[1] Attorney General of Anguilla [2] The Minister of Social Development [3] The Minister of Infrastructure Appellants v [1] Bernice Lake, QC [2] Auckland B. Kentish [3] Dr. Cuthwin L. Lake, CBE [4] Ronald Broomes [5] George Kentish [6] Dr. Cuthwin L. Lake (Personal Representative of the Estate of Albenah Lake-Hodge) [7] Ronald Broomes (Personal Representative of the Estate of Clarion Broomes) [8] Auckland B. Kentish (Personal Representative of the Estate of Ellen Clarke) [9] Bernice Lake QC and Auckland B. Kentish (Personal Respondents Representatives of the Estate of Carmencita Arthurton) Respondents [ECSC]

• Jurisdiction: Anguilla
• Court: Court of Appeal (Anguilla)
• Judge: SAUNDERS, C.J. [AG.],Chief Justice [Ag.],Justice of Appeal,Adrian Saunders,Suzie d'Auvergne,Justice of Appeal [Ag.]
• Judgment Date: 04 April 2005
• Judgment citation (vLex): [2005] ECSC J0404-1
• Docket Number: CIVIL APPEAL NO.4 OF 2004
• Date: 04 April 2005

[2005] ECSC J0404-1

IN THE COURT OF APPEAL

Before:

The Hon. Adrian Saunders Chief Justice [Ag.]

The Hon. Brian Alleyne, S.C. Justice of Appeal

The Hon. Suzie d'auvergne Justice of Appeal [Ag.]

CIVIL APPEAL NO.4 OF 2004

Between:

[1] The Attorney General of Anguilla

[2] The Minister of Social Development

[3] The Minister of Infrastructure

Appellants

and

[1] Bernice Lake, QC

[2] Auckland B. Kentish

[3] Dr. Cuthwin L. Lake, CBE

[4] Ronald Broomes

[5] George Kentish

[6] Dr. Cuthwin L. Lake (Personal Representative of the Estate of Albenah Lake-Hodge)

[7] Ronald Broomes (Personal Representative of the Estate of Clarion Broomes)

[8] Auckland B. Kentish (Personal Representative of the Estate of Ellen Clarke)

[9] Bernice Lake QC And Auckland B. Kentish (Personal Respondents Representatives of the Estate of Carmencita Arthurton)

Respondents

SAUNDERS, C.J. [AG.]

1 The Respondents own the Forest Estate in Anguilla. The estate comprises three parcels of land namely, parcels 100, 126 and 284. Ms. Bernice Lake, the first Respondent, owns parcel 100 while Mr. George Kentish, the fifth Respondent, owns parcel 284. The other Respondents all have interests of varying kinds in parcel 126.

2 The Forest Estate lies just east of the Wallblake airport. In 2003, the Anguilla government decided to develop the airport by, among other things, lengthening the runway. The development necessitated the acquisition of lands. In October, 2003, the Anguilla legislature approved a declaration by the Governor in Council to acquire compulsorily 26 acres of Parcel 100. The Notice of declaration was published in the gazette on successive occasions and, upon the second publication, in keeping with the Land Acquisition Act ("the Act"), the lands acquired vested absolutely in the Crown.

3 The Respondents are aggrieved at the acquisition. They have challenged the constitutionality of the Act. They have alleged that their constitutional rights to life and to the enjoyment of their property have been or will be infringed by the acquisition as well as by the works the government intends to execute upon the lands acquired. They applied to the Court for a number of declarations and other orders.

4 The matter was heard by Baptiste, J. In a detailed and lucid judgment the learned Judge held that sections 18 and 20 of the Act violated property rights provisions contained in section 7 of the Anguilla Constitution. The Judge decided that, because the Act was a post constitutional law, it was not amenable to modification to bring it into conformity with the Constitution. He therefore struck down the Act in its entirety. He also held that "a fair balance [had] not been struck between the public interest in the airport expansion and the constitutional rights of the…[Respondents]…because the design and scope of the…[proposed]…worksand the method of execution would have a disproportionate or excessive effect on the property rights of the…[Respondents]…". Accordingly, the Judge issued, as against the relevant Ministers and persons acting on their behalf, an order restraining them all from entering or remaining upon the lands acquired and from taking any other action to the prejudice of the Respondents in pursuance of the Act. Damages of $10,000.00 were awarded the Respondents along with costs.

