Closure was ‘fait accompli’
(CNS): Local defence attorney Anthony Akiwumi argued that the closure of theWest Bay Road was an unconstitutional ‘fait accompli’ which gave the people of the Cayman Islands no right of appeal and lacked transparency. Presenting the case on behalf of the four West Bay ladies who have challenged the controversial closure in the courts, Akiwumi pointed to the right of way that people have enjoyed on the road for more than one hundred years, the petition signed by more than 4,000 residents, as well as the cultural significance of the road. But the main thrust of his submissions before Justice Alex Henderson Monday was simply that the closure was unlawful.
Representing Alice Mae Coe, Annie Multon, Ezmie Smith and Betty Ebanks in their suit against the governor, the minister, the attorney general, the NRA and, at its request, Dart Realty Cayman Ltd, Akiwumi opened his clients' case to a packed courtroom. Facing an army of lawyers and QCs on the defence benches, Akiwumi argued that the way government had gone about the closure of the West Bay Road was unlawful and should not have happened behind closed doors.
He suggested that many of the issues surrounding the case regarding the jurisdiction of the court, time lines and other arguments from the defence were nothing more than a distraction. The lawyer asked the judge to answer the question of whether or not the process was lawful because if it was lawful, his case was over. Akiwumi argued forcefully, however, that the process was not as it was not compatible with the Constitution or the Bill of Rights.
He pointed out that there was no way for the people to appeal the decision or file objections as the details of the agreement were always kept from the public eye and nothing was officially published until after the road was gazetted on 13 March, contravening section 18 of the BoR.
“No one really knew until after the fact,” he told the court. “The residents of West Bay and of the island were presented with a fait accompli.”
Akiwumi said that the closure of the road via the roads law was unconstitutional because it did not comply with the section of the constitution which demands government acts in a reasonable and transparent way. It also undermined long held easement and access rights. He argued that the closure of the road under the roads law may have given possession to Dart but it did not take away the people’s right of access.
Arguing over the question of jurisdiction, Akiwumi said the trigger date was not the original signing of the ForCayman Investment alliance agreement in December 2011 but the order to gazette the closure of the road. He said the ladies filed their suit as soon as they were aware that government was intending to discuss that order in Cabinet and it was that order which they could then oppose in a court of law.
Although he focused on the legality question and the lack of transparency regarding the process, Akiwumi did not neglect the emotional elements of the case and the significance of the West Bay Road as an historical through route to George Town for over a century. He also addressed the allegations regarding his clients that they were nothing more than a nuisance.
“That is not true,” he said, adding that the four women were representing a wider genuine concern in the community about the way the road was closed.
Akiwumi said the case had nothing to do with objecting to development but it was about the road as well as the access it provides to the beach. He told the court that the strip of road which is now inaccessible was once the first point along the West Bay Road where Cayman’s famous Seven Mile Beach could be seen and it was now impossible to see Seven Mile Beach from any road.
“Tourists wonder where it is,” he said.
The attorney who has submitted all of the evidence relating to the case in writing closed his opening summary at around 3:30pm on Monday afternoon and gave way to the first of the QCs on thedefence side.
Richard Keen QC, who is representing the government and the NRA, began the defence by suggesting the process was transparent and that it was closed correctly and lawfully under the roads law, which removed any public accessthat a road would afford. The lawyer argued that this was a political decision lawfully made and lawfully executed. He also spent time arguing that the trigger point for any action was not the gazetting of the road but when the agreement was signed in December 2011, making the suit out of time.
Keen will continue his presentations in Court 4 Tuesday during the trial, which is open to the public and scheduled to run throughout this week.
Category: Local News
I am going to send these ladies a copy of Don Quixote for Christmas.
Boycott Dart.
Oh please do. I would rather the miserable types did not block the cocktail bars during happy hours
Actually the miserable types are the ones who NEED the cocktails or didn't ya know?
The rest of us are naturally Happy! Much less epensive and healthy. Don't be jealous now, you could stay away from the cocktails too and not be a miserable type.
