Between: (1) Crosby Collymore Ebanks (2) Wilson Jonathan Mendoza (3) Mario Alberto Gomez Petitioners v (1) The Governor of the Cayman Islands (2) The National Roads Authority (3) The Attorney General of the Cayman Islands Respondents
| Jurisdiction | Cayman Islands |
| Judge | Justice Cheryll Richards |
| Judgment Date | 19 August 2021 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO: G 163 of 2019 |
The Hon. Justice Cheryll Richards Q.C.
CAUSE NO: G 163 of 2019
IN THE GRAND COURT OF THE CAYMAN ISLANDS
CIVIL DIVISION
The Cayman Islands Constitution 2009, Claim under s. 26 (1), alleged breaches of s. 7 and s. 15. Compatibility with the Roads Act (2005 Revision)
Mr. Rupert Wheeler of KSG Attorneys for the Petitioners
Mr. Michael Smith of the Attorney General's Chambers for the Respondents
These are proceedings brought by the Petitioners pursuant to s.26 (1) of the Cayman Islands Constitution 2009 (“the Constitution”). Pursuant to this section any person may apply to the Grand Court on the basis that government has breached or threatened his or her rights and freedoms under Part 1 of the Constitution, the Bill of Rights, Freedoms and Responsibilities (“the BoR”).
By their Petition filed on the 27 th September 2019, as amended on the 9 th December 2019, the Petitioners aver that their rights and freedoms under s.15 (1) and s7 (1) of the Constitution have been breached by the Government of the Cayman Islands. The specific averments are that the Roads Act does not provide a direct or indirect right of appeal to the Grand Court against the legality of the interference with, taking of possession and acquisition of their land, and secondly, that they have been denied a right to a fair hearing as to the decision of the Governor in Cabinet under the Roads Act (2005 Revision) to make a declaration to acquire certain lands owned by them for the purpose of road building.
The Petitioners claim:
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i. A declaration that the Roads Act does not conform with the Petitioners' rights and freedoms under the BoR because it does not secure for the Petitioners a right of access to the Grand Court, whether direct or on appeal from any other authority, for the determination of the legality of the taking of their land;
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ii. A declaration that, pursuant to s.5 (1) of the Cayman Islands Constitution Order, the Roads Act shall be read and construed as providing a right of access to the Grand Court, whether direct or on appeal from any other authority for the determination of the legality of the taking of their land so as to bring the said Act into conformity with the Petitioners' rights and freedoms under the BoR;
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iii. Alternatively a declaration of incompatibility under s.23 (1) of the BoR to the extent that the Roads Act does not conform with the Petitioners' rights and freedoms under the BoR as described above.
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iv. An injunction preventing the Roads Authority from entering upon the Petitioners' lands for the purpose of laying a road.
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v. Damages
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vi. Costs
Pursuant to the GCR O.77A r.4 (2) the Respondents to the Petition are the Attorney General and other relevant public officials. Public officials are defined in s.28 of the Constitution as including any statutory body or company in which the Cayman Islands Government has an interest and any person carrying out a public function or duty including the Governor except where the nature of their act is private.
The First Respondent is the Governor of the Cayman Islands. Part II of the Constitution provides for the Office of Governor and for the functions and exercise of the functions of the Governor. By s.31, the functions of the Office are to be exercised in accordance with the Constitution and any other Act and subject thereto in accordance with any such instruction as may be addressed to the Governor by or on behalf of Her Majesty.
The Second Respondent is the National Roads Authority (“the NRA”). The NRA is a statutory Authority established under s.3 of the National Roads Authority Act. By s.5 of the Act, its responsibilities, functions and duties include:
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(i) The administration, management, control, development and maintenance of the public roads and related facilities;
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ii) To plan, design, construct, develop, maintain, protect and administer public roads and related road works.
The Third Respondent is the Attorney General in his capacity as the principal legal advisor to the Government of the Cayman Islands.
The Petition is verified by the First Affidavit of the Second Petitioner, Wilson Jonathan Mendoza dated 27 th September 2019. He attests to the truth of the contents of the Petition and produces various documents which are said to be relevant to the Petition.
