Attorney General Appellant v The Barbuda Council Respondent [ECSC]
| Jurisdiction | Antigua and Barbuda |
| Judge | BYRON, C.J.,Chief Justice,Justice of Appeal,Sir Dennis Byron,Satrohan Singh,Albert Redhead |
| Judgment Date | 27 May 2002 |
| Judgment citation (vLex) | [2002] ECSC J0527-2 |
| Docket Number | CIVIL APPEAL NO.7 OF 2001 |
| Court | Court of Appeal (Antigua and Barbuda) |
| Date | 27 May 2002 |
IN THE COURT OF APPEAL
His Lordship, The Hon. Sir Dennis Byron Chief Justice
His Lordship, the Hon. Satrohan Singh Justice of Appeal
His Lordship, the Hon. Albert Redhead Justice of Appeal
CIVIL APPEAL NO.7 OF 2001
Mr. A. Astaphan, QC and Mr. C. Roberts with him for the Appellant
Mr. J. McDonald, QC and Mr. J. Nisbett with him; and
Mr. J. Watt, QC and Mr. M. C. Johnson with him for the Respondent
This is an appeal against the judgment of O'Meally J delivered on 28th February 2001, in proceedings brought by the Respondent against the Appellant and Unicorn Development Limited.
The learned trial Judge made the following declaration and order:
"I declare that the lease granted by His Excellency the Governor General Sir James B. Carlisle on behalf of the Government of Antigua and Barbuda and made on 27th November 1997 is null void and of no effect insofar as its purports to lease land to the second defendant company, inconsistent with the rights of the plaintiff.
I issue a permanent injunction restraining the second defendant whether by itself, its officers or agents or servants from entering the area at Spanish Point comprising 34.72 acres on the island of Barbuda in the State of Antigua and Barbuda for the purpose of breaking ground, mobilising or construction of any sort on the lands at Spanish Point leased to the second defendant by His Excellency the Governor General Sir James B Carlisle on behalf of the Government of Antigua and Barbuda."
In the early 1990's representatives of Unicorn Development Limited approached the Respondent to obtain its approval for a hotel development project in Barbuda. These representatives were Barbudans who had been living in England. The Council approved the project and a hotel site at Palmetto Point. On 16th August 1996, at a meeting of the Council Mr. Brillheart James applied, on behalf of Unicorn, to change the location of the project site, to Spanish Point, because of damage caused by Hurricane Luis to Palmetto Point. The Council approved the change of location in principle and its secretary issued documents to that effect. At the trial there was evidence that certain members of the Council expected that there would have been further discussions between the Council and Unicorn about the terms and conditions of the lease of the land at Spanish Point.
Almost immediately after, the representatives of Unicorn appeared before the Cabinet of Antigua and Barbuda with their proposal. On 21st August 1996 the Cabinet made a decision approving the proposal. On 12th March 1997 the Cabinet approved the terms of a lease to Unicorn, and on 13th August 1997 the Cabinet made a correction in respect of the area of land from 25 to 35 acres. On 22nd November 1997 His Excellency the Governor-General executed the lease.
Party politics intervened. One of the witnesses in the trial was Mr. Hilbourne Frank, the leader of the Barbuda Peoples Movement. He indicated that in August 1996 the majority of the Council where sympathetic to the Antigua Labour Party Government. He was amember of the Council but his party was in the minority. He testified that he voted in favour of the project at that meeting. There were Barbuda Council elections in March 1997 and control of the Council reverted to the Barbuda Peoples Movement. The newly constituted Council initially decided to affirm its approval of the project. But the political climate changed. The evidence indicated that since 1989 the Council had passed resolutions about making a conservation area on Spanish Point, and concerns about this resurfaced. This was not a live issue on appeal because the respondents conceded that the Council does not have the constitutional authority to establish a conservation area without the sanction and authority of the Cabinet, which was neither sought nor obtained But at the time it was an emotive issue. The evidence indicated that there was a public perception that there was overlapping of the area so earmarked and the area of land contained in the lease granted to Unicorn. Mr. Frank testified that in his opinion the area designated in the lease exceeded the area which the Council had approved. There were also public meetings that were held on this issue. The dispute included the contention that the lease was issued without the consent of the Council and was therefore illegal. In addition to the public meetings there were interventions through judicial proceedings by way of applications for injunctive relief.
