H.M.B Holdings Ltd v David Matthias the Attorney General of Antigua and Barbuda

• Jurisdiction: Antigua and Barbuda
• Judge: Robertson J.
• Judgment Date: 10 December 2021
• Neutral Citation: AG 2021 HC 037
• Docket Number: CLAIM NO. ANUBOA2010/0001
• Court: High Court (Antigua)

Between:

H.M.B Holdings Limited

Applicant

and

David Matthias the Attorney General of Antigua And Barbuda

Respondent

Robertson J.

CLAIM NO. ANUBOA2010/0001

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

APPEARANCES:

Mr. John Carrington, QC, Mrs. Joyce Kentish-Egan QC and Mr. Kendrickson Kentish

Mr. Anthony Astaphan, SC, Mrs. Carla Brookes-Harris and Ms. Joy Dublin

1 Robertson J. Introduction. The applicant, HMB Holdings Limited, obtained a money judgment against the Government of Antigua and Barbuda. The applicant has in the past sought to enforce the judgment and has attained varying levels of success. At this time the entire judgment debt has not been liquidated. The applicant has, on this occasion, made an application under the Civil Procedure Rules (As Amended) 2000 [CPR] for orders that there be attachment of the debts currently due from specific financial institutions to the Government of Antigua and Barbuda. The applicant has also made an application for charging orders to be issued over shares in certain companies which are owned by the Government of Antigua and Barbuda. The total sum sought at this juncture is US$18, 260,784.01.

2 The applicant seeks to recover the sum of US$18, 260,784.01 as the applicant contends that this sum was admitted by the respondent as being owed to the applicant in an affidavit filed by the Financial Secretary in the Ministry of Finance sworn in proceedings ANUHCV2017/0430.

3 The applications before the court run contrary to the provisions of section 21 of the Crown Proceedings Act and Rules 50.2 (3) and 59.7 of the CPR. Part 50.2 provides, among other things, that an attachment of debt order may not be made to attach debts due from the Crown and refers to Part 59.7(3) for an alternate procedure. Part 59.7 provides that Parts 44 to 53, enforcement mechanisms, of the CPR are not applicable to any order against or money due or accruing due or alleged to be due or accruing due from the Crown. In accordance with the provisions of the CPR the application for an attachment order 1, and an application for a charging order are to be considered by the court without a hearing 2.

4 The applicant raised constitutional matters as grounds for the relief sought in the above-mentioned applications. There being constitutional implications, the court heard submissions from counsel for the applicant and counsel from the second-named defendant 3.

The Factual Matrix in Summary

5 The Government of Antigua and Barbuda acquired the applicant's property 4 under the provisions of Land Acquisition Act Cap. 233. Specifically, in 2002 the Government passed a resolution in the House of Representatives and Senate to acquire the property. The acquisition was challenged by the applicant through the process of Judicial Review and the Judicial Committee of the Privy Council delivered its ruling on the matter of acquisition on 5 ^th June 2007 and the Privy Council determined that the compulsory acquisition was lawful. The Government of Antigua and Barbuda proceeded with the acquisition.

6 The Government took possession of the property in July 2007. A Board of Assessment was appointed in April 2008 5 and an award rendered on 5 ^th January 2010. The applicant, being dissatisfied by the award, appealed this decision. The awarded compensation was ultimately determined by the Judicial Committee of the Privy Council in 2014 in the proceedings of Attorney General of Antigua and Barbuda v. HMB Holdings Ltd 6. In those proceedings the Government was ordered to pay:

• i. Compensation in the sum of US$26,616,998.00.

• ii. Interest at the rate of 10.25% per annum from 23 July 2007 to 22 January 2011 in the total sum of US$9,560,000.00.

• iii. Interest at the rate of 4% per annum from 23 January 2011 until payment; and iv. Costs.

7 Subsequent to the decision of the Privy Council, the second respondent applied to the High Court seeking that the payments be made by instalments. The evidence before this court is that that application for payment to be made by installments remains part heard. In that application the second respondent contended that the proposed installments were premised on the anticipated or budgeted revenue. The proposed installments were:

• i. EC$1,000,000.00 on or before 31 ^st January 2015.

• ii. US$10,000,000.00 on or before 30 ^th June 2015.

• iii. US$10,000,000.00 on or before 30 ^th June 2016.

• iv. Six equal monthly installments thereafter to liquidate the balance inclusive of costs awarded and after adjusted for outstanding taxes owed by the applicant as per the Privy Council Order.

