The Commissioner of Lands v Ferryland Holdings Ltd

• Jurisdiction: Jamaica
• Judge: Kissock Laing J,Mr Clinton Cunningham,Mr Mervyn Down
• Judgment Date: 10 July 2020
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2016 HCV 01087 CLAIM NO. 2016 HCV 01089 CLAIM NO. 2016 HCV 01090
• Date: 10 July 2020

[2020] JMSC Civ 151

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

Coram:

Kissock Laing J (Presiding)

Mr Clinton Cunningham Assessor

Mr Mervyn Down Assessor

CLAIM NO. 2016 HCV 01087

CLAIM NO. 2016 HCV 01088

CLAIM NO. 2016 HCV 01089

CLAIM NO. 2016 HCV 01090

In the Matter of an award made on the 13 ^th August 2015 by the Commissioner of Lands under section 11 of Land Acquisition Act

and

In the Matter of a reference to the Supreme Court by Commissioner of Lands Under section 17 of the Land Acquisition Act

and

In the Matter of all that parcel of land part of Lot 1 Caymanas Estate in the parish of Saint Catherine being part of lands comprised in Certificate of Title registered at Volume 1448 Folio 200 of the Register Book of Title and being owned by Ferryland Holdings Limited

Between

The Commissioner of Lands

Claimant

and

Ferryland Holdings Limited

Defendant

Consolidated with:

In the Matter of an award made on the 13 ^th day of August 2015 by the Commissioner of Lands under section 11 of Land Acquisition Act

and

In the Matter of a reference to the Supreme Court by Commissioner of Lands Under section 17 of the Land Acquisition Act

and

In the Matter of all that parcel of land part of Lot 3 Caymanas Estate in the parish of Saint Catherine being part of lands comprised in Certificate of Title registered at Volume 1448 Folio 202 of the Register Book of Title and being owned by Caymanas Holdings Incorporated

Between

The Commissioner of Lands

Claimant

and

Caymanas Holdings Incorporated

Defendant

Consolidated with

In the Matter of an award made on the 7 ^th day of September 2015 by the Commissioner of Lands under section 11 of Land Acquisition Act

and

In the Matter of a reference to the Supreme Court by Commissioner of Lands Under section 17 of the Land Acquisition Act

and

In the Matter of all that parcel of land part of Lot 2 Caymanas Estate in the parish of Saint Catherine being part of lands comprised in Certificate of Title registered at Volume 1448 Folio 201 of the Register Book of Title and being owned by Geomac Holdings Limited

Between

The Commissioner of Lands

Claimant

and

Geomac Holdings Limited

Defendant

Consolidated with

In the Matter of an award made on the 13 ^th day of August 2014 by the Commissioner of Lands under section 11 of Land Acquisition Act

and

In the Matter of a reference to the Supreme Court by Commissioner of Lands Under section 17 of the Land Acquisition Act

and

In the Matter of all that parcel of land part of Lot 5 Caymanas Estate in the parish of Saint Catherine being part of lands comprised in Certificate of Title registered at Volume 1445 Folio 804 of the Register Book of Title and being owned by Caymanas Estate Limited

Between

The Commissioner of Lands

Claimant

and

Caymanas Estate Limited

Defendant

Ms Althea Jarrett and Ms Donna Dodd instructed by the Director of State Proceedings for the Claimant

Mr Michael Hylton QC, Ms Melissa McLeod and Mr Kent Gammon instructed by Hylton Powell, Attorneys-at-Law for the 1 ^st and 2 ^nd Defendants

Mr Michael Hylton QC, Ms Melissa McLeod and Mr Yakum Fitz-Henley instructed by Hylton Powell, Attorneys-at-Law for the 3 ^rd and 4 ^th Defendants

Compulsory land acquisition — Compensation awards — Payment of assessors — Land valuation — Reference by the Commissioner of Lands — Land Acquisition Act

INTRODUCTION

1 The Government of Jamaica, by way of notifications and declarations published in the Jamaica Gazette, indicated that various registered parcels of land or portions thereof, situated in the parish of Saint Catherine were for a public purpose, namely the construction of Highway 2000 Phase 2A (referred to herein together as “the Properties”). In pursuance of the acquisition of the Properties, the Commissioner of Lands (“the Commissioner”) entered into negotiations with the Defendants to acquire the Properties by way of private treaty agreements. Those negotiations were unfruitful. There having been no agreement for the state to acquire the Properties by private treaty, the Commissioner caused a notice to be published inviting the Defendants to make claims for compensation. Following this process, an enquiry was held by the Commissioner and subsequent to this, the Commissioner made an award to the each of the Defendants which was rejected on several bases. The Defendants requested that the matter be referred to the Supreme Court for compensation to be determined by the Court. This award and reasons therefor, is as a result of the hearing held pursuant to the reference by the Commissioner under section 17 of the Land Acquisition Act, by four Fixed Date Claim Forms filed on the 11 ^th March, 2016.

