John W. Russell v Bahamas Agricultural and Industrial Corporation
| Jurisdiction | Bahamas |
| Judge | Hanna-Adderley, J |
| Judgment Date | 11 February 2021 |
| Docket Number | 2019/CLE/gen/FP/00093 |
| Court | Supreme Court (Bahamas) |
The Honourable Justice Petra M. Hanna-Adderley
2019/CLE/gen/FP/00093
COMMONWEALTH OF THE BAHAMAS
IN THE SUPREME COURT
Common Law and Equity Side
Mr. Edmund Russell for the Plaintiff
Ms. Kenria Smith for the Defendant
This is an application by the Defendant to strike out the Writ of Summons filed in this Action.
The Writ of Summons endorsed with a Statement of Claim was filed on April 29, 2019. The Defendant by way of a Summons filed October 9, 2019 seeks an Order pursuant to Order 18, Rule 19 (l)(a)(b) and (d) of the Rules of the Supreme Court 1978 (“ RSC)” and/or under the inherent jurisdiction of the Court that the Writ of Summons filed herein be dismissed against the Defendant on the ground that the Plaintiff's claim discloses no reasonable cause of action, is frivolous and vexatious and is an abuse of the process of the Court as the action is a land matter and is brought incorrectly.
The application is supported by the Affidavit of Monique Millar filed December 7, 2020.
The Defendant relies on its Submissions dated December 7, 2020 in support of its application.
The Plaintiff opposes the Defendant's application and relies on Skeleton Arguments filed July 13, 2020.
It is noted that the Civil Procedure Rules 2022 (“ CPR)” have now come into effect and that Part 26 rule 26.3 (1) (b) and (c) contain almost identical provisions to Order 18 r 19 of the RSC.
In the Statement of Claim the Plaintiff claims to be the owner in fee simple of 180.0 acres situate at South Riding Point in Grand Bahama (“ the property)” by virtue of being the alleged heir-at-law of William Russell to whom the Crown granted the William Russell Tract on January 17, 1827 recorded in the Registry of Records in Book LI at page 257.
He claims that all or part of that same tract was leased by Crown to the Defendant who subsequently subleased it to Statoil South Riding Point, LLC by lease dated sometime in 2013.
He is therefore claiming, among other things, that the Defendant knowingly practiced deceit on Statoil in granting the lease, and is interfering with his property rights. He claims an order for possession, damages, and an injunction prohibiting the Defendant from continuing to do anything with or on the property.
As he states in paragraph 11 of the Statement of Claim “the Plaintiff brings this action to assert his ownership of the 180.0 acre William Russell Tract (or portions thereof)…”
Ms. Monique Miller stated, in part, that the Defendant is a public authority, that the Plaintiff claims fraud but that he does not specifically plead fraud pursuant to Order 18 r 12 of the RSC. That the claim is brought outside of the Limitation period pursuant to Section 16 (3) and 41 (1) (a) of the Limitation Act.
Ms. Kenria Smith of the Attorney General's Office, Counsel for the Defendant, submitted in part, that:
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(1) That this action is an abuse of the process of the Court.
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(2) That allegations of fraud must be clear and express and pleaded separately from and before any other allegations even where they are based on similar lines of argument (Order 18 Rule 12 of the RSC). The Plaintiff states that there was a forged document in 2013 but he does not exhibit the documents. He lays out particulars of deceit but he does not particularize knowledge on the part of anyone at Bahamas Development Corporation that support his claim in deceit. The Writ of Summons ought to be struck pursuant to Order 18 Rule 19 of the RSC. That on the face of the pleadings the Plaintiff's action is frivolous, vexatious and an abuse of the process of the Court pursuant to Order 18 r 19.
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(3) That the Plaintiff had notice of the occupation of the property as far back as 1981 when Burmah Oil, a predecessor of Statoil, had oil tanks on the land. That the Plaintiff has slept on any rights he thinks that he may have had as the limitation for recovery of land would have ended in and around 1993. The Plaintiff instituted proceedings in the Supreme Court on April 29, 2019. There is no cause of action on the face of the pleadings.
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(4) That the proceedings are hopeless and doomed to failure and the claim amounts to an abuse of the process of the Court.
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(5) That the Plaintiff makes reference to trespass in his Submissions but he has not pleaded trespass.
Ms. Smith referred the Court to the following authorities:
(l) Nassau Cruises Ltd. v Bahamas Hotel Catering and Allied Workers Union [2000] BHS J. No. 248 1996 No. 789;
(2) McEneaney and others v Ulster Bank Ireland Ltd. and others [2015]EWHC 3173;
(3) Girten v Andreu [1988] BHS J. No. 164;
(4) Riches v DPP [1973] 2 All E R p. 935;
(5) Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2001] UKHL 16;
(6) In the Quieting Petition of Eleuthera Land Company Limited 2012/CLE/qui/00579; and (7) Bennerman Town, Millars and John Millars Eleuthera Association v Eleuthera Properties [2018] UKPC 27.
Mr. Edmund Russell Counsel for the Defendant submitted, in part, that:
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(1) The Crown Grant to William Russell dated January 17, 1827 was lodged for recording on microfilm in Book L.1 at page 257 first in time and pursuant to Section 10 of the Registration of Records Act it cannot be defeated by the alleged unrecorded Crown Lease to BAIC and relates to the property.
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(2) By an unrecorded Crown Lease dated March 13, 1981 (“ the Crown Lease)” the Crown allegedly leased the property to The Bahamas Development Corporation, which is the alleged predecessor in title of BAIC.
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(3) That the 1827 William Russell Crown Grant takes priority over the alleged Crown Lease and the unrecorded Indenture of Lease dated October 21, 2009 and made between BAIC and Statoil South Riding Point, LLC and cannot be defeated by the Crown Lease or by other subsequent alleged Lease.
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(4) That the disposition of the property to Statoil was in any event made with intent to defraud.
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(5) That the late William Russell entered into exclusive possession and occupation of the property as the owner with the paper title and remained in exclusive possession of the property until his death.
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(6) That BAIC never had the intention to possess the property nor acquire a title to the property by adverse possession, but claims to have a documentary title being a Crown Lease. It was never in exclusive possession and sole occupation of the property, which vested in a Justice of the Supreme Court after the death of the late William Russell and the property was not fenced in on all sides by BAIC and is bounded on the South by the Sea at the high water mark and contains a harbour and waterway.
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(7) That this is the action for the recovery of land which was commenced in accordance with Section 30 of the Limitation Act, 1995 and that the Plaintiff's Statement of Claim is not frivolous, vexatious nor an abuse of the process of the Court and the Defendant's Summons ought to be dismissed.
Mr. Russell referred the Court to the following authorities:
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(1) Oceania Heights Limited v Willard Clarke Enterprises Limited & Others (Bahamas) [2013] UKPC 3; and
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(2) JA Pye (Oxford) Ltd & Ors v Graham & Anor [2002] UKHL 30.
The issues to be determined by the Court in this application are (1) whether this is a clear and obvious case where it is possible to say, at this interlocutory stage and before full discovery, that a particular allegation set out in the statement of claim is incapable of proof and that there is no need for a trial and (2) whether the Plaintiff's claim is statute barred.
Order 18 Rule 19 of the RSC provides as follows:
“(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that —
(a) it discloses no reasonable cause of action or...
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