Byron Bullard v The Minister Responsible for Lands and Surveys
| Jurisdiction | Bahamas |
| Judge | Card-Stubbs, J |
| Judgment Date | 19 February 2024 |
| Docket Number | 2023 No. 00006 |
| Court | Supreme Court (Bahamas) |
IN THE MATTER of an application by Byron Bullard (T/A B&B Horseback riding for leave to Apply for Judicial Review (Order 53, r.3)
(T/A B & B Horseback Riding)
Before: The Honorable Madam Carla Card-Stubbs
2023 No. 00006
IN THE SUPREME COURT
Public Law Side
Application for leave to apply for Judicial Review – Whether Applicant must provide particulars of a decision at leave stage – Part 54, The Supreme Court Civil Procedure Rules, 2022, as amended (‘CPR’)
Held: An Applicant must allege a decision and provide particulars/evidence of the decision on an application for leave to apply for judicial review. The Applicant must do so in order to enable the court to determine whether the decision is justiciable, whether the Applicant has standing, whether the Applicant has an arguable case with a reasonable prospect of success and whether the application for leave to apply for judicial review is made in a timely manner.
Geoffrey Farquharson - Applicant
Kenria Smith, Office of the Attorney General - Respondent
This is the Claimant's application for leave to apply for judicial review relating to what is said to be threatened eviction from property which the Claimant claims to own by virtue of possession.
On February 19, 2024, this Court heard the application and refused leave, with reasons to follow. This ruling sets out the decision as well as the reasons for the decision.
On February 10, 2023 the Claimant filed an Application for leave to apply for judicial review. The matter was not listed for hearing until after the Supreme Court Civil Procedure Rules, 2022, as amended (‘CPR’) were brought into force on March 1, 2023. Therefore, the matter fell to be determined under the CPR.
In the filed Application, the decision identified for review is described as “Proposed eviction of the Applicant And destruction of his stables”.
There are some 13 reliefs sought in that application. They are:
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1. A declaration that the Applicant is the absolute owner in fee simple in possession of the land the subject of this application.
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2. A declaration that the rights guaranteed to the Applicant under Article 27 of The Constitution of The Bahamas have been infringed by the Respondent.
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3. A declaration that the Respondent has acted maliciously, corruptly, unlawfully, high handedly and oppressively.
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4. A declaration that the Respondent has acted in contravention of the rules of natural justice and in breach of the Applicant's constitutional right to due process.
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5. A declaration that the Respondent has created a nuisance upon the Applicant's property.
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6. A declaration that the Respondent has unlawfully harassed and continues to unlawfully harass the Applicant.
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7. Mandamus to compel the Respondent to remove from the Applicant's property any bar, impediment, obstruction, restriction, order of fiat of and kind whatsoever affecting the Applicant's said property.
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8. Mandamus to compel the Respondent to execute the necessary documents confirming the Applicant's ownership of the said property.
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9. Certiorari to quash the decision to interfere with the Applicants free and unrestricted use of the said property.
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10. An Injunction to restrain the Respondent from interfering with the Applicant's free and unfettered use of the said property.
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11. An order that all further proceedings against the Applicant be stayed pending the outcome of the application for judicial review.
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12. Costs.
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13. Damages including damages for breach of constitutional rights, and Aggravated damages.
The remainder of the application reads:
THE FACTS
1. The Applicant is the most recent proprietor of a horse-riding business which has occupied the land in question for more than 60 years.
2. The Applicant himself has operated this business since the late 1980's.
3. The business has operated from the same location since its inception in the 1950's.
4. By operation of law, the Applicant is the fee simple owner in possession of the land in question the Respondents rights thereto (if such right ever existed) having been extinguished for more than a generation.
THE LAW
1. Title to land can be acquired by appropriating a piece of land of another and remaining in undisturbed possession of it for the period prescribed by statue without acknowledging the title of the true owner.
2. As against the Respondent, the statutory period is 30 years.
Submissions
The Applicant submits that:
1. The Applicant has himself been in continuous undisturbed possession for more than 36 years, and as the proprietor of a business which has been in continuous operation for more than sixty years.
2. He is by operation of the law the fee simple owner in possession of the land.
3. By operation of the Limitation Act, the Respondent is barred from setting up a claim to the land.
4. Accordingly, it is humbly submitted that the Applicant is entitled to the relief prayed.
The application is supported by the affidavit of the Applicant. The Applicant is extensive in his averments in giving the history of the property and how he came to be in possession of same. The affidavit relays an antagonistic relationship with a hotel occupying adjacent land, and allegations are made of threats of eviction by the Respondent, one such threat issued by way of a letter.
The submissions of the parties were made orally.
From a review of the documents before the Court, it was unclear what decision was made by whom and when. What was also unclear was the nature of the decision. The Court invited Counsel for the Applicant to clarify the matter and make submissions on this point.
Much of the submissions of Counsel related to the claim of the Applicant that he was entitled to possession of the land and to a declaration for ownership. As it relates to the decision submitted for review, Counsel for the Applicant indicated that it was ‘the Junior Minister’ who had written a letter and that the letter would be exhibited if leave were granted. Counsel for the Applicant submitted that while the letter would be produced to the court in the substantial proceedings, it was not essential for the leave proceedings. Counsel for the Applicant submitted that he merely needed to satisfy the court that there is an arguable case and that the applicant has standing. Counsel for the Applicant also argued that the Respondent ought to be able to enquire whether a letter was written and ought to be able to locate and find the relevant letter although he did note that personnel from the Ministry indicated that they were unaware of the letter
Counsel for the Respondent objected to leave being granted. Counsel for the Respondent submitted that the matter appears to be a claim in land law and that judicial review proceedings were not the appropriate procedure to determine who owns the land. Counsel for the Respondent submitted that the Applicant has not shown that a decision was made. She questioned whether a decision was in fact made, who made the decision and when it was made. She submitted that if a decision had been made, then the Applicant must show compliance with Part 54, Rule 54.4 CPR which provides that application for leave must be made promptly. Counsel submitted that, from her perusal of the affidavit and relief sought in the application, the matter appears to be a case to determine ownership of land and that the Applicant ought to be left to his alternative remedy. Counsel cited the case of Re Betram Bain in support of this last point. I understood that to be a reference to the case of Bertram Bain v The Commissioner of Police, 2017/PUB/jrv/00023.
In response, Counsel for the Applicant advised that there exists a letter dated December 29, 2022 which had not been sent directly to the Applicant nor had it been delivered directly to his client. Counsel advised that the Applicant received the letter in February 2023 but that the Applicant had notice of the letter before that. Counsel also indicated that he could not say when the decision was made but that the letter would show when a decision was communicated.
Counsel for the Applicant reiterated that the only considerations for the court at the leave stage were (1) for the Applicant to establish an arguable case which merited detailed examination at a substantive hearing and (2) for the Applicant to show that the Applicant has standing. Counsel for the Applicant submitted that on the principle of Wednesbury reasonableness, the test is whether the Applicant has an arguable case. I understood that to be a reference to the principles set out in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation, CA [1948] 1 KB 223 Counsel also submitted that whether the application was brought promptly was a matter for consideration at the substantive hearing and not at the application for leave stage.
Part 54 of the Supreme Court Civil Procedure Rules, 2022, as amended (‘CPR’) sets out the procedure for hearings by way of Judicial Review. Rule 54.1 identifies those cases fit for judicial review and Rule 54.3 sets out the application for leave procedure. That rule provides in part, as far as is relevant here:
54.3 Grant of leave to apply for judicial review.
(1) No application for judicial review shall be made...
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