Samuel kemp v Ministry of Agriculture

• Jurisdiction: Bahamas
• Judge: Winder, J
• Judgment Date: 03 August 2021
• Court: Supreme Court (Bahamas)
• Docket Number: 2021/CLE/gen/00848

IN THE SUPREME COURT

Before:

Hon. Mr. Justice lan R. Winder

2021/CLE/gen/00848

Between

Samuel kemp

Plaintiff

and

Ministry of Agriculture

First Defendant

and

The department of lands and surveys

Second Defendant

and

Attorney General of the Bahmas

Third Defendant

APPEARANCES:

Owen Wells for the Plaintiff

Kenria Smith, Quintin Percentie and Kingsley Smith for the Defendant

RULING

Winder, J

This is the Plaintiffs (Samuel's) application for injunctive relief with respect to his operation of a stall at the western side of Arawak Cay in an area commonly referred to as the Fish Fry.

1 The application was brought by Summons filed on 23 July 2021 seeking:

• (a) to restrain the Defendants:

  • (i) from interfering with his quiet enjoyment of the leasehold premises at Lot Number 14 on a Plan numbered 3518 situate on the western side of Arawak Cay;

  • (ii) from entering the property and preventing Samuel, his agents and servants, from having free access to and from the property;

  • (iii) from preventing members of the public from resorting to the property; from interfering with Samuel's reasonable occupation of the property; and,

• (b) to return the personal possessions, including furnishings, appliances and other fittings out of the premises.

2 The Application was supported by the affidavit of Samuel also filed on 23 July 2021.

3 Samuel is the son of Frederick Kemp (Frederick) who had been granted a lease with respect to Lot Number 14. The plan numbered 3518 delineates several plots in an area known as the Fish Fry, where small restaurants and bars operate. A stall or restaurant and bar is erected on Lot Number 14 and operated under the business name “Joeys Restaurant and Lounge”.

4 The lease to Frederick was entered into on 1 May 2002 for an initial term of ten years and provided an option for renewal, for a further ten year period, at the request of the tenant. The initial term ended on 30 April 2012 but no new lease was entered into. Frederick remained in possession of the premises, holding over, following the termination of the initial term.

5 Frederick died in March 2020 intestate, survived by 6 children, including Samuel.

6 On 14 May 2020 the Defendants wrote to Dario Williams (Dario), the operator of the stall, to cease and desist carrying out repairs to the building on Lot 14. The reason for this, they said, was because the property was in dispute by 2 sub-lessors and that Frederick Kemp had died. Dario was again written to on 3 June 2020, as the construction is said to have continued. The 3 June 2020 letter complained that Dario did not obtain permission to build, as required under the lease. Dario was told to vacate the premises within 7 days of receipt of the letter.

7 Samuel responded to the 3 June 2020 letter, requiring Dario to vacate the premises, in a letter dated 5 June 2020. He complained that he was being harassed by the operators of Arawak Cay almost immediately after burying both his parents. He denied that there were any disputes in relation to the property and that his family had occupied the property as Kemp & Sons for the past 30 years. He contended in the letter that the disputes had been resolved by Sr. Justice Watkins and Sr. Magistrate Rolle-Davis.

8 Samuel says that he is in a business relationship with Dario to operate and manage the restaurant and bar. They are both identified on the business license certificate which will expire in December 2021 and which was produced in evidence. The Defendants suggests that Samuel has sub-let the premises to Dario, contrary to Clause 2(10) of the lease. They say that when they inspected the premises previously it was noted that the prior license for 2020 had been issued to Dario's name alone. The Defendants also produced a different license for 2021 in Dario's name alone. Samuel has not explained the existence of the two licenses.

9 On 30 April 2021 an eviction order, made by Deputy Chief Magistrate Andrew Forbes (as he then was), was served on Dario requiring him to “remove himself from the premises situated at Stall Number 14 Arawak Cay”. The eviction order was made in the absence of Dario. Samuel was not a party to the proceedings before the Magistrates Court. It is said that Dario was ill and unable to attend at the hearing before the Deputy Chief Magistrate on 30 April 2021.

10 On 2 May 2021 fresh proceedings were brought against Samuel in the Magistrates Court for possession of the premises at Lot Number 14 Arawak Cay. He has entered a defense in those proceedings and the matter is proceeding to an adjudication before the Magistrate.

11 Notwithstanding the pending court matter, Samuel says that on 15 July 2021 Gregory Minnis, a representative of the First Defendant along with the Police presented an eviction order and forcibly closed down Joeys, requiring patrons to leave. A lock was placed on the premises which remains in place to date. Samuel says that he employs 18 persons who are now out of work. Samuel also says that he was contacted by Minnis who told him that he had until 24 July 2021 to remove all chattels from the building or they would be disposed of.

12 Samuel says that he paid rent of $200 on 15 June 2021 which was accepted.

13 Samuel seeks an interlocutory injunction. The statutory jurisdiction of the Court to grant interlocutory injunctive relief, is found in section 21(1) of the Supreme Court Act 1996. Order 29 rule 1(1) of the Rules of the Supreme Court of the Commonwealth of The Bahamas provides:

1. (1) An application for the grant of an injunction may be made by any party to a cause or matter before or after the trial of the cause or matter, whether or not a claim for the injunction was included in that party's writ, originating summons, counterclaim or third party notice, as the case may be.

14 Samuel relies on the criteria for the grant of an interlocutory injunction as set down in the decision in American Cyanimid v. Etchicon [1975] A.C. 386. That criterion provides, inter alia, for the following:

• a) A serious issue to be tried;

• b) good prospects of success; and

• c) A favorable balance of convenience.

15 The Defendants submit that Samuel has no prospects of success in the matter. They contend...