Found at: http://www.anguillaguide.com/article/articleprint/2317/-1/135/
|
WALLBLAKE EXPANSION CASE: Appeal Court Rules For Government
|
The following is a press release issued on Tuesday April 5 by the Attorney General’s Chambers stating that the Court of Appeal has ruled in favour of the Government in the Airport Case.
|
|
Many jets at Wallblake Airport recently (photo by Fred Randall)
|
“This means that [subject to any appeal by the Respondents to the Privy Council] the Government may now utilize the 26 acres of land compulsorily acquired in any further expansion of the Wallblake Airport,” the releasestated.
The full text of the release is as follows:
The Court of Appeal sitting in St. Kitts on Monday, 4th April 2005 handed down its long awaited decision in the appeal by the Government of Anguilla against the decision of the High Court Judge in the case brought by Ms. Bernice Lake QC and others stemming from the compulsory acquisition of lands for the Wallblake Airport Expansion Project.
To recap, the case commenced with an action by Ms. Bernice Lake QC and others against the decision of the Government to compulsorily acquire 26 acres of land in the Forest area for the expansion of the Wallblake Airport. Ms. Lake and the other Claimants succeeded in the High Court where Justice Davidson Baptiste held, amongst other things, that the Land Acquisition Act was unconstitutional and that a fair balance had not been struck between the public interest in the airport expansion and the constitutional rights of the Claimants. The Government was ordered by the High Court Judge to pay the Claimants’ costs and damages of $10,000.00.
The Hon. Attorney General, Ronald Scipio, considered this decision to be errnoeuos in law and appealed to the Court of Appeal. Ms. Lake and the other Claimants cross-appealed the decisions that had gone against them in the High Court.
|
|
Attorney General, Mr. Ronald Scipio
|
In a comprehensive judgment the Court of Appeal allowed the appeal by the Attorney General, dismissed the cross-appeal by the Respondents and quashed all the orders made by High Court Judge. In particular, the Court held as follows.
1. The fact that the Board of Assessment for determining the amount of compensation payable was appointed by the Governor in Council did not mean that the Board lacked independence and impartiality. The Court noted that the chairman of the Board is a High Court Judge, whose institutional independence could not be questioned, and who is assigned by the Chief Justice. The Court further noted that the parties each nominate a member to sit with the Judge on the Board.
2. The doctrine of the separation of powers was not violated by the Executive being given the power by the Legislature to establish a Board of Assessment. The Constitution invests the Attorney General with a high level of trust. The Court noted that the same Constitution bestows upon the Attorney General exclusive power to institute, undertake and discontinue at any stage criminal proceedings against any person.
3. Section 28 (3) of the Land Acquisition Act does not violate the constitutional prescription for prompt payment of adequate compensation. The Court noted that the said Act, in accordance with the Constitution, expressly mandates prompt payment in cash.
4. Severing those provisions of the Land Acquisition Act that offend the Constitution would not alter or destroy the scheme of the said Act, as was argued by the Respondents. The concept of adequate compensation for expropriated land pre-dated the Constitution and the scheme of the Land Acquisition Act is consistent with and intended to promote that concept. To sever the offending provisions will do absolutely no harm to the remainder of the Act and indeed, will improve the Act’s efficacy.
5. The trial judge was correct in finding that there was no evidence in support of the claim by the Respondents regarding the right to life.
6. The trial Judge was also correct in finding that there was no sufficient evidence to support the allegation of discrimination made by the Respondents.
7. The Respondents were only entitled to allege breaches of section 7 of the Constitution, i.e. the section protecting persons from unlawful deprivation of property. They were not entitled to allege a breach of a general right of enjoyment of property unless the breach itself related to some specific infringement of the Constitution.
8. The trial Judge gave the Respondents relief on threatened or likely injury when the Constitution does not expressly afford relief on such a basis. Section 16 of the Anguilla Constitution only affords constitutional relief where a fundamental right has been, or is being, infringed.
9. The principle of proportionality applied by the Respondents in support of their argument that a fair balance had not been struck between the public interest in the airport expansion and their constitutional rights cannot be treated as though it were a fundamental right that can be infringed. Proportionality is a principle to be applied when considering a substantive constitutional right and whether such right has been or is being infringed.
Finally, the Court of Appeal ordered each party to bear his/her own costs.
The decision by the Court of Appeal, subject to any appeal by the Respondents to the Privy Council, means that the Government may now utilize the 26 acres of land compulsorily acquired in any further expansion of the Wallblake Airport.
The Government was represented by Mr. Allan Alexander S.C., Mr. Patrick Patterson and Ms. Stella McFarlane of Caribbean Associated Attorneys.
The First Respondent was represented by Mr. Dennis Morrison Q.C., Mr. George Lake and Ms. Naveem Fleming-Kisob of Lake & Kentish.
The 2nd to 9th Respondents were represented by Ms. Josephine Gumbs-Connor of J.A.G. Gumbs & Co.
Ronald Scipio
Attorney General