Derek Achong
A supermarket has lost its final appeal against Holiday Snacks Limited over a natural gas pipeline on its land.
Delivering an judgment on Monday, five Law Lords of the United Kingdom-based Privy Council dismissed Energizer Supermarket Limited's appeal against Holiday Snacks over the issue.
The lawsuit stemmed from a written agreement from March 1986, between Holiday Snacks' parent company Kiss Baking Company Limited, and Sookram Boodhai, the original owner of the land at El Socorro Road in San Juan.
Under the agreement, Boodhai granted the company permission to construct a gas pipeline on his land and to conduct periodic maintenance in exchange for a one-off payment of $12,000.
In May 1992, Kiss Baking transferred part of its business including the rights and liabilities in respect to the pipeline to its wholly-owned subsidiary Sweetheart (1989) Limited. The subsidiary's name was changed several times before becoming Holiday Snacks.
In October 1993, Boodhai sold the land to Energizer and wrote to the company indicating that their agreement over the pipeline "is at an end".
Three years later, Energizer called on Kiss to remove the pipeline. The following year, Energizer's application for planning permission to construct a supermarket on the land was refused based on the presence of the pipeline.
In December 2006, Holiday Snacks brought a lawsuit against Energizer seeking a declaration that it had an equitable "way leave" or easement for using the land for the pipeline. It also sought an injunction to restrain Energizer from interfering with its use of the pipeline.
In its defence and counter-claim, Energizer sought a declaration that the agreement between Kiss Baking and Boodhai was void for illegality as Kiss did not apply for a license for the pipeline under the Petroleum Act. Energizer also claimed that Boodhai cancelled the agreement when he sold the land to it.
In 2014, High Court Judge David Harris upheld Holiday Snacks' claim and dismissed Energizer's counter-claim.
Energizer challenged Justice Harris' decision but its appeal was dismissed by the Court of Appeal in June 2019.
In analysing the evidence in the case, Lord Andrew Burrows noted that Energizer would not be bound by the equitable easement if it did not have notice of it when it purchased the land from Boodhai. Lord Burrows noted that Boodhai and the company's then managing director told Energizer about the pipeline agreement.
Dealing with whether the agreement could be invalidated based on the lack of a license under the Petroleum Act, Lord Burrows noted that the legislation did not impliedly prohibit the agreement.
He also ruled that such invalidation would be a disproportionate response to the illegality as the license was not central to the agreement and because the easement was essential to the company's business.
Lord Burrows also pointed out that while the fines for not having a license are significant, the agreement did not deal with serious criminal wrongdoing.
Energizer was represented by Fyard Hosein, SC, Sasha Bridgemohansingh and Aadam Hosein while Christopher Sieuchand and Sonnel David-Longe represented Holiday Snacks.
