Blakes Estates Ltd Appellant v The Government of Montserrat Respondent [ECSC]

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: GEORGES, J.A. [AG.],Justice of Appeal [Ag.],Chief Justice,Ephraim Georges,Sir Dennis Byron,Albert Redhead,Justice of Appeal
• Judgment Date: 31 March 2003
• Judgment citation (vLex): [2003] ECSC J0331-6
• Docket Number: CIVIL APPEAL NOS.2 AND 3 OF 2000
• Date: 31 March 2003

Between:

Blakes Estates Limited

Appellant

and

The Government of Montserrat

Respondent

[2003] ECSC J0331-6

Before:

The Hon. Sir Dennis Byron Chief Justice

The Hon. Mr. Albert Redhead Justice of Appeal

The Hon. Mr. Ephraim Georges Justice of Appeal [Ag.]

CIVIL APPEAL NOS.2 AND 3 OF 2000

IN THE COURT OF APPEAL

Appearances:

Mr. Elliot D. Mottley Q.C. [of the Barbados Bar] with Mr. George Kirnon for the Appellant

Mr. Martin Edwards [of the English Bar] for the Respondent

GEORGES, J.A. [AG.]

1 This consolidated appeal relates to the amount payable for the compulsory acquisition of certain lands in the Parish of St John by the Government of Montserrat which were formerly owned by the Appellant. Two separate acquisitions were made. The relevant date in respect of the first acquisition is 24^th December 1997 and relates to an area comprising 92.4 acres called Lookout One. The second acquisition in respect of Lookout Two which consists of 102.4 acres occurred on 30^th December 1998.

2 The appeal is against an award of compensation in the sum of $5,908,100.in respect of both acquisitions with interest at the rate of 5% per annum from therespective dates of acquisition to date of payment. The award in respect of Lookout One is $3,846,700 and in respect of Lookout Two $2,059,400 making a grand total of $5,906,100 to which was added a further $2,000 for injurious affection. The Appellant was awarded 65% of its costs.

3 The award was made by the majority of a Board of Assessment appointed under the Land Acquisition Act Chapter 231 of the Laws of Montserrat [the Ordinance] comprising Mr. Justice Adrian Saunders Chairman Mr. Fred Campbell [the Appellant's nominee [and Mr. Rex McKay SC [the Respondent's nominee].

4 The original claim made by the Appellants for Lookout One was $19,471,320 for the land and $13,068,000 for disturbance to the adjacent land —Lookout Two. Subsequent to the claim for Lookout One Government acquired Lookout Two whereupon the Appellant revised its claims in respect of Lookout One to $14,850,000 and requested $15,300,000 for Lookout Two. The [Respondent] Government in turn made a formal offer of $3,300,000 for Lookout One and $1.5 million for Lookout Two pursuant to section 13 of the Ordinance.

5 Section 19 of the Ordinance stipulates that the land should be valued on the basis of its market value twelve months prior to the date when the land vested in the Crown. Before the proceedings began however, the Respondent conceded that it was content for the purposes of the assessment to assess the value of both locations by reference to the relevant dates of acquisition instead of one year earlier both sides agreeing that the value would be the same at either date. The parties further agreed to consolidate the assessments for compensation at a single hearing in respect of the two acquisitions.

6 Before turning to the issues in this appeal it is I think apt to give by way of background a brief description of the lands acquired and the reason for their acquisition. For this will in turn assist in judging how fairly the Board discharged itsfunction of assessing, awarding and apportioning compensation in accordance with the provisions of the Ordinance.

7 In its Award dated 7^th November 2000 the majority [Justice Saunders and Mr. Rex McKay SC] describe Lookout itself as "undoubtedly a place of breathtaking beauty." The land, located at the northeastern part of Montserrat afford a sweeping view of the Caribbean Sea and the outlines of Antigua. Cool and refreshing breezes constantly pass over the sites.

8 Mr. Martin Van Oppen a Valuation expert following an inspection in August 1997 described Lookout One thus:

",,,,,,,,,the site comprised an area of rough undulating grazing land with steeper scrub-covered slopes. Cat and Brimms ghauts form natural boundaries to the south-east and northern sides of the site. The soil appeared thin and was part-covered with scrub trees bare rock and strewn with boulders. There were signs of the presence of goats but (apart from some cattle referred to below) no other agricultural or forestry activity appeared to have been carried out on the site for many years. A small herd of cattle which I was given to understand had recently been evacuated from the volcanic danger zone in the south were grazing the site and at the time of inspection a post and barbed wire fence was being erected to contain them. There were no services within the site. Water and electricity was available at the road running alongside the extreme southern boundary and a connection had been made to the newly acquired school site. Apart from a rough tract to the school site, there were no internal roads or tracks suitable for vehicular use."

