Minister of Housing v New Falmouth Resorts Ltd
| Jurisdiction | Jamaica |
| Judge | Campbell, J.,McIntosh J |
| Judgment Date | 12 February 2014 |
| Neutral Citation | [2014] JMSC CIV 16 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. HCV2012 02767 |
| Date | 12 February 2014 |
[2014] JMSC CIV.16
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. HCV2012 02767
Mrs. Jacqueline Samuels-Brown Q.C. instructed by Hollis & Company for the Claimant
Mrs. Julliet Mair Rose instructed by Riam Esor & Company for the Defendant
Interlocutory injunction to restrain registered owner from evicting unlawful occupants — previous order for damages against occupants not complied with — compulsory acquisition — Housing Act section 4 & section 25 — Land acquisition act section 6 — Jamaica Constitution section 18 — public purposes meaning of — no general interest of the community — True reason for acquisition — claimants conduct.
The Claimant, the Minister of Housing, is a corporation sole, by virtue of Section
of the Housing Act 1969 the Housing Agency of Jamaica falls under the aegis of the Ministry of Housing and acts as its agent and representative in this matter.
The defendant is a limited liability company registered under the laws of Jamaica, its sole owner Mr. James Chisholm is its Chairman and CEO. The defendant is the registered owner of all the parcel of lands forming part of Volume 1389 Folio 427 and Volume 1008 Folio 636, known as Orange Grove, in the Parish of Trelawny.
Some nine acres of the defendant's lands have been occupied by a group of persons who have resisted all efforts of the defendant to remove them from its lands. This group of persons are said to contain some one hundred families who have been in occupation of the defendant land for more than a decade.
On May 18 th , 2012 the claimant filed a Fixed Date Claim Form, seeking declarations and order.
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(i) A declaration that the Minister of Housing is entitled pursuant to Section 6 of the Land Acquisition Act 1947 and Section 25 of the Housing Act to compulsorily acquire part or all of the land known as ‘Orange Grove’ south of Coopers Pen and Burnwood Beach containing nine (9) acres, be the same more or less, and being part of lands registered at Volume 1008 Folio 636 of the Register Book of Titles as more particularly described in the Technical Description dated May 1, 2012 prepared by Mr. Amos, Land Surveyor employed to the Housing Agency of Jamaica Limited.
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(ii) A Declaration that pursuant to Section 15 of the Land Acquisition Act, that the Minister of Housing may direct the Commission of Lands to take possession of part of all the lands known as ‘Orange Grove’ south of Coopers Pen and Burnwood Beach containing nine (9) Acres, be the same more or less and being part of lands registered at Volume 1008 Folio 636 of the Register Book of Titles, as more particularly described in the technical description dated May 1, 2012, prepared by Mr. Mark Amos, Land Surveyor employed to the Housing Agency of Jamaica Limited.
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(iii) By Section 16 of Land Acquisition Act, that the lands known as ‘Orange Grove’ south of Coopers Pen and Burnwood Beach containing nine (9) acres, be the same more or less, and being part of lands registered at Volume 1008 Folio 636 of the Register Book of Titles as more particularly described in the Technical Description dated May 1, 2012 prepared by Mr. Amos, Land Surveyor employed to the Housing Agency of Jamaica Limited now vests with the Commissioner of Lands.
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(iv) An Order that the Respondent New Falmouth Resorts Limited, shall be compensated for the said lands according to the provisions of Section 14 of the Land Acquisition Act.
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(v) An Order that the Respondent, New Falmouth Resorts Limited, be restrained from transferring, parting with and or disposing of its interest in the lands known as ‘Orange Grove’ south of Coopers Pen and Burnwood Beach containing nine (9) acres, be the same more or less, and being part of lands registered at Volume 1008 Folio 636 of the Register Book of Titles as more particularly described in the Technical Description dated May 1, 2012 prepared by Mr. Amos, Land Surveyor employed to the Housing Agency of Jamaica Limited without the written consent of the Minister of Housing or an Order of this Court.
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(vi) An Order that the respondent New Falmouth Resorts Limited be retrained from evicting, harassing, intimidating, molesting and or disturbing in any way any of the current occupants currently on the land known as ‘Orange Grove’ south of Coopers Pen and Burnwood Beach containing nine (9) acres, be the same more or less, and being part of lands registered at Volume 1008 Folio 636 of the Register Book of Titles as more particularly described in the Technical Description dated May 1, 2012 prepared by Mr. Amos, Land Surveyor employed to the Housing Agency of Jamaica Limited without the written consent of the Minister of Housing or an Order of this Honourable Court.