The three Petitioners are the registered proprietors of three parcels of land in the North West Block of the district of West Bay. The First Petitioner, Crosby Collymore Ebanks is the proprietor of Block 4B Parcel 9. The Second Petitioner, Mr. Mendoza is a joint proprietor of Block 4B, Parcel 3. The Third Petitioner, Mario Alberto Gomez is the Proprietor of Block 4B Parcel 8.
On the 23 rd August 2019, a Road Notice was published in the Cayman Islands Gazette by the Clerk of the Cabinet on behalf of the Cabinet of the Cayman Islands 1. The Notice published was a Declaration under s. 3 of the Roads Act. It stated that in exercise of the powers conferred on the Governor in Cabinet by that section and acting upon the recommendation of the NRA, it is declared that it is the intention of the NRA to gazette a new public road at West Bay North West, Block 4B, Boundary Plan 626. The Notice listed the portions of land required for construction of the road including three portions owned by the Petitioners and stated that the Plan was available for inspection at the offices of the NRA or at the Lands and Survey Department or on a web portal.
Thereafter the three Petitioners each received similar letters from the Lands and Survey Department which were stated to have been written on behalf of the Governor. The letters advised of the Declaration made, the publication of the Notice and of their right to claim compensation. A copy of the Notice and of Boundary Plan 626 was enclosed, together with a compensation Claim Form.
The letters 2 stated in part:
“Section 9 of the Law details provisions by which persons affected may serve notice of intent to claim for compensation (Form A) to His Excellency the
Governor not later than 22 nd November 2019, being ninety (90) days after the declared day.For further information on the procedures please refer to the notes on the rear of the enclosed Form and/or the attached Guide to compensation.”
The declared day is the day of publication of the Notice in the Gazette.
On the 11 th September 2019, another Road Notice was published in the Cayman Islands Gazette by the Clerk of the Cabinet on behalf of the Cabinet of the Cayman Islands 3. This was entitled s.6 Authorisation to Enter Lands under the said Act and stated in part that “In exercise of the powers conferred on the Governor in Cabinet by s.6 of the Roads Law (2005 Revision), and acting upon the recommendation by the National Roads Authority, it is hereby declared that it is in the public interest to widen the road along the highway” in West Bay North West, Block 4B, (“the road works”). The Notice further stated that the NRA and its agents are authorised within 15 days of the Gazette publication to enter upon the seven parcels of lands as listed in a schedule for the purpose of carrying out the road works as publicly declared in the earlier notice under s.3 of the Act. Three of the seven parcels are the parcels belonging to the Petitioners as identified above.
As a result of the proposed road works the anticipated area to be lost by the Petitioners in acres are 0.09, 0.11 and 0.10 respectively. Notice was also provided that the anticipated boundaries of the road works are as shown edged in green on Boundary Plan 626 which Plan could be inspected at the said locations stated above.
On the 2 nd October 2019, the Petitioners filed an Ex Parte Summons in the Grand Court seeking orders that the NRA vacate their lands and cease all road construction works taking place thereon and be restrained from entering on their lands for the purpose of laying or constructing a road.
The application was supported by the Second Affidavit of Mr. Mendoza dated 2 nd October 2019. He stated therein that he was authorised to make the Affidavit on behalf of all three
Petitioners. He gives the sequence of events as being that on the 27 th September 2019, following the publication of the Notice, a NRA construction crew arrived in the area of the lands of the Petitioners and commenced work. The Petitioners filed the Petition on the said day and by letter requested confirmation from the Attorney General that the NRA would cease all construction work, pending the hearing of the Petition. A response was received on the 1 st October 2019 which advised that instructions were being sought on the matter. In the interim NRA construction crews returned to the site on the 28 th and 30 th September 2019 and again on the 1 st and 2 nd October 2019On the 3 rd October 2019, the Grand Court granted the application of the Petitioners for an Injunction and made an Order in the terms sought. The Injunction continues in effect.
There was a Directions hearing on the 6 th December 2019 at which Orders were made by consent. These included the grant of leave to the Petitioners to amend the Petition, directions as to a date for the filing of Points of Reply to the Petition by the Respondents and the adjournment of the question of damages until after the judgment on the Petitioner's Claims for Declaratory Relief. Additionally by paragraph 6 of the said Order the Respondent was given the option to serve any affidavit evidence in response.
No evidence has been filed by the Respondent for the purpose of this hearing.
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