Franklin Masanto v Attorney General

• Jurisdiction: Grenada
• Judge: CUMBERBATCH,
• Judgment Date: 28 October 2009
• Judgment citation (vLex): [2009] ECSC J1028-1
• Court: High Court (Grenada)
• Docket Number: CLAIM NO. GDAHCV2007/0284
• Date: 28 October 2009

[2009] ECSC J1028-1

IN THE SUPREME COURT OF GRENADA

AND THE WEST INDIES ASSOCIATED STATES

HIGH COURT OF JUSTICE

(CIVIL)

CLAIM NO. GDAHCV2007/0284

In the Matter of Section 6 (1) and Schedule 2 of the Grenada Constitution Order, 1973

and

In the Matter of the Land Acquisition Act Chapter 159 of the 1990 Revised Edition of the Laws of Grenada

and

In the Matter of Compulsory Acquisition of a Lot of Land Measuring 28,582 Square Feet Situate at Morne Rouge South in the Parish of Saint George on the State of Grenada Belonging to Franklin Masanto

Between:

Franklin Masanto

Claimant

and

The Attorney General

Defendant

Appearances:

Mr. G. Delzin and Mrs. Emmanuel-Steele for the Claimant

Mr. R. Glasgow for the Defendant

1 CUMBERBATCH, J.: The Claimant was at all material times the owner in fee simple of immovable property ('the property') hereinafter set out and described as follows:

CUMBERBATCH,

"… certain hereditaments situate at Morne Rouge South in the parish of Saint George in the State of Grenada measuring 3 acres 2 poles and more particularly delineated and described in a map or plan drawn by James Landreth Smith dated 9^th November 1910 recorded in the Registrar's Office and thereon numbered 18."

By consecutive publications in the Grenada Gazette of April 13^th 1984 and April 19^th 1984, the property was acquired by the Government of Grenada for public purposes. It is common ground that the said property was indeed acquired for the construction of a road leading to what became known as the Point Salines International Airport. The validity of the acquisition has not been challenged in this action.

2 On the 2^nd July 2007 the Claimant filed an Originating Motion seeking the following relief:

• "1. A declaration that the compensation due to the Claimant in respect of the compulsory acquisition by the Government of Grenada of the lot of land containing by admeasurement 28,582 square feet situate at Morne Rouge South, St. George's, Grenada, is such sum representing the full and just equivalent of the value of the said lot of land as at the date of the said compulsory acquisition together with interest thereon calculated in such manner and at such rate as would take into account and compensate the Claimant for the loss incurred by the Claimant as a result of the compulsory acquisition and the excessive delay in payment of compensation in respect thereof:

• 2. an Order determining the amount of full compensation to which the Claimant is entitled

• 3. an Order for prompt payment of such full compensation on or before a date to be fixed by the Court; and

• 4. the costs of this action to be awarded to the Claimant in any event.

3 In an affidavit in support of his motion the Claimant avers that the Claims Commission appointed by the then Governor General, Sir Paul Scoon, had recommended that he be compensated for the loss of his property at the rate of EC$2.42 per square foot, this being the estimated market value of his land at the time of acquisition in 1984, together with interest thereon at 10% per annum.

4 The acting Director of Lands and Surveys Mr. Trevor Barclay in an affidavit in response attested that the current market value of the property at the relevant period of time in 1984 was EC$0.50 per acre. The report of the aforesaid Claims Commission also estimated that that was the market value of the property and not EC$2.42 as was stated by the Claimant aforesaid.

5 Section 6 (1) of the Constitution of Grenada provides as follows:

"6. (1) No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except where provision is made by a law applicable to that taking of possession or acquisition for the prompt payment of full compensation."

6 The court is the guardian of the fundamental rights and freedoms enshrined in the Constitution, a duty which must be fearlessly carried out and zealously guarded. The fact that the Claimant has been obliged to bring this claim speaks volumes of the breach of his Constitutional rights aforesaid. He was neither compensated promptly or at all. I will refer to this breach later in this judgment.

7 The Land Acquisition Act Cap 159 of the Revised Laws of Grenada provides at section 19 as follows:

"19. Subject to the provisions of this Ordinance, the following rules shall apply to the assessment and award of compensation by a Board for the compulsory acquisition of land -

• a. the value of the land shall, subject as hereinafter provided, be taken to be the amount which the land, if sold in the open market by a willing seller, might have been expected to have realized at a date twelve months prior to the date of the second publication in the Gazette of the declaration under section 3:

  Provided that this rule shall not affect the assessment of compensation for any damage sustained by the person interested by reason of severance, or by reason of the acquisition injuriously affecting his other property or his earnings, or for disturbance, or any other matter not directly based on the value of the land;

• b. the special suitability or adaptability of the land for any purpose shall not be taken into account if that purpose is a purpose to which the land could be applied only in pursuance of statutory powers, or for which there is no market apart from the specialneeds or a particular purchase or the requirements of any Ministry or Government department;

• c. where the value of the land is increased by reason of the use thereof or of any premises thereon in a manner which could be restrained by any court, or is contrary to law, or is detrimental to the health of the inmates of the premises or to public health, the amount of that increase shall not be taken into account.

• d. where land is and but for the compulsory acquisition would continue to be, devoted to a purpose of such a nature that there is no general demand or market for land for that purpose, the compensation may, if the Board is satisfied that reinstatement in some other place is bona fide intended, be assessed on the basis of the reasonable cost of equivalent reinstatement;

• e. no allowance shall be made on an account of:

  • (i) the acquisition being compulsory or the degree or urgency or necessity which has led to the acquisition:

  • (ii) any disinclination of the person interested to part with the land acquired;

  • (iii) any damage sustained by the person interested which, if caused by a private person, would not render such person liable to an action:

  • (iv) any damage, not being in the nature of deprivation of or interference with an easement or legal right, which, after the time of awarding compensation is likely to be caused by or in consequence of the use to which the land acquired will be put:

  • (v) any increase in the value of the land acquired likely to accrue from the use to which the land acquired will be put;

  • (vi) any outlay or improvement of such land which shall have been made, commenced or effected within twelve months before the publication of the declaration under section 3 with the intention of enhancing the compensation to be awarded therefor in the event of such land being acquired for public purposes."

8 This provision has been examined in its entirety by the Court of Appeal in the decision ofGrand Anse Estates Ltd. v The Governor General et al Civil Appeal No. 3 of 1976. In that decision St. Bernard, J.A. opined thus:

"I am of the view that the provision in...