Stanford International Bank Ltd v Lapps
| Jurisdiction | UK Non-devolved |
| Judge | Lord Scott of Foscote |
| Judgment Date | 20 November 2006 |
| Neutral Citation | [2006] UKPC 50 |
| Court | Privy Council |
| Docket Number | Appeal No 19 of 2005 |
| Date | 20 November 2006 |
[2006] UKPC 50
Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Hoffmann
Lord Scott of Foscote
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
Privy Council
[Delivered by Lord Scott of Foscote]
Introduction
The long drawn-out litigation that has led to this appeal to the Board has been caused by a dispute over a small piece of land, 0.6 of an acre or thereabouts, in the vicinity of the VC Bird International Airport in Antigua. It is impossible to make sense of the issues that the Board must resolve on this appeal without first describing the history and events that led to the commencement of the litigation.
As long ago as 1966 the respondent, Mr Austin Lapps, acquired from the Government of Antigua and Barbuda Crown land close to the Airport (then known as Coolidge International Airport). He used the land for carrying on a car rental business and in about 1970 began using the disputed piece of land, also Crown land, for the purpose of parking some of the vehicles he used in his business. Mr Lapps said in the witness statement which constituted his evidence at the trial that permission to do so had been given to him by the Government. There was, however, nothing in writing evidencing the permission and no formal cabinet decision authorising Mr Lapps' use of the land was ever made. Nonetheless Mr Lapps undoubtedly went into occupation of the land in or about 1970 and remained in undisturbed occupation until the events in 1995 and 1996 to which their Lordships will refer. Mr Lapps has never suggested that his occupation of this land constituted adverse possession. He believed throughout that he was occupying with the permission of the Government.
In the Cadastral Survey of 1976 the 0.6 of an acre was surveyed, along with other land in the vicinity, and became part of Parcel 384, Block 41 2094A, in the Barnes Hill and Coolidge Registration Section. Parcel 384 comprised 3.06 acres. Mr Lapps says that at around this time he approached Mr V.C. Bird, the then Prime Minister of Antigua and Barbuda, asked to be allowed to purchase or lease the 0.6 of an acre but was told the Government had not yet decided what to do with the land. He, Mr Lapps, says that in 1984 he repeated his request to Mr Bird and was assured that steps would be taken to regularise his occupation of the land.
Shortly thereafter, in 1985, Mr Lapps commenced the construction of an hotel on the land on which he had been conducting his car rental business. The hotel, the Lapps Airport Hotel, opened in 1987 with 12 rooms. It has since expanded to 40 rooms. No part of the hotel is on the 0.6 of an acre. After the opening of the hotel Mr Lapps continued his attempts to persuade the Government to sell or lease him the 0.6 of an acre. He says that in 1991 the then Minister of Agriculture told him that he would be getting a 99 year lease. His occupation of the land continued. He used it mainly for the purpose of storing construction materials.
In 1995 the appellant bank, Stanford International Bank Ltd, enters the story. Mr Lapps says that in the early part of 1995 he was paid a number of visits by servants or agents of the bank who made him offers to purchase his hotel, all of which offers he refused. But, he says, in October 1995, on returning to Antigua from abroad, he found that the bank had fenced in part of the 0.6 of an acre and planted a number of shrubs and other plants on the fenced-in area. In his witness statement Mr Lapps said that he made immediate complaints to the then Prime Minister, Mr Lester B. Bird, and continued in his witness statement as follows:
"He assured me that Stanford was temporarily propagating some plants with which he hoped to beautify the airport, that the land was not for sale and Mr Stanford had no authority to interfere with the land I had been occupying. I thereafter prevented Mr Stanford from any further use of the said land."
Mr Lapps had given testimony to the same effect in an affidavit he swore on 17 September 1996 in interlocutory proceedings. After referring to the Prime Minister's assurances Mr Lapps continued:
"I proceeded to prevent Mr Stanford from any further use of the lands, pointing out to him that he already had sufficient land on which to propagate his plants."
On 6 December 1995 a decision was made by the Cabinet of Antigua and Barbuda to grant the bank a 99 years lease of Parcel 384 (which included the 0.6 of an acre). The lease was formally executed and dated 19 July 1996. It granted the bank a lease of Parcel 384 for a term of 99 years from 25 August 1995 at a premium (described as a "total rent") of $198,000 payable prior to execution.