2 The Claimant in each claim, the Commissioner, is a corporation sole established and existing under and by virtue of the Crown Property (Vesting) Act.

3 The Defendants in the respective claims are the registered proprietors of the Properties which have been acquired by the state. The “area of take” to which reference is made hereunder, relates to the actual area of the land which has been acquired.

4 The Court is empowered to hear these claims by virtue of section 17(1) of the Land Acquisition Act (hereinafter called “the Act”) where it stipulates that:

“any person interested who is dissatisfied with any award may, by written application to the Commissioner, require that the matter be referred by the Commissioner for the determination of the Court, whether his objection be to the survey, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested”

THE CLAIMS

5 The Claims before the Court are as follows:

• (1) Claim 2016 HCV 01087: The Commissioner of Lands v Ferryland Holdings Limited. This claim concerns all that parcel of land part of Lot 1 Caymanas Estate, St Catherine. The land has a total area of 3,8909 hectares by survey however, the area of take is 1.1885 hectares / 2.9368 acres (“Lot 1”). On the 13 ^th of August 2015, the Commissioner made an award pursuant to section 11 of the Act in the amount of $26, 700,000.00.

• (2) Claim 2016 HCV 01089: The Commissioner of Lands v Geomac Holdings Limited. This claim concerns all that parcel of land part of Lot 2 Caymanas Estates, St Catherine. The land has a total area of 2.0719 hectares/5.12 acres (“Lot 2”) the entirety of which comprises the area of take. On the 7 ^th September, 2015 the Commissioner made an award pursuant to section 11 of the Act in the amount of $41, 000,000.00.

• (3) Claim 2016 HCV 01088: The Commissioner of Lands v Caymanas Holdings Incorporated. This claim concerns all that parcel of land part of Lot 3 Caymanas Estates, St Catherine. The land has a total area of 2.1764 hectares or 5.378 acres by survey and the area of take comprises that entire portion of land (“Lot 3”). On the 13 ^th August, 2015 the Commissioner made an award pursuant to section 11 of the Act in the amount of $40, 000,000.00.

• (4) Claim 2016 HCV 01090: The Commissioner of Lands v Caymanas Estate Limited. This claim concerns all that parcel of land part of Lot 5, Caymanas Estates, St Catherine. The land has a total area of 102.3364 hectares and the area of take is 5.4521 hectares (“Lot 5”). On the 13 ^th August, 2015 the Commissioner made an award pursuant to section 11 of the Act in the amount of $100,300,000.00.

6 Upon the claims coming for first hearing on the Fixed Date Claim Form on 25 ^th November, 2016 before His Lordship Mr Justice David Fraser, all the four claims were ordered to be heard together.

7 By way of Ex-parte Notice of Application for Court Orders filed on the 24 ^th of October, 2017, and 14 ^th September, 2017 in relation to Claim No 2016 HCV 01088 and 2016 HCV 01089 2016 respectively, the Commissioner applied for an order for payment of money under protest, which was granted.

8 By way of Notice of Application for Court Orders filed on 28 ^th November, 2017 the Defendants in the Claim No HCV 01088 and Claim No HCV 01089 applied to the Court for an order to receive payment under protest which was also granted.

9 Because of the similarity of the issues in the claims, in an effort to prevent unnecessary repetition, Counsel have in their conduct of the hearing, quite helpfully, addressed the evidence common to all claims without reference to any particular claim save where this was absolutely necessary. I will adopt the same approach in my analysis of the issues.

THE PROCESS OF ACQUIRING LAND UNDER THE LAND ACQUISITION ACT

10 The law that governs the acquisition of land can be found in the Act which outlines the specific procedure that is to be followed by the Government of Jamaica in acquiring land.

11 Pursuant to section 3 of the Act, there must be a publication of a notification in the Gazette whenever it appears to the Minister that land in any locality is likely to be needed for any public purpose. After which, the Commissioner must cause a public notice of the substance of such notification to be disseminated at convenient points in the locality of the land.

12 Pursuant to section 5 of the Act, the Minister must make a declaration in the Gazette if the purpose of the acquisition of the property is for public purpose. Whenever any land is declared to be taken for public purpose, the Minister shall direct the Commissioner to take proceedings or the acquisition of land. The Commissioner is required to cause the land to be surveyed and valued and negotiate the purchase of the land by a private treaty under section 8 of the Act. Where there is a failure to acquire the land by a private treaty section 9 is invoked. This section provides that the Commissioner is then required to post notices at convenient points on or near the land to be acquired. Also, the section requires that notice must be served on any occupier of the land, as well as any person who is known or believed to have interest in the property. Notices under this...