Alice Mae Coe v Governor of The Cayman Islands

• Jurisdiction: Cayman Islands
• Judgment Date: 29 April 2019
• Docket Number: LEGAL AID NO: LACV: 0138/2017
• Court: Grand Court (Cayman Islands)

BETWEEN:

Alice Mae Coe

1 ^St Applicant

Annie Multon

2 ^nd Applicant

Ezmie Smith

3 ^rd Applicant

and

Governor Of The Cayman Islands

1 ^st RESPONDENT

Attorney General

2 ^nd Respondent

Registrar Of Lands

3 ^rd Respondent

LEGAL AID NO: LACV: 0138/2017

CAUSE NO: 66 OF 2019

IN THE GRAND COURT OF THE CAYMAN ISLANDS

APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW (0 53 r 3)

To the Clerk of the Court, Law Courts, George Town, Grand Cayman
Name, Address and Description of Applicant(s)	1.1 Alice Mae Coe, Mt. Pleasant, West Bay, P. 0. Box 524 Grand Cayman KY1–1107 — Caymanian, Retired 1.2 Annie Multon, Snug Harbour, West Bay Road, P. 0. Box 616 Grand Cayman KY1–1107 — Caymanian, Retired 1.3 Ezmie Smith, Willie Farrington Drive, West Bay, P. 0. Box 287 Grand Cayman KY1–1301 — Caymanian, Retired Civil Servant
judgment, order, decision or other proceeding in respect of which relief is sought	2. DECISIONS AND OMISSIONS IN RESPECT OF WHICH RELIEF IS SOUGHT: 2.1 The failure of the 3 rd Respondent to register the rights of way, a decision which the now Applicants appealed against, which appeal is Exhibit AMC-4 to the Joint Affidavit of the Applicants. Those rights were proven by the approximately 500 affidavits that were filed with the 3 rd Respondent and are referred to in paragraph 3 of the 1 st Joint Affidavit of the 1 st Applicant Alice Mae Coe, the 2 nd Applicant Annie Multon and the 3 rd Applicant Ezmie Smith (together “the Applicants”). 2.2 The decision by the Registrar of Lands as contained in the letter dated 17 January 2017, Exhibit AMC-2 to the 1 st Joint Affidavit of the Applicants by which the Registrar conveyed the decision to the general effect that the Registrar had no power to register the rights of way, and therefore refused to consider if the approximately 500 affidavits aforesaid had proved the rights of way. The decision was wrong in law and unreasonable. 2.3 The omission, by the 3 rd Respondent, having received a formal appeal made by the Applicants under section 147 of the Registered Land Law, Exhibit AMC-4 to the 1 st Joint Affidavit of the Applicants failed to comply with that section by refusing to refer the matter to the Grand Court, this being upon the advice of the 2 nd Respondent.
	2.4 The decision of the 2 nd Respondent, given by way of legal advice, that the Registrar had not power to register the rights of way nor to refer the matter to the Grand Court.
Relief Sought 3. RELIEF SOUGHT: 3.1 An order of certiorari to quash the decision contained in the letter of the Registrar of Lands dated 17 January 2017 aforesaid by which she conveyed a decision to the effect by which the Registrar conveyed the decision to the general effect that the Registrar had no power to register the rights of way aforesaid, and to send the matter back to the 3 rd Respondent to be reconsidered and decided in accordance with the findings of the Court; 3.2 An order of certiorari to quash the decision of the Attorney General contained in the letter of 27 March, 2017, Exhibit AMC-5 to the 1 st Joint Affidavit of the Applicants written to the Concerned Citizens Group to the effect that once an appeal is lodged with the Registrar under section 147 of the Registered Land Law, the appellants need to file an originating motion rather than the Registrar referring the matter to the Grand Court. 3.3 An order of mandamus directing the Registrar of Lands reconsider and decide the matter, in accordance with the findings of the Court, regarding the registration of the pertinent rights of way with respect to which affidavits were filed. … 3.4 Further and in the alternative, that the Registrar refer the matter to the Grand Court as required by section 147 of the Registered Land Law. 3.5 An order that the Respondents furnish the Applicants with reasons for the decision, as requested by the Applicants under section 19 of the Constitution of the Cayman Islands, and that such decisions be sufficient in law in terms of the details required as may be ordered by the Court; 3.6 A stay under Order 53 r 10(a) that no rights that are subject to the approximately 500 affidavits referred to herein be alienated until this matter is determined. 3.7 Costs, on the basis that the 2 nd Respondent's position is an abuse of authority and is not arguable; 3.8 Such further, consequential, or other relief as the Grand Court deems just. 3.9 An oral hearing is requested as per Order 53 rule 3 (3), unless the court finds it unnecessary.
Name and address of applicant's attorneys, or, if no attorneys acting, the address for service of the applicant	H. Phillip Ebanks, Attorney-at-Law, 19 Walkers Road, P. 0. 30422, Grand Cayman KY1–1202 Signed
Signed H. Phillip Ebanks	Dated 29th April 2019