00:07 Haha lol!! And by your comment should I assume that you have no idea how we vote here in cayman? Every four years we drop the government in power for the other party like a hot potato.. Time after time. So just because the last government was voted out does not mean that the majority did not support the road closure. #donttalktrashyoudontknow. Lol
So now we all know "Kadafe" in not only dead but a disgruntled UDP supporter as well.
#another-reason-never-to-vote-udp-ever-again
Not to worry. Government has the right to acquire land for public purposes ,so there is nothing to stop this Administration or future Administrations from gazetting and acquiring land for a future road following the same route as the closed off section.
YEah, lets demolish the new multi-million dollar park and replace it with a road we no longer need! Genius.
Our 4 West Bay ladies protest the Dart-Alliance project here, but dont cry you cant see 'Your Beach' when there are now rows of monolithic buildings down 7 mile, the new Beach Club amongst them. No protest there-Why? The road closure project is an improvement any way it is measured. The truth is that Cayman just developed the beach from the 60's onwards with no forward thinking of future needs re- the public and beach access. The lure of the $$$ in land transfers, stamp duty & conveyancing fees every time a condo changed hands between owners was a license to print money. Cayman progressed and developed from this, so you cant now cry that you cant see your beach….
At least now you can park at Public Beach & walk on a manicured pathway, without being run down by a taxi en-route and smelling the days old styrofoam lunch packages from the FFF Nyam line
I think Caymanians have been concerned about this for a long time.
We have seen many buildings built on the 7mile beach and block not only the view but sometimes the very acess to the beach.
Now the message here highlights the 4 ladies and yes we give them credit for being up front. The question though is how many people are supporting what they are standing for?
Beyond that there are legal implications involved in the deal with Dart that would have to be worked out probably involving a lot of money going to Dart.
I always though that this matter should have been a referendum matter.
No protest there because it was PRIVATE land unlike the PUBLIC Beach. Get it?
psst c'mear I want to tell you a little secret. a little closer….. there: IT'S ABOUT THE UNDERHANDED, DIRTY WAY IT WAS DONE! Did you get that this time? let me know when you've forgotten, and I'll thell you again. You're welcome.
Since we now have a newenvironmental plan for the Island, does this mean we gonna ban al Dart styrofoam containers?
Yes!
Hats off to these four ladies for taking a stand for what they and many others believe in.
Hats off to these four ladies . They see & undestand the wright from wrong . We cannot continue to allow Goverment to sell out to devolopers behind closed doors . If they are allowed to .The next deal that they do behind closed doors would be sell you and the Island . I say stand up and fight like the 4 Ladies .
You are selling your island to the money grubbers. Soon it will be like all the others. Just glitz and show.
While I find the new roads and park beautiful….I can't say the same for the way the entire process was handled.
The new "park looks like a waste land.
It's still a construction site for heaven's sake.
Da wha WestBayas get for electing people who are not used to making decisions at such levels. Because you are a CPA or part owner of an electric company or is a realtor, are you trained or experienced with such matters to make such high level decisions?
I say not. Wheres your track record.
Want to see the SMB!!!! WTF!!!! we cant see it now anyway, our elder caymanians sold the land years ago. I really have to luagh, we could never see the beach on this stretch of beach anyway, so who really cares, Mr Dart will build a wonderful developement and all Caymanians and Tourists will be able to enjoy it, just like Camana Bay.
Some of us remember the South Sound Road running almost on the beach with unsurpassed views of the reef. All that went when the Tarpon Pond was filled in creating a nice subdivision including moving the road back 200 feet or so. The road at both ends was subsequently straightened out. I recall no protests at the time. Blame the Bush Government for a lack and transparency on this matter and lets move on.
move on to do it again? and again?
Interesting Mr. Johnson, but do you remember being distressed and outraged when there were discussions/negotiations taking place between DRCL (Dart) and Government about using a part of the old Victoria House property (also owned by DRCL/Dart) for a PUBLIC beach? Do you remember the concerns of many of the property owners along that northern section of the SMB/West Bay Road corridor, who felt that, heaven forbid, if a PUBLIC beach were created in such close proximity to those high-end properties, not only would the peace and quiet of current owners be negatively impacted, but, horror of horrors, property values would plummet resulting in any owners who decided their only option would be to sell making much less profit on their investment?
