The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

THE Bahamian entrepreneur aiming to restore Paradise Island’s lighthouse has “every confidence we will succeed” as he bids to take his long-running battle with the Government before the Privy Council.

Toby Smith yesterday confirmed to Tribune Business that his attorneys have filed the necessary legal documents seeking the Court of Appeal’s permission to take his Crown Land lease dispute to London and the highest court in the Bahamian judicial system.

Speaking briefly to this newspaper, he implied that Sir Michael Barnett’s dissenting judgment in his favour, which split the Court of Appeal, had opened the way to seek a final ruling on his claim that he possesses a legally binding, valid agreement to lease a total five acres on western Paradise Island in the vicinity of Colonial Beach.

“We filed with the Court of Appeal to get leave to go to the Privy Council,” Mr Smith said. “I think it’s of great public interest, and I’m obviously hoping that the Privy Council rules in our favour and upholds the offer of the lease.

“I think Sir Michael Barnett has really supported our case very succinctly and precisely. I have every confidence we will succeed.” Sir Michael, the court’s president, in his March 14, 2024, verdict ruled that he would order “specific performance of the lease” by the Government as Mr Smith had “a binding agreement” to lease the five Crown Land acres for a beach break-type destination.

He also found that the then-Minnis administration did not sign the agreement with Mr Smith because it “determined that it had found a better deal” - namely Royal Caribbean Cruise Lines’ Royal Beach Club project, which itself wanted to lease three of the same acres sought by the Bahamian entrepreneur.

However, Sir Michael’s dissenting verdict did not prove decisive, as his two fellow justices on the three- strong Court of Appeal panel rendered the majority decision in favour of the Government by finding the reverse - that no valid, legally binding lease agreement was in place.

Appeal justices Gregory Smith and Michael Turner upheld the original Supreme Court verdict by Sir Ian Winder and said they saw no reason to overrule, or interfere with, the Chief Justice’s analysis of the case or his legal conclusions.

Donovan Gibson, the Munroe & Associates attorney who is a member of Mr Smith’s legal team, asserted in legal documents filed with the Court of Appeal yesterday that “we believe that the appellant has an arguable appeal and the prospects of success are good.

“We also believe that the appellant’s [Mr Smith’s] appeal is one of general and public importance as it is not frivolous, vexatious or abusive, and which ought to be submitted to the Judicial Committee of the Privy Council,” he added. Mr Smith’s lead counsel has been former minister of state for legal affairs, Damian Gomez KC.

The Bahamian entrepreneur’s filings set out nine grounds of appeal. Besides arguing that appeal justices Smith and Turner were incorrect in their decision, Mr Smith is asserting that the real issue is whether a January 7, 2020, from Richard Hardy, then-acting director of the Department of Lands and Surveys, which contained the lease, “evidenced a binding agreement”.

He added that the Court of Appeal majority “asked themselves the wrong question” by focusing on whether the lease was “a valid agreement” in the absence of the signature of Dr Hubert Minnis, then minister responsible for Crown Lands. “The real question was whether the essential terms of an agreement for lease were present,” Mr Smith’s filings added.

“Had the learned justices of appeal not so misdirected themselves, they would have held, as Sir Michael Barnett did, that all the essential terms of an agreement for lease were present, there was nothing further to be negotiated or agreed, and that all that remained was for the respondent [the Attorney General and the Government] to sign and seal the lease as per the agreement.”

The Bahamian entrepreneur’s filings also argued that if there was an “agreement for lease” then it was “irrelevant that the minister had not signed the lease”, while the Court of Appeal majority was also purportedly wrong to find that “the Government could not be bound by the actions of its alleged ‘agents’.”

The Davis administration previously requested that Toby Smith “reapply” for the necessary government permits and approvals so that his project can proceed after he lost the original Supreme Court case. Little is likely to change in this regard until it is known whether the Privy Council will hear his appeal.

Appeal justice Smith, writing the majority verdict, said the dispute centred on a 21-year lease that the then-Minnis administration allegedly granted Mr Smith for the use of two Crown Land parcels - one two acres in size, the other three - on the western end of Paradise Island in the Colonial Beach area.

Noting that the initial application was made more than a decade ago in 2012, appeal justice Smith added that some six years later the Bahamas Investment Authority (BIA), via a May 23, 2018, letter informed Mr Smith that his $2m beach club project had been approved. However, rather than the 17 acres initially sought, the Crown Land lease was to cover just five.

Then, on January 7, 2020, Richard Hardy, acting director of the Department of Lands and Surveys, sent Mr Smith and his company a letter headlined “approval for Crown Land lease”. This covered a two and three-acre parcel, respectively, with the first adjacent to the lighthouse at Paradise Island’s western end and the other for the ‘beach break’ destination.

The letter contained instructions on how the attached lease documents were to be signed, dated, sealed and notarised, then returned to the Department of Lands and Surveys. Once the minister responsible for Crown Lands, who was then-prime minister Dr Hubert Minnis, signed a copy of the lease was to be returned to Mr Smith.

The Bahamian entrepreneur signed the lease forwarded by Mr Hardy, and returned it to the Government for execution two days later on January 9, 2020. Dr Minnis, though, did not sign the lease on the Government’s behalf as it emerged that Royal Caribbean had rival designs on the three- acre Crown Land parcel for its own Royal Beach Club project.

Sir Michael, though, disagreed and said he would have ordered “specific performance of the lease” by the Government. Describing Mr Hardy’s letter as being of “major importance”, the Court of Appeal president said the letter was headlined “approval for Crown lease” and did not say or suggest there were any matters left to be agreed between the parties.

“In my judgment, the critical question in this appeal is whether the letter of January 2020 evidenced a binding agreement between the appellant and the minister for the lease of five acres of land on Paradise Island,” Sir Michael wrote. “The Chief Justice formed the view that there was no concluded agreement.

“It is difficult to see how it can be said that there was no concluded agreement. The lease sent on January 7, 2020, had been prepared by the respondent’s [Attorney General’s] lawyers on the respondent’s instructions. There was nothing further to be negotiated and agreed....

“The document reflecting the terms of the agreement was sent by the respondent to the appellant for signature. All that was left was for the respondent to sign and seal the lease. He did not do so because the Government determined that it had found a better deal.”