Nevis Island Administration v Ocean Reef Resorts Ltd.

Kamau Grant

Abstract

This article examines the recent Eastern Caribbean Supreme Court decision NIA v Ocean Reef Resorts Limited which arguably stripped the governing body on the Island of Nevis of its juridical standing. I argue that the Court’s decision was flawed by foremost critically examining the procedural propriety of the Court to raise the question on its own motion as a preliminary issue contrary to the wishes of the parties. The article raises issues of fundamental importance to our legal system which courts ought to consider when adjudicating over civil claims particularly whether issues not raised by the parties ought to be determined by the court on its own volition. I also argue that the issue considered was inherently a constitutional one that ought to have first been considered by the High Court in its original jurisdiction before being subject to appellate review.

I. Introduction

On 17 August 2022, the Court of Appeal of the Eastern Caribbean Supreme Court (the Court) delivered an unexpected decision. The Court ruled that the Nevis Island Administration (NIA), the governing body on the Island of Nevis did not possess legal standing to sue and be sued in civil proceedings due to the applicability of the Crown Proceedings Act179 (the Act) of Nevis. A review of the facts indubitably raises to any discerning reader the question: how exactly did the Court become seized of this issue in the first place?

In this article, I seek to examine the decision and this most pressing question. I will briefly review the Court’s judgment and the legal framework in which it was decided, then I will highlight two key legal concepts which require some elucidation following the decision of the Court. These are preliminary issues and sua sponte decisions. Afterward, I will evaluate whether the issue before the Court was of a constitutional nature and thus a matter for the High Court’s determination.

II. The History, Decision, and the Legal Framework

For these purposes, it is sufficient to note that the Constitution of Saint Kitts and Nevis180 (the Constitution) is the document that establishes the NIA. Section 106 of the Constitution vests the NIA with exclusive responsibility for the administration within Nevis over eight distinct areas which include land and buildings vested in the Crown and specifically appropriated to the use of the Government. The Act provides for matters relating to the civil liabilities, rights and proceedings of and against the Crown. The Act outlines in various sections181 that the term Crown for the purposes of the Act refers to the Attorney General of St. Kitts and Nevis in whose name all claims are to be made against.

Ocean Reef Resorts Limited (the Respondent) brought a claim against the NIA seeking damages for breach of contract. The claim was served on the secretary in the Legal Department of the NIA. The NIA did not acknowledge service within the requisite time and the Respondent successfully received a default judgment against the NIA who then applied to set it aside on the basis that they were not properly served. The Master dismissed the NIA’s application and ruled that they had been properly served and the NIA appealed the decision. When the matter was first heard by the Court of Appeal, the Court sua sponte (on its own initiative) decided to raise two preliminary issues: (1) whether the proper party was served with the claim for the purposes of the entry of the default judgment and (2) whether the NIA was a juridical person separate and apart from the Crown or was part and parcel of the Crown for the purposes of proceedings under the Act. The Court observed that it was not considered by the Master or canvassed by the parties in the proceedings below but considered it sufficiently important to address to promote legal certainty.182

In that context, the Court went on to decide that the Act was federal legislation which applied to both Saint Kitts and Nevis. The Act provided that civil proceedings against the Crown must be instituted against the Attorney General. The Court noted that there were no provisions in the Constitution which disapplied the Act in relation to Nevis nor was there provision implied or otherwise in the Act which permitted the NIA to assume the role of the Attorney General in relation to civil proceedings commenced in Nevis against the Crown. The Court indicated that there was nothing in section 106 of the Constitution which imbued the NIA with legal standing to sue or be sued in respect of land and buildings vested in the Crown or in any other areas within their exclusive responsibility. Thus, they held that the NIA was part and parcel of the Crown for the purposes of civil proceedings under the Act and therefore the claim ought to have been instigated and served on the Attorney General.

III. The Issues

As indicated above, I will telescope on two procedural issues that arise from the Court’s decision – the proper use of preliminary issues and sua sponte decisions.

Preliminary Issues

It is trite that the court has extensive case management powers under the Civil Procedure Rules 2000 (CPR) and does in fact have the power to order a separate or preliminary trial. Pursuant to under Rule 26.1(2)(e) this is an expressed power of the court. Rule 62.14(1) extends this case management power to the Court of Appeal.

