Nolder Martin v Attorney General of Antigua and Barbuda

• Jurisdiction: Antigua and Barbuda
• Judge: Thomas J
• Judgment Date: 22 March 2007
• Judgment citation (vLex): [2007] ECSC J0322-1
• Court: High Court (Antigua)
• Date: 22 March 2007
• Docket Number: CLAIM NO. ANUHCV 2003/474

[2007] ECSC J0322-1

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CIVIL)

CLAIM NO. ANUHCV 2003/474

In the Matter of the Constitution of Antigua and Barbuda

and

In the Matter of an Application of Nolder Martin a Person Alleging that the Provisions of Section 3c, 9 (1), and 9 (2) of the Constitution have been, are being and are likely to be contravened in relation to her and for Redress in accordance with Section 18 of the Said Constitution of Antigua and Barbuda

and

In the Matter of the Supreme Court (Constitution Redress-Antigua Rules 1970) No. 5 of 1970

Between:

Nolder Martin

Claimant

and

The Attorney General of Antigua and Barbuda

Defendant

Appearances:

Mr. Vashit Maharaj with Mrs. Georgice Mendes-Blackman for the Claimant

Mrs. Carla Brookes-Harris for the Defendant

Constitutional redress — Allegation of breach of section 9 of the Constitution — Other action lawfully available to Claimant under statute — Abuse of process — Power of Court to decline to exercise jurisdiction under the enforcement provision of the Constitution being section 18 (1).

Thomas J

1 By a fixed date claim form by way of originating motion filed on 13^th November 2003 the Claimant is seeking the following reliefs against the Defendant:

• 1. A declaration that the Government of Antigua and Barbuda wrongfully illegally and in violation of the Claimant's Constitutional right as contained in s3 of the Antigua and Barbuda Constitution Order 1981 entered and remain in occupation of the land and have contravened and continue to contravene the fundamental rights of the Claimant to the protection from the deprivation of the following described property to wit: All and Singular that piece of land measuring 19.8 acres, a portion of that piece of land and more particularly described as Registration Section: South Central, Block 15 2185 B Parcel 71 bounded on the North by parcel No. 361 on the East by the Tyrrels Public Road on the South by parcel No. 72, 280, 281 and 282 and the Swetes Public Road and on the West by parcel Nos. 184 and 123.

• 2. A Declaration that the Government of Antigua and Barbuda wrongfully, illegally and in violation of the Claimant's constitutional rights as contained in s 9 ( 1) and (2) of the Antigua and Barbuda Constitution Order 1981 to be protected from the compulsorily taking possession of the property as described in 1 above, have entered and remain in occupation of the lands hereinbefore described and have contravened and continue to contravene the fundamental rights of the Claimant.

• 3. An order that monetary compensation be made by the Government of Antigua and Barbuda to the Claimant promptly of such compensation as may be assessed by the Court in respect of the contravention of the Claimant's aforesaid Constitutional Rights.

• 4. An order that the Claimant do recover possession of the lands the subject matter in dispute or alternatively an order for the valuation of the said lands and the payment to the Claimant of their present day value as assessed.

• 5. An Order for the payment of mesne profits for the use and occupation of the said lands by the Defendant their licensees, servants or agents from March 1988 to the date of judgment.

• 6. Such further order or orders, writs, directions as the Honourable Court may consider appropriate for the purpose of enforcement of the aforementioned fundamental rights to which the Claimant is entitled.

• 7. The Government of Antigua and Barbuda do pay to the Claimant her cost of this claim.

• 8. Interest.

2 The Application rests on the following grounds:

• 1. That by virtue of a Deed of Trust registered as No. 1787 of 1950 the Claimant, Nolder Martin, also known as Nolder Clovis Candacie Martin also known as Nalda Martin, together with Eldena Roberta Martin, George Isaac Weldon Martin, Ethel Geraldine Camella Martin and Eleridge Isaac Martin became the beneficial owners of a certain parcel of settled land more particularly delineated and described in Deed 1787 of 1950.

• 2. That the trust was determined by the youngest reaching the age of 21 years on the 13^th day of July 1970.

• 3. That on the 23^rd day of February, 1978 the Claimant Nolder Martin, also called Nolder Clovis Candacie Martin, also called Nalda Martin, together with Eldena Roberta Martin, George Isaac Weldon Martin, Ethel Geraldine Camella Martin, and Eleridge Isaac Martin were registered as the owners in common of a certain piece or parcel of land more particularly delineated in Deed 1787 of 1950.

• 4. That in March of 1989 the Defendant without the authority of the Claimant went into occupation of the disputed parcel of Land and used it for the expansion of the village of Swetes.

