Miller et Al v Fox et Al

• Jurisdiction: Bahamas
• Court: Court of Appeal (Bahamas)
• Judge: Allen, P.,Adderley, J.A.,Isaacs, J.A.
• Judgment Date: 14 December 2016
• Neutral Citation: BS 2016 CA 142
• Docket Number: SCCivApp No. 317 of 2014
• Date: 14 December 2016

Court of Appeal

Allen, P.; Adderley, J.A.; Isaacs, J.A.

SCCivApp No. 317 of 2014

Miller et al

and

Fox et al

Appearances:

Mr. Rouschard Martin, Counsel for appellant

Mr. Wayne Munroe, QC, with Ms. Tomell Roker and Ms. Jade Fowler, Counsel for the respondent

Johnson v. Exuma Estates (1965 – 1970) 1 LRB 214 considered

Milton Strachan et al v. Harcourt Strachan SCCivApp No. 208 of 2014 mentioned

Real Property - Ownership of title — Land Registration — Whether the Chief Justice erred in failing to conclude that the respondents and their predecessors committed fraud — No evidence adduced that reached the threshold required to prove serious allegations of fraud and breach of fiduciary duty — Inordinate delay of 20 years in bringing the matter to the Court's notice — Whether the Chief Justice erred in failing to conclude that the respondents and their predecessors misled the court and acted fraudulently in the course of proceedings — Fraudulent misrepresentation with intent to deceive the Court — Fraudulent suppression, withholding or concealment from the Court of a material document, fact or matter of information with intent to deceive — Appeal dismissed — Appellant failed to prove even the first condition for nullification of a certificate of title under section 27 of the Act, described by James Smith J. in Johnson v. Exuma Estates (above).

Held: appeal dismissed; costs to the respondents, to be taxed if not agreed.

The allegations in this case revolve around: 1. fraud by Bethell in conveying the subject land to the Archers by the 1981 conveyance expressly for the purpose of paying debts when the deceased had no debts which required the sale of the land; 2. fraud by Bethel in conveying the land while still representing in the Abstract of Title filed in the action in 1991 that there was a merger of Elsie Franks claim and that of the petitioners; 3 fraudulent concealment of the 1981 conveyance from the Court by Counsel; 4. fraudulent misrepresentation to the court by counsel for the Archers that the 1985 and 1991 Abstracts of title were identical in circumstances in which the learned judge was only presented with the 1985 Abstract which did not recite the merger; 5 continued perpetuation of the fraud by Bethell in continuing to act for the Archers, signing off on all documents to be filed on their behalf while executor of the estate of an adverse claimant Elsie Franks; 6 failure of Bethell to have himself substituted for Elsie Franks, and to press her claim to the land. Notably, apart from allegations 3 and 4 above, all other claims of fraud are made against Bethell who died in 1998, and against whom all of the other claims could and should more properly have been made. It is far too late to assert such claims in as much as Mr. Bethell is deceased; and that in any event, the evidence was not cogent enough to prove fraud and breach of fiduciary duty against him.

To succeed on a claim of fraud one must prove fraudulent misrepresentation with intent to deceive the Court, or fraudulent suppression, withholding, or concealment from the Court of a material document, fact, or matter of information with intent to deceive. [end of page 2]

Further, the 1981 conveyance is an outright conveyance. There are no words in the conveyance either expressly or impliedly limiting the grant, for example, by establishing a trust of the land for Elsie Frank's beneficiaries, nor by making it subject to any adverse claim then pending. Additionally, as for the claim that the 1981 Conveyance was fraudulently concealed from the Court, the learned judge (in his ruling re: Nathan Knowles) specifically referred to the said Conveyance as supporting the Archers claim of having both a possessory and documentary title to the land. The judge was therefore fully aware of the existence of the conveyance, and considered it to have transferred Elsie Franks interest in the land to the Archers.

1 This appeal is against the decision of the then Chief Justice, Sir Michael Barnett, given on 2 May 2014 whereby he dismissed the plaintiffs claim in consolidated Common law actions 01075 of 2004, and 00344 of 2006; and further refused all relief sought therein.

2 Action 01075 of 2004 was commenced by Bernard Miller in his personal capacity claiming title to some 33 acres of land which he claims to have taken possession of by virtue of two conveyances from Thomas Bertie Davis dated 11 March 1985. Moreover, action 00344 of 2006 was commenced by him pursuant to a Conveyance from David Bethel in his capacity as executor of the estate of Elsie Agalla Franks, on 23 September 1998; and pursuant to the letters of administration with will annexed granted to him in 2006 in Elsie Agalla Frank's estate.

