Francisca Jules Wattley Claimant v Attorney General Defendant [ECSC]
| Jurisdiction | St Lucia |
| Judge | Hariprashad-Charles J |
| Judgment Date | 26 October 2004 |
| Judgment citation (vLex) | [2004] ECSC J1026-2 |
| Court | High Court (Saint Lucia) |
| Docket Number | CLAIM NO. SLUHCV2004/0052 |
| Date | 26 October 2004 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
CLAIM NO. SLUHCV2004/0052
Mr. Kenneth Monplaisir QC with him Mr. Alberton Richelieu for the Claimant
Mrs. Georgis Taylor-Alexander with her Mr. Deale Lee for the Defendant
Land Acquisition…Validity of declaration of acquisition …whether particular wording of declaration necessary for valid acquisitions detrimental ….late posting of declaration on acquired land…whether last posting or failure to post notice detrimental to acquisition….Constitutional Motion… depravation of property, challenge of the procedure for acquisition
Judicial Review… Legitimate expectation…revocation of promise made to be confined to public authority who granted promise…Res judicata
Land Acquisition Ordinance, Cap. 109 Vol. 11 of the Revised Laws of saint Lucia 1957, section 3….The Saint Lucia Constitutional Order 1978 Section 6(2) (b)
On 8 th February 1944, Jones Augustus Jules purchased ten carres of family land dismembered from the "Massade or Beacue" Estate lands situate in the Quarter of Gros Islet (Exhibit "FJW3"). He wanted to develop the land but was unable to do so because of the presence of squatters. So he donated the land to his three children including the claimant, Francisca Jules Wattley in order that they carry out the development. In or about 2000, the squatters vacated the land and Mrs. Wattley, armed with a Power of Attorney to represent her other siblings, engaged the services of Mr. Calvin George, a civil engineer and planner to obtain the various planning approvals in order for the development to commence. On 24 th May 2001, the Planning Authority gave full permission to develop 28 acres of land in three phases (Exhibit FJW 8). In the process of raising funds for infra-structural development, Mrs. Wattley became aware of two Notices that were published in the Saint Lucia Gazette on 9 th February and 16 th February 2002 respectively whereby their family land was likely to be acquired by the Government for a public purpose of the construction of a new secondary school.
Mrs. Wattley was very amazed at this move by the Government especially since she had received planning approval to develop the land and had in fact, already sold land to commence the development. So she sought an appointment with the then Minister of Planning, Mr. Walter Francois. The result of the meeting caused the Minister to seek the services of the then Chief Surveyor, Mr. Foche Modeste for alternative sites. She made it known to the Minister that there was the Moise family lands adjacent to hers with similar characteristics which would be equally suitable for a school. She alleged that the Moise family is willing to negotiate with the Government.
In order to address the concerns of Mrs. Wattley, a team comprising Minister Francois, an official from the Ministry of Education and Mr. Modeste made a site visit of the area. The visiting team agreed on an alternative site consisting of 12 acres of land. The land owned by the Moise family was not considered due to the inadequacy of land and the fact that it is bounded by a ravine. A memorandum with respect to the alternative site was submitted to Cabinet for its consideration. By Cabinet Conclusion No. 436 dated 22 nd April 2002, Cabinet reiterated its previous decision to acquire the original site belonging to Mrs. Wattley and her siblings.
By Declaration published in two consecutive issues of the Saint Lucian Gazette on the 5 th and 12 th August 2002, their property was compulsorily acquired for the declared public purpose of the construction of a secondary school.
This did not go down well with Mrs. Wattley. After all, she had planning approval to develop her land. Then again, she had recommended other people's lands in the neighbourhood. So, on 16 th December 2003, she filed a claim for judicial review. On 13 th January 2004, Justice Ola Mae Edwards heard the application for leave to make a claim for judicial review. The learned trial judge refused leave on the basis that Mrs. Wattley failed to establish grounds for leave.
Mrs. Wattley now brought this originating motion against the Attorney General alleging that the compulsory acquisition of her lands by the Government is in breach of her constitutional rights as guaranteed by section 6 (2) (b) of the Saint Lucia Constitution Order 1978. Her challenge is two-fold in nature namely:
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(i) That the procedure for compulsory acquisition was defective and consequently, the acquisition is null and void and of no legal effect.
