First blood drawn in legal battle

by Katherine Renton

The legal team for businessman Leon “Bigger Biggs” Samuel has withstood an attempt by the State to have Samuel’s claim asserting his rights over lands at Rabacca struck out on a technicality, even before it could be heard by the High Court.

When the dispute about the ownership of lands at Rabacca made headlines in March 2019, it concerned Samuel being arrested and charged for obstruction to a senior surveyor and his assistants who were attempting to carry out a survey at Rabacca, where Samuel owns land.

Since then, the completed and prepared survey plan no C1842 has been published in the Gazette.

Subsequently, Samuel, who is the managing director of the company Bigger Cement and Aggregate Incorporated, through his lawyers, the Elizabeth Law Chambers led by Queen’s Counsel Stanley ‘Stalky’ John, and counsel Jomo Thomas, filed a claim in December 2019.

The defendant to the claim is the Governor General, who is represented by the Attorney General.

One of the objectives of the claimant (Samuel) is to seek a declaration that a survey conducted by senior surveyor Alrick Williams in March 2019, at the instance of the Ministry of Works, was not performed pursuant to the Crown Lands Act Cap 319 and was consequently illegal and void.

Also in having the court review this survey, they seek a declaration that land depicted as crown land (State land) or crown boundary on Survey Plan No C1842 prepared by Williams, and lodged at the Lands and Surveys Department on April 30, 2019, is not in fact crown land/crown boundary.

Furthermore, that “all of the 3.5450 acres of land nearest to the Rabacca River, and 5.4321 acres nearest to the Lady Jane/Langley Park Dry River” shown on the survey plan “are lands beneficially owned by the claimant (Samuel).”

However, Samuel’s legal team has already faced a big hurdle that threatened to have this entire claim struck out in one fell blow.

In order to overcome this hurdle, they relied on statements made in November 2019 by Minister Julian Francis, in a recording that was played during a press conference at the legal chambers of Jomo Thomas, this Wednesday.

Counsel Akin John, son of Stanley ‘Stalky’ John, and counsel with Elizabeth Law Chambers, played this recording.

During the audio, the Minister of Works refers to a letter dated October 30, 2019 sent by the chief surveyor to Samuel, and concerning the “Gazette of the survey plan for crown boundary land”. He revealed that in keeping with section eight of the Crown Lands Act, a copy of the registered survey (C1842 in this case) must be published in the Gazette, and Francis confirmed that it had already been published.

The Minister continued that this letter stated that if Samuel considered himself aggrieved by the plan he may within two months of the publication, apply by petition to a judge in chambers to review the survey.

However, critically, he stated that he had asked the attorney general whether the two months would run from the date of the letter, or the date the survey was published in the Gazette.

“He(the attorney general) says he will prefer to go with the date of the letter because it gives more time because the date of the letter was maybe a week or two after the fact of it being Gazetted,” the Minister stated in the recording.

At the press conference, John emphasized that the Minister even said that the attorney general told him that out of an abundance of caution, notwithstanding the provision, “We will give Mr Samuel two months from the 30th of October to file any review.”

Therefore, Samuel relied on this, and the “fix date application challenging the purported survey process and also seeking constitutional redress was filed on the 17th of December, well within the two month period.”

“So one can imagine the absolute shock and dismay and disbelief when on the 15th of January, 2020, Mr Samuel is served with an application on behalf of the Governor General, represented by the Attorney General,” John said, “…an application to strike out Mr Samuel’s, or Bigger Cements and Aggregate Incorporated’s claim, on the premise that it was brought out of time, that it should have been brought at some earlier date.”

On Wednesday morning, Justice Esco Henry delivered her oral decision on whether the striking out application submitted by the State should be granted. John and colleagues had argued that this application was without merit.

Justice Henry ruled that “the Governor General’s application to strike out the claim is dismissed.”

“The Governor General is granted an extension of time to July 23rd 2020 to file her defense and the Governor General pay to Bigger Cement and Aggregate Incorporated, costs to be assessed if not agreed on application to be filed and served on or before 28th of July 2020,” it was also determined.

“Mr Samuel having relied on that representation (by the Minister) filed his claim way within the time, then [the defendants] attempted to take this procedural point in having the claim prematurely struck out. That cannot indeed be fair and justiciable and we are pleased that the court found in Mr Samuel’s favour in allowing him to proceed with the claim,” John concluded.

“We were cognisant that there were certain discussions or reports circulating, unofficial reports circulating out there in the public and we felt it was important to contextualize exactly where the matter is now,” John commented.
Counsel Thomas noted that in the decision given by the Justice, the first point she made was that the court did have jurisdiction to hear the claim.

“One of the arguments made by the respondents in this matter was that the court had no jurisdiction to hear the claim because this should have been heard in a different forum; there was another forum within which this matter could have been resolved,” he explained.

“The court made light work of that and clearly declared that it had jurisdiction to hear the claim,” the counsel stated.

However, Thomas noted that there is “a long ways to go in this matter.”

“In the claim, Mr Samuel is asserting that the entry of the state officials on to his land was arbitrary and it was a curtailment of his rights, his due process rights, it was contrary to certain sections of the Vincentian Constitution and that it amounted to an abuse of process,” he noted, which he said is a matter to be heard down the road.

“… But the important victory which Mr Bigger Biggs, Leon Samuel won today is that he was able to get the court to vindicate his right to hear this very important matter in the High Court of Justice in Kingstown St Vincent and the Grenadines, and we are elated for that decision by Justice Esco Henry and we look forward to further litigating this matter on behalf of Leon Bigger Biggs Samuel,” the lawyer concluded.