Johnson et Al v Thurston et Al
| Jurisdiction | Bahamas |
| Judge | Osadebay, Sr. J. |
| Judgment Date | 21 February 2001 |
| Court | Supreme Court (Bahamas) |
| Docket Number | 791 of 1993 |
| Date | 21 February 2001 |
Supreme Court
Osadebay, J.
791 of 1993
Mr. James Thompson for the plaintiffs.
Mr. Dennis Gomez for the defendants.
Damages - Trespass to land — Plaintiffs claimed possession of certain parcels of land and sought damages for trespass to said lands and injunction to restrain defendants from entering on said lands — Whether plaintiffs could establish good root of title to said lands — Whether plaintiffs lost right to land by being dispossessed or by discontinuing possession — Finding that defendants did commit acts of trespass on tracts of land belonging to plaintiffs — Plaintiffs granted declarations sought — Grant of perpetual injunction and damages in sum of $5,000.00 — Injunction granted to defendants restraining plaintiffs from entering upon a named parcel.
The 1st plaintiff is the Personal Representative of his late father, Frederick Benjamin, Johnson, through whom the 1st plaintiff claims ownership in fee simple in possession of one fifth (1/5) undivided share or interest in certain tracts or parcels of land on the Island of Cat Island, formerly known as San Salvador, in the Commonwealth of the Bahamas.
The 2nd plaintiff, David Poitier, also is the Personal Representative of his late father, Henry Poitier, through whom he claims ownership in fee simple in possession of another one fifth (1/5) undivided share or interest in the same tracts or parcels of land.
Both plaintiffs claim against the defendants damages for trespass to the said tracts or parcels of land.
The said tracts or parcels of land which form the basis of the plaintiffs' claim are as follows:
“(a) ALL THAT tract of land containing 100 Acres more or less situate in the vicinity of “The Bight” on the Island of Cat Island formerly known as San Salvador, another Island of the Commonwealth aforesaid, originally granted to George Demeritte but commuted as to 50 Acres to Alexander Fife Armbrister - Book B 2 at Page G8.
(b) ALL THAT tract of land containing One hundred and Forty Acres more or less situate in the vicinity of “The Bight” aforesaid, originally granted to Sarah Fish but commuted to Henry Armbrister - Book B 2 at Page 217.
(c) ALL THAT tract of land containing Five hundred and Ninety Acres more or less situate at Pigeon Bay on the Island of Cat Island aforesaid, originally granted to Anscel Ferguson but commuted to Henry Armbrister - Book 2 at Page 218.
(d) ALL THAT piece parcel or lot of land measuring 88' by 162' being a portion of a tract of land containing Forty Acres more or less situate at the Bight aforesaid originally granted to Anscel Ferguson but commuted to Henry Armbrister - 2 at Page 215.
(e) ALL THAT tract of land containing Three hundred and Twenty Acres more or less situate at Pigeon Bay on the Island of Cat Island aforesaid, originally granted to Stephen Haven but commuted to Henry Armbrister - Book BI Page 216.
(f) ALL THAT tract of land containing Two hundred and Sixty Acres more or less situate at Pigeon Bay on the Island of Cat Island aforesaid, originally granted Ansel Ferguson but commuted to Henry Armbrister - Book 2 Page 219.
(g) ALL THAT tract of land containing Forty Acres more or less situate at Pigeon Bay on the Island of Cat Island aforesaid, originally granted to J. Evans, but commuted Henry Armbrister (sic) - Book 2 Page 214, and
(h) ALL THAT tract of land containing One hundred Acres more or less situate at Pigeon Bay on the Island of Cat Island aforesaid originally granted to William Reese but commuted to Henry Armbrister - Book 2 Page 219.
(i) ALL THAT tract of land containing Two hundred Acres situate at The Bight aforesaid originally granted to Seth Doud but commuted to Henry Armbrister - Book 2 Page 157.”
In their claim, the plaintiffs also ask for the following relief against the defendants:
“(1) A Declaration that the defendants are not entitled to enter, cross the plaintiffs' land or to commit any trespass thereon.
(2) An Injunction to restrain the defendants whether by themselves or by their servants or agents or otherwise howsoever from entering or crossing or bulldozing or removing gravel or fill from the plaintiffs' said land.”
In their Deferice the defendants claim to have been at all material times the fee simple estate owners in possession of only five (5) of the said tracts or parcels of land, namely tracts of land mentioned in paragraphs (a), (b), (c), (e) and (f) above. The defendants also deny the plaintiffs' claim of trespass.
