To the Editor by Oniel Cunningham:
KINGSTON, Jamaica – This is not a text book case but a Case for the Text books. “This is regarding our Successive Governments and Political leaderships generally and this constant hypocritical outcry for Jamaicans at home and in the Diaspora to invest in Jamaica because the Government is making a concerted effort to fight Corruption where it hurts this Country the Most”. For when Jamaicans take up the baton to make a difference, all that happens is that they get hammered over the head. And get hammered hard, except when they bring in expats to front or take the profits out of the islands economy. This is a warning to Jamaican’s; think hard and fast before trusting your money; energy, experience and time to a Country you love and care about, but only sees you as “Meat” and hates to love you back! In advanced economies around North America; New York; Michigan; most of the United States, investors; foreign or domestic, are given incentives from; land, bonds and even tax breaks.
Here in Jamaica, consider yourself blessed if you escape without a gun stuck in your gut, a boot at your rear; you live to tell the tale and enough money to buy a ticket out-of-here! Stop telling that lie to Jamaican about wanting us to invest here. Really indicates you don’t want Jamaicans to even live here! If our so called valued experience and needed Dollars are wanted here, and that is indeed the Truth, then why has no government or law enforcement agency looked at the corruption that is ongoing within our Judiciary?
The judiciary is responsible for resolving issues of major Commercial and development concerns for this country on a daily basis. So why is it the only agency of our government that is not under serious scrutiny? It took thorough a cleaning of the judiciary and law enforcement along with dirty politicians for places such as New York, New Jersey; Chicago and Louisiana to have any semblance of no corruption. So why is it not the same here in Jamaica?
The serious commitment that Jamaica’s Government needs to make to Jamaicans who want to make a difference by investing in Jamaican is simply not there. And when such a promise is made it is just not genuine. Our Prime minister in yet another revisit to our loyal Diasporas in the USA has again made promises; in so many words, that Jamaica is ready and in need of the Diaspora, its vast resources and its support. This is basically the very same message that has been thrown out there for decades as feel good fodder for those of us who still remain well-wishers, but who eventually will, ‘like their predecessors get so fed up of this rhetoric that they simply just stop showing up, leaving these annual waste of time and waste of money gatherings to the younger more vulnerable, gullible, who will repeat the very same cycle of attendance and activities until they too get tired of the sickening hype. The fact is Jamaicans at home are not themselves very serious or genuine about having their people returning home; more so returning home to become visibly active in advancing this Country.
In fact it is fairly reasonably to state that there is a tremendous reality of resentment towards the returning Jamaican, especially those from the Diaspora. That is fundamentally the reason why returning residents are often targeted and often murdered as they merely try to live the best quality of life on returning home. And that is why it makes much more sense for them to just stay where they are, or simply go to the Southern USA where they can enjoy a much higher standard of living. This self-hate attitude prevents us from becoming serious about fighting the scourge of corruption which leads to so many gullible well thinking Jamaicans, both here and abroad, who really would like to see this country progress becoming so frustrated that the self-fulfilling prophecy and practice of failed economic growth and development continues.
Why this bold statement?
Simply because if Jamaicans here at home really wanted these problems fixed they would be! Corruption does not grow in isolation. It has to be lovingly and caringly fertilized to take hold and grow. And in Jamaica’s case is has found fertile soil. While not many persons may be aware, the following are actually events that have and are unfolding as this is being written and is an example of the tremendous damage that is being done to this county by those who believe corruption occurs only when there is physical bribery. And be reminded; corrupt behaviour within our government institutions and or within the judiciary is just as vile as any that happens in the gutters of the backwaters and under belly of any society. Jamaica is no different.
The really horrific tragedy is however when those who are not themselves corrupt allowed the corruption to continue. When that happens, everyone good or bad gets painted with the very same broad brush of disgust. And Corruption becomes perpetual and self-sustaining to the detriment of us all. I know this because I am one of these very frustrated insiders who have had my business and personal life completely disrupted and turned upside down for only wanting to work to see this country progress.