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(vii) And Order that the Respondent, New Falmouth Resorts Limited be restrained from demolishing, removing or altering any of the structures currently on the land known as ‘Orange Grove’ south of Coopers Pen and Burnwood Beach containing nine (9) acres, be the same more or less, and being part of lands registered at Volume 1008 Folio 636 of the Register Book of Titles as more particularly described in the Technical Description dated May 1, 2012 prepared by Mr. Amos, Land Surveyor employed to the Housing Agency of Jamaica Limited without the written consent of the Minister of Housing or an Order of the Court.
The Affidavit of Simone Morris-Rattray in support of the Fixed Date Claim Form states at paragraph 12 – 16;
(12) Over the years the land has been occupied by over a hundred families as informal settlers.
(13) These families have contended that they have occupied the lands for over fifteen years and several even averred that for generations they had established their homes, raised families and built a vibrant community. Many of them work in fishing, craft vending and the hospitality industry in the nearby hotels.
(14) Nearly all the occupants have established permanent concrete structures on the land and have the usual amenities of water and electricity.
(15) Over the years it appears efforts were made to properly organize the residents through a provident society called ‘Coopers Pen Provident Society’ in order to formally acquire the lands. Nothing came of that effort. The registered proprietor has contended that through its principal, James Chisholm, he also made representations and sought to have the residents participate in a scheme to purchase a part of the lands.
(16) That in 2007, the registered proprietor of the lands, New Falmouth Resorts Limited the Respondent herein brought an action to recover possession of the land from these occupants.
Mr. Chisholm in his affidavit dated 4 th June 2012, in opposition to the application for injunctive relief, being sought on behalf of the occupants, complains at paragraph 13;
McIntosh J, Orders
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(13) That for more than a decade I have been appealing to all the government agencies to assist the squatters, including the HAJ since 2002, to no avail. Attached and exhibited hereto marked as ‘JHC 3’ for identification is a copy of some of my various correspondences over the years to anyone or any government entity I believed could help, including the Prime Minister of Jamaica, the Most Honourable Portia Simpson-Miller. This composite exhibit not only demonstrate the tremendous efforts made by New Falmouth Resorts Limited over the years to stop the squatting, but also demonstrate the appeals made to the HAJ and the Minister of Housing to assist the squatters. No one has helped.
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(14) That to date there has been no attempts by the HAJ to assist the squatters in any way that is beneficial to all the parties concerned. It appears that they are active in their attempts to continue to pervert the course of justice, as squatters are now telling everyone that their Member of Parliament is going to take the land from New Falmouth Resorts and let them stay on it.
That in 2007 New Falmouth Resort brought an action to recover possession of the land from persons in unlawful occupation. On 6 th April, 2010 McIntosh J, granted an injunction to New Falmouth Limited restraining the occupants, their servants or agents from doing any further construction whatsoever on the New Falmouth Limited lands at Orange Grove and Florence Hall being lands registered at Volume 1008 Folio 636 and Volume 1389 Folio 427 and Volume 1109 Folio 442 of the Register Book of Titles
Each defendant was ordered to pay $50,000 in damages for trespass, wrongful occupation of the claimant's land and to demolish and remove their illegal structures from the claimant's land. It is unchallenged that the occupants have not paid the sum or demolish or remove the structures as ordered by the court.
That an application was made before the Court on March 8, 2012 for injunctive relief as well as Stay of Execution of judgment in claim HCV01702/2007. On the 20 th April 2012, McIntosh J heard the application and adjourned until May 4, 2012 requesting that either the Honourable Minister or the sworn affiant of the Housing Authority should appear. The learned judge recognized the presence of agents of the Ministry of Housing in court, and copies of his orders were handed to those persons. Neither the Minister nor Mr. Shoucair appeared. McIntosh J refused the Stay of Execution and ordered costs be paid to the claimant. Leave to appeal was granted, no appeal was pursued
The Claimant relied on the learning in American Cynamid Co v Ethicon Office (1975) 1 All 504 and National Commercial Bank Jamaica Limited v Olint Corp, Ltd, {Privy Council Appeal No 61 of 2008} to support the propositions that the real purpose of an interlocutory injunction is primarily to enable the court to do justice after the determination of the merits...
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