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Ocraquoy Cunningsburgh Shetland Outwith, but near UK 4-December-2014 By Royal Mail Special Delivery No. AE072741280GB and by email to nigel.macarthur@supremecourt.uk with read receipt request. The Supreme Court of the United Kingdom Parliament Square London SW1P 3BD Dear Sirs,
Case Number UKSC 2014/0216 Sustainable Shetland v. Scottish Ministers and Viking Energy Partnership. Notice of No Jurisdiction. Notice to agent is notice to principal, notice to principal is notice to agent. To be filed on and for the record. 1. AUTHORITIES:
1.2 "A court within whose territorial jurisdiction the property is not situate has no power to deal with and decide the rights or interests in such property. In other words, a court has no jurisdiction over a dispute in which it cannot give an effective judgment." Harshad Chiman Lal Modi vs Dlf Universal & Anr on 26 September, 2005. (My emphasis).1.3 "No judgment of a court is due process of law if rendered without jurisdiction in the court or without notice to the party." Scott v. McNeal 154 U.S. 34 (1894). (My emphasis).1.4 "An order passed by a court having no jurisdiction is nullity." Harshad Chiman Lal Modi vs Dlf Universal & Anr on 26 September, 2005. (My emphasis).1.5 "It is well-settled and needs no authority that where a court takes upon itself to exercise a jurisdiction it does not possess, its decision amounts to nothing." Harshad Chiman Lal Modi vs Dlf Universal & Anr on 26 September, 2005. (My emphasis).In the absence of jurisdiction, all proceedings by a court are null and void and can be challenged at any time.
Where jurisdiction is contested, the burden of establishing it rests upon the party asserting it.
1.8 "if however a particular Court does not have any jurisdiction to deal with the matter and no part of cause of action has arisen within the jurisdiction of that Court, the parties by their consent and mutual agreement cannot vest jurisdiction in the said Court." Harshad Chiman Lal Modi vs Dlf Universal & Anr on 26 September, 2005. (My emphasis).1.9 "As a general rule, neither consent nor waiver nor acquiescence can confer jurisdiction upon a Court " The Bahrein Petroleum Co. Ltd vs P. J. Pappu: 1966 AIR 634, 1966 SCR (1) 461. (My emphasis).The parties to an action cannot give the court its jurisdiction if that jurisdiction does not already exist.
1.11 "Petitioner has no appeal from either the order of the court refusing to quash the indictment or the overruling of the demurrer, and has therefore petitioned this court [19 Cal.2d 321] for a writ of prohibition to restrain the lower court from proceeding with the trial." and "Let a writ of prohibition issue as prayed." Greenberg v. Superior Court , 19 Cal.2d 319. (My emphasis).1.12 "But in every instance the appellate court issued a writ of prohibition to restrain the lower court from interfering with the administrative proceeding." Abelleira v. District Court of Appeal , 17 Cal.2d 280. (My emphasis).1.13 "In this original proceeding petitioners seek a writ of prohibition prohibiting the respondent court and judge from proceeding with their trial" and "It is ordered that the demurrer to the amended petition be overruled and that the writ of prohibition be issued as prayed for". Jackson v. Superior Court, 10 Cal.2d 350. (My emphasis).The Supreme Court can and must overturn void decisions of a lower court.
1.15 "Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." 474 F. 2d 215 - Joyce v. United States. (My emphasis).The court may not proceed without first hearing proof of its jurisdiction and must dismiss the action if it cannot be shown proof of its jurisdiction.
A court may dismiss a case at any stage.
The court cannot ignore a challenge to its jurisdiction.
1.19 "It is fundamental to the English law of real property that all lands of subjects (whether freehold or leasehold) are held by a form of tenure. The monarch was said to hold land but he did not hold it from anyone. He was sovereign, with no earthly superior. By analogy with non feudal tenures in Europe, this is termed allodial." Halsbury's Laws of England/Crown property (volume 12(1) (reissue))/1. In general/(1) general principles and origins of crown property/201. Particular rules for Crown property. The Crown holds the ultimate title to all land in the realm. Nobody within the realm except the Crown can hold property allodially. This is a fundamental tenet of the feudal system.
In Scotland until 2004 (the abolition of feudal tenure), the Crown held its land allodially.
It is not disputed that all land in Shetland is allodial. By definition it follows that Shetland is not part of the realm of the UK or Scotland. By definition, every legitimate owner of land in Shetland is sovereign in their own right.
The direct question of whether Shetland is part of Scotland or the UK has never been tested in the courts.
1.24 "No international tribunal has, as yet, found existence of title based exclusively on prescription." International Law Rebecca Wallace, Fraser Janeczko and Karen Wylie, 2006, p.46. No length of peaceful occupation can, by itself, legitimise a faulty claim to title or sovereignty.
Holding allodial title gives the people of Shetland an automatic defence against any claim of effective occupation or prescription.
