Deeds and Commercial Registry9565 03 Jan, 2013
Mr. Nandlall: The Deeds Registry is a very important institution in our country whose significance, sometimes, is not fully appreciated. It was created in 1919, nearly one hundred years ago, and it performs various and varying functions. It is the repository of all transports; it is the institution that administers all conveyance in relation to transports; it is the institution that executes all mortgages passed in this country and it is the official repository of all mortgages. It is the institution where all powers of attorney are recorded and kept, where all patents and trademarks are filed, where all deed polls are filed, where all miscellaneous deeds are filed, where are debentures are executed and filed, where all companies are incorporated, where all business registrations are done. I would not have exhausted all the functions of this important organisation.
Yet, over the last one hundred years of existence it has remained at the same physical location; it has enjoyed the same resource base, in terms of both equipment and human resources; it has maintained the same staff structure, the same storage facilities. Any entity enduring the longevity of almost a century of existence would, if not by anything else, but the mere passage of time, have became anachronistic, antiquated and outmoded and so is the Deeds Registry, quite frankly. Changes have been made over the last fifteen years or so but they are not the type of changes which are required to meet the radical transformation which has taken place in our country and which impacts upon the Deeds Registry in the execution and discharge of its various functions.
Indeed, one only has to reflect upon the number of transports that would have been passed in the year 1920 or the numbers of powers of attorney that would have filed at that time, the number of mortgages that would have been executed at that time, the number of companies that would have been incorporated at that time and compare that to the volume of those types of transactions occurring today.
We have to recognise that our economy is growing, our society has been transformed, there are much more businesses now than ever before in this country, there are more people owning homes now than any period in our country and there are more mortgages executed than any period in our country. These exigencies of the growth of our economy, the growth of our sector and the attendant activities, which are generated thereby obviously, have an impact on the ability of the Deeds Registry and, hence, as a result of a series of consultations done over the last ten years - it has been recommended by various studies and various consultancies executed - there is a need to create a modern infrastructure under which the Deeds Registry is to operate. It has been recommended that we have to make the establishment of our business sector more modern to enhance expediency in our business transactions and in the commencement of our business and businesses. That is why in a competitive strategy initiative embarked upon the administration some ten years ago, the Deeds Registry was identified as one of those sectorial agencies to be addressed, reformed and modernised as we begun to modernise the architecture of our country from a commercial perspective. It is those consultations which have resulted in the crafting of this Bill.
The long title of the Bill is “AN ACT to establish the Deeds and Commercial Registries Authority as a corporate body, to establish and promote the efficient and orderly operation of the Deeds Registry and the Commercial Registry, to establish the conditions governing the employment of officers and employees of the Authority, to provide for funding of the operations of the Authority, and for connected matters.”
The objective of this Bill is to facilitate the efficient administration of the following pieces of legislation, all of which fall under the administration of the Deeds Registry, as I speak. The various pieces of legislations are the Deeds Registry Act, the Powers of Attorney Act, the Companies Act, the Business Names (Registration) Act, the Patent and Designs Act, the Bills of Sale Act, the Trademarks Act and the Trade Unions Act. All these various pieces of legislation and the functional responsibilities, which they devolve, are administered by the singular unit called the Deeds Registry.
The Bill addresses procedural as well as operational matters. It does not change or amend the substantive law relating to the rights and obligations of the public under these pieces of legislation.
The main functions of the Deeds Registry currently include:
• The operation of the Roman-Dutch system of land titles, familiarly known as “transports system”, including the processing, advertisement and recording of transports and leases, leases beyond a period of three years which under our law are required to be in writing and be recorded as a matter of record at the Deeds Registry;
• The registration of mortgages, encumbrances and all matters affecting title to land;
• The registration and recording of notarial and miscellaneous deeds, for example, powers of attorney, deeds of gift, deeds of trust, indentures, deeds poll;
• The incorporation of companies;
• The registration of trademarks;
• The registration of design and patents;
• The registration of bills of sale and recording and annotating debentures and charges;
• The registration of trade unions.
All of these are functions which are currently being discharged by the Deeds Registry.
In 2011, the business conducted at the Deeds Registry numbered in excess of forty thousand transactions: Bills of sale – eleven thousand one hundred and sixty-eight, companies – two hundred and twenty-eight, business names – five thousand one hundred and twenty-five, trademarks – six hundred and seventy-four, conveyances - eleven thousand and ninety-four, powers of attorney – ten thousand eight hundred and thirteen, miscellaneous deeds – one thousand six hundred and fifty. These more than forty thousand transactions, each, in itself, requiring its own statutory process and many man hours were handled by the Deeds Registry with a staff of less than fifty, which includes the non-technical staff such as the four cleaners. Needless to say the volume of transactions, the current systems and institution do not provide for the speedy and efficient delivery of services to stakeholders. In addition, all energies are focused on processing these forty thousand transactions yearly with no time, human resources or capabilities left over to our title and commercial record management and archives.
