The Queen and Dr. The Hon. Hubert Alexander Minnis v Lumane Nonord et Al Being 177 Residents and/or Occupants of Shanty Towns in the Bahamas

• Jurisdiction: Bahamas
• Judge: Grant-Thompson, J
• Judgment Date: 10 February 2023
• Docket Number: 2018
• Court: Supreme Court (Bahamas)

Between

The Queen and Dr. The Hon. Hubert Alexander Minnis

(Prime Minister of the Commonwealth of The Bahamas)

First Respondent

and

Senator The Hon. Dionalexander Foulkes

(Minister of Labour)

Second Respondent

and

The Hon. Desmond Thomas Bannister

(Minister of Public Works)

Third Respondent

and

Senator The Hon. Carl Wilshire Bethel, K.C.

(Attorney General of the Commonwealth of The Bahamas)

Fourth Respondent

and

Bahamas Power and Light Company Ltd

Fifth Respondent

and

The Water and Sewerage Corporation

Sixth Respondent

Ex Parte

Respect Our Homes Limited

and

Lumane Nonord Et Al Being 177 Residents and/or Occupants of Shanty Towns in the Bahamas

Applicants

Before:

The Honourable Madam Justice Mrs. Cheryl Grant-Thompson

2018

PUB/jrv/27

IN THE SUPREME COURT

Public Law Division

Judicial Review-Leave granted to bring Judicial Review Proceedings-Constitutional Relief Sought — Is an alternative remedy available-Review of government Policy Decisions relative to “Shanty Towns”.

The Applicants comprised a non-profit organisation entitled “Respect Our Homes Limited”, an apt title which encapsulated the valiant fight to protect the interest of 177 residents and/or occupants of alleged “Shanty Towns” in New Providence, Abaco and the entire Bahamas.

The Applicants denounced the impropriety of government decisions to take “apparent” possession of land on which “Shanty Towns” stood (“the Possession Decision”); the decision to disconnect the utilities on the aforesaid land without due and proper consultation (“the Utilities Decision”); and the decision to issue general blanket Notices to individuals living on the aforesaid land under section 4(3) of the Buildings Regulation Act 1971 (“the Notices Decision”). A Judicial Review Application was filed along with a Constitutional Motion.

An Injunction was sought and granted to the Applicants to preserve the status quo until a decision on these issues of general public importance was made. The terms of the Injunction restrained the Respondents from interfering with the enjoyment of the land of the 177 Applicants or disconnecting their utilities.

Held—The Judicial Review Application and the Constitutional Motion filed by the Applicants has failed. This was a crucial matter of national importance, accordingly I make no Order as to Costs.

• 1. “The Possession Decision”—The evidence submitted by the Applicants did not prove the government had formulated the intention to possess the land. The primary piece of evidence relied on to show actual interference was the governments' interaction with the relevant land in Abaco, subsequent to the horrific impact of Category Five Hurricane Dorian, one of the worst natural disasters in the history of The Bahamas. This Court is mindful of the duty of the Government of the Commonwealth of The Bahamas to remove and even in some instances destroy buildings which the government may view as hazardous to the citizens, inhabitants, or to good public health and safety or otherwise in breach of law. There was no evidence to show acts of factual possession of the aforesaid land on the part of the Government.

• 2. “The Utilities Decision”-The relevant utility corporations are statutorily empowered to disconnect utilities for non-payment of outstanding bills, to conserve supply during periods where it is limited, for the purposes of upgrading their systems, or any other reasonable circumstance that may require a disconnection. The Court found this allegation of the Applicants to be unfounded.

• 3. “The Notices Decision”—The Court was satisfied that the decision to issue Notices to the inhabitants of the Shanty Towns pursuant to section 4(3) of the Building Regulations Act Chapter 200 was in compliance with the legislation. These Notices were duly signed by Building Control Officer Mr. Craig Delancy (appropriately delegated duties) acting in accordance with the said Building Regulations Act.

• 4. Constitutional Application—Constitutional Applications should not be commingled with Judicial Review Proceedings. In the circumstances the Constitutional Application is dismissed.

• 5. The result of this Judgment is that the original Injunction (3.8.2018) covering the “Shanty Towns” is hereby discharged. The Respondents are no longer restrained directly or through their agents, appointees or employees. They may take possession of, demolish any building on, or otherwise lawfully interfere with the 177 Applicants' and other residents' and occupiers' enjoyment of land in “Shanty Towns” in New Providence or elsewhere in The Bahamas. This includes the disconnection of any utilities in accordance with the relevant enabling legislation, in full conformity with the laws and usages of The Bahamas. Their actions should be humane and sensitive to the needs of this potentially vulnerable community and full compliance with International Conventions such as the United Nations Convention on Human Rights, Inter-American Convention on Human Rights (“IACHR”) which recognizes the inherent dignity of equal and unalienable rights of all members of the human family.

