ORIGINATING MOTION
THE EASTERN CARRIBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
ANTIGUA AND BARBUDA
(CIVIL)
CLAIM NO: of 2016
BETWEEN
MACKENZIE FRANK
TREVOR WALKER
Claimants
-and-
THE ATTORNEY GENERAL
PARADISE FOUND LLC
Defendants
AFFIDAVIT IN SUPPORT AN APPLICATION FOR AN ADMINISTRATIVE ORDER
WE, MACKENZIE FRANK and TREVOR WALKER both ofCodrington Village, Parish of Holy Trinity, Barbuda in Antigua and Barbuda make Oath and say as follows:
Parties
1.We Mackenzie Frank and Trevor Walker, the Claimants, were born on the island of Barbuda and are registered voters in the Barbuda Constituency of the State of Antigua and Barbuda.Both of us are within the definition of ‘Barbudan’ in section 2 of the Barbuda Land Act No.23 of 2007 (‘the 2007 Act’).
2.From 1991 to 2002 I Mackenzie Frank served as Secretary to the Barbuda Council, a statutory body established pursuant to the Barbuda Local Government Act Cap 44 of the revised edition of the Laws of Antigua and Barbuda, 1992 edition. From 2004 to 2014 I was a member of the Senate where I served as a Senator representing the Barbuda people. From 2005 until 2014 I was Vice President of the Senate. From 2009 to 2013 I sat as an ex officio member of the Barbuda Council.
3.I Trevor Walker was a Member of Parliament for Barbuda from 2004 to 2014and Minister for Barbuda from 2004 to 2007. From 2007 to 2009 I was Minister of State of Public Utilities in the Prime Minister’s Office. From 2009 to 2014 I was Minister of Public Works and Transportation. .
4.The First Defendant is sued on behalf of the Crown under the provisions of the Crown Proceedings Act Cap 121 of the Laws of Antiguaand Barbuda. The Second Defendant is a private company registered in the State of Antigua and Barbuda established by Mr Robert DeNiro to develop a proposed luxury hotel and villa resort on the island of Barbuda.
5.The persons listed in the schedule hereto are registered voters in the said Barbuda Constituency and are ‘Barbudans’ within the definition of the Barbuda Land Act, No 23 of 2007. Their interest in this matter is the same as the Claimants. The Claimants will seek an order under Part 21 Rule 21.1after this claim is filed, appointing the Claimants to represent the persons specified in the schedule hereto.
Historical background to the dispute
6.Barbuda is the sister island in the twin island nation of Antigua and Barbuda. Barbuda, ever since it was claimed as a British possession in 1628, has had a separate history fromAntigua, in particular it has a system of land tenure that is unique, based on its peculiar historical circumstances. In Barbuda all land is owned in common by the people of Barbuda. Title is vested in the Crown on behalf of the people of Barbuda.
7.Barbuda is governed by the Barbuda Council in a constitutional power-sharing arrangement with the Cabinet of Antigua and Barbuda. This administrative arrangement reflects a compromise which was settled at the Antigua Independence Conference at Lancaster House, London which I Mackenzie Frank attended in December 1980. Barbuda was separately represented at the Conference and was willing to go it alone. The position of Barbuda and Barbudan land law was one of the central issues of the conference. At that Conference, the then Prime Minister VC Bird gave an undertaking which I heard, that the Antiguan Government would not seek to changeBarbudan land law after independence.
8.In July 2000, following years of conflict between the Antiguan Labour Party government and the Barbuda Council and the people of Barbuda, the Commonwealth Secretariat dispatched a team to review the relationship between the Central Government and the Barbuda Council. The team found that there was a consensus that the system of land tenure should be retained and that major development projects should not be carried out in Barbuda without the consent of the people of Barbuda.
9.In 2004 the United Progressive Party was elected to government and three years later the Barbuda Land Act 2007 was passed to settle the issue of land ownership and the administration and development control of land in Barbuda.
