Attorney General of Antigua and Barbuda Claimant v Ordinance Land Company Ltd Defendant [ECSC]
| Jurisdiction | Antigua and Barbuda |
| Judge | MICHEL, J |
| Judgment Date | 25 May 2010 |
| Judgment citation (vLex) | [2010] ECSC J0525-1 |
| Court | High Court (Antigua) |
| Docket Number | CLAIM NO: ANUHCV 2007/0648 |
| Date | 25 May 2010 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CLAIM NO: ANUHCV 2007/0648
Mrs. Carla Brookes-Harris for the Claimant
Mr. Dexter Wason for the Defendant
By Fixed Date Claim Form, with attached Statement of Claim, filed on 8 th November 2007, the Attorney General of Antigua and Barbuda (as Claimant) claimed against Ordinance Land Company Limited (as Defendant) the following relief:
- Possession of land or premises known as the Ordinance Land, which is owned by the Crown, and particularly described as Registration Section English Harbour, Block 35 2480 D, Parcel 55, Acreage 7.056. 2. Damages for breach of several covenants under the lease. 3. Interest pursuant to Section 27 of the Eastern Caribbean Supreme Court Act, Cap, 143, 4. Costs.
On 31 st October 2008 the Defendant filed a Defence to the Claimant's claim joining issue with the Claimant on the allegations contained in the Statement of Claim, while on 17 th November 2008 the Claimant filed a Reply to the Defendant's Defence joining issue with the Defendant on its Defence.
Following the case management conference, the hearing of interlocutory applications, the conduct of mediation and a pre-trial review, and following too the filing of lists of documents, witness statements, listing questionnaires, pre-trial memoranda, a five-volume trial bundle and skeleton arguments on behalf of the parties, the trial of the matter took place on 16 th November 2009, with one witness giving evidence for the Claimant and two witnesses giving evidence for the Defendant.
The first witness to give evidence at the trial was Ms, Ann Marie Martin, who was the only witness for the Claimant.
In her Witness Statement, Ms. Martin stated that she was the Commissioner of the National Parks Authority of Antigua and Barbuda. That by deed dated 12 th December 1961 the then Administrator of the Colony of Antigua leased the parcel of land (the Ordinance Land) to Vernon E. B. Nicholson and Emma M, Nicholson for 99 years at a peppercorn rent of $100 per annum. That by instrument dated 23 rd January 1963 the title and interest of the lessees in the demised premises was assigned to the Defendant without the written consent of the Crown as prescribed in the lease. That the lessees under the lease had covenanted with the lessor as follows:
- Under Clause 2(3)– "At their own cost to renovate and adapt for use as a dwelling house the Powder Magazine, to build four other dwelling houses and to construct a slipway for yachts within five years from the date hereof… all to a total cost of not less than $144,000.00," 2. Under Clause 2 (7) – "To keep the interior of the demised premises and all additions thereto and the walls, fences, drains and appurtenances thereof in good and tenantable repair, condition and decoration." 3. Under Clause 2 (9) – "Not to make or permit or suffer to be made save as is hereby authorized any alterations in or additions to the demised premises without the previous consent in writing of the [Crown]." 4. Under Clause 2(10)– "Not during the term [of the lease] to assign or underlet the demised premises or any part thereof without the consent in writing of the [Crown] first had and obtained, such consent not to be unreasonably withheld in the case of a respectable and responsible assignee."
Ms. Martin stated that the Defendant is in breach of the aforesaid covenants in that the Defendant:
- Never obtained any written consent from the lessor to do any alterations, additions, assignment or sublease of the demised premises. 2. Contrary to Clause 2 (3), converted the Powder Magazine to office spaces for the period 1980 to 1995 and housed various business ventures, permitted Carlo Falcone to use the Powder Magazine as a storeroom from 2001 to the present time, failed to build four dwelling houses at their own cost, instead, three dwelling houses were built on the demised premises by various sub lessees, and failed to construct a slipway for yachts. 3. Contrary to Clause 2 (7), failed to keep the Powder Magazine in good tenantable repair in that: the roof is leaking; the wooden floor is rising; the entire structure is full of termites; there are large cracks in the walls; the stones are falling out of the building. 4. Contrary to Clause 2 (9), the Defendant has permitted V.E.B. Nicholson and Sons (Antigua) Ltd. to construct an office on the old Stanley Tavern Ruin without the prior consent of the Crown and subdivided portions of the land to make provisions for the Carib Marine Supermarket and Chandlery without prior written consent of the Crown.
