A.G. v Lopinot Limestone Ltd
| Jurisdiction | Trinidad & Tobago |
| Judge | C.A. Kelsick, C.J. |
| Judgment Date | 12 April 1984 |
| Neutral Citation | TT 1984 CA 21 |
| Docket Number | Civil Appeal No. 49 of 1982 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 12 April 1984 |
Court of Appeal
Kelsick, C.J.; Hassanali, J.A.; Bernard, J.A
Civil Appeal No. 49 of 1982
T. Hosein, C. Beckles, N. Mohammed and Miss J. Quamina for the appellant
S. Mckinnon, Q.C. (of the English Bar), Dr. F. Ramsahoye, S.C. and K. Sagar for the respondent
Administrative Law - Administrative Act — Validity — Procedural requirements.
Constitutional Law - Fundamental rights and freedoms — Right to fair hearing
Lopinot Limestone Limited, the Respondent, hereinafter called “the Company”, on July 10, 1980, instituted an action against the Attorney General, as representing the Government of Trinidad and Tobago by virtue of the State Liabilities and Proceedings Act, Chap. 8:02. In the writ of summons, with which was delivered the statement of claim, the Company claimed inter alia –
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(a) A declaration that it is entitled to develop a portion of its La Pastora Estate comprising 22 acres (“the Quarry”);
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(b) A declaration that the decision taken by the Government of Trinidad and Tobago and communicated by letter dated 20th May, 1980, to Winston Rajpaulsingh (“Rajpaulsingh”) the agent of the Company, whereby permission to develop the Quarry was refused by the Minister of Finance, was unconstitutional, illegal, void and of no effect;
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(c) Alternatively to (a) arid (b), a declaration that the Company is entitled to compensation under Part IV of the Town and Country Planning Ordinance, 1960 (now the Town and Country Planning Act, Chap. 35:01, hereinafter referred to as “the Act”) for and in respect of the said refusal of permission, and an order that the said compensation be assessed in pursuance of the provisions of the Act.
In the statement of claim it was pleaded as follows:
The Quarry contains 42,592,000 cubic yards of limestone, of which 17,676,000 cubic yards may be safely quarried on an economic scale to produce material to the value of $600,000,000 at prices prevailing in 1980 over a period of 70 years for the construction of roads for the building industry and for a ceramic industry.
The permission refused was for outline approval to operate the Quarry; in other words for outline planning permission. The application therefore was made on 27th November, 1978.
By the delay in replying and the refusal, the Company suffered damage.
The two planks on which the case for the Company was based and was fought are
(1) That the decision of the Minister is arbitrary and unreasonable, and, if valid, the Company is entitled to compensation under Part IV of the Act;
(2) That the decision is void for a failure of natural justice since it was taken without the Company being heard.
There were other claims for declarations and redress for alleged violation of the Company's fundamental rights guaranteed to it under sections 1(a) and 4(a) of the Constitution, but these were abandoned.
The reasons given for the Minister's decision in the letter of May 28 have been reproduced in the judgment of Hassanali. J.A. The Company's grounds for impugning that decision, set out in the particulars in the statement of claim are:
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(i) The absence of statutory or other authority for policies mentioned in the letter:
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(ii) With proper and efficient engineering technique, no erosion will be caused by the proposed development;
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(iii) The Quarry, if carefully managed and operated, would have no adverse environmental impact on development;
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(iv) The maintenance of natural vegetative cover at elevations of over 700 feet is a matter irrelevant to the reasonable consideration and determination of the application;
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(v) The country needs the material and it is important that the Quarry be developed in the interests of the national, economy.
In his statement of defence the Attorney General joined issue and put the Company to proof of its case, with the exception of the letter of May 28, the receipt of which was admitted. The Attorney General made no admission that Rajpaulsingh was the Company's agent or that the application for outline planning permission had been made by him on behalf of the Company.
Three experts, who conducted surveys and prepared reports on the Quarry, testified for the Company. They are Rajpaulsingh, who is a consultant geologist; John Camacho, an environmentalist, and Frank Dumps, a soil scientist.