The Barbuda Land Act 2007
10.The long title to the Barbuda Land Act 2007 states that it is an Act to confirm that all land in Barbuda is owned in common by the people of Barbuda.
11.Section 3 provides:
‘(1) All land in Barbuda shall be owned in common by the people of Barbuda.
(2) Subject to sections 4 and 20, [which are not relevant to the present argument] the title to all land in Barbuda shall vest in the Crown on behalf of the people of Barbuda’
12.The term ‘the people of Barbuda’ is defined in section 2 to mean ‘all Barbudans’. Barbudan is defined section 2 to mean:
(a) a person born in Barbuda of whose grandparents at least one was born in Barbuda; or
(b) the child, wherever born, of parents at least one of whom is a Barbudan within the meaning of paragraph (a).
13.The Claimants are among the owners in common of the land in Barbuda.
14.The Crown has not at any material time held the land in Barbuda on behalf of the Government of Antigua and Barbuda.
History continued
15.Following separate elections in 2013 and 2014, both the Barbuda Council and the Central Government came under the control of the Antigua Labour Party. Since then, the question of land, its control and future ownership and the issue of the consent of the people have again become contentious issues.
16.In 1989 the K Club was established on 251 acres of beach front land in Barbuda by Mrs MariucciaMandelli (who owned the Krizia fashion label). Mrs Mandelli was granted a 99 year lease in the name Dream Company Limited. The validity of this lease was not confirmed by section 20 and the second schedule of the Barbuda Land Act 2007.
The agreement dated 3 November 2014
17.On 3 November 2014 the Government of Antigua and Barbuda entered into an agreement with Paradise Found LLC for a tourism development project in Barbuda. The Government agreed to lease Paradise Found LLC 555 acres on Barbuda for 198 years at a total cost of US$ 6.2 million. The 555 acres was broken down as follows 251 acres (K Club lease) 137 acres (requested land) and 167 acres (buffer zone). There was also an eco lodge project totalling 250 acres and 500 acres for an airport.
18.In November 2014 the Government of Antigua and Barbuda had no interest in the 555 acres it agreed to lease to Paradise Found LLC. The reversion to the 251 acres comprised in the K Club lease and the remaining 304 acres were at all material times vested in the Crown on behalf of the people of Barbuda. So was the 250 acres for the eco lodge property and the 500 acres for an airport. The Governmentof Antigua and Barbuda has taken no steps to acquire by agreement, and has not acquired by agreement, the interest of the people of Barbuda in the said 555 acres.
The K Club lease
19.The Claimants believe that Paradise Found LLC in or about January 15 2015 acquired the purported leasehold interest in the K Club from Dream Company Limited.
Paradise Found (Project) Act
20.In October 2015 the Government of Antigua and Barbuda introduced the Paradise Found (Project) Bill 2015 to the House of Representatives. The First, Second and Third readings of the Bill were heard in one day. The Bill was passed by the Senate on 19 November 2015.The intention of the Bill as stated in the long title is ‘to provide for the approval of specified terms of an Agreement dated 3 November 2014 between the Government of Antigua and Barbuda and Paradise Found LLC for a tourism development project in Barbuda.’
21.The Paradise Found Project Act 2015 does not expressly repeal the Barbuda Land Act 2007. Section 3 of the Paradise Found Project Act 2015 provides:
‘3. Grant of leases
(1) Notwithstanding the provisions of the Barbuda Land Act, 2007, No 23 of 2007 or any other law to the contrary the Government leases to Paradise Found the leased land on the terms set out in Schedule 2.
(2) The Rent shall be prepayment and discharge of all Lessee’s financial obligations under the Lease, including rental for the first 99 years of the term.
(3) The provisions of the Barbuda Land Act, 2007 does not apply to the lease of the Leased Land pursuant to this Act.’