The plaintiffs' claim began with a claim in respect of four (4) tracts or parcels, which tracts are described in paragraphs (a), (b), (c) and (d) but as soon as the evidence of both sides was completed, counsel for the plaintiffs, pursuant to his application filed on the 16th July, 1996 - prior to the completion of the evidence - sought leave to amend the Statement of Claim to include the parcels or tracts of land described in paragraphs (e), (f), (g), (h) and (i). That, he said, was necessary to bring the Statement of Claim in line with the evidence given by both sides in the matter. He said that the amendment was necessary in order that the issues raised by the parties in their evidence may be finally resolved. The defendants were not being taken by surprise and have not been prejudiced and no further evidence was necessary by reason of the amendment.
After considering the submissions and in the light of the decisions in Smith v. Barron (1991), The Times, 15th February, 1991 and Cropper v. Smith (1883) 26 Ch.D. 700 I granted leave to the plaintiff to amend as prayed and with leave also to the defendants to amend their Defence and Counterclaim if they saw fit.
Following the amendments, Mr. Gomez, counsel for the defendants declared that the defendants had no interest in the parcels or tracts of land described by the plaintiffs in paragraphs (d), (g), (h) and (i). He stated that the Defence would not seek to call additional evidence as that was not necessary. However, he sought, and was granted leave to amend the Defence and Counterclaim by including parcels of land described in paragraphs 1 and 2 of the Defence and Counterclaim. By that amendment to the Defence and Counterclaim, the defendants claim to be the owners in fee simple in possession of the land described in paragraphs 1(a), (b), (c), (e) and (f) of the Statement of Claim as amended. By reason of respective amendments the parcels of land which the plaintiffs claim in paragraphs 1(d), (g), (h) and (i) are no longer in issue.
The plaintiffs gave evidence, called two witnesses and tendered a number of documents in support of their case. They rely not only on possessory title but also on documentary title.
The defendants rely on the Will of one Alexander Fife dated February, 1873, and mainly on possessory title. They rely also on a Conveyance to the said Alexander Fife and dated 15th November, 1861.
I shall therefore first consider the documentary title of both sides. In order to do this I would like to keep in view the tracts of land presently in dispute between the parties. They are:–
“(a) ALL THAT tract of land containing 100 Acres more or less situate in the vicinity of “The Bight” on the Island of Cat Island formerly known as San Salvador, another Island of the Commonwealth aforesaid, originally granted to George; Demeritte but commuted as to 50 Acres to Alexander Fife Armbrister - Book 2 at Page 68.
(b) ALL THAT tract of land containing One hundred and Forty Acres more or less situate in the vicinity of “The Bight” aforesaid, originally granted to Sarah Fish but commuted to Henry Armbrister - Book 2 at Page 217.
(c) ALL THAT tract of land containing Five hundred and Ninety Acres more or less situate at Pigeon Bay on the Island of Cat Island aforesaid, originally granted to Anscel Ferguson but commuted to Henry Armbrister - Book 2 at Page 218.
(e) ALL THAT tract of land containing Three hundred and Twenty Acres more or less situate at Pigeon Bay on the Island of Cat Island aforesaid, originally granted to Stephen Haven but commuted to Henry Armbrister - Book 2 Page 218.
(f) ALL THAT tract of land containing Two hundred and Sixty Acres more or less situate at Pigeon Bay on the Island of Cat Island aforesaid, originally granted Ansel Ferguson but commuted to Henry Armbrister - hook 2 Page 219.”
Although the last 3 tracts of land mentioned above in paragraphs (c), (e) and (f) are separately each delineated on the Plan Exhibit A it is not disputed that they together with other tracts of land form part of land commonly known as the “Pigeon Bay Estate.” The first two tracts in (a) and (b) are separate tracts outside the Pigeon Bay Estate. These five tracts of land may be identified on the Plan Exhibit A. tendered by Mr. Leonard V. Chee-a-tow, a Registered Land Surveyor, who has been in practice from 1949. From 1949 to 1955, Mr. Chee-a-tow was employed by the Bahamas Government at the Crown Lands Department.
The “George Demeritte” tract - 100 acres.
This tract of land is mentioned in paragraph 1(a) of the plaintiffs' Statement of Claim. By the Statement of Claim it is not clear whether the plaintiffs' claim title to the whole 100 acres or to 50 acres, i.e. one moiety of that tract. The Statement of Claim alleges that the tract was “originally granted to George Demeritte but commuted as to 50 acres to Alexander Fife Armbrister.” The first document tendered by the plaintiffs in support of their claim appears at page 1A of the plaintiffs' bundle of documents. This document, partially damaged, containing a diagram of the, said “George Demeritte” tract describes the said tract of land showing its boundaries and states that “one moiety” of this tract is granted by the Crown to Alexander Fife Armbrister.” The “one moiety” commuted to the said Alexander Fife Armbrister is not...
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