Supreme Court
Action No. 407 of 2000
31st July, 2001
CONTEH, CJ.

Mr. Dean 0. Barrow, S.C. for the Applicant.
Mr. Jose Cardona for the Respondent.

Judicial Review - Minister of Natural Resources purportedly cancelling or withdrawing lease of Applicant contrary to natural justice and ultra vires the National Lands Act and the Lease Agreement.

J U D G M E N T

1. This is an application for judicial review pursuant to leave granted by the Court on 6th October, 2000, of the decision of the Minister of Natural Resources conveyed in a letter to the Applicant dated 11th August, 2000, to take away 50 acres of land held by the Applicant under Lease No. OW 594/98 dated 16th February, 2000.

2. The Applicant, a farmer in Guinea Grass Village in the Orange Walk District, had on 16 February 2000 acquired a lease of 125.79 acres of land under the National Lands Act - Chapter 191 of the Laws of Belize. 2000 Edition. His lease had the reference No.0W 594/98, already referred to above. This lease was put in evidence as part of the exhibits accompanying the Applicant's Affidavit in support of his application to this Court for leave to apply for judicial review. It is marked "AB 1".

3. The lease evidently is the standard form and is headed "National Lands Act 1992 - Lease Approval." It is in the form of a letter addressed to the Applicant and signed by or for the Commissioner of Lands. It states that the Applicant's application to lease 125.79 acres of land situate in the Fireburn Area of Orange Walk District was submitted to the Hon. Minister of Natural Resources on 12th February, 2000 when it was approved, subject to the provisions of the National Lands Act 1992 and to conditions which it went on to specify.

4. Among the conditions or terms of the lease are the usual ones to be found in a lease agreement.

Clause 1 states that the term of the lease was for seven (7) years with a proviso that if the lessee, the Applicant that is, fulfilled the conditions of the lease and the land is surveyed, he would have an extension of the lease for a further term of years (not specified) with the further provisio that he the Applicant/lessee, would have the option to obtain a registered lease for a term of 30 years.

Clause 2 states the rent payable for the lease annually with a rent revision provision.

Clause 4 states that if the lessee failed to occupy the leased property within six (6) months from the date of notification to him of the approval of his application to lease, then the lease shall become void, unless the Minister in his discretion extended the time for such occupation on reasonable cause being shown to him.

Clause 5 provides that the rent paid on the leasehold will be credited towards the purchase price.

Clause 7 states that the lease land shall be used for agricultural purposes, and goes on to provide that any development shall comply with the zoning and planning regulations of the appropriate Legislative Planning Committee and in accordance with the development plan presented to the Minister of Natural Resources.

In my view, I do not see the relevance of this latter provision in the case of the lease granted to the Applicant - one for agricultural purposes.

The Applicant's lease contained in all 22 clauses, but for the purposes of these proceedings, I think it is only pertinent to mention further clauses 21 and 22.

5. Clause 21 provides that where large agricultural parcels have been leased, the successful applicant should present a schedule of development, which if not met as prescribed, shall cause the acreage to be reduced upon directive by the Minister and such under-developed areas shall revert to National Lands.

It is, I think, reasonable to conclude that the Applicant's lease falls within this category although there is no definition either in the lease itself or the National Lands Act -Chapter 191 of the Laws of Belize. 2000 Edition of what is a large agricultural parcel: 125 plus acres is a large agricultural parcel.

Clause 22 provides that if it appears to the Minister a) that any neglect or breach of conditions has occurred; or b) that injury has been done or is being done to the land by the lessee or his agent, he the Minister may, after giving the lessee a reasonable opportunity to make representation, cancel the lease.

6. However, by a letter dated 9th June, 2000 written by the Commissioner for Lands, the Minister of Natural Resources gave notice to the Applicant of his intention to cancel the Applicant's lease because of breach/non observance of the condition requiring development. It is pertinent however, to observe that this notice of intention to cancel for non-development was dated 9th June, 2000, a little over 3 months since the approval of the Applicant's lease in February 2000.

