Compulsory acquisition of land by the government for a
public purpose is an ancient public right. In common law countries its legal
basis lies shrouded in the feudal concept of the ultimate right of ownership of
all land by the Crown. When William Duke of Normandy defeated King Harold in
1066 he acquired all the land of England by right of conquest. He parceled it
out to his noblemen, and he could take it back when they displeased him. He did
not even need the excuse of a public purpose. Though the feudal system
disintegrated over the succeeding one thousand years, the theory that the
government could in certain circumstances take away the ownership of private
land remained.
In the United States it is called the
right of “eminent domain”. In the UK it is more accurately referred to as
“compulsory purchase”. In Canada it is with brutal clarity named “expropriation”.
In the West Indies we more politely label it “compulsory acquisition”.
The overreaching law in each of our
Leeward Islands is the Constitution.
This incorporates the Bill of Rights, or the fundamental rights
provisions. Typically, the ownership of private property is protected by one of
the fundamental rights sections of the Constitution. This section provides in
summary that no right over any property of any description shall be
compulsorily acquired by government except under a law which prescribes how
compensation is to be paid and which requires the prompt payment of such
compensation.
Over the years a large body of law has
built up as the courts of the West Indies have dealt with complaints against
confiscatory acts of governments. So, compulsory membership in a sugar workers'
union with the employer being obliged to deduct union dues has been held
offensive to this section. Deductions from a civil servant's monthly salary in
order to compulsorily refund what the government deemed an overpayment has been
declared unlawful. And, then there have been the hundreds of land acquisition
cases.
Confiscation, expropriation or
acquisition of land in the West Indies is governed by the law that is now
generally known as the Land Acquisition Act. It is a law that, like so
much of our statute law and common law, we inherited from the British. Its
modern form goes back to the Land Clauses Consolidation Act of 1845 and
the succeeding British Acts of Parliament. The requirement for immediate cash payment
on expropriation of land is an ancient one. It dates back to Chapter 28 of the Magna
Carta of 1297. This Act still remains on the statute books of England and
Wales, though in our countries it has been replaced by the Bill of Rights
provisions of our Constitutions.
The Land Acquisition Act of St
Kitts-Nevis and Anguilla, with which I am more familiar, was enacted in 1958.
It provides for the familiar English structure of a Judge or senior barrister
appointed by the Governor to chair a three-person Board of Assessment. The
other two members are appointed by the Governor one on the recommendation of
the government and the other of the person aggrieved. The parties lead
evidence, including their respective valuations, and the Board gives a determination
as to the amount of compensation that it deems to be fair. There is a right of
appeal, where the Chairman is a judge, to the Court of Appeal, and then to the
Privy Council in London. Where the Chairman is a Barrister, appeal typically
lies to the High Court, then to the Court of Appeal, and then to the Privy
Council.
There can be delays
in securing compensation. These delays can occur all along the process. Some
are the fault of a dilatory claimant, others are the fault of an impecunious
government, and yet others are the fault of the system. If anybody knows of a
swift way to extract money from government, please let us all know.
Immediately a compulsory acquisition
occurs, negotiations for compensation between the government and the land owners
begin, if they have not begun already.
The negotiations may be stopped by the claimant filing an interlocutory
application challenging some part of the acquisition. It may be alleged that
government acted in bad faith. Or, it may be claimed that the acquisition is
not needed for a public purpose. Such an application has the effect of stalling
the assessment process. No negotiations can proceed in good faith between
government and the claimant when the claimant has one or more interlocutory
applications challenging the basis of the acquisition pending before the court.
The court does not always have the power to force the interlocutory
applications to a conclusion. Sometimes, these interlocutory applications have
gone to the High Court, the Court of Appeal, and then to the Privy Council.
Years may pass before the Governor is permitted to appoint the Board of
Assessment and for the Board to begin sitting.
Once there are no court filings blocking
the commencement of negotiations, these can begin. More delay can occur at this
stage. It is not unusual for government and the claimants to spend years
negotiating back and forth before one of them gets frustrated and applies to
the Governor to appoint a Board of Assessment to get on with it. I have known claimants
to engage in years of negotiations with government before everyone gives up and
agrees to the appointment of a Board of Assessment to deal with the issues.
Once established, some Boards of
Assessment move swiftly to a conclusion, others take years to get anywhere. The
causes of delay at the level of the Board are without limit. The Chairman may
be dilatory in fixing hearings. The assessor appointed by the claimant or the
government may be elderly and become unavailable for sittings. One assessor may
be resident out of the State or Territory and travel may pose problems. The
parties may ask for adjournments to secure better valuation evidence. Some
Boards of Assessment conclude their hearings in a year, others take a decade or
more. Needless to say, if it is the claimant who is dithering, government is
not to be expected to agitate to bring closer the date when it will have to pay
the necessary compensation. If it is the Chairman or the government assessor
who is dithering, a good lawyer can take steps to bring the dithering to an
end.
Once an award is made, either of the
parties may appeal to the High Court, the Court of Appeal and up to the Privy
Council. These appeals may take years to be concluded. In the end a binding
award for a particular amount of compensation to be paid is made. It is not
appropriate for government to make payments of compensation once an appeal is
pending. If the award of the Board of Assessment were to be overturned by the
court after government had started paying out on the award, government would be
faced with the accusation that it had made unauthorised payments out of public
funds.
