All that piece parcel or lot of land situate in the Western District of the Island of New Providence in the Commonwealth of The Bahamas and being portions of Allotments Numbers Four (4) and Six (6) of Gambier such portions respectively being 2.493 acres and 4.227 acres

• Jurisdiction: Bahamas
• Judge: Winder, J
• Judgment Date: 07 December 2021
• Year: 2022
• Court: Supreme Court (Bahamas)
• Docket Number: 2013/CLE/qui/01041

In the Matter of All that piece parcel or lot of land situate in the Western District of the Island of New Providence in the Commonwealth of The Bahamas and being portions of Allotments Numbers Four (4) and Six (6) of Gambier such portions respectively being 2.493 acres and 4.227 acres

and

In the Matter of the Quieting Titles Act, 1959

and

In the Matter of the Petition of Bahamas Trading Post Inc

Before

Hon. Mr. Justice Ian R. Winder

2013/CLE/qui/01041

IN THE SUPREME COURT

Common Law and Equity Division

Appearances:

Carlton Martin with K. Melvin Munroe for the Petitioner

Travette Pyfrom for the Adverse Claimants

DECISION

Winder, J

On 7 December 20211 dismissed the Plaintiffs application to strike out these proceedings and promised to put my reasons for so doing in writing. These are the promised reasons.

1 The Petition was filed on the 10 June 2013 seeking an investigation of the Petitioners title under the provisions of the Quieting Titles Act (the QTA). The Petition was supported by an Affidavit filed by Robert Ian Mitchell and a plan (the Plan) of the property which was also filed on the 16 October 2013. Subsequently, additional affidavits in support of the Petition were filed by Theola Hepburn and Carletha Taylor.

2 In its Abstract of Title the Petitioner is said to derive its title from a conveyance of the interest of Henry Wright.

3 On the Plan the property is described (at the bottom right corner) as “Portion of Allotment No. 4 and Allot No. 6 Gambier totaling 6.720 acres…surveyed at the instance of the Kenny Family….”. The Plan was prepared in August 2007 by Donald E Thompson. The Plan was amended on 15 October 2018.

4 Following the giving of the usual extensive directions the matter proceeded to hearing and evidence was taken on 1 August 2017 from Robert Ian Mitchell and Carletha Taylor. Harold Morris had entered an adverse claim to the action but did not attend at the trial. Morris subsequently sold the interest he claimed to the property to the Petitioner by a conveyance dated 17 March 2017.

5 Prior to any determination of the Claim, on 28 November 2017, Annette Kenny and Cheryl Kenny (purportedly on their own behalf and on behalf of their siblings) appeared before the Court claiming to have an interest in the property the subject of the Petition. They were then represented by Norwood Rolle. They claimed an undivided 1/3 interest in the property. With leave, pursuant to Section 7 of the QTA, their Adverse Claim was filed on 11 December 2017. The Adverse Claim is settled in the following terms:

WE, ANNETTE KENNY and CHERYL A. KENNY both of the Southern District of the Island of New Providence one of the Islands of the Commonwealth of The Bahamas make oath and say as follows:

• 1. That we have filed on behalf of ourselves, and by way of Power of Attorney dated the 5 ^th December 2017 on behalf of Coraline Newton AND the 5 ^th December 2017 on behalf of Patricia Smith, Lorraine Arthur, Deyanne C. Duncombe, Hazel Pinder, Delores Edwards, Bunnicea Rolle and Glenard Holmes, an Adverse Claim herein.

• 2. That we verily believe that we are entitled to an undivided one-third (1/3) interest in the land the subject-matter of this action and described therein as:

  “ALL THAT piece parcel or lot of land situate in the Western District of the Island of New Providence in the Commonwealth of The Bahamas and being portions of Allotments Numbers Four (4) and Six (6) [mislabelled Five (5) of Gambier such portions respectively being 2.493 acres and 4.227 acres.”

• 3. That the statements contained herein are true and correct to the best of our knowledge, information and belief.