I had the occasion to remark to my learned friend Mr. Ramjattan, in the corridors of this Parliament building, during the break, that there is in that institution documents, which are so old, nearly one hundred years old – transports dating back to 1800, and more - that when one touches them they are becoming to disintegrate and that is the situation that is there now. Once this Bill is passed it allows for the getting of finance to move the archiving efforts into digitising and microfilming where all plans and documents of great historical value and also of great proprietary value will be reduced and using technology to find better methods of storing them. That is what this Bill, eventually, will achieve when it is passed, because this is only a process and then we have to move to stage two.
The conveyances handled at the Georgetown Deeds Registry in 1990 numbered approximately four thousand. In 2011, there were more than eight thousand. The bills of sale processed by the Deeds Registry in the year 2000 numbered approximately six thousand. In 2011, there were more than eleven thousand processed. The number of transactions in the last twenty years has doubled.
Commerce has grown at an accelerated pace whilst the administration of these Acts and the institution tasked with the administration, statutorily set up in the year 1920, have stagnated to the detriment of business and commerce in Guyana and resulted in the frustration of stakeholders. What this Bill seeks to do is to facilitate the conduct of commerce and business in Guyana. It addresses the problems of delay faced by the stakeholders, whether that stakeholder is the ordinary man trying to process his mortgage and transport, the sole trader trying to register a business name or a financial institution registering a billion dollar bill of sale or debenture to secure a loan to industry. It addresses the problems of maintaining an accurate up to date secure record of ownership and transfers of land, to enable the public to easily access information on ownership and have confidence when entering into commercial transactions regarding land.
The Bill, with those primary objectives in mind, addresses the existing impediments to the expeditious delivery of services and of reliable, up to date and secure recording of transactions by providing for:
• A semi-autonomous agency to ensure minimal bureaucracy in the decision making process, the acquisition of materials, the training, hire and discipline of staff, the immediate response to issues affecting the administration of the Acts, the transaction of business under those Acts and current events impacting on stakeholders.
• An inclusive governing board ensuring direct input on policy, planning, implementation and supervision, by including on the board –
- commercial stakeholder representatives, namely the Guyana Bar Association, the Guyana Association of Legal Professionals - the Berbice Bar Association, the Private Sector;
- primary service providers, namely the Registrar of Deeds and the Registrar of Commerce;
- public stakeholder representatives, namely nominees from the Ministry of Housing which processes a large amount of house lot titles yearly and the Ministry of Finance to immediately advise and provide input on budgetary and planning issues.
I pause here to recognise the all-embracing nature of this board. It was intended to be as broad as possible and to capture and embrace all the interests which are at stake in the Deeds Registry because, as I said, it is an agency that carries out a multi-faceted set of functions.
• An authority with an annual budget retained from the fees and duties collected with authority to spend on all operational costs, improvements and staffing.
• A specialised standalone Deeds Registry tasked solely with administering the functions of the Registrar of Deeds under the Deeds Registry Act, the Powers of Attorney Act, the Civil Law of Guyana Act and processing transactions there under.
What the Bill seeks to do is to dichotomise the functions currently being performed by the singular personnel of the Deeds Registry and to divide those functions into two categories - Deeds Registry functions proper and Commercial Registry functions. For example, the Deeds Registry would continue to perform core deed functions - passing of transports, filing of powers of attorney, deeds of gift, filing of mortgages. They will remain within the Deeds Registry. We will migrate away to the newly Commercial Registry matters that can be categorised as a commercial character, for example, incorporation of companies, registration of businesses, registration of patents and designs, registration of bills of sales, execution of debentures. Those are commercial transactions and they will now be done by the Commercial Registry. Significantly we are going to physically locate these agencies separate and apart from each other because we need more space. Each one will have its own physical location in the near future.
• A specialised standalone Commercial Registry tasked solely with administering the Companies Act, the Business Names (Registration) Act, the Patent and Designs Act, the Bills of Sale Act, the Trademarks Act and the Trade Unions Act and processing transactions there under.
• Satellite Deeds Registries and Commercial Registries will be established in the counties of Essequibo and Berbice, and throughout Guyana as the board deems necessary, headed by officers empowered to conduct all business of the registry.