Assuming there is no challenge to the
amount of the award, government is expected by the Constitution and by the
relevant Act to make full and prompt compensation to the claimant. This does
not always happen, especially when the claims on public funds are many but the
sources of funding are limited. Over the years, governments have tried a number
of devices to get out of paying full and prompt compensation. Twenty-year bonds
were offered in one case. It is now accepted that the only form of compensation
that is expected is payment in cash. The question arises, how is this accepted
view to be enforced when it does not translate into the expected cold, hard
cash.
For many years, it was thought[1]
that West Indian courts, like the courts in England, were prohibited from
making mandatory injunctions for payment of compensation by the Crown
punishable with imprisonment. The theory was that a Minister of Government
represented the Queen, and the Queen and her representatives could not be
imprisoned by her own courts. Such feudal remnants of our compulsory
acquisition law were put to rest by the judgment of the Privy Council in the Jennifer
Gairy case[2].
It is now clear[3] that in the
West Indies an award of an amount of compensation can be enforced by an order
for the imprisonment of the most recalcitrant Minister of Finance who fails to
pay the assessed amount of compensation out of the public treasury.
APPENDIX: The Jennifer Gairy
Case
All those of you with an interest in the
West Indies will all remember Erick Gairy, the eccentric Prime Minister of
Grenada. He had been overthrown by the Marxist government of Maurice Bishop in
1979, while he was attending the United Nations General Assembly addressing the
assembled dignitaries on the importance of the UFO[4]
phenomenon. The Bishop government passed a People's Law confiscating what it
deemed to be Gairy's ill-gotten assets. A few years later, in 1983, the bombing
of the US marine base in Lebanon took place at the same time as the murder of
Bishop and his followers by a more extreme faction of the Marxist government of
Grenada. The risk posed to US medical students gave President Reagan the excuse
he needed not to send more US troops into that violent morass that was Lebanese
politics, and Operation Urgent Fury brought an end to the Marxist government of
Grenada.
By then Eric Gairy had died. His
daughter Jennifer was the Administrator of his Estate. She brought an action
before the High Court in Grenada for the return of the properties that the
previous Marxist Government had expropriated and for compensation for their
unlawful confiscation. The government did not oppose her claim and an order was
made for their return and for an assessment to be made of the amount of
compensation. The properties were returned and an award of compensation was
duly made by the court-appointed arbitrator. The parties returned to court and
a judgment in excess of EC$3.5 million with interest at the rate of 6% was
entered. The Judge's final order, made with the consent of the Grenadian
Solicitor General, was that the Minister of Finance be directed to issue a
warrant for the prompt payment out of the consolidated fund of the amounts of
compensation.
That was when the delay began. The
Grenadian Attorney-General appealed against this consent order. His ground was
that the order was contrary to law because the Minister of Finance could not be
directed as he had been. The point was not fully argued since the appellant
conceded that the mandatory order should not have been made. The parties agreed
to amend the order merely to require prompt payment of the amounts due. Three
years later, most of the compensation not having been paid, Jennifer Gairy
issued a contempt motion in the proceedings. The court issued an order of
Mandamus compelling the Minister to make prompt payment of the balance. After a
series of hearings the Prime Minister and Minister of Finance swore and filed
an affidavit in the proceedings deposing that the Government simply could not
afford to pay a lump sum of the amount owing. The High Court in Grenada
concluded that the mandatory order against a Minister of the Crown, enforceable
by contempt or other coercive proceedings, would be an order against the Crown,
and the court had no jurisdiction to make such an order.
Jennifer Gairy appealed to the Court of
Appeal, but the Court dismissed her appeal. She appealed to the Privy Council complaining
that seven years had passed since an amount of compensation had been ordered to
be paid to her father's estate, but that the greater part of it was still
outstanding. The courts below had failed to enforce her judgment based, she
submitted, on outdated concepts of the immunity of government from coercive
orders by a court. The figure due to be paid at the date of her Privy Council
hearing amounted to some $2.8 million. The Privy Council rejected the arguments
of the Attorney-General and accepted all of Jennifer Gairy's submissions. It
ordered the Minister of Finance to take all steps necessary to procure that the
outstanding payment be made forthwith. It affirmed that an order for mandamus
could issue to enforce a judgment for payment of compensation in a compulsory
acquisition case. If necessary, she could apply to a judge of the High Court in
Grenada to obtain the appropriate order. By this decision the Privy Council
established the principle that the enforcement provisions of our West Indian Constitutions
confer unlimited jurisdiction on the court to fashion remedies to secure the
enforcement of the fundamental rights and freedoms provisions of the
Constitution.
The consequence of this Privy Council
decision in the Jennifer Gairy case is that it is now accepted that the courts
of the West Indies are empowered by the Constitution and the legislature to
ensure compliance with judicial orders for the payment of compensation money by
the State. All that is needed is the will of the victim of an act of
expropriation to take his or her claim promptly to court, and the skill of the
litigant's attorney to fashion a suitable claim for enforcement of any award of
compensation.
A
Presentation to the Offshore Alert Conference in Miami on April 6 2011 made at
the invitation of David Marchant of Offshore Alert
[1] See for example Jaundoo v
Attorney-General of Guyana [1971] AC 972.
[2] Jennifer Gairy v
Attorney-General of Grenada, PC 29/2000 (Unreported).
[3] See Appendix.
