(CMR) The Grand Court found against Crosby Ebanks, Wilson Mendoza and Mario Gomez over an ongoing land dispute in West Bay on year after they received an injunction against the NRA over Lissa Lane in Boatswain Bay. Their constitutional challenge was found to have no merit.
The trio sued the National Roads Authority (NRA) who was seeking to put in a public road to resolve an ongoing land dispute between Mendoza and his neighbors Mike and Lissa Adam. They had claimed a breach of the Constitution, Bill of Rights and Freedoms and Responsibilities.
Three arguments were put forward before the court in order to prevent the NRA from putting down the road which would have quashed a five-year dispute over a right of way that existed for over 45 years. They argued that judicial review did not afford them a comprehensive means of addressing all their grounds and that statutory appeals to the Grand Court were also limited.
The petitioners claimed that the Roads Act did not conform with their rights and freedoms under the BoR because it does not secure for them a right of access to the Grand Court as it related to the compulsory acquisition of their land.
They were also asking for a declaration that s.5(1) of the Cayman Islands Constitution Order should be read to mean that the Roads Act gives them access to the Grand Court for the determination of the legality of taking their land to bring the Act within conformity of their rights and freedoms under the BoR.
Alternatively, they sought for the court to find the Roads Act (2005 Revision) did not conform with the Petitioners' rights and freedoms under the BoR.
The Roads Act sets out the legislative framework for proposed road works involving compulsory acquisition of private land and predated the 2009 Constitution. According to the government, the court had to consider the compatibility of that legislation and asked for s.15(10 to be given broad interpretation if “a law applicable”. A broad interpretation of the word law means that it included common law as well.
The court had to look at statutory interpretation and construction with a view to approaching the matter by considering the intent of the legislature as opposed to the grammatical and literal meaning.
The court took the previously held position that the court must approach constitutional provisions “in a broad and purposive manner”, not narrowly and technically. The Cayman Islands Court of Appeal previously found that a declaration of incompatibility is the last resort.
After considering all the legal arguments presented the Hon. Justice Cheryll Richards Q.C. found that the Roads Act is not incompatible with the right of the Petitioner to peaceful enjoyment of property as provided by s.15 of the Bill of Rights because access to the Grand Court is provided by other means.
She also found that the right of the Petitioners to a fair trial as provided by s.7 of the BoR has not been infringed upon by failing to permit them a right of access to the Grand Court and the petition was therefore dismissed.
Mendoza purchased his property from Crosby Ebanks and his neighbors have since said that a five-year reign of terror ensued as he attempted to close off their access to a 45-year-old right of way access road. After numerous police visits, court cases and protests the government finally stepped in to take control of the access point and make it a public road.
However, Mendoza and Ebanks continued to do everything in their power to interfere with the NRA and other government officials attempting to clear the land for the road. A last-ditch legal attempt was made with the petitioners receiving an injunction as the matter went to court. Since then Mendoza has continued to interfere with free access to the right of way had even had his car towed by police after he used it to block the access point.