Here, the vision is to transfer functional power and authority from the centre to peripheral organs. I did not confine it to Essequibo, Berbice and Demerara, but I left an allowance because, as we know, Rupununi/ Lethem is a growing commercial centre and in time to come we may have to contemplate, seriously, the establishment of a registry of this type to deal with our commercial transactions there.
Part II of the Bill establishes the Deeds and Commercial Registries Authority as a corporate body with a governing board. The authority is semi-autonomous, delivering services traditionally delivered by the Government service, but outside of the public service and its concomitant bureaucracy. It has the power to do anything and to enter into any transaction which is necessary to ensure the proper performance of its functions and to regulate its own procedure.
Clause 4 provides that the functions of the authority are the functions of the Registrar of Deeds and the Deeds Registry under the several Acts, which I have made reference to, and the functions of the Registrar of Companies and the Companies Registry under the Companies Act, the Business Names (Registration) Act, and others.
Part III of the Bill addresses the governing board. The authority is headed by a governing board which will ensure the proper and efficient performance of the functions of the authority. The composition of the board is set out at clause 5(2). The board consists mainly of both private and public stakeholders, persons involved in the businesses transacted at the Deeds Registry are aware of the impediments to its smooth conduct, aware of the importance of efficiency and accuracy. The Chairman appointed by the Minister, the Registrar of Deeds will form part of the board, the Registrar of the Commercial Registry will be there, a nominee of the Ministry of Finance, a nominee of the Ministry of Housing and Water, a nominee of the Guyana Bar Association, a nominee of the Berbice Bar Association and a nominee of the private sector.
Additionally, functions of the board are set out at clause 7, and at clause 7(1) it includes the responsibility for the hiring of officers and employees of the authorities and its registries, setting their conditions of employment, implementing a code of conduct and administering that code of conduct. Here we are dissecting away from the public sector and the public service; these employees and transferring them on terms that are equally satisfactory and move them into a semi-autonomous agency under which they will come under the administration of the governing board and the governing board will determine their terms and conditions by way of agreement which are going to be negotiated.
Part IV of the Bill specifically provides at clause 12 for the separation of the Deeds and Commercial Registries by establishing a Deeds Registry responsible for the Deeds Registry Act and a Commercial Registry responsible for the Companies Act, and others.
Clause 13 provides for the appointment of Assistant Registrars of Deeds, who shall subject to the instructions of the Registrar of Deeds, have the power to perform the duties of the Registrar of Deeds. This is an important provision which will allow for sub-registries in the counties of Essequibo and Berbice to function with some degree of autonomy at which transports, leases and mortgages may be certified and passed without awaiting the attendance of the Registrar from Georgetown. The current position is that the Registrar of Deeds has to travel weekly to Berbice and to Essequibo to pass those transports and to sign off on documents which by law require her signature. We are creating the structure which allows for the delegation of functions by the Registrar of Deeds to personnel holding the title of Assistant Registrar of Deeds and conferring upon those personnel the requisite legal authority to execute functions which devolve currently on the Registrar of Deeds.
Under clause 14 of the Bill the Registrar of Deeds retains all powers vested in the Registrar of Deeds under the Deeds Registry and other Acts, but subject to the general supervision of the board. The Registrar of Deeds continues to be responsible for the discharge of the functions of the Deeds Registry, the custody and preservation of all titles records, the daily operation of it and the administration and control of the staff.
Under clause 15 the Registrar of the Commercial Registry is made responsible for the functions currently assigned to the Registrar of Deeds who acts as Registrar of Companies, Registrar of Trade Unions, Registrar of Patents and Designs by virtue of provisions in the Companies Act, the Patents and Designs Act, the Bills of Sale Act, the Trade Unions Act. There will be now a separation of functions. The Registrar of the Commercial Registry is also responsible for the daily operations of the Commercial Registry, the custody and preservation of the commercial records, the administration and control of the staff of the Commercial Registry all subject to the control and supervision and superintendents of the governing board.
Clause 16 allows the governing board to appoint a Deputy Registrar of Commerce and an Assistant Registrars of Commerce who shall, subject to the instructions of the Registrar of Commerce, have the powers to perform the duties of Registrar. The same Assistant Registrar of Deeds type of functionalities are replicated now in relation to the Assistant Registrar of Commerce, so there will be the same type of delegated functions so that there is greater autonomy in the peripheral registry of the country.
Part V of the Bill addresses the financial aspects of the authority.
Clause 18 empowers the authority to charge and collect all sums payable under the various pieces of legislations it administers, whether they be fees, duties, charges, fines or otherwise.
