The Nevis Island Administration v Ocean Reef Resorts Ltd

• Jurisdiction: Saint Kitts and Nevis
• Court: Court of Appeal (Saint Kitts and Nevis)
• Judge: Pereira CJ
• Judgment Date: 17 August 2022
• Neutral Citation: KN 2022 CA 6
• Year: 2022
• Docket Number: NEVHCVAP2018/0006

Between:

The Nevis Island Administration

Appellant

and

Ocean Reef Resorts Limited

Respondent

Before:

The Hon. Dame Janice M. Pereira, DBE Chief Justice

The Hon. Mr. Mario Michel Justice of Appeal

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

NEVHCVAP2018/0006

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Interlocutory appeal — Preliminary issue — Juridical status of the Nevis Island Administration — Whether the Nevis Island Administration is part and parcel of the Crown for the purposes of civil proceedings pursuant to the Crown Proceedings Act — Whether the Nevis Island Administration was the proper party to be served with the claim — Request and entry of default judgment

The appellant, the Nevis Island Administration (the “NIA”), is a body established under the Constitution of Saint Christopher and Nevis (the “Constitution”) to advise the Governor General in the government of the island of Nevis. It has exclusive responsibility for the administration within the island of Nevis in relation to specific subject matters under the Constitution. The respondent, Ocean Reef Resorts Limited (“Ocean Reef”), filed a claim against the NIA seeking damages for breach of a contract pertaining to the development of certain property in Nevis. The claim was served on a secretary in the Legal Department of the NIA. The NIA failed to acknowledge service of the claim within the 14-day period prescribed for so doing under the Civil Procedure Rules 2000 (the “CPR”). Consequently, Ocean Reef filed a request for entry of judgment in default of acknowledgement of service. The Registrar entered judgment in default against the NIA for an amount to be decided by the court. The NIA then applied to set aside the default judgment on the basis that the claim was not served personally in accordance with CPR 5.1(1), as the Legal Department of the NIA was not authorised to accept service on behalf of the NIA. Ocean Reef in response argued that the Legal Department is authorised to accept service on behalf of the NIA.

The learned master dismissed the application to set aside the default judgment and awarded costs to Ocean Reef. He found that there was proper service of Ocean Reef's claim on the NIA by service on the secretary of the Legal Department of the NIA. He therefore concluded that there was no basis on which the default judgment could be set aside under CPR 13.2.

Being dissatisfied, the NIA appealed against the decision of the master. When the appeal first came on for hearing, the Court raised as a preliminary issue whether the proper party was served with the claim for the purposes of the entry of default judgment; and further, as the claim is one for breach of contract against the NIA, whether the NIA is a juridical person separate and apart from the Crown or is part and parcel of the Crown for the purposes of proceedings governed by the Crown Proceedings Act. This preliminary issue, having not been considered by the master or canvassed by the parties in the proceedings below, the Court invited the Attorney General as amicus curiae to provide a legal opinion on the issue and also directed the parties to file written submissions on the issue. The Court thereafter heard the parties on the preliminary issue.

Held: finding that the NIA has no legal standing to sue and be sued in civil proceedings given the applicability of the Crown Proceedings Act to Nevis and further, that the proper party to Ocean Reef's claim and the proper party to be served in respect of the claim is the Attorney General of Saint Christopher and Nevis; and ordering that each party bear its own costs, that:

Appearances:

Mr. Terrence Byron and Ms. Rhonda Nisbett-Browne for the Appellant

Dr. Henry Browne QC for the Respondent

Ms. Simone Bullen-Thompson, Solicitor General appearing amicus curiae on behalf of the Attorney General of Saint Christopher and Nevis

• 1. The Constitution confers substantial authority on the NIA as an organ of government and carves out eight specific areas for which the NIA shall have exclusive responsibility within the island of Nevis. This includes the responsibility for land and buildings in Nevis vested in the Crown and specifically appropriated to the use of the Government. There is however nothing in the Constitution which imbues the NIA with legal standing to sue or be sued in respect of land and buildings vested in the Crown, or indeed in respect of any of the other areas of exclusive responsibility. Furthermore, the Nevis Island Legislature has no power under the Constitution to make laws relating to proceedings by or against the Crown, other than as it relates to the conduct of proceedings under section 112 of the Constitution. It is therefore clear that, barring public law or ‘Crown-side’ type proceedings, the NIA only has legal standing in circumstances where section 112 is engaged. This section addresses disputes as between the NIA and the Federal Government and is therefore inapplicable to the case at bar. Sections 102, 106 and section 3 of Schedule 5 of the Constitution of Saint Christopher and Nevis, Cap 1.01 Laws of Saint Christopher and Nevis considered.