6 The relevant portion of the abstract filed by the Adverse Claimants were as follows:

1936 6 th December	7.	On this date Maria Kenny married Cecil A. Kenny and they had nine (9) children; namely: 1) Hazel Mae Kenny Pinder born 8 th March 1937; 2) Coraline Kenny Newton born 23 rd September 1941; 3) Patricia Kenny Smith born 27 th March 1944; 4) Delores Kenny Edwards born 31 st December 1946; 5) Loraine Kenny Arthur born 20 th June 1950; 6) Annette Maria Kenny born 18 th August 1953; 7) Julie Elaine Kenny born 30 th March 1955; 8) Cheryl Ann Kenny born 15 th October 1956; and 9) Diane C. Kenny born 13 th August 1959.
Note:		A certified copy of the marriage certificate is produced.
1949 5 th December	8.	On this date Florence Mitchell made her Last Will and Testament wherein after appointing Henry Alexander Wright her Executor, she made the following bequest: “ I devise and bequeath all Real and Personal Estate possessed by me or to which I may be entitled to at my death to the said Henry Alexander Wright, my son Leon Theophilus Wright and my daughter Marie Kenny in equal shares as tenants in common absolutely and in fee simple.”
1982 30 th November	9.	On this date Florence Mitchell died without revoking her Last Will abstracted at 8 herein.
1992 18 th October	10.	On this date Probate of the Will of Florence Mitchell was granted to the Executor therein named by the Supreme Court of the Commonwealth of The Bahamas in Probate Action No. 443 of 1991.
Note:		A certified copy of this Grant is produced.
1992 18 th March	11.	On this date the Executor Assented to the devise abstracted at 8 herein.
Note:		This document is recorded in the Registry of Records in Vol 5788 at pages 39 to 41.
1995 30 th March	12.	On this day Maria Kenny died intestate survived by her husband, her personal representative, and their nine (9) children abstracted at para 7 herein.
Note:		(i) A certified copy of the death certificate is produced. (ii) Following the death of Maria Kenny, Cecil Kenny and his children, abstracted at para 7 herein, continued in possession of the properties the subject of this action.
2002 July	13.	On this date Cecil Alfred Kenny made his Last Will and Testament wherein after appointing Pastor V.G. Clarke and Ross Davis his Executors and Trustees, he made the following bequests: “ I hereby give devise and bequeath all of my real estate and personal property wherever situated and any and or all interest which I may have thereon (a description of which is contained in the schedule below) to my children namely: The persons abstracted at 7 above The properties include; inter alia, All Those pieces parcels or lots of land situate in, (i) Centerville; (ii) Market Street; (iii) Adelaide Road; (iv) Lily of the Valley Corner; and (v) Gambier
2004 3 rd December	14.	On this date application was made to the Supreme Court of the Commonwealth of The Bahamas by the husband of Maria Kenny, Cecil A. Kenny for the administration of the Estate of Maria Kenny, deceased.
	15.	On this date Letters of Administration of the Estate of Maria Kenny was granted to her husband Cecil Kenny by the Supreme Court of The Bahamas on its Probate Side in Action No. 131 of 2005.
Note:		A certified copy of this Grant is produced.

7 The Adverse Claimants, and the others for whom they claim, are the children of Maria Kenney. Maria Kenney is said to have been the sister of Henry Wright and was seized of the identical interest which was left to Wright by their mother Florence Mitchell.

8 There was no objections to the terms of the Adverse Claim until the Petitioner's Summons dated 10 August 2021, some 3 ¹/₂ years after the entry of the Adverse Claim. The Petitioner's Re-Amended Summons seeks the following:

• 1. Striking out the Adverse Claim or purported Adverse Claim of the Adverse Claimants or purported Adverse Claimants herein, namely Annette Kenny and Cheryl A. Kenny and the other persons listed in or under sub-paragraph (ii) below and in the Adverse Claim filed herein on the 11th day of December, 2017, and declaring that any...