Attorney General of the Commonwealth of Dominica Appellant v Jacqueline Theodore Respondent [ECSC]

• Jurisdiction: Dominica
• Judge: Blenman J.A. [AG.],Louise Blenman,Sir Hugh Rawlins,Don Mitchell,Justice of Appeal [Ag.],Chief Justice
• Judgment Date: 30 April 2012
• Judgment citation (vLex): [2012] ECSC J0430-4
• Court: Court of Appeal (Dominica)
• Docket Number: HCVAP 2008/009
• Date: 30 April 2012

[2012] ECSC J0430-4

IN THE COURT OF APPEAL

THE EASTERN CARIBBEAN SUPREME COURT

Before:

The Hon. Sir Hugh Rawlins Chief Justice

The Hon. Mr. Don Mitchell Justice of Appeal [Ag.]

The Hon. Mde. Louise Blenman Justice of Appeal [Ag.]

HCVAP 2008/009

Between:

Attorney General of the Commonwealth of Dominica

Appellant

and

Jacqueline Theodore

Respondent

Civil appeal — Compulsory acquisition of land — Lands seized by Government of Dominica for purpose of constructing road — Timber extracted from seized lands sold as lumber on local market — Land Acquisition Act, Chap. 53.02 — Compensation awarded in accordance with provisions of Land Acquisition Act — Whether compensation awarded by Board of Assessment fair

In 1977, the Government of the Commonwealth of Dominica ("the Government") seized heavily forested lands belonging to deceased Mr. Ferdinand Theodore for the purpose of constructing a road. These lands eventually became registered in the name of the respondent, in her capacity as Personal Representative of the Estate of the deceased. No compensation was paid by the Government for the seized lands, nor did they offer to pay any. Island Timbers Company Limited ("Island Timbers") was authorised by the Government to construct the road on the land, which was to provide access to government land for the extraction of timber and to accommodate cultivation by farmers. A considerable amount of timber was extracted from Mr. Theodore's land by Island Timbers while the road was being constructed. This was sold as lumber on the local market. The land was damaged by both the road construction and the clearing of trees. The area which was cut for the road suffered soil erosion and soil slippage and, in addition to the forest trees which were cut, damage was also caused to some other crops on the land.

The respondent filed a Constitutional Motion in which she prayed, inter alia, for an order that section 9 of the Roads Ordinance1 was unconstitutional and that the Government had no power to enter and take the lands without her permission for the construction of a road. On 2^nd April 1998, the High Court ruled that the taking of possession or acquisition of the land was not in accordance with the law which authorised such, namely, the Land Acquisition Act.2 The Court further ruled that the respondent was entitled to compensation. The Court of Appeal later affirmed this judgment of the lower court and dismissed the Government's appeal. Pursuant to the judgment of the Court of Appeal, a Board of Assessment ("the Board") was established to determine the compensation payable to the respondent. The Board held that a total of $3,512,056.00 should be awarded to the respondent, this sum comprising compensation for road construction (rehabilitation), crop destruction, protection of land from slippage and the extracted timber. The State, dissatisfied with the decision of the Board, appealed to this court, challenging in particular the compensation awarded to the respondent for the timber extracted from the seized lands, for road construction and rehabilitation, and for protection of the land from slippage.

Held: allowing the appeal, substituting the award of the Board in the sum of $3,512,056.00 with an award of $1,569,050.00 and making no order as to costs in the appeal, that:

• 1. The measure of compensation to be awarded for the felled trees should be calculated by reference to the use to which the trees were reasonably capable of being put in the future, that is, being sold by the board foot, rather than by reference to the value of the standing trees. The Board utilised the correct approach in determining the amount of compensation to be awarded to the respondent under this head.

  Raja Vyricherla Narayana Gajapatiraju v The Revenue Divisional Officer, Vizagapatam [1939] A.C. 302 applied.

• 2. There is no reason to vary the findings of fact made or inferences drawn by the Board in determining the amount of compensation which was to be awarded to the respondent for the extracted timber, since there is no indication that the primary facts were misapprehended, or that incorrect inferences were drawn. The decision of the Board to award the respondent the sum of $1,377,600.00 for the extracted timber, which was based upon the calculations of expert Mr. Fingal, cannot be impugned.

  Benmax v Austin Motor Co. Ltd. [1955] A.C. 370 applied.

