The Court of Appeal on Friday dismissed an application from wealthy investor Bjorn Bjerkham for it to enforce a six-year order of the Caribbean Court of Justice (CCJ) in a land dispute dating back to 1988.
In delivering the unanimous verdict of the three-member appellate panel, Justice Francis Belle informed Bjerkham that enforcement of the CCJ order must be made through the local High Court.
Justice Belle explained that the judgment made by the local Court of Appeal, in March 2020 under then Chief Justice Sir Marston Gibson, was later varied by the CCJ and therefore was no longer considered its order to enforce.
The CCJ had dismissed an appeal of Timothy Walsh, an Australian-born farmer residing in Barbados, and ordered landowner Stephen Ward to transfer ownership of the 125-acre Farm Plantation in St Peter to Bjerkham, based on a contract to purchase.
In return, Bjerkham was ordered to pay Ward $1.5 million, less the deposit of $50 000, together with interest at 6% from April 24, 1998 until the date of payment.
Barbados TODAY understands that based on current estimates, that purchase price would be around $3 million.
The Court of Appeal also advised Ward’s counsel, Leslie Haynes, QC, to comply with an earlier undertaking to have his client desist from continuing to carry out certain activities on the said property which could devalue it.
Haynes agreed to do so.
The central issue in the case, which arose from three consolidated appeals before the CCJ, was whether Ward should be ordered to sell his farm plantation to Bjerkham or to Timothy Walsh.
The CCJ in its judgment had declared that it was not disputed that on April 24, 1998, Ward entered into a binding agreement, evidenced in writing, to sell the plantation to Bjerkham.
The regional court had also said that Walsh, who had been farming portions of the plantation for several years, contended that he carried out work and expended money on the plantation because he expected to be the purchaser, based on representations Ward made to him.
In his ruling on Friday, Justice Belle said it was important to note that since this matter concerned enforcement of the order of the CCJ that the Constitution of Barbados at Clause 79 (4) states that “an order of the Caribbean Court of Justice is to be treated as an order of the High Court of Barbados”.
“As a matter of principle, it is not possible to go behind this legal reality,” the appellate judge declared.
Justice Belle also noted that this is not a revival of the case in the Court of Appeal, since enforcement is not a good reason for the revival of a matter.
“We held that this application was an abuse of the process of the court, which should have been concluded long ago; and we find it very regrettable that the poor communication between counsel has, to some extent, resulted in this unfortunate attempt to enforce the CCJ’s order before this court. The application is therefore dismissed . . . . Make no order as to costs,” the court ruled.
Justice Belle concluded: “The court also wishes to say that the undertaking made by counsel at the beginning of this matter should be complied with and may also be enforced by application through the High Court if so required. That’s the unanimous judgment of the court.”
Barry Gale, QC appeared on behalf of Bjerkham. The other judges on the appellate panel were Jefferson Cumberbatch and Rajendra Narine. ([email protected])