However, that there is a basis for the power is not the end of the question. The Court’s case management powers are not unfettered or at large183 and case law has sought to regulate how they are used. In the English case Allen v Gulf Oil Refinery184 , Lord Roskill explained that the

182 Ocean Reef Resorts Limited [8]. Emphasis added.

183 Grenada Land Actors Inc v The Planning and Development Authority et al GDAHCV2021/0290, [30]. This case also dealt with the issue of exercising caution when ordering preliminary trials.

184 [1981] AC 1001 preliminary point procedure was one that could be invoked to achieve the desirable aim of economy and simplicity185 . He however explained that such cases where it would be desirable were few. He went on to alert judges to be extremely cautious before making such orders186. In Craig Reeves v Platinum Trading Management Limited187 , the Eastern Caribbean Court of Appeal discussed the point. They expressed risks that were manifest with this procedure. Denys Barrow JA stated:

“Wasting rather than saving time, complicating rather than simplifying issues, and engaging in mini-trials with no true justification for doing so, are among the risks that require careful consideration before a court decides to order the trial of a preliminary issue”.

The Court went on to hold that the judge ordered a preliminary trial without considering or properly considering the reasons why she should not hold such a trial. Therefore, because the judge held a trial of a preliminary issue in disregard of relevant factors, the decision was bad in law and was quashed on appeal.

I recognise that this case dealt with raising a preliminary issue on a point of fact and in that sense can be distinguished from the decision under review as it dealt with one on a point of law. However, it is submitted that all the cautions and factors must still be taken into account. Further, there needs to be a consideration of the particular point of law under review. Despite the Court’s reluctance to acknowledge this point, this was a matter of constitutional interpretation not merely of interpreting the Crown Proceedings Act. In Grenada Land Actors Inc v The Planning and Development Authority, 188 the court refused to order a preliminary trial on an issue of law that would seek to determine a question of sufficient interest on a judicial review claim. Clearly then, if such a position could be warranted under judicial review proceedings it ought naturally to be as applicable to a case of constitutional interpretation. The court raised two preliminary issues mentioned above. Confusingly, the first issue is not a preliminary issue but in fact the substantive issue in the case namely whether the claim was served on the proper party in the context of the NIA. The second issue was a completely unexpected and somewhat unrelated issue to the substantive issue of proper service namely whether the NIA is a juridical person separate and apart from the Crown. It appears this question was so unexpected that all parties including counsel appearing for the Attorney General argued in favour of the NIA possessing legal standing. Therefore, for the court to move on its own initiative against all parties in the case to raise a preliminary issue on the substantive issue and an arguably unrelated issue appears at first glance to be quite unorthodox.

The Court was of the view that this case was not a matter of constitutional interpretation. Arguably and for reasons I will subsequently elucidate the matter was in fact a matter of constitutional interpretation. Suffice it to say, the Court’s decision also appears at variance with the overriding objective of the CPR to deal with cases justly by dealing with them in ways proportionate to the importance of the case and the complexity of the issues.

Sua Sponte Decisions

Sua sponte is a Latin term meaning ‘of one’s own will’. It contemplates situations where actions are taken by courts without the prompting of the parties to the dispute. In our common law legal systems, this is not a practice generally countenanced as many view it as antithetical to our adversarial legal system189. Typically, there are opposing parties who present their cases to an impartial judge who assesses the merits of each parties’ case and makes his ruling. Lord Denning put it best:

“In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large... 190”

When judges step outside this role, it is said that they drop their mantles as judges and assume the robes of advocates and this was unbecoming of their position191 .

This is even more so in the case of appellate judges. The role of the Court of Appeal is mainly one of review192. Their proper role in our legal system is to review the decisions of lower courts and to defer to their decisions unless there are material inconsistencies or inaccuracies that render the decision plainly unsound193. This explains why Courts of Appeal do not typically

189 See generally, Barry Miller, ‘Sua Sponte Appellate Rulings: When Courts Deprive Litigants of an Opportunity to Be Heard’, 30 San Diego Law Review (2020); Amanda Frost, ‘The Limits of Advocacy’, 59 Duke Law Journal (2009) 447-517; Jeffrey Anderson, ‘The Principle of Party Presentation’, 70 Buffalo Law Review (2022).

