Wilkie Arthur

Freelance Court Correspondent

#TurksandCaicos, May 2, 2024 – On a bright and early Monday morning (15th April, 2024) in the Supreme Court before presiding lady Justice Ms. Tanya Lobban-Jackson and before His Honor The Chief Magistrate Jolyon Hatmin in the Magistrate’s Court, both courts were once again unable to proceed on its scheduled commencement time due to non or failure of attendance by the Prosecution of the Office of the Director of Public Prosecution (DPP).

Given the fact that this has now happened on more than one occasion, in both the Supreme and Magistrate’s Courts, judges and the learned Chief Magistrate have reached its final straw; they have cited the ‘no shows’ as a disrespect and a disregard for prompt and proper time management to be in attendance for legal proceedings.

From this reporters’ perspective, it appears the prosecution shows up when they like, any time they please and some are guilty of not showing at all without a call or message of explanation for the absenteeism.  The repeated instances have been called, “embarrassing” for the Office of the DPP, when defense counsel and the accused are present in the courtroom but the prosecutor is a ‘no-show, no call, no text.’

On at least two or three occasions, the Supreme Court judge was forced to return to her Chambers; exiting the court with a strongly worded warning, only to return with there still being no member of the Director of Public Prosecution present in court.

There has also been a promise that even serious cases could be dismissed due to this inappropriate practice.

In the final weeks of April, the country learned of a review by a KC out of the UK, who was looking into case progression at the DPPs office.  The Office has also hired a new Director, Philip Bennetts, KC, who takes office in the beginning of June, informed a TCIG media release.

#TurksandCaicos, May 2, 2024

Section 3(3) of the Firearms Ordinance CAP 18.09 requires the Supreme Court to impose a mandatory minimum sentence and a fine for certain firearms offences, except in circumstances where the court finds that there are exceptional circumstances, in which case the court must still impose both a sentence of imprisonment and a fine but which are proportionality consistent with the exceptional circumstances.  The court must ensure that the custodial sentence and fine are in keeping with the dominant purpose of Parliament in enacting the law, deterrence, is reflected in the length of the term and the quantum of the fine.

The Firearms Ordinance applies to all persons present within the Turks and Caicos Islands, regardless of status or origin.  The Parliament of the Turks and Caicos Islands had amended the Ordinance in 2022 to stiffen the penalty for possession and use of firearms with the stated intention of deterring such crimes in the Islands.

In five separate cases within a two-year period the Supreme Court found that there were exceptional circumstances, and only imposed fines.  In those cases, the defendant pleaded guilty to charges of possession of an unlicensed firearm and ammunition under the Firearms Ordinance. The judges found that there were “exceptional circumstances” and concluded that sentencing was therefore at large. Four of the offenders were fined and one was given a custodial sentence below the mandatory minimum. The opinion of the Court of Appeal, the higher court, was sought to confirm the true position of the law.

At the request of the then Learned Director of Public Prosecutions, Mr. Eugene Otuonye KC, and instructed by the Cabinet of the Turks and Caicos Islands, Attorney General, Honourable Rhondalee Braithwaite Knowles OBE KC, applied to the Court of Appeal seeking clarification as to whether the facts of those cases did actually constitute exceptional circumstances in keeping with legal principles and whether, in any event the Ordinance allowed the Supreme Court to impose non-custodial sentences.

The decision handed down by the Court of Appeal clarified the law, certifying that where exceptional circumstances exist the court has no jurisdiction to impose a non-custodial sentence.  It can impose a custodial sentence for a term and a fine in a quantum that is fair and just in the circumstances, consistent with the exceptional circumstances and having regard to the dominant purpose of Parliament in enacting the law.

However, it must give its reasons for so doing so, including any reduction in sentence.

Acting Director of Public Prosecutions, Dr. Angela Brooks welcomed the certification by the Court of Appeal and confirmed that since the recent amendments to the Firearms Ordinance, 8 firearms and ammunition prosecutions in total were done involving tourists from the United States, 3 of which are currently before the court with each of the defendants on bail.

#TurksandCaicos, May 2, 2024 – In a unanimous decision, the Court of Appeal of the Turks and Caicos Islands upheld an appeal brought by the Attorney General on behalf of the Turks and Caicos Island Government, overturning the lower court’s ruling and affirming the Government’s position on critical issues involving crown land procedures and the implications of the Crown Land Ordinance. This ruling represents a decisive moment in the legal saga and reaffirms the Government’s commitment to upholding the rule of law and protecting public resources.