1.27 "That Shetland is part of Scotland is recognised by the court and shown by the ability of the Scottish and UK governments to legislate for Shetland. You may wish to look at some of the publically (sic) available information on cases where the fact that Shetland is part of Scotland was recognised by the courts. Lord Pentland’s decision in [2012] CSOH 110, RBS v. Stuart Hill is one such example." Answer by Scottish government to a freedom of information request asking what proof they have that Shetland is part of Scotland: www.tinyurl.com/ShetlandPartOfScotland Neither the UK nor Scottish governments can show any proof that Shetland is part of Scotland and both, in their desperation, cite Lord Pentland’s decision in my own case, which was based solely on presumption and hearsay.
Should the Supreme Court decide to proceed without hearing evidence of its jurisdiction, its officers will be in contempt of court. YOU ARE NOTIFIED: 2. This appeal is from the Court of Session, a Scottish Court. The parties are Sustainable Shetland, represented by Sir Crispin Agnew QC of Drummond Miller LLP; The Scottish Government Legal Directorate, represented by Thomso QC and Sheldon; and interested party Viking Energy Partnership, represented by Wilson QC of Gillespie Macandrew LLP.3. In order for the Supreme Court to have jurisdiction in this present matter it is presumed that Shetland is part of Scotland. It is also presumed that previous proceedings in the matter are valid. Those presumptions are challenged. 4. The term jurisdiction may be interpreted to have various limited meanings. In this case the it should be taken to have its most fundamental and all-encompassing meaning. If Shetland cannot be proved to be part of Scotland, neither this court nor any lower court involved has jurisdiction of any kind in this present matter.
5. Although it is almost universally presumed that Shetland is part of Scotland, the matter has never been tested in the courts.1.22 Any previous court decisions on peripheral matters have been based on carefully nurtured presumption and hearsay.
6. There is no prior case law.
7. The universal presumption has been carefully and long nurtured, but no proof is offered when it is challenged. On the other hand, I have ample evidence that, not only did Shetland never legitimately become part of Scotland and the UK, but that it was impossible for it to have legitimately happened at any point. My book Stolen Isles (www.stolenisles.com) contains much of the evidence to prove this statement. It should be noted that the book is in its third edition and none of the arguments contained in it have so far been rebutted. However, I do not need to rely on that evidence in this instance, the burden of proof of jurisdiction lying with the party bringing the action. 1.6
9. The court having been advised at the outset that all the Crown relied upon for its authority is a magazine article (production2), all prior proceedings in this matter have been based on presumption and hearsay and are null and void. 10. Any decision or judgement reached in the absence of jurisdiction is void. 1.1 – 1.5
11. It is up to the party bringing the appeal to show the court that it has jurisdiction.
12. Unless Shetland is proved to be part of Scotland, the very statutes upon which the court relies for its authority carry no weight in Shetland.
13. The UK government can show no proof that Shetland is part of the UK. 14. The Scottish government can show no proof that Shetland is part of Scotland. 1.27
15. The UK government is unable to rebut a claim to the allodial title of Shetland’s land and seabed. (Production 8). That claim is unopposed and cannot now be contested.
16. The Scottish government is unable to rebut a claim to the allodial title of Shetland’s land and seabed. (Production 9). That claim is unopposed and cannot now be contested.
17. The Scotland office of the UK government is unable to rebut a claim to the allodial title of Shetland’s land and seabed. (Production 10). That claim is unopposed and cannot now be contested.
18. The Scottish courts have been shown no proof that Shetland is part of Scotland when challenged.
19. There is no prior case law and the question remains untested in the courts.
20. As an interested member of the Shetland population I challenge the jurisdiction of the court.
SUPPORTING INFORMATION: 21. Some recent cases, which are sometimes relied upon as proof that Shetland is part of Scotland are Lord Advocate v. University of Aberdeen and Budge (1963) and Shetland Salmon Farmers v. Crown Estate Commissioners (1991). In both these cases there was an unchallenged and unfounded presumption that Shetland is part of Scotland. Prior cases have made the same assumption. Recently, reliance has shifted to Lord Pentland’s erroneous decision in Royal Bank of Scotland v. Stuart Hill 2012, which relied upon the same unfounded presumption. (See para. 24 below).22. The matter of whether Shetland is part of Scotland remained untested in the courts until a hearing to decide the court's jurisdiction in Procurator Fiscal v. Stuart Hill, case number LE11000312 at Lerwick Sheriff Court in August 2011. Jurisdiction was challenged on the basis that Shetland is not part of Scotland. At the jurisdiction hearing the Crown produced a magazine article by Shetland archivist Brian Smith entitled 'When did Orkney and Shetland become part of Scotland? - A contribution to the debate' as its sole evidence that Shetland is part of Scotland. That article is produced and marked 2. Apart from being inadmissible as evidence, the article contains no proof on the matter and the author makes no such claim of any proof. The sheriff claimed jurisdiction in spite of having heard no proof from the Crown. The sheriff's decision is produced and marked 3. On appeal to the Scottish High Court, the sheriff's decision was upheld by Lords Wheatley, Bonomy, Carloway and Eassie in a two stage appeal process. The appeal court judges avoided the issue by concentrating on the conviction and ignoring the constitutional issue of whether Shetland is part of Scotland, which formed the grounds of the appeal. Their decisions are produced and marked 4 & 5. All parties involved have been advised that their decisions, orders and judgements are void. 23. In a civil case number SQ5/11, 1st Credit v. Stuart Hill at Lerwick Sheriff Court, the sheriff refused point-blank to hear any evidence on jurisdiction and has accordingly been advised that his decision was null and void. There being no written record of the proceedings, a copy of a press report is produced and marked 6. 24. In the Court of Session in Royal Bank of Scotland v. Stuart Hill, Case no A4/11, after jurisdiction had been challenged on the basis that Shetland is not part of Scotland, Lord Pentland decided the court had jurisdiction without having heard any evidence on the matter from the pursuer. His Lordship made his own comments in his decision, all of which are based on presumption and hearsay. Lord Pentland's decision is produced and marked 7. His comments on jurisdiction start at his paragraph 19. Having not heard any evidence of the court's jurisdiction after it was challenged, Lord Pentland's decision is null and void and he has been so advised. 1.1 – 1.5
