THA wins Pigeon Point battle

ANSA MCAL yesterday lost another round of legal battle when High Court Judge Mira Dean-Amorer dismissed a constitutional motion filed by Club Pigeon Point, challenging the State’s decision to compulsorily acquire beach front lands at Pigeon Point, Tobago. Club Pigeon Point is a subsidiary of Ansa McAL, which is operated by Robinson Crusoe Ltd. In a 39-page judgement yesterday, Justice Dean-Amorer explained that “in her view, Club Pigeon Point has failed on the evidence to establish that it has suffered or is likely to suffer a contravention of any of its fundamental rights.” She then informed the court that the motion was dismissed and made an order that the State’s costs be paid by Club Pigeon Point. However, Dr Fenton Ramsahoye QC, who appeared on behalf of Club Pigeon Point, called on the court to reconsider the request for Club Pigeon Point to pay the State’s entire cost, since the State had also put forward arguments in the matter. He then suggested that Club Pigeon Point pay 5/8 of the cost, and the State 3/8.

State attorney John Jeremie explained that since Club Pigeon Point had not succeeded on any of the seven grounds filed that they should be made to pay the entire cost. The judge then ruled in favour of Club Pigeon Point on the issue of costs. In her judgement, Justice Dean-Amorer explained that after hearing the submissions and reading the authorities (legal arguments) presented by the State and Club Pigeon Point attorneys, the court had come to the decision that there was no parallel remedy. In explaining the decisions made on the seven grounds that were presented by Club Pigeon Point, Justice Dean-Amorer explained that an application for judicial review would have been thrown out as premature with respect to the intended acquisition, since the likelihood of irrationality or illegality or breach of natural justice are not grounds for judicial review. On the issue of the interpretation of the Act and the implied right to be heard, Justice Dean-Amorer explained that compulsory acquisition may be effected under Section 5. She noted that the scheme of the Act requires that, in ordinary situations, land owners be notified of the intended acquisition and be given the opportunity to be heard by making representations to the Secretary of Cabinet. She further explained that a six-week period is allotted for the President to act on or consider these representations.

However, the Act dispenses of this action if it is the President’s view that there is a need for expedition in the national interest. She explained that in her view, the 1994 Act had gone beyond its predecessor of 1947 in entitling landowners, or the interested party in ordinary circumstances the traditional benefits of due process. She explained that on a literal interpretation, there is no provision for a right to be heard and ruled that there was no breach of Club Pigeon Point’s rights under the constitution once the land is acquired in strict compliance with the Act. Justice Dean-Amorer noted that the Tobago House of Assembly could not be considered a “promoter” under the Act, since any acquisition must be effected by the central Government. She also pointed out that after reviewing the submissions there was no evidence of politically motivated bad faith in the matter. The judge also noted that no evidence was presented to support Club Pigeon Point’s claims that there was a reduction of value of the land. She noted that support could have been given to this accusation if the Club’s operators had presented expert witnesses to testify to the land’s value and documentation of client turnover for the period. She then presented the judgement in the case. Attempts by Newsday to contact the executive of the Ansa McAl Group proved futile. Dr Ramsahoye, Rikki Harnanan and Adrian Byrne appeared on behalf of Club Pigeon Point, while Dr Barnett, Karen Fournillier, Terrance Thorne and John Jeremie, instructed by Rohana Hosein represented the THA.