Carlton Lewis v Neil Cochrane (as President of the Antigua Turf Club)

• Jurisdiction: Caribbean States
• Court: Eastern Caribbean Supreme Court
• Judge: Farara JA
• Judgment Date: 27 May 2022
• Judgment citation (vLex): [2022] ECSC J0527-1
• Docket Number: ANUHCVAP2018/0039

Between:

Carlton Lewis

Appellant

and

Neil Cochrane (As President of the Antigua Turf Club)

Respondent

Before:

The Hon. Mde. Louise Esther Blenman Justice of Appeal

The Hon. Mr. Mario Michel Justice of Appeal

The Hon. Mr. Gerard St. C Farara Justice of Appeal [Ag.]

ANUHCVAP2018/0039

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Civil Appeal — Leasehold interest — Equitable interest — Whether an unincorporated association can own or acquire an estate or proprietary interest in real property — Whether the leasehold interest acquired by the appellant is subject to the equitable interests of the Antigua Turf Club (‘ATC’) — Whether the equitable interest in land is an overriding interest protected by Section 28(g) of the Registered Land Act — Hierarchy of laws principles — Whether judge's finding of a licence coupled with an equitable interest is in conflict with section 4 of the Crown Lands (Regulation) Act — Proprietary estoppel — Whether the principles of proprietary estoppel apply to Crown Lands — Whether occupation of Crown Lands by the ATC gave rise to an equitable interest on the basis of proprietary estoppel — Whether proprietary rights in Crown Lands in Antigua and Barbuda can be created by any authority other than by the Cabinet-Power of the Crown to divest itself of its property — Free alienability of land — Whether the judge's finding that the ATC held a licence coupled with an equitable interest created a right or interest in perpetuity and impugned the principles of the free alienability of land

The Antigua Turf Club (“ATC”) is an unincorporated entity. It (and its predecessor in name, the Cassada Gardens Turf Club) has occupied, promoted and conducted horse racing from the property known as the ‘Cassada Gardens Race Track’ (“the disputed property”), since 1964. The disputed property is owned in fee simple by the Government of Antigua and Barbuda as the sole registered proprietor thereof. In April 2000, the Government of Antigua and Barbuda granted a lease of 31.21 acres of the disputed property to the appellant for a term of 25 years from 1 ^st April 2000.

In 2012, the appellant brought a claim against the respondent, Neil Cochrane, as the court-appointed representative of the ATC. The appellant claimed that the ATC had engaged in acts of trespass including excavation of lands, construction of structures and entering the land without the appellant's permission. He therefore sought orders for the: (i) possession of the disputed property; (ii) a declaration that neither the respondent nor the ATC is entitled to enter upon or use the leasehold lands of the appellant; (iii) an injunction restraining the respondent, whether by himself or his servants or otherwise howsoever from entering on the said land; (iv) an account of any income and profits made by the ATC from the disputed property and an order for payment to the appellant of any such income and profits; (v) damages for trespass; (vi) interest upon any damages found due; and (vii) costs.

It was not in dispute that the ATC has conducted horse racing from the disputed property since 1964 with the permission of the Government of Antigua and Barbuda, however the precise bases, terms, and legal effect of the arrangement between the Government of Antigua and Barbuda and the ATC and its predecessor Turf Club in relation to their use of the disputed property for horse racing activities, was a matter of much contention.

The respondent in its Amended Defence and Counterclaim admitted that the appellant held a leasehold interest in the disputed property. However, he asserted that the Government of Antigua and Barbuda and the ATC had entered into an oral agreement whereby it was agreed that in exchange for the Government allowing the ATC to occupy the disputed property, the ATC would develop the said property for horse racing. In keeping with this agreement, the ATC claims to have invested over two million dollars in the upgrade and maintenance of the facility. Importantly, the respondent maintained that the ATC has an overriding interest in the disputed property and that any interest which the appellant has in the said property “is held subject to the equitable interest of the ATC which interest it has never surrendered and which is protected by law”. The respondent also counterclaimed for loss and damages for damage occasioned by the appellant when he entered the disputed property, and with the use of heavy equipment dug a large trench across the race track damaging the infield and destroying the race track.

