Southern Developers Ltd 1st Appellant/Defendant [1] Lester Bryant Bird [2] Robin Yearwood [3] Hugh C. Marshall SNR. v Attorney General of Antigua and Barbuda Respondent [ECSC]
| Jurisdiction | Antigua and Barbuda |
| Judge | Thomas, J.A. (Ag),Errol L. Thomas,Hugh A. Rawlins,Justice of Appeal,Ola Mae Edwards |
| Judgment Date | 07 April 2008 |
| Judgment citation (vLex) | [2008] ECSC J0407-4 |
| Docket Number | HCVAP 2006/020A |
| Court | Court of Appeal (Antigua and Barbuda) |
| Date | 07 April 2008 |
IN THE COURT OF APPEAL
The Hon. Mr. Hugh A. Rawlins Justice of Appeal
The Hon. Mde. Ola Mae Edwards Justice of Appeal (Ag)
The Hon. Mr. Errol L. Thomas Justice of Appeal (Ag)
HCVAP 2006/020A
Public law — illegality — misfeasance in public office — sufficiency of evidence pleaded — continuity of the office of Attorney General — defence of laches — estoppel — rule 8.6(1) of the Civil Procedure Rules 2000 (CPR 2000)
The Attorney General, the claimant/respondent, instituted proceedings on 12th October, 2005 against the defendants/appellants in which it was alleged that the sale in 1987 of 25 acres of Crown land to the first-named defendant, Southern Developers Ltd., at a time when the second to fourth-named defendants were cabinet ministers was tainted with illegality. It was further alleged that the second to fourth-named defendants had a vested interest in Southern Developers Ltd. which was not disclosed to the cabinet. The claimant sought a number of declarations and rescission of the transfer to the first-named defendant. The first-named defendant applied to strike out the claim on 28th April, 2006. By Order of 10th October, 2006 the application was dismissed with costs to the respondent, which decision is now appealed against.
Held, dismissing the appeal and awarding costs to the respondent:-
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1. Illegality means "that which is contrary to the principles of law as contradistinguished from mere rules of procedure." The tort of misfeasance is indivisible as a cause of action and there is no need for the particular limbs of the tort to be specifically pleaded. The claimant/respondent's statement of case does mark out the parameters of the case being advanced against the appellant/defendant in relation to illegality and misfeasance in public office. The pleadings are therefore sufficient.
Dicta of Lord Woolf in McPhilemy v Times Newspapers et al [1999] 3 All ER 775 applied; Wilding v Commissioner of Police for the Metropolis [2004] EWHC 3042 distinguished.
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2. The rights of the public are vested in the Crown and the Attorney General enforces these rights as an officer of the Crown. In the exercise of these rights and powers the Attorney General must act for the public good and not for improper or ulterior purposes. Notwithstanding the continuity in the office of Attorney General therefore, the Attorney General cannot ignore a wrong that offends against the public good. The action by the Attorney General was properly instituted.
Three Rivers District Council v Bank of England [2000] 3 All ER 1 , Jones v Swansea City Council [1989] 3 All ER 162 and Gouriet v Union Post Office Workers [1977] 3 All ER 70 applied.
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3. The doctrine of laches cannot apply here as it is a defence whose viability is determined after a full trial. Even if this were not the case, this ground of appeal would fail for the question of delay must be judged from the time when the claimant became aware of the existence of the facts constituting the title to the equitable relief in question. The pleadings suggest that the new Attorney General became aware of sufficient facts from 24th March, 2004. Proceedings were brought on 12th October, 2005. In the circumstances, this would not constitute an unreasonable delay. Attorney General v Grand Junction Canal [1909] 2 Ch 505 distinguished.
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4. Estoppel in pais or estoppel by representation are matters for determination at trial.
This is an appeal by Southern Developers Limited only, against the decision of Master Cheryl Mathurin in Civil Suit No. ANUHCV2005/0512 as contained in the Order of the High Court dated 10th October, 2006.
On 12th October, 2005 the claimant, the Attorney General of Antigua and Barbuda filed a claim form together with a statement of claim in which Southern Developers Limited, Lester Bryant Bird, Robin Yearwood and Hugh C. Marshall Snr. were named as defendants.
