COMMONWEALTH OF THE BAHAMAS IN THE SUPREME COURT Public Law Division IN THE MATTER OF APPLICATION FOR JUDICIAL REVIEW

BETWEEN THE QUEEN AND THE RT. HON. PERRY G. CHRISTIE PRIME MINISTER OF THE COMMONWEALTH OF THE BAHAMAS (in his capacity as the Minister Responsible for Crown Lands) (1) THE HON. PHILIP E. BRAVE DAVIS DEPUTY PRIME MINISTER OF THE COMMONWEALTH OF THE BAHAMAS (in his capacity as the Minister of Works and Urban Development and the Minister Responsible for Building Regulation) (2) THE HON. GLENYS HANNA-MARTIN MINISTER OF TRANSPORT AND AVIATION OF THE COMMONWEALTH OF THE BAHAMAS (in her capacity as the Minister Responsible for Ports and Harbours) (3) THE TOWN PLANNING COMMITTEE (4) PETER NYGARD (5) KEOD SMITH (6)

2013 No. PUB/jrv/00012

Respondents Ex Parte COALITION TO PROTECT CLIFTON BAY

Applicant

AFFIDAVIT OF ARIANNE CARTWRIGHT

I, ARIANNE CARTWRIGHT, of the Western District of the Island of New Providence one of the Islands of the Commonwealth of The Bahamas, Barrister make oath and say as follows:Introduction 1. 2. I am the Office Manager of Commercial Law Advocates where I have I am authorized by the Sixth Respondent to make this Affidavit:2.1 in support of an application of the Sixth Respondent made by Summons filed herein on Friday, 21st June, 2013 for an Order, inter alia: 2.1.1. setting aside the leave granted herein on 14th June, 2013 for the Applicant to commence judicial review proceedings, inter alia, against the Sixth Respondent herein; and 2.1.2. that the Sixth Respondent be struck off as a party to this action. 2.2 in reply to the Affidavit of Joseph Darville sworn to on 17th May, 2013 and filed herein on the same date. Coalition Letter To Sixth Respondent 1st May, 2013 3. On or about 3rd May, 2013, we received in our Chamber a letter dated 1st May, 2013 over the signature of Mr. Frederick R.M. Smith (FRMS) of Messrs. Callenders & Co. on behalf of a non-profit organization known as Coalition to Protect Clifton Bay which he referenced as the Coalition, the Applicant herein, stating that he thought that the Sixth Respondent was engaged in works at Jaws Beach for which he had no building permit. FRMS also stated that complaint had been made to various Government Ministries and entities inclusive of the Second Respondent herein asking them to take appropriate action to cause the Sixth Respondent to stop his repair works and activities on Jaws Beach, Clifton Bay. The letter concludes with a request for the Sixth Respondents confirmation that [he] will immediately cease or cause the construction activities to cease immediately. There was a bundle of been employed since October, 1997.

-3photocopied letters enclosed in that letter, the caption of which was Jaws Beach, Clifton Bay: Demolition of old Dock, Construction of New Dock, Placement of Large Boulders etc. I now produce and annex hereto marked as exhibit ARC-A a photocopy of the said letter of 1st May, 2013. FRMS Letter Of Threat To Bro 26th April, 2013 4. One of the letters in the enclosed bundle was a letter addressed to the Second Respondent and Mr. Craig Delancy, the Buildings Control Officer (the BRO) falling within the Ministry of the Second Respondent, dated 26 th April, 2013 as over the signature of the said FRMS (FRMS Letter of Threat), the caption of which was Jaws Beach, Clifton Bay: Demolition of old Dock and Ramp and Construction of New Dock. I now produce and annex hereto marked as exhibits ARC-B a photocopy of the letter of 26th April, 2013. 5. relation to: (i) The recent demolition of the old dock below and above the high water mark at Jaws Beach; (ii) The on-going construction of a new dock at Jaws Beach just east of the old dock site; (iii) The on-going placement of large boulders on the western edge of the concrete ramp both above and below the high water mark at Jaws Beach (together the Dock Works) 6. Inter alia, the letter went on to say: The Coalition understands that the Dock Works are being carried out without the relevant approvals and permits. Mr. Keod Smith, who appears to be in charge and responsible for the workers engaged in the Dock Works, has repeatedly proclaimed that he does not need any permits to conduct such works. The Coalition is therefore concerned that the Dock Works may be further examples of unauthorized and unregulated development of public land In FRMS Letter of Threat, he stated that the letter was being written in

