Commissioner of Lands v Homeway Foods Ltd and Another

• Jurisdiction: Jamaica
• Judge: Lawrence-Beswick J
• Judgment Date: 31 July 2012
• Neutral Citation: [2012] JMSC CIV 108
• Docket Number: CLAIM NO. 2008 HCV 01887
• Court: Supreme Court (Jamaica)
• Date: 31 July 2012

[2012] JMSC CIV 108

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2008 HCV 01887

In the matter of an award by the Commissioner of Lands under Section 11 of the Land Acquisition Act on 30th day of April 2007

and

In the matter of a reference to the Court Under Section 17 of the Land Acquisition Act by the Commissioner of Lands

and

In the matter of all that parcel of land and premises known as part of Kensingston in the parish of St. Andrew being the lot numbered Fifteen on the plan of Kensington and being all of the land registered at Volume 1353 of the Register Book of Titles in the name of Homeway Foods Limited

Between:

The Commissioner of Lands

Claimant

and

Homeway Foods Limited

1st Defendant

and

Stephanie Muir

2nd Defendant

G. Mitchell instructed by Director of State Proceedings for Claimant

C. Davis for 1 ^st and 2 ^nd Defendants

Compulsory Acquisition of Land — Declared Purpose — Change in Purpose — Reversal of Declaration of Minister-Administrative Orders-Fees and payment to assessors

Lawrence-Beswick J

[1] This matter concerns two applications which have been heard together. One filed May 14, 2012 seeks, inter alia, six declarations, the effect of which would be to reverse the decision of a Minister of Government to compulsorily acquire land and the second filed June 8, 2012 which seeks to strike out that application.

[2] Meanwhile, the assessment of the value of the land which is the subject of the application is now part-heard and the date for the continuation of that assessment awaits the determination of these applications.

Background

[3] The Students' Loan Bureau (SLB) acquired lands at Old Hope Road, St. Andrew, and wished to also acquire the adjoining property at 6 Kensington Crescent, St. Andrew, the subject of these applications.

The registered proprietor of that adjoining property was Homeway Foods Limited (‘Homeway’), a registered company which had its own plans for the use of its land. Ms. Stephanie Muir is a shareholder of Homeway.

[4] The Commissioner of Lands, (the Commissioner), on behalf of the Government of Jamaica, sought to negotiate with Homeway to arrive at a mutually agreed purchase price. Homeway was opposed to being deprived of its land and it was therefore no surprise that no agreement was reached as to a purchase price. Thereafter, the Commissioner commenced the procedure to compulsorily acquire the land and caused a valuation of the property to be done, in accordance with the law governing compulsory acquisitions of land.

[5] Homeway's property was valued for $20 million by the Government's assessor, and the Commissioner awarded that amount to Homeway. Homeway disputed this amount and caused its own valuation to be done. That valuation concluded that the property was worth $40 million and that is the amount Homeway seeks as compensation for the property.

The Court is now in the process of determining the proper compensation to be paid for the land, with the assistance of the Court Appointed Assessors, Ms. Norma Breakenridge and, Mr. Kenneth Allison.

[6] Throughout the process of the assessment of the compensation, the prospect of an agreement between the parties has loomed large. However, the discussions were dependent on various Cabinet/Ministerial discussions and policies and their legal implications. As time passed, the Government changed on more than one occasion, and with that came fundamental changes in policy.

[7] Eventually, it became clear that a resolution outside of court was extremely unlikely and a date was set which would have seen the continuation of the assessment process by the Court. It was at this stage that the Notices of Application mentioned above, were filed.

The Submissions

[8] In her application Ms. Davis, submitted on behalf of Homeway, that the Minister's decision to compulsorily acquire the land ought to be set aside because the declared purpose for which the land was acquired, no longer exists.

[9] She acknowledges that the Minister had the authority to acquire land for a declared purpose and that the original acquisition was in order. However, she argues, now that the purpose no longer exists, the acquisition should be reversed by the Court.

[10] Ms. Mitchell, on behalf of the Commissioner of Lands hinges her argument in opposition to these submissions, on procedural points. She argues that Ms. Davis has approached the court by the wrong procedure and therefore her application should be struck out. She views the application, coming as it does at this stage of the proceedings, as an abuse of the process of the Court.

