Mackenzie Frank and another v Attorney General of Antigua and Barbuda
| Jurisdiction | UK Non-devolved |
| Judge | Lord Burrows,Lady Rose,Lord Reed,Lord Sales,Lord Hamblen |
| Judgment Date | 13 June 2022 |
| Neutral Citation | [2022] UKPC 25 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0070 of 2021 |
[2022] UKPC 25
Lord Reed
Lord Sales
Lord Hamblen
Lord Burrows
Lady Rose
Privy Council Appeal No 0070 of 2021
Privy Council
Trinity Term
From the Court of Appeal of the Eastern Caribbean Supreme Court (Antigua and Barbuda)
Appellants ( Mackenzie Frank and Trevor Walker)
Justin L Simon QC
Sylvester Carrott
Kwame L Simon
(Instructed by Royds Withy King (London))
Respondent
Anthony Astaphan SC
Carla Brookes-Harris
Dr David Dorsett
(Instructed by Axiom DWFM Ltd (London))
Lord Burrows AND( with whom Lord Reed, Lord Sales and Lord Hamblen agree)
This appeal concerns a claim brought by two Barbudans, Mackenzie Frank and Trevor Walker. Both have represented Barbuda in the Parliament of Antigua and Barbuda and have previously held Ministerial office. They and a number of fellow Barbudans are opposed to a major tourism development on Barbuda involving the building of a hotel resort. For the purposes of that development, 391 acres of land have been leased by the Government of Antigua and Barbuda to Paradise Found LLC for 99 years for a rental payment of US$5.2m payable, on the signing of the lease, to the Government of Antigua and Barbuda. There is an option to renew the lease for a further 50 years, exercisable on completion of the resort, for a further rental payment of $1m. That lease has been approved by the Paradise Found (Project) Act 2015.
The claimants allege, in an action commenced on 6 June 2016, that the grant of the lease infringes their rights under section 9(1) of the Antigua and Barbuda Constitution (1981) (“the Constitution”) protecting them from deprivation of property and that, therefore, the Paradise Found (Project) Act 2015 is void and/or they are entitled to payment of fair compensation (and vindicatory damages). The defendant, the Attorney General of Antigua and Barbuda, representing the Government of Antigua and Barbuda, has sought to strike out the claim as disclosing no cause of action and/or as being an abuse of process.
It is helpful to set out straightaway section 9(1) of the Constitution:
“9. Protection from deprivation of property
(1) 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.”
The central issue on this appeal is whether the claimants have an “interest in or right to or over property” which is protected by section 9(1) in relation to the land on Barbuda that has been leased to Paradise Found LLC. In the High Court of Justice of the Eastern Caribbean Supreme Court, in a judgment dated 19 February 2018, Wilkinson J dismissed the Attorney General's application to strike out the claim. However, on appeal by the Attorney General, that decision was overturned and the claim was struck out by the Court of Appeal of the Eastern Caribbean Supreme Court in a judgment dated 26 June 2020. The lead judgment of the Court of Appeal was given by Bennett JA (Ag) with the concurrence of Thom JA and, while adding some reasons of his own, of Michel JA. The claimants now appeal to the Board.
The main submission of the claimants is that they have a proprietary interest or right protected under section 9(1) of the Constitution because they are Barbudans. They rely on the provisions of the Barbuda Land Act 2007, in particular on section 3 which states that all land in Barbuda “shall be owned in common by the people of Barbuda” and that title to all land in Barbuda shall vest in the Crown “on behalf of the people of Barbuda”. Section 3 has subsequently been repealed by the Crown Lands (Regulation) ( Amendment) Act 2018 but was in force at the time the lease to Paradise Found LLC was granted.
