Loris James Appellant v Attorney General of Saint Christopher and Nevis Respondent [ECSC]

• Jurisdiction: Saint Kitts and Nevis
• Judge: THOMAS, J.A. [AG.],Justice of Appeal [Ag.],Chief Justice [Ag.],Sir Brian Alleyne, SC,Denys Barrow, SC,Justice of Appeal
• Judgment Date: 06 October 2008
• Judgment citation (vLex): [2008] ECSC J1006-2
• Docket Number: HCVAP 2007/015
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 06 October 2008

[2008] ECSC J1006-2

IN THE COURT OF APPEAL

Before:

The Hon. Sir Brian Alleyne, SC Chief Justice [Ag.]

The Hon. Denys Barrow, SC Justice of Appeal

The Hon. Errol Thomas Justice of Appeal [Ag.]

HCVAP 2007/015

Between:

Loris James

Appellant

and

The Attorney General of Saint Christopher and Nevis

Respondent

Appearances:

Mr. Anthony E. Gonsalves for the Appellant

Mr. Arudranauth Gossai for the Respondent

Civil appeal — Constitutional law — Protection from deprivation of property without adequate compensation —Land Acquisition (Amendment) Act 1969 — Sections 19(1) (1) and (c) — compatibility with paragraph 10 of Schedule 2 to the constitution order

A dispute regarding the quantum of compensation payable for land that was compulsorily acquired by the Government led to the appellant filing a fixed date claim challenging the legal basis for the payment of such compensation. The trial judge decided that sections 19(1) (a) and (c) of the Land Acquisition Act as amended by the Land Acquisition (Amendment) Act 1969 (the Amending Act) did not conflict with Sections 10 (1) (a) to (c) of the Second Schedule to the Constitution of the Federation of St. Christopher and Nevis. The appellant sought to have the decision of the trial judge set aside on appeal contending that the Amending Act placed constraints upon the valuation criteria that did not exist under the Principal Act prior to the Amending Act. The appellant's constitutional right as a landowner to fair compensation was thereby unduly fettered by the imposition of conditions governing entitlement to compensation which were less favourable to the appellant contrary to paragraph 10 of Schedule 2 to the Constitution Order.

Held: allowing the appeal and setting aside the decision of the trial judge with costs to the appellant:

• 1. Sections 19 (1)(a) and (c) of the Amending Act were unconstitutional as they created a number of fetters which made the conditions governing entitlement to compensation or the amount thereof less favourable to the appellant contrary to paragraph 10 of Schedule 2 to the Constitution Order.

• 2. Sections 19(1)(a) and (c) were so intertwined or interrelated as to make severance inapplicable. What would remain after the impugned sections were declared invalid could not survive independently: Attorney General of Alberta v Attorney General for Canada [1947] AC 503 applied.

THOMAS, J.A. [AG.]

1 On 8^th June 2007 the learned trial judge, His Lordship, Francis Belle delivered a judgment in which he determined that sections 19(1)(a) and (c) of the Land Acquisition Act1 ("the Act") as amended by the Land Acquisition (Amendment) Act 1969 ("the Amending Act") did not conflict with section 10(1)(a) to (c) of the Second Schedule to the Constitution of the Federation of St. Christopher and Nevis ("the Constitution"). This appeal is against that decision.

Background

2 The background facts relating to this appeal are not in dispute and summarised in the judgment in the lower court. They are as follows: On 14^th and 16^th June 1987 the Governor General of St. Christopher and Nevis, pursuant to the Act made a declaration in SRO No. 15 of 1987 causing all the lands contained in certificate of title registered in Book 51 folio

16 and certificate of title registered in Book 51 folio 17 of the Register of Titles for St. Christopher comprising the estates commonly known as West Farm, Camps and Johnson's ("the West Farm Lands") to be acquired by the Crown for a public purpose, namely, agricultural housing and other developments.

3 By instrument dated 6^th June 1989 the Governor General pursuant to the Act appointed an authorized officer to carry out the functions prescribed by the Act.

4 Subsequent to the acquisition by the Government of St. Christopher and Nevis offers for payment of compensation were made to the persons who in law had interests in the land, including the claimant. The offers were refused. Thereafter the Governor-General, pursuant to section 12 of the Act caused a Board of Assessment ("the West Farm Board of Assessment") to be established to hear all questions and claims relating to the payment of compensation for the land acquired by the Crown. The West Farm Board of Assessment commenced hearings in 1998 in connection with the compensation to be paid to persons with claims. The claimant submitted a claim and made submissions to the Board through his attorney-at-law and also attended the hearings and gave testimony in support of his claim.