• 2. The Crown Proceedings Act is federal legislation which applies to both Saint Christopher and Nevis. According to section 3 of the Crown Proceedings Act civil proceedings against the Crown must be instituted against the Attorney General. There are no provisions in the Constitution which disapply section 3 of the Crown Proceedings Act in relation to Nevis. There is also no separate Attorney General for Nevis, but one Attorney General for the Federation. Furthermore, no specific carve out has been made in the Crown Proceedings Act to permit the NIA to assume the role of the Attorney General as it relates to civil proceedings commenced in Nevis against the Crown. It therefore follows that the NIA is part and parcel of the Crown for the purposes of civil proceedings under the Crown Proceedings Act. Accordingly, Ocean Reef's claim, being civil proceedings under the Crown Proceedings Act, ought to have been instituted against and served on the Attorney General.

• 3. The mere fact that civil proceedings by and against the NIA are commonplace is not a good or legitimate reason for overlooking the clear provisions of the Crown Proceedings Act. It is well-settled that a common practice engaged in over a number of years does not thereby render it correct by common and repetitive usage over time. Furthermore, the practical expediency or other advantages of naming the NIA as the defendant to civil proceedings in Nevis, instead of the Attorney General, ought not to result in the clear provisions of the Crown Proceedings Act being disregarded and more so where clear expression of its exception is contained in the Constitution itself. It would therefore not be correct to construe the provisions of the Crown Proceedings Act to allow for the institution of civil proceedings against the NIA.

• Sections 3, 13 and 14 of the Crown Proceedings Act, Cap 5.06, Revised Laws of Saint Christopher and Nevis applied; Bryan James v Attorney General SLUHCVAP2013/0023 ( delivered 22nd April, 2014, unreported) followed; Elmoalis Ltd. v The Attorney General of Anguilla AXAHCVAP2019/0002 ( delivered 21st May 2021, unreported) followed; Beverley Levy v Ken Sales and Marketing Limited [2008] UKPC 6 considered; Ferdinand James v Planviron (Caribbean Practice) Limited SLUHCVAP2017/0050 ( delivered 16th October 2019, unreported) followed; Choice FM Limited v Nevis Island Administration et al NEVHCV2013/122 ( delivered 20th October 2014, unreported) disapproved.

Introduction

Pereira CJ

1 The Federation of Saint Christopher and Nevis has the distinction of being the only dual-island federal state in the Caribbean region. On the island of Nevis, much of the day-to-day governance is undertaken by the appellant, the Nevis Island Administration (the “NIA”), which is a body established under the Constitution of Saint Christopher and Nevis 1 (the “Constitution”). The NIA has appealed against the decision of the learned master dismissing its application to set aside a default judgment entered in favour of the respondent, Ocean Reef Resorts Limited (“Ocean Reef”). This judgment however solely addresses, as a preliminary issue, the juridical status of the NIA vis-à-vis the Crown in proceedings under the Crown Proceedings Act. 2 That preliminary issue is, in the circumstances of this matter, determinative of the broader question of whether the NIA was the proper defendant to Ocean Reef's claim for the purposes of the entry of the default judgment. The relevant background to the appeal is not disputed and is briefly set out below.

Background

2 The Constitution provides for two forms of government for the State of Saint Christopher and Nevis; namely, a Federal Government and the NIA. Established under section 102 of the Constitution, the purpose of the NIA is ‘to advise the Governor General in the government of the island of Nevis’. It comprises the Premier of the island of Nevis and at least two other members appointed by the Governor General. It has exclusive responsibility for the administration within the island of Nevis in relation to specific subject matters listed under the Constitution.

3 On 15 ^th November 2017, Ocean Reef, a company incorporated under the Companies Ordinance 1999, 3 filed a claim against the NIA seeking damages for breach of an agreement entered into between them for the development of certain property in Nevis. The following day, the claim form, statement of claim and prescribed forms were served on one Ms. Nadia Newton, Secretary of the Legal Department of the NIA. According to the affidavit of service filed on behalf of Ocean Reef, the said Secretary of the Legal Department ‘signed an acknowledgement of

service on behalf of the defendant indicating that she is authorised to accept service’. It bears note...