The Tribune

• Charles Christie's claim back to Supreme Court as 'last resort'

• Eight-year old case over 192 acres for roads project, Baha Mar

• Appeal court finds former judge 'sidestepped' compulsory buy

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A prominent late realtor's $4.8m legal victory over the Government has been overturned as "a last resort" and sent back to the Supreme Court for a fresh trial more than two decades after he lost use of some 192 acres.

The Court of Appeal, in a unanimous verdict, said it had no choice but to send the eight year-old claim by the late Charles Christie, founder and president of the C A Christie real estate brokerage, for a new hearing to "unravel" a case that stemmed from the Government's alleged compulsory acquisition of land in western New Providence's Prospect Ridge area.

Mr Christie and his companies, Westmor Ltd and C.A.C Properties Ltd, initiated their claim for compensation under the Acquisition of Land Act in 2015. They alleged that four land parcels, collectively covering 192 acres, had been seized by the Government under this Act for the purpose of constructing new roads under the New Providence Road Improvement Project. This included, they alleged, Baha Mar Boulevard, which connects the mega resort to JFK Drive and Gladstone Road.

However, appeal justice Milton Evans, in granting the Government's appeal, found that the original trial judge, former Supreme Court justice Ruth Bowe-Darville, had gone "astray" in failing to address the Acquisition of Land Act claim by Mr Christie and his companies. Instead, she "sidestepped" the core issue and found that, by contesting its acquisition of the disputed land, the Government had admitted its presence on the property "constituted a trespass".

Appeal justice Stella Crane-Scott, adding to her colleague's verdict, said the original Supreme Court verdict was totally contradictory. "The problem with the learned judge’s decision is that her finding of trespass, and her award of damages on account thereof, is incompatible with her finding at paragraph 11 that she had 'no doubt that the subject land was compulsorily acquired by the Government under the Acquisition of Land Act'," Justice Crane-Scott wrote.

"It need hardly be said that where land is compulsorily acquired, trespass on the part of the Crown cannot arise as the Crown takes possession of the land by operation of law under the coercive powers conferred by the Acquisition of Land Act. Furthermore, the owner of the land so acquired will be entitled to compensation in accordance with the Acquisition of Land Act, and not an award of damages for trespass."

The Court of Appeal judgment, though, provides further insight into just how long many Bahamians have to wait - sometime for decades - to receive their rightful compensation for land taken by the Government to facilitate public infrastructure development and other projects deemed to be in the public interest.

The "notice of acquisition" for the disputed land, and other real estate required by the New Providence Road Improvement Project, was published as early as October 2, 2000, according to evidence contained in the Court of Appeal judgment. And the late Mr Christie, clearly having run out of patience, launched his claim some eight years ago on March 4, 2015.

He sought a declaration that the compulsory acquisition of the 192 acres "without prompt, proper, adequate or any compensation is contrary to the provisions and spirit" of the Acquisition of Land Act. Other Supreme Court declarations requested included himself and his companies being "constitutionally entitled to prompt payment from the defendant [Government] of adequate compensation to be assessed by the court", plus repossession in the event of non-payment.

The Attorney General, and treasurer, responded by seeking to strike out Mr Christie's action on the grounds that it was statute-barred under the Limitation Act 1995, which required that he launch proceedings within 12 months of his cause of action occurring. This, the Government defendants argued, was October 2, 2000, meaning that the action should have been launched in early October 2001 rather than 2015.

While this was not pursued, the Government then moved on July 8, 2019, to strike out the action on the basis it "discloses no reasonable cause of action, is scandalous, frivolous or vexatious and/or is otherwise an abuse of the process of the court".

This was supported by an affidavit from Charles Zonicle, acting director of physical planning, which made no reference to the Acquisition of Land Act claim but, instead, focused on a 100-foot wide road reservation that Mr Christie and his company were supposed to convey to the Government so JFK Drive could be linked with Skyline Drive.

Not surprisingly, the late Mr Christie said this had no relevance to his claim, and responded by arguing that the Government "appear to have forgotten the genesis of these proceedings both procedurally and factually". The Government's strike out application was dismissed by the Supreme Court, and Mr Christie and his companies later amended their claim by including "damages for trespass" by the Government as an alternative to the Acquisition of Land Act grounds.

Meanwhile, Joy John Mwalugaja, senior transportation engineer at the Ministry of Works, and the New Providence Road Improvement Project engineer, alleged in a November 29, 2019, affidavit that the project's corridor seven - which Mr Christie alleged was built on his 192 acres - was removed from the project and taken over by Baha Mar under its Heads of Agreement with the Government. It became Baha Mar Boulevard.

Mr Mwalugaja said information from Donald Thompson, a licensed surveyor, showed that just 1.698 acres of Mr Christie's land was impacted by Baha Mar Boulevard. And the Government, in its original Supreme Court defence, said corridor seven was not gazzetted or included in the compulsory acquisition as alleged by Mr Christie. It claimed his evidence instead included the notice for a different corridor, corridor six.

Competing valuations had also been produced for Mr Christie's properties. Wilshire Bethell, his appraiser and consultant architect, gave the fair market value as being $3.244m. However, the late Peter Galanos, the Government's expert witness, valued them at $551,850.

Appeal justice Evans, expressing regret that the "substantial factual disputes" were not properly addressed at the Supreme Court trial, said "the main issue" - whether the disputed properties were the subject of a compulsory acquisition - was never decided by former justice Bowe-Darville who "sidestepped" the matter to focus on the alternative trespass claim.

And, while the claim related to 192 acres, the Supreme Court judgment referred to the Government taking possession of just 4.615 acres. "There is no clear understanding of the status of the remainder of the property which was alleged to have been acquired under the Acquisition of Land Act, but not taken possession of for the construction of the road," appeal justice Evans added.

"Mr Mwalugaja’s evidence was that he conducted an assessment as to the impact of the road on the respondents’ property, and that the result of that assessment determined that the lot number 13 plus a 20-feet wide buffer strip of land for a total of 1.698 acres was impacted by corridor seven upon which Baha Mar Boulevard was built.

"It is significant that it appears that the appellants’ [government] focus was on the property said to be covered by corridor seven. It is clear that the acquisition notice was wider than the property under corridor seven. The result being that the judgment does not assist with answering the question as to whether and to what extent other properties belonging to the respondents were taken under the acquisition."

As a result, appeal justice Evans said a new Supreme Court trial was necessary to determine if the disputed land was compulsorily acquired and what was the scope of the acquisition before any trespass claim is addressed.