7. However, by a letter dated 10th July, 2000 from the attorneys of the Applicant to the Commissioner of Lands this notice of intention to cancel was described as "patently ridiculous," since not even six months had elapsed after the grant of the lease, so there could be no valid complaint of a breach of non-development. The attorneys's letter also stated that the notice only gave the Applicant three weeks to reply, but was only posted on 27th and received on 7th. This letter is marked "AB 3" and annexed to the Applicant's Affidavit.

8. Things took a further turn as it were, when the Applicant received another letter dated 11th August, 2000 from the Commission of Lands informing the Applicant that the Minister of Natural Resources had considered not to proceed with the cancellation of the lease, but has considered a reduction in the acreage of the lease from 125 acres to 75 acres "in order to assist the other farmers."

9. It is this decision by the Minister that has launched this application by the Applicant. The Applicant also states in his Affidavit that since the letter of 11 August, 2000, 50 acres have been taken away from him and surveyed in preparation to be assigned by the Minister to other persons; and that the Lands Department had prepared another lease document in his name but in respect of only 75 acres of the land granted him in his current lease.

10. In these proceedings, the Applicant seeks relief from his Court by way of certiorai to quash the decision of the Minister of Natural Resources dated 11 August, 200 to take away 50 acres of his lease land; and order of prohibition to prevent the Minister from exceeding his jurisdiction in taking away 50 acres from the Applicant's duly and validly leased land to give to others and an order for mandamus requiring the Minister to make a new decision in place of his ultra vires one and reinstate to the Applicant the 50 acres of land under his valid lease.

11. The issues in this case, to my mind, fall to be determined in the light of the terms and conditions of the lease of the Applicant dated 11 February, 2000 and the provisions of the National Lands Act. In other words, are the decisions and actions of the Minister valid and sustainable either under the terms and conditions of the lease with the Applicant or under the provisions of the National Lands Act?

12. In opposition to the Applicant's case two Affidavits were filed on behalf of the Respondent. The first was by Antonio Cawich and was dated 2nd January, 2001. Mr. Cawich deposed that he was the District Lands and Surveys Officer posted at the Lands and Surveys Office in Orange Walk Town. He stated in paragraph 3 of his Affidavit as follows:

"3. On the 26th day of May 2000, I inspected a parcel of land in the Fireburn Area, Orange Walk District, leased to Mr. Arcadio Bustillos referenced lease application 0W594/98 and found the parcel of land to be unoccupied and undeveloped."

I should repeat here Clause 4 of the Applicant's lease dated 16th February, 2000:

"Where the lessee fails to occupy the leased property within six (6) months from the date of notification to him of such approvals, the lease shall become VOID unless the Minister in his discretion extends the time for such occupation on reasonable cause being shown to him."

13. This condition, that is the occupation of the leased land within six months from the date of notification to the lessee of approval of the lease, is also stated in similar terms in Section 9 (3) of the National Lands Act dealing with applications for leases. Moreover, by Section 12 (1) of the Act, every lease of National Land is granted subject to all the powers, provisions and Clauses contained in the National Lands Act 1992 itself (Cap. 191of the Laws of Belize 2000).

14. Also, by sub-section (3) of Section 12, certain conditions and terms are implied by the Act in a lease of national land, the happening of which shall void the lease. They are stated in the Act as follows:

Shall in every instance authorise the Minister by notice in the Gazette to declare the lease forfeited, and thereupon the same shall cease and become null and void, to all interests and purposes, the land may be entered upon by or on behalf of the Government of Belize, or by any person duly authorised so to do, and possession thereof may be resumed as the property of the Government of Belize and in such case the lessee shall have no claim to compensation for any improvement or outlay." (emphasis added)

I emphasise paragraph (c) as of some materiality in these proceedings before me.

However, from the evidence before me, particularly as contained in the Affidavit of Mr. Cawich referred to earlier, it is clear that when he visited the Applicant's land on 26 May 2000 and, as he deposed, found it unoccupied and undeveloped, only 100 days had elapsed since the approval on 16 February 2000 of the lease to the Applicant. This was well inside the six months stipulated in Clause 4 of the Applicant's lease.

15. Therefore, I find and hold that at that time, there was not in fact and in law, a breach of Clause 4 by the Applicant of his lease nor of Section 9 (3) of the National Lands Act. Consequently, neither the said Clause 4 nor Section 12 (3) (reproduced above) could be utilized or invoked against the Applicant before the effluxion of six months since the approval of his lease.