My partners have been reluctant to publicly press the issue which I about to expose. And this is only the tip of the iceberg. However, as far as I am concerned and since time is of the proverbial essence, the patients that they have shown have long passed its due date. That Patient disposition is now causing others who have been awaiting the results of; what can only be described as overt act of corruption within the judiciary, to become downright disgusted with Jamaica. And we want out! This is a quick synopsis of the events leading up to my frustration; Jamaica had one of its largest real estate project approved by NEPA in the last quarter of 2008. The Project was led by Jamaicans. 1. Some legal challenges emerged and the matter ended up in front of the Appeals Court. 2. The Appeals Court Rules that the Party causing the disruption in the advancement of the Development, had no claim, had no standing for a claim and had no claim against the other Parties. 3. The Appeals Court also ruled that the Case itself should have been completely stricken. The reason the Appeals Court stated it would not dismiss the case was the fact that the Attorney representing the successful party did not ask for it to be dismissed.
The Three panel Judges agreed unanimously. I believe the Appeals Court ruled correctly on all counts. However what the Appeals Court was not aware of was that in fact and in truth the Attorney for the successful party was given instruction on multiple occasions by her Clients for her specifically to Ask the Court to Order a dismissal of the Claim. I am convinced that she had her own agenda and it was not in the interest of me or my Partners. And in spite messing up the instructions. Instead of doing the honourable thing and filing an application to fixing what was her mistake; she simply ignore the situation, took the money previously paid to handle the matter and ran. When asks about making the application to have the matter dismissed decided she wanted a lot more to correct her own neglect and negligence. Only in Jamaica!!! The Ruling took place in summer 2012. Immediately after the ruling of that Appeals Court, a formal application was made to have the matter formally dismissed. Since 2012 until now, that Order has not come down, in spite of it being in front of several judges of the Supreme Court. 1. Apparently the first reappearance of the case came by way of an application for an interim injunction. No notices sent to me or my partners.
This interim injunction was granted even though the Application did not state what the purpose of the injunction was. The Judge did however get an undertaking for damages before granting this injunction. 2. On the second account where the injunction; in accordance to the Rules [The governing Rules or Civil Procedure Rule- CPR] of the Court itself, must be reviewed in 28 days, that judge refused to review the injunction and simply made an order that the injunction must remain in place until the matter is settled. So there was no (28) days review whatsoever. 3. At this same 2nd hearing of this matter {this same hearing in Paragraph 2}, there was already an Application filed in summer of 2012[before the interim injunction was put in place] for the matter to be dismissed in accordance to the Appeals Court ruling. 4.This Particular Judge did not even consider that Application. When the Applicant raised the issue, that they were there to simply have the matter dismissed in accordance to the Appeals Court Ruling that Particular Judge said if the Applicant was of the opinion that the APPELAS Court was stating that the Claim must be dismissed then the Applicant should take it back to them. The Said judge then refused the Applicant leave to Appeal, even after he; the judge, said the Applicant should take it back to the Appeals court for it to be dismissed. 5. When next it came up for hearing; the Said Application to have the Matter Dismissed, this New Judge again completely ignored the Application which was scheduled to be heard because the other Party, who the Appeals Court had ruled against. The Other Party whom the Appeals Court had already stated had no standing to have even filed the Claim in the first place. The Other Party who applied for what now seem like a permanent injunction; the one which was never reviewed; even when the questions were raised about the negative effect it was having on the sitting approved development. Yes that Party decided to withdraw its claim against two of the three Defendants it had named in its claim. 6. It must be mentioned here that while there was an application made for an injunction which was granted; supposedly to give the losing party the time to take some kind of action to bring them into standing to advance a Claim [not sure how this would be done since the Appeals Court categorically ruled there was none], no Appeal of the Appeals Court final Order was made or even attempted. In short there was no more time to file an appeal. So by all accounts there were no further options available at this point for the losing party. 7. Yet and regardless of this fact, this Judge refused to even hear the Application for the dismissal and rather than doing so adjourned the hearing, with the added bonus of extending once again the injunction, even when there was no application in front of the Court to do so; only an opposition to its continuance. 8. The Files for this Particular case then mysteriously disappeared, reappearing at will. It would go missing when there were Applications made for the case to be dismissed or other any other Applications which were adverse to the opposing/ losing Party. 9. After several years of having the disappearing phenomena continue unabated, a formal letter was sent to the Chef Justice regarding the matter in its entirety. 10. The Chief justice office has since stated that they have located the files and the Matter is now in front of a judge where that Application to have the matter dismissed is to be Ruled on. 11. Incidentally this Case was so bizarre that a letter had to be sent to the Minister of Justice who in turn forwarded the matter back to the Chief Justice. 12. Furthermore with the missing files and the other party filing forged and fraudulent documents, the matter was also sent to the Fraud Squad. It seems in this particular case not even the Fraud Squad could decisively deal with the matter. Apparently the Fraud Squad has shoved it into file cabinet 13; “x” files. 13. One particular judge refused to give an order for the Fraud to be investigated after my partner filed a formal application for such and Order. The Fraud Squad officers handling the matter at that time had asked that order be done. The judge said he would not.