Clause 19 requires the authority to prepare and submit for approval a budget in accordance with section 79 of the Fiscal Management and Accountability Act. Clause 24 provides that it may be designated a budget agency under section 82 of that Act.
The authority is authorised and empowered to retain from the fees, charges, duties, taxes or fines collected by it, such sums that are necessary to fund its budgeted operations and then remits the balance to the Consolidated Fund. It shall keep proper books of accounts and shall be audited annually by the Auditor General.
The authority is thereby largely autonomous, with its independently prepared and administered budget.
A copy of its annual report shall be laid before the National Assembly by the Minister, that is the Minister holding responsibility for legal affairs.
Part VI of the Bill contains the transitional provisions required to vest operational control of the existing and proposed Registries in the authority.
Clause 26 provides for the migration of current employees and officers of the Deeds Registry to the authority on such terms and conditions which, when taken as a whole, are no less favourable than those applicable at present. Officers and employees who decline migrating from the public sector shall be referred to the Public Service Commission. There is a regime here that ensures that whatever rights and whatever protections were accorded to those public servants they are maintained when they moved across to the authority and if they do not wish to move across, well then they have a freedom to choose to remain in the public sector and the Public Service Ministry and the Public Service Commission will so assign them.
Clause 27 of the Bill vests in the authority all subsisting affairs of the Deeds Registry and all its existing assets, property, rights and liabilities.
Clause 28 continues all legal proceedings by or against the existing Registrar of Deeds and Deeds Registry and provides that all future proceedings be taken against the authority. These are normal transitionary provisions.
Part VII of the Bill deals with certain miscellaneous provisions and it has certain regular statutory provisions which are conferred upon statutory authorities.
Clause 29 for example protects members of the authority from proceedings being instituted against them personally for acts undertaken in the execution of their lawful duties and designates them agents of the authority with liability vested in the authority.
Clause 30 allows the Minister of Legal Affairs to make regulations for carrying out the purpose of the Deeds and Commercial Registries Authority Act and to make regulations under the Deeds Registry Act.
Of course, clause 31 repeals an Act which was passed in this House of a similar joinder, but which was never brought into operation. That Act, for completeness of record, is formally repealed.
It is expected that the authority, semi-autonomous corporate body, governed by the inclusive board with members experienced in commercial transactions and with ready but accountable access to its own budgeted fund, will establish functionally autonomous registries and sub-registries throughout Guyana. It is further expected that the board will ensure that each registry is adequately staffed with competitively remunerated, qualified and capable employees, who are trained and supervised to expeditiously deliver to stakeholders the services under the Deeds and Commercial Registries Acts. Therefore this is a very crucial piece of legislation as we continue our efforts to modernise and to bring our corporate and our commercial architecture up to state with what is going on with the world and as the way things have been going in this Assembly in all prior matters, I anticipate that there will b no difficulty in securing the unanimous support of this Assembly in respect of this Bill.
Thank you very much. [Applause]
Mr. Nandlall (replying): Mdm. Deputy Speaker, we have had a very full and wholesome debate and I would like to thank my colleagues on this side as well as my learned and Hon. Friends on the other side who have lent their support to this bill.
I wish to respond briefly to some remarks made by Mr. Williams to assure him that the appointment to which he made reference was an appointment made…
The appointment firstly was made by the Judicial Service Commission, and the appointee is a lawyer in excess of five years experience with a master’s degree. I must say that person has been functioning in that capacity and from all reports which I have received she has acquitted herself with commendable success in that position.
The employment now would largely be administered by the Board, and, as I said, there was a deliberate effort to expand the Board and to embrace all the major stakeholders.
The comments made by Mr. Ramjattan have raised his now characteristic apprehension that there is going to be political control wherever a Minister has a hand. But the three ministries have in their employ public servants. I do not think that Dr. Ashni Singh and Minister Irfaan Ali are going to appoint politicians to the Board. In my Ministry, for example, the persons who are going to be appointed by the Minister of Legal Affairs are going to be lawyers. Wherever the Ministry of Legal Affairs has to nominate persons to a position, as I do, for example, on the Legal Practitioners Committee, it has always been lawyers. [Interruption] All my predecessors did that. So I think that your fears and apprehensions are misplaced in this instance. The Bill has some very high ideals and I sincerely we can achieve them.
In relation to the physical location, separately of the Commercial Registry, I want to assure my friend Mr. Williams that a location has already been identified and arrangements are being put in place to finalise those arrangements so that we will have it housed separately, and it will have its own storage facility etcetera. With those few remarks Mdm. Deputy Speaker, I ask that the Bill be read the second time.
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