Malik Momin v February Point Resort Estates Ltd
| Jurisdiction | UK Non-devolved |
| Judge | Lord Burrows |
| Judgment Date | 21 February 2022 |
| Neutral Citation | [2022] UKPC 3 |
| Docket Number | Privy Council Appeal No 0048 of 2020 |
| Court | Privy Council |
[2022] UKPC 3
Lord Hodge
Lord Briggs
Lady Arden
Lord Sales
Lord Burrows
Privy Council Appeal No 0048 of 2020
Hilary Term
From the Court of Appeal of the Commonwealth of the Bahamas
Appellant
Candice Hepburn
(Instructed by Sheridans)
Respondent
Richard Wilson QC, LL.D
Christina Galanos
(Instructed by Howard Kennedy LLP)
This case raises a short, but important, question of statutory interpretation. It concerns that aspect of the planning laws in The Bahamas dealing with what are referred to as subdivisions. In general terms, subdivisions are areas of land that have been divided into lots for the purposes of development and sale. By statute, approval is required from the relevant planning authorities for such subdivisions. The question that arises on the facts of this case may be expressed as follows: if the necessary planning approval for a subdivision has not been obtained, what effect does that have on an agreement to sell a lot (and the conveyance of a lot) in the subdivision?
The answer to that question principally turns on the correct interpretation of section 62 of the Planning and Subdivision Act 2010 (Bahamas) (“the 2010 Act”). It is therefore helpful to set out section 62 straightaway:
“ 62. Title to property
(1) Any conveyance made after the Act comes into effect regarding lots not granted prior Subdivision Approval shall be null and void.
(2) Notwithstanding subsection (1), where the beneficial owner of a lot in a subdivision prior to the commencement of this Act, conveyed or agreed to convey land within the subdivision but failed to obtain —
(a) the approval of the Town Planning Committee in accordance with section 8 of the Private Roads and Subdivision Act (Ch 256); or
(b) the approval of the Minister in accordance with section 4 of the Private Roads and Subdivision Act (Ch 256); and section 4 of the Private Roads and Subdivision (Out Islands) Act (Ch 257),
such agreement to convey or conveyance shall not be null and void due to the failure to obtain the approval under subparagraph (a) or (b) and any person who obtained title to a lot within the subdivision shall not be prejudiced by the failure of the owner of the subdivision to obtain the necessary approval under sub-paragraph (a) or (b).”
Malik Momin, the plaintiff and respondent, is a citizen of the United States of America. February Point Resort Estates Ltd, the defendant and appellant, is a Bahamian company. On 18 February 2008, the defendant entered into an agreement with the plaintiff for the sale of a lot in a subdivision for $895,000. The lot is No 36 Elizabeth Harbour Estates on the Island of Exuma, one of the islands of the Commonwealth of The Bahamas.
The price was payable by the plaintiff in instalments as follows: (i) an initial deposit of $350,000 on the signing of the agreement, (ii) a subsequent payment of $125,000 by 1 August 2008, and (iii) a further payment of $120,000 by 1 February 2009. The balance of the purchase price of $300,000 was to be paid in equal consecutive monthly instalments from 1 March 2008, carrying simple interest at 7%. By clause 5.11 of the sale agreement, the defendant was to retain rights and interest in the lot until all payments had been made.
The full price had been paid as of February 2013. A dispute then arose between the parties. The plaintiff purchaser argued that he was entitled to the return of the money he had paid because the defendant vendor had not obtained the Subdivision Approval required by the 2010 Act and, by reason of section 62(1), there could be no valid conveyance to him. The defendant argued that it was able and willing to convey the property to the plaintiff and that, applying section 62(2), that conveyance would not be null and void even though there had been a failure to obtain the necessary approval for the subdivision: the plaintiff was therefore not entitled to the return of the purchase price paid.
It is helpful to set out a number of other statutory provisions at this stage. The first few are in the 2010 Act.
“ 3. Purposes of the Act
(1) The objects and purposes of this Act are to —
(a) provide for a land use planning based development control system led by policy, land use designations and zoning;
(b) prevent indiscriminate division and development of land;
(c) ensure the efficient and orderly provision of infrastructure and services to the built environment;
(d) promote sustainable development in a healthy natural environment;
(e) maintain and improve the quality of the physical and natural environment;
(f) protect and conserve the natural and cultural heritage of The Bahamas;
(g) provide for planning processes that are fair by making them open, accessible, timely and efficient;
(h) recognize the decision making authority and accountability of the Government in land use planning; and
(i) plan for the development and maintenance of safe and viable communities,
within the policies, and by the means, provided under this Act.