3 These actions by Bernard Miller sought to set aside a certificate of title given to Harold Road Properties Limited in 2004, over land the subject of Quieting Title action 302 of 1962 and the equity actions consolidated with it on the basis that it was obtained by fraud; and alternatively sought a declaration that Harold Road Properties Limited held the certificate of title as trustees for the beneficiaries of the estate of the late Elsie Agalla Franks.

4 After reading the pleadings before the learned Chief Justice, the documentary and other evidence adduced; and after considering his Ruling on the matter and the submissions of Counsel on appeal, I find this appeal without merit. Consequently, for the reasons appearing below, I would dismiss this appeal and award the costs thereof to the respondents to be taxed failing agreement by the parties.

5 Before delving into the issues raised by this appeal, it is necessary to give an overview of the facts of this case. The land, the subject matter of the 1962 Petition, comprised 2 parcels containing approximately one hundred and forty-eight and ninety-five hundredths (148.95) acres being a part of the Alexander Harold tract, located south of Harold Road in the Island of New Providence.

6 Following the filing of the Petition in 302 of 1962, and during the many years of delay which intervened, a number of claimants also filed petitions, and adverse claims, for quieting of their titles to the said land. These petitions and adverse claims were consolidated with petition 302 of 1962, and after a number of hearings before the Supreme Court; and pursuant to a Deed of Settlement and Compromise dated 6 February 2004 (“the Deed”) between the various petitioners and claimants, Senior Justice Marques ordered on 16 February 2004 that Harold Road Properties Limited be the “Substituted petitioner. for all the claims still to be investigated as mentioned in the Order”. Marques, Sr. J. further ordered that subject to the substituted petitioner producing a registered plan filed pursuant to the Land Surveyors Act 1975, a Certificate of Title “do issue to the Substituted petitioner”. in respect of the portions of land not specifically excluded in the Order, and subject to the claims existing at the date of the Order.

7 On 30 March 2004, a Certificate of Title was granted in the consolidated action by the Supreme Court to Harold Road Properties Limited as legal and beneficial owner of:

“All that piece parcel or tract of land containing by admeasurement Ninety-two and Eight Hundred and seventy four hundredths (92.874) acres and situate on the island of New Providence in the Commonwealth of The Bahamas and the boundaries of which begins at a point situate on the southern side of Harold Road…SAVE AND EXCEPT that parcel or tract of land owned by Elix's Company Limited containing by admeasurement eight and three hundred and seventy-five Hundreths (8.375) acres…Subject to the exceptions and qualifications mentioned in section 15 of the said [Quieting Titles] Act and to the deed of settlement and compromise dated the 6th day of february a.d. 2004 filed in this action on the 18th march a.d. 2004 but free from all other rights, interests claims and demands whatsoever.” [emphasis added]

8 It is important to make clear the fact that the original petitioner in Quieting Action 302 of 1962 was Minvella Archer, who died on 2 July 1966 leaving her Will of 1 November 1961, by which she claimed to have had a “substantial interest” in the subject land.

9 She appointed her sons, Spurgeon Archer, and George Henry Archer Sr. as her executors and devised all her real and personal estate to her six children George Archer Sr., Annie Turnquest, Jenkins Archer, Gracie Roberts, Spurgeon Archer, and Gleaka Campbell in equal shares. Probate of her Will was granted to her said executors on 26 August 1966; and, in 1966 the Petition in action 302 of 1962 was amended to substitute them as the petitioners in the action.

10 The documents further show that Elsie Agalla Franks filed an adverse claim in action 302 of 1962 on 29 January 1969. She died in 1976 having by her Will of 5 July 1973, appointed David Bethell as her sole executor, and devised all her real and personal estates of whatever nature to her six children, and grandchildren in equal shares. Probate of her Will was granted to David Bethell on 2 November 1978 in Probate Action 200 of 1978.

11 Interestingly, Letters of Administration with the Will annexed were also granted in Elsie Franks estate to Bernard Miller on 3 March 2006, as attorney by Power of Attorney for Samuel Ross pursuant to a Supreme Court Order dated the 21 April 2005 for the use of the said Samuel Ross until such time as he shall apply for and obtain a grant of probate.

12 The facts also show, that by a conveyance of 25 July 1981, David Bethell as executor of the estate of Elsie Agalla Franks sold the fee simple estate in property described as being situate on the southern side of Harold Road to the executors of the original petitioner in 302 of 1962, George and Spurgeon Archer, for thirty-thousand dollars ($30,000) thereby transferring to the estate of the original...