Spencer v The Attorney General of Antigua and Barbuda et Al
| Jurisdiction | Antigua and Barbuda |
| Judge | Saunders, J. |
| Judgment Date | 21 November 1997 |
| Neutral Citation | AG 1997 HC 46 |
| Docket Number | No. 295 and 348 of 1997 |
| Court | High Court (Antigua) |
| Date | 21 November 1997 |
High Court
Saunders, J.
No. 295 and 348 of 1997
Dr. F. Ramsahoye, Q.C. and Mr. C. Phillips Q.C. with Mr. H. Lovell and Mr. C. Derrick for the plaintiff
Mr. D. Turner-Samuels, Q.C. with Mr. A. Astaphan for the first defendant
Mr. K. Hudson-Phillips, Q.C. with Mr. A. Astaphan for the second defendant
Mr. D. Halstead for the third defendant
Practice and procedure - Summonses to strike out actions — Government of Antigua and Barbuda entered into an agreement with a developer to acquire Guiana Island and other islands and lands — Plaintiff requested that the agreement be set aside — Alternatively, that the agreement be declared unconstitutional, unenforceable against the people of Antigua and Barbuda, null and void — Finding that the court did not and could not adjudicate on such disputes — Best left to Parliament for resolution in other for a by lawful means — Ordered actions be struck out.
Guiana Island is a tiny island in the Eastern Caribbean. It forms part of the State of Antigua and Barbuda. Along with other Islands and certain other lands, it has become the focus of much attention lately It is the site of a proposed development project.
Two civil suits have been launched by Mr. Baldwin Spencer concerning the project. Mr. Spencer is the Leader of the Opposition in the Antigua and Barbuda House of Representatives. He sues on behalf of himself and all other members of his political party, the United Progressive Party.
A brief chronological history of events would help to place the suits in their proper context. It all started with an Agreement (‘the Agreement’) entered into by the Government of Antigua and Barbuda with a developer. That developer is a company called Asian Village Antigua Limited. Throughout this judgment I shall refer to that company and its nominees as ‘Asian’.
The date of the Agreement is 18 th February, 1997. It is a long Agreement, running to over 30 pages. I will not go into great detail about the nature of the Agreement now. I will outline some of its terms later on in the judgment.
Under the Agreement, the Government is to acquire Guiana Island and other islands and lands. At least 900 acres of land are involved. It could be as many as 2,000 acres, according to counsel for Mr. Spencer. Having acquired these lands, the Government would then turn them over to Asian. Asian would also be granted extensive concessions, rights, privileges, licences and permits so that it can engage in tourism related development. Completion of the Agreement is specifically predicted upon necessary legislation being passed in the Antigua and Barbuda Parliament to encompass and ratify its terms.
In return, Asian will pay to the Government the sum of EC$15.5 million spread over a ten year period. This payment will be inclusive of any and all stamp duties and taxes, if any, payable by Asian to the Government. Asian intends to construct on the lands sold, transferred or leased to it the following amenities: resort accommodation of approximately 1,000 rooms; a casino; a golf course; retail shops; residential developments; and other resort, commercial and hotel related projects and facilities. By any standards, this development represents a massive project.
Some time after the Agreement was executed, the Government introduced a Resolution in Parliament. They sought to have both houses consider and affirm the Agreement with Asian. Authorisation was also sought for the acquisition by Government of the islands that are the subject matter of the Agreement.
A Resolution was duly passed by the House of Representatives on the 4 th June, 1997. The Agreement was approved. The Secretary to the cabinet was authorised to make a declaration in accordance with section 3 of the Land Acquisition Act. This declaration was to the effect that Guiana Island and the other islands named in the Agreement were to be acquired for a public purpose. That public purpose was stated to be the promotion and development of tourism and supporting tourist related activities. Two months later a similar resolution was passed in the Senate.
Mr. Spencer and four of his Opposition Parliamentary colleagues are not present when the Resolution was moved and passed in the House of Representatives. Similarly, on the 6 th August, 1997 when the Resolution came before the Senate, the Opposition Senators were not present. The Clerk of the House states that they all absented themselves from the respective meetings.
In accordance with the Resolutions passed in Parliament, declarations acquiring the lands identified in the Agreement were published. This is a requirement prescribed by section 3 of the Land Acquisition Act. Publication was effected in the Gazette on the 7 th, 21 st and 28 th August, 1997 respectively.
