Manohardas Devidas Chandiramani v Mark Brantley

• Jurisdiction: Saint Kitts and Nevis
• Judge: Blenman JA
• Judgment Date: 09 December 2020
• Neutral Citation: KN 2020 CA 7
• Court: Court of Appeal (Saint Kitts and Nevis)
• Docket Number: NEVHCVAP2020/0001
• Date: 09 December 2020

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Louise Esther Blenman Justice of Appeal

The Hon. Mr. Gerard St. C. Farara, QC Justice of Appeal [Ag.]

The Hon. Mr. John Carrington, QC Justice of Appeal [Ag.]

NEVHCVAP2020/0001

Between:

Manohardas Devidas Chandiramani

(In his capacity as Sole Executor of the Estate of Kishu Chandiramani)

Appellant

and

[1] Mark Brantley

(In his capacity as Minister of Finance in the Nevis Island Administration)

[2] The Attorney General of St. Christopher and Nevis

Respondents

Appearances:

Mr. Damien Kelsick with Ms. Danni Maynard for the Appellant

Mrs. Rhonda Nisbett-Browne for the First Respondent

Mrs. Simone Bullen-Thompson, Solicitor General for the Second Respondent

Civil appeal – Compulsory acquisition of land – Procedure for compensation for compulsory acquisition – Nevis Land Acquisition Ordinance – Section 11 of Nevis Land Acquisition Ordinance – Constitutional law – Sections 3 and 8 of the Constitution of Saint Christopher and Nevis – Right to protection from deprivation of property – Whether the judge erred in concluding that fundamental rights under sections 3 and 8 of the Constitution of Saint Christopher and Nevis, were not infringed – Locus Standi – Whether appellant had standing to claim breach of constitutional rights – Whether learned judge erred in concluding that appellant was not entitled to the relief claimed – Alternative remedy – Whether judge erred in concluding that alternative remedy was available – Costs – Rule 56.13(6) of Civil

Procedure Rules 2000

Rest Haven Limited owned a parcel of land situated in Nevis which was mortgaged to Kishu Chandiramani (“Kishu”), now deceased. The Government of Nevis (“the State”), in accordance with the Nevis Land Acquisition Ordinance (“the Ordinance”), compulsorily acquired the property for touristic development. A Board of Assessment (“the Board”) was convened. The Board conducted a hearing in which an award was made to Rest Haven Limited in the sum of US $6,362,316.88 with interest at the rate of 6% per annum. Kishu participated in the hearing before the Board. He was represented by counsel who cross-examined witnesses on his behalf. At the hearing, Kishu made no claim for compensation, and accordingly, received no such award. The Board however made a costs order in Kishu's favour.

Subsequently, Manohardas Devidas Chandiramani (“Manohardas”), in his capacity as sole executor of Kishu's estate, filed an originating motion, by way of fixed date claim form, seeking a declaration that Kishu's fundamental rights under sections 3 and 8 of the Saint Christopher and Nevis Constitution Order, 1983 (“the Constitution”) had been infringed. He alleged that the Board had made an award to Kishu in respect of the acquisition of the property by the State. He further sought an order to compel the Minister of Finance to pay the award out of the Nevis Island Consolidated Fund, notwithstanding that no such award was, in fact, made.

The matter came before the learned Williams J who held that Kishu's fundamental rights were not breached and that Manohardas, in his capacity as Kishu's executor, was not entitled to the relief sought. Accordingly, the learned judge refused to make orders for compensation to be paid to Manohardas, and to compel the Minister of Finance to effect the payment. The judge also held that Kishu, and therefore Manohardas, had an alternative remedy available.

Manohardas, being dissatisfied with the judge's decision, appealed. The issues that arose for this Court's determination were: (i) whether the judge erred in concluding that Kishu's fundamental rights, as provided by sections 3 and 8 of the Constitution, were not infringed; (ii) whether the judge erred in concluding that Manohardas was not entitled to the relief claimed; and (iii) whether the judge erred in concluding that Manohardas had an alternative remedy available to him.

Held: dismissing the appeal and ordering each party to bear their own costs, that:

1. It is trite that where Parliament has provided a legislative scheme for the resolution of a claim, it is not open to a claimant to avoid that scheme and seek to utilise another avenue. In the appeal at bar, Parliament has, by way of the Nevis Land Acquisition Ordinance, provided a comprehensive legislative scheme for the ventilation of issues relating to the compulsory acquisition of property, and that scheme must be adhered to. Under the Ordinance, Kishu was entitled to and ought to have asserted his right to compensation, and sought apportionment in the assessment before the Board, but failed to do so. In addition, if he was dissatisfied with the Board's decision, he had a direct right of appeal to the Court of Appeal. Small v Saul and Saul (1965) 8 WIR 351 applied.

