The Tribune

• Seeks permission to use in lease appeal

• Now ‘4,008 days of trying’ for approvals

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Bahamian entrepreneur battling to restore Paradise Island’s lighthouse is seeking the Court of Appeal’s permission to introduce new evidence he says he has uncovered relating to his disputed Crown Land lease.

Toby Smith, the Paradise Island Lighthouse and Beach Club principal, in a statement issued yesterday to confirm his appeal’s filing said he has “not wavered” in his determination to see his ambitions become reality despite what he described as “4,008 days of trying” to obtain the necessary government permits and approvals.

He spoke out after formally lodging a ‘Notice of Appeal’ motion with the Court of Appeal registry on March 30, which launches his bid to overturn the verdict by Sir Ian Winder, the chief justice, who “regrettably” ruled on February 16, 2023, that Mr Smith had no binding lease over the combined five Crown Land acres he needed for his project because the minister then-responsible for Crown Lands (ex-prime minister, Dr Hubert Minnis) did not execute the document by signing it.

The Bahamian entrepreneur is appealing on nine grounds, one of which involves seeking the Court of Appeal’s permission to introduce fresh evidence - not placed before the Supreme Court trial - which he contends is critical to his argument that he possessed a valid, binding Crown Land lease for two parcels - one three acres in size, and the other covering two acres.

The nature of this new evidence is not disclosed, but the motion says: “The appellant has recently discovered relevant correspondence for which it will seek the court’s discretion to have considered in the interest of justice in this appeal.” Appeal courts are notoriously reluctant to interfere with so-called ‘findings of fact’ by the Supreme Court trial judges, given that they are the ones who watch witnesses being cross-examined and observe the quality of answers and reactions.

This means Mr Smith must persuade the Court of Appeal that he has uncovered some pretty compelling new evidence to merit it being considered during his appeal. Meanwhile, his appeal motion also sought to keep Royal Caribbean in the fray by alleging that the Bahamian entrepreneur should have received “exemplary” damages because the only reason the Government ditched him and his project was to make way for the cruise giant’s rival Paradise Island development.

Mr Smith argued that the chief justice failed to consider that the Government’s “only explanation and admitted motivation to breach the subject agreement to enter a lease” with him “was that it had procured a ‘bigger deal for $100m as opposed to the appellant’s $3m’.

“There was no explanation proffered as to why the lessor (Prime Minister’s Office) delayed or refused to sign until it was announced that Royal Caribbean had been favoured for a lease of similar nature, terms and conditions over the subject property,” he claimed.

Royal Caribbean and Mr Smith have both been seeking the same two-acre Crown Land parcel for their respective projects. However, Chester Cooper, deputy prime minister, and minister of tourism, investments and aviation, has said on more than one occasion that the Davis administration’s revised Royal Beach Club deal with the cruise giant is now only for four - rather than seven - acres and does not include the disputed two-acre plot.

This opens a potential pathway for Royal Caribbean and Paradise Island Lighthouse and Beach Club to co-exist as neighbours. However, after Sir Ian’s verdict that he does not enjoy a valid, binding Crown Land lease, Mr Smith has been invited by the Davis administration to reapply for the necessary government permits and approvals - effectively sending him back to the starting line after working for more than a decade to bring his dream to fruition.

However, instead of reapplying, he has thus far moved to challenge Sir Ian’s verdict through the judicial process. Mr Smith’s appeal motion also alleged that the chief justice focused primarily on “whether there was a lease in fact”, which contradicted the section in his judgment that identified the “central issue” as whether there was an agreement for a lease.

And he argued that he had “fully satisfied all obligations expressly provided for in the lease with nothing left for him to do”, as he had signed and returned the document to the Government with “consideration in full”. Mr Smith also argued that “there was a contractual obligation” on the Government to execute the lease, which had been approved “at every highest and final level”.

The Bahamian entrepreneur is claiming that the Prime Minister’s Office also breached its “statutory duty by failing to follow the conclusion of the Cabinet of The Bahamas and a specific directive to execute the lease” after it was returned signed by himself with the necessary lease payment.

Mr Smith is also arguing that Sir Ian failed to consider he had already “engaged on the enterprise” by removing litter and debris from the two leased Crown Land parcels, engaging professionals to assist with raising financing, and hiring engineers and architects to help plan, design and develop the project. And he asserted that the chief justice was wrong in deciding his request for a comfort letter showed that lease negotiations continued.

“There was in fact commencement of the enterprise. There was in fact a final partly executed lease. The parties were operating under the terms of the partly executed lease,” Mr Smith is alleging. In his statement confirming the appeal, the entrepreneur appeared to hold out an ‘olive branch’ to the Government by saying it still has a chance to make the situation “right”.

“We have been told by multiple administrations of government that they, too, support our project and they have always had the opportunity to make this right by honouring our agreement for a lease and letting us move ahead. We remain hopeful to bring about a diplomatic resolve,” Mr Smith said.

“Paradise Island Lighthouse and Beach Club continues with determination and perseverance, as we have for the past 4,008 days of trying, to bring about the change Bahamians want to see. Why do Bahamians have to endure this for a piece of the pie? When can we have an opportunity to steer our own destiny?

“Many proud Bahamians recognise that we owe this to our future generations and we are grateful that you stand with us. We shall continue to seek solutions from those that have the choice to do what’s right.” Mr Smith also reiterated the urgent need to restore the Paradise Island lighthouse, built in 1817 and the oldest if the 12 constructed in The Bahamas, given it is the first landmark that cruise passengers and many boaters see.

“This silent sentinel, at our country’s gateway, and guide to our safe harbour of New Providence, has not been maintained since before our independence. A beautiful feat of engineering for the purpose of navigation, a signal of hope and salvation, left to fall apart, like many of our other historical ‘public’ buildings,” Mr Smith said.

“The Bahamian public and wider community wishes to see our project move ahead, and the buildings preserved as stunning examples of yesteryear. Paradise Island Lighthouse & Beach Club is bringing about change for Bahamians and our guests to enjoy a fully restored lighthouse and greater access to our Crown Land and beautiful beaches. Our project was founded on restoring this light station at no charge to The Bahamian people and we have not wavered.”