• 5. That the Defendant has not paid any compensation to the Claimant for the appropriation of her Land.

AFFIDAVIT IN SUPPORT

NICOLE D. MARTIN

3 The affidavit in support of the originating motion was sworn to by Nicole D. Martin and filed on 13^th November 2003. According to the deponent, the affidavit is in support of Ms. Nolder Martin, also known as Nolda Martin, also known as Nolder Clovis Candacie Martin, of 1245 King George Bvld. Ann Arbor, Michigan.

4 The deponent says that together with her brother, John I Martin, she holds a power of attorney granted by her mother who is the Claimant in this matter. It was granted on 12^th February 2002.

5 The deponent avers that the parcel of land known as Tyrells Estate was conveyed to George Isaac Weldon Martin, as trustee for her mother, together with Eldena Roberta Martin, Ethel Geraldine Martin, Carmella Martin and Elridge Isaac Martin as tenants incommon. The deponent says further that on Geraldine Martin attaining the age of twenty-one the trust deed determined and the property, Tyrells Estate, vested in Nolder Martin, Eldena Roberta Martin, George Isaac Weldon Martin, Ethel Geraldine Camella Martin and Elridge Isaac Martin as tenants in common.

6 Nicole D. Martin further avers that on 23^rd February 1978 the land known as Tyrells was first registered as: Registration Section, Liberta Block and Parcel No. 31 2284 A2; Registration Section: South East Block 56 2084 A Parcel 2; Registration Section: South Central Block 15 2185B Parcel 71; Registration Section: Liberta, Block 31 2284 B Parcel 1. Further still, that in 1988 the Government of Antigua and Barbuda decided to purchase approximately 20 acres of the said Tyrells Estate for the purpose of extending the Village known as Swetes Village. According to the deponent, negotiations for the purchase of the 20 acres were conducted with Ms. Geraldine Martin and the Government of Antigua and Barbuda agreed to pay $1.25 per square foot. Following these events, by letters, dated 16^th March 1989 and 5^th June 1992, the Government was given notice to the effect that Ms. Geraldine Martin was not the sole owner of the said land and also that she had no authority to act on behalf of the other owners. She avers that against that background of knowledge the Government proceeded to occupy the parcel of land being approximately 20.0 acres.

7 It is the deponent's contention that the Government of Antigua and Barbuda has, through its Lands Officer, admitted that the occupation of the said land is a trespass. And to compound matters no money has been paid to the owner Ms. Nolder Martin or her agent but occupation of the land continues.

8 In another affidavit sworn to by Nicole Martin and filed on 10^th April 2004 the deponent avers as follows at paragraph 3:

"That I take issue with and deny the allegations of George Duberry at paragraphs 6 and 7 of his said Affidavit that Nolder Martin, the Claimant, together with Eldena Roberta Martin, Ethel Geraldine Carmella Martin and Elridge Isaac Martin (all hereinafter collectively called ("the Martins") are not the proprietors of the lands described as Registration Section: South Central; Block: 15 2185 B; Parcel 71) and state categorically that the said lands are owned by the Claimant and "the Martins".

9 The deponent contends that Parcel 71 was at all times part of Tyrells Estate—a fact known to the Government of Antigua and Mr. George Duberry. And this is so notwithstanding the Cadastral Survey carried out during the 1970's and the demarcation of a parcel of land measuring approximately 26 acres which was described in the legal description Block: 15 2185 B; Parcel 71.

10 It is the further contention of the deponent that at no time prior to George Duberry's affidavit dated 13^th February 2004 was ownership of Parcel 71 ever challenged by either the said Mr. George Duberry as Lands Officer or any member of the Government their servants or agents.

11 In cross-examination Nicole Martin said that she was aware of the cadastral survey. She also testified that an approach was made by the Government to buy the land in or around 1987 or 1989 at which time Geraldine Martin worked with the Government. She also testified that she did not know if at the time the approach was made the issue of the cadastral survey was raised, but admits that the Land Register does indicate the Crown as the owner of said parcel. She continued thus: "The transaction with the Government was not completed. Payments were made to a co-owner. Ms. Martin did not own the land. It was owned by five children. I have the trust deed which I believe is a deed of ownership. I have seen it. It says from 1977 the Crown owned it".

12 In further cross-examination Nolda Martin disagreed with the suggestion that the Crown was always the owner of the land and also denied that the Crown compulsorily took possession of the land.

13 In re-examination the witness said that she saw the Land Register and a document connected with the land from George Duberry. The witness also identified it atTB p. 80 -GD2.

DENFIELD MATTHEW

14 In his affidavit sworn to and filed on 10^th March 2004, Denfield Matthew deposes that he is a licensed land surveyor for more than 30...