14. The Matter went from one fraud SQUAD to the Duke Street Office down Town Kingston, since they said they felt that the matter could be dealt with better at that office. Of course the statements that were taken in the matter were not found. New statements had to be taken. 15. The Fraud Squad said they referred the file to the DPP’S office and had meetings with that office. The then communicated DDP’s office could not decide if a signature is forged on to a document is that amounts to fraud or not. In fact it was even suggested that the DPP’s office said the attorneys who forged the document were merely trying to help the other party save taxes or stamp duty. In short nothing was or has been done in the matter. 16. Incidentally my partner handling the matter asked and put in writing to the Fraud Squad that is indeed there was an attempt to save us money where was the money credited. 17. The Other Party had also filed documents which it claimed was theirs but when the documents were checked they were in the name of anther Corporation. Again I have not heard from the Fraud Squad even though a formal request has been made to put their findings in a statement. It was even suggested that I don’t bother to call back because they were getting tired of me calling for updates. 18. in any event it seem not even the Fraud squad could touch or was willing to touch this case. 19. Things got so overtly biased that my Partner was compelled to again write to the Chief Justice about the rulings of a particular judge who had now taken keen interest in the matter. 20. However with each appearance the ruling got more and more outrageous including giving my Side of the Case Order to provide expert witnesses that could or not tell if the other side had standing to have filed the Claim. This is again in 2014, some 2 years After Jamaica’s highest Court; the Court of Appeal had already ruled that this particular Litigant had no legal standing or claim to have even filed a Claim in the first place. 21. The injunction still remains in place; on a case which commenced in June 2010. 22. The undertaking for damages is in question, since the Court has not even dealt with the Dismissal of the Claim. And applications was made for the undertaking to be proven good. 23. O yes, there was a Counter Claim, to which no defence was filed. Meaning the losing PARTY, Yes that same party that gave the undertaking for damages, for some odd reason just didn’t bother to file a defence and are now in Default. And have been in Default from 2010 until now. 24. Apparently they seem to have been some guaranteed assurance that they would have been successful in spite of the fact that the Appeals Court ruled against them so they never appealed.
I suppose when you are guaranteed a win you just don’t have to bother to follow the rules of the Court. So they just didn’t bother. 25. So technically, they are not only in default but liable under the Undertaking for the damage done. And yes major damage was done when the developer/ we, lost the financing for the project and compromised the Permits which took over 3 years to be had. 26. Further there were related projects which would have complemented this initial development. The Developers also lost out on several opportunities to be a part of the bidding process for the Casino license. Our development was amongst the very first; the first and the only development which met the criteria originally set for a Casino license. 27. And most importantly, the investors; Jamaican here and abroad; designed this particular project so the entire hip strip would have seen a revitalization. With the project now gone, it will again cause the hip strip to be left out of main stream development. The Development would have created of over 20,000 new jobs and 3,000 small businesses in what would have been Jamaica’s very first skyscraper. Again now are all dead. So can someone tell me one good reason why any Jamaican should invest money here with no viable hope of seeing a return?
And why isn’t there anything being done by the fraud squad to correct an obvious problem. The actions as it relates to this particular case are only representative of hundreds of other cases within the system. For those who can’t afford a long protracted fight what happen to their money and time? Maybe we will get a tax incentive in the form of a write-off; just no money. Thanks for sharing our frustration. As you can see I have furnished copies of letters to the various groups mentioned herein for your private review and to confirm that this is genuine concern. I have put my money where my mouth is. I have lost big time for believing that I could have a real opportunity here in Jamaica, only to see corrupt behaviour slap me in the face. Incidentally this development would have brought into the local economy investments amounting to over USD$3Billion. As indicated there were related Project which would have brought in another USD$8Billion. Inclusive of rebuilding the Fire department in Down Town Montego Bay, at no cost to Taxpayers.
