[1] Chatham Bay Club Ltd [2] Chatham Bay Development Corporation Ltd Appellants v Judith Jones-morgan (Attorney General for The State of Saint Vincent and The Grenadines) Respondent [ECSC]
| Jurisdiction | St Vincent and the Grenadines |
| Judge | GEORGE-CREQUE, J.A.,Justice of Appeal,Justice of Appeal [Ag.],Janice George-Creque,Frederick Bruce-Lyle |
| Judgment Date | 13 August 2010 |
| Judgment citation (vLex) | [2010] ECSC J0813-3 |
| Court | Court of Appeal (Saint Vincent) |
| Docket Number | HCVAP 2007/021 |
| Date | 13 August 2010 |
IN THE COURT OF APPEAL
The Hon. Mde. Ola-mae Edwards
Justice Of Appeal
The Hon. Mde. Janice George-creque
Justice Of Appeal
The Hon. Mr. Frederick Bruce-lyle
Justice Of Appeal [Ag.]
HCVAP 2007/021
Mr. James Guthrie, QC, Mr. Parnell Campbell, QC and Ms. Ramona Frederick for the appellant
Mr. Anthony Astaphan, SC, Mr. Greame Bollers and Ms. Ruth Ann Richards for the respondent
Civil appeal — Aliens (Land Holding Regulation) Act — Aliens Land Holding Licence — whether the Crown was estopped or waived right to forfeit — whether inequitable to forfeit — Delay, Laches, Acquiescence Section 6 of the Constitution — compulsory acquisition/ Deprivation of property without compensation
The Aliens (Land Holding Regulation) Act (the "Act") prohibits the holding of land in Saint Vincent and the Grenadines by non—nationals ("aliens"), unless licenced by the Crown to do so. The Act allows for the attachment of conditions on the grant of a licence. Section 5(2) of the Act stipulates that failure to follow the conditions may result in the land being forfeited to the Crown.
The appellants ("Chatham Bay") were non-nationals, in accordance with the Act, and applied for an Aliens Land Holding Licence to hold land situate at Chatham Bay on Union Island in the Grenadines. After a series of negotiations, the Licence was granted to Chatham Bay on 5 th March 1987. The Licence stated that Chatham Bay was licenced as the absolute owner of the land. It also stated that Chatham Bay was to develop a resort which included two restaurants and 55 guestrooms. Chatham Bay also pledged to spend at least EC$15 million within three years of the grant of the licence to develop the property. The licence included condition 4(d) which stated that failure to perform would result in land being vested in the Crown.
By the end of three years, viz 6 th March 1990, Chatham Bay had not developed the land or at anytime subsequently. Chatham Bay attempted to get other investors for the development, including a cruise line. These attempts were unsuccessful. Chatham Bay requested an extension of time for carrying out the development from the Government. In November 1991, Government wrote to say that consideration of the grant of an extension of time had been deferred pending submission by Chatham Bay of new proposals. Chatham Bay put forward no new proposals to develop the land. Another fourteen years went by, without any steps being taken by the Government to forfeit the Land. During that period Chatham Bay kept the land clean and secured.
On 25 th January 2006, the Government issued its forfeiture claim against Chatham Bay. No letter before action or any notice of intended proceedings was given to Chatham Bay.
Chatham Bay denied that they were in breach of conditions 4 and 5 of the Licence. Alternatively, they contended that if they were in breach, the breaches had been waived by the Government and/or that Government was estopped from relying on such breaches. They also relied on the equitable doctrines of delay, laches, and acquiescence. Additionally, Chatham Bay counterclaimed that Government was in breach of its agreement to the effect that no proceedings for forfeiture would be brought without reasonable notice to Chatham Bay and further that they were being deprived of their property without compensation in breach of section 6(1) of the Constitution of Saint Vincent and the Grenadines ("the Constitution").
The trial judge rejected Chatham Bay's defences and declared a forfeiture of the Land. Chatham Bay appealed, in essence, contending that the trial judge was wrong to dismiss the defences and declare forfeiture and in rejecting the counterclaim for compensation based on section 6 of the Constitution.
Held: dismissing the appeal and ordering the appellant to pay costs to the respondent in the sum of $13,400.00:
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1. That words or conduct relied on as waiver must be clear and unequivocal. The Prime Minister's letter of 28 th May to Mr. Terman stating that "if you are impatient by lack of progress in securing investors, perhaps you can offer the Land to Government" is not clear and unequivocal language from which to conclude that Government had waived its legal rights to forfeit the Land. The verbal assurance was at best a suspension of its rights for a three year period which would have ended in July/August 1994.
