The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Arawak Homes yesterday charged that it had been “the victim of atrocious governance”, with 20 years and more than $1 million in legal fees unable to resolve its multi-million dollar claim against the Government.

Franklyn Wilson, the developer’s chairman, told Tribune Business it had been a “gross and serious victim” of a situation that would never occur anywhere else in the world.

He was speaking after Arawak Homes secured a partial victory at the Court of Appeal (see article on Page 3B) over its compensation claim for land that the Government compulsorily acquired from it in the Pinewood Gardens area.

The land in question, which was acquired via two separate moves in the 1990s, was used to construct the Cleveland Eneas and Sadie Curtis Primary Schools, plus part of the Charles W. Saunders Highway that links Pinewood Gardens to SeaBreeze Estates.

Unable to agree a suitable compensation sum, Arawak Homes and the Government have been embroiled in litigation since 2004, asking the judicial system to determine what taxpayers should pay the developer.

Then-Supreme Court Justice Neville Adderley ruled in October 2012 that Arawak Homes should receive a total $4.4 million, but the developer appealed the verdict to the Court of Appeal.

Appellate court president, Justice Anita Allen, in a December 22, 2014, verdict backed by her two fellow judges, granted Arawak Homes a partial victory by increasing the compensation award for the Cleveland Eneas land more than five-fold - from $160,000 to a collective $848,320.

Yet, while overturning the assessed ‘market value’ for the Sadie Curtis and Charles W. Saunders land, the Court of Appeal sent that issue back to the Supreme Court for re-determination.

And Arawak Homes is still unable to collect a single cent of even the Cleveland Eneas award, the Court of Appeal upholding Justice Adderley’s verdict that its compensation remain in an interest-bearing escrow account.

This is required on the grounds that there are competing claims to Arawak Homes’ ownership of the land acquired by the Government, which will have to be resolved by another Supreme Court judge.

The Appeal Court’s verdict means further legal hearings, plus associated time and costs, and Mr Wilson was not slow to vent his frustration when contacted by Tribune Business yesterday.

“This year marks 20 years since the Government first acquired the land from us; 20 years,” Mr Wilson told Tribune Business. “Our constitution guarantees us prompt and accurate settlement.

“All I can say to you is 20 years later, when we’ve spent in excess of $1 million in legal fees, we still can’t get it resolved.”

He then added: “We have been a gross and serious victim of some things that should not happen in any country. What has happened to our country should not have happened anywhere.

“We have been the victim of some governance that has been atrocious. This is now 20 years. In the fullness of time, I will give the public full details.”

Mr Wilson strongly implied that Arawak Homes, and the compensation issue, had fallen victim to partisan politics, referring to public statements made in 1995 when the first Ingraham administration was enjoying its inaugural term in office.

“Read the statements from the political pulpit, and get a sense of what is right, wrong or fair,” the Arawak Homes chairman blasted, hinting that the then-Free National Movement (FNM) administration had ‘muddied the waters’ on the company’s claim.

“That path has led us to what we have been suffering for 20 years,” Mr Wilson added. “We intend to fight this, and will persist until justice prevails.”

Mr Wilson, though, described the Bahamian judicial system and ‘rule of law’ as the “saving anchor” for Arawak Homes and other Bahamian entities/individuals when faced with bad government decisions.

“Thank God for the rule of law in our country,” Mr Wilson told Tribune Business. “All those people who are adults in our country must do everything to respect the rule of law.

“It’s the saving anchor for us all against wrongful governance. It’s an anchor. It’s a protection.”

Franon Wilson, Arawak Homes’ president, told Tribune Business that the developer’s fight for fair compensation had been going on “for half as long as I’ve been on this earth”.

He added: “At some point, this has to be resolved. It can’t be left unresolved. Twenty years is a long time.”

Franon Wilson added that Arawak Homes was “very confident” that its title to the land acquired by the Government would be proven superior to all rival claims, having defeated numerous challenges to its ownership of land in the Pinewood Gardens and Sir Lynden Pindling Estates areas.

“We’re still reviewing the judgment [from the Court of Appeal] and its implications,” Franon Wilson said. “We’re still going through it, trying to look at it objectively and understand what it’s telling us.”

It is unclear whether Arawak Homes will seek to appeal the Court of Appeal verdict to the London-based Privy Council, the highest court of appeal in the Bahamian judicial system.

Still, the Arawak Homes case highlights a wider problem impacting Bahamian society, namely the ability of those whose land the Government compulsorily acquires ‘for the public good’ to receive timely and just compensation for their real estate assets.

Tribune Business sources have suggested there could potentially be hundreds of Bahamians awaiting compensation from the Government for land acquired to build roads, schools, clinics and such like. Many, like Arawak Homes, have been waiting for decades.

Some have suggested that the total compensation owed could total as much as $50-$60 million, a figure that Franon Wilson said yesterday “would not surprise me”.

Several legal sources have suggested that the failure to promptly, and fairly, compensate land owners helps to undermine the rule of law, because if the Government does not follow its own laws, there will be no incentive for others to do so.

This newspaper has previously reported on several legal cases involving the Acquisition of Land Act. They include the seven Bahamian landowners who lost the legal battle for the return of their south-west New Providence properties, the courts ruling that compulsory acquisition by the Government was still in the public interest despite appearing to primarily benefit the $1.3 billion Albany development.

They had argued that the former Ingraham administration’s 2007 decision to abandon plans to relocate Nassau’s commercial shipping facilities to southwestern New Providence meant there was no longer any “public purpose” for acquiring their lands.

Then there was the case of the Baker sisters, where the Supreme Court found the Government guilty of failing to follow its own statute laws, and overturned its acquisition of the trio’s land - worth $1.23 million - that was seized for a public park in Pinewood.

Meanwhile, those whose competing title claims to land in the Pinewood Gardens/Sir Lynden Pindling Estates areas have been defeated by Arawak Homes may smile at the developer’s legal difficulties with the Government.

However, their smiles may soon be less broad, after Franon Wilson confirmed that Arawak Homes would launch legal moves “within the next week” to take possession of all properties on its land that were not acquired from it.

This is likely to impact between 300-400 homeowners in those areas, who purchased their properties from vendors who did not have good title to the land they were selling.

Franon Wilson said that while the ‘door was open’ for those owners to come in and settle with Arawak Homes, the developer was being left with little choice but to pursue the legal option.

“We have given everyone as much opportunity as we could,” he told Tribune Business. “We are aggressively pursuing the courts for vacant possession of any structure that’s there. We are developing plans, and within the next month, middle of this month, to roll out that process.

“We don’t want to go this route. It’s last choice. Come in and settle the matter.”