THE COMMISSIONER OF STATE LANDS. Mr Elton Prescott SC leading Mr Phillip Lamont instructed by Mrs Karen Piper for the Claimant

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1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV2293/2009 BETWEEN KASSIM MOHAMMED CLAIMANT AND THE ATTORNEY GENERAL THE DIRECTOR OF SURVEYS THE COMMISSIONER OF STATE LANDS DEFENDANTS BEFORE THE HONOURABLE MR JUSTICE R. BOODOOSINGH APPEARANCES: Mr Elton Prescott SC leading Mr Phillip Lamont instructed by Mrs Karen Piper for the Claimant Mr Staurt Young, Ms Meera Golan and Ms T. Maharajh for the Defendant Delivered: 29 February 2012 JUDGMENT 1. This is a constitutional matter in which the claimant says his right not to be deprived of his property without due process of law has been or is likely to be contravened. The claimant owns a plot of land located along the coast at Point Cumana. He has reclaimed certain lands at the back of his premises without the relevant approvals. He has put up buildings and runs a hardware business on the land he owns and on the land he has Page 1 of 14

2 reclaimed. He also lives on this property. He says his constitutional right to the enjoyment of property and not to be deprived thereof except by due process under sections 4 and 5 of the constitution has been breached by the failure of the state to regularise his position regarding the reclaimed lands. He says further that the State is estopped from proceeding against him under Section 20 of the State Lands Act, Chapter 57: To hear this matter I had granted an order to prevent the Magistrate from hearing the complaint brought against the claimant until the determination of this matter. 3. The claimant in the mid 1980 s purchased the land along the shore in Pt. Cumana. He erected a building and began a hardware business. He began to reclaim land shortly afterwards. He later put up storage facilities for his hardware. He says the State did not take any action against him for long periods. He says he was led to believe that the State was not serious about what he had done as they had allowed other landowners to do the same without check. 4. He says he attempted to regularise his position by, after the fact, seeking to get the required approvals. This has never been given. Page 2 of 14

3 5. He also built a house on the lands in which he now lives. That house in 2009, he says, was valued at 1.5 million dollars. Both his dwelling and business are therefore on the lands. 6. The claimant says in 1993 and 1994 he applied for a licence to reclaim lands from the sea. He received two letters dated 28 November 1994 and 26 July 1995 warning him to stop reclaiming land. He says he ignored the letters and no further action was taken against him. 7. On 23 October 1996, the Ministry of Planning refused his application made in May 1994 to retain and use his building as a hardware business. 8. On 13 November 1998, the claimant received a letter from the Lands and Surveys Division warning him to cease reclamation. He received a summons to appear before the Magistrate in July This was dismissed in April In July 2006, the claimant received another summons under the State Lands Act indicating that the lands which he reclaimed can be taken away, the buildings destroyed, and I myself put in goal (sic) : see paragraph 13, claimant s affidavit 26/6/09. Page 3 of 14

4 10. In response to the claimant s affidavit, the State filed an affidavit of Stephanie Elder- Alexander, Ag. Deputy Permanent Secretary, Ministry of Agriculture, Lands and Marine Resources on 25 April She was Commissioner of State Lands from She noted the claimant submitted an application in 1993 to reclaim 5000 square feet of land adjacent to his property. A report of 10 November 1993 showed that 7,000 square feet had been reclaimed. On 3l March 1994 a memorandum from The Institute of Marine Affairs, another State agency, reported that a properly designed costal protection structure should be constructed. By letter of 27 April 1994, the Lands and Surveys Division wrote to the claimant that in the absence of approval from Town and Country Planning Division, construction work was not permitted. Permission can only be granted where a reclamation licence and lease is granted. He was told to cease construction immediately, failing which an injunction would ensue : paragraph 10 of Alexander affidavit, 23 April Yet another State agency, the Commissioner of Valuations, wrote to the Director of Surveys indicating that inspection showed that 12,142 square feet had been reclaimed. The Town and Country Planning Division wrote the claimant indicating a decision had not been taken regarding his application to develop land because of their need to refer his application to another agency. This was by letter of 23 August Page 4 of 14

5 13. On 19 September 1994 the claimant submitted another application to reclaim 10,000 square feet of land. 14. On 25 November 1994, the Lands and Surveys Division wrote to the claimant noting that an inspection showed material being dumped into the sea and this constitutes illegal reclamation. He was warned to cease this activity; otherwise an injunction would be sought. 15. On 27 July 1995, the Lands and Survey Department sent another letter to the claimant demanding he cease reclaiming lands. 16. On 13 November 1998, the Lands and Survey Division informed the claimant that his illegal development had environmental implications and he should cease his action and restore the area to its original state. 17. In July 2004, a complaint was filed by the Director of Surveys. This was later dismissed for want of prosecution. 18. On 12 June 2006, a second complaint was filed. This is the subject of this claim to stop it. Page 5 of 14