At trial, the learned judge considered and went on to find that there was ample evidence of the existence of a licence coupled with an equitable interest over the disputed property in favour of the ATC, which interest constituted an overriding interest protected by section 28(g) of the Registered Land Act and could not be defeated or determined by an assignment or lease of the property to the appellant. The learned judge held that it would be unconscionable after all these years for the Crown to escape its promise, and for the lack of formality to defeat ATC's rights in the disputed property. On 28 ^th September 2018, the learned judge, in a written judgment, dismissed the appellant's claim and found the appellant liable on the respondent's counterclaim for loss and damage in the sum of $291,170.29 plus interests and costs.

The appellant being dissatisfied with the judgment, appealed. In summary, the appellant challenges the learned judge's decision on the following grounds: (1) whether the ATC, as an unincorporated body, has the legal capacity to hold any interest in the disputed property, including a licence coupled with an equitable interest constituting an overriding interest pursuant to section 28 of the Registered Land Act; (2) the learned judge erroneously found that the appellant's lease is subject to the equitable interest of the ATC, and that such a finding is, as a matter of law, in conflict with the authority vested in the Cabinet by section 4 of the Crown Lands (Regulation) Act and disregards the principles of hierarchy of laws by holding equity superior to statute law; (3) despite there being no evidence of a disposition or gift being made or assurances or affirmative consent from the Government, the judge erroneously found that the occupation by ATC over the years gave rise to an equitable interest in the disputed property on the basis of the principles of proprietary estoppel, and for which interest it would be unconscionable for the Government to defeat for lack of formality; (4) whether a letter to the respondent in February 2008 was indisputable evidence of Cabinet exercising its powers to make regulations under the Crown Lands (Regulation) Act thereby retaining control of the disputed property, subject to the appellant's lease; and (5) whether the finding that an interest had been acquired by the ATC in the disputed property based on proprietary estoppel had the impermissible effect of creating a right in perpetuity and offends against the principles of free alienability of land.

Held: dismissing the appeal; affirming the judgment and orders of the learned judge in the court below and awarding costs to the respondent in the appeal to be assessed if not agreed within 21 days from the date of delivery of this judgment, such costs not exceeding two-thirds of the prescribed costs awarded in the court below, that:

• 1. An unincorporated organisation is not a legal person and does not have the capacity to enter into a binding contract or to sue and be sued. As such, an unincorporated body cannot hold or acquire title or interest in land, legal or equitable, including but not limited to, tan overriding interest protected by section 28(g) of the Registered Land Act, unless such interest is acquired through individuals or trustees on behalf of the unincorporated body.

  Halsbury's Laws of England, Volume 34 ‘Sale of Land’, page 225 at paragraph 376 applied.

• 2. The issue as to the legal capacity of the ATC, as an unincorporated organisation to hold an interest, legal or equitable, in the disputed property was not pleaded by the appellant in the court below. This issue was raised by the appellant for the first time on appeal. No issue was joined with the respondent's defence to the claim that, in any event, it must fail because the ATC does not have the legal capacity to hold the equitable interests or any interest it was contending to have in the disputed property. Likewise, no point was made or sought to be made by or on behalf of the appellant that the respondent's counterclaim for loss and damage must fail because of the ATC's lack of capacity to hold any interest in real property upon which to ground such a claim. Despite its obvious importance, it would be an injustice to the respondent to permit this issue to be raised for the first time at this late stage. There was ample opportunity for the appellant to raise such an important issue, going as it does, to the root of the defence and counterclaim filed by the respondent in the court below, thereby affording to the respondent a fair and adequate opportunity to properly respond to it. .

• 3. The equitable principles of proprietary estoppel are well established. They apply equally to Crown Lands and to lands which are owned by private individuals or corporate entities. In the appropriate circumstances, it may be established by the evidence that the permission or promises made by the Crown can constitute assurances which, over a significant period of time, lead to a conclusive finding that the occupier of Crown lands, who has acted to his or her detriment, in reliance on such assurances or promises, has acquired an equitable interest in the Crown Lands, such that it would be unconscionable for the Crown to unilaterally act in a way contrary to or to determine such occupation.

• 4. It is indisputable as a matter of fundamental...