Malik Momin v February Point Resort Estates Ltd (Bahamas)

A saving provision for transactions made before legislative change must be read with the provision governing transactions made afterwards. Preserving an earlier agreement or conveyance does not validate a later conveyance made without required planning approval. Where the statutory scheme criminalises unapproved sales and conveyances, the purchaser cannot be required to accept an unlawful conveyance. The purchaser may have contractual remedies, including damages, termination and restitution, while the vendor may retain an opportunity to obtain approval and perform the contract.

The respondent agreed in 2008 to purchase a lot in a Bahamian subdivision. He paid the full price, but the appellant vendor had not obtained the required subdivision approval. The respondent sought repayment, contending that a conveyance made after commencement of the Planning and Subdivision Act 2010 (Bahamas) would be void.

The Supreme Court of The Bahamas decided in favour of the vendor. The Court of Appeal reversed that decision and ordered repayment with interest, subject to a conditional opportunity for the vendor to obtain approval. The Privy Council considered the construction of section 62 and whether the purchaser acquired equitable title.

1. Appeal dismissed. The Board advised that the vendor repay the purchase price with interest and refused any further indulgence to obtain subdivision approval.
2. Section 62(1) of the Planning and Subdivision Act 2010 (Bahamas) makes a post-commencement conveyance concerning a lot without prior Subdivision Approval null and void. This applies whether the agreement to convey was made before or after commencement.
3. Section 62(2) preserves pre-Act conveyances and agreements to convey. It does not validate a post-Act conveyance made under a pre-Act agreement. “Notwithstanding” marks a contrast between future conveyances and earlier transactions, rather than creating an exception to section 62(1).
4. A valid pre-Act agreement remains a contract. Subject to its terms, the purchaser may claim damages, terminate for breach and seek restitution for total failure of consideration, or require the vendor to obtain approval and perform. If approval is obtained, the vendor may retain contractual rights to hold the purchaser to the contract.
5. The Board rejected the equitable-title argument. Section 62 concerns legal title, as shown by its heading, its distinction between an agreement to convey and a conveyance, and the definition of “owner” in section 4. An equitable title could not arise because the contract could not be specifically enforced where performance would involve a criminal offence.
6. The statutory purposes of environmental protection, orderly development and planning control supported this construction. Requiring the purchaser to accept an unapproved conveyance would undermine those purposes and condone the vendor’s criminal breach.

• Privy Council: Appeal dismissed. Repayment of the purchase price with interest was ordered, without any further opportunity to obtain subdivision approval.
• Court of Appeal of the Commonwealth of The Bahamas: Reversed the Supreme Court, ordered repayment with interest, and made the order conditional on the vendor failing to obtain approval within 30 days.
• Supreme Court of the Commonwealth of The Bahamas: Decided the issue in favour of the vendor.