However, since the possibility of that Victoria House public beach was taken off the table and the property owners near to it would not be personally negatively affected, then it should no longer matter what impact the closure of almost a mile of the WB Road and loss of the multiple public rights of way providing access to the Beach, will have on thousands of members of the wider public on whose behalf the four WB ladies were willing to stand up and speak out.
XXXX
"…the closure was unlawful…"
Uh, this is Cayman…the place where laws are often ignored (pension contributions, health car contributions, national building fund, gas boy cards and on and on).
So why complain about this one single unlawful act? Get used to the culture.
"From Lawless Pirates we decended … Lawless Pirates we are."
This argument is pointless. The section of the WB Road that was 'closed' is only closed to Vehicular Traffic, and NOT Public (pedestrian) Access.
Is this not clearly outlined in the FCIA agreement? Therefore the argument seems to be unfounded.
A beautiful Beach Park and Boardwalk for all Locals an tourists to enjoy versus what?
XXXXX
THIS IS THE BEST ARGUMENT ever!
We are not descended from Pirates. Try reading Founded Upon the Seas.
vrs freedom and the democratic process
Pfft……next issue please.
Ladie keep up the fight I am 200% backing you. A lot of the nay commenters are only materialistic and only concern for themselves and not the country on a whole. If this was any other project that was done behind closed doors they would be saying something else for example let's say the government got in agreement and pass the NCL without consulting the people would it not be the same issue here. I think these ladies are only saying the closure was unconstitutional and against the law. People trry to understand they are not against the road closure but it is how it was done.
200%?? Mac, is that you? Just get back to the maths class, ok?
With 4000 signatures that is not a majority vote from the people, if that is truly the issue here that the people did not get a vote in the matter. Clearly the amount of signatures suggests that the majority are infact in support of the new development.so why then I ask is time and funds being wasted on this in court on something that the people are not in support for? If these selfish few are successful in getting the road reopened and put the government responsible for massive repayments the whole country will suffer from new taxes that gov will put in place to recoup costs not to mention probably straining the relationship with the islands biggest investor and scaring away any other investors thinking of coming here.
Kadafe – you must of been dead when the last election in the Cayman Islands was held in May 2013.
Oh, that's right you were dead!!
If you had been alive and had not been a tyrant your whole life perhaps you learned a few things. The Democratic election results in May 2013 meant a majority of people disapproved not only of the road closure but many other things the previous CI Government tyrannical regime stood for.
err 00.07…shurely shome mishtake..I think you will find they hated Mac mostly, but not someof the things he did, albeit with a lack of transparency..Only here in Cayman would nobody want a new road which does not spoil the coast line, in fact which makes the coastline much better because it takes awful, smelly polluting vehicles away from that very beauty spot..allowing people who actually go there to enjoy it more.
It always amazes me the number of people who will drive to the beach and then sit on their fat a$$es in the car stuffing burgers and chicken down their throats, and then throwing the rubbish out the window..those same one who are complaining about the road closure..and denial of access? Good grief Charley Brown.
Do you mean Gadaffi ?……..SMH
Wrong. "Gaddafi" or "Qaddafi".
No. I'm Kadafe can't you read? It's spelled differently .
your argument is flawed (surprise). clearly the amount of signatures show there are AT LEAST 4,000 people against it. plus its' a law issue.
also, who needs repayment? The road builder tried to swing a fast one and gets stopped. BFD, that's biz. win some and lose some. worth the gamble cuz it would have been SWEET for road bldr if it worked. I hope it didn't
Obviously your understanding is flawed. How can 4000 signatures count as a majority vote? Silent voices do not count as votes? If there were more people out there who did not support the road closure they should have made the effort to sign the petition and not just sit around complaining..
That's not how petitions work. 4,000 signatures shows that 4,000 people oppose it. You can't extrapolate a petition.
