Harvey Nixon, Troy Nixon & Ambrose Nixon v Gardie Richardson Nixon

JurisdictionBahamas
JudgeWinder, CJ
Judgment Date21 October 2022
Year2022
CourtSupreme Court (Bahamas)
Docket Number2018/CLE/gen/00540
Between
Harvey Nixon, Troy Nixon & Ambrose Nixon

(Executors of the Estate of King Richard Nixon, Deceased)

Plaintiffs
and
Gardie Richardson Nixon
First Defendant

and

Samuel Burrows
Second Defendant

and

Archipelago Development & Resorts III Co. Ltd.
Third Defendant

and

Wayde James Nixon
Fourth Defendant

and

Jim Cay Company Ltd
Fifth Defendant
Before

Hon. Chief Justice Ian R. Winder

2018/CLE/gen/00540

IN THE SUPREME COURT

Common Law & Equity Division

Appearances:

Gail Lockhart Charles with Lisa Esfakis for the Plaintiffs

Craig Butler with Caleb Alexander Dorsett for the 1 st, 2 nd, 3 rd and 5 th Defendants

Rionda Godet for the 4 th Defendant

Winder, CJ

This is the plaintiffs' application for an order setting aside the Certificate of Title granted in Supreme Court Action 2016/CLE/qui/01247 (the Certificate) in respect to: All that piece parcel or lot of land known as Lumber Cay situate approximately Seven Hundred feet south of Staniel Cay containing 30 acres and all the piece parcel or lot of land known as Jim Cay containing 8 acres situated North of Lansing Cay between Musher and Hog Cay, Exuma, one of the islands in the Commonwealth of the Bahamas (the Properties) and for declarations as to validity of conveyances purportedly made subsequent to the grant of the Certificate.

Dramatis Personae
1

The main actors in this action are the following:

  • (1) King Richard Nixon (King) is the patriarch of the Nixon family who died on 5 December 2015 survived by his 10 children. King died leaving a Last Will and Testament dated 8 September 1980 leaving all of his children as executors.

  • (2) Harvey Nixon (Harvey), Troy Nixon (Troy) and Ambrose Nixon (Ambrose) are 3 of the children of King and who were appointed as the executors of King's estate.

  • (3) Wayde Nixon (Wayde) is one of King's sons living and working on Staniel Cay Exuma.

  • (4) Gardie Nixon, the first defendant, is King's eldest son. He was passed over as an executor of the Will by Order of the Supreme Court on 15 November 2018. Gardie was one of the grantees of the Certificate.

  • (5) Samuel Burrows (Samuel) is the brother-in-law of King and the uncle of Harvey, Troy, Ambrose, Wayde and Gardie. Samuel was one of the grantees of the Certificate along with Gardie.

Common law action 2016/CLE/qui/02147
2

Common law action 2016/CLE/qui/01247 (the quieting action) was commenced by Gardie and Samuel by Petition to the Supreme Court on 23 August, 2016 claiming to be the owners in fee simple in possession of the Properties.

3

The Abstract of Title filed on 23 August, 2016 along with the Petition, setting out Gardie and Samuel's claim to the Properties, contains the following alleged particulars:

4

Gardie and Samuel both swore affidavits in support of the quieting application. At the trial of the quieting action Gardie and Samuel gave evidence in support of their cases and called Darren Higgs as well as the surveyor A. Balder Campbell. At the conclusion of the quieting action the Court granted a Certificate of Title jointly to Samuel and to Gardie with respect to the Properties. The Certificate of Title was granted on 18 July 2017.

5

On 1 December, 2017 the Properties were conveyed to the 3 rd defendant Archipelago Development & Resorts III Company Limited (Archipelago) for $1,000,000. Samuel and Gardie's attorney, Andrew Allen, who acted for them on the quieting petition is also a director of Archipelago. The conveyance to Archipelago was signed by Andrew Allen as the President of Archipelago.

6

The plaintiffs commenced this action seeking declaratory relief as follows:

  • (1) A Declaration that the Certificate of Title granted in Supreme Court Action 2016/CLE/qui/ 01247 to the First and Second Defendants in respect of Lumber and Jim Cays, Exuma be set aside and declared null and void under the provisions of Sections 26 and 27 of the Quieting Titles Act, 1959;

  • (2) A Declaration that King Richard Nixon and/or The Estate of King Richard Nixon's ownership and interest in the land is superior to that of the Defendants;

  • (3) A Declaration pursuant to s. 5 of the Fraudulent Conveyances Act Ch. 150 Statue Laws of The Bahamas, that the Conveyance dated 15 October 2017 between Gardie Richardson Nixon and Samuel Burrows of the one part and Jim Cay Company Ltd a company incorporated under the laws of the Commonwealth of The Bahamas of the other part shall be deemed void for fraud and of no effect.

