The Eastern Caribbean Supreme has ruled that the Unity Labour Party government’s acquisition of land in Canouan once owned by former police chief, Randolph Toussaint, is “unconstitutional, unlawful and null and void”.
It further said that the acquisition is “a contravention of the fundamental right of the claimant, namely the right to enjoyment of property guaranteed in section 6(1) and 692) of the Constitution”.
Acting High Court Judge Pearletta Lanns, in judgment handed down on March 3, ordered that the Attorney General pay Toussaint EC$361,779.30 plus interest at the rate of 6 per cent per annum from Dec. 5, 2002, the date of first publication of the declaration of the acquisition in the gazette, until full payment of compensation.
The court also ordered that the Attorney General pay Toussaint EC$75000 as aggravated damages, in addition to prescribed costs.
Payments of the amounts are to be made within 60 days of the judgement or at some future date to be agreed by all parties.
The case stemmed from the acquisition by the government in 2002 of 12,957 square feet of land owned by Toussaint, a former commissioner of police in the southern Grenadine island of Canouan.
In November 2002, Toussaint attempted to sell the plans for EC$268,820 and Gonsalves accused him of seeking to profit fro the assets of the state.
“Accordingly, Mr. Speaker, the Government of St. Vincent and the Grenadines … Honourable members, have taken the decision to write letters to a number o persons including Randolph Toussaint, and certain matter were bang, deal with. But this particular act required for the government, the Cabinet of this country, to act with dispatch, with speed, with focus, not to allow this injustice to be perpetrated, this scandal,” Gonsalves told Parliament in Dec. 5, 2002, as part of a statement that would form a central plank of Toussaint’s case against the state.
In 1990, while the New Democratic Party was in office, Toussaint bought 12,957 square feet of land in Canouan from the Government of St. Vincent and the Grenadines through he Development Corporation.
The purchase price was EC$6,478.50 — or 50 cents per square foot.
As part of the sale agreement, no resale of the land was permitted without the permission of the Development Corporation and the land was to be developed within three years.
Failure to develop the lands within three years without the Development Corporation’s agreement meant that the land would be revered to the Corporation at the original price.
Further, no structure was to be erected on the land without the approval of the physical Planning Authority.
On March 3, 1993, Toussaint obtained an extension for three years to comply with the restrictions of the sale.
Further, on March 5, 1996, he was released from the performance of all the restriction and stipulation issued in 1990.
During the Budget Debate On Dec. 5, 2002, Gonsalves told Parliament that the sale of the land to Toussaint was an “injustice” and or a “scandal” which required the Government and the Cabinet to correct it.
On that same day, Gonsalves caused the issue and publication of a declaration in an extraordinary issue of the Government Gazette that the lands belonging to Toussaint be acquired “for a public purpose, to wit, a Learning Resource Centre, for the people of Canouan”.
On March 3, 2013, the Land and Surveys Department wrote Toussaint saying that EC$9,717.80 had been deposited at the Treasury Department in his name, being “payment (plus interest at the rate of 5% over a period of 10 years” for the lands that he acquired in 1990.
The judge said it would be readily apparent that the money was not the alleged market value, but at the original price of EC$6,478.50 plus 5 per cent per annum simple interest.
Toussaint was aggrieved and resorted to the court, accusing the government of acquiring his lands “unlawfully … without adequate compensation … in reasonable time” and allegedly “without a valid reason”.
He alleged that the Prime Minister’s Dec. 5, 2002 statement shows the true reason for the acquisition of his land. He further alleged that the reasons were political and that the learning resource centre alleged in the declaration was “a sham and a stratagem to deprive him of his land unlawfully”.
But on Nov. 14, 2003, the Attorney General applied for an order striking out certain paragraphs of Toussaint’s claim, and Exhibit “RT 11”, which contained Gonsalves’ comments during the budget debate.
On Mar 24, 2014, Justice Louise Blenman struck out certain paragraphs of the claim.
Toussaint appealed to the Court of Appeal, which ruled that statement was inadmissible since no permission was sought from the Speaker of the House of Assembly for its use in court.
He then appealed to the London-based Privy Council, the nation’s highest court, which ruled that Toussaint’s right of access to the court for constitutional relief would be unduly and effectively undermined, if he were not able to rely upon the Prime Minister’s statement in the Budget debate of Dec. 5, 2002.
With the Prime Minister’s statement now admissible, the judge concluded that Gonsalves’ statement in Parliament establishes that the government purported to acquire the land, not for the purpose of building a learning resource centre, but to reverse “the perceived injustice and or a scandal arising from the sale price of the land, and to deprive Mr. Toussaint from making a profit on the land.
“That purpose was an impermissible purpose, and that impermissible purpose materially influenced the acquisition,” Lanns ruled.
“Because of the statement, the court finds that despite the existence of the Learning Resource Centre, in reality, the purpose residing in the declaration was a sham, a stratagem to deprive Mr. Toussaint of his land, and that even though the learning resource centre was actually built on the land in question. It does not mean that it was a lawful exercise of power under the act.
