Court blasts housing ministry for backing squatters

Barbara Gayle, Justice Coordinator

The Ministry of Housing has come under fire from the Supreme Court for the steps it has taken to protect the interest of a group of squatters who, in defiance of a court order, continue to occupy privately owned lands at Orange Grove, Trelawny.

Justice Lennox Campbell had sharp criticisms for the housing ministry as he turned down an application it filed seeking declarations and an injunction to bar New Falmouth Resorts Ltd from evicting, harassing, molesting or disturbing in anyway the approximately 100 families who are occupying the nine-acre property.

The housing minister, who was the claimant, contended that complying with the court order and forcing the families to vacate the land "would result in a serious social and economic turmoil".

The minister further claimed that the families have said they have occupied the land for more than 15 years and built a vibrant community.

Nearly all the occupants have permanent concrete structures on the land and have the usual amenities of water and electricity.

According to the minister, there were attempts made over the years to organise the residents to purchase the land through a provident society called Coopers Pen Provident Society, but that did not materialise.

But Justice Campbell refused to grant declarations 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.

minister seeking declaration

The minister was also seeking a declaration that the land now rests with the commissioner of lands, and was seeking an order from the court that New Falmouth Resorts Ltd be compensated for the property under the Land Acquisition Act.

Justice Campbell granted the company's application to strike out the minister's claim. Costs to be assessed on an indemnity basis were awarded to the company, which was the defendant.

"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," Justice Campbell held.

"I have not seen any authority that imposes an obligation on a private landowner to make available his land to a community of persons in unlawful occupation, in order to prevent those persons bringing on social unrest.

"The Constitution does not reserve the right to ownership of large tracts of land to persons of any particular social class or creed," declared Justice Campbell.

He noted that an earlier application on behalf of the occupants was described by the court "as insincere and iniquitous", and argued that was because of the total disregard for the company's fundamental rights.

New Falmouth Resorts Ltd in 2007 applied to the Supreme Court for recovery of possession of the land, and on April, 6, 2010, Justice Donald McIntosh granted an injunction restraining the occupants from doing any further construction on the land.

The occupants were ordered to pay $50,000 each for trespass and wrongful occupation of the land. They were ordered to demolish and remove their illegal structures from the property.

application for an injunction

An application was made on March 8, 2012 for an injunction and a stay of the order, and Justice McIntosh adjourned the hearing to May 4, 2012 for the housing minister or a representative of the ministry to attend.

Representatives of the ministry were in court when the applications for the injunction and stay were refused. Copies of the court order were handed to the representatives of the housing ministry. Leave to appeal was granted but no appeal was pursued.

Justice Campbell queried how the minister could have gone ahead on May 15, 2012 to gazette a declaration that the land was an "improvement area" which was not compliant with Justice's McIntosh's order.

Justice Campbell said it was unchallenged that the occupants had not paid the sum, nor did they demolish or remove the structures.

Attorney-at-law Juliet Mair Rose, who represented the company, had argued that it was unfair, unduly burdensome and outrageous to compel it to forfeit its land to circumvent a riot by illegal occupants who want to remain in occupation contrary to a court order.

James Chisolm, chairman and chief executive officer of New Falmouth Resort, said that for more than a decade he had been appealing to all the government agencies to assist the squatters but no one has helped.

He said he even sought the intervention of Prime Minister Portia Simpson Miller, and Justice Campbell seemed to accept that the landowner had done enough.

"The court has formed the view that the hardship that has been visited on the defendant appears to be a consequence of a view, on which public officials and the claimant seemed to have acted, that Mr Chisolm, not being from a line of traditional large landowners, has no right to ownership of such relatively large tracts of land. If I am correct in that view, the remedy to that malady is an emancipation of those minds so enslaved," said Justice Campbell.

Jacqueline Samuels-Brown, QC, who represented the housing minister, said a decision has not been made if the ruling of Justice Campbell will be appealed.

"This is a matter of public interest, and the Housing Agency of Jamaica will have to decide whether to contest the ruling in the Court of Appeal," said Samuels-Brown.