It is not in dispute that the lease granted to the bank was validly and effectively granted. The procedure to be followed for the leasing or otherwise disposing of Crown lands in Antigua and Barbuda was deposed to by Mr Lionel Stevens in paragraph 7 of his affidavit of 14 June 2002. Mr Stevens was at the date of the affidavit, and had been for the previous 25 years, Secretary to the Cabinet of Antigua and Barbuda. In paragraph 8 of his affidavit he added this:
"Based on my research and my own personal knowledge, there is [not] and never was any agreement between the Government of Antigua and Barbuda and Mr Austin Lapps wherein the Government agreed to lease or otherwise dispose of lands at Coolidge now described as Registration Section: Barnes Hill & Coolidge, Block: 41 2094A, Parcel: 384 or any part thereof [to] Mr Lapps."
He was not cross-examined.
Also on 19 July 1996 the bank, a non-citizen for the purposes of the Non–Citizens Land Holding Regulation Act, was granted a licence to hold as lessee the land, Parcel 384, demised by the lease.
By a letter to Mr Lapps dated 25 July 1996 the bank's attorneys, Cort & Associates, informed him of the bank's lease of Parcel 384, referred to his use of part of the leased property (i.e. the 0.6 of an acre) for the purpose of storing construction materials, and continued:
"In the premise, I am to advise that my Client intends to fully utilize the entire leased property and, in the circumstance, hereby request that you remove the said construction materials and debris therefrom by 9th August, 1996. Please be guided accordingly."
The Registered Land Act of Antigua and Barbuda requires a lessee to be registered in the Land Registry as the proprietor of the lease. Until registration has taken place a legal estate in the land comprised in the lease does not vest in the lessee (see section 25). On 20 August 1996 the bank was duly registered as lessee of Parcel 384.
Mr Lapps failed either to respond to the letter to him of 25 July 1996 or to remove his construction materials from the 0.6 of an acre. So the manager of the bank, Mr Edward Smith, wrote him a letter dated 26 August 1996 asking for the removal of his (Mr Lapps') materials and debris within twenty four hours. "Otherwise", said the letter, "we will ensure that this is done ourselves". Mr Lapps took no action in response to this letter either and, by a letter of 30 August, Mr Smith wrote again. In this letter Mr Smith, after referring to the danger of leaving materials lying around loose in the hurricane season, said that the bank was in the process of moving Mr Lapps' materials, under the supervision of the police, to a building a few hundred yards away to which Mr Lapps would be given access.
The letter of 30 August 1996 was presented personally to Mr Lapps on that date, but Mr Lapps refused to accept it. So it was mailed to Mr Lapps' business address. This had the consequence that the process of attempting to move Mr Lapps' materials from the 0.6 of an acre to the nearby building commenced without Mr Lapps having read the letter. So the bank's actions on 30 August may have come as a surprise to him. But that was not the bank's fault. In paragraph 8 of his affidavit sworn on 11 September 1996 Mr Edward Smith said this:
"While in the process of commencing the operation in respect of moving the said materials, Mr Lapps vehemently objected and embarked upon a process of extremely threatening behaviour upon which the plan to remove the said materials and debris was aborted."
The events of 30 August 1996 must have induced Mr Lapps to consult attorneys for in the afternoon of that day an attorney, Mr Collins, acting for Mr Lapps, asked Mr Smith to supply evidence of the bank's leasehold interest in Parcel 384. On 3 September Mr Collins met the bank's attorneys, was shown the relevant documentation evidencing the lease and requested further time, until 6 September, for Mr Lapps to vacate the 0.6 of an acre. The bank renewed its offer to remove and store the construction materials. However Mr Lapps did not remove his construction materials from the site and refused to allow the bank to do so. So the bank commenced proceedings.
The proceedings
The bank's writ and statement of claim, issued on 11 September 1996, was short and simple. It pleaded the bank's lease and Mr Lapps' refusal to vacate the 0.6 of an acre and claimed possession of the land, an order for an injunction restraining any further use of the land by Mr Lapps and damages for trespass. On the same day an ex parte application for an injunction, supported by Mr Smith's affidavit of 11 September 1996, was made. Benjamin J made an ex parte order requiring Mr Lapps to remove his construction materials by Tuesday 17 September 1996.
By a letter of 17 September 1996 from his attorneys, Bird & Bird, Mr Lapps requested a two week extension of time to comply with Benjamin J's order and on the same day swore an affidavit. The affidavit contained a number of allegations about a Mr Allan Stanford, who their Lordships assume to be the...
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