Eventually Unicorn entered on its lease and began to undertake work on the site. These proceedings seek relief aimed at stopping the development on that site. The pleadings were extensive. The writ initiating the claim applied for declarations of the rights to which inhabitants of Barbuda were entitled under The Barbuda Ordinance 1904 as amended and the Barbuda Local Government Act 1976 as amended and for ancillary relief. At the trial, with the approval of the parties, the learned trial Judge narrowed the issues to be determined on trial as follows:
"in essence the plaintiff now seeks a declaration that the granting of the lease was unlawful. It also seeks a permanent injunction restraining the second defendant from proceeding with the development at Spanish Point."
The notice of appeal listed some 18 grounds. These were summarised in the written skeleton argument of the appellant as raising three issues:
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[a] whether the Crown has the authority and power to grant, including the power to lease, lands on the island of Barbuda;
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[b] whether the Crown is obliged to first obtain the consent or approval of the Respondent, and
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[c] whether the lease in this case is inconsistent with any alleged right of the respondent and therefore unlawful.
The issues in this appeal had been narrowed with the consent of the parties. The technical argument, on locus standi, that the Respondent did not have any legal right to make the claim in this case was withdrawn and we do not have to comment on it further. The argument that the volumes of historical writings introduced by the respondent were inadmissible and should not be considered was also withdrawn by the appellant. The written arguments of the Respondent indicated that they were not relying on any rights other than the statutory rights under the Barbuda Act and the Local Government Act, and that the historical evidence was introduced as an aid to the interpretation of the statutes in this case, under the mischief rule.
This case is therefore to be resolved on the meaning to be attached to the relevant provisions of the two statutes, the Barbuda Act as amended, and the Local Government Act 1976 as amended. It is necessary to remind ourselves of the principles which a court should apply in order to adjudicate on the meaning and effect of a statute.
I would adopt the expression of the principle stated by Sir Vincent Floissac, C.J. in the Dominica case ofCharles Savarin v John Williams Civil Appeal 3 of 1995:
"In order to resolve the fundamental issue in this appeal, I start with the basic principle that the interpretation of every word or phrase of a statutory provision is derived from the legislative intention in regard to the meaning which that word orphrase should bear. That legislative intention is an inference drawn from the primary meaning of the word or phrase with such modifications to that meaning as may be necessary to make it concordant with the statutory context. In this regard, the statutory context comprises every other word or phrase used in the statute, all implications therefrom and all relevant surrounding circumstances which may properly be regarded as indications of the legislative intention."
The Mischief Rule, when properly applied, involves the use of an aspect of the statutory context to indicate the statutory intention. It is of ancient vintage. It was succinctly explained by Lindley M.R. in the case ofBartlette v MayFair Property Company [1898] 2 Ch. 28 at 35:
"In order properly to interpret any statute it is as necessary now as it was when Lord Cooke reported Heydon's Case to consider how the law stood when the statute to be construed was passed, what the mischief was for which the old law did not provide, and the remedy provided by the statute to cure that mischief."
The Mischief Rule is an important aid to construction, when there is lack of clarity, or ambiguity in the language in which the statute is expressed. But if the words of the statute are clear and unambiguous there is a real danger that in applying the mischief rule subjective perceptions on the mischief and the remedy may influence the interpretation to be applied by substituting a perceived remedy for the meaning which the legislature intended. A properly drafted statute is capable of conveying its meaning through the actual words used in the statute. It is obvious that in many cases the perception of the mischief, the relevant historical context and what constitutes a desirable solution or remedy is capable of wide variance. And this case was no exception to that concept.
In the case ofUniversal Caribbean Establishment v James Harrison Civil Appeal 21 of 1993, Antigua the court was faced with interpreting the jurisdiction section of the Industrial Court Act 1976, an act which was generally agreed to have been poorly drafted. In considering the approach to be adopted I had to remind myself, and I do so again, of the following principle
"The first principle to affirm is to recognize the separation of power between the Legislature and the Judiciary. It is the province of Parliament to make the law and for the Court to interpret, without basing its construction of...
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