The Attorney General v HMB Holdings Ltd

Compensation for compulsory acquisition must be assessed on evidence that permits a proper valuation. Under a sales-comparison approach, a bare appraisal of another property does not establish an actual sale, its relevance, or the adjustments required. An appellate court cannot become its own expert valuer and select a figure unsupported by expert evidence. A tribunal member cannot rely on undisclosed outside opinions, and forced-sale comparisons cannot determine willing seller/willing buyer value. Constitutional transitional provisions may preserve a pre-1967 statute notwithstanding a later fair-compensation guarantee. Accordingly, the statutory 4% interest limit remained effective, subject to a conditional order protecting the claimant against the Government’s delay.

HMB Holdings Ltd owned land at Half Moon Bay, Antigua, which the Government compulsorily acquired. A Board of Assessment awarded US$23,820,999. HMB appealed, and the Court of Appeal of Antigua and Barbuda allowed the appeal on 5 December 2011, substituting US$45,499,102.09. The Government appealed to the Privy Council.

The principal issue was whether the Court of Appeal had an evidential basis for valuing the land by reference to Emerald Cove, relying on an unexplained appraised figure as an actual sale price. A further issue concerned whether constitutional transitional provisions preserved the 4% interest limit in the Land Acquisition Act 1958.

Appeal allowed. The Court of Appeal’s valuation could not stand.

1. Valuation evidence. The Emerald Cove material was only a bare statement of an appraised value. Its valuer, purpose and methodology were unknown. There was no expert evidence explaining how the figure should be used or adjusted in valuing Half Moon Bay. The Court of Appeal therefore acted as its own expert valuer when it treated the figure as an arms-length sale and based the award on it.
2. Assessment evidence. An assessment decision cannot properly rely on undisclosed information obtained by a member from private individuals, since the parties have no opportunity to know or test that material. Mr Michael’s determination was consequently vitiated. His comparison with forced sales was also irrelevant to the statutory willing seller/willing buyer basis. Ms Kentish’s determination was based on the residual land value method, which had been rejected and abandoned.
3. Restoration of the award. The statutory tie-breaking mechanism in section 17(2) of the Land Acquisition Act 1958 could not make Mr Michael’s flawed award reliable. The Chairman’s award was otherwise well founded on the limited expert evidence and had not been challenged by the Government. It was restored and substituted as the compensation award: US$26,616,998.
4. Interest. Section 21 of the Land Acquisition Act 1958 limited interest to 4% per annum. Article 3 and Schedule 2 of the Antigua and Barbuda Constitution Order 1981 made the Constitution subject to the transitional provisions. Schedule 2 paragraph 9 preserved laws in force immediately before 27 February 1967, and therefore preserved the statutory interest limit despite section 9 of the Constitution. Section 19 and Schedule 2 paragraph 2(1) could not be used to avoid that specific saving provision. The Board applied the reasoning in Blomquist v AG of Dominica and Boyce and another v The Queen [2004] UKPC 32; [2005] 1 AC 400.
5. Late amendment and final order. Leave was granted to raise the interest-rate point late because it was a pure question of law and caused no evidential prejudice. In view of the Government’s prolonged delay and failure to pay anything, leave was granted only on terms that interest at 10.25% remained payable for three and a half years. The parties were invited to make written submissions on the form of order, consequential matters and costs.

1. Privy Council: Allowed the Government’s appeal, set aside the Court of Appeal’s judgment, restored the Chairman’s award of US$26,616,998, and imposed terms concerning interest.
2. Court of Appeal of Antigua and Barbuda: Allowed HMB’s appeal on 5 December 2011 and substituted an award of US$45,499,102.09.
3. Board of Assessment: Made an award of US$23,820,999 on 5 January 2010 under the Land Acquisition Act 1958.