16. Therefore, the notice of intention to cancel the Applicant's lease dated 9th June 2000 was in law invalid and inoperative, for although the ink on the lease might have dried by that date, as it were, the six months grace for occupation however, was very much in play and was still to expire.

17. However, somewhat ingenuously in my view, the notice of intention to cancel stated the reason to be, and I quote from it: "due to Breach/Non-observance of the following condition(s) - Non-development."

18. The Applicant's lease, it must be remembered, is for Agricultural purposes (vide Clause 7). I have, however, painstakingly perused it, and you might say scoured it, to see if "development" and if so what type or kind of development, was a condition or term of it, the non-fulfillment of which could therefore conceivably ground the notice of intention to cancel. My searches were unsuccessful.

19. The closest I could find where there is reference to "development" is in Clause 21 of the lease. As I mentioned earlier, the acreage of land comprised in the Applicant's lease, some 125 plus acres, could be said to be large agricultural parcel. This Clause provides that in this case, the successful applicant should present a schedule of development, which if not met as prescribed, shall cause the acreage to be reduced upon directive by the Minister and such underdeveloped areas shall revert to National Lands.

20. However, there is no evidence before me that the Applicant failed to present a schedule of development or failed to meet the schedule if any, as prescribed. The only evidence on this is the notice of intention to cancel for "non-development". Quite what the "non-development" is, is nowhere in evidence nor is it stated or defined. In any event, it is not the presentation or non-presentation of a schedule of development by the Applicant and failure by him to meet that schedule, if any, that is purportedly put forward in the notice of intention to cancel the lease. It is rather, the nebulous phrase or concept of "non-development". Moreover, even if there was a failure by the Applicant to present a schedule of development which he did not meet as prescribed, on which as I have said, there is no evidence whatsoever, the upshot of all this would have been a possible reduction in the acreage and not a notice of cancellation of his lease.

21. But even assuming this was a breach of a condition of the lease by the provisions of Clause 22 of the lease itself and Section 11(1) and (2) (a) of the Act, the Applicant was entitled to be given a reasonable opportunity to make representation. What instead the Applicant received, even assuming arguendo that he failed to present a schedule of development, or that he failed to meet any prescribed schedule, was the rather chilling notice of intention to cancel his lease for the somewhat opaque reason due to breach/non-observance of the condition of "non-development", whatever this may mean.

22. The argument by Mr. Cardona, the learned Attorney who appeared for the Respondent, that the response, albeit caustic, from the Attorney's for the Applicant contained in their letter dated 10th July 2000, to the Commissioner of Lands, showed that the Applicant was given an opportunity to make representation, is, in my view a little disingenuous.

23. Therefore, I hold that the notice of intention to cancel the Applicant's lease was bad in law and not supported by the facts. The lease in this case was an agricultural lease. Perhaps, clearing the land and planting some miracle quick-growing crops by the Applicant before the date of the notice to cancel, 9th June, 2000, some four months after the grant of the lease, would have satisfied some punctilious minds as to development in the Ministry of National Resources. But in the real world, agricultural development is a pain-staking, long-term enterprise, which often does not show fruits within the first six months. In any event, on the evidence, the prescribed six months for occupation of leased national lands had not expired by the time the notice was dispatched to the Applicant. The notice was therefore bad and inoperative

24. However, the second Affidavit on behalf of the Respondent in opposition to the Applicant's case is by Armin Cansino, the Deputy Commissioner of Lands and Surveys in the Ministry of Natural Resources, the Environment and Industry.

25. In the light of the issues in this case, it is also helpful and instructive to set out the material paragraphs of this Affidavit:

"3. On 20th July, 1998, Mr. Arcadio Bustillos applied to lease 125 acres of land in the Fireburn Area of Orange Walk District. I attach hereto and mark AC1 a copy of the said application.

"4. On 20th July, 1998, the Minister responsible for land gave permission to survey 75 acres only. I attach and mark AC2 a copy of minute sheet of file reference 374/98 (Minute No.7).

"5. By letter dated 5th August, 1998, Mr. Arcadio Bustillo was informed that he had been given permission to survey 75 acres of national land situate in the Fireburn Area, Orange Walk District. I attach and mark AC3 a copy of the said letter.