190 Jones v National Coal Board [1957] 2 QB 55, 64. (Emphasis added)

191 Ibid

192 C. Blake & G. Drewry, ‘The Role of the Court of Appeal in England and Wales as an Intermediate Court’ in A. Le Sueur, Building the UK’s New Supreme Court: National and Comparative Perspectives (OUP, 2004) 227

193 Watt v Thomas [1947] AC 484 allow parties to raise new issues on appeal. May LJ in Jones v MBNA International Bank194 sets this out brilliantly and it is worth relying on in full. He held:

“Civil trials are conducted on the basis that the court decides the factual and legal issues which the parties bring before the court. Normally each party should bring before the court the whole relevant case that he wishes to advance. He may choose to confine his claim or defence to some only of the theoretical ways in which the case might be put. If he does so, the court will decide the issues which are raised and normally will not decide issues which are not raised. Normally a party cannot raise in subsequent proceedings claims or issues which could and should have been raised in the first proceedings. Equally, a party cannot, in my judgment, normally seek to appeal a trial judge's decision on the basis that a claim, which could have been brought before the trial judge, but was not, would have succeeded if it had been so brought. The justice of this as a general principle is, in my view, obvious. It is not merely a matter of efficiency, expediency and cost, but of substantial justice. Parties to litigation are entitled to know where they stand. The parties are entitled, and the court requires, to know what the issues are. Upon this depends a variety of decisions, including, by the parties, what evidence to call, how much effort and money it is appropriate to invest in the case, and generally how to conduct the case; and, by the court, what case management and administrative decisions and directions to make and give, and the substantive decisions in the case itself. Litigation should be resolved once and for all, and it is not, generally speaking, just if a party who successfully contested a case advanced on one basis should be expected to face on appeal, not a challenge to the original decision, but a new case advanced on a different basis. There may be exceptional cases in which the court would not apply the general principle which I have expressed.”195

In our legal system and particularly in our system of civil litigation, cases that come before the court should be predominantly party driven with limited judicial interference in that regard. It is especially paramount on appeal that parties know where they and their opponents stand in relation to the case. It is unusual for new arguments to be raised on appeal especially when they change the entire nature of the case itself. In NIA v Ocean Reef Resorts Limited, the new question raised sua sponte had the effect of transforming the case from one of civil procedure to one of constitutional interpretation- albeit that the Court did not come to the same position. Merely allowing the Attorney General to intervene as amicus was insufficient. In this regard parties should have been able not only to formulate new submissions, but they may have desired to seek new counsel more familiar with advancing public law arguments. The NIA may have even wanted to file affidavits detailing the necessity of juridical status for its smooth operation.

To buttress the point, in Roosevelt Skerrit v Antoine Defoe,196 Justice Burgess of the Caribbean Court of Justice forcefully reasoned that absent an application by the parties, the High Court judge could not sua sponte decide that a question of constitutional interpretation was in issue and proceed to rule on it197. This was due to the fact that the Constitution and the CPR together established an ‘elaborate procedural system on how to access constitutional redress and constitutional interpretation in the High Court’. If this is the case for the High Court who possesses original jurisdiction over these matters, then it must all the more be the case for the Court of Appeal who does not.198

For the Court to not only raise this issue sua sponte but to openly admit that it did so to resolve general issues of service and to promote legal certainty is unprecedented. The result was that the Court of Appeal assumed the role of an advocate and argued its own case against all other parties involved in the dispute. If anything flies in the face of Lord Denning’s earlier caution surely it is this. The result not only compromised the NIA’s position as an administrative body but perhaps the entire structure of our legal system. The Court is credited for its interest in seeking to resolve an interesting and legitimate lacuna in our legal system. However, and at the same time, the Court’s good intentions did not appear to conform with established principles.

IV. The Constitutional Question

An argument can be made that rule 26.2(1) CPR gives the Court the powers to make an order on its own initiative. Whilst that is true, it bears restating that these powers are not unfettered or at large. The decision to make the order must be exercised in light of the overriding objective and the values of our legal system expressed above. But even if the opposing view is of formidable persuasion still, rule 26.2(1) expressly limits this power in cases where a rule or

196 [2021] CCJ 4 (AJ) DM

197 Ibid [82]

198 See further on this point Attorney General of Jamaica v BRL Limited [2021] JMCA Civ 14, [121]

(McDonald-Bishop JA) other enactment provides otherwise. Arguably in accordance with sections 96 and 97 of the Constitution questions of constitutional interpretation must be referred to the High Court who exercises original jurisdiction to hear such matters.

I acknowledge that much of my argument thus far has presupposed that the issue was a constitutional one, so I have designated this section to explain why I am of that opinion.