The Government then went ahead with plans to have Parliament enact legislation providing for the implementation of the incentives specified in the Agreement. On the 18 th September, 1997 an Order Paper was circulated toa ll members of the House of Representatives in respect of a meeting of that body. The proposed meeting was to be convened on 25 th September, 1997. Item 14(a) on the Order Paper was a Motion by the Hon. Prime Minister to move the first reading of the Asian Village Development Act, 1997.
The first of these two suits was instituted at this juncture. On the 23 rd September, 1997 to be exact. A writ of summons indorsed with a Statement of Claim was filed. It was duly served and appearances were entered.
On the 6 th October, 1997 the Bill was taken through all its stages in the House of Representatives. It was amended at the Committee stage to read The Asian Village Resort (Incentives) Act. Two weeks later the Senate passed the Bill. Both in the Lower House and in the Upper House the Opposition members ‘absented themselves’ when the Bill came up for debate. All that is now required for the Bill to become law is for it to receive the Assent of His Excellency the Governor-General.
Shortly after the passage of the Bill through both Houses, Mr. Spencer filed the second action. This action is also commenced by a writ indorsed with a Statement of Claim.
It is now necessary to closely examine the Statement of Claim in each of the matters filed. I do so initially in relation to the first action.
Suit No. 295 of 1997, is an attack upon the Agreement and the ability of the Executive Branch of Government to make such a contract. Mr. Spencer wishes the court to set aside the Agreement. Alternatively, the court should declare it unconstitutional, unenforceable against the people of Antigua and Barbuda, null and void. Mr. Spencer claims an order restraining the Cabinet from doing anything in furtherance of the Agreement. He seeks on behalf of the Government and people of Antigua and Barbuda damages for fraud, conspiracy and misdemeanor (but it is accepted that this should be misfeasance) in public office. He also claims for an order for an inquiry into the damage tot he wild life and to the ecology of the country by reason of the performance of the Agreement.
The defendants to the suit are the Attorney General of Antigua and Barbuda, Lester Bryant Bird (sued as representing himself as Prime Minister and all other members of the Cabinet of Antigua and Barbuda) and ASIAN VILLAGE ANTIGUA LIMITED.
There are 21 paragraphs grounding Mr. Spencer's claims. Paragraphs 1 to 5 seek to elucidate the nature of the interests of each of the parties to the suit. Paragraphs 6 to 9 give a brief synopsis of the Agreement and particularize the lands affected. The Agreement itself is pleaded and annexed tot he Statement of Claim. Paragraphs 19 and 20 are somewhat formal in nature. Paragraph 21 states the intention of the plaintiff to rely upon the Constitution of Antigua and Barbuda.
One must therefore look to Paragraphs 10 to 18 of the Statement of Claim for the pith and substance of the first action brought by Mr. Spencer and the members of the United Progressive Party.
Paragraph 10 states that the proposed development is extremely harmful to the ecological life of the State. It is said that wild life, including over 250 deer, will be slaughtered. It is then alleged that the project is ‘contrary to common law principles which protect the environment.’
Paragraph 11 asserts, in effect, that the Agreement represents a sell-out on the part of the Government. The consideration of $15.5 million to be provided by Asian is far less than the cost to Government of fulfilling obligations imposed upon it under the Agreement. It is said that Government would be divesting itself of publicly owned property and that this is contrary to public policy. In this paragraph the Agreement is referred to as ‘a device whereby property of the State will be given under the guise of a public purpose to a private developer for his own profit at the cost of the state.’
In Paragraph 12 it is claimed that the Agreement is discriminatory. It treats the project development and all persons and corporations concerned therein as a separate class and/or community. It is said that by reason of the exemptions and privileges accorded to Asian and those associated with it, the Agreement discriminates against the people of Antigua and Barbuda. In support of this plea, reliance is placed upon section 14 of the Constitution.
Paragraph 13 alleges that the Agreement amounts to a confiscation of the property of the Government and people of Antigua and Barbuda; that implementation of the project would be prejudicial to the property and revenues of the state; and that it is also prejudicial to good government. The scheme for which the agreement provides is said to be ‘the result of a conspiracy between the Cabinet, Asian and persons unknown.’
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