitutional challenge to $44b NHT drawdown to be heard in May

National Housing Trust (NHT) acting managing director Martin Miller has indicated in a witness statement filed in the Supreme Court that the stated mission of the Trust is to increase and enhance the availability of housing in Jamaica.

Miller said further that the mission is also to provide financial assistance to its contributors who wish to build, to buy, or to repair their homes. He said the NHT had never treated the funds it holds as trust funds.

The witness statement was filed earlier this month in response to a constitutional motion filed by Citizens Action for Principle and Integrity (CAPI) challenging a $45-billion drawndown from the fund by the Government.

The NHT is paying tranches of $11.4 billion to the Government over a four-year period. The money is for budgetary support as part of the Government's economic arrangement with the International Monetary Fund (IMF).

The first installment was paid over last year.

CAPI is challenging the move to withdraw the sums from the NHT.

CAPI has filed a motion seeking a declaration from the Constitutional Court that taking the money from the trust amounts to a breach of the Constitution.

The matter has been set for hearing in May next year.

Fitzroy Fagan, a 48-year-old businessman from St James who says he is a contributor to the fund, is the claimant in the matter.

Fagan is contending that withdrawal of funds from the NHT is a breach of his constitutional right to property under Section 15 of the Charter of Rights and Fundamental Freedoms.

Fagan claims that if the NHT board hands over the money to the Government, he will be deprived of his right to his contribution.

Fagan, who is being represented by attorneys-at-law Hugh Wildman and Marvalyn Taylor-Wright, has named the NHT, Finance Minister Dr Peter Phillips, and the attorney general as defendants.

Several Investments

Miller said in the statement that in addition to contributions from employed persons, self-employed persons, voluntary contributors, and employers, the NHT generates annual income from several investments, including dividends from securities and interest revenue from loan repayments (among other things).

He said the NHT uses the revenue and contributions it receives to cover its operational expenses, provide loans, and improve the existing, supply of housing by investing in various construction projects.

He said on May 24, 2012, the NHT and the Ministry of Finance and Planning (acting on behalf of the Government of Jamaica) signed a memorandum of understanding (MOU) in which they agreed that the NHT would pay the Jamaican Government $2.15 billion in unpaid taxes it owed as at March 31, 2012. He said under the terms of the MOU, the NHT agreed that it would be prepared to make another special distribution of $4 billion to the Government if the ministry called for such a distribution.

In exchange for the NHT making the payments and distributions under the MOU, the ministry agreed to grant the NHT an exemption from certain taxes during the financial years 2012 to 2013 and 2013 to 2014.

In July 2012, the NHT retained KPMG as external auditors for the financial year ending March 31, 2012.

The audited statement for that period showed that the NHT earned revenue from various sources other than contributions from employees.

The NHT had approximately $22 billion of accumulated surplus and approximately $79 billion of accumulated non-refundable employers' contributions and was liable to refund approximately $62 billion in employees' contributions.

"A review of the figures in the audited financial statement indicates that paying the taxes and making the distributions mentioned in the 2012 MOU would not hinder the NHT's ability to refund employees' contributions in accordance with Section 21 of the National Housing Trust Act," Miller said.

His witness statement was filed by the law firm Hylton Powell.