William A. Pinney Appellant v 1. Malcolm Guishard (Member of Nevis Island Administration responsible for lands) 2. Nevis Island Administration 3. The Attorney-General of Saint Christopher and Nevis Respondents [ECSC]
| Jurisdiction | Saint Kitts and Nevis |
| Judge | MATTHEW, J.A. (Ag.),SATROHAN SINGH,Justice of Appeal,ALBERT REDHEAD |
| Judgment Date | 25 October 1999 |
| Judgment citation (vLex) | [1999] ECSC J1025-3 |
| Docket Number | Civil Appeal No.8 of 1999 |
| Court | Court of Appeal (Saint Kitts and Nevis) |
| Date | 25 October 1999 |
IN THE COURT OF APPEAL
The Hon. Mr. Satrohan Singh—Justice of Appeal
The Hon. Mr. Albert Redhead—Justice of Appeal
The Hon. Mr. Albert N.J. Matthew—Justice of Appeal (Ag.)
Civil Appeal No.8 of 1999
Dr. H. Browne and Mr. G. Hamilton for the Appellant
Mr. K. Hudson Phillips Q.C.; Mr. T. Byron and Mr. M. Anderson for Respondents No.1 and No.2
The Attorney-General, Hon. D. Bart, in person and Ms. S. Brisbane for Respondent No.3.
This appeal arises from the judgment of Georges J delivered on March 8, 1999 whereby he held that the Nevis Land Acquisition Ordinance, No.2 of 1997, was constitutional and did not in any way contravene section 8 of the Constitution of Saint Christopher and Nevis which came into force on September 19, 1983.
The background to this matter is that there appeared a notice dated June 26, 1998 and published in the Observer Newspaper and the Leeward Times Newspaper of July 10, 1998, made pursuant to section 3 of the Nevis Island Land Acquisition Ordinance and called the Montravers Estate Declaration.
The Declaration was one of several declarations made on the said June 26, 1998 in respect of a larger area popularly referred to as the Pinney's Estate of which Montravers Estate forms part and comprises 14 acres of land.
By virtue of the Declaration which was purported to have been made in accordance with section 3 of the Ordinance, the Administration gave notice that the parcel of land commonly called Montravers Estate of which the Appellant was and is still the registered proprietor, was likely to be required for a public purpose, namely, the provision of amenities for tourists, the provision of parks and other places for public recreation, roads and highways and the preservation of archaeological and historical sites.
On July 16, 1998 the Appellant filed a notice of motion presumably under section 18 of the Constitution alleging that his rights and interests in and over his property were infringed contrary to section 8 of the Constitution and seeking various declarations and orders.
After a three-day hearing judgment was reserved and delivered as indicated above. The learned Trial Judge held as follows:—
"In the result I declare that in principle as well as on authority that the Nevis Land Acquisition Ordinance 1997 does not in any way contravene section 8 of the Constitution and is therefore not unconstitutional. And I further declare that the Nevis Island Administration is competent to acquire Montravers Estate for the purposes declared in the Notice dated 26 th June, 1998 and that the declared purposes of the acquisition are public purposes within the meaning of section 2 of the Ordinance.
I further declare that the Applicant is not entitled to any of the reliefs prayed for in his motion dated and filed 16 th July 1998 and that the said motion be dismissed.
And it is ordered that the injunction granted to the Applicant on 16 th July 1998 as varied by Order dated 14 th August 1998 be discharged forthwith.
Costs to the First and Second Respondents to be paid by the Applicant certified fit for Counsel."
On or about March 18, 1999 the Appellant filed the following eleven grounds of appeal:
-
1. "The Learned Trial Judge erred in law in arriving at the conclusion that the motion is itself manifestly flawed after Senior Counsel for the First and Second Respondents had informed the Court that he did not intend to raise any issue on the form of action issued in this cause and consequently Counsel for the Appellant did not elaborately address the issue.
-
2. The Learned Trial Judge erred in law in holding that insofar as the Declaration 'does not adhere to a strict and rigid compliance with the Ordinance (i.e. The Nevis Land Acquisition Ordinance No.2 of 1997) both procedurally and substantively, that is in form and substance' the Notice was nevertheless valid and effective.
-
3. The Learned Trial Judge erred in law in failing to appreciate that the Nevis Land Acquisition Ordinance No.2 of 1997 was a post-Constitutional law and is thus amenable to the test of constitutionality.
-
4. The Learned Trial Judge erred in law in failing to appreciate that the Land Acquisition Act Cap.273 is an 'existing law' that is, a pre-constitutional law which is deemed to have been passed by the Nevis Island Assembly but cannot be so deemed in relation to the Nevis Island Assembly.
