The Tribune

• Smith: Fresh evidence shows binding lease
• Says trial non-disclosure caused ‘prejudice’

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Bahamian entrepreneur seeking to restore Paradise Island’s lighthouse presented the Court of Appeal with fresh evidence he asserted proves there was a binding lease agreement with the Government.

Toby Smith, in legal filings seen by Tribune Business, submitted 27 documents left for him in a “brown envelope in a local coffee shop” that he alleges may have persuaded the Chief Justice to deliver a different verdict if they had been made available for scrutiny and witness testimony at the original Supreme Court trial.

Sir Ian Winder ruled that the Bahamian entrepreneur did not have a valid, binding agreement to lease five Crown Land acres split into two separate parcels for his proposed $2m beach break-type project centred on the lighthouse at Paradise Island’s western tip. That verdict was recently upheld by the Court of Appeal majority, forcing Mr Smith to now contemplate a further appeal to the Privy Council.

However, Sir Michael Barnett, the Court of Appeal’s president, in a dissenting verdict ruled “there was a binding agreement” with Mr Smith and that he would order “specific performance of the lease” by the Government. It is unclear whether the fresh evidence provided by Mr Smith was considered by the Court of Appeal, or influenced the outcome, but several of the documents suggest the lease was agreed.

They use the words “vetted”, “perfected” and “delineated” to describe the lease of five acres to Mr Smith’s Paradise Island Lighthouse and Beach Club vehicle, thereby seemingly backing his argument that the agreement had been concluded, no further negotiations were required, and that it was binding despite the failure of Dr Hubert Minnis, then minister responsible for Crown Lands, to sign it.

“Shortly after the publication of his Lordship’s [Sir Ian Winder] judgment, I received an anonymous call to go to a local coffee shop and that I would find a brown envelope for me to collect,” Mr Smith said in legal filings to describe how he obtained the new documents.

“I went to the local coffee shop and found the brown envelope containing 27 new (in that I had never seen them before) documents with references to Paradise Island Lighthouse and Beach Club leasing of Crown Land at Paradise Island....

“In reviewing the documents, I noted that they were central to issues in dispute in the Supreme Court proceedings. However, they were not disclosed by the defendant during discovery or at all during the trial. I truly believe that if the documents were disclosed during the trial they would have influenced his Lordship’s decision.”

Mr Smith pleaded that the documents be admitted “in the interest of justice”, as they were “all prepared by the Government or agents of the Government and they were not previously available to me”. The documents largely consist of correspondence between the Department of Lands and Surveys, the Prime Minister’s Office and the Attorney General’s Office relating to Mr Smith’s Crown Land lease.

Richard Hardy, acting director of Lands and Surveys, wrote to the permanent secretary in the Prime Minister’s Office on February 13, 2019, stating that he had written to the Antiquities, Monuments and Museums Corporation (AMMC) over “a proposed lease demise footprint (total of five acres)” for Mr Smith’s project.

The latter and his attorneys, Damian Gomez KC and Sidney Cambridge, alleged that this showed the Supreme Court was wrong to determine negotiations over the lease were ongoing. “This preparation of the Crown Land lease deed had to have been based upon the lease terms already negotiated and agreed upon between the parties,” they argued.

A subsequent memorandum, sent by Mr Hardy to the permanent secretary in the Prime Minister’s Office on February 15, 2019, said the Department of Lands and Surveys has “delineated the recommended footprints of the total subject five acres for the approval, or otherwise, of the minister responsible for lands and surveys” meaning Dr Minnis.

Mr Smith and his attorneys argued that his case was “prejudiced” by its non-disclosure at the Supreme Court as the document contains notations by multiple government officials “referencing their approvals regarding their final vetting and approval of the draft lease with their recommendations for the minister to execute same”.

Katherina Smith, for the permanent secretary in the Prime Minister’s Office, then informed Mr Hardy on May 7, 2019, that she was “directed to convey the approval of the minister responsible for lands and surveys for the lease of five acres” to Mr Smith at a rental fee of either $5,2224 per acre annually or $1 per paying visitor - whichever was greater.

“This document is definitive in proving that there was an agreement that had been finalised as between the parties, and there was no more negotiating to be had,” Mr Smith and his attorneys alleged. Then, on October 8, 2019, the Attorney General’s Office told Mr Hardy that it was sending him “the perfected Crown Land lease for execution by the relevant parties”.

Mr Smith argued of this document: “It shows that there was complete performance of the ‘agreement for a lease’..... It shows that there was an expectation that the execution would occur without delay... The document had to have been based on an agreement. The withholding of this evidence resulted in the trial judge’s wrongful decision as to the existence of an ‘agreement for a lease’.

Mr Hardy, on October 17, 2019, confirmed that the lease text had been “vetted by the Attorney General’s Office”, and it now just needed the minister’s approval. Mr Smith argued that its non-disclosure at trial “may have tipped the scale or swayed” the Chief Justice’s decision against him.

Ms Smith, in the Prime Minister’s Office, wrote to Mr Hardy on January 7, 2020, telling him: “I am directed to convey the approval of the minister responsible for lands and surveys to have the final lease document prepared for execution.” The Bahamian entrepreneur argued this was positive proof that a lease had been agreed, arguing: “This evidence is most determinative.”

That same day, Mr Hardy sent out copies of the lease for Mr Smith and the minister to execute and sign. While the former did his bit, the latter did not.