NASSAU, BAHAMAS — Captain Toby Smith, the Bahamian entrepreneur seeking to restore Paradise Island’s lighthouse, remains confident that he will be victorious in his Crown Land lease dispute after the Court of Appeal granted him leave to appeal to the Privy Council in London.
Captain Smith said in a statement: “It is our continued hope that the office of the Attorney General concedes and honors the lease agreement made, rather than continuing what is now twelve years of consecutive administrations of government fighting against Bahamian citizens to have a part of the development of our destiny and success. We are grateful to the Court of Appeal for seeing the merit of our request. We are grateful to the immediate past President of the Court of Appeal, Sir Michael Barnett, who, in his ruling at the Court of Appeal hearing, in dissent to his learned Justices, ruled in favor of Paradise Island Lighthouse & Beach Club Co. Ltd. and ruled with ‘specific performance,’ which in layman’s terms is to honor the Crown Land Lease.”
He continued: “Should the office of the Attorney General agree to concede and the Minister responsible for Crown Land honor our agreement for a lease, then Paradise Island Lighthouse & Beach Club Co. Ltd. could immediately commence with our all-Bahamian owned and operated project. We could begin to hire a strong workforce of skilled Bahamians to shape our future with income circulating within our country. We are extremely grateful for the support of those following this historical endeavor. We remain confident that we shall be victorious.”
The Court of Appeal noted that its role was to determine whether Smith’s appeal raises a “genuinely disputable issue,” meaning this is not an abusive appeal headed to the Privy Council. Having heard representations from the Attorney General’s office, the appellate court stated: “We are convinced this is a case for which conditional leave must be granted.” Leave to appeal was granted to Smith on the condition that he enters security in a sum not exceeding $2,861 for the due prosecution of the appeal and the payment of all such costs as may become payable in the event of not obtaining a favorable outcome. Additionally, within 90 days, Smith must take the necessary steps to prepare the record and its dispatch to England.
In a majority ruling back in March, the Court of Appeal dismissed Smith’s appeal, affirming that he lacked a valid and enforceable Crown Land lease agreement for land on Paradise Island. Chief Justice Ian Winder had ruled in February 2023 that there was no binding lease agreement between Captain Smith and his Paradise Island Lighthouse and Beach Club and the then-minister responsible for Crown Lands (former Prime Minister Dr. Hubert Minnis) for five acres of Crown Land on Paradise Island because the latter did not execute the necessary paperwork by applying his signature.
Court of Appeal president Sir Michael Barnett, however, in a dissenting judgment, said he would have allowed Captain Smith’s appeal, noting that, in his view, “there was a concluded agreement between the appellant (Captain Smith) and the Government for the lease of the land in question.”
In 2012, Smith applied to lease 17 acres of Crown Land on Paradise Island but was later informed by the Bahamas Investment Authority in May 2018 that only 5 acres were recommended. In October 2018, a Memorandum of Understanding was signed for the proposed development. In January 2020, Smith received approval for a lease of five acres, with an annual rent of $5,224 per acre. Smith signed and returned the lease for execution by the Minister in January 2020. In February 2020, Smith requested a Comfort Letter from the Minister, expressing surprise at the coexistence of his lease with Royal Caribbean’s interest in the same land and seeking clarification to resolve ambiguity.
Justice Smith and Turner, in their decision dismissing Captain Smith’s appeal, noted that it was conclusive there was no valid lease, underscored by the fact that Smith had sought a Comfort Letter and asked for an update regarding the Minister’s signature. The justices noted that, notwithstanding that Captain Smith had executed the lease, even he believed that the document was subject to execution by the Minister.
“This Court cannot interfere with the trial judge’s holding that he did not accept the Appellant’s view that there was a binding agreement for a lease because it cannot be shown to be ‘plainly wrong.’ The absence of words like ‘subject to contract’ does not mean that there is no need for a formal contract/lease. It is a question of interpretation and construction in the circumstances of any specific case. The parties’ intentions ought to be disclosed by their language. If the agreement was subject to a formal lease, it means that there are terms to be agreed upon or conditions to be fulfilled; as such, there should be no contract until those things have been done,” the Justices noted.
They further noted, “In this appeal, the absence of the words ‘subject to contract’ does not mean that there was no need for a formal contract to have an agreement between the parties. Firstly, the words used and the conduct of the parties showed that both the Minister and the Appellant knew and expected that the Minister had to sign the contract before any agreement could be reached formally. Secondly, section 54 (1) of the Conveyancing and Law of Property Act restricts the power of the Crown to divest itself of any Crown Lands other than by grant under seal.”
Sir Michael, in his dissenting judgment, ruled that there was a binding lease agreement and noted that the court was not concerned with whether the respondent’s behavior was “ethical, dishonorable or proper.”
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