Commissioner of Lands v Homeway Foods Ltd and Another

• Jurisdiction: Jamaica
• Judge: Dukharan JA,McDonald-Bishop JA,Sinclair-Haynes JA
• Judgment Date: 29 April 2016
• Neutral Citation: JM 2016 CA 37,[2016] JMCA Civ 21
• Docket Number: CIVIL APPEAL NO 135/2012 APPLICATION NOS 111 AND 112/2015
• Court: Court of Appeal (Jamaica)
• Date: 29 April 2016

[2016] JMCA Civ 21

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT

Before:

The Hon Mr Justice Dukharan JA

The Hon Mrs Justice McDonald-Bishop JA (AG)

The Hon Mrs Justice Sinclair-Haynes JA (AG)

CIVIL APPEAL NO 135/2012

APPLICATION NOS 111 AND 112/2015

Between:

The Commissioner of Lands

Appellant

and

Homeway Foods Limited

1st Respondent

and

Stephanie Muir

2nd Respondent

Mrs Nicole Foster-Pusey , QC, Solicitor General and Miss Carla Thomas instructed by the Director of State Proceedings for the appellant

Miss Carol Davis for the respondents

Dukharan JA

1 I have read, in draft, the comprehensive judgment of my learned sister, McDonald-Bishop JA (Ag). I agree with her reasoning, conclusion and the orders that she has proposed and I have nothing useful to add.

McDonald-Bishop JA (AG)

Introduction

2 The question for determination in these proceedings is an important procedural one, albeit, perhaps, not a novel one. It concerns the approach that this court should take in treating with an appellant's non-compliance with the rules and orders of the court by the second date fixed for the hearing of the appeal.

3 These proceedings concern two applications that have their genesis in an appeal brought by the Commissioner of Lands, the appellant, against the judgment of Lawrence-Beswick J delivered on 31 July 2012 in favour of the respondents, Homeway Foods Limited (the 1 ^st respondent) and Ms Stephanie Muir (the 2 ^nd respondent). The substantive appeal was fixed for hearing, for the second time, before this court during the week commencing 15 June 2015.

4 The first application (No 111/2015) was brought by the respondents as a preliminary objection to the hearing of the appeal and for an order that the appeal be struck out due to the failure of the appellant to comply with the case management orders made on 8 July 2014 by Dukharan JA, sitting as a single judge in chambers. Those orders were in relation to the filing of skeleton arguments with list of authorities and a supplementary record of appeal containing the skeleton arguments with list of authorities. This application was filed and served by the respondents on 10 June 2015.

5 The second application (No 112/2015) is that of the appellant for extension of time to comply with the case management orders relating to the filing of skeleton arguments with list of authorities and for variation of the case management order requiring the filing of the ‘supplemental’ record of appeal. This application was filed on 12 June 2015, one working day before the date that the substantive appeal was scheduled for hearing for the second time.

6 The hearing of both applications was consolidated, but although the application of the respondents taking objection to the hearing of the appeal and for the striking out of the appeal predated the appellant's application for extension of time and was heard first during the course of the hearing, for practical reasons, the application for extension of time is considered first. The outcome of that application is determinative of whether the respondents' application for striking out succeeds or fails.

The factual background

7 On 9 March 2006, pursuant to section 5(1) of the Land Acquisition Act (the Act), the Minister of Land and Environment (the Minister) declared, by the requisite statutory notice published in the Gazette , that land located at 6 Kensington Crescent, Kingston 5, in the parish of Saint Andrew and registered in the name of the 1 ^st respondent was needed for a public purpose. The purpose was for the provision of offices for the Students' Loan Bureau (the SLB). The 2 ^nd respondent is a director of the 1 ^st respondent and at the time of the declaration was reportedly in the process of acquiring the shares of the 1 ^st respondent. She indicated her interest in the property by letter to the appellant, dated 12 April 2006.

8 The appellant was subsequently directed by the Minister to take steps for the acquisition of the land and to enter into negotiations to acquire the land by private treaty. The appellant entered into discussions with the respondents for the acquisition of the land by private treaty but those negotiations failed.

9 On or around May 2007, the land was vested in the appellant and the necessary endorsement was made on the certificate of title by the Registrar of Titles.

