Acquisition lacked transparency in road dispute
(CNS): An appeal by a group of West Bay landowners who challenged the government over land seized from them for a public road around Lissa Lane has ended with a declaration that the planning ministry’s failure to publicise the consultation on the acquisition did not comply with the Constitution.
The Court of Appeal nevertheless upheld the original ruling dismissing the petition as it found “no injustice or unfairness” overall.
The case stems from a long-running and angry dispute between neighbours in the area, which has even come to blows in the past, largely as a result of the feud between Wilson Mendoza, one of three petitioners opposing the road, and former Cabinet minister Mike Adam, who has prescriptive rights to cross Mendoza’s land.
In August 2019, a notice was published in the Cayman Islands Gazette under the Roads Act on the recommendation of the National Roads Authority to create a new public road at West Bay North West, Block 4B, Boundary Plan 626.
Three of the impacted owners set to lose small pieces of land for the road challenged the acquisition in court, suggesting it was a breach of their human rights and that there wasn’t a proper mechanism for them to challenge the acquisition. After the Grand Court found against them last October, the petitioners appealed.
In a ruling published last week, the appeal court found that the ministry’s failure to formulate and promulgate a procedure for enabling landowners or others to comment on and object to a proposal was not “in accordance with the law”. The judges said that the law must be “accessible” and “foreseeable” with a “transparent statement of the procedure to be adopted” in cases that fall within section 15 of the Bill of Rights and the Roads Act.
The principles of transparency and good administration apply to the taking of property for the construction of public roads, but those principles were not followed in this case, the appeal court found.
“The policy adopted by the Ministry as to how to deal with objections should have been published so that objectors would know well in advance how any objection would be considered and dealt with,” the ruling states. “The procedure for consultation should have been notified so that all who objected to the proposals should know how they should make objection when and how those objections would be received and considered prior to a final decision being made.”
The court did conclude that “procedure was followed in this case” and that the appellants did have a proper opportunity to make their objections. “There is no evidence that they were not fairly and properly considered,” the court found.
While the court found that “it would not be right to quash this particular decision”, the justices said that future acquisitions made under the Roads Act must also comply with the Bill of Rights.
The full ruling – CICA (Civil) Appeal No 30 of 2021 (G 163 of 2019) – is available on the judicial website here.
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I will commend Mr. Mendoza for fighting for his rights. As one that has heard their side of the story. I will say the truth always comes to light. Cayman has to much corruption and allowing to many foreign nationals to come to this island and wreck havoc or create chaos bullying the Caymanians who are BORN AND RAISED OR OF DESCENT. I want to see MORE people take a stand and do what he does fighting for their right.
My eyes have been opened and now I see that government cannot just do as they want and take away people rights. They NEED to be taught they are not above the law here and they surely are not gods.
If you all want change, well it starts with this problem and many more as other Caymanians are constantly being pushed to the side and ignored. I commend you Mr. Mendoza once again. Don’t give up the fight and continue to push forward and remember… “ The real and lasting victories are those of peace, and not of war.”
what utter rubbish are you saying government are foreign nationals?
I assume you are a foreign National as well, if not then I understand the reason you don’t focus on the main topic here? 🤣 then again I expect nothing less from animals in cages that encourage other people to encroach on NEW land owners property. Stop deflecting from the main topic. Stay focus. In the end you will be the same one who will be thanking Mr. Mendoza for making sure that new land owners can use their rights to stop government OR any other National entites from taking over or taking part of their or your land in which they tend to forget that the constitution gives us a right to say NO to them.
Pucker up buttercup. 🙂
I bid thee a good day. ❤️
Isn’t this a contradiction. The govt followed procedure but there was no mechanism for the appeal? So how was ruling sensical at all?
@05/04/2023 at 12:58 pm
The documents (evidence) relating to the process undertaken following publication of the proposal were not properly disclosed to the judge at first instance. As stated in the judgment, the judges ascertained that the evidence could have supported or helped our case because we could have relied on sections 19 and 24 of the Bill of Rights. Unfortunately, that is not this case since no injustice or unfairness had arisen in this case due to no finding and the lack of any evidence of these important facts either before the judge or before the appeal court. As such, it was plain that it would not be right to quash this particular decision. Hence the reason why at the end of para 68 of the judgment, the judge wrote and I quote, “the conduct of this case which led to a second hearing which ought to have been unnecessary.”