“The court is of the view that although the purpose in the declaration was carried into effect, that purpose was not the dominant, real of operative purpose of the acquisition,” the judge further ruled.
From what I understand, the land was valued by the government valuer, a price was set and land on Canuan was then offrered to the public at that price. Toussaint paid no more or no less for his than anyone else.
This was clearly a matter of political spite and malice. It’s similar in political misbehaviour as that which destroyd Bigger Biggs.
There is more to the judgement than this, although I suppose you needed to limit the length of the article.
The Acting Chief Justice pointed out that:
“From a reading of Section 6 [of the Constitution] it seems clear that a compulsory acquisition of land is forbidden by the Constitution unless 1) it is for a public purpose; 2) it is done under a law authorizing the acquisition; 3) the law authorizing the acquisition makes provision for the payment of adequate compensation; and 4) the acquisition is duly carried out in accordance with the law.”
1, The Land Acquisition Act specifies that the intention to acquire land must be published in two ORDINARY editions of the Gazette. In this case it was published in an Extraordinary edition.
2. The Act provides for an “authorized officer” (who is appointed by the G.G. – in plain speak meaning the P.M. since the G.G acts on the advice of Cabinet) who can enter the land to make a preliminary investigation and who must then enter into negotiations with the landowner to agree on terms for the purchase of the land.
3. Any questions about compensation must be submitted to a Board of Assessment made up of a Judge of the High Court as Chairman; a member appointed by the G.G.and a member appointed by the owner of the land. And the Act also provides for an Appeal against the Board of Assessment to the Court of Appeal.
None of these procedures was followed. And you can see why these provisions are there. They are to prevent the arbitrary seizure of property by the Government, something which our Constitution forbids.
The Acting Chief Justice pointed out that the Privy Council (still our highest Court) held that taking back the land sold to Mr Toussaint to ensure that he did not get sell it at the market value and therefore to profit from it (that is, to correct a “scandal” and an “injustice in the P.M.’s words in Parliament) is not a proper motive justifying acquisition under the Land Acquisition Act. That a Learning Resource Centre was subsequently built on the land cannot legalize what was an illegal transaction.
For those of our readers who might think that the government of a country should be able to rectify an injustice, the judgement pointed out that there are legal remedies for that. But under those laws the Government would have to go to the courts to establish that there was indeed an injustice. To do otherwise would mean that the Government (the Executive) was usurping the role of the Judiciary. In other words the Government cannot be Judge and Jury however strongly they might feel about an “injustice” or a “scandal”. That there was an improper use of public office is something that must be proved in a Court of Law.
If this compulsory purchase “to correct a scandal” were to be allowed to stand, what is to protect us all from any future Government that then uses the Land Acquisition Act, claiming a “public purpose” to give a veneer of Constitutional legitimacy to their seizure of land from anyone who opposes them – as has happened in Russia, for example? It is not for the Prime Minister to decide that there was corruption or an injustice and that he will use a law that was not intended for that purpose in order to deal with the corruption/injustice. Down that road lies dictatorship. We have laws to deal with public corruption, but that would mean going through the Courts.
The P.M. stated in Parliament that it was necessary to act quickly to redress an injustice by preventing Mr Toussaint from profiting from the sale at the expense of the people of SVG. So presumably going to court to establish corruption would have taken too long. But, however long after the proposed sale, if the Government did indeed establish to the satisfaction of the Court that there had been dishonesty, corruption, nepotism or any other abuse of public office, Mr Toussaint could well be fined even more that he received from the sale and might even be given a jail sentence as well. But that course would not have provided the opportunity for high flown rhetoric in Parliament about injustice to the people of SVG. Much better to use the Land Acquisition Act. That the subsequent costs (Mr Toussaint was awarded the market value of the land as at 2012, plus accrued interest, plus aggravated damages, plus his costs; and of course there are the Government’s costs to be taken into account as well – all those Queen’s Counsels/State Counsels and junior counsels have to be paid for hearings in the courts all the way up to the Privy Council) probably far outstrip the cost of doing things the correct way in the first instance, is presumably not an injustice to the people of SVG. And that the procedures adopted by the Government open the way for all kinds of abuse of power by this and subsequent governments is also not, presumably, an injustice to the people of SVG.
Here again is why ISIL flourish in the Middle East. Britain the US, France and several other EU countries set the tone for the injustices that the Middle East and African people suffered for hundreds of years. Now the chicken is coming home to rouse and the world is becoming uncontrollable. The evil that men do lives after them is so true. In SVG the same scenario is being played out. When will it end?
By the way, who pays the bills?
I tried to acquire lands in Canouan in 1991 an it cost me $2.00 per square foot. I was given what no one else wanted and not what I wanted.
I live in Canouan and born in Canouan. So how come all these people can come to Canouan and get lands cheap and people from Canouan cannot get any.
Even today people from Canouan cannot get land to build a place to live.
This Government continues to do what the last one did force the people of canouan to live in a Sardine Tin. However, this government is making the tin smaller.
When will it end?
Comments are closed.