1 GROUNDS ON WHICH RELIEF IS SOUGHT

2 (If there has been any delay, include reasons here)

3 Note — Grounds must be supported by an affidavit which verifies the facts relied on.

4. GROUNDS ON WHICH RELIEF SOUGHT;

4.1 ERRORS OF LAW:

4 4.1.1 The 2 ^nd Respondent and the 3 ^rd Respondent are wrong in law in holding that:

• • The Registrar has no power to register rights of way even in cases where the prescriptive rights of way are proven.

• • If the Registrar refuses to register the rights of way, she is not bound to refer the matter to the Grand Court and that it is rather the aggrieved applicant who should do so under Order 55 of the Grand Court Rules.

5 4.1.2 There are glaring errors of law in interpreting the statute in terms of substance. The following are the detailed arguments in that regard.

(a) Wrong general approach to the interpretation of the statute concerned

6 4.1.3 Statutes are not perfect and when a difficult problem arises, the courts must not immediately throw their arms up in the air and declare that there is nothing they can do. They must, within reason, do their best to do justice. In so doing, they must try to interpret the words used in the context in which they are used. This has been articulated by various authorities as follows.

7 4.1.4 In Seaford Court Estates Ltd. V. Asher (1949) 2 KB 481 at 498 Lord Denning said:

“Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and that even if it were, it is not possible to provide for them in terms free from ambiguity. The English language is not an instrument of mathematical precision… … This is where the draftsmen of Acts of Parliament have often been unfairly criticized.”

8 4.1.5 In the same case, Lord Denning went further to say (Quoted from p 13 of The Discipline of Law (London: Butterworths, 1979):

“We do not sit here to pull the language of Parliament… to pieces and make nonsense of it. That is an easy thing to do, and it is a thing to which lawyers are too often prone. We sit here to find out the intention of Parliament … and carry it out, and we do this better by… making sense of the enactment than by opening it up to destructive analysis.” (Emphasis added.)

9 4.1.6 Again in the same case of ( Seaford Court Estates Ltd. v. Asher 1949-2 All ER 155 at p.164), wherein Denning L.J. said-

“When a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament And then he must supplement the written word so as to give “force and

life” to the intention of the legislature…. A judge should ask himself the question, how if the makers of the Act had themselves come across this ruck in the texture of it, how would they would have straightened it out? He must do as they would have done. A judge must not alter the material of which it is woven, but he can and should iron out the creases.” (Emphasis added)

10 4.1.7 In other parts of the Commonwealth, India in particular, in the case of M. Pentiah and others v. Muddala Veeramallappa and others (AIR 1961 SC 1107) at para 27 the Supreme Court of India, while referring to the judgment rendered by Denning L.J., sought to rectify a mistake committed by draftsman in the following words:

“Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's unskillfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used. Nevertheless, the courts are very reluctant to substitute words in a Statute, nor to add words to it, and it has been said that they will only do so where there is repugnancy to good sense.”

11 4.1.8 Lord Simon is also on record in Ealing London Borough Council v. Race Relations Board (12. (1972) AC 342 at 361) saying:

“The courts have five principal avenues of approach to the ascertainment of the legislative intention: (1) examination of the social background, as specifically proved if not within the common knowledge, in order to identify the social or juristic defect which is the likely subject of the remedy; (2) a. conspectus of the entire relevant body of the law for the same purpose; (3) particular regard to the long title of the statute to be interpreted (and, where available, the preamble), in which the general legislative objects will be stated; (4) scrutiny of the actual words to be interpreted in the light of the established canons of interpretation; (5) examination of the other provisions of the statute in question (or other statutes in pari materia) for the light which they throw on the particular words which are the subject of interpretation.” (Emphasis added)

12 4.1.9 Elmer...