25. These cases have not lacked publicity and the parties to this case cannot claim they had no knowledge of them.
26. The current position regarding the jurisdiction of Scottish courts in Shetland is equivalent to that described by Gibson, C.J. in
28. Gibson, C.J. goes on: 30. The Crown has set out its position – that it relies on the magazine article by Brian Smith for its authority in Shetland. The Scottish courts have either relied on that woefully inadequate and useless evidence, or have refused to contemplate the issue. The position is therefore accurately described by Gibson, C.J. as he continues:
32. There would appear to be a concerted effort by the Scottish judiciary to avoid confronting this politically sensitive question. In doing so, judges and other officials have breached their own rules and have ignored legislation. I am confident the Supreme Court will be more detached. 33. This present case, being a matter where the Scottish Government purports to have authority in Shetland, all prior decisions and judgements are similarly void because the courts did not have the jurisdiction to make them. There is therefore no case to set before this court and the Supreme Court should restrain the Scottish courts from hearing any matter regarding Shetland. 1.10 – 1.15
34. A claim to the allodial title1.20 of all land and seabed in Shetland was and is unrebutted by either the Scottish or UK governments and cannot now be contested. Correspondence regarding this claim is produced and marked 8, 9 and 10. It will be noted that the correspondence states that "Any of these callings not answered will be founded upon." Unanswered, they are hereby so founded upon.
35. Owning allodial title makes the people of Shetland sovereign in their own right with no earthly superior.
36. A freedom of information request to both the UK and Scottish governments, 1.26 & 1.27 asking what definitive proof they had that Shetland is part of Scotland, was met with bland assurances and nothing more. No proof was shown that Shetland is part of Scotland.
37. As a measure of the dearth of evidence in their favour, both governments cite Lord Pentland’s decision, based on presumption and hearsay, in my own case - Royal Bank of Scotland v. Stuart Hill. (Production 7). That, combined with the Crown’s reliance on a magazine article clearly demonstrates their lack of authority. Power, yes – authority, no.
38. Were there any proof, it would not be difficult to produce it. The simple fact is that there is none. 39. The UK or Scottish government may try to propose prescription as a means by which they purport to have obtained sovereignty. Prescription by itself has never been accepted by any international court as a means by which territories change hands.1.24
40.Even if it were proposed, prescription falls on two counts: 1) If a population has been so intimidated that it has been unable to demand its rights through fear and trepidation.1.23 This is demonstrably true with regard to Shetland. 2) If there is a superior claim. Shetland land being allodial, the owners have an immediate superior claim by virtue of the fact that they have allodial title to their land with no earthly superior. 1.19-1.21 and 1.25
IN THIS PRESENT INSTANCE: 42. The Supreme Court must hear proof of its jurisdiction before proceeding. 1.14 43. Jurisdiction can be challenged at any time. 1.1, 1.16
44. Jurisdiction cannot be conferred by any of the parties. 1.1 and 1.7 – 1.9
45. In the absence of jurisdiction, should it decide to proceed to a hearing of the issues, all its actions are void ab initio and its officers act ultra vires.
46. The court, having been made aware of this challenge to its jurisdiction, cannot ignore it 1.17 and should now convene a hearing at common law, to which I wish to be a party, to decide on the matter of its jurisdiction.
YOU HAVE BEEN NOTIFIED Signed and sealed, Copies by email and Royal Mail Signed For to: Drummond Miller LLP, F.A.O. Fiona Moore for Sustainable Shetland. Scottish Government Legal Directorate, F.A.O. Murray Sinclair, Solicitor to the Scottish Government for the Scottish Ministers. Gillespie Macandrew LLP, F.A.O. Colin Hamilton and John Stirling for Viking Energy Partnership. |