In summary, these were the material facts to which they deposed:
The realisable potential of quarryable limestone is substantially as pleaded by the Company. The Quarry is an old abandoned cocoa estate, which is deforested, eroded and no longer suitable for agriculture. It is located on a ridge above and three-quarter mile front; the small village of La Pastors, and about one-half to three-quarter mile from the Arouca River. Adjacent to it is a disused Government quarry and three miles there from is a large quarry on State lands near to the Arima River that is being operated by Mr. Scott. [It is not stated whether it is John Scott, Chief Geologist of Energy and State Enterprises, who testified for the Attorney Genera.
The Quarry falls within the area designated for quarrying operations in the Draft Five Year Development Plan for Trinidad and Tobago published by the Government. [Kelvin Romero, a witness for the Attorney General, said that this Plan had been accepted by the Minister-, but it would appear that it had not been approved by parliament under s.5 of the Act 7.
Adequate measures, identified by the witnesses, could be taken to conserve the environment and to prevent or control air, river water, and noise pollution. As recounted in the judgments of Hassanali, J.A. and Bernard, J.A., no proper consideration was given to the reports of these specialists by the Minister or his advisers before he made his decision. Nor was any opportunity afforded the Company to adduce oral representations in regard to the reasons for the Minister's objection to the granting of permission.
In his judgment the trial judge discerned two issues for his determination. These were –
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(i) is the Company entitled to compensation under the Act?
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(ii) Did the Minister observe the rules of natural justice in dealing with the Company's application?
He dealt with the issues in that order, in conformity with a request from counsel for the Company that he should declare the Minister's decision to be invalid only if he did not grant the declaration that the Company was entitled to compensation.
The texts of the enactments relevant to the resolution of this appeal to which (refer in this judgment have been recited in the judgment of Hassanali, J.A.
The judge first held that the Company was entitled to compensation under s. 26(1) of the Act. He proceeded to make an order for such compensation to be assessed by a Judge in Chambers, which he had no jurisdiction to make.
Section 26(1) ordains that such compensation is to be assessed in accordance with the provisions of the Land Acquisition Act, Ch. P. 58: 01, s. 20 of which vests such jurisdiction in a Judge of the High Court, with or without the assistance of assessors, to be exercised in open court (s. 22(3)).
The judge next concluded that the Minister had not observed the rules of natural justice and had not acted fairly in considering the Company's application. But he did not then, as he should, determine whether, as pleaded by, and as submitted at the hearing for, the Company the Minister's decision was on that account invalid or void. If he had, it should have been apparent to him that as a consequence no lawful order for assessment and payment could be made by him.
The first ground of appeal is that the decision of the learned trial judge was unreasonable and/or cannot be supported having regard to the evidence.
Under this ground it was submitted that the Company, who had by the defence been put to the proof thereof, had failed to establish that Rajpaulsingh was its agent or that he had applied on its behalf for the outline planning permission to develop the Quarry.
I address my attention to the relevant evidence.
The application was made by Rajpaulsingh on behalf of Victoria La Fortune (Victoria) and others. Particulars in the application form were included under the following captions:
“State Nature of Development
Quarry for limestone with blasting and crushing operations for various industrial projects and making land suitable for agriculture.
“Present Land Use of Site
Agriculture, old cocoa estate.
“Proposed Land-Use of Site
Quarry for limestone, then agriculture.”
The letter of May 28, conveying the decision of the Minister was addressed to Rajpaulsingh.
Rajpaulsingh testified that he acted on behalf of the Company, who was the owner of the Quarry; that he failed out the application on instructions from Victoria, who was a director of the Company, and from Curtis Jordan, the managing director of the Company. He was corroborated by Jordan who also stated that Victoria was his mother; that she had instructed Frank Gumps to conduct a survey of the Quarry, and that she was also known as Carmen Rita Jordan.
In evidence was a deed dated 5th October, 1977 by which Rita Jordan as trustee conveyed lands comprising the Quarry to the Company. The deed contains a recital that the said land was purchased by the trustee for and on behalf of the Company.
Counsel for the Company objected that this point was not taken before the trial, judge, and that it did not arise out of the ground of appeal. He also maintained that no notice was served that it was going to be raised, and that if it had, the Company could have made an application to the Court for fresh...
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