6 19. What this history shows is that the claimant reclaimed the lands and then sought permission. The State, on the other hand, warned the claimant about his activities, but they delayed substantially in taking enforcement proceedings. In the meantime, the claimant continued his development. 20. The present unsatisfactory state of events is that a substantial complex is now standing on the lands part of which is on lands which the claimant purchased and part is on lands which he reclaimed. These events called, therefore, for a creative and practical solution which unfortunately the parties have been unable to come to. Had this issue been dealt with earlier by the authorities it would not have come to this. What then arises for consideration? 21. The complaint of 12 June 2006 sets out that the claimant is in possession, without any probable claim or pretence of title of State Lands, namely that piece of parcel of land situate at Corner Bain Street and Western Main Road, Carenage...contrary to section 20 of the State Lands Act. 22. One further matter from the history bears mention. At paragraph 12 of his affidavit, the claimant says that in the 1980 s and 1990 s when Mr John Humphrey was a Member of Parliament and a Government Minister, Mr Humphrey had assured him that it was possible for the claimant to have a licence and to regularise his position. Further, he was Page 6 of 14

7 told a Committee had been set up to establish new coast lines on the Gulf of Paria and the Committee had completed a survey which facilitated the reclamation by owners along the coastline. He says further that no one has told him he would have to break down his property or that he risked a term of imprisonment by continuing to live and work there. 23. What is clear from what is before the court is that the claimant has developed both his own land and reclaimed lands. He has done so without permission. Both his own lands (which he purchased) and the reclaimed lands are therefore concerned. 24. Section 20 of the State Lands Act, Chapter 57:01, under which the claimant has been summoned before the Magistrate, comes under the rubric Squatting on State Lands. It provides: (1) Any Magistrate, on information that any person is in possession, without any probable claim or pretence of title, of any State Lands, may issue a summons calling on the person to appear and answer to the information, and if the a person, after being duly summoned, does not appear or appearing fails to satisfy the Magistrate that he has or had, or those under whom he claims, have or had, some probable claim or pretence of title to the lands, the Magistrate shall make an order for putting the person in possession of the lands out of possession, and the delivering of possession to the Commissioner. (2) Unless, on the hearing of the information, the person against whom the information is preferred proves to the satisfaction of the Magistrate that he holds the possession of the lands by inheritance, devise or purchase from some other person, the Magistrate shall make a further order that the person so informed Page 7 of 14

8 against be imprisoned for such term, not exceeding six months, as the Magistrate sees fit, such term to be completed from the day on which the person is delivered into the custody of the keeper of the goal or place of imprisonment to which is committed. 25. Section 3(1) of the State Lands Act provides that the dominion of the seashore lying between the high water mark and low water mark belongs to and is vested in the State. 26. Under section 3 (2), the President may grant parts of the seashore to persons or grant licences to reclaim land from the sea. Under section 3 (3) all lands so reclaimed shall belong to and be vested in the State. This section, does not, however, seem to provide that lands reclaimed without a licence belong to the State, but it would follow that if the President can grant such licences, the failure to obtain such a grant would mean those lands reclaimed without a licence would also belong to the State since the dominion is vested in the State or the trustees of the State. 27. One of the matters which the claimant complains about is that his application, albeit after the fact, for a licence to reclaim land was denied on the basis that he had undertaken construction on his own lands without approval: KM 5. KM 5 is a letter dated 27 April, 1994 from the Lands and Surveys Division which said that the processing of the application for the licence to reclaim was interrupted because it was discovered that the use to which the claimant s lands has been put does not have the formal approval of the State under the Town and Country Planning Act. Page 8 of 14

9 28. Matters were then set out about what the claimant had to do to ensure the resumption of the consideration of the application. What is of significance is that while retroactive approval has not been given to the use of the claimant s land, there has not been any decision made against the construction he has undertaken. 29. Thus, subject to all relevant considerations being satisfied, the claimant s approval remains pending. Thus there does not appear to be any bar from considering the claimant s licence applications provided all the relevant considerations are satisfied. This is of some moment in this case where the section 20 proceedings before the Magistrate are concerned. LAW 30. The first issue for the court to decide is therefore whether the claimant has any property right that can attract constitutional protection under section 4(a). 31. The State owns the reclaimed land. This is clear from the operation of section 3 of the State Lands Act. The case of Attorney General of Southern Nigeria v John Holt & Co. (Liverpool) Limited (1951) AC 599 also supports this proposition. In that case it was noted that an irrevocable licence can be granted. 32. However, the claimant has put buildings on the lands. These are his buildings. It may well be that if the Magistrate grants an order to dispossess the claimant and the State Page 9 of 14