which comes on the heels of complaints the Coalition made to you on 25 th March, 2013 and 8th April, 2013 regarding [other] unauthorized development, constructionatClifton Bay. 7. After expressing what seems as his opinions as to what he thought was

the relevant law that governed the acts he was instructed to draw to the attention of the Second Respondent and the BRO, the letter was concluded by making the following requests: please confirm or provide the following information:

a) Whether applications have been made for a building permit or building permits in respect of the Dock Works; b) If so, kindly provide us with copies of any and all applications, supporting documents and the building permit (s) granted; c) If a building permit or building permits have not been granted for the Dock Works, what action you intend to take; and d) If you decide not to take action, the reasons for such decision. FRMS Follow-Up To Letter Of Threat 1st May, 2013 8. By letter of 1st May, 2013, FRMS followed-up to the FRMS Letter of Threat by way of informing the Second Respondent and the BRO that if he was not informed by close of business on Monday, 6th May, 2013 that action had been taken against the Sixth Respondent for his repair works to be stopped and requirng him to tear it down, judicial review of proceedings would commence challenging the decision not to take action. Bro Reply To FRMS 7th May, 2013 9. According to the documents exhibited to the Joseph Darville Affidavit, on 14th May, 2013, the BRO faxed to FRMS a reply to the FRMS Letter of Threat and his letter of 1st May, 2013 by way of a letter dated 7th May, 2013 (the BRO Reply to FRMS) which appears at pages 14 15 of the exhibit to the Joseph Darville Affidavit.

-510. The caption of the BRO Reply to FRMS was Jaws Beach, Clifton

Bay: Demolition of Old Dock, Construction of New Dock, Placement of Large Boulders. 11. The substantive parts of the BRO Reply to FRMS are as follows:This is to advise that a research of our building permit records revealed that:i) We have no evidence of a building permit application for the reconstruction of a dock at Jaws Beach. ii) An investigation was carried out at the above site and as a result a Contravention letter has been prepared for issue to Mr. Keod Smith who is purported to be the individual responsible for overseeing the illegal construction works. 12. From my understanding of the words set-out above from the BRO Reply to FRMS, FRMS is being told, inter alia, that a decision had been taken to issue a Contravention letter to the Sixth Respondent which I verily believe to mean that FRMSs demand as set-out in the FRMS Letter of Threat had been met. This, therefore, eliminated the necessity for FRMS and the Applicant to commence judicial review proceedings in relation to the Sixth Respondent at all notwithstanding that this reply had not been faxed to him before its deadline. He did receive it prior to filing the exparte application for leave to commence these exparte proceedings herein, namely 17th May, 2013. Bro Contravention Letter To Sixth Respondent 7th May, 2013 13. On 15th May, 2013 at 12:31pm, I signed the delivery book of the Ministry of Public Works and Urban Development presented to me at our Chambers by a representative of the BRO, acknowledging receipt on behalf of the Sixth Respondent herein of an envelope addressed to the Sixth Respondent which had enclosed in it, a letter dated 7th May, 2013 addressed to the Sixth Respondent and over the signature of the BRO (the BRO Letter).

I now produce and annex hereto marked as exhibit ARC-C a photocopy of the BRO Letter. 14. The caption of the BRO Letter was Contravention of the Buildings Regulations Act, Chapter 200, Construction of a Wooden Dock & Earth Works at Jaws Beach, Clifton Bay. 15. The substantive parts of the BRO Letter are as follows:-