[11] Ms. Mitchell submits that the true substance of Ms. Davis' application is for an Order of Certiorari because of the nature of the declarations sought. Ms. Mitchell urges the Court to recognize that by filing a Notice of Application for declarations, Ms. Davis has sought to circumvent the requirement for obtaining leave to apply for an Order of Certiorari and all the other procedural requirements. This should be fatal to the application.

The Procedure

[12] I consider first if the procedure adopted is fatal to the reliefs sought.

Part 56 Civil Procedure Rules 2002 (CPR) deals with applications:

• a. for judicial review;

• b…..;

• c. for a declaration…in which a party is the State…or any…public body.

These are regarded as administrative orders.

The main reliefs sought by Homeway are for declarations against the Commissioner of Lands, which is a public body. This appears to place the application under this Rule.

The requirements laid down under the Rules ensure that persons with a sufficient interest in a claim for the State or public body to act in a certain manner are allowed the opportunity to participate in a hearing in an informed manner.

[13] Rule 56.9 CPR provides that an application for an administrative order must be made by a fixed date claim and specifies details of a supporting affidavit.

Rule 56.13 provides that this application would culminate in a first hearing where the judge must give directions that may be required to ensure the expeditious and just trial of the claim. This includes Orders concerning affidavits, disclosure of documents and skeleton arguments.

[14] Rule 56.15 addresses the hearing of an application for an administrative order and allows any person having a sufficient interest in the subject matter of the claim to make submissions whether or not they had been served with a claim form.

The general purpose therefore, of the Rules governing administrative orders, is to make orders to allow for parties directly concerned or having sufficient interest in the claim, to be heard.

[15] In this matter the current application by Homeway concerns compulsory acquisition of Homeway's land by the Commissioner of Lands for the use by the Students Loan Bureau. Counsel for the Crown represents the Commissioner of Lands and Homeway itself is represented. Affidavits have been filed by the parties.

In my view, proceeding by this Notice of Application causes no advantage to be gained or detriment suffered by any parties. I am fortified in my view by Rule 56.7(2) CPR which provides:

‘The court may at any stage direct that the claim is to proceed by way of an application for an administrative order.’

The transition can be readily made, if the submission by Counsel for the Commissioner is correct.

[16] However, at this stage of the proceedings, where all arguments have been completed, it appears to me that any order for additional documents to be now filed and served, would be an exercise only increasing costs.

My conclusion therefore is that the applications by Homeway are indeed applications for administrative orders framed as an Application for Court Order and that the application can nonetheless properly proceed in the circumstances of this case.

Substantive issues

[17] (a) Acquisition

Can the compulsory acquisition be reversed? The method by which land is to be compulsorily acquired is stated in the Land Acquisition Act (LAA). It involves the, publication of a declaration and then payment for the land.

Section 5 of the LAA empowers the Minister to declare land as being needed for a public purpose. It provides:

5(1) Whenever it appears to the Minister that any particular land is needed for a public purpose a declaration shall be made to that effect under his signature.

[18] Thereafter, the declaration is published in the Gazette stating the details of the land and of the purpose1 and is conclusive evidence that the land is needed for a public purpose.2

The Minister then directs the Commissioner of Lands to acquire the land3 and he in turn causes the land to be valued and then negotiates for the purchase.4

[19] The land must be surveyed if it had not already been surveyed and the Commissioner's negotiations for the purchase of the land are by private treaty.5 However, if there is no agreement by private treaty for the purchase within a reasonable time, the Commissioner shall cause notices to be posted stating that claims for compensation may be made to him.6

Any such interested persons must attend personally or by agent before the Commissioner and state, inter alia, their claims to compensation.7

[20] Where there is a settlement, that award is filed in the Commissioner's office. However, where there is a dispute as to the compensation, the Commissioner may refer the dispute for the decision of the court.8

In this matter, the Commissioner took all the required steps to agree on compensation for the land and when there was no agreement for compensation, she referred the matter to this Court to determine the amount of compensation.

(b) Taking Possession

[21] The Act allows the Commissioner to take possession of any land needed for a public purpose at any time after the notices inviting claims from interested parties have been posted.9

The land...