  • (4) A Declaration pursuant to s. 5 of the Fraudulent Conveyances Act Ch. 150 Statue Laws of The Bahamas, that the Conveyance dated 1 December 2017 between Gardie Richardson Nixon and Samuel Burrows of the one part and Archipelago Development Resorts Company III Ltd a company incorporated under the laws of the Commonwealth of The Bahamas of the other part shall be deemed void for fraud and of no effect.

  • (5) An injunction restraining the Defendants or their agents and each of them by themselves from any further dealings with Lumber Cay and or Jim Cay.

7

The Statement of Claim provides as follows:

  • 1. The Plaintiffs are the sons and three of the original five named Executors of the Last Will and Testament dated 8 September 1980, hereinafter the said Will, of King Richard Nixon, Deceased, herein after the Deceased, who died on 15 December 2005.

  • 2. The First Defendant is the son of the Deceased and formerly one of the original executors named in the said Will, having been removed as executor on 15 day of November 2018 by Order of the Supreme Court on its Probate Side. The Plaintiffs intend to refer to and rely on the said Order for its terms and full effect at the trial or further hearing of this matter.

  • 3. The Second Defendant is the brother in law of the Deceased and the maternal uncle of the Plaintiffs and First and Fourth Defendant (sic).

  • 4 The Third Defendant is a company incorporated under the Laws of The Commonwealth of The Bahamas on 13 January 2017, and beneficially owned by one Mr. David Tilton of Virginia, United States of America or the Tilton Family Trust. The Third Defendant is also a purported purchaser of Lumber Cay an island within the Exuma Cays in the Commonwealth of The Bahamas.

  • 5. The Fourth Defendant is the son and one of the named executors of the said Will of the Deceased.

  • 6. The Fifth Defendant is a company incorporated under the laws of The Commonwealth of The Bahamas on 22 January 2019, and the purported purchaser of Jim Cay, one of the Cays within the Exuma Cays in the Commonwealth of The Bahamas.

  • 7. At the time of his death, the Deceased was survived by his wife Shirley Nixon who died on 30 December 2009 and eleven children, namely Gardie Richardson Nixon (the First Defendant), Wayde Nixon (the Fourth Defendant), Troy Nixon, Ambrose Nixon, Harvey Nixon (the Plaintiffs herein) Patrice Nixon, Michelle Nixon, Rosemary Nixon, Bridgette Nixon, Sonia Nixon and Jason Nixon.

  • 8. The original Executors according to the tenor of the Deceased's Will were Gardie Richardson Nixon, Harvey Nixon, Wayde James Nixon, Troy Nixon and Ambrose Nixon. The Plaintiff intends to refer to and rely on the said Will for its terms and full effect at the trial or further hearing of this matter.

  • 9. By virtue of a Confirmatory Conveyance dated the 14 November 1990 and recorded in the Registry of Records in book 5592 at pages 40 to 43, at the time of his death the Deceased was seised in fee simple in possession of the said Lumber Cay and Jim Cay hereinafter collectively referred to as “the Cays”. The Plaintiff intends to refer to and rely on the said Confirmatory Conveyance for its terms and full effect at the trial or further hearing of this matter.

  • 10. On the 15 December 2018 the Plaintiffs made application to the Probate Registry of the Supreme Court for Grant of Probate which said application is still pending. The Plaintiff intends to refer to and rely on the said application for Grant of Probate for its terms and full effect at the trial or further hearing of this matter.

  • 11. In or around 2016 the First and Second Defendants commenced an Action in the Supreme Court on its equity side for a Grant of Certificate of Title with respect to the said Cays and by that said action namely CLE/qui/01247/2016 a Certificate of Title to the said Cays was issued to the First and Second Defendants. The Certificate of Title is recorded in the Registry of Records in the City of Nassau in Volume 12857 at pages 78–83.

  • 12. The Plaintiffs were not aware of the commencement of the said action until around or about December 2017 or January 2018, and shortly thereafter were advised that a Certificate of Title had in fact been issued to the First and Second Defendants on 18 July 2017. The Plaintiff intends to refer to the said Certificate of Title at the trial or further hearing of this matter.

  • 13. The First Defendant and Second Defendants (sic) with the advice counsel and or assistance of Andrew Allen, the attorney for the First and Second Defendant (sic) and the President director and shareholder of the Third and Fifth Defendants knowingly, willfully and deliberately deceived and/or misled the Court and obtained the said Certificate of Title by fraud.

  • 14. By reason of the matters aforementioned the Plaintiffs have suffered loss and damage.

    • a. The First and Second Defendants with the advice counsel and or assistance of Andrew Allen, the attorney for the First and Second Defendant (sic) and the President director and shareholder of the Third and Fifth Defendants knowingly, willfully and deliberately deceived and/or misled the Court in representing under Oath in their affidavits dated 7 day of March 2017 and 26 October 2016 respectively that they were in exclusive possession of the said Cays, when they each had direct and personal knowledge that: the Deceased died Testate and seised in fee simple of the said Cays and appointed all of his sons executors of his Will and beneficiaries of his estate including but...

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