Re Sealand Investment Ltd
| Jurisdiction | Bahamas |
| Judge | Bain, J. |
| Judgment Date | 19 September 2017 |
| Court | Supreme Court (Bahamas) |
| Docket Number | CLE/QUI/132 of 2009 |
| Date | 19 September 2017 |
Supreme Court
Bain, J.
CLE/QUI/132 of 2009
Mr. Leif Farquharson with Mr. John Minnis for the petitioner
Mr. Rouchard Martin for the Adverse claimant
Civil practice and procedure - Application by adverse claimant to vary the costs order awarded to petitioner — Whether court had jurisdiction to alter or vary order for costs — Application to strike out petition pursuant to order 25 Rule 1(4) and Order 18 Rule 19(1)(a)(c) and (d) Rules of Supreme Court — Whether petitioner failed to prosecute action in accordance with Rules of the Supreme Court and was guilty of inordinate and inexcusable delay of 23 years — Whether inordinate delay gave rise to substantial risk that a fair trial would not be possible and to serious prejudice to adverse claimant — Whether action and conduct of petitioner was an abuse of the process of the court — Whether adverse claimant should have been allowed to adduce evidence in the action — Whether adverse claimant should have been granted leave to amend his re-amended Abstract of title — Whether petitioner's witnesses should have been recalled for purpose of being cross examined by adverse claimant's new attorney — Whether adverse claimant should have been allowed to file additional witness statements within a prescribed time and to have such additional witnesses produced for cross examination.
(1) Sealand Investments Ltd, the petitioner, filed a Petition (“the Sealand Petition”) under the Quieting Titles Act on 6 July 1989 claiming to be the owner in fee simple of the following tract of land namely –
“ALL THAT piece parcel or lot of land containing approximately 13.37 acres situate at White Sound on the Western Coast of Elbow Cay (Little Guana Cay) one of the Cays in the Abaco chain of Cays in the said Commonwealth of The Bahamas which said piece parcel or tract of land is bounded WESTWARDLY NORTHWARDLY and EASTWARDLY by the sea and SOUTHWARDLY by a Crow Reservation Twenty (20') feet wide separating the said property from land the property of Sealand Investments Limited and running thereon Nine hundred and eighty-two and seventy-three hundredths (982.73) feet.
(2) An Amended Petition was filed on 10 August 1989 amending the size of the property in question to 12.90 acres.
(3) An Adverse Claim was filed by Jack Donovan Johnson, an infant of Eight Mile Rock, Grand Bahama in the Commonwealth of The Bahamas by his guardian ad litem, Sidney A. Dorsett on 25 September 1989. Jack Donovan Johnson claimed to be “the owner in fee simple in possession of the land the subject of this action by virtue of inheritance, documentary and possessory (inclusive of long and undisturbed open and exclusive possession for a period in excess of twenty (20) years) title”. A Consent by Sidney A. Dorsett to act as guardian ad litem for Jack Donovan Johnson was filed on 25 September 1989.
(4) A Certificate was filed by C. A. Martin & Co. on 25 September 1989 certifying –
“IT IS HEREBY CERTIFIED that I verily believe that JACK DONAVAN JOHNSON, the Adverse CLAIMANT herein to be a infant, and that SIDNEY ALEXANDRE DORSETT, his lawful paternal cousin — and the intended guardian ad litem herein, has no interest in the abovementioned cause or in the subject matter of these proceedings which conflict with or which are adverse to that of the said infant.”
(5) The Petition was heard by Justice Austen Thorne on 23 November 1992 and 24 November 1992. The matter was adjourned in November 1992 to 27 October 1993. The matter was not heard in October 1993 and was adjourned sine die.
(6) A Petition under the Quieting Titles Act was filed on 4 February 2010 by Maitland Lowe 2010/CLE/QUI/00132 (“the Maitland Lowe Petition”) in respect of –
“ALL that piece parcel or tract of land containing approximately 13.37 acres situate at White Sound on the Western Coast of Elbow Cay (Little Guana Cay) one of the Cays in the Abaco chain of Cays in the Commonwealth of The Bahamas.”
(7) An adverse claim was filed by Jack Donovan Johnson on 12 September 2010. An adverse claim was filed by the petitioner on 14 September 2010. An adverse claim was filed by Mable Gardiner and Dorothy Lunn on 9 August 2010.
(8) By Summons filed 30 May 2013 Jack Donovan Johnson, one of the Adverse claimants in the Maitland Lowe Petition made application to have the Petition struck out pursuant to Order 18 Rule 19 Rules of the Supreme Court and under the inherent jurisdiction of the Court on the ground that the Petition was frivolous and vexatious and an abuse of the process of the Court. The Adverse claimant, Jack Donovan Johnson, also prayed that the Sealand Petition be restored to the list in place of the Maitland Lowe Petition.