9 And his description of Lockout Two after an inspection in November 1998 reads:

"Lookout Two is located to the north-east of and contiguous to the Lookout One site. This parcel of land comprises an area of 102.47 acres or thereabouts. When inspected in November 1998 it was noted that this site comprised a somewhat similar terrain to that of the Lookout One site excepting that the land falls away gently to the ocean with a cliff forming its natural coastal boundary. Cat and Brimms ghauts form natural boundaries to the south-east and northern side of the site. This site contains a larger percentage of steep land than Lookout One. Access was via a recently constructed road put in by the acquiring body to service the Lookout One development. But for the acquiring body's adjacent development, this site must be considered somewhat remote from the main centres of population."

10 Following the eruption of the Soufriere volcano in July 1995 the capital city Plymouth was completely devastated and smothered with volcanic ash. Approximately two thirds of the southern half of the island including the airport was rendered unsafe. Thousands were forced to flee their homes and abandon their possessions. Several hundreds emigrated to other lands. Those who remained had to be relocated resettled and rehabilitated in the safer north of the island. The task ahead was formidable and no doubt daunting. It is against that background that the Government of Montserrat embarked on its policy of land acquisition to implement its reconstruction and developmental programme for Montserrations who remained. Some of the Lookout lands by virtue of their location/configuration distinctly afforded that possibility.

11 No fewer than twelve grounds of appeal were filed by the Appellant in its amended notice of appeal dated 19^th March 2002 against the Board's award of compensation. Some are subsumed by others and can conveniently be dealt with together. The Respondent Government in a separate appeal [Civil Appeal No 3 of 2000] dated 19^th December 2000 lodged three grounds of appeal in what in effect is a "cross appeal" which was consolidated with the main appeal [Civil Appeal No 2 of 2000] by order of the Court dated 12^th October 2001.

12 The fundamental question in my view which falls to be determined in this appeal is whether the basic rules which govern the assessment and award of compensation for the compulsory acquisition of land in Montserrat were followed by the Board. A subsidiary issue is whether the Appellant is entitled to compensation for disturbance [injurious affection] as a result of the compulsory acquisition.

13 Section 19(a) of the Ordinance provides that:

"Subject to the provisions of this Ordinance, the following rules shall apply to the assessment and award of compensation by a Board for the compulsory acquisition of land —

"(a) the value of the land shall, subject as hereinafter provided, be taken to be the amount which the land, if sold in the open market by a willing seller, might have been expected to have realized at a date twelve months prior to the date of the second publication in the Gazette of the declaration under section 3."

14 For Lookout One that date would normally have been 24^th December 1996 and in the case of Lookout Two 30^th December 1997. However by letter dated 21^st July 1999 the Attorney General proposed that the lands should be assessed as at the date of acquisition [as vesting in the Crown] of each property and this was agreed to by the Appellant by letter dated 6^th October 1999. The operative dates would therefore by 24^th December 1997 and 30^th December 1998 instead of twelve months prior.

15 Ground 1 of the appeal stems from this and alleges that the Board erred in law misconstruing its statutory function when it decided to value the land by reference to a date different from the date in which the property vested in the Crown.

16 There clearly is something wrong with the wording of that ground since the Board did value the lands as at the dates on which the properties vested in the Crown i.e. at the date of the second publication of the declaration in the Gazette in each case. The trust of learned Queen's Counsel's argument was that the Board erred in law in construing its statutory function when it decided to value the land by reference to the date on which the property vested in the Crown.

17 Mr. Mottley contended that it was well established that as a creature of statute the Board was obliged by law to act within the four of the authority/power conferred on it by Parliament and that section 19 of the Ordinance specifically enjoined the Board to apply a fixed standard for the determination of compensation that standard being "the value of the land … if sold in the open market by a willing seller at a date twelve months prior to the date of the second publication … under section 3."

18 The relevant period for valuation purposes Mr. Mottley declared was therefore the date twelve months prior to the date when the lands vested in the Crown and not the vesting date as had in fact occurred.

19 In support of that argument reference was made to the Privy Council decision inWindward...