Central to the claim is a parcel of Crown land recorded on the Land Register as Parcel 35, Block: 55 1382A Registration Section: South West. It contains 25 acres by measurement and was conveyed to the first-named defendant in or about the year 1987 as a result of a cabinet decision. The second, third and fourth defendants were then Ministers of Government and Cabinet members. At the material time Antigua Aggregates Ltd owned 80% of the shares in Southern Developers and the directors of Antigua Aggregates Ltd were the second, third and fourth defendants.
In the claim, the claimant seeks a number of declarations and rescission of the transfer to the first-named defendant.
By application dated 28th April, 2006 supported by affidavit of even date, the first-named defendant sought an order that:
"1.The Claim Form and Statement of Claim dated 12th October, 2005 be struck out
2.Summary judgment in favour of the Applicant/First-named Defendant pursuant to the Civil Procedure Rules 2000, Part 15
3. Costs."
The application was heard by the learned Master on 17th May and 13th July, 2006. The ruling was delivered on 10th October, 2006 in which it was ordered as follows:
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"1. The application filed on 28th April 2006 is hereby dismissed.
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2. Costs to the Respondent in the sum of $5,000.00."
By application supported by affidavit, both filed on 24th October, 2006, the first-named defendant sought leave to appeal. The leave was duly granted on 6th March, 2007. It was ordered then that:
"1. The leave is granted to appeal against the decision of Honourable Master Cheryl Mathurin delivered on 10th October, 2006.
2. The Order of the Honourable Master Cheryl Mathurin delivered on 10th October 2006 be stayed pending the determination of [the] appeal in this matter."
The notice of appeal was filed on 21st March, 2007 in which matters of fact and law were in issue.
The findings of fact challenged are:
"1. That the Claim is pleaded in sufficient detail to meet the necessary requirements to enable the defendants to answer.
2. That the Court should not order the striking out of the Claim on the basis of the Defence of Laches which had not been substantiated any basis either in the defence or in the affidavit evidence in support of the application.
3. The arguments in relation to estoppel are at the very least artificial."
The grounds of appeal are as follows:
"(a) The Learned Master erred in law when she found that the Claimant/Respondent has sufficiently pleaded facts and particulars of facts to support its claim for illegality as claimed at paragraph 1 of the Claim form or at all in that no particulars of the type of illegality, its elements and how the defendants had contravened them, were pleaded.
(b) The Learned Master erred in law when she found the misfeasance in public office was sufficiently pleaded by the Claimant/Respondent in the Statement of Case and further information filed on the 10th February 2006 in that the Claimant/Respondent has not set out in detail or any sufficient detail the manner and/or particulars in which the tort of misfeasance in public office was committed by any of the Defendants thereby resulting inany illegality and occasioning loss to be suffered by the Claimant/Respondent.
(c) The Learned Master erred in law when she held that the Attorney General was not barred from this Action in that the Office of the Attorney General is continuous and it was the Attorney General that effected the disposition of lands to the Appellant upon the representation that it was lawful so to do.
(d) The Learned Master erred in law when she found that the defence of laches has not been substantiated by any basis either in the defence or in the affidavit in support of the application for summary judgment in that the Learned Master paid no regard or no sufficient regard to the fact that the alleged transaction took place in 1987 to the full knowledge and participation of the Claimant that is a continuous Public Office.
(e) That the Learned Master erred in law when she found that the arguments in relation [to] estoppel are at the very least artificial and would undermine the doctrine of misfeasance in public office in that the Claimant was the entity that enabled the transaction complained of and represented to the defendants that it was lawful so to do.
The relief sought from the Court of Appeal is:
(a)that the Claim Form and Statement of case be struck out;
(b)that the Applicant be given the cost of the application in the Court below and in the appeal."
The grounds of appeal must be analysed.
On this ground, Southern Developers Limited, the appellant, contends that the respondent at paragraph 7 of its statement of claim avers that the second, third and fourth-named defendants were at all material times shareholders of Antigua Aggregates Limited which in turn owned 80% of the shares of the first-named defendant. Further, that the third and fourth-named defendants are directors of the first-named defendant.
Critically, however, Mr. Hugh Marshall Jr., counsel for the appellant, takes issue with the respondent's pleading to the effect that the transfer of Parcel 35 to the appellant/first— nameddefendant is tainted with illegality without a definition of illegality and without an identifiable cause of action. In this regard, reliance is placed on Wilding v Commissioner of Police for the Metropolis.
On the question of pleaded facts in relation to ground 1, Mr. Justin Simon, QC, for the respondent submits that the statement of case consists of the claim form, the statement of claim and the particulars supplied which must all be examined...
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