An inspection of the abovementioned premises on the 3rd May, 2013

revealed that you have constructed a wooden dock measuring approximately 75ft without a valid building permit. Under Section 4(2) of the aforesaid Act, the Minister of Public Works, hereby serves notice requiring you, the owner, to pull down and remove the works within twenty-eight (28) days of service of this notice. Should you fail to comply with this notice, the Minister may, in accordance with Section 4(3) of the same Act, pull down and remove the works and recover from you the expenses reasonably incurred in so doing. The Tribune Newspaper Article 21st May, 2013 16. Appearing on the front page of the Tuesday, May 21, 2013 issue of The Tribune broadsheet newspaper under the headline of Clifton Bay Review Bid was a story that the Coalition had filed judicial review application on Friday, 17 th May, 2013, which 10 days after the date of the BRO Reply to FRMS and the BRO Letter to the Sixth Respondent. Further the filing date of the Applica nts application for leave was 2 days after the respective letters had been either faxed to FRMS or received in our Chambers by way of delivery to the Sixth Respondent whose name was set-out on that story as being one of the parties being challenged. I now produce and annex hereto marked as exhibits ARC-D a photocopy of the said newspaper article of 21st May, 2013. 17. As a result of what appeared in The Tribune, the Sixth Respondent directed me to, and I did, procure copies of the Exparte Application of the Applicant

-7herein, its underpinning Statement and supporting Affidavit of Mr. Joseph Darville, all filed on 21st May, 2013. I now produce and annex hereto marked as exhibits ARC-E, ARCF and ARC-G a photocopy of the receipt issued by the Supreme Court evidencing payment for the said photocopies. Keod Smiths Judicial Review of Decisions in BRO Contravention Letter 18. 19. In the meantime, the 28th day after our receipt of the BRO Letter, As such, on 11th June, 2013, the Sixth Respondent, as Applicant, filed namely Wednesday, 12th June, 2013, was fast approaching. an application in Supreme Court Action No. 2013/PUB/jrv/00015 (intitule Keod Smith v Buildings Control Officer etal) for leave to commence judicial review proceedings in respect of decisions which, according to the Statement filed in that Action (the Jaws Dock Judicial Review), were made by the BRO as evident by the BRO Letter. I now produce and annex hereto marked as exhibits ARC-H, ARC-I and ARC-J photocopies of the Exparte Application applying for judicial review in the Jaws Dock Judicial Review, the required Statement and supporting Affidavit of the Sixth Respondent as Applicant therein, respectively. 20. The application for leave in the Jaws Dock Judicial Review was heard exparte at 9:00am on Friday, 14th June, 2013 before His Lordship The Honourable Mr. Justice Milton Evans who granted leave for the Sixth Respondent, as Applicant therein, to commence the proceedings of the Jaws Dock Judicial Review in accordance with the Order issued therein by him, dated and filed in those proceedings on the same date that the Order was granted (the Jaws Dock Order). I now produce and annex hereto marked as exhibit ARC-K a photocopy of the Jaws Dock Order. 21. By the terms of the Jaws Dock Order, the BRO Letter and its effect were stayed and Parties were required, under threat of a penal notice, to maintain the status quo in respect of the physical condition of the dock and the ramp at Jaws Beach, Clifton.

Lack of Service of Coalition Order on Sixth Respondent 22. Under cover of letter dated 14th June, 2103 addressed to the Sixth Respondent and served on his Chambers, what appears to be a photocopy of an Order (the Coalition Order) issued by The Honourable Madam Justice Rhonda Bain in the Action herein on 13th June, 2013, but filed on 14th June, 2013. It was delivered to our Chambers at 4:08pm on 14th June, 2013. I now produce and annex hereto marked as exhibits ARC-L a photocopy of the letter dated 14th June, 2013. 23. In the evening of Friday, 14th June, 2013, the Jaws Dock Order along with the underpinning Statement and Supporting Affidavit of Keod Smith, the Sixth Respondent herein, were served on the Respondents in respect of whom leave was granted to commence judicial review proceedings against, namely, the BRO and the Minister of Public Works and Urban Development, Second Respondent herein. These documents were enclosed under cover letter of 14th June, 2013 over the signature of the Sixth Respondent. I now produce and annex hereto marked as exhibits ARC-M and ARC-N photocopies of the letters dated 14th June, 2013 of the Sixth Respondent. 24. all parties.. 25. This right notwithstanding, FRMS indicated in his cover letter that the documents upon which the Coalition Order was granted were not going to be served until he had completed the Notice of Motion in respect of the judicial review proceedings mentioned in the said Coalition Order. 26. I am told by the Sixth Respondent and do verily believe that by the rules governing this process, the Notice of Motion referenced could be filed as late as fourteen (14) days after the grant of leave, namely, Friday, 28th June, 2013. 27. Appearing on the front page of the Saturday, June 15th, 2013 issue of The Tribunes Saturday & Sunday The Big T newspaper under the headline of By paragraph 5 of the Coalition Order the Sixth Respondent was at liberty at apply to discharge or vary [the Order] upon at least two (2) days notice to