Mr. Anthony Akiwumi is really on. He has hit on all the salient points though they may be common sense to anyone with any kind of IQ. Like he said if the closure were lawful his case would be over and for that matter not even have been allowed to be heard by the court. Any other approach to the matter is just more time wasting and nonsense. Although every knows all those defense attorneys do not mind showing up to collect their fees in any case.
So his approachis "If it wasn't illegal you'd have thrown us out of court by now"? Not sure that's sound legal reasoning there. They have gone to court to explain why they think it's illegal. Once the court has heard them then it will presumably throw them out.
Good thing you obviously do not work in the Law profession.
CIG makes decisions in private all the time. They legislate and pass into law all manner of things that have absolutely no input from the general public or electorate. This is no different. CIG deems that getting millions of dollars in investment, duty income, work for many local companies and people and an improved tourism product is a good deal for the Cayman Islands. That's it… final. No questions asked.
Yes but that na make it rite.
Why is it that expatriots and paper caymanians feel it's their "right" to make such stupid and inconsiderate comments about things they know nothing about, how do you feel about the heritage and history of your country. Caymanians signed that petition not just because we wanted to see what our signature looked like on paper but because we feel the need to preserve what little we have left of what once was a peaceful God fearing Island where at one time everyone knew your name and who your mama is. I pray that these four ladies who are four bodies in a court room but represent hundreds of CAYMANIANS who still have hope that we will be able to save what we have left of our small Island of which we do still take pride in calling home.
You can smell the underlying xenophobia.
I smell the underlying 'racism' (for lack of a better term. Let's leave these people alone.
Why is it that a few Caymanians, by no means all, feel the need to live in the 18th century and wish to act as censors to the people who generate the majority of CIG's income which provide the services and social benefitsthat are needed. Instead of preaching hatred and racism why don't you try talking to the expats? You will find most have thoughts and ideas that could help promote prosperity for all here. Mr Dart is one who has done many good things for Cayman, including employing many Caymanians.
"preaching hatred and racism" = Pot calling Kettle black
Shelita, how many generations do we need to follow your family tree back to find the immigrant, paper-Caymanian expats that you descended from? Or did you evolve from the indigenous wildlife?
Anyone who uses the term "paper Caymanians" is a xenophobic fool. It's not the heritage and history of "your" island at stake. It was an ugly congested road that lined with trash that blocked off a beautiful beach. If you want to do something for your country try protesting against the shocking incompetence, waste a mismanagement of your government and civil service.
Not so. "Paper Caymanians" are those who merely possess Caymanian status but don't regard themselves as Caymanian at all and have no loyalty to Cayman but identify exclusively with their country of origin. It is a mere flag of convenience and so "paper Caymanian" is a very fitting term.
For the love of God….when will you realise it WAS your OWN NATIVE CAYMANIAN people that sold off their birthright for a a quick buck back in the day,, that's the real reason why you can't see 7MB anymore. Didn't hear anyone complaining back then eh ?
I'm sorry, other countried protect whatever they seem fit, that they belive should be perserved for future generations. Who are any of you to laugh or condemn the preservationof a "road," it just demonstartes a lack of understanding of what are "treasures" to the people of the island, as simple and as humble as they may be.
And if you have kids, who's kids are going to skip the beach to play at a "PARK" that is so far from the beach its a joke to even consider it as a trade off. I'm sure the priority was having sufficient vollyball space than to provide a functional and practical place for families to enjoy the beach.
Greedy, greedy, people…
Yup, Caymanians aint gonna skip more than 10 yards to a park… For that they have to drive… And we wonder about the obesity and diabetes epidemic… Oh wait, the expats caused that too… LMF
Caymanians do not go to parks. Caymanians go to Camana Bay. Only expats and their sprogs go to the Dart Park on South Church Street and there is never a living body to be seen in the other district parks.
A waste of money by Dart and certainly no good will derived from their construction.