Section 2 of the Constitution establishes its supremacy and declares any law inconsistent with it be deemed void to the extent of its inconsistency. Section 2 of Schedule 2 to the Constitutional Order indicates that all existing laws from 19 September 1983 must be construed with such modifications, adaptations, qualifications, and exceptions necessary to bring them into conformity with the Constitution. The Constitution of Saint Kitts and Nevis, unlike other constitutions in the region, does not possess a savings law clause. The practical effect of this is that all laws on the books, save none, must be read giving effect to the provisions of the Constitution.

Thus, the Crown Proceedings Act albeit an Act of 1955 must be read in conformity with the Constitution. The Constitution, in its typical ambiguous fashion, outlined that the NIA possesses exclusive responsibility over eight matters. The question as to whether it is a necessary corollary for the NIA to contract and/or enforce contracts relating to these eight matters is unavoidably one of constitutional interpretation and thus falling within the jurisdiction of the High Court. The Court’s reasoning has implications whether explicitly or implicitly on the NIA’s juridical status and whether they can contract in the first place. This unquestionably bears on whether the NIA has exclusive responsibility in fact or whether this exclusive responsibility is mere constitutional surplusage. One would expect someone who has exclusive responsibility over land to be permitted to enter into a basic contract such as a lease and enforce its terms.

The Court’s interpretation of the Act is confusing because the Court not once mentions the important fact that the Act was enacted before the Constitution and thus before the NIA existed. How then is it expected that the Act would refer to the issue of the NIA. In fact, the Act predates even the establishment of the Nevis Local Council instituted under the St. Christopher-NevisAnguilla Constitutional Order 1967.199 Even stranger, the Court’s reasoning rests on the belief that the Constitution must in some way disapply the provisions of the Act. Constitutions are by nature ambiguous and open-ended documents200. They neither express precise terms nor do they attempt to. This is the reason that a body of theory and law has developed in relation to the various methods of interpreting these documents. Nonetheless, these documents founded on our Westminster traditions must be interpreted generously to avoid the ‘austerity of tabulated legalism’201. Thus, arguments that exclusive responsibility implied legal standing over the defined areas cannot be far-fetched. But that was a constitutional question for the High Court.

Undoubtedly then the question was not whether there were any provisions of the Constitution which disapplied the Act. That is surely putting the cart before the horse. The constitutional question was given the tenor of the provisions of the Constitution concerning the separation of the NIA from the Federal Government, whether juridical status was a necessary corollary of exclusive responsibility over the eight areas. If not, then the matter is at an end and the NIA does not have standing. However, if the answer is yes, then there is the follow-up question of whether the Crown Proceedings Act can be read in conformity with the Constitution. If it can, the NIA has standing. If not, the Act is unconstitutional and must either be modified or struck down

But such a discussion can only be based on interpreting the Crown Proceedings Act against the provisions of the Constitution. If that was the question either party to the proceeding wished to raise, then the cumulative effect of Parts 56 and 61 of the CPR was that a party should have applied by fixed date claim form to the High Court for the master to refer the question to the High Court202. Absent such an application, neither could a party to the proceedings raise the issue on appeal nor could the Court of Appeal sua sponte raise the issue and decide it203

V. Closing Remarks

The proper role of the Court in this case was to review the appeal before it. That is, whether the secretary of the Legal Department of the NIA was the proper party to be served in relation to the NIA. Contrary to the court’s view, the body of law and common practices that have developed in that regard was certainly relevant and, in my view, determinative. The court instead went on a frolic of its own and raised a preliminary issue of a fundamentally

200 Minister of Home Affairs v Fisher [1980] AC 319

201 Ibid

202 Roosevelt Skerrit v Antoine Defoe [2021] CCJ 4 (AJ) DM [82]

203 Similarly, the court in The Chief of Police v Calvin Nias HCVAP2007/010 discusses the role of the High Court judge in constitutional matters constitutional nature and decided it. The Board in Brantley v Constituency Boundaries Commission204 observed the proper procedure of legal claims: ‘It is no part of the Board’s role, in this appeal...to make any findings in relation to the appellant’s substantive case...Those allegations were yet to be tested by the courts in St. Christopher and Nevis when the Board heard the appeal’. This perfectly and succinctly acknowledges the role that the High Court must play in these matters. Constitutional questions are questions for the High Court to determine in its original jurisdiction before being subject to appeal. Unfortunately, the Court made a ruling seemingly in breach of the proper use of the power to raise preliminary issues and in disregard of the foundational values of the legal system and civil litigation in our country. As this is a judgment of the Court of Appeal, it is even more unfortunate as the only hope left for the NIA is mounting a successful Privy Council challenge or an accommodation by the Federal Government. In the meantime, we have an NIA problem.