-9Court Halts Nygard Work at Clifton Bay was a story, inter alia, stating that the Coalition was successful in their Supreme Court application [for judicial review] to require any dealings between the governmentand Keod Smith regarding Clifton Bay to be made public. The court documents halt works in the Bay area byMr. Smith [Sixth Respondent herein] acting directly or through (their) employees or agents.. I now produce and annex hereto marked as exhibits ARC-O a photocopy of the said newspaper article of 15th June, 2013. 28. 29. The story states that the court documents were filed before The HonThe story went on in the end to state that the Sixth Respondent was ourable Ms. Justice Rhonda Bain. subject to a penal notice which stipulated that he would be held in contempt of court if he were to neglect to obey the terms of the Order set out in paragraph 12 her eof, the consequence of which could be imprisonment at Her Majestys Prisons, or a fine or the sequestration of [the Sixth Respondents] assets.. 30. There is no indication in the story that the court documents it refers to was in the form of an Order issued by the Court. The way in which the story is written, I got the impression that the information being relayed in it was in relation to a final determination of the Court after hearing all parties concerned. 31. There is no indication that this story was only referencing leave having been granted to the Applicant to apply for judicial review and that the prohibitive portions of what was being reported, was a part of such an Order or even in the Action of the Applicant for judicial review herein. 32. The Sixth Respondent informed me and I verily believe that up to the time of me swearing this Affidavit, he had not been personally served with any Order either the original of the photocopy received in our Chambers, or referencing the facts set out in the said story appearing in The Big T on Saturday, 15 th June, 2013 although he was on the Island of New Providence, The Bahamas since Friday, 14th June, 2013 right up to the date of me swearing this Affidavit.

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Save Guana Cay Reef Action 33. According to the Court of Appeal records as evidenced on its website FRMS appeared as Counsel of Record in Court of Appeal SCCivApp No. 70 of 2006 (intitule Save Guana Cay Association Ltd. and Another v The Queen v Wendall Major and Others). In that case, the Judgment (Save Guana Cay Reef Judgment) was delivered on 18th February, 2008 CA Save Guana Cay Reef Judgment, the Court was composed by Dame Joan Sawyer P and Ganpatsingh and Osadebay JJA. I now produce and annex hereto marked as exhibit ARC-P a copy of the Judgment on the said action. 34. According to paragraph 74, page 30 of the Save Guana Cay Reef Judgment, the appeal to the Court of Appeal was dismissed. It was appeal from the Judgment of Acting Supreme Court Justice The Honourable Norris Carroll who, on 12th October, 2006 had dismissed the application being made by FRMS on behalf of his Client for leave to apply for judicial review of certain decisions alleged by that application. 35. I am told by the Sixth Respondent and do verily believe that based on the introductory pages of the Judgment of the Privy Council in Privy Council Appeal No. 0013 of 2009 (otherwise stated as [2009 UKPC 44] intitule Save Guana Cay Resort Association Limited and Others v The Queen and Others), delivered on 17th November, 2009, the Judgment of the Court of Appeal was appealed to the Privy Council. At paragraphs 54, that appeal was dismissed. 36. I am told by the Sixth Respondent and do verily believe that the essence of the matters complained of by the Applicant herein is subsumed in the Judgment of the Privy Council in the Save Guana Cay Reef matter. Ronald Thompson Letter 37. That the apparent maker of the letter dated 25th January, 2010 and addressed to Messrs. Maillis & Maillis that is exhibited in the Joseph Darville Affidavit (see page 138) is Mr. Ronald Thompson in his capacity as the Permanent Secretary of the Ministry for the Environment. The fact that he currently serves as a Member of