10 seeks to enforce it that an issue would arise for consideration. At this stage it is premature for this court to make pronouncement on the issue in the absence of knowing what will be advanced before the Magistrate, how the case will be deployed, and the basis on which the Magistrate will make a decision. It seems, however, that this case may pose a real difficulty for the Magistrate to make an order considering that the claimant s building are located on lands which the State says he is not entitled to occupy but also partly on lands which he owns. 33. The claimant also submitted that he has an equitable interest in the lands. From an evidential point of view the claimant has not made out a case on this. From the evidence available, there is no suggestion that he was promised anything or that he was led by any assurances given to proceed with the course he adopted. In any event, the claimant deliberately ignored the various warnings he was given over the years to desist from reclaiming the lands. He does not, therefore, come to the court with clean hands such that the court feel compelled to afford him any relief. 34. I also do not accept the claimant s suggestion that he comes within the property requirement by virtue of the State Lands (Regularization of Tenure) Act Chapter 57: This Act does not create an interest in land so as to trigger the right to engagement of property. It merely provides a right to protection from ejectment. There is no suggestion at this stage that there is an intention to eject the claimant from the lands. Page 10 of 14

11 36. Under this Act, in any event, if he falls within it, he would only be entitled to not be ejected from his dwelling assuming it occupies less than 5000 sq feet. This case causes various complications not suited to be resolved in a constitutional motion because evidential or factual matters are not entirely clear. For example, is the dwelling exclusively on the claimant s lands? Is it partly on it? Is it fully on the reclaimed land, and so on? Legitimate Expectation 37. The issue of legitimate expectation was also raised by the claimant. An expectation may arise from a representation or promise made by an authority, including an implied representation, or from consistent past practice. 38. There is no clear evidence that any promise or representation was made to this claimant about his lands. At best, the letter on which he relies indicated an intention to consider his application if he sorted out the requirements for the buildings constructed on his land without approval. Further, the statement of Mr Humphrey detailed in the claimant s affidavit was not a promise made to the claimant regarding his occupation or activities. It is in general terms about looking at land use in the coastal areas. There was also no evidence of any consistent past practice. The reference to other occupiers in the area is just that. There is no evidence to show that any practice has been adopted regarding other persons or properties in the area. Page 11 of 14

12 Discrimination 39. The claimant also failed to establish a case based on discrimination. He cannot point to other persons similarly circumstanced being treated in a different way from him. The statements set out in his evidence are matters of mere speculation. The claimant failed on this ground from an evidential point of view. Due Process 40. Due process requires the court to consider the legal system as a whole. The process outlined by section 20 above is part of the due process. From the Magistrates Court, there is obviously an appeals process. I cannot presuppose, how the matter will be dealt with what evidence will be led, what arguments advanced, how the matter will be decided. I do not accept that there is anything inherent in the process or in the operation of the statute before the Magistrate which would deprive the claimant of his property or his liberty without due process. 41. As part of the due process requirement, the claimant is entitled to a system that is fair and not arbitrary. Based on the process for considering his application that can be gleaned from the correspondence, there is not sufficient evidence to come to the conclusion that the process is either unfair or arbitrary. If anything, the process shows certain inefficiencies that can inure to the benefit of persons who pursue development on lands without first obtaining approval. By the time the slow process concludes, as this case Page 12 of 14

13 shows, much can be done by a party disregarding the warnings being given. It may then be impractical for any order to be made to dispossess the offending party. 42. In any event, there is no clear decision as far as I can discern that denies the claimant a licence, even up to now. There is action under section 20. The State will have to satisfy the Magistrate that it has made a clear decision to refuse the claimant s licence application and thus that he is liable under section 20 in relation to the reclaimed lands. But that is a matter for the Magistrate. It does not show any lack of due process previously or anticipated. A Final Note 43. For what it is worth, I wish to add that this case demonstrates the need for creative solutions to be found by the parties to disputes such as this. The claimant was wrong to have acted as he did to reclaim land from the seashore without the appropriate licence. At the same time, the multiplicity of procedures and departments involved creates delay and hardship when persons seek to follow the law and the procedures laid down. 44. Significant time has passed. The property has been developed. The claimant s purchased property is connected to the reclaimed lands. It may make sense for the authorities to look at the development anew and determine if additional work should be done by the claimant to meet the concerns of the legitimate authorities such as environmental impact, land use policy and safety factors. A valuation may be done considering the land Page 13 of 14

14 reclaimed, and upon the claimant paying reasonable compensation for the lands reclaimed, the State may wish to consider the requisite approvals and licences to regularise the position. There may be other owners similarly circumstanced. Such a policy may address a real problem which through lack of adequate and timely enforcement mechanisms has allowed this situation to occur. I hardly think that the claimant s case is entirely unique. 45. Another matter of significance in the wider context of this claim is that the buildings in this case appear to be substantial ones. They are not chattels. They are not buildings that appear to be easily removable. They are attached to the land. Whether or not they were wrongly attached, these may be a benefit to the land. An issue may arise about compensation if an order is eventually made to dispossess the claimant. But that is not for determination in this claim. 46. In my view, therefore, the claimant has not made out his claim. The claim is dismissed. The claimant must pay the defendant s costs. The conservatory order preventing the Magistrate from hearing the complaint is also discharged. Ronnie Boodoosingh Judge Page 14 of 14