-
5. The Learned Trial Judge erred in law in failing to appreciate that an unregulated and unfettered delegation by the Nevis Island Assembly to the Executive to acquire lands compulsorily offends the separation of powers doctrine implicit in the Constitution of St.Kitts and Nevis 1983 and as such is and in other respects unconstitutional.
-
6. The Learned Trial Judge erred in law in holding that the Nevis Land Acquisition Ordinance No.2 of 1997 did not offend section 8 of the Constitution of St.Kitts and Nevis 1983.
-
7. The Learned Trial Judge misconceived the effect of the Consent Order of 14 th August 1998 between the parties and failed to appreciate that the Consent Order did not and could not inoculate the Nevis Land Acquisition Ordinance, No.2 of 1997 from the need to observe the requirements of section 8 of the St.Kitts and Nevis Constitution 1983.
-
8. The Learned Trial Judge erred in law in treating the Nevis Land Acquisition Ordinance No.2 of 1997 as a law in existence immediately before 26 th February 1967 and as such its constitutionality could not be scrutinized as such scrutiny was being forbidden by paragraph 10 of Schedule 2 to the Constitution Order of St.Kitts and Nevis 1983.
-
9. The Learned Trial Judge erred in law in holding that the Land Acquisition Act (Cap 273) insofar as it applies to Nevis was deemed by the Constitution to have been passed by the Nevis Legislature, when in fact no legislature existed in Nevis at the date of the original passage of the said Act.
-
10. The Learned Trial Judge erred in law in failing to hold that the compulsory acquisition of the Appellant's lands for the purpose of making them available to private developers for private gain is a colourable device which offends the public purpose requirement contemplated in the Constitution.
-
11. The Learned Trial Judge erred in law in failing to appreciate that the Nevis Island Assembly did not have the competence to repeal and replace the Land Acquisition Act (Cap 273) as it relates to the Island of Nevis."
Before this Court learned Counsel for the Appellant said he would deal with his grounds of appeal in the following order: Firstly, he would deal with grounds 3, 4 and 5 together; then grounds 9 and 11; and lastly, grounds 2,6 and 10. It seems that Counsel was abandoning grounds 1, 7 and 8 which were not crucial in any event. This judgment is not going to turn on the form of the originating action which is the issue in ground 1. Ground 7 deals with the Consent Order of 14 th August 1998 which permitted the servants or agents of the Respondents to enter the land of the Appellant for the purposes of section 4 of the Ordinance. Nothing turns on the Consent Order. Ground 8 which speaks of the status of Ordinance 2 of 1997 is repetitious and amply covered under other grounds of appeal, for example, grounds 3 and/or 6.
Even before making reference to his grounds of appeal and the manner in which he was going to treat them, learned Counsel for the Appellant submitted, and I shall attempt to use his exact words, that the real issue in this appeal is the initial determination as to whether Ordinance No.2 of 1997 is not open to constitutional scrutiny because it has been inoculated by paragraph 10 of Schedule 2 to the 1983 Constitution Order.
Learned Counsel stated that the Respondents were asserting that the Ordinance merely alters Act No.273 of the Federal Law and given that fact it has been preserved by paragraph 10. Indeed, that was one of the main submissions of learned Senior Counsel for the Respondent before this Court.
I think I should accept the hint from learned Counsel for the Appellant and go straight ahead into considering the real issue.
Section 3 of the Saint Christopher and Nevis Constitution Order 1983 states that the Constitution came into force on September 19, 1983 subject to the transitional provisions set out in Schedule 2 to the Order.
Paragraph 2 of Schedule 2 to the Order deals with existing laws. Paragraph 2(2) is as follows:
"Any existing law enacted by any legislature with power to make laws at any time before 19 th September 1983 shall have effect as from that date as if it were a law enacted by Parliament:
Provided that any such law, to the extent that it relates to a specified matter, shall have effect on the island of Nevis as from that date as if it were a law enacted by the Nevis Island Legislature."
The effect of this provision is that Cap 273 would be an existing law and it would be deemed to be passed by Parliament. If, as I shall demonstrate below, that it covers a specified matter, then it will also have effect in Nevis by virtue of the proviso.
But what is the meaning of the phrase "specified matter" in the proviso? For this, one turns to the interpretation section of the Constitution, section 119, where on page 85 "specified matter" means, in relation to the Government of the Island of Nevis, a matter specified in Schedule 5 to the Constitution.
Schedule 5 to the Constitution is found at page 93. There it is headed "Legislative Powers" and Part 1 of the Schedule gives a list of matters with respect to which the Nevis Island Legislature has exclusive power to make laws. One...
To continue reading
Request your trial