Yearwood et Al v Moore et Al

• Jurisdiction: Saint Kitts and Nevis
• Court: High Court (Saint Kitts and Nevis)
• Judge: Glasgow, J.
• Judgment Date: 22 June 1977
• Neutral Citation: KN 1977 HC 2
• Docket Number: No. 8 of 1975
• Date: 22 June 1977

High Court

Glasgow, J.

No. 8 of 1975

Yearwood et al

and

Moore et al

Appearances:

Mr. C.F. Henville et al for the plaintiff

Mr. L.L. Moore et all for the defendant

Constitutional law - Compulsory acquisition of property — Compensation

Glasgow, J.

1 The plaintiffs' amended Statement of Claim reads as follows:

• “1. All the Plaintiffs are members of the St. Kitts Sugar Association Limited (hereinafter referred to as the Association) and the first-named plaintiff is the President thereof.

• 2. (a) The first-named plaintiff Reginald Douglas Evelyn Yearwood is and was at all material times a part owner of Brighton Estate; the second-named plaintiff Charles Earle Berkeley Walwyn is and was at all material times a part owner of Lodge Estate; the third-named plaintiff John Leslie Wigley is and was at all material times a part owner of West Farm Estate; the fourth-named plaintiff Denis Sydney Blake is a shareholder of Blake Plantations Limited which is and was at all material times the owner of Willetts and Caines Estates; the fifth-named plaintiff Agnes Eulalie Mallalieu is a share holder of Marshall Plantations Limited and of the Farm (St. Kitts) Limited which former named Company is and was at all material times the owner of Stonefort Estate, Cranstoun and La Vallee Estates and which latter-named Company is and was at all material times the owner of Farm Estate; the sixth-named plaintiff William Archibald Kelsick is a shareholder of the said Marshall Plantations Limited; the seventh-named plaintiff Donald Lloyd Matheson is a shareholder of the said Marshall Plantations Limited, and is and was at all material times the owner of an undivided share in lands situate at Limekiln Bay, St. Kitts, formerly part of Buckleys Estate; the eighth-named plaintiff Clive Edward Jordan is and was at all material times the owner of Lower Bourryeau Estate; and the ninth-named plaintiff Steuart Arthur Hamilton Davis is and was at all material times the life tenant of Brotherson Estate.

• (b) All the said estates and lands were purportedly acquired by the Sugar Estates' Lands Acquisition Act, 1975.

• 3. The first-named defendant herein Lee Llewellyn Moore is the Attorney General of the State of Saint Christopher, Nevis, Anguilla and is sued herein in his style and capacity as Attorney General of the State of St. Christopher Nevis and Anguilla pursuant to the provisions of Section 13(2) of the Crown Proceedings Act Cap. 22 of the Laws of the State. The second-named defendant herein is Esmond St. John Payne Minister of Agriculture of the said State and is sued in his capacity as such Minister, and is hereinafter referred to as ‘The Minister.’

• 4. The Government of the State (hereinafter called ‘the Government’) introduced and promoted a Bill in the Legislature which on the 28th day of January 1975 was duly passed as an Act entitled The Sugar Estates’ Lands Acquisition Act, 1975 (hereinafter called ‘the Act’). The Legislature on the 30th day of June 1975 passed the Sugar Estates Lands Acquisition (Amendment) Act 1975 (hereinafter called ‘the amending Act’)

• 5. Section 6 of The Saint Christopher, Nevis and Anguilla Constitution Order, 1967 (hereinafter called ‘the Constitution’) provides as follows: –

  • “(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 said property, interest or right and the amount of any compensation to which he is entitled, and

    • (b) the purpose of enforcing his right to 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.”