The following Statutes and Regulations are referred to in the judgment: Rules of the Supreme Court, Chapter 53, Building Regulations Act, Chapter 200, Water Sewerage Act, Chapter 196, The Electricity Act, 2015, The Bahamas Electricity Corporation Regulations, Chapter 194, Town Planning, Chapter 255.

The following cases are referred to in the judgment: Kemper Reinsurance Company v Minister of Finance and others (Bermuda) Privy Council App. No. 67 of 1997, The Queen v The Most Hon. Hubert A. Minnis Et al Ex Parte Dwight Armbrister 2020/PUB/jrv/00024, J A Pye (Oxford) Ltd. and another v Graham and another [2003] 1 AC 419, Powell v McFarlane [1977] LS Gaz R 417, Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 1 WLR 521, Galloway v The Mayor and Commonalty of London (1866) LR 1 HL 34, R (Friends of the Earth Ltd) v Heathrow Airport Ltd [2020] UKSC 52, R v Somerset County Council, Ex p Fewings [1995] 1 WLR 1037, Carltona v Commissioners of Works [1943] 2 All ER 560, H Lavender & Son Ltd v Minister of Housing and Local Government [1970] 1 WLR 1231, Attorney General (NSW) v Quin (1990) 170 CLR 1, Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, Paponnette and Others v Attorney General of Trinidad and Tobago [2010] UKPC 32, United Policyholders Group and Others v Attorney General of Trinidad and Tobago [2016] UKPC 17, Haoucher v Minister of State for Immigration and Ethnic Affairs (1990) 93 ALR 51, Laker Airways Ltd v Department of Trade [1997] QB 643, R v. Inland Revenue Commissioners, ex parte Preston [1985] AC 835, Regina (Moseley) v Haringey London Borough Council [2014] 1 WLR 3947 (UKSC), R v The Minister of Public Works Ex Parte Arnold Heastie et al SCCIvApp 3 of 2011, In Responsible Development of Abaco (RDA) Ltd. and another v Ingraham and others [2012] 3 BHS J. No. 35, Lever Finance v Westminster London Borough Council [1971] 1 QB 222, Jeffs v New Zealand Dairy Productions and Marketing Board [1967] 1 AC 551, Pretty v United Kingdom (2002) 35 EHRR 533, Dwight Armbrister and The Queen and Others 2020/PUB/jrv/00024, Brian R. Christie v The Civil Aviation Authority 2017/PUB/jrv/00010

APPEARANCES:

Mr. Frederick Smith KC, along with Mr. Martin Lundy II and Ms. Raven Rolle, and Mr. Ian Cargill III Counsel for the Applicants

Mrs. Kayla Green-Smith, Assistant Director of Legal Affairs, along with Mr. Franklyn Williams KC, Deputy Director of Public Prosecutions (as he then was), Mr. David Higgins, Deputy Director of Legal Affairs, Mr. Basil Cumberbatch, Chief Counsel, and Mr. Rasheed Edgecombe, all for the Respondents

Mr. James R. Thompson for the Intended Applicants

RULING

JUDICIAL REVIEW APPLICATION AND CONSTITUTIONAL MOTION

Grant-Thompson, J

Ruling

Introduction

1 This Ruling concerns the Application for Judicial Review of, and constitutional challenge to, the Respondents' alleged polices ( “the Policies”) which the Applicants concluded was geared towards the eradication of “Shanty Towns” in The Bahamas. The Applicants challenged three (3) decisions taken in pursuance of the Policy, namely:

• i. the “apparent” decision to take possession of the land on which the “Shanty Towns” occupied by the individual Applicants stand (“the Possession Decision”);

• ii. the “apparent” decision by the 1 ^st – 4 ^th Respondents to authorize the 5 ^th and 6 ^th Respondents to disconnect power, water and utilities from the land (“the Utilities Decision”); and

• iii. the decision to issue notices under s.4(3) of the Buildings Regulation Act 1971 hereafter referred to as (“BRA”) requiring the demolition of buildings in the “Shanty Towns” (“the Notices Decision”).

2 The First Applicant is a non-profit organisation whose objects and reasons include representation and advocacy on behalf of the occupiers in unregulated communities throughout The Bahamas (commonly referred to by the government and people of The Bahamas as “Shanty Towns”). The other Applicants are 177 residents and/or occupants of the “Shanty Towns” in New Providence and Abaco, who would be aggrieved by the maintenance of the alleged Policy Decisions.

3 This Honourable Court granted the Applicants leave to apply for Judicial Review (3.8.2018).

4 Further on the 3 ^rd August, 2018 this Honourable Court granted the Applicants an Injunction in the following terms:

“Pending the determination of this action or until further order the Respondents be and are hereby restrained directly or through their agents, appointees or employees from taking possession of, demolishing any building on, or otherwise interfering with the 177 Applicants' and other residents' and occupiers' enjoyment of land in “Shanty Towns” in New Providence including by disconnecting any utilities other than pursuant to the relevant enabling legislation…”

5 The Applicants filed their...