Fri | Sep 22, 2017

Court decides ‘the law is a shackle’ in squatter case

Published:Friday | May 13, 2016 | 5:00 AMMcPherse Thompson

The Court of Appeal has upheld a ruling that barred the minister of housing from compulsorily acquiring privately owned land in Trelawny, saying the takeover did not serve a public purpose as required by law, but was done for the benefit of squatters.

The land at Orange Grove, Trelawny, is owned by New Falmouth Resorts Limited, which in 2007 brought a claim against 99 defendants occupying the land, for recovery of possession.

New Falmouth, which is controlled and chaired by James Chisholm, won the case in a decision handed down in April 2010 by Justice Donald McIntosh, who ordered that the land revert to the private owner and awarded damages of $50,000 to be paid by each defendant.

Nearly two years later, in February 2012, the minister of housing designated the property an “improvement area” under Section 6 of the Housing Act, to facilitate its compulsory acquisition; and applied for a stay of execution of McIntosh’s 2010 judgment the following month.

McIntosh denied the application, saying it was an attempt to pervert the course of justice and an abuse of the processes of the court.

“It may be that the law is not a shackle to the lawmakers,” the Supreme Court judge said. But: “That does not apply to the court, which must dispense justice according to the law,” he added.

The reproach appears to hark back to the now infamous, albeit partial quotation from five political administrations ago when then Prime Minister P.J. Patterson, himself a renowned lawyer and Queen’s Counsel, declared that “the law is not a shackle ...”.

Despite his reproach, the judge was empathetic towards the defendants. “Given the history of this case, the length of the trial and the efforts made by the court to assist the defendants, who seem to have been misled by politicians into squatting on private property, notwithstanding their unlawful act, this court empathises with the gullible defendants,” Justice McIntosh wrote.

He gave permission for the 99 defendants to appeal his decision, but they did not follow through.

The minister of housing, however, sought to relitigate the case in March 2012, through an application before the Supreme Court, for a stay of McIntosh’s judgment and injunctive relief. That case was heard by Justice Lennox Campbell, who subsequently threw out the application in 2013.

The housing minister appealed Campbell’s decision the following year. But the Court of Appeal’s decision, written by Justice Frank Williams and handed down two weeks ago on April 29, continued to favour New Falmouth.

It also detailed actions taken by the Government to hold on to the property.

On May 1, 2012, three days before Justice McIntosh’s initial decision to refuse the stay of execution, the minister lodged a caveat against the certificate of title for lands registered to New Falmouth Resorts, including the Orange Grove property, and gazetted the notice declaring the lands as an “improvement area”.

Two weeks later, on May 18, the minister sought a declaration from the court that he was entitled to compulsorily acquire the Orange Grove lands and sought an injunction against New Falmouth. That application was supported by the affidavit of Simone Morris-Rattray, senior manager in the legal services department and company secretary of the Housing Agency of Jamaica (HAJ).

Abuse of process

New Falmouth responded with an application on October 22 to strike out the housing minister ’s claim. Justice Campbell ruled in favour of New Falmouth on May 21, 2013, saying the minister’s application was an abuse of process.

It was from Justice Campbell’s decision that the appeal, filed on March 27, 2014, emanated.

Attorneys Susan Reid-Jones and Vanessa Blair, who represented the housing minister, argued before the Court of Appeal that Justice Campbell erred in accepting the submissions of lawyers for New Falmouth Resorts that the issues in the claim had already been adjudicated. They also contended that the minister was not a party to the claim before Justice McIntosh, saying that matter was private-law action brought by New Falmouth for recovery of possession.

However, Williams agreed with Justice Campbell’s finding that all the applications were, in substance, based on the minister’s compulsory acquisition of the land. Their common aim, he said, was to prevent the orders of Justice McIntosh from taking effect.

On Thursday, attorney Keith Bishop, one of the lawyers who represented New Falmouth Resorts, said the section of the property in question is still being squatted on. He said Supreme Court and the Court of Appeal have given consistent orders for the illegal occupants to vacate the property; and that – barring further appeal – the next step is to enforce those orders and for the defendants to pay over damages granted by the Supreme Court to New Falmouth.

Bishop and his colleagues, Juliet MairRose and Romaine Tulloch, argued in the appeal trial – and the Court of Appeal agreed – that the minister sought to obtain compulsory acquisition in a ‘backhanded’ manner, reopening a closed case by using the ‘crutch of compulsory acquisition’.

The Court of Appeal took note of the statutory declaration of Janice Buchanan-McLean, legal officer of the HAJ, that the Government feared public upheaval in Trelawny were the squatters to be displaced in compliance with the court order, but was more inclined to side with Justice Campbell’s thinking on the issue when he wrote that: “The Housing Act and The Land Acquisition Act do not provide for the compulsory acquisition of privately owned land in order to transfer an interest to a community of persons who have occupied those lands despite the efforts of the owner to evict, and in defiance of orders of the Supreme Court.”

Justice Williams also sided with the view expressed by Justice McIntosh that “the Constitution protects private property, and does not provide cover for the acquisition of private property in order to regularise the unlawful occupation of squatters”.

mcpherse.thompson@gleanerjm.com