[1] The Cabinet of Antigua and Barbuda [2] Attorney General for Antigua and Barbuda Appellants v H.M.B. Holdings Ltd Respondent [ECSC]

• Jurisdiction: Antigua and Barbuda
• Judge: REDHEAD J.A.,Albert Redhead,Justice of Appeal,Sir Dennis Byron,Chief Justice,Satrohan Singh
• Judgment Date: 28 January 2003
• Judgment citation (vLex): [2003] ECSC J0128-3
• Date: 28 January 2003
• Court: Court of Appeal (Antigua and Barbuda)
• Docket Number: CIVIL APPEAL NO. 16 OF 2002

[2003] ECSC J0128-3

IN THE COURT OF APPEAL

Before:

The Hon. Sir Dennis Byron Chief Justice

The Hon. Mr. Satrohan Singh Justice of Appeal

The Hon. Mr. Albert Redhead Justice of Appeal

CIVIL APPEAL NO. 16 OF 2002

Between:

[1] The Cabinet of Antigua and Barbuda

[2] The Attorney General for Antigua and Barbuda

Appellants

and

H.M.B. Holdings Limited

Respondent

Appearances:

Mr. A. Astaphan S.C., Mr. J. Fuller with him for the Appellants

Mr. G. Simonette, Mr. G Louison and Mrs. T. Benjamin for the Respondent

REDHEAD J.A.

1 In September 1995 hurricane Luis struck Antigua and Barbuda with great ferocity. The respondent's hotel, the Half Moon Bay Hotel, was one of the many buildings destroyed by the hurricane. The hotel is said to be situated on one of the best beachfront areas in the world and was at one time a "flagship" making a significant contribution to the economy of Antigua and Barbuda.

2 Prior to hurricane Luis the respondent and Clubs International, the company which had leased the hotel from the respondent, were experiencing financial difficulties in operating the hotel. The Respondent and the lessee parted company and therespondent remained in debt. As a result of the damage done to the hotel by the hurricane, the hotel was closed and members of staff were sent home.

3 On 29^th January 1997 the Minister of Tourism, wrote to the respondent expressing the government's concern over the closure of the hotel.

4 In 1999 as a result of an article which appeared in the local newspaper stating that the hotel would soon be re-opened the Minister of Tourism sought and received confirmation from the respondent that the article was true. On 28^th April, 12^th and 26^th May 2000, the first appellant at the respondent's request granted extensive fiscal and other concessions and incentives to the respondent company called Tradewinds. These concessions were transferred to the respondent in its own name and for its own benefits on 14^th March 2001.

5 In a letter dated 14^th March 2000 from the Permanent Secretary to Miss Joyce Kentish, Solicitor for the respondent, informing Miss Kentish of the decision of the first named appellant to transfer the incentives and concessions granted to Tradewinds and H.M.B. Holdings Ltd. to H.M.B. Holdings Ltd, the Permanent Secretary advised the respondent:

"These concessions and incentives were granted provided that the project commenced within the six (6) month time frame that was granted by the Ministry of Tourism."

6 The respondent then made a commitment to commence construction/renovation work on the hotel within six months and that the hotel would reopen for occupation by guests by 1^st July 2000. The respondent was not able to commence the rebuilding or redevelopment of or reopen the hotel in the year 2000.

7 On 7^th December 2000 the first appellant in accordance with the provisions of section 3 of the Land Acquisition Act Cap 233 had a proposal to acquire the respondent's land for a declared public purpose. On 8^th December 2000 the respondent applied for and obtained an ex-parte injunction against the Cabinet Secretary and each member of the first named appellant restraining them and each of them from acquiring the respondent's lands.

8 On an application by the second named appellant made on the 12^th January 2001 the ex parte injunction was set aside. On 19^th January 2001 the Hon. Mr. Molwyn Joseph, Minister of Tourism wrote to Messrs Lake and Kentish Solicitors for the respondent a letter without prejudice advising the respondent, that the appellants, as I understand it, were withholding for six (6) months the making of the application to acquire the respondent's land.

9 On 12^th February 2001 the Court of Appeal made a Consent Order by that Consent Order the second appellant agreed that the government would not proceed any further with proceedings to acquire the respondent's lands for a period of six (6) months commencing from the 1^st day of February 2001. This six months period was separate from the six (6) months referred to in paragraph 8 of this judgment.

10 At the respondent's request the Governor General acting on the advice of Cabinet granted a Mr. Ian Moncrief Scott a Non—National Citizens Land Holding License in or about the month of February 2001, on the representation by Mr. Moncrief Scott that he would provide financing for the hotel to the tune of $12 million dollars [see letter from Miss Joyce Kentish to Hon. Molwyn Joseph dated 7 December 2000 paragraphs 1, 5 and 6 thereof.]

11 On 19^th February the Minister of Tourism wrote to Mr. Moncrief Scott advising him that all concessions and licenses had been approved by Government. In the last paragraph of that letter the Minister emphasized the importance of the project being implemented within the six (6) months period effective 1^st February 2001.

12 However when the said matter was investigated by the second-named appellant he averred in affidavits that he was unable to discover anyone by the name of "Moncrief Scott". Needless to say the financing never materialized.

13 The respondent failed to commence the rebuilding/refurbishing or redevelopment of the hotel within the said period of six (6) months. As a result the Government commenced fresh acquisition proceedings to acquire the respondent's lands.

14 The resolution to approve the acquisition of the respondent's lands was passed by a majority of the House of Representatives on 12^th February 2002 and by the Senate on 21^st February 2002 in accordance with the provision of Section 3 of the Land Acquisition Act Cap. 233. From the records before me I am satisfied that it is clear that a Declaration of Acquisition was made by the Secretary to the Cabinet and was published in the Official Gazette on 7^th and 14^th March, 2002 in accordance with Section 3 of the Land Acquisition Act Cap. 233. However the respondent in a challenge before Mitchell J to the acquisition by judicial review.

15 Mitchell J. in granting the respondent's application said:

"(a) The Claimant's case, if it is possible to summarize it in one sentence is essentially and among other things that the Crown gave an undertaking and entered into a Consent Order in the Court of Appeal to hold off the acquisition for a period for six months to permit the Claimant to take certain steps that the Claimant relying on that undertaking took steps; and spent large sums of money and was entitled to consider that it was performing as it had agreed to, and a legitimate expectation was thereby created, that the respondents were under an obligation to give the Claimant notice on their reliance on the effluxion of time and their failure to give such notice was so unfair as to amount to an abuse of power and a breach of the natural justice and that for the respondents to have proceeded to compulsory acquisition in those circumstances amounted to an illegality, an abuse of power in disregard of their duties to treat with the Claimant fairly and reasonably. I prefer and accept the arguments advanced by the Claimant. I do not accept the arguments for the respondents that certiorari is never available in land acquisition matters; or that if the court were to grant the relief sought by the Claimant the Court will necessarily be substituting its judgment for that of the Cabinet; or that the remedy of compensation provided by the Act renders certiorari unavailable; or that the Attorney General cannot by an undertakingespecially one embodied in a Consent Order made in the Court of Appeal fetter the exercise of the Cabinet's discretion to acquire lands for a public purpose; or that the allegations of abuse of process in this case are not supported by particulars. The issue raised by the Claimant will be contested by the defendants. It will be for the Court having heard the evidence and the argument to determine the validity of the claim. But the claim passes the test of a 'scintilla of a...