JAMAICA | Leadership in the pursuit of one law for all - How different is Little Bay?

KINGSTON, Jamaica May 9, 2022 -  One of my persistent criticisms about the landscape of Jamaican society (and might I add, including the Church), relates to double standards.  This practice of double standards is often manifested in the unbalanced and disproportionate application of laws and rules.

Even in circumstances in which a decision-maker chooses to exercise mercy, or a public advocate or representative comes to the defence of would-be victims, the offer of such mercy or advocacy sometimes exposes even more troubling double standards. 

One of the most recent manifestations of the kind of double standards of which I speak is the dispute over ownership of over eight hundred acres of land spanning the communities of Little Bay and Brighton, Westmoreland.

Summary of available reporting/facts on the dispute

Public reporting on the latest squabble, in 2022, shows the following:

• March 3: Report in the Jamaica Observer indicating that the president of an association representing residents of Little Bay and Brighton was calling on the Prime Minister Andrew Holness to intervene in the dispute.  The president was quoted as saying they are asking the government to come the full way and to have mercy “on the little people (and) give (them) a chance”.
• April 7: Gleaner reports on the actions of “angry residents” who doused heavy equipment with gasoline and threatened to set it on fire, if the planned eviction which was about to commence went ahead.
• April 7: Various media report that the Opposition PNP had urged the Prime Minister to intervene in the dispute.
• April 7: RJR News reports that the Prime Minister had met with a group of residents from Little Bay and told them that he had: “asked the Sugar Company of Jamaica, NLA [National Land Agency] and other agencies that have land in the area to give (him) a full profile portfolio of the lands that are available and we’re going to develop them for housing…” This undertaking followed the standoff the previous day (April 6) in which residents threatened to burn the equipment.  The Prime Minister was also reported as saying the matter is a private one between the owner and the occupants.
• April 10 – 12: Various media report that Prime Minister Holness stated that the government cannot afford to buy the lands at Little Bay so the occupants could then access them, and that they should be prepared to move.
•  April 20: The PNP issues a statement proposing solutions to the dispute.
• April 25: Various media report that Opposition Leader, Mark Golding had told the residents that they had rights to the disputed land and that the PNP would stand by them.

Reactions to Mark Golding

The assertions of Opposition Leader Mark Golding sent shock waves across some sections of the society.  Many asked: how could this prominent commercial lawyer and successful businessman be taking this position on property rights and siding with squatters?

His statements were condemned by Minister of Local Government and Rural Development Desmond McKenzie, though somewhat surprisingly the Prime Minister did not react (at least immediately) to the seemingly radical assertions of Golding.

The law on property rights, specifically adverse possession

It seems to me that Golding’s position is sound, as he was correctly interpreting the law concerning adverse possession. In concluding that Golding was correct in siding with the people who have been in possession of the property at Little Bay, I am relying on the 2014 judgmentof the Court of Appealin the case of Recreational Holdings (Jamaica) Ltd v Carl Lazarus, heard by Justices Panton, Morrison and Phillips, and written by Justice Dennis Morrison.

This 2014 Court of Appeal judgment concerned lands in St. Andrew and St. Thomas and, in my assessment, the principles of law outlined are equally applicable to the Little Bay dispute.

A central question in that case was whether, in a situation where land has been occupied by someone else, without the consent of the registered owner, for a period of twelve or more years (such that, under section 30 of the Limitation of Actions Act, the registered owner’s title has been extinguished), a purchaser of the land from the registered owner is nevertheless given “a fresh start” in relation to the twelve year period of adverse possession, so as to entitle the purchaser to forcibly remove the occupier.

At first instance in the Supreme Court, the judge ruled for the occupier who had acquired title by adverse possession of the land in question, and decided that a purchaser from the registered owner does not get a fresh start. The judge’s decision was unanimously upheld in the Court of Appeal, and then by the Privy Council. Instructively, Privy Council not only upheld the judgment of the Court of Appeal, but paid express tribute to Morrison for the clarity and soundness of his judgment.

The case makes it clear that after twelve years of adverse possession by an occupier of land, the ownership of the registered owner is extinguished, and the occupier who has acquired title by adverse possession can use that claim against a new registered owner to whom the land is transferred.

It is significant that the reasoning in an earlier first instance decision against some Little Bay residents was criticized trenchantly in Justice Morrison’s powerful judgement in the Recreational Holdings case.

The bottom line here is that ownership of property comes with responsibilities and is not immutable, including the obligation to protect one’s proprietary rights within a reasonable time (in Jamaica, twelve years) rather than leaving it unattended for others to enter into undisturbed occupation for a prolonged period.

In a country with a historically dispossessed majority without access to formal land ownership, the law of adverse possession has been an important route by which prolonged undisturbed occupation can become fully-titled ownership.

Lessons for Little Bay

If it can be shown that the residents of Little Bay and Brighton have been in possession of the lands for twelve or more years without the registered owner’s consent, the title of the registered owner (and any subsequent purchaser) would have been extinguished, as Opposition Leader, Mark Golding has argued. This may not sit well with some, but the law of the land cannot be ignored or subverted simply because the occupiers in possession are “little people” as the association president describes themselves. 

It is said that there are thousands of residents at Little Bay and Brighton living on the disputed land, and the Prime Minister cannot wash his hands of the situation on grounds that it is a private matter.

While the property may be the subject of a prior court action, that case (no doubt incorrectly decided, before the law was definitively clarified in the Recreational Holdings case) only involved a small minority of the residents of the affected communities, and the majority are not bound by it.

The prospect of a multi-billion-dollar investment of the property is a significant factor, but it is not a basis for disqualifying the legal rights of thousands of Jamaican citizens.

The proposed solution from the PNP, for the Prime Minister’s powers under the Local Improvements (Community Amenities) Act to be invoked to mediate a reasonable and proportionate solution, is therefore worthy of attention. Indeed, there is precedent for this approach.

The apparent double standard

A somewhat similar case, which constitutes the double standard to which I made reference, concerns property at 85 Red Hills Road.  This case occurred in 2016.

In that case, the court had ruled in favour of the registered owner who had proceeded to evict the occupiers. 

The Member of Parliament, Karl Samuda not only castigated the court for its ruling, but persuaded the Government, of which he was a member, to purchase the property, in order to give ownership to the occupiers.

After the court had ruled in favour of the registered owner and he proceeded to commence eviction of the residents, the Government took leadership of the matter and sought an injunction to bar the demolition exercise. The injunction was however turned down by a judge in chambers.

Samuda, in defending the actions of the government, asserted that the Government has the right to acquire some properties for certain developments under the Local Improvements (Community Amenities) Act. 

Samuda was quoted by Radio Jamaica, in a report on January 4, 2017, saying: “The whole idea is to make poor people get a chance to have a security of tenure. Why I was so hostile towards the judge and their decision was that people who were born there, thirty-odd years old, were going to be thrown out without any shelter. As a member of parliament, I couldn’t stand for that”.

The big question, therefore, is: how different is Little Bay?