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(ii) That she had a legitimate expectation that her property would not be acquired as she was already granted planning approval to develop her land.
A good starting point may be to recite section 6 of the Saint Lucia Constitution Order. It protects citizens from the deprivation of property. It states as follows:
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(1) No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except for a public purpose and except where provision is made by a law applicable to that taking of possession or acquisition for the prompt payment of full compensation.
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(2) Every person having an interest in or right over property that is compulsorily taken possession of or whose interest in or right over any property is compulsorily acquired shall have a right of direct access to the High Court for —
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(a) ….
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(b) determining whether that taking of possession or acquisition was duly carried out in accordance with a law authorizing the taking of possession or acquisition."
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Mrs. Wattley claims that the purported compulsory acquisition was not in accordance with section 3 of the Land Acquisition Ordinance Ch. 109, Volume 11 of the Revised Law of Saint Lucia 1957 ("the Ordinance") in that:
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(a) There was a failure to publish the Declaration for acquisition.
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(b) The second publication does not contain any Declaration that would complete the acquisition.
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(c) There was a failure to post the gazetted notice on the property in which Mrs. Wattley has an interest, rendering the acquisition procedurally improper.
Mr. Kenneth Monplaisir QC appearing as Counsel for Mrs. Wattley submitted that in the light of the Privy Council case of Boswell Williams v The Government of the Island of Saint Lucia1, he will abandon grounds (a) and (b).
He however vehemently argued that in accordance with section 3 (2) of the Ordinance, copies of the publication must be posted on the property in which Mrs. Wattley has an interest and the failure to do so rendered the acquisition defective.
Section 3(2) of the Ordinance reads as follows:
"Every declaration shall be published in two ordinary issues of the Gazette and copies thereof shall be posted on one of the buildings (if any) on the land or exhibited at suitable places in the locality in which the land is situate…"
Mrs. Alexander appearing for the Attorney General submitted that this ground ought to fail because the declaration was in fact posted. She argued that Mrs. Wattley in her own affidavit filed on 21 st January 2004 has admitted this fact when she stated at paragraph 23 that "no copies of the publication of the Gazette was posted on the land or exhibited elsewhere in the locality in which the land was situate until 1 st December 2003."
Mrs. Alexander next submitted that Mrs. Wattley should not after the close of her case be allowed to adduce a new and further ground of late posting of the notice to bolster up her case.
I do not think that there is any hard and fast rule as to how a court would treat a tardy submission which is of some significance especially since I am of the opinion that Learned Queen's Counsel meant that there was late posting of the notice instead of no posting.
Mrs. Alexander contended that section 3 (2)(a) does not and cannot:
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(i) assume simultaneous posting of the notice in the Gazette and on the land as it refers to "copies thereof" of the Gazette publication being posted;
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(ii) there is nothing in the Ordinance to assume an immediate posting and that time is of the essence;
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(iii) Section 3 (1) (c) of the Ordinance states that "upon second publication of the declaration in the Gazette as aforesaid, the land shall vest absolutely in the Crown."
She argued further that section 3 (3) anticipates that the acquisition is complete after the second publication, and not after the posting on the property.
I find great force in these submissions although I am not entirely convinced that the posting on the property can be done anytime. The Ordinance is silent on the effective time for posting but in my opinion, it is prudent for the posting to be done simultaneously or within a reasonable time after the publication in the Gazette. But, at the end of the day, the question to be asked is: what was the intention of Parliament when it enacted this legislation? In my opinion, the intention could only have been to alert the world that the property had been acquired for a declared public purpose and for interested parties to come forward and lay their claim to compensation. I do not think that the section contemplates notification for that would have been achieved by virtue of the two notices in the February 2002 Gazette. I may further add that the Declaration on the property seems to be a mere formality and therefore, is not detrimental to the acquisition since that would have already taken place upon the second publication in the Gazette.
In my judgment, the constitutional challenge must fail.
Mrs. Wattley's second ground as...
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