But if the Kimpton offers good night life and a new place for the Ritz herd to move on to then all will be forgiven!
from one expat to another: you're acting like a 12 year old jerk
As someone commented previously, Cayman is the only place on the planet that someone would be protesting against digging up a ROAD to build a PARK.
What a ridiculous argument. Can anyone name a decision of government that people have the right to appeal? All cabinet decisions are made "in secret" and to the best of my knowledge there is no right for the public to appeal them, save for the democratic process which cannot undo a contract entered into in good faith.
Correct 11.21..lets ee what happens when those lives who were screwed up by the new immigration laws start their cases..human rights not just trodden on but run over by a tank..
What case of immigration? If you are an immigrant you have a country of origin go back to or from whence you came don't come here to fight natives to give up their rights so that you an immigrant can have more rights in their country than you can in your own. Only in Cayman!
Caymanians can go back to England anytime they want.
They just hapen to be here because of dumped cargo years ago. Most Caymanians have scottish ancestors and your heritage is just bunk
Cayman Most Educated Lawyer and the best Cayman Has to Offer Anthony Akiwumi GREAT Job AA
OMG a park! No way! thats soo needed.
You obviously have no understanding of what losing several rights of way to the beach actually means to the people of this island.
Nonsense. No one, and I mean NO ONE, uses those overgrown, burr-infested six-foot rights of way along this stretch of road. Seriously. Are you trying to tell me that people are up in arms because they can't park illegally on the side of a dangerous road to make a trek through near jungle along a six-foot right of way, when right up the beach, only a half mile away, there's a easy path to the beach? God help us.
Clueless……
It is amazing how some people can't see further than the temporary benefits they realize in the short time if they hold a job with those who have come here to exploit us. Thus I'll venture to say that most of the thumbs up to comments like that of [Tue,10/12/2013 -11:21 above], are from those who have, or are hoping to get employment with the Dart Group of Companies! And to these non thinkers, this is the only thing they can see. Because they never take the time to look ahead and see how we are rapidly losing that ambience that made the Cayman Islands special. They should listen to those visitors who have been coming here for years and who have lots of money to spend,but are looking for other places with that special something that they used to find here. And there are those who have made this island their home, and loved the gradual growth of the Island, sustainable growth! That kept our visitors coming back again and again.
The Dart Group of companies "in my opinion" want to turn us into another Miami Beach with all the multistory buildings and other unwelcome form of development that will in the short time make them millions, but in the long term will leave us without a tourism market. At the rate we are going it won't take long, and by then they will have made their money and left us holding the "rag" . Yes! That "rag" they used to wipe us of the map. Remember there is a place called Cuba next door that is quietly growing it's tourism market, and is considered the most beautiful island in the Caribbean. They are building their market on sustainable growth & echo-tourism. So I say to those who govern us, pay attention, and start thinking! Or else before long you'll have nothing to think about!
How narrow minded and simplistic your argument is. It is a bit more than simply digging up a road to build a park.
Wow. Just wow. Obviously you have another definition of "good faith" then the rest of the universe.
Please stop the nonsense? You're an ass!
and you are rude
Not only an ass, but he apparently has a gender problem! "PLEEEASSSE Ladies, stop" and "WHAT MORE DO YOU GUYS WANT?????" Sounds like he's a little mixed up!
I'm praying for a positive outcome here…
I keep hearing that "God has a plan". I don't believe in God so I don't believe in the referenced plan, but that's just me and I strongly support your freedom to believe in a God and in His plan. That all said, if there were a God and He did have a plan, if what you are praying for is the same as the plan, then you don't really need to be praying because God's plan is going to happen anyway (I mean if He makes a plan it's going to happen, right? It's not like He can fail in what He sets His mind to). On the other hand, if what you are praying for isn't in accordance with God's plan, you probably ought not be praying for that. If you're not sure what God's plan really is, so that you're sure your prayers are in accordance with His plan, wouldn't it be safer just to keep silent on the issue and not risk asking for something that's not in accordance with God's plan? I'm just saying, God's plan might be for a negative outcome here, and if you've trying to undermine that with prayer, it might not go over so well in the afterlife.