“Nothing relevant should be kept back from the Grand Court; to be less than full and frank impedes its task in upholding the Constitution and the rule of law on these islands.”
Wow! You speak legalese very well! I have no idea what you’re going in aZzzzzzzzzz
Mr. Mendoza it is high time that you accept the judgement of The Grand Court of The Cayman Islands. The Adams have a legal right to access the property you continue to fight over.
Why you continue to make an absolute idiot out of yourself is beyond me. I believe in fighting for what is right but your reasoning is mind boggling and your decision not to accept legal ruling borders on insanity. You really are doing the same thing over and over again each time expecting different results.
The Adams family have been very tolerant of you as has our Justice system. I am willing to bet that had you been living anywhere else in the world you would not have been allowed to continue to harass your neighbors as well as ignore the law. I really hope that the RCIPS and the NRA make sure you abide with the courts ruling. Enough is enough.
FYI – Unfortunately I am unable to sign my name due to circumstances surrounding my employment not because I am afraid of your response.
I’ve been following the Adams and Mendozas land dispute for some time now. One thing I must say is that all of the negative posts on here surely don’t know all of the facts. I remember Mendoza posting a link some time ago, but I just can’t seem to find it or was deleted. People need to go see those videos and good luck to the Government in acquiring people’s land without consent for public use moving forward.
The failure to properly publish and publicise a consultation process for aggrieved land owners contravenes their human rights, the court decided.
https://www.caymancompass.com/2023/04/05/road-dispute-ruling-paves-way-for-more-rights-for-homeowners/
How ironic that you are here and talking in such manner. Court or no court. Have you done research instead of “ME” search to actually understand what took place or understand from Mr. Mendoza side what happened?????? How can you vouch for one party without hearing what the other party had to stay or look at the evidence they provided???
Barking on one side of the fence is not in my opinion a sensible thing to do. Anyone who was looking at the situation would have sat down and listen to both sides before drawing a conclusion. You have in your mind that Mr. Mendoza is an expat who came here to Cayman and started to pick on someone when this is NOT the case. The amount of slanderous remarks and negative toxic comments comming from you and the rest who support the Adams is a disgrace in itself so to say.
A true analyst who would sit and observe would pay attention to all the facts from not one but BOTH sides of the arguing party. Then from there you can draw your conclusion. If the Adams had a right to do what they wanted then why was the property SOLD to the Mendoza’s in the first place??? Shouldn’t there had been some protection for the Adams if they know that selling land is part of the marketing system here in Cayman?? If he was so bent on this pathway why did he not just buy it off instead??? See joe idiotic it sounds???? Don’t wait till someone purchase their land and then you start to harass them over it. It shows society how nasty of a human nature you carry within you. Common sense prevails. If he did not want war for a road then he would have purchased that land, not wait till someone bought it and then harass them for it.
Sorry but MR. MIKE ADAMS IS WRONG!
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The Supreme Court of the United Kingdom, “for example, recognises that there are constitutional principles, including parliamentary sovereignty, the rule of law, democracy, and upholding international law. It also recognises that some Acts of Parliament have special constitutional status, and are therefore part of the constitution. These include Magna Carta, which in 1215 required the King to call a “common counsel” (now called Parliament) to represent people, to guarantee fair trials, etc…
The Cayman Islands Constitutional Order 2009 is the highest law of the land. It establishes the system of governance, creates procedures and structure for the government, and sets out the government’s powers. It has elevated property rights to the actual Bill of Rights and specifically provided that its citizens should be afforded direct access to the Grand Court against such interference and we sought an order respecting this right.
It is unlawful for a public official to make a decision or to act in a way that is incompatible with the Bill of Rights unless the public official is required or authorised to do so by primary legislation, in which case the legislation shall be declared incompatible with the Bill of Rights and the nature of that incompatibility shall be specified.
Further, there appears to be no right of appeal against their decision. The lack of a right of appeal is in breach of Article 15 of the Bill of Rights. Under this, the government shall not interfere with our peaceful enjoyment of our property and shall not compulsorily take possession of same except in accordance with the law (here the Roads Law) and where there is a provision in the law for securing a right of access to the Grand Court whether direct or on appeal from the decision.