22.Section 2 of the Paradise Found Project Act provides that:
‘Leased Land’ means those parcels of land situate in Barbuda leased to Paradise Found LLC or its subsidiaries or affiliates for the Project more particularly described in Schedule 1 and includes all lands in Barbuda that may be leased to Paradise Found in the future for the purposes of the Project’
23.Schedule 1 of the Paradise Found Project Act 2015 is in these terms:
‘All those parcels of land consisting of the former lands held by Dream Company Limited (K Club) being 251 acres, and the lease of lands adjacent thereto, being Crown lease of 140 acres and any lands leased in Barbuda by Paradise Found in the future for the Project’.
24.Schedule 2 of the Paradise Found Project Act 2015 is in these terms:
‘Terms of Lease of demised Property
1. Parties. His Excellency Sir Rodney Williams, Governor General of Antigua and Barbuda on behalf of the Government of Antigua and Barbuda and Paradise Found LLC, its subsidiaries and affiliates.
2. Term. 99 years with an option for a further 50 years exercisable on completion of the Resort
3. Rent. The sum of US$ 5.2 million to the Government of Antigua and Barbuda on signing of the Lease and a further US$ 1 million in respect of the Option years.
4. Option. An option for a further 50 years exercisable on completion of the resort.
5. Performance. The Crown lease of 140 acres will revert to the Crown if construction of the Resort is not started within 60 months from the beginning of the lease term.’
No title
25.The Government of Antigua and Barbuda having no title to land on Barbuda could not complete its agreement dated 3 November 2014 without first obtaining the interest of the people of Barbuda. It has failed to obtain such interest by agreement.
A breach of the Constitution
26.In this situation the Government of Antigua and Barbuda has purported to lease land on Barbuda to Paradise Found LLC by passing the Paradise Found Project Act 2015. In doing so the Government of Antigua and Barbuda has compulsorily acquired and taken possession of the interests and rights of the Claimants and the other people of Barbuda in the areas of 251 acres and 140 acres of Barbuda specified in Schedule 1 of the Paradise Found Project Act 2015.It has not done so for ‘public use’ but to further a development at a profit by Paradise Found LLC. This is a violation of Article 9 of the Constitution of Antigua and Barbuda which abrogates, abridges and infringes the Claimants fundamental rights and freedoms and the Claimants seek redress from the High Court under Article 18 of the Constitution.
27.Article 9(1) of the Constitution of Antigua and Barbuda is in these terms:
‘No property of any description shall be compulsorily taken possession of, and no interest in or right to or over property of any description shall be compulsorily acquired, except for public use and except in accordance with the provisions of a law applicable to that taking of possession or acquisition and for the payment of fair compensation within a reasonable time.’
28.Article 9 is an entrenched provision of the Constitution.
29.In the premises section 3 of the Paradise Found Project Act and the other sections of this Act which are dependent on section 3 are void and of no effect.
30.In the circumstances of this case it is appropriate to award vindicatory damages.
31.Further and in the alternative, if, which is denied, the Government of Antigua and Barbuda has compulsorily acquired and taken possession of the areas of 251 and 140 acres of Barbuda specified in schedule 1 of the Paradise Found Project Act 2015for public use it must pay fair and reasonable compensation to the people of Barbuda (including the Claimants), within a reasonable time.
32Fair and reasonable compensation is the market value of the property which is between US$ 3 million and US$ 6 million an acre.
33.The Claimants claim the remedies as set out in paragraphs 1-10 of the fixed date Claim Form and Originating Motion dated the day of , 2016.
This affidavit is sworn in support of the application for an Administrative Order being made on behalf of ourselves Mackenzie Frank and Trevor Walker.
Sworn at the High Court of Justice) ………………………………
This day of 2016, ) MACKENZIE FRANK
Before me:)
) ………………………………..
……………………………) TREVOR WALKER
ORIGINATING MOTION
THE EASTERN CARRIBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
ANTIGUA AND BARBUDA
(CIVIL)
CLAIM NO: of 2016
BETWEEN
MACKENZIE FRANK
TREVOR WALKER
Claimants
-and-
THE ATTORNEY GENERAL
PARADISE FOUND LLC
Defendants
THE SCHEDULE
Registered voters in the Barbuda constituency who have signed the petition opposing the proposed development by Paradise Found LLC.