"6. A survey plan dated 8th August, 1998 represented Entry 4006 Register No.2 shows that 125.79 acres of land instead of 75 acres were surveyed. I attach and mark AC4 a copy of the said plan.

"7. The Minister initially intended to cancel Mr. Bustillo's lease however, subsequent to representation made on behalf of Mr. Bustillos, he decided to reduce the acreage instead."

26. Let me say right away that nothing in the several averments in this Affidavit takes the case for the Respondent any further. The plain and simple reason is that the issues in this case don't turn on anything in this Affidavit. For it is as plain as a pikestaff that even if the Applicant was given permission to survey only 75 acres of land in 1998, two years later, on 16 February 2000, the lease actually granted to the Applicant was for 125.79 acres of land.

27. It cannot therefore with respect, lie in the mouth of the Ministry to say later "Oh no, we gave him permission to survey 75 acres only!" when evidently with their eyes open, I trust, they approved and informed the Applicant of a lease for 125.79 acres of land. In any event permission to survey is materially and qualitatively, different in law, from the grant of a lease. It is the lease that ultimately speaks together with its terms and conditions.

28. The leasing of national lands is provided for in Section 7 of the Act. It provides that the Minister may grant leases of national lands on such terms and conditions as he thinks fit and may likewise renew leases on such terms and for such periods as may seem proper to him.

29. The next following Sections of the Act from 8 through to 12 contain provisions concerning leases of national lands. Section 8 provides that leases of national lands are not transferable without permission; Section 9 provides for application for leases of national land; Section 10 provides for the recovery of rent due to the Government from a lessee or tenant of national land; Section 11 provides for the Commissioner of Lands to report breaches of conditions or injury to the land by the lessee or his agent and to bring this immediately to the notice of the Minister; and Section 12 spells out implied terms and conditions in every lease of national lands.

30. I have sketched out these provisions of the Act on leases, because from my own close study of them, I can not find any justification for the decision of the Ministry that has given rise to this application before me.

31. In the light of all the materials available to me in this case and on the evidence, it is impossible to validate the decision of the Minister dated 11 August 2000 and communicated to the Applicant that "the Honourable Minister of Natural Resources has considered not to proceed with the cancellation of your lease 594/98…. However, (he) has considered a reduction in acreage from 125 acres to 75 acres in order to assist the other farmers".

32. This, I hold to be beyond the powers of the Minister as given him by the provisions of the National Lands Act. I cannot be unmindful of the praiseworthy and possible altruistic motivation behind the Minister's decision to reduce the Applicant's acreage"…. in order to assist the other farmers". But this, I am afraid, would be at the expense of the Applicant. He does not agree and has complained, Hence these proceedings. The decision would be an unwarranted interference, in law, with the Applicant's lease.

33. I should also point out here that Section 9 of the National Lands Act provides how applications to lease national lands should be made and Subsection (1) states:

34. "(1). Every application for lease of national lands shall be made to the Commissioner in the form of the First Schedule".

In the First Schedule to the Act is set out the "Form of Application to Rent or Lease National Lands". In this, the applicant has to state among other things, the acreage (more or less) of national land he desires to lease and the location of the land and the term of the lease.

From the evidence, this was presumably done by the Applicant in these proceedings. He got in reply Exhibit AB1 to his Affidavit of 3 September, 2000, "National Land Act 1992- Lease Approval" of 16 February, 2000 wherein an area of 125.79 acres was approved on lease to him.

35. I must confess I was touched and moved by the public-minded consideration put forward by the Ministry for the decision of 11 August 2000, namely, "to assist the other farmers". I therefore looked anxiously at the provisions of the Act to see if the decision could stand. In this process, I found the provisions of Subsection (2) of Section 6 of the Act alluringly seductive and, it was advanced for the Respondent by Mr. Cardona. This provides:

"(2) The Minister shall also have power to alter, vary or add to the ordinary terms and stipulations upon which any grant, lease or licence is made, should it be considered expedient to do so in any special case."

But I found this, in the end, to be of no avail. This provision, I think relates to exceptions contained in Section 6 and is outside the purview of the regime for leases as contained in Sections 7 through to 12 of the Act.