2. Section 11 of the Ordinance enables the Board of Assessment to determine all questions and claims for the payment of compensation and the apportionment of that compensation in relation to compulsorily acquired land. It is neither the function of the High Court on the basis of an originating motion alleging breach of constitutional rights, nor the Court of Appeal on an appeal flowing therefrom, to determine the amount of compensation that is owed to Kishu and to seek to apportion it. All of these matters fell within the remit of the Board under the provisions of the Ordinance. In circumstances where Kishu participated in the Board of Assessment hearing, cross-examined witnesses, and failed to pursue any claim for compensation or apportionment, it is an abuse of the court's processes for Manohardas to then invoke the special fundamental rights jurisdiction of the High Court to allege breaches of Kishu's right not to be deprived of property without compensation.

Sections 3 and 8 of the Saint Christopher and Nevis Constitution Order Cap. 1.01, Revised Laws of Saint Christopher and Nevis 2009 applied; Section 11 of Nevis Land Acquisition Ordinance Cap. 4.02, Revised Laws of Saint Christopher and Nevis 2009 applied; Rosie Modest v The Attorney General and another [1989] ECSCJ No. 4; Civil Appeal No. 4 of 1988 (delivered 2nd May 1989) considered; Grande Anse Estates Limited v His Excellency Sir Leo Victor De Gale et al Grenada Civil Appeal No. 3 of 1976 (delivered 7th October 1977, unreported) considered; Kemrajh Harrikissoon v The Attorney-General of Trinidad and Tobago [1979] 3 WLR 62 considered.

3. It is well settled that the fundamental rights jurisdiction of the court is a special jurisdiction that should only be utilised in appropriate circumstances, namely, where there is or is likely to be a breach of a fundamental right. This special fundamental rights jurisdiction ought not to be misused or abused by litigants, and critically, should not be engaged if there is an adequate alternative remedy available. It is clear that Kishu had adequate alternative remedies available to him under the Ordinance, such as an appeal to the Court of Appeal against the Board of Assessment's award, a remedy of which he did not avail himself. Further, he was required to utilise the procedure, which was provided to him by the Ordinance, namely making a claim during the Board's hearing and obtaining an award in his favour together with the appropriate apportionment. In all the circumstances therefore, Manohardas' resort to the procedure of an originating motion, on behalf of Kishu's estate, was inappropriate.

Section 18(2) of the Saint Christopher and Nevis Constitution Order Cap. 1.01, Revised Laws of Saint Christopher and Nevis 2009 considered; Kemrajh Harrikissoon v The Attorney-General of Trinidad and Tobago [1979] 3 WLR 62 applied; Jaroo v The Attorney General of Trinidad and Tobago [2002] UKPC 5 applied; Durity v Attorney General of Trinidad and Tobago [2009] 4 LRC 376 applied.

4. A litigant must prove that there is a sustainable allegation that his or her fundamental rights were breached or are likely to be breached, in order to assert standing to bring a claim under the fundamental rights jurisdiction of the court. In this case, Manohardas sought to assert that Kishu's fundamental rights had been breached as a result of the failure by the Nevis Island Administration to pay him the compensation allegedly assessed as due to him. However, the relief claimed was based on the false premise that the Board of Assessment made an award in Kishu's favour. The Board made no such order, Kishu having not asserted any claim before it for either compensation or apportionment. Given the totality of the circumstances, Manohardas does not have standing to bring the originating motion, as there was no sustainable allegation that Kishu's fundamental rights were breached.

Baldwin Spencer v The Attorney General of Antigua and Barbuda and others [1998] ECSCJ No. 19; Civil App. No 20A of 1997 (delivered 8th April 1998) applied.

5. It does not appear that either the Minister of Finance or the Attorney General sought costs in the High Court, and indeed the judge made no order as to costs. Furthermore, the Minister of Finance and the Attorney General have not sought to challenge the learned judge's costs order before this Court. Neither have they made an application to this Court to have their costs on the appeal. In those circumstances, the appropriate order is that each party is to bear their own costs.

Rule 56.13(6) of the Civil Procedural Rules 2000 considered.

Blenman JA

1 This is an appeal by Manohardas Devidas Chandiramani (“Manohardas”) (in his capacity as sole executor of the estate of Kishu Chandiramani (“Kishu”)), against the decision of the learned Williams J (“the learned judge”) by which the learned judge held that the mortgagee of a property, Kishu, could not sustain a claim for breach of fundamental rights as a consequence of the State's compulsory acquisition of the property, which was owned by Rest Haven Limited. Manohardas launched his claim on the alleged basis...