Lake et Al v Attorney General of Anguilla

• Jurisdiction: Anguilla
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Judge: Baptiste J
• Judgment Date: 24 November 2003
• Neutral Citation: AI 2003 HC 8
• Docket Number: AXAHCV 2003/0074
• Date: 24 November 2003

High Court

Baptiste, J.

AXAHCV 2003/0074

Lake et al

and

Attorney General of Anguilla

Appearances:

Dr. Henry Browne and with him Mr. George Lake and Mrs. Navine Fleming-Kisob appearing for all the applicants/claimants.

Ms. Joyce A. Kentish and Mrs. Josephine Gumbs-Connor for the 1st, 2nd, and 3rd claimants in their capacity as Personal Representatives.

Mr. Allen Alexander Q.C. and with him Mr. Patrick Patterson and Mr. Ivor Greene for the respondents.

Injunction - Interlocutory injunction — Principles governing grant — Applicant had shown the risk of irreparable harm if the interlocutory injunction was not granted.

Baptiste J

1 The principles upon which a court will grant an interlocutory injunction do not admit of dispute. Essentially, in the instant case the Applicants must show that:

• (i) there is a serious issue to be tried;

• (ii) there must be a risk of irreparable harm should the injunction not be granted;

• (iii) The balance of convenience favours the grant.

2 I will consider these matters seriatim beginning with the question as to whether there is a serious issue to be tried. The applicants contend that there is, while the respondents contend to the contrary.

3 The applicants argue that the Land Acquisition Act (the Act) is offensive to and/or is not in conformity with the provisions of the Anguilla Constitution 1982 (the Constitution). The said Constitution vests in them the right to the enjoyment and security of their property and not to be compulsorily dispossessed by the State, except as may be reasonably required in a democratic society in pursuance of some overriding public interest and as may be permitted in accordance with a law prescribed by the Constitution. Further, they enjoy the right to have their civil rights and obligations adjudicated by a tribunal which is both independent and impartial.

4 Section 7 of the Constitution states:

“No interest in or right over any property of any description shall be compulsorily taken possession of except under the provisions of a written law which:

• (a) prescribes the principles on which and the manner in which adequate compensation thereto is to be determined;.

• (b) requires the prompt payment of such adequate compensation;

• (c) prescribes the manner in which the compensation is to be given; and

• (d) the manner of enforcing the right to any such compensation.

5 The applicants contend that the provisions of Section 7 of the Constitution do not admit of dispossession of property by the State by way of compulsory acquisition except by a written law which secures and safeguards contemporaneity of payment, vesting of title and entry into possession. To be valid, the Act must come within the limits allowed by the Constitution and the generally accepted principles of what constitutes adequate compensation must find expression in the written law of Anguilla. The legislative framework must reflect the prevailing and generally accepted principles as to do justice to the concept of adequate compensation and in that regard the written law must keep abreast with changing circumstances.

6 Dr. Browne argued that the generally accepted principles of assessment applicable to determine adequate compensation as shown in the case law are not reflected in the Act. Dr. Brown pointed out, inter alia, that there was no proper play for the principles of market value, the date of value for the purposes of assessment is 12 months before notice and that interest rate is fixed at 4%. Dr. Browne stated that adequate compensation must be at the time of assessment of the adequate compensation. Dr. Browne submitted that the principles of assessment in the Act are such that they do not assure the payment of adequate compensation.

7 Dr. Browne further submitted that the manner of enforcement of the payment of compensation prescribed by Section 28(3) of the Act is a prescription for inordinate delay of the payment of compensation and violates the constitutional prescription for the prompt payment of adequate compensation.

8 I note that Section 28(3) provides that the right to compensation awarded shall be enforced by suit against the Attorney General in accordance with the provisions of the Crown Proceedings Act.

9 Mr. Alexander QC, submitted that the Act meets the prescriptions of Section 7 of the Constitution. Section 18 of the Act lays down the principles on which compensation is to be determined. Also section 28(2) requires payment to be made promptly and shall be in cash.

10 Having listened to the submissions of both counsel, I am of the view that serious issues have been raised by the applicants as to whether the Act satisfies the requirements of Section 7 of the Constitution in respect of adequate compensation and prompt payment.

11 Dr. Browne also contended that the determination of adequate...