Sargent v Arawak Homes Ltd

JurisdictionBahamas
CourtSupreme Court
JudgeAdderley, J.
Judgment Date20 Jul 2012
Docket NumberCLE/GEN 272 of 2010

Supreme Court

Adderley, J.

CLE/GEN 272 of 2010

Sargent
and
Arawak Homes Limited
Appearances:

Ms Antonia Saunders, Ms Shavanda Humes with her for the plaintiff

Mr. Neville Smith, Mr Keith Bell and Ambrosine Huyler with him for the defendant

Real Property - Title — Good and marketable title — Whether plaintiff was a bona fide purchaser for value without notice.

Adderley, J.
1

The plaintiff claims to be the owner as bone fide purchaser for value without notice of land in respect of which a Certificate of Title formed the root of title at the time of purchase but the Certificate was later set aside on the ground that it was obtained by fraud and therefore void.

2

The court has been asked to decide as a preliminary point whether on the facts of this case the plaintiff could in law be a bone fide purchaser for value without notice.

3

The statement of claim filed 23 September makes the following averments:–

  • “1 the plaintiff was at all material times the owner of all that tract of land located in Nassau Village more accurately described in the conveyance between Horizons Systems Limited to Stephanie O. Sargent, dated the 28th day of December A.D., 1990 (hereinafter called “the said conveyance”).

  • 2. The plaintiff was at all material times a bona fide purchaser for value without notice from Horizon Systems Limited whose title emanated from a Certificate of Title granted by the Supreme Court of The Bahamas.”

She also claims trespass and that the defendant despite timely warning has prohibited her from carrying out her intended development of the land by building and selling house and lot packages. She claims economic loss.

4

The statement of claim seeks the following relief:–

“(1) A Declaration that the plaintiff is and remains the legal and Beneficial owner of all the right, title and interest in:–

“ALL THAT TRACT of land comprising Lots Numbers Forty-three (43) through Eighty-five (85) inclusive of Block Number One Hundred and Thirteen (113) in the Nassau Village Subdivision in the Southern District of the Island of New Providence.”

  • (ii) Damages for trespass;

  • (iii) Cost of the Land;

  • (iv) Loss of Opportunity;

  • (v) Loss of use;

  • (vi) Economic loss;

  • (vii) Mense profits;

  • (viii) An indemnification against all claims arising as a result of lawsuits levied against the plaintiff in respect of pieces of land previously owned by the plaintiff and sold to third parties.

5

The Amended Defence and Counterclaim denies the plaintiff's claim, sets forth its epitome of title, and counterclaims the following:–

  • (i) A declaration that the plaintiff is not the legal and beneficial owner of all the land in the Sir Lynden Estates;

  • (ii) A declaration that the plaintiff is not entitled to sell, occupy or be on any land in Sir Lynden Pindling Estates;

  • (iii) Further and other relief as the Court deems just;…

THE FACTS
6

On 30 November 1990 John Sands obtained a Certificate of Title in Supreme Court Quieting Action No. 7 of 1987.

7

On 6 December 1990 the plaintiff for $12,000.00 purchased a part of the land from Horizon Systems Limited after having had title searches carried out by two independent attorneys who gave opinions approving the title. She then recorded the documents on 23 January 1990 in book 559 at pages 325 to 330.

8

On 8 January 1991 in Action No. 27 of 1991 the defendant filed a writ seeking to set the Certificate of Title aside for fraud and on 15 January 1990 obtained an ex parte injunction against John Sands and his attorneys who they claimed had notice of the fraud to prevent them dealing with and selling the land and then sought to set the Certificate of Title aside for fraud. The Certificate was eventually set aside on 7 November 2003.

THE CASE FOR THE DEFENDANT
9

The case for the defendant goes as follows and I quote from the skeleton arguments:–

  • i. The certificate of title that equates to the plaintiff's root of title was set aside on the basis of fraud which made the said certificate void ab initio notwithstanding the date of the judgment setting aside the certificate-per Lord Denning at page 162 in MacFoy v. United Africa Co. Ltd [1962] A.C. 152

  • ii. The certificate having been void ab initio results in any transfer to a successor in title as an empty transfer because the certificate holder did not have an interest in land to transfer. The case of Horizons Systems Limited v. Arawak Homes Ltd. CLE/gen/155 of 2004 confirmed that Horizon Systems Limited did not acquire any right title or interest in the lands covered by the certificate of title aforementioned, and further that Horizons Systems Limited has never been the owner in fee simple of the land granted in the certificate aforementioned.

  • iii. The plaintiff could not obtain from Horizons Systems what Horizon Systems did not have to give. In action number CLE/gen/155 of 2004, the court notes that the position of a bona fide purchaser under section 27 of the Quieting Titles Act, Chp 393, Statute Laws of The Bahamas, may be different if the said person can establish that he is such a purchaser.

    • 27. If in the course of any proceedings under this Act any person acting either as principal or agent fraudulently, knowingly and with intent to deceive makes or assists or joins in or is privy to the making of any material false statement or representation, or suppresses, withholds or conceals, or assists or joins in or is privy to the suppression, withholding or concealing from the court of any material document, fact or matter of information, any certificate of title obtained by means of such fraud or falsehood shall be null and void except as against a bona fide purchaser for valuable consideration without notice.

    • B. plaintiff Not a Bona Fide Purchaser

  • iv. A bona fide purchaser in the context of this section refers to the purchaser with a direct nexus to the certificate of title. In the instant case the plaintiff does not fall within section 27 of the Quieting Titles Act as she does not primarily rely on the validity of the certificate of title granted to John Sands and later set aside. Rather the plaintiff purports to obtain her interest in the subject land from Horizons Systems Limited which by the judgment in action number CLE/gen/155 of 2004 did not obtain any interest in land and again could not transfer what it did not have to transfer.

  • v. The judgment in action number CLE/gen/155 of 2004 does bind the plaintiff as the plaintiff is a direct successor in title to the plaintiff in the said action and thus a privy to Horizon Systems as described in the Evidence Act Chp 65, Statute Laws of The Bahamas.

  • 121. (1) Every judgment is conclusive proof in all subsequent proceedings between the same parties or their...

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