Con – fused a little?
Best comment ever LMAO
Theology 101.
You took so many words to say so little all the while believing you are being so clever. If you had even a basic understanding of Christian theology you would know that it teaches that while God has an overarching will that will be accomplished it does not mean that every single occurrence is pre-determined by God. In other words, just because God has a plan doesn't automatically mean that plan is going to happen since there is room for free will. For example, it is God's will that all men be saved but we are told elsewhere that that is not actually going to happen but instead the majority will be damned. The point of prayer is to attune our will with God's and therefore to accomplish his plan. Sometimes his plan is broad enough to encompass several possibilities including our will; sometimes not: "Father, if it be thy will, let this cup pass from me; yet not my will but thine be done".
Capiche?
huh?
"Tourists wonder where it is" Seriously, thats your argument? Good luck with that fella. Must be some dumb ass tourists if they can't find SMB.
So does the Compass defend the right of citizens not to have their public roads closed and handed over to a private developer? Or the right of a private land owner to grab public land and shut the public out?
dont be silly…DART has spent a billion dollars her in the last 10 years, kept the economy floating…he EXCHANGED land for the road..he did not just take it…stop being foolish just because you are "confused'!!
Dart vs Cayman Islands road closure = Dart wins
Dart vs NYC mayor Bloomberg = NYC Bloomberg wins. Now that is power and Dart has more invested in the USA than he will ever have in Cayman. Just goes to show some things are priceless and cannot be bought or sold.
Ummm…. he didn't exchange land for the road, we will all pay for the road out of government taxes Dart will not have to pay for the next few decades.
PLEEEASSSELadies, stop this nonsense…you have a road that does not get washed over during a hurricane, that gets you to town in 10 minutes that is safe, well lit and almost impossible to have a head-on accident on…WHAT MORE DO YOU GUYS WANT????? To keep an old 100 year old pathway that your grandfathers put there because they did not have equipment to put it where they knew it should go??? I think if you did that poll in WB today they would not have 4000 signatures…(oops forgot some of those were children and tourists)…West Bayers like the quick drive home now.
Lets move on please…..please…..
Your comments are far from being intelligent, I sincerely suggest you are not speaking for the majority of us. Going to the West Bay road public beach is not as pleasant a trip as before. Money talks, don't it. Hope he will be succefull with changing Bloomberg's decision in NY about styrofoam containers. Mr. Dart won't find that decision to be any push-over like or WB road.
Can't wait to read the outcome of that decision.
Cayman. LOVE it or LEAVE it. Go ahead and move on now.
I am so PROUD of our 4 West Bay ladies who are standing up for all the Caymanians, residents and tourists who truly appreciated, and who really miss, the view on the only stretch of West Bay Road where the beautiful sea could be seen until it was so selfishly taken away from us just because some big bully had the money to tempt our foolish and greedy politcians!! Shame, shame on them and I hope they will have to do what the developers in Turks & Caicos had to do – and give it all back.
The whole process was about as transparent as a brick wall in all honesty. I don't know how they can even pretend otherwise.
For Sale: Professionally built brick wall constructed on sand .
The property rights implications of this case must be positively dizzying for the Editor from Texas!
If the tourists want to see Seven Mile Beach they will be able to enjoy it while walking along the lovely bicycle paths provided in theplan.
EXACTLY!
Was the road blocked off for us or the Hotel?
**American** tourists WALKING? ROTFLMMFAO… you have a better chance of seeing Makeewa mekin de trek then dem…
If you believe in the everchaning "plans" then you probably believe their is a real Santa Claus too. Don't worry Santa soon come. NO REALLY!! He is!
Meanwhile enjoy those sweet dreams, ZZZZZZzzzzzzzzzz
I wonder who is paying you?! I guess you will say next that tourists will enjoy the multi coloured sand that the developer chose to corrupt the beautiful seven mile beach sand with.
Darts sand came from east end ,He dug a huge hole and trucked it to town You all just did not notice when he was digging it
Where are these paths? Same place as the amazing new nonexistent toilets?