- 11 the Board of Directors of the Applicant is not deposed in the said Joseph Darville Affidavit. 38. From my 16-years experience working with Mr. Keod Smith and seeing letters written by Permanent Secretaries and other Government Officials, I cannot ever recall seeing one written on behalf of the Government, a Ministry or Minister of Government which is not prefaced with words to the effect that that person was directed or asked to write that missive. 39. There is no indication on the face of this letter that it is written in response to any request made by Messrs. Maillis & Maillis or other person for that matter. Yet, in its first paragraph it uses the word agreed which makes me believe that it is to suggest that a request had been made by the addressee of that letter. 40. That having been said, the words of the last paragraph thereof makes me believe that the content thereof was supposed to be secret and not for disclosure to others. Those words are Submitted for your information, please. Kathleen Sealy Report 41. From the website of the Applicant I note that Ms. Kathleen Sealy is a Member of the Board of Directors of the Applicant. At page 164 of the exhibit to the Joseph Darville Affidavit, Ms. Sealys name appears as being the author of the Environment Incident Report set-out at pages 164 184 thereof. Those facts are not deposed to in the Affidavit. The Applicant is not the maker of this Report nor does he state who made it. The Tribune Libel Action 42. I see exhibited in the Joseph Darville Affidavit, a newspaper article headlined as Who Is In Charge Of Clifton Bay?. The said article is subject of proceedings that the Sixth Respondent currently has against The Tribune in Supreme Court Action No. CLE/gen/00389 of 2013 (intitule Keod Smith v The Tribune Ltd etal). The Applicant herein is named as the Third Respondent in that action against The Tribune which I am told by the Sixth Respondent and do verily believe is an action in

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the area of libel where a number of factors set-out in the article purporting to be the truth is challenged. That matter remains extant. There is no indication in the Joseph Darville Affidavit pointing out this fact. I now produce and annex hereto exhibits ARC-Q and ARC-R photocopies of the Writ of Summons and Statement of Claim in the said Action No. CLE/gen/00389 of 2013. 43. In fact, to-date, the Defendants, one of which is the Applicant herein, have not yet filed and served their Defence on us in their capacity as Counsel for the Plaintiff therein, Keod Smith. In fact, by letter dated 21st June, 2013, Counsel for the Third Defendant therein (Applicant in this matter) confirmed their request for an extension of time by two (2) weeks within which to prepare, file and serve their Defence on us. That would bring the date on which they intend to serve their Defence on us to Thursday 4th July, 2013. Mr. Smith signed at the foot of that request and faxed it back to them in acknowledgement of his agreement to the extension. I now produce and annex hereto marked as exhibit ARC-S a photocopy of the said letter of 21st June, 2013. 44. The Attorneys for The Tribune, Messrs. Higgs & Johnson, also confirmed by letter dated 19th June, 2013, attention to Mr. Keod Smith (Sixth Respondent herein) that he (Keod Smith) had acceded to the request of the said Counsel of The Tribune to a two (2) week extension of time within which to serve their Defence on our Chambers. That would bring the date on which they intend to serve their Defence on us to Tuesday 2nd July, 2013. I now produce and annex hereto marked as exhibit ARC-T a photocopy of the said letter of 19th June, 2013. 45. In the circumstances of what is set out herein, I do verily believe that there is no basis upon which that Keod Smith, the Sixth Respondent herein, should be kept in this action as a Respondent seeing that at the time when the Applicant s application for leave was filed (17th May, 2013), the Applicant had been advised by the

- 13 BRO Reply to FRMS that the action sought by the Applicant against the Sixth Respondent, had been taken. 46. Furthermore, the only outstanding decision with respect to the Sixth Respondent is that of the BRO whereby the Sixth Respondent has been made to stop the repairs being done by him to the dock and ramp at Jaws Beach, Clifton. That decision is currently under review by His Lordship The Honourable Mr. Justice Milton Evans in the Jaws Dock Judicial Review. 47. The matters deposed to in this Affidavit are either within my own knowledge (in which case they are true) or are based upon information supplied to me by others (in which case I identify the source of the information and state that those matters are true to the best of my knowledge and belief). SWORN TO at ) Nassau Bahamas ) this 26th day of ) June, A.D. 2013 ) ...... Before me,

... NOTARY PUBLIC