Ms. Martin stated that on 28 th April 2005 the Claimant served a notice on the Defendant specifying the aforesaid breaches of the covenants and requiring the Defendant to remedy them. That the Defendant, by letter dated 6 th October 2005 written by Desmond V. Nicholson, admitted the aforesaid breaches, but the Defendant has failed to remedy the breaches.
In her testimony in Court. Ms. Martin testified that the Crown became aware of the breaches of the covenants in the lease from March 2001 when she was approached in her capacity as Parks Commissioner by Mr. Carlo Falconie concerning his intention to undertake a commercial development on the demised premises. That this led to several meetings being held and to the breaches being outlined to the Defendant's Manager. That no action was taken by the Defendant to correct the breaches, which resulted in the Solicitor General writing to the Defendant in March 2003 informing them that a representative of the Crown would be coming to inspect the demised premises to determine whether the obligations of the lease were met. That in July 2003 the Crown attempted to re enter the demised premises and forfeit the lease for breaches of the covenants, but the Defendant instituted proceedings against the Crown challenging the forfeiture and the Court ruled in favour of the Defendant on the basis, inter alia, that the Crown did not properly serve the forfeiture notice in accordance with the Registered Land Act, Cap. 374 of the 1992 Revised Laws of Antigua and Barbuda (the Act).
Ms. Martin also testified that the demised premises were not used for enhancing the yachting industry, the slipway was never built and, except for a number of subdivisions for residential development, nothing else happened under the lease. That the last time she visited the demised premises, the Powder Magazine was in a state of disrepair, the roof was leaking and sections of it were taken off, there were lots of termites in the building, some of the stones had fallen out of the building, there was old wood, electrical cables and used oil dumped on the premises.
Under cross examination, Ms. Martin testified that on 22 nd July 2003 the first notice of forfeiture was served on the Defendant by the Solicitor General as a result of the breaches of the lease and the condition in which the demised premises were being kept, but the Nicholson family obtained an injunction preventing government from entering upon the property and terminating the lease. That she is aware that the judge ruled that the notice of forfeiture was not proper and that government was not therefore able to carry out its intention to forfeit the lease. That after the first case the Solicitor General served a second notice of forfeiture dated 27 th April 2005 on the Nicholsons giving them 6 months to correct the breaches, but nothing was done to correct the breaches.
The second witness to give evidence at the trial was Mrs. Lisa Nicholson—the first of the two witnesses for the Defendant.
In her Witness Statement, Mrs. Nicholson stated that she is a director of the Defendant and the sole beneficiary of the Estate of the late Desmond Nicholson, formerly a director and shareholder of the Defendant. That the assignment of the lease to the Defendant by the original lessees was dealt with by the Hig h Court in Claim No. ANUHCV2003/0394 and the Court ruled that the Government had waived its right to object to the assignment. That the Powder Magazine was fully converted for use as a dwelling house in the year 1962 and was lived in by the original lessees and later their granddaughter (Dana Nicholson) until it was seriously damaged by Hurricane Hugo in 1989. That to that extent the Defendant was not in breach of covenant. That during the period that Dana Nicholson was in the building and following its reconstruction, the Powder Magazine was made available for use as a temporary location for various businesses. That this was in compliance with the wishes of the person who was then in charge of the dockyard, who felt that all historic buildings should be open for use by the public.
Mrs. Nicholson stated that the Court having ruled against Government in its attempt to forfeit the lease in Claim No. 394 of 2003, the present claim is another effort to accomplish forfeiture. That the Defendant again pleads for relief from forfeiture under Section 57 of the Act in view of the fact that these assignments (by which she is understood to mean sub leases) were made many years ago so that records have been lost and in view of the fact that the lease says that consent is not to be unreasonably withheld in the case of a respectable and responsible assignee and that all sub leases are held by respectable and responsible people who have invested a great deal into Antigua over the years, so that she feels that the spirit of the lease has been honoured. That furthermore, the Government has always been aware that the sub leases were in place and had not questioned them until lately.
As to the alleged breach by the Defendant's failure to build four other dwelling houses, Mrs. Nicholson is of the opinion...
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