W.J. Alan & Co. v El Nasr Export (C.A.) [1972] 2 QB 189, 213 , applied.
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2. That the verbal assurance coming from the Prime Minister in July of 1991 that the Government would not bring proceedings for forfeiture of the Land for a period of at last three years, assuming that the Prime Minister was authorised to give this assurance was limited. This was not an assurance that no forfeiture proceedings would be taken at all.
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3. That this is not a case where the parties had embarked upon a course of negotiations and discussions such as to arrive at a new agreement. Furthermore, given Chatham Bay's established inability even now to comply with the development conditions, the service of notice would not have brought about any change in its ability to take remedial action. Thus, the Crown need not give Chatham Bay reasonable notice before commencing forfeiture proceedings.
Hughes v Metropolitan Railway [1877] HL (E) 439 , distinguished.
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4. That the expenses incurred by Chatham Bay on cleaning and securing the Land were not undertaken in reliance upon Government's assurance or representation that the right to forfeit would not be exercised, as such acts were wholly consistent with normal acts of a land owner (which Chatham Bay was) until forfeiture occurred. In any event, the cleaning and securing of the Land is insignificant compared to the development that Chatham Bay was to undertake and thus even if they were done in reliance of an assurance, these acts would not make it inequitable for the Crown to forfeit.
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5. Delay is not sufficient to ground a defence of laches. The delay must be coupled with some conduct which affects the balance of justice as between the parties. The cleaning and securing of the Land compared to the development that Chatham Bay should have undertaken on the Land does not weigh the equity in Chatham Bay's favour. Thus, the defence of laches fails.
Lindsay Petroleum Company v Hurd [1874] LR 221 , applied.
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6. The wording of section 6 of the Constitution envisages the possibility of property being compulsorily taken possession of or acquired for a purpose which is not a public purpose, hence the use of the words "except for". The trial judge erred in interpreting section 6 of the Constitution as addressing cases relating only to the compulsory acquisition of land analogous to the acquisition of land under land acquisition legislation.
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7. Even though a statuary framework is in place by which an alien may hold an interest in land the conditions which may be imposed are not statutorily imposed and can only come about on the basis of agreement between the Crown and the alien. Thus, even though the Licence is governed by a statutory framework, and the breach of any conditions stated therein carries a statutory consequence, the conditions of the Licence are contractual.
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8. That the taking of possession by the Crown of the land from Chatham Bay was an incident of the contract. Thus, it would be caught by the exception in section 6(6)(a)(iii) of the Constitution and there would be no requirement for adequate compensation as forfeiture for breach of a condition in the Licence granted under the Act is expressly stated by section 6(6) of the Constitution as not being inconsistent or in contravention of section 6(1).
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9. That an alien holding land as a freehold or fee simple owner under a conditional licence granted pursuant to the Act would, if in breach of the terms and conditions of the licence, continue, to hold the land until the land is forfeited to the Crown by a declaration of forfeiture. Thus, there was no detrimental reliance, inequity or prejudice caused to Chatham Bay because it continued to hold the land as freehold owners until the declaration of forfeiture.
a. Ho Young v Bess [1995] 1 WLR 350, and Village Cay Marina Ltd v Acland (1996) 52 WIR 238, followed.
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10. The exercise of the power of forfeiture is not subject to any time limitations. Whenever the declaration of forfeiture is obtained, it relates back to the time when the liability for forfeiture arose.
The State of Saint Vincent and the Grenadines, like many of its Eastern Caribbean counterparts, has legislation which prohibits the holding of land in such states or territories by non-nationals ("aliens") unless licenced by the state or Crown to do so. In Saint Vincent and the Grenadines this legislation is the Aliens (Land Holding Regulation) Act. 1 ("the Act"). The Act allows for and contemplates the attachment of conditions on the grant of a licence. Invariably, the conditions set out the obligations undertaken by the alien for the development of the land in a certain manner; within a specified time frame. Such conditions may also set out the minimum expenditure to be laid out in carrying out the development.
The Act also stipulates the consequence for breach or failure to perform in accordance with the conditions. That consequence is forfeiture of the alien's interest in the land to the Crown. This is contained in section 5(2) which says as follows:
"On breach of any condition in a licence to hold land as owner … the estate and interest of the alien in the land … held under the authority thereof shall thereupon be forfeited to the Crown"
Forfeiture is not automatic and must be declared by the court 2. However, on...
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