4. Interpretation
(1) In this Act —
[…]
‘ owner’, in relation to any land, means a person other than a mortgagee not in possession who, whether in his own right or as trustee or agent for any other person, has the freehold or the legal right to possession of the land and is entitled to receive the economic rent of the land or, where the land is not let at an economic rent, would be so entitled if it were so let and includes a person who is an owner with another person as joint tenant or tenant in common of a freehold estate;
[…]
49. Sale of land in new subdivision
(1) No lots shall be sold, agreed to be sold, conveyed, agreed to be conveyed, demised or agreed to be demised in any subdivision that has not received Subdivision Approval by the Committee in accordance with the provisions of this Act.
[…]
61. Offences and penalties
(1) Any person who contravenes the provisions of Part V of this Act [which includes section 49(1)] shall be liable on summary conviction to a fine of twenty thousand dollars or imprisonment for one year.
[…]”
The 2010 Act repealed the Private Roads and Subdivision Act (ch 256) and the Private Roads and Subdivision (Out Islands) Act (ch 257). But it remains useful to set out two provisions, section 5 and section 9(2), from the latter Act:
“ 5. Restriction on selling or disposing of lots in new subdivision
No owner shall sell, agree to sell, convey, agree to convey, demise or agree to demise any land in a new subdivision unless the approval of the Minister has been given under section 4 of this Act …
9. Penalties
(1) […]
(2) Any person contravening the provisions of section … 5 of this Act shall be guilty of an offence against this Act and shall be liable on summary conviction to a fine not exceeding four thousand dollars and, in the case of a continuing offence to a further fine not exceeding forty dollars for each day during which such contravention continues.”
It is helpful to clarify that the date the 2010 Act came into force, repealing the Private Roads and Subdivision Act (ch 256) and the Private Roads and Subdivision (Out Islands) Act (ch 257), was, as regards most of The Bahamas, 15 January 2011 but, as regards certain islands, including the Island of Exuma, 1 December 2011. Therefore, those are the relevant dates for the purposes of the references in section 62(1) of the 2010 Act to “after the Act comes into effect” and in section 62(2) to “prior to the commencement of this Act”.
Throughout the rest of this judgment, we shall refer, for shorthand, to pre-Act conveyances and agreements to convey, on the one hand, and post-Act conveyances and agreements to convey, on the other hand. It follows from what has been said in the last paragraph that the relevant date for pre-Act and post-Act is, for Exuma, 1 December 2011 (or, for most of The Bahamas, 15 January 2011). On the facts of this case, it is clear that the relevant agreement to convey was pre-Act (it was made on 18 February 2008) and the conveyance in issue would be post-Act.
In the Supreme Court of the Commonwealth of The Bahamas, Charles J decided the issue in favour of the defendant vendor. She laid particular stress on section 62(2) which she interpreted as seeking to ensure that pre-existing rights were not affected by section 62(1). She drew support for this interpretation from the case of Dalton v Lyford Cay Co [1984] BHS J No 6, which concerned an agreement for the sale of land to a foreign person (the plaintiff) without a permit as required by the Immovable Property (Acquisition by Foreign Persons) Act 1981. That Act had come into force after the agreement for the sale of the land to the foreign person had been made but before conveyance of the title to the land. It was there held that, applying an express non-retrospectivity provision in the statute and the general principle against statutes operating retrospectively, the plaintiff was entitled to the conveyance of the legal title without needing a permit because he had already acquired an equitable title to the land. Charles J also drew some support from Oceania Heights Ltd v Willard Clarke Enterprises Ltd [2013] UKPC 3 (“ Oceania”) in which the Privy Council held that, despite necessary approvals not having been obtained for a conveyance of land on Exuma under the Private Roads and Subdivision (Out Islands) Act (ch 257), a conveyance could pass good title. In so doing the Privy Council upheld the Court of Appeal which had reversed the first instance decision that, without the necessary approval, a conveyance was null and void.
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