8 The proposal for the payment of the award by instalments was subsequently adjusted by the Deputy Financial Secretary to, according to his evidence, “accommodate adjustments in budgeted revenue

and expenditure facilitating the servicing of national debt to the International Monetary Fund and was made in anticipation of the sale of the acquired property”. The new proposed installments were

• i. US$10,000,000.00 on or before 1 ^st June 2015.

• ii. US$10,000,000.00 on or before 1 ^st November 2015.

• iii. US$5,000,000.00 on or before 1 ^st April 2016.

• iv. US$5,000,000.00 on or before 1 ^st June 2016.

• v. US$2,000,000.00 on or before 1 ^st September 2016.

• vi. US$2,000,000.00 on or before 1 ^st October 2016.

• vii. US$2,000,000.00 on or before 1 ^st November 2016.

• viii. US$2,000,000.00 on or before 1 ^st December 2016.

• ix. US$2,000,000.00 on or before 2 ^nd January 2017

• x. US$2,000,000.00 on or before 1 ^st February 2017.

• xi. Final payment to include any residual balance following a reconciliation of previous payments on or before March 1 ^st 2017.

9 The respondent did not meet the proposed payment schedule and contended that the inability to make payments was as a result of the delay by the purchaser of the acquired property in raising the purchase price, shortfalls in revenue including from the Citizens Investment Programme [CIP] and obligations of the government towards the International Monetary Fund [IMF] and the Depositor Protection Trust 7.

10 On one of the applications to pay by installments, a court ordered the respondent to make the first instalment of US$10 million as proposed by the respondent's schedule by 1 ^st June 2015. The respondent applied to vary the order on 29 ^th May 2015 and this application was refused and the respondent was ordered to make the payment within seven days. The respondent's appeal of the order and application to stay the execution were refused by the Court of Appeal. On 5 ^th November

2015 it was ordered by the court that the applicant was to pay the sum of US$10,000,000.00 on or before 27 ^th November 2015

11 Payments have been made to the applicant by the respondent. The payments made by the respondent were:

i. 18 th February, 2015	-	EC$ 1,000,000.00
ii. 7 th August 2015	-	EC$ 1,100,000.00
iii. 30 th September 2015	-	EC$ 100,000.00
iv. 23 rd December 2015	-	US$ 20,000,000.00 [proceeds from sale of subject Property] 8
v. December 2017	-	US$ 3,000,000.00 [balance of proceeds of sale of the subject property paid through applicant's Canadian Counsel]

12 Sometime in or about 2015 a dispute arose regarding the allocation of the money paid by the respondent. Specifically, the parties disputed whether the sums paid ought to be allocated to the interest or should be allocated towards the principal. As a consequence of this dispute another claim was initiated by the applicant. The determination of that matter would have obvious implications in the quantification of the sums remaining due and owing to the applicant.

13 As previously indicated, in these proceedings, the applicant, sought to recover the sum of US$18, 260,784.01 through attachment orders and through charging orders. The attachment orders were directed to the financial institutions such as the Antigua Commercial Bank, Caribbean Union Bank, Eastern Caribbean Amalgamated Bank Limited, The Bank of Nova Scotia, Antigua Development Bank, Royal Bank of Canada and First Caribbean International Bank (Barbados) Limited. The charging orders sought are in respect of shares held by the respondent in National Assets Management Company Limited [NAMCO], West Indies Oil Company Ltd., Eastern Caribbean Amalgamated Bank Limited [ECAB] and State Insurance Company Limited.

14 During the process of appeals, whether initiated by the applicant or the respondent, the government made no payments to compensate the applicant. The first payment was in February 2015.

The Evidence

15 The applicant's evidence presents palpable, and somewhat understandable, frustration at the delay in obtaining the fruits of the judgment received in the company's favour in 2007. The representative for the applicant contends that the applicant had to initiate proceedings to require the government to have the Board of Assessment appointed and has been consistently engaged in litigation to obtain the appropriate level of compensation and to have that compensation paid.

16 The applicant noted that the applicant was “forced to file a series of legal actions against the GoAB 9 to compel it to initiate the process of compensation as laid out by the Land Acquisition Act”. The applicant further indicated that after the decision of the Board of Assessment was delivered the claimant appealed the decision of the Board to the Court of Appeal, but the Government of Antigua and Barbuda did not pay ‘the undisputed amount, as established by the Board of Assessment”. Through an order of Mandamus made in May 2013 10 against the then Minister of Finance it was determined that there was unreasonable delay by the Government in the payment of the funds. Specifically, that court determined and ordered that:

• i. The Minister of Finance was under a public duty to issue a Warrant for payment from the Treasury for the sum awarded to the applicant as...