Mills & Mills v Attorney General et Al

• Jurisdiction: Saint Kitts and Nevis
• Judge: Floissac, C.J.,Byron, J.,Liverpool, J.
• Judgment Date: 22 March 1993
• Neutral Citation: KN 1993 CA 2
• Docket Number: Civil Appeal No. 3 of 1991
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 22 March 1993

Court of Appeal

Floissac, C.J., Byron, J., Liverpool, J.

Civil Appeal No. 3 of 1991

Mills & Mills

and

Attorney General et al

Appearances:

Dr. Henry Far Browne, Mr. Lee L. Moore and Mrs. Jenkins for the appellants

Mr. Carl Atterbury for the respondents

Administrative law - Compulsory acquisition of land — Not proved that lands were not acquired for public purpose — Paragraph 10(1) of schedule 2 of 1983 Constitution protects from scrutiny law in force on 27th February 1967 that provided for compulsory acquisition of property — Cap. 273 — Not amended by the constitution — Appeal dismissed.

JUDGMENT OF THE COURT:

1 The appellants purchased approximately one acre of land in March, 1972, and thenceforth occupied a house thereon as their residence. At the time of purchase a few tenants lived in chattel houses on part of the land; but by the end of November, 1990 when the appellant swore to an affidavit in support of his notice of motion there remained only three tenants.

2 By declarations published in the Official Gazette on January 10 ^th and January 17 ^th, 1991, the Government of Saint Christopher and Nevis sought to acquire approximately 8,903.41 square feet of the appellants', land for a public purpose, namely for the purpose of housing. This portion of land corresponds largely with the area then occupied by two of those tenants.

3 By an amended Notice of Motion the appellants moved the High Court for Orders, to the effect that (a) the resolution passed by the National Assembly which purported to approve the making of a declaration to compulsorily acquire the land of the appellants was null, void and of no effect; (b) that the lands purportedly acquired were not acquired for a public purpose; (c) the resolution contravened the rights of the appellants as provided for in section 8 (1) of the [1967] Constitution, and (d) the lands described in the resolution were still vested in the appellants. They also sought an injunction to restrain the second respondent by himself, his servants and/or agents from engaging in any act on the lands under the purported exercise of the resolution, and other consequential relief.

4 The matter was heard by Satrohan Singh J. who, after examining the facts stated in the affidavits which had been filed on behalf of the parties and listening to the arguments of counsel, held that (1) the Land Acquisition Act, Chapter 273 was not altered by the 1967 Constitution Order; (2) section 8 of the 1983 Constitution (the Constitution) does not affect the operation of Chapter 273 in view of the provisions of paragraph 10 (1) of Schedule 2 to the Constitution; (3) he had no jurisdiction to enquire into the circumstances surrounding, the exercise of the discretion by Cabinet in relation to the acquisition; and (4) the declarations published in the Official Gazette of January 10 ^th and 17 ^th, 1991 with respect to the acquisition of the property of the appellants were conclusive evidence that the land to which they relate is required for a public purpose. He therefore dismissed the motion and refused the relief sought.

5 The appellants appealed against the decision of the learned trial judge on the following grounds:–

• “(1) The learned trial Judge erred in law in holding that paragraph 10 of the 1983 Constitution Schedule 2 precludes the court from scrutinising.. any law in force at the commencement of the 1967 Constitution to detect whether it is inconsistent with the human rights provisions and fundamental freedoms secured by the Constitution;

• (2) the learned trial Judge erred in law in holding that the declaration made by the Governor-General in the circumstances of this case is final and conclusive and cannot be inquired into by the court;

• (3) the learned trial Judge erred in law in failing to appreciate that the declaration is open to challenge in the court if the purported acquisition was done in bad faith as is alleged in the circumstances of the case;

• (4) the learned trial Judge erred in law in holding that: he is without jurisdiction to enquire into the circumstances surrounding the exercise of the discretion by Cabinet in relation to the acquisition in the circumstances of this case;

• (5) the learned trial Judge erred in law in holding that CAP 273 has the approbation of the Constitution and in failing to give effect to the modification of CAP 273 by virtue of the Constitution of 1967;

• (6) the learned trial Judge was in error in according to the approval of Cabinet's decision by Parliament a special status. affecting the conclusiveness of the declaration in that it renders the resolution of Parliament non-justiciable.”

