H.M.B. Holdings Ltd v The Cabinet of Antigua and Barbuda et Al

• Jurisdiction: Antigua and Barbuda
• Judge: Mitchell, J.
• Judgment Date: 29 July 2002
• Neutral Citation: AG 2002 HC 19
• Docket Number: ANUHCT 0136 of 2002
• Court: High Court (Antigua)
• Date: 29 July 2002

High Court

Mitchell, J.

ANUHCT 0136 of 2002

H.M.B. Holdings Limited

and

The Cabinet of Antigua and Barbuda et al

Appearances:

Garvin Simonette, George Lousion and Tecla Henry-Benjamin with him, for the claimant.

Anthony W Astaphan SC, John Fuller with him, for the respondents.

Judicial review - Decision of respondent to compulsorily acquire the claimant's property — Allegation that respondent treated the claimant in a manner which constituted an inconsistency of policy which frustrated the claimant's legitimate expectation — Government gave undertaking not to acquire claimant's lands provided that claimant refurbished the subject property — Land Acquisition Act, Cap 253 — Finding that a legitimate expectation was created when the claimant acted in reliance of the undertaking of the government — Finding that for the respondents to have proceeded to compulsory acquisition without notice to the claimant amounted to an abuse of process and a breach of natural justice — Respondent's application to strike out claim dismissed.

Mitchell, J.

1 This is a land acquisition matter. The claimant seeks judicial review and relief under the Constitution of Antigua and Barbuda against the compulsory acquisition of the claimant's property at Half Moon Bay in Antigua.

BACKGROUND

2 With leave of the court, the claimant applied to the court by way of a Fixed Date Claim Form for a number of reliefs. The Claim was supported by affidavits of Natalia Querard, Joyce Kentish, Paul J Kelly, Ralph Potter, Keithlyn Smith, aid Baldwin Spencer. An affidavit in reply has been filed on behalf of the respondents by Molwyn Joseph. An Amended Claim Form was subsequently fled and served on 5 April 2002, followed by a Re-amended Claim Form filed on 7 May 2002.

3 There are pending three interlocutory applications. The first is one of 30 April 2002 by the respondents for the claim to be struck out as disclosing no reasonable cause of action or any reasonable grounds for bringing the application for judicial review or constitutional relief. The second is an application of the claimant of 7 May 2002 for orders compelling certain cabinet ministers of the relevant period to attend, for approval of the re-amended claim form, for disclosure of the authorship of one of the respondents' exhibits, and for the striking out of others of the respondents' exhibits. The third application is one of 13 June 2002 for time to be extended for the filing of the respondents' skeleton arguments.

4 On 7 May 2002 the court had adjourned the hearing of the application to strike out to 8 July 2002 and had given directions that (i) the respondents must lodge and serve their submissions in writing and their authorities in support of their application to strike out by 3 pm on 30 May 2002; (ii) the reply of the claimants to be lodged and served by 3 pm on 21 June 2002; (iii) any further application by either party to be filed and served by 21 June 2002 together with any submissions and authorities in support of any such application; and, (iv) no further applications than those permitted above to be filed pending the determination of the application to strike out of 30 April 2002. The following lists the written legal briefs lodged by the parties up to the hearing of this application and which were taken into account in coming to this decision: (a) on behalf of the Claimant: (i) Skeleton Argument and bundles of authorities lodged on 3 May 2002 in three volumes marked A, B, and C; (ii) Reply to respondents' Written Submissions lodged on 21 June 2002; (b) on behalf of the respondents: (i) Skeleton Argument and bundle of authorities lodged on 24 April 2002; (ii) Some Comments on the Applicant's Skeleton Arguments; and (iii) Chronology of Undisputed Facts both lodged on 3 May 2002 2002; and (iv) respondents' Short Answer to the Applicant's Reply lodged on 26 June 2002. At the hearing on 8 July 2002, the court granted the third pending application of 13 June 2002 referred to above and ordered that the submissions of the parties lodged on 21 and 26 June 2002 be deemed to have been lodged and served in time, and proceeded to hear the first application on 30 April 2002. The second application of 7 May 2002 was ordered adjourned to await the outcome of this ruling.