(9) Sealand Investments Limited, an Adverse claimant in the Maitland Lowe Petition made application by Summons filed 10 June 2013 for the Maitland Lowe Petition to be consolidated with the Sealand Petition.
(10) By order made 14 June 2013 leave was granted for Maitland Lowe to withdraw the Maitland Lowe Petition. The Court then gave directions for the hearing of the Sealand Petition.
(11) A Notice of Change of Attorney was filed appointing E. P. Toothe and Associates as attorney for the Adverse claimant Jack Donovan Johnson instead of Paul Adderley Chambers.
(12) The Sealand Petition resumed hearing in 2014. The Court heard witnesses for the petitioner and witnesses for the Adverse claimant.
(13) A visit to the locus was made on 4 September 2015. The matter was set for 12 May 2016 for counsel for the petitioner and counsel for the Adverse claimant to make closing submissions. These proceedings were adjourned to 1 June 2016.
(14) The Adverse claimant filed a Notice of Motion on 30 May 2016. The Adverse claimant also filed a Bundle of Documents on 31 May 2016. The Bundle of Documents contained, inter alia, a Witness Statement of Jack Johnson, the Adverse claimant; the Proposed Re-Amended Adverse Claim of Jack Johnson and the Proposed Re Re-Amended Abstract of Title of Jack Johnson, the Adverse claimant.
(15) An Amended Notice of Motion was filed on 9 June 2016 praying for an order –
“1. Altering or varying the Order of the Court requiring the Adverse claimant to pay costs of Two thousand dollars ($2,000.00) before the 1st of June, 2012, to an order that the petitioner is entitled to such costs in any event. The principal ground of this application is that the Adverse claimant has not misconducted himself with respect to the adjournment sought.
2. Striking out the Petition in this action and granting the Adverse claimant a certificate of title in respect of the land the subject-matter of this action, and that this action be dismissed pursuant to Order 25, r. 1(4) and Order 18, r. 19 (1)(a)(c) and (d) of the Rules of the Supreme Court, 1978, and under the inherent jurisdiction of the Court on the gerunds that:
a) The petitioner has failed to prosecute this action in accordance with the Rules of the Supreme Court and is guilty of inordinate and inexcusable delay in the prosecution of this action;
b) The inordinate and inexcusable delay has given rise to substantial risk that a fair trial would not be possible and to serious prejudice to the Adverse claimant; and
c) That this action and the petitioner's conduct is an abuse of the process of the Court.
3. That
a) the Adverse claimant be allowed to adduce in evidence in this action his Witness Statement filed herewith.
b) Sidney Dorset be allowed to adduce in evidence his a further Witness Statement to be filed herewith herein after consideration of the contents of the file of the Adverse claimant being held by the Adverse claimant's former attorneys E.P. Toothe and Associate and the attorney appearing on its behalf, Miss Travette Pyfrom.
c) The Adverse claimant be granted leave to amend his Re-Amended Abstract of Tile in the manner and for set out in the proposed Re-re-Amended Abstract of title hereto attached.
d) The Adverse claimant be granted a sufficient adjournment of this action to allow his new attorneys an opportunity to prepare his case, inclusive of preparation of his submission in respect of his application to strike out this action and compelling the Adverse claimant's most recent attorneys to deliver up to his present attorneys his file on this action.
e) The witness/es for the petitioner be recalled for the purpose of being effectively cross-examined by the Adverse claimant's new attorney.
f) The Adverse claimant be granted leave to amend his Amended Adverse Claim in the manner set out in his proposed Re-Amended Adverse Claim found at pages 14 to 16 of the said Witness Statement of the Adverse claimant.
g) In the interest of time and saving costs, the above submissions to strike out be treated as a preliminary submission at the end of the giving of all of the evidence in this action and be ruled upon by the Court in the course of rendering judgment on the cases of the petitioner and Adverse claimant in this action.
h) The said Miss Travette Pyfrom who appeared as counsel in this action on behalf of the Adverse claimant's former attorneys be ordered to deliver up forthwith possession of the Adverse claimant's said file on or in this action.
i) The Adverse claimant be allowed to file additional witness statements within a prescribed time and to have such additional witness produced for cross-examination in the usual way.
j) A date for closing arguments on the parties be set after the parties have given or led their evidence in full.
AND for an order granting the Adverse claimant costs of and occasioned by this application and this action.”
(16) The Notice of Motion was supported by an Affidavit of Jack Donovan Johnson filed 20 June 2016. A Supplemental Witness Statement was filed by Jack Donovan Johnson on 20 June 2016. A Supplemental Affidavit of Sidney Dorsett was filed on 26...
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