10 An enquiry was held in accordance with section 11 of the Act to determine the award to be made by way of compensation. On 30 April 2007, pursuant to the Act, an award for compensation in the sum of $20,000,000.00 was made to the 1 ^st respondent. The compensation was made payable to the 1 ^st respondent only, as the 2 ^nd respondent had not yet registered her equitable interest in the land. The award was rejected and, by letter dated 18 May 2007, addressed to the appellant, the respondents requested that the matter be referred to the Supreme Court for an appropriate compensation to be determined pursuant to section 17 of the Act. The ground for the rejection and the request for the referral was that the amount offered as compensation was inadequate.

11 On 17 April 2008, the appellant, by way of a fixed date claim form, referred the matter to the Supreme Court, for a determination of the compensation that should be awarded.

Proceedings in the Supreme Court

12 The respondents filed their defence and counter-claim in response to the appellant's claim, in which they basically restated their position that the award of compensation was inadequate. They averred, inter alia , that the award should have been based on the market value of the land, which, in their view, stood at the time at $40,000,000.00 and also that they had suffered other losses as a result of the compulsory acquisition for which they should be compensated. They counter-claimed for compensation for the market value of the land and for the losses allegedly suffered.

13 After several adjournments, the assessment of the award commenced before Lawrence-Beswick J, sitting with two agreed assessors in accordance with the Act. While the assessment was being heard, the respondents, on 14 May 2012, filed an application for court orders in which they sought several declarations, which, for the sake of convenience, have been summarised, as follows:

• 1. The declaration of the Minister made on 9 March 2006, declaring the land likely to be needed for a public purpose, be set aside.

• 2. All proceedings for the acquisition of the land and the notice vesting the land in the appellant be set aside by reason of the abandonment of the public purpose, namely for the offices of the SLB.

• 3. The miscellaneous entry endorsed on the certificate of title for the land be removed.

• 4. The 1 ^st respondent is entitled to resume possession of the said land.

• 5. That the respondents are entitled to compensation for the wrongful occupation of the land by the appellant, from the date of entry into possession to date hereof.

14 The respondents also sought orders for costs of the proceedings, costs thrown away and costs for the attendance of the assessors to be paid by the appellant.

15 The fundamental ground for this application was that the appellant had abandoned the purpose for which the land was acquired. In support of this averment, the respondents exhibited a newspaper article published in The Daily Gleaner on 9 March 2012, which stated that the SLB had sold its lands in Kensington and had bought land in Downtown Kingston, where it intended to put its offices.

16 The appellant, in response, filed an application to strike out the respondents' application, alleging that it was an abuse of the process of the court. One of the grounds relied on by the appellant was that the respondents had commenced a claim for declaratory judgment by way of notice for application for court orders and not by a fixed date claim form, which was in contravention of Part 8 of the Civil Procedure Rules, 2002 (CPR). The appellant also contended, among other things, that the respondents had circumvented the judicial review process, which is the appropriate way to have the Minister's order set aside.

17 Lawrence-Beswick J, being faced with the two applications from the parties, decided that the applications should be heard and so she discharged the assessors from the assessment hearing for an unspecified date. She proceeded to hear both applications together. At the determination of the hearing, she granted orders in these terms:

• “1. That the declaration of the Minister on March 9, 2006 declaring land registered at Volume 1353 Folio 971 likely to be needed for public purpose that is to construct offices of the Students' Loan Bureau be set aside.

• 2. That all proceedings for the acquisition of the said land be set aside.

• 3. That the Miscellaneous Entry #1534398 endorsed on May 1, 2008 on title of land registered at Volume 1353 Folio 971 be removed by the Registrar of Titles.

• 4. [The 1 ^st respondent] is entitled to resume possession of the said land on or before August 3, 2012.

• 5. [The 1 ^st respondent] is entitled to compensation for mense [sic] profits from the date it relinquished possession until the date of recovery of possession. If not agreed within 60 days of this Order, these mesne profits are to be assessed by the Registrar of the Supreme Court.

• 6. The declarations sought by Fixed date claim form dated April 17, 2008 in the substantive matter are refused.

• 7. Costs of these proceedings and costs thrown away are awarded to [the 1 ^st respondent] and [the 2 ^ndrespondent] as against [the appellant], to be agreed or taxed. The costs thrown away include the fees to be paid to the Assessors in the substantive matter. Strong recommendation that additional ex gratia payment be made to the Assessors.’

Proceedings on appeal: the background to the applications

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