It is well-established that the strike-out jurisdiction extends to constitutional claims (see Ingraham v Glinton [2006] UKPC 40; [2007] 1 WLR 1, para 11). Moreover, there is no dispute between the parties as to the relevant test for striking out a claim. That test is whether the claim has a realistic prospect of success. In this case the facts are straightforward and are not in dispute (and have been set out in para 1 above). The Board and the courts below have been presented with a pure question of law. In Easyair Ltd (trading as Openair) v Opal Telecom Ltd [2009] EWHC 339 (Ch), Lewison J made clear at para 15(vii) that where a case raises a point of law and “the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the [claimant's] case is bad in law, he will in truth have no real prospect of succeeding on his claim …”. In order to determine whether the claim should be struck out the Board should therefore “grasp the nettle” and decide the point of law one way or the other.
In 1980, the Antigua Constitutional Conference was held at Lancaster House in London to discuss independence from the United Kingdom. On 1 November 1981, as embodied in the Constitution, Antigua and Barbuda obtained independence as the sovereign unitary state of Antigua and Barbuda.
Section 9(1) of the Constitution, which has been set out in para 3 above, falls within Chapter II of the Constitution which sets out, in sections 3 to 17, the fundamental rights and freedoms of every person in Antigua and Barbuda. Section 18, which is invoked in this case, provides that, if any person alleges that any of the provisions of sections 3 to 17 has been or is being or is likely to be contravened in relation to him, that person may apply to the High Court for redress. The High Court has jurisdiction to hear and determine any such application and to make such declarations and orders as appropriate for the purpose of enforcing those rights.
The Constitution also contains, amongst other things, detailed provision for the main organs of state: the Governor General as Her Majesty's representative, a Senate with 17 appointed members, a President who is a Senator elected by the Senate, a directly elected House of Representatives, and a Prime Minister and Cabinet (which is in practice the Executive/Government of the state of Antigua and Barbuda).
Section 123 of the Constitution provides that “There shall be a Council of Barbuda which shall be the principal organ of local government in that island”. The Barbuda Council (“the Council”) “shall have such membership and functions as Parliament may prescribe”. In fact, the Council predates the Constitution having been set up in 1976 by the Barbuda Local Government Act (“the BLG Act”). This established the Council as a body corporate, provided for its membership, and conferred on it the functions, duties and powers referred to in the subsequently enacted section 123 of the Constitution. One must therefore look to the BLG Act to see how the Council operates.
The powers of the Council prescribed in the BLG Act include the power, under section 3 of that Act, “to purchase, acquire, hold, mortgage and dispose of land and other property”. Council members must have a strong connection by birth with Barbuda and be ordinarily resident on the island: section 6(1). By section 12, the members of the Council are elected by an electorate comprising those people who are entitled to vote for the member of the House of Representatives who represents the constituency of Barbuda in the Parliament of Antigua and Barbuda. Sections 18–21 provide for the responsibilities and duties of the Council which cover a wide range of public functions including to administer agriculture, public health and utilities services, to construct and maintain roads, and to raise revenue. Section 18(4) provides that it is the duty of the Council to promote hotel and tourism development in accordance with, and subject to, any law relating to the alienation of land, foreign investment or tax incentives. The BLG Act provides for the Cabinet to be involved in the exercise by the Council of its functions, with a power conferred on the Cabinet to give general or special directions as to the policy the Council should follow in respect of some, though not all, of its duties, and with the approval of the Cabinet being required for certain decisions. For example, section 21 provides that the Council may, with the sanction of the Cabinet, acquire by lease or purchase lands and buildings “for any purpose of public utility” (section 21(1)).
The Board is here grateful to rely on the historical summaries set out in the judgment of Sir Dennis Byron CJ (with whom Satrohan Singh and Redhead JJA agreed) in Attorney General v Barbuda Council (2002) 65 WIR 93, paras 15–20; and in the judgment of Bennett JA (Ag) at paras 2–11 in this case.
Starting in 1632, the islands of Antigua and Barbuda were colonised by the English. In 1685, Barbuda was leased to brothers John and Christopher Codrington and was subsequently and continuously leased to members of their family for over 200 years. The inhabitants of the island are the descendants of slaves that the Codringtons brought to Barbuda by force and who remained in Barbuda as slaves until slavery was abolished in 1834. The Codrington family surrendered their leasehold interest in the island in 1870 and the land reverted to the Crown. After 1870, the Crown granted...
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