5 This of course represented substantial success for the Respondents. However, in the course of his judgment, the trial Judge ruled against the Respondents on a variety of issues related to the constitutionality of various provisions of the Act. For example, the Judge declined to render void the vesting Declaration that had been made pursuant to the Act. The Judge also found that the appointment and composition of the Board of Assessment, established by the Act to determine the quantum of compensation payable for lands acquired, did not violate the constitutional right of the Respondents to an independent and impartial tribunal. The Judge also upheld the constitutionality of section 4 of the Act which empowers the Governor in Council to execute works on lands, intended to be acquired, without waiting for a formal vesting. Finally, in relation to the Act, the Judge did not consider that the structure and design of the Act, and in particular the central role the Act allots to the Attorney General, placed the Act in collision with the constitutional doctrine of the separation of powers. The Attorney General and the relevant Ministers have appealed the judgment. The Respondents have cross-appealed the decisions that have gone against them.

The Land Acquisition Act 2000

6 Section 18 of the Act sets out some of the rules governing the assessment of compensation once lands have been acquired by the government. Section 18(4) states, inter alia:

• (a) land shall be deemed to be used for agricultural purposes unless the party claiming compensation proves to the satisfaction of theappropriate authority that at the material time such land was being used for a purpose other than agricultural purposes;

• (b) "agricultural purposes" includes all purposes directly connected with the use of land as arable, grazing, or pasture land, or for dairy farming, or for any other purpose of animal husbandry including the keeping or breeding of poultry or bees, or for the growth of fruit, vegetables or flowers;

• (c) "appropriate authority" means the authorized officer appointed under and for the purposes of this Act, a Board of Assessment appointed under and for the purposes of this Act, or, as the case may be, any Judge, Court, magistrate, tribunal, arbitrator or person authorized by this Act to determine the amount of compensation payable thereunder;

• (d) "material time" means the date 12 months prior to the date of the second publication in the Gazette of the declaration under section 2

7 Section 20 of the Act provides that in awarding compensation, interest may be granted at the rate of 4% per annum, calculated from the date upon which the authorised officer entered into possession of the land acquired, until the date of payment of compensation. Section 28 stipulates that compensation must be promptly paid in cash and that the right to compensation awarded shall be enforceable by suit against the Attorney General, as defendant, in accordance with the provisions of the Crown Proceedings Act.

8 The trial Judge reasoned that the provision deeming land use to be for agricultural purposes violated the constitutional requirement of adequate compensation because it disregarded the potentialities of the land and ignored current market value. Secondly, the Judge held that the fixed rate of interest at 4% represented a denial of adequate compensation as did the stipulation that the date of the valuation of the land for the purpose of compensation should be a date 12 months prior to the date of the second publication in the Gazette. Thirdly, the Judge disagreed with the Respondents, who claimed as also unconstitutional, the provision requiring the landowner to enforce an award of compensation by civil suit against the Attorney General in accordance with the provisions of the Crown Proceedings Act.

Deeming land use to be for agricultural purposes

9 The provision deeming land to be used for agricultural purposes, quoted at paragraph 6 above, is a legal presumption that is capable of being rebutted. In the absence of evidence to the contrary, land will be deemed to be used for agricultural purposes but, if it is proven that the land was being used for a non agricultural purpose, the presumption of use for agricultural purposes will be rebutted. It was conceded that Anguilla has long ceased to be an agricultural country and it would not, in these circumstances, be difficult for a seller to rebut this presumption.

10 InSri Raja v. Revenue Officer1 Romer LJ expressed how one should go about a valuation of lands compulsorily acquired. Lord Romer stated:

"No one can suppose, in the case of land which is certain, or even likely, to be used in the immediate or reasonably near future for building purposes, but which at the valuation date is waste land, or is being used for agricultural purposes, that the owner, however willing a vendor, will be content to sell the land for its value as waste or agricultural land, as the case may be. It is plain that in ascertaining its value the possibility of its being used for building purposes would have to be taken into account. It is equally plain, however, that the land must not be valued as though it had already been built upon, a proposition that is embodied in sect. 24 (5) of the Act and is sometimes expressed by saying that it is the possibilities of the land, and not its realised possibilities, that must be taken into consideration".:

11 Section 18(2) of the Anguilla Act states that

The value of the land shall, subject as hereinafter provided, be taken to be the amount which the land, in its condition at the material time, might be expected to realize if sold at that time in the open market by a willing seller for the purpose of being put to the same use to which such land was being put at the material time

I would have thought that section 18(2) admitted of the same approach as was expressed inSri Raja even though Lord Romer was analyzing legislation that was not identically worded. Given however, the constitutional right of a land owner to

adequate compensation, I agree that it would not be proper for the legislature to place even the slightest fetter on that right. Accordingly, I agree with the Judge that deeming land to be used for agricultural purposes should be regarded as infringing the right to adequate compensation. I would similarly regard the latter words in section 18(2), namely, "for the purpose of being put to the same use to which such land was being put at the material time".

The independence and impartiality of the Board of Assessment

12 Section 9(2) of...