• 3. A claimant is not entitled to receive more than fair compensation: a person is entitled to compensation for losses fairly attributable to the taking of his land, but not to any greater amount. The Board erred in taking into consideration the fact that the respondent was likely to use the road constructed on her land when it awarded her compensation for road construction (rehabilitation) rather than that required to reforest the land. The Board should have addressed its mind to the measure of damages which would have put the respondent back in the position that she was before her forested land was affected.

  Director of Buildings and Lands v Shun Fung Ironworks Ltd. [1995] 1 All E.R. 846 applied.

Blenman J.A. [AG.]

1 The Government of the Commonwealth of Dominica ("the Government") in the year 1977 seized heavily forested lands belonging to Ferdinand Theodore, then deceased, for the purpose of constructing a road. The Government paid no compensation for the deprivation of the property, nor did they offer to pay. The Government authorised Island Timbers Company Limited ("Island Timbers") to enter upon the seized lands to construct a road to provide access to government land for the extraction of timber and to accommodate cultivation by farmers. During the process of constructing the road, Island Timbers cut down and extracted a considerable amount of timber from Mr. Theodore's land and sold the same as lumber on the local market. The land was damaged by both the road construction and the clearing of trees from the surrounding lands. Island Timbers, having cut the trees from the land, cut them up into boards and sold the processed lumber to members of the public. The area which was cut for the road suffered soil erosion and soil slippage, and, in addition to the forest trees which were cut, damage was also caused to some crops.

2 Eventually the lands became registered in the name of Mrs. Jacqueline Theodore in her capacity as the Personal Representative of the Estate of Mr. Theodore.

3 Mrs Theodore, as personal representative of Mr Theodore filed a Constitutional Motion Claim No. 415 of 1997 praying,inter alia, for an order that section 9 of the Roads Ordinance3 was unconstitutional and that the Government of Dominica had no power to enter and take the lands without her permission for the construction of a road.

4 On 2^nd April 1998, the High Court ruled that the taking of possession or acquisition of the land was not in accordance with the law authorising the taking of possession or acquisition, namely, the Land Acquisition Act.4 The Court further ruled that Mrs. Theodore was entitled to be compensation and that the compensation should be determined in accordance with the provisions of the Land Acquisition Act, with costs to be taxed if not agreed. The Court of Appeal affirmed the judgment of the High Court and dismissed the appeal of the Government of Dominica.5

5 It appears as though, even after the decision was rendered by the Court of Appeal in the Constitutional Motion, Island Timbers continued to extract timber from the land.

6 Pursuant to the judgment of the Court of Appeal, a Board of Assessment ("the Board") was established to determine the compensation payable to Mrs. Theodore. Section 11(2) of theLand Acquisition Act provides that:

"A board of assessment shall have full power to assess, award and apportion compensation in such cases, in accordance with the provisions of this Act."

7 The Chairman of the Board was barrister Mr. Lewis Hunte, QC; the other members were Mr. Severin McKenzie who is an architect and Mr. Stephen Isidore. Apparently, Mr. Isidore, though having taken part in the deliberations of the Board, did not render any assistance to the other members of the Board in arriving at a decision. Accordingly, the decision of the Board was rendered by the Chairman and Mr. Severin.

8 The road works on the property were eventually abandoned and Government never completed its acquisition of the land for the construction of the road.

9 Mrs. Theodore provided evidence to the Board, that even after it had been established, Island Timbers continued to cut trees from the land. It was only in 2001 when she caused a fence to be erected on the land thereby preventing them from accessing the land that they discontinued the extraction of timber.

10 During the hearing before the Board, Mrs. Theodore, Mr. Clement Fingal and Mr. Petronald Green provided evidence in support of Mrs. Theodore's claim. For the State, Mr. Anthony Toussaint prepared a report and also testified.

11 In assessing the appropriate compensation to award Mrs. Theodore, the Board was presented with two different sets of assessments: one from Mr. Clement Fingal who is a licensed surveyor and a registered general engineer (who at that time had been valuing properties for in excess of forty-four years) and the other from Mr. Anthony Toussaint who is a licensed surveyor and certified valuer, at that time of seven year's experience. He was also the Authorized Officer appointed under theLand Acquisition Act. In his report, the Chairman of the Board indicated that Mr. Fingal was supportive of the view that timber trees had value when they are cultivated for sale. However, Mr. Toussaint's view is that no account is to be taken of the value of timber trees unless they are cultivated for sale. In relation to the two competing positions, the Chairman said:6

"There is a substantial difference between the experts when the cost of timber trees was...