Re Newton, Donald W

JurisdictionBahamas
CourtSupreme Court
JudgeAdderley, J.
Judgment Date13 Sep 2012
Docket NumberCLE/qui 35 of 2000

Supreme Court

Adderley, J.

CLE/qui 35 of 2000

Newton, Donald W, Re:
Appearances:

Mr. Kahlil Parker for the petitioner

Mr W.E. Olander for the adverse claimant

Real Property - Title — Adverse possession — Whether petitioner was in undisputed possession of property for requisite period.

Adderley, J.
1

The petitioner claims to be the owner in fee simple of land the subject matter of this action (“the property”) and has made application to the court under section 3 of the Quieting Titles Act Chapter 393 Statute Laws of The Bahamas (“the Act”) to have his title to the property investigated and the nature and extent thereof determined and declared in a Certificate of Title to be granted by the court in accordance with the provisions of the Act.

2

A Petition, Abstract of Title, survey plan, and affidavits of the petitioner, Elizabeth Taylor, and Sesley Darville in support of his title to the property were filed 11 October 2000.

3

On 11 December 2000 an Order by Moore, J. was filed giving directions under the Act.

4

A notice of Petition was filed on 1 February 2001.

5

By notice filed 23 April 2002 supported by an affidavit sworn by Mr James Thompson, Mr Thompson gave notice that he intended on behalf of the purported owner of the property, George A. Sherman, to apply pursuant to s.7 (1) of the Act to be served with notice of proceedings. The court files do not reveal any disposition of this application.

6

Notice of Intention to Proceed was filed on 9 May 2008. Notice of Intention to Proceed was again filed on 10 May 2009.

7

A recorded plan was filed 24 June 2010. On 29 July 2010 a summons was filed seeking leave to amend the petition filed 11 October 2000 to amend the description of the property to accord with that in the recorded plan.

8

That summons came on for hearing on 9 December 2010. The court found that the changes to the plan were de minimis. Nevertheless the court gave directions that among other things Mr George A. Sherman should be personally served with the amended notice and notice of hearing which was fixed for 3 June 2011.

9

Mr. Parker filed an Affidavit of Compliance on 7 December 2010 and a second one filed 4 May 2011. The court notes that he had complied with the Act and no adverse claimants had come forward. He had not however complied with personal service on Mr Sherman, and had not located the owner of the land to the East of the property.

10

At the trial on 3 June 2011 Mr. Parker stated that he was still unable to find Mr Sherman. After discussion the Court was not satisfied with the efforts to locate and serve him and adjourned the matter to 13 July 2011 for mention, and a trial date was fixed for 23 September 2011. The petitioner with leave of the court then volunteered that he knew the sister of the Mr Sherman and undertook to locate him.

11

On 1 June 2011 a further affidavit in support of the petitioner's occupation of the property was filed by Colajean Butler.

12

On 11 August 2011, Mr Sherman filed a Notice of Adverse Claim and an affidavit in support thereof. On the court record this is the first time a Notice of Adverse Claim was filed since the commencement of the action.

THE ADVERSE CLAIMANT'S TITLE
13

The adverse claimant's chain of title is as follows:–

1
    ). Conveyance dated 24 July 1942 from Josiah Rahming to George Richard Sherman, Jr. recorded on 7 July 1943 in Book K16 at pages 226 to 227. 2). Conveyance by Deed of Gift dated 20 March, 1969 between George R. Sherman and George A. Sherman recorded in Book 3166 at pages 78 to 87.”
14

According to the adverse claimant, after purchasing the property his father dealt with the title until his death in August 1979. Between the 1950's and the 1960's his father leased it to Alex Knowles who farmed on it. He visited the property on a few occasions with his father.

15

Sometime about December 1969 he visited the land and saw farming taking place both on his father's land and also on the property. He informed his father who employed a lawyer in 1977 to evict the trespassers. His father died testate in August 1979 and he was the executor of the Will. He then changed lawyers and retained Mr James Thompson.

16

Mr. Thompson took action against the Seventh Day Adventist Church (Action No. 202/81) for trespass. That action was settled because the Church bought the property from him. Mr Thompson also brought action No. 203/81 against Ms Iva Robbins. Mr. Thompson asked for $25,000 but Ms. Robbins offered $15,000. That action is still pending. He thought that Iva Robbins was in possession of all the land including the smaller portion occupied by the petitioner. To his knowledge no action was ever brought against the petitioner on his behalf.

17

Around 1983 he first became aware that the petitioner was on the property because Mr Wilfred Rahming told him that he had better check his property because Benjamin Adderley was selling his father's property.

18

He never spoke to the petitioner about the property because the matter was in his lawyer's hands. He stated that he only became aware of Mr Newton's petition this year when on 12 July he received a telephone call from Mr Kahlil Parker, counsel for the petitioner. He confirmed that this is the first time that he is in court with Mr Newton.

THE PETITIONER'S TITLE
18

The petitioner claims the following documentary title as set forth in the Abstract of Title:–

  • “2. 1978 21st August: On this date the “fee simple” estate in the subject lot was by Indenture of Conveyance for value conveyed to the petitioner by George Benjamin Adderley (a.k.a.) Jonathan Alexander Adderley.

This deed is recorded in the Registrar General's Department in Volume 2983 at pages 10 to 15.

3
    2000 26th July: At this date the petitioner has (in addition to documentary title recited in No.2 hereinabove) been in continuous, open and uninterrupted possession of the lot the subject hereof for a period of Twenty-one years and eleven months.”
19

The details of the petitioner's possession came during cross examination. He stated that after purchasing the land in 1978 he went into physical possession, cut down the bush and had a fence erected around it shortly thereafter. The fence is still in place. He immediately started farming including potatoes, okras, peas and like crops. He was abroad in London between 1983 and 1985; however he arranged to keep it cleared in his absence. His title was questioned by a letter from attorney James Thompson (now deceased) dated 1 July 1983 on behalf of Mr Sherman; however, he did not accept the claim. He then gave instructions to his attorney Cedric Parker who repudiated the claim by letter dated 7 November 1983 on his behalf. In...

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