On the 29th April, 2022, former Supreme Court Judge, Hon. Carlos Simons OBE KC, ruled in favour of a local businessman Mr. Gilbert Selver who the Crown argued had been in unlawful occupation of three parcels of crown land, namely 60602/429; 60602/430; 60602/431 respectively; ruling that the freehold title to Crown Land parcels 60602/429, and 60602/430 be transferred to Mr. Selver at the 2008 offer prices of $30,800 and $73,5000 respectively. In respect of 60602/431 the Court ruled that Mr Selver was indeed a trespasser. The Crown’s position in the Supreme Court was that Mr. Selver was a trespasser after failing to accept the offers for the sale of said Crown land presented to him prior to the coming into force of the 2012 Crown land Ordinance And after receiving Notices to discontinue the use and occupation of the said Crown Land which said notices had been ignored.

The Crown being dissatisfied with the said ruling, lodged an appeal against the decision of former Justice Simons OBE KC on the grounds that he failed to properly apply the contract principles of offer and acceptance; he failed to consider that the offers made by TCIG was subject to contract, and that he failed to consider the intervening impact of the Crown Land Ordinance which came into force in 2012.

On 26th October 2023, the Court of Appeal heard the detailed arguments on behalf of the Crown and Mr. Selver. Principal Crown Counsel, Civil Ms. Clemar Hippolyte and Principal Crown Counsel, Commercial, Ms. Yaa McCartney appeared on behalf of the Crown as representatives for the Appellant, and Mr. George Missick appeared for the Respondent Mr. Selver before the three- person Appeal panel comprising Hon. Mr. Justice K Neville Adderley (President), Hon. Mr. Justice Stanley John, and Hon. Mr. Bernard Turner.

On 17th April, 2024 the Court of Appealed handed down its decision on the appeal, overturning the judgement in the Supreme Court, and ruling in favour of the Crown. In arriving at its decision, the Court found that, by letter dated 29th October, 2008, the Crown offered Mr. Selver the freehold title to parcels 60602/429 and 60602/430 for the purchase prices of $30,800 and $73,5000 respectively. The Court found that in order to accept the offers, Mr. Selver was required to pay the survey fees and a registration fee. The letter also informed Mr. Selver that he was required to

contact the Crown Land Unit in order to execute the necessary documents. The Court found that Mr. Selver had not immediately acted on the offer and had not accepted the offer of the Crown for the freehold.

The Court of Appeal also held that although the offer remained open by the Crown, time not being stated to be of the essence, Mr. Selver’s unequivocal acceptance was only communicated in 2013 which came after the coming into force of the 2012 Crown Land Ordinance (CLO). The Court of Appeal considered whether the coming into force of the CLO presented a significant change in circumstances which would have impacted Mr. Selver’s ability to accept the offer to constitute a legally enforceable contract. Following the decision of the Privy Council in CMK BWI Ltd. v Attorney General [2022] UKPC 40, the Court held that the date of the acceptance was highly relevant to determining the legality of the contract because the 2012 CLO now dictates the conditions and circumstances of all crown land dispositions. The Court considered section 7(2) of the Ordinance which provides that “Crown land must not be disposed of unless the disposal is authorized by this Ordinance or any other Ordinance dealing with Crown land”, and held that the Crown “could not dispose of the parcels under the previous offers as the Ordinance cerate[d] the legislative framework for the disposition of Crown lands, including restrictions (section 9) and imposition of conditions (sectio10)”. Applying the law to the facts, the Court found that “no validly enforceable contract was entered into between Selver and the TCIG for the purchase of 429 and 430 as the offer to purchase the crown lands were rescinded by the passage of the CLO”.

In allowing the appeal, the Court ordered that:

1. The TCIG is entitled to possession of parcels 60602/429 ; 60602/430 and 60602/431.
2. Selver must vacate parcels 60602/429; 60602/430 and 60602/431 within 90 days from the date of the Order.
3. The TCIG is entitled to all attached buildings and/or infrastructural works on the parcels 60602/429; 60602/430 and 60602/431 attached to the land and no compensation is payable to Mr. Selver.
4. Selver must pay the TCIG’s legal costs in the Supreme Court and in the Court of Appeal .

“We welcome the Court of Appeal’s ruling in this pivotal land case,” stated the Honorable Attorney General Rhondalee Braithwaite Knowles OBE KC, “This decision vindicates our steadfast efforts to clarifying the impact of the Crown Land Ordinance on some of the legacy matters that we are seeking to bring to a close. This judgement, is another helpful decision of our courts that clarifies the Crown Land Ordinance’s governance over the disposition of Crown Land since its enactment. The judgment reaffirms the Government’s authority to act in the best interests of the people of the Turks and Caicos Islands and ensures responsible stewardship of our finite land resources.”

The successful appeal outcome is a testament to the diligence and expertise of the Government’s legal team, whose tireless advocacy and meticulous preparation were instrumental in securing this favorable verdict for the Government. Their dedication to advancing the Government’s case and upholding the principles of justice and fairness have been commendable.

“The Government is very grateful to the Court of Appeal for their thorough consideration of the legal issues at hand and their commitment to delivering just and equitable outcomes” added the Honourable Attorney General. “This ruling provides clarity and certainty for all stakeholders involved and underscores the importance of transparent and accountable Crown Land practices.”