Mackenzie Frank and another v Attorney General of Antigua and Barbuda (Antigua and Barbuda)

Antigua and Barbuda Constitution (1981) section 9(1) protects existing property rights from compulsory acquisition. Eligibility to apply for a grant of occupation or a lease, without an immediate entitlement to identified land, is not a protected property interest. Under the Barbuda Land Act 2007, communal ownership denotes collective administration and defined statutory entitlements, not individual undivided shares or equitable ownership. A person who has actually received exclusive occupation or a lease may have a protected interest. Where the facts are undisputed and the issue is purely legal, the court should determine it at the strike-out stage if the claim has no realistic prospect of success.

Two Barbudans challenged the Government’s 99-year lease of land to Paradise Found LLC for a major tourism development. They alleged that their status as Barbudans, together with section 3 of the Barbuda Land Act 2007, gave them property interests protected by section 9(1) of the Constitution. They sought declarations, invalidation of the Paradise Found (Project) Act 2015 and compensation. Wilkinson J refused to strike out the claim. The Court of Appeal reversed that decision and struck out the claim. The central issue before the Board was whether the claimants had an interest in or right to or over the leased land protected by section 9(1).

The Board unanimously dismissed the appeal and advised that the claim under section 9(1) of the Constitution be struck out.

1. Strike-out. The strike-out jurisdiction extends to constitutional claims. The applicable question is whether the claim has a realistic prospect of success. Where the material facts are straightforward and undisputed and the issue is a pure question of law, the court should decide that issue at the strike-out stage when it has the necessary evidence and the parties have had an adequate opportunity to argue it. The Board applied the approach in Ingraham v Glinton [2006] UKPC 40 and Easyair Ltd (trading as Openair) v Opal Telecom Ltd [2009] EWHC 339 (Ch).
2. Meaning of communal ownership. The expressions owned in common and held on behalf of the people of Barbuda in the 2007 Act do not create a trust or equitable co-ownership in individual Barbudans. They describe communal control of the land, exercised through the Barbuda Council, together with statutory entitlements such as voting on major developments and applying, subject to availability, for occupation, use or a lease. This interpretation avoids the absurd consequence that every grant of land would trigger compensation claims by other Barbudans.
3. Protected property interest. The rights under sections 7 and 8 are rights to apply for grants, not existing proprietary rights. An exclusive right of occupation or lease would constitute an interest in or right to or over property, but only once granted. The claimants had no such grant and therefore had no existing property right which could have been compulsorily acquired.
4. Related matters. A failure to comply with the statutory major-development procedures might support separate judicial review proceedings, but it did not establish a section 9(1) claim. The Board considered it unnecessary to decide the effect of section 31(2) of the 2007 Act, but observed that, absent constitutional entrenchment, later legislation could disapply or repeal the earlier Act. The Board also declined to rely on an analogy with beneficiaries under a discretionary trust.

The Board agreed with the Court of Appeal that the claim disclosed no cause of action and had no realistic prospect of success.

1. Privy Council: On 13 June 2022, the Board dismissed the appeal and advised that the claim be struck out.
2. Court of Appeal of the Eastern Caribbean Supreme Court (Antigua and Barbuda): On 26 June 2020, the Court of Appeal overturned Wilkinson J’s decision and struck out the claim.
3. High Court of Justice of the Eastern Caribbean Supreme Court: On 19 February 2018, Wilkinson J dismissed the Attorney General’s application to strike out the claim.