5 A dispute regarding the quantum of compensation payable for the acquired land led to the claimant filing a fixed date claim challenging the legal basis for a payment of such compensation.

6 On 29^th June 2007 the appellant filed a notice of appeal against the decision in the High Court. In the notice the details of the order appealed are stated thus: the declaration by the Court contained in the judgment of 8^th June 2007 that section 19(1) a) and (c) of the Act as amended did not run afoul of section 10(1)(a), (b) and (c) of the second schedule to the Constitution on the basis that they make the conditions for compensation less favourable than they were under the law prior to the amendment of the Act, that the said amendments therefore could not be the basis for a challenge to the Act pursuant to section 8 of the Constitution, and that section 19(1)(a) and (c) of the Act as amended are not in breach of section 8 of the Constitution.

7 The findings of law which are challenged are as follows:

• (1) that section 19(1)(a) and (c) of theLand Acquisition Act Cap. 273 as amended by section 13 of the Land Acquisition Ordinance (Amendment) Act are not less favourable to the claimant than prior to the amendment and did not create any fetter that did not previously exist;

• (2) that section 19(1)(a) and (c) of theLand Acquisition Ordinance as amended are not in breach of section 8 of the Constitution;

• (3) that the attachment of the condition "for the purpose of being put to the same use to which such land was being put at the material time" did not so change the overall conditions of acquisition that it becomes unfavourable when compared with the earlier formulation of theLand Acquisition Ordinance;

• (4) that the compensation payable to an owner of acquired land was that sum that was to put the owner in the position the owner would have been in had the land not been acquired;

• (5) that the decision inMills (Charles) and Another v Attorney General of St. Christopher and Nevis and Another (1993) 45 WIR 125 was not obiter dicta but was binding on this Court despite the ruling in the case of Attorney General of Anguilla et al v Bernice Lake QC et al Anguilla Civil Appeal No. 4 of 2004;

• (6) that the issue was whether despite the amendments brought about by theLand Acquisition Ordinance (Amendment) Act 1969–10, the land could be sold on the basis of a sale in the open market by a willing seller;

• (7) the determination that the second issue was whether the process of sale in the open market by a willing seller on the open market was fettered by the 1969 Amendment to theLand Acquisition Ordinance;

• (8) that the Board could, within the confines of theLand Acquisition Ordinance as amended, so interpret the 1969 amending legislation that it could still arrive at a valuation as would be arrived at as by using the valuation to be accepted by a willing seller on the open market;

• (9) that the problem argued and submitted by the Claimant was not a constitutional problem but one fit for due process of appeal if the assessment when completed appeared too low;

• (10) that the reasonableness of the imposition of the assumed "agricultural use" concept in the compensation formula provided justification for upholding said concept as being constitutionally valid;

• (11) that the particular legislative scheme under theLand Acquisition Ordinance Cap. 273 did not permit charges of fettering of the valuation or assessment process established under that scheme because there were fetters that existed previous to the 1969 Amendment;

• (12) that with the agricultural use assumption was not less advantageous to anyone since it benefited the owner of unproductive wasteland;

• (13) that the case ofAG of Anguilla v Bernice Lake QC et al Anguilla Civil Appeal No. 4 of 2004 turned on its own peculiar facts;

• (14) that theLand Acquisition Ordinance (Amendment) Act did not run afoul of section 10 of schedule 2 of the Constitution.

The grounds of appeal are as follows:

• (a) that the decision of the Learned Judge is bad in law and is unsupported on a proper analysis of the impugned legislation, a proper application of section 10, in particular 10(1)(b) of Schedule 2 of the Constitution and a proper application of relevant and applicable judicial authorities;

• (b) that the decision fails to follow applicable judicial precedent without any legally justifiable distinction;

• (c) that the Learned Judge erred in determining that the imposition of the requirement that land be presumed to be agricultural land, did not impose a fetter on the valuation process and did not place a burden on the claimant to rebut, which fetter and burden were not contained in the originalLand Acquisition Ordinance Cap. 273, and consequently erred in his conclusion that the foregoing impositions did not make the conditions governing entitlement to compensation of the amount thereof less favourable to the claimant as per section 10(1)(b) of Schedule 2 of the Constitution;

• (d) that the Learned Judge erred in holding that the imposition of the requirement that land be valued on the basis that it was to be put to the same use as it was being used for at the material time (12 months prior to date of acquisition) did not place a fetter on the valuation process which was not contained in the originalLand Acquisition Ordinance, consequently also erred when he found that the foregoing fetter did not make the...