As such, our constitutional rights were violated on the issue of the failure to grant a right of appeal and we the people of the Cayman Islands fought to ensure that the Bill of Rights is not an empty promise.
We submitted that the minimum requirement here would be a quashing order for the Declaration and an injunction to prevent any further Declaration from being made until such time as appropriate statutory safeguards are in place.
Governor Roper once said, and I quote, “Our good governance rests on full observance of our Constitution and I urge all elected representatives to fully respect the separation of powers,”
Yet, the Governor is the ultimate decision-maker empowered to authorize the taking of land as a public road. This is done on advice from the Roads Authority and as the law states has to be in the public interest. Which in this case there isn’t, as the government is unable to justify its taking by failing to provide an adequate public purpose. This decision was not property taken and was motivated by ulterior motives.
XXXX
If you and I must follow the law, the government, and its agents must follow the Constitution.
In Day v Governor of the Cayman Islands, the Chief Justice Smellie held that section 5(1) of the Constitution Order is mandatory when there is unconstitutionality. He further held in paragraph 118 that “This Court is similarly bound not to allow the violation of the Petitioners rights to continue without redress. The Constitution, in its mandatory requirement that the Law be brought into conformity, must prevail.”
Former U.S. Supreme Court Justice Potter Stewart summed up corruption quite well when he wrote about it in a 1964 case, and I quote, “Perhaps, when it comes to identifying corruption, people in Cayman truly “don’t know it when they see it” — because they have been culturally steeped in it. “
That is why we must not continue to wink and/or even refuse to recognize it, or neglect to see how aberrant it really is. Our institutions must be held to the highest standards of accountability, rationality, and transparency. We refuse to willingly give up our personal freedom by simply being a faceless body in the crowd. It’s a right that we all have and is such a shame not to fully exercise it, because even if I’m standing alone, I’ll know for a fact that it was my choice.
TL:DR (at least after the first sentence).
The irony here, of course, is that had you not tried to prevent Mike Adam’s peaceful enjoyment of his possessions in the first place, none of this would have happened. Dats wa ya get!
Wow, the ignorance…do you know that man’s actions paves way for more rights for a homeowner. If we had a few more dozen men like him, we would not have lost our island.
People who live in glass houses of ignorance probably shouldn’t throw stones – or write ungrammatical and cryptic gibberish on a public board.
Except of course that Mike Adam’s peaceful enjoyment of his possessions involved traipsing across Mendoza land. Whether or not he had prescriptive rights to do so is another issue, as is or whether Mendoza reaction was proportionate, but it’s not quite as black and white ( or multi generational Caymanian who happens to be an ex cabinet Minster versus an incomer) as you portray.
Oh give it a rest, Wilson.
Mr. Wilson Mendoza. Did you or did you not buy your property long after Mike & Lissa Adam bought theirs and were using that lane for over 10 years?
Yes or no? If yes, why do you bring all this drama?
I’m just curious. I used to live in the Adam’s home before they owned it (it belonged to friends of mine and for a few years I stayed there off and on, when they were off-island – many times per year.
I’m just thinking how fortunate that they/we didn’t encounter you!
Good thing for him. Congratulations Mr. Mike & Ms.Lissa. i pray that this is the end of this. 🤗👍
Whatever happened to simple neighborly cooperation to arrive at a mutually beneficial conclusion.
Not every difference of opinion needs a fight to resolve it.
Try the old fashioned concept of two gentlemen sitting across a table, and each give a little, to gain a lot.
That would take both to be reasonable, I too have a neighbour who I can’t wait to leave island or to move homes.
Ah man. With all the things in this world, this is how they choose to expend their limited time on this planet.
This is not an uncommon problem. I have an elderly relative whose property was “accidentally encroached upon” for several years by a foreign retiree(Airbnb Host). After a survey and the boundary reestablished, a fence was erected to ensure there was no re-encroachment. Now they want the fence moved because it spoils their view.
This is what happens when you invite strangers to eat at your table. Don’t complain if they have no table manners and want to take home the very table they ate at.
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