36. Moreover, I was baffled by the evidence on behalf of the Respondent contained in the Affidavits of Mr. Cawich and Mr. Cansino, as the reason for possibly justifying the decision. I have already referred to these Affidavits. In Mr. Cawich's Afffidavit of 2nd January 2001, the reason advanced was that on an inspection of the land in question on 26 May 2000, he found it to be unoccupied and undeveloped. However, in the Affidavit of Mr. Cansino of 29 December 2000, it stated that the Applicant was given permission to survey only 75 acres, though in his survey plan, (presumably sent along with his application for the lease), he showed 125.79 acres.

37. I have already analysed these affidavits in the light of the terms and conditions of the lease and the provisions of the National Lands Act, so the least said about them the better. Suffice it to say that they evinced clearly the shifting sand on which it was sought to justify the unlawful interference with the Applicant's lease. Together and separately, these Affidavits clearly put forward different reasons to justify the interference with the Applicant's lease. But together or separately, these Affidavits do not in the light of the terms and conditions of the Applicant's lease or in the face of the provisions of the National Lands Act, put forth sustainable facts or reasons that could in law justify the actions the Applicant complains about.

38. I also find the arguments and submission of Mr. Dean Barrow, S. C. for the Applicant on the lack of observance of the rules of natural justice by the Minister in arriving at the decision that is being impugned irresistible in the light of the evidence in this case. I have however, in this judgment concentrated on the arguments addressed to the terms and conditions of the Applicant's lease and the provisions of the National Lands Acts. I conclude in any event that the decision was ultra vires.

39. I am therefore, ineluctably driven to find, on the evidence and the applicable law, for the Applicant. Accordingly, I grant certiorai to the Applicant and quash the decision of the Minister of Natural Resources dated 11 August, 2000 to take away 50 acres of the Applicant's lease. I also declare that the Applicant's lease dated 16 February 2000 is valid and subsisting; I also grant prohibition to prevent the Minister from exceeding his jurisdiction by purporting to take away from the Applicant's said lease 50 acres and giving them to others.

40. Further, in view of my orders above, I find it unnecessary to grant mandamus against the Minister and this relief is therefore denied the Applicant, as I have no reason to believe that the Ministry of Natural Resources will act contrary to the opinion in this judgment and fail to honour its obligations under the valid and subsisting lease with the Applicant.

41. Finally, on the National Lands Act itself. This Act was enacted in 1992, a little over ten years after Belize gained Independence. In my view, it marked a refreshing transition from the feudal, antiquated and colonial regime of the Crown Lands Act, when land in Belize not otherwise occupied was deemed vested in Her Majesty. The Crown Lands Act - Cap. 147 of the last edition of the Laws of Belize, is no longer on the Statute Book of Belize. Now we have the National Lands Act - Cap. 191 of the Laws of Belize 2000 Edition. It expressly repealed the Crown Lands Act which had been in operation since 1st July, 1886. One of the quaint features of the repealed Crown Lands Act was its Section 34. This provided as follows:

"The Minister may for the purpose of encouraging immigration or for the development of the resources of Belize, issue free grants or conditional freehold titles of rural lands to persons who may desire to settle in Belize, in lots not exceeding twenty acres for each adult above eighteen years of age, and ten acres for each person under that age, subject to such conditions as to improvements or residence as the Minister may impose."

42. This Section is evidently a product of its times in Colonial Belize; but it would be at odds in independent contemporary Belize.

43. Today, under the National Lands Act, all grants or leases of national lands exceeding a term of seven years shall be effected by the issue of a fiat by the Minister to the Registrar General or the Registrar of Lands, who shall thereupon enter such grant or lease respectively in the book named in the fiat, and such grant or lease shall be deemed to be dated on the day on which the Minister's Fiat is dated. In effect, this Act vests in the Government of the day all lands in Belize not already allocated or granted. In my view therefore, as its name implies, the National Lands Act makes such lands the patrimony of all Belizeans who are thereby entitled to a share either by way of grant or lease. I believe therefore that if equity and fairness and due regard is had to the provisions of this Act, we should hear less of the uproar that so often surrounds the allocation of national lands. This uproar often winds up in court, like the present proceedings.

44. In the event, I allow the costs of this application in the sum of $5,000.00 to the Applicant.

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