6

The plaintiffs contend that the Act is unconstitutional void and of no effect in that it contravenes the provisions of the said Section 6 of the Constitution on the following grounds (inter alia):– (a) The Act does not prescribe the proper principles by which full compensation for the compulsory taking of the proprietary interests of the plaintiffs in the said lands may be determined. (b) The principles set forth in the Act contravene the right of the plaintiffs enshrined in the said Section 6 of the Constitution in that the plaintiffs are thereby denied the just and full compensation to which on the true construction of the said Section 6 of the Constitution they are entitled; the said principles abridge their right to such compensation and would result in the determination of their compensation on an entirely arbitrary basis. See for example section, 7(5) o f the Act. (c) The Act by Section 4(2) Purports to limit the aggregate compensation payable to the owners of the estates named in the First Schedule to the Act to a maximum of $10,000,000 in disregard of the consideration that the proper value thereof may be in excess of that sum. On the true construction of Section 6 of the Constitution it is beyond the competence of the Legislature to limit the compensation payable as aforesaid. Further, the said provisions impose a limitation upon the jurisdiction of the High Court to determine the proper compensation, payable. (d) The Act denies and/or restricts and/or limits the right of the plaintiffs to have direct access to the High Court for the determination of the amount of compensation to which they may be entitled or for the enforcement of the payment of such compensation. (e) On the true construction of the said Section 6 of the Constitution compensation is payable promptly and in cash. However, Sections 5 and 9 of the Act provide for payment of compensation partly by bonds and partly by cash: Section 5 contains no provision as to the time when the cash payment therein referred to is to be made or when the installments mentioned therein are to be paid; payment of the compensation is contingent upon the earning of profits; there is no provision for payment of interest on 4 lump sum payment or on installments in Section 5; Section 9 confers on the Minister power to determine a mode of payment contrary to the provisions of Section 6 of the Constitution when properly construed, and to fix an arbitrary rate of interest; and the provisions of Section 5 in relation to the date of maturity of the bonds (if, contrary to the plaintiffs contention, bonds are a permissible form of payment) are vague and uncertain. (f) The Act contains no provision for, the assessment or payment of the compensation in respect of the “subsisting rights” referred to in Section 3(1) thereof which are purportedly acquired. (g) The Act by Section 4(5) enables the Minister to make certain deductions therein referred to from the compensation already arbitrary and limited as aforesaid which would or could result in an unjust diminution thereof. (h) The Act confers no power on the Minister to fix the appointed day as defined in Section 10 of the Act. (i) The Act by Section 2(5) confers power on the Minister to add to the provisions of the First Schedule thereto; and by Section 2(7) enables the Minister at his absolute discretion to exempt from the acquisition provisions of Section 2(1) thereof any lands purportedly acquired by the Act. (j) The First Schedule to the Act does not define the parcels of land purportedly acquired with reference to boundaries or survey plans or otherwise so as to enable them to be accurately identified. Further, the Second Schedule which purports to contain exemption areas fails likewise to define such areas so as to indicate precisely what portions of the lands purportedly acquired are the subject of such exemption.

6

A. The plaintiffs, while not admitting the validity of the amending Act, contend that the Act as mended is unconstitutional void and of no effect in that it contravenes the provisions of Section 6 of the Constitution on the following grounds inter alia:– (a) The amending Act does not prescribe proper principles by which full compensation for the compulsory taking of the proprietary interests of the plaintiffs in the said lands may be determined. (b) The principles set forth in the amending Act contravene the rights of the plaintiffs enshrined in the said Section 6 of the Constitution in that the plaintiffs are thereby denied the just and full compensation to which on a true construction of the said Section 6 of the Constitution they are entitled, the said principles not being in accordance with accepted principles. (c) The new Section 4(2) crested by the amending Act is unconstitutional in that it limits the value of the lands and does not take into consideration all the possibilities and potentialities of the lands. The proviso is unconstitutional in that it deprives the plaintiffs of the benefits of the improvements to the lands and estates effected by Government since the 30th day o f April, 1972, to which the plaintiffs are entitled by virtue of the agreement made between the Government and the Association, acting therein on behalf of the plaintiffs and others, on the 19th day of December, 1972, (commonly called the SIRO agreement). The said new section takes no account o f the revenues anal income received by Government during this period...