5 It is not necessary, for the purposes of this application, to go into the facts of this matter in any great detail. This is an in limine application, made by the respondents for the court to strike out the claim on the basis of the contents of the claim itself and the untested affidavit evidence produced up to this time. However, for the purpose of establishing the background only, it is useful to set out some of the facts. For the purposes of this summary, I shall draw on the respondents' version of the “undisputed facts” without in any way considering the claimants bound by any statement as to the facts here made. The claimant was, prior to the disputed acquisition in question, the proprietor of the lands on which the Half Moon Bay Hotel was constructed. This Hotel has been described as having in its time been a flagship of the Antiguan tourism industry. In time, it came to suffer problems. As early as the year 1992, the Government of Antigua and Barbuda was concerned about the closure of the Hotel and held discussions with representatives of he claimant. In the month of September of the year 1995 Hurricane Luis struck Antigua and caused severe damage to hotels and other property on the island. The Hotel has not reopened since the passage of Hurricane Luis, and its staff have been sent home and its rooms have remained closed. In April and May 2000, Cabinet granted fiscal and other concessions to the Applicant and the company then managing the Hotel. In May, Cabinet granted additional concessions on condition that the construction and renovation work on the Hotel should commence within six months and the Hotel should be re-opened for occupation by guests by 1 July 2001. The claimant was not able to commence the redevelopment of nor to reopen the Hotel in the year 2000. On 7 December 2000, Cabinet considered that the claimant's property should be acquired for a public purpose under the provisions of section 3 of the Lands Acquisition Act, Cap 233. On 8 December 2000, the claimant succeeded in obtaining an ex parte injunction against the Cabinet to prevent the acquisition of the lands. On an application by the Attorney-General, the ex parte injunction was set aside. Cabinet entered into an agreement with the claimant to give a period of six months for the claimant to commence the redevelopment of the Hotel, provided the claimant could meet certain conditions. The setting aside of the ex parte injunction having reached the Court of Appeal, and in view of the agreement that had been arrived at, on 12 February 2001 the parties entered into a Consent Order in the Court of Appeal by which the Attorney General agreed that the Government would not proceed any further with the proceedings to acquire the claimant's lands for a period of six months commencing 1 February 2001. This six months period was separate and apart from the earlier six months period previously agreed by Cabinet, There was correspondence confirming that various concessions and incentives requested by the claimant and granted by Cabinet on 28 April, and 12 and 26 May 2000, would continue to be available to the claimant. The claimant eventually found a financier for the redevelopment of the Hotel in the person of one Mr. Ian Moncrief-Smith. At the claimant's request, the Governor General granted a Non-Citizen's Land Holding Licence in the month of February 2001 to Mr. Ian Moncrief-Smith. On 14 May 2001, the claimant was advised that Cabinet had granted further additional incentives and concessions as requested. The claimant however allegedly failed to commence the redevelopment of the Hotel within the agreed period of six months. The Government commenced fresh acquisition proceedings. The resolution to approve the acquisition was passed by the House of Representatives on 12 February 2002, and by the Senate on 21 February 2002. The Declaration of Acquisition made by the Secretary to the Cabinet was published in the Official Gazette on 7 and 14 March 2002. A due diligence search on the background of Mr. Ian Moncrief-Smith revealed to the respondents that there was no such person by that name, and that he was instead one Mr. Ian Scott who had no means of raising the sum of US$12 million required for the redevelopment. On 5 April 2002, amended on 7 May 2002, the claimant applied to the High Court for a number of reliefs. Meanwhile, on 30 April 2002, the respondents have applied for the claim to be struck out as previously described.

THE CLAIM

6 There is on file a Re-amended Fixed Date Claim Form filed on 7 May 2002, leave to file which is still to be given. I do not consider the contents of this claim, but only of the earlier amended one filed on 5 April 2002. The reliefs sought on the Amended Fixed Date Claim Form of 5 April 2002 can be summarised as follows. The claimant seeks;

• (a) an order of certiorari to remove into the High Court of Justice and quash the decision by the Cabinet of Antigua and Barbuda to acquire the claimant's lands;

• (b) an order of certiorari to remove into the High Court and quash the decision of Cabinet to cause Parliament to approve by resolution that a declaration be made by the Secretary to the Cabinet in the manner provided by the Act to acquire the claimant's land;

• (c) an order of certiorari to remove into the High Court and quash the approval of Parliament by resolution to acquire the claimant's lands as described in the schedule to a resolution passed by Parliament namely in the House of Representatives on 12 February 2002 and in the Senate on 21 February 2002;

• (d) an order of certiorari to remove into the High Court and quash the decision of the Cabinet to cause...