ORIGINATING MOTION
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
ANTIGUA AND BARBUDA
Claim No: of 2016
BETWEEN
MACKENZIE FRANK
TREVOR WALKER
Claimants
- and –
THE ATTORNEY GENERAL
PARADISE FOUND LLC
Defendants
FIXED DATE CLAIM
The ClaimantsMackenzie Frank and Trevor Walker both of Codrington Village, Parish of Holy Trinity, Barbuda in Antigua and Barbuda
claim against:
The Defendants, (1) The Attorney General of the Ministry of Justice & Legal Affairs, Government Office Complex, Parliament Drive, St John’s, Antigua, and (2) Paradise Found LLC of registered office situate at and will move the court for an Administrative Order being an application for declarations and relief pursuant to section 18 of under the Constitution of Antigua and Barbuda; and the Claimants claim:
1.) A declaration that the Government of Antigua and Barbuda has compulsorily acquired and taken possession of the property specified in Schedule 1 of the Paradise Found Project Act, 2015 (No. of 2015) by securing the enactment of the Paradise Found Project Act, 2015 (No. of 2015) by securing the enhancement of the Paradise Found Project Act 2015.
2.) A declaration that the Government of Antigua and Barbuda did not acquire the said property for public use.
3.) A declaration that section 3 of the Paradise Found Project Act, 2015 and the sections of the Act which are dependent on section 3 violate section 9 of the Constitution of Antigua and Barbuda and are therefore void and of no effect.
4.) An order striking down the Paradise Found Project Act, 2015 as being inconsistent with the Constitution of Antigua and Barbuda, and therefore void by virtue of section 2 thereof.
5.) Further and in the alternative, if, which is denied, the Government of Antigua and Barbuda has acquired and taken possession of the property specified in schedule 1 of the Paradise Found Project Act, 2015 for the public good, determination of the amount of compensation to which the people of Barbuda (including the Claimants) are entitled.
6.) Payment of the compensation within a reasonable time.
7.) Vindicatory damages.
8.) Discretionary interest pursuant to section 27 of the Eastern Caribbean Supreme Court Act, Cap. 143 of the Laws of Antigua and Barbuda
9.) Such further and other relief as the Court may deem fit.
10.) The costs of this claim
An affidavit in support of this application for an A Order accompanies this claim form
Dated the of , 2016
______
Ralph A. Francis
Attorney-at-Law
The Claimant’s Address for service:#9 St. Mary’s Street
St. John’s
Antigua
Tel#462-9030
NOTICE TO THE DEFENDANT–
The first hearing of this claim will take place at ...... on ...... day the ...... day of 2016 ...... , at ...... am/p.m.
If you do not attend the hearing judgment may be entered against you in accordance with the claim
If you do attend, the judge may-
(a)deal with the claim or
(b)give directions for the preparation of the case for a further hearing,
A statement of claim or an affidavit giving full details of the claimant’s claim should be served on you with this claim form. If not and there is no order permitting the claimant not to serve the statement of claim or affidavit you should contact the court office immediately.
You should complete the form of acknowledgement of service served on you with this claim form and deliver or send it to the court office (address below) so that they receive it within 14/28 days of service of this claim form on you. The form of acknowledgment of service may be completed by you or a legal practitioner acting for you.
You should consider obtaining legal advice with regard to this claim. See the notes on the back of this form or on the next page.
This claim form has no validity if it is not served within 6 months of the date below unless it is accompanied by an order extending that time.
Dated ...... day of ...... 2015
The Court Office is at Parliament Drive, St. John’s, Antigua and Barbuda. Telephone: 268 462 04096/0609: Fax: 462 3929. The Court Office is opened between 8:30 a.m. and 3:30 p.m. Mondays to Thursdays and 8:30 a.m. and 2:30 p.m. Fridays except public holidays.
The Claimant's address for service is: C/o Ralph A. Francis, Chambers, St. Mary’s Street St. John’s, Antigua, Tel#462-9030