6 The facts of this case, as learned counsel for the appellants stated, are by and large not in dispute; but there certainly is a dispute as to the law which is to be applied to those facts. The difference lies in the interpretation which the parties urge should liven to the law cited. But in order to undertake this task satisfactorily it becomes necessary to trace the history of the legislation.

7 The Land Acquisition Act, Chapter 273 came into force on 14 ^th March, 1959 and has regulated the manner in which land is to be compulsorily acquired, and compensation paid therefor in Saint Christopher and Nevis, since that date. On 27 ^th February 1967 the constitutional status of the colony changed to one of Associated Statehood and a new Constitution became operative.

8 Sections 6 (1) and 6 (2) of the 1967 Constitution provided protection for the citizen from deprivation of his property and read as follows:–

• “6. – (1) No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except by or under the provisions of a law that prescribes the principles on which and the manner in which compensation therefor is to be determined and given.

• (2) Every person having an interest in or right over property which is compulsorily taken possession of or whose interest in or right over any property is compulsorily acquired shall have a right of direct access to the High Court for:–

  • (a) the determination of his interest or right the legality of the taking of possession or acquisition of the property, interest or right and the amount of any compensation to which he is entitled; and

  • (b) the purpose of enforcing his right to prompt payment of that compensation:

    Provided that if the legislature so provides in relation to any matter referred to in paragraph (a) of this subsection the right of access shall be by way of appeal (exercisable as of right at the instance of the person having the interest in or right over the property) from a tribunal or authority, other than the High Court, having jurisdiction under any law to determine that matter.”

9 Section 6 (3) empowered the Chief Justice to make rules respect to the practice and procedure of the High Court or other tribunal or authority in relation to the jurisdiction conferred by section 6 (2); and section 6 (4) exempted actions taken under certain laws from being held to be inconsistent with Constitution in certain specified instances.

10 The 1967 Constitution then went on to provide (section 103 (1)) that the existing laws (of which Chapter 273 was clearly one) were as from the commencement of the Constitution, to be construed “with such modifications, adaptations, qualifications and exceptions as may be necessary to bring hem into conformity with the West Indies Act 1967, this Constitution and the Courts Under”.

11 Consequent on the change in the State's constitutional state's constitutional status certain amendments were effected to Chapter 273 by the Land Acquisition Ordinance (Amendment) Act, 1969 to reflect those; changes. Generally those changes related to the substitution of the word “Administrator” wherever it appeared by the words “Governor” “Cabinet” or “Minister of Finance” as appropriate. Two substantive changes were however made to the Act in sections 3 and 19. The change which featured largely in this litigation was the replacement of section 3 (1). As amended, section 3 (1) read (after 30 ^th June, 1969) as follows:–

“(1) If the Governor, acting in accordance with the advice of the Cabinet, considers that any land should be acquired for a public purpose he may with the approval of the House of Assembly, cause a declaration to that effect to be made by the Secretary to the Cabinet ire the manner provided by this section, and the declaration shall be conclusive evidence that the land to which it relates is required for a public purpose.”

12 The procedure instituted by this change is therefore that if the Cabinet advises the Governor (now Governor-General) that land should be acquired for a public purpose; after receiving the approval of the House of Assembly, the Governor may cause a declaration to be made to that effect by the Secretary to the Cabinet in the required manner, and on publication, the declaration is to be conclusive evidence that that land is required for a public purpose. This replaces the earlier procedure whereby if Administrator-in-Council considered that land should be acquired for a public purpose he was empowered, after obtaining the approval of the Legislative Council, to cause a declaration to that effect to be made by the Clerk of the Council, and on publication, declaration was to be conclusive evidence that the land was required for a public purpose. It seems to me that whereas both the designations of the decision makers and of those who were required to give approval had changed, the basic procedure remained the same.

13 On 19 ^th September 1983 the Federation of Saint Christopher and Nevis became an independent nation, and...