The Minister Responsible for Crown Lands v Scott Findeisen & Brandon Findeisen
| Jurisdiction | Bahamas |
| Judge | Sir Michael Barnett, P |
| Judgment Date | 16 November 2022 |
| Neutral Citation | BS 2022 CA 156 |
| Docket Number | SCCivApp No. 79 of 2022 |
| Court | Court of Appeal (Bahamas) |
| Year | 2022 |
In the Matter of All those pieces parcels or lots of land situate at “Signal Point” also known as “Summer Point” on the Island of Rum Cay one of the Islands of the Commonwealth of The Bahamas and designated Lots 2, 3, 5, 9, and 10
And in the Matter of the Quieting Titles Act, 1959
And in the Matter of the Petition of Scott E. Findeisen and Brandon S. Findeisen (as Trustees of the Stephen A. Orlando Revocable Trust)
(as Trustees of the Stephen A. Orlando Recoverable Trust)
BS 2022 CA 156
The Honourable Sir Michael Barnett, P
The Honourable Mr. Justice Isaacs, JA
The Honourable Madam Justice Crane-Scott, JA
SCCivApp No. 79 of 2022
IN THE COURT OF APPEAL
Quieting Titles Appeal — Quieting Petition — Quieting Titles Act, 1959, sections 3 and 7 — Quieting Titles Rules, rule 5 — Certificate of Title — Adverse Claim — Crown Grant — Commutation — Locus Standi — Appellate Court Interference with Trial Judge's Finding of Fact — Accretion of Land — Parens Patriae
The Petitioners/Respondents filed a Quieting Petition in the Supreme Court, seeking an investigation into their title of “all those pieces, parcels or lots of land situate at “Signal Point” also known as “Sumner Point” on Rum Cay designated Lots 2, 3, 5, 9 and 10. The Petitioners/Respondents claimed a documentary title via a Crown Grant and a possessory title via exclusive possession of the property. Two adverse claims were filed: one by the Appellant and a second by another adverse claimant, the latter of which was dismissed.
The judge held that on the balance of probabilities that the Petitioners/Respondents were the documentary owners of the portion of the land designated as Parcel A and that there was no claimant with a better documentary title; the judge did not accept the claim by the Minister that the property acquired by the Petitioners/Respondents was to the south of Parcel A. Regarding a portion of the land referred to as Parcel B, the Appellant claimed that it was not a part of the Crown Grant to the Petitioners/Respondents. The Appellant further claimed that Parcel B was formed by man-made accretion and, as such, belonged to the Crown. The judge found that the Petitioners/Respondents were in exclusive possession of the land for more than 100 years. After considering the evidence of various land surveyors, the judge also found that the land on Parcel B was accreted land by natural accretion and did not belong to the Crown. The judge further held that the accreted land belonged to the Petitioners/Respondents, who were the owners of the adjacent Parcel A. Accordingly, the judge granted the Certificate of Title for all five lots to the Petitioners/Respondents.
The Respondent has appealed the judge's decision.
Held: appeal dismissed. The Appellant has no locus standi to appeal the grant of a certificate of title to which the Appellant does not claim any title. The Quieting Titles Act, 1959 (“the Act”) and the Quieting Titles Rules (“the Rules”) do not contemplate that a person who has no claim to property which is the subject of a quieting action has any standing to file an adverse claim or participate in any manner in the quieting action. Further, there is no requirement in the Act or the Rules that notice of a petition must be served on the Crown. As the Appellant has no claim to the land in Parcel A which is a part of the Crown Grant to the Applicants/Respondents, the Appellant has no standing to appeal the grant of a Certificate of Title to lots which fall into Parcel A. Whether land is accreted land is a question of fact; to whom the accreted land belongs is a question of law. An appellate court should be reluctant to interfere with a trial judge's primary finding of facts, unless the finding of facts are completely unreasonable. Even with respect to questions of fact surrounding expert evidence, it is within the trial judge's province to decide what conclusions to draw, even if the evidence is uncontroverted. Thus, the judge was entitled to weigh the differing expert evidence of various land surveyors and conclude that Parcel B was accreted land formed by natural accretion. This Court cannot say that the finding of the judge that the land in Parcel B was accreted land formed by natural accretion was plainly wrong; as such, this Court will not interfere with the judge's finding of fact.
Finally, there is no basis for setting aside the judge's findings of fact on the possession of the Petitioners/Respondents and their predecessors in title. Whilst a commutation may or may not be a good root of title, a commutation is cogent evidence that the person was in possession of the land the subject of the commutation.
Armbrister v Lightbourn [2012] UKPC 40; mentioned
Bahamasair Holdings Limited v Messier Dowty Inc [2018] UKPC 25; applied
Bannerman Town, Millars and John Millars Association v Eleuthera Properties Ltd [2018] UKPC 27; mentioned
Beulah Rahming v The Mailboat Company Limited SCCivApp & CAIS No. 54 of 2015; applied
Grand Bahama Development Co v Attorney General [1986] BHS J No 125; considered
Timothy Cox Estates Ltd. v. Harris [1982] BHS J. No. 35; considered
Volpi and another v Volpi [2022] EWCA Civ 464; applied
Ms. Kenria Smith for the Appellant
Mr. Timothy Eneas, KC with Mr. Richard Lightbourn for the Petitioners/Respondents
Judgment delivered by the Honourable
. This is an appeal by the Minister Responsible for Crown Lands (“Minister”) against a judgment in a quieting action. The Minister appeals the decision of Charles J (“the judge”) to accede to a petition by the Petitioners/Respondents, Scott Findeisen and Brandon Findeisen for the grant of a Certificate of Title to certain parcels of lands in Rum Cay.
. Rum Cay is situated in the south east of the archipelago. In area, it is less than half of the size of New Providence and has a population of less than 100 persons.
. By a petition dated 23 November 2016, the Petitioners/Respondents sought an investigation into their title of “all those pieces, parcels or lots of land situate at “Signal Point” also known as “Sumner Point” on Rum Cay designated Lots 2, 3, 5, 9 and 10. The Petitioners/Respondents claimed a documentary and possessory title to the property.
. By their Abstract of Title the Petitioners/Respondents claimed a documentary title by virtue of their being the successors in title to William Sumner (“Sumner”) to whom a Crown Grant was given on the 11 December 1806 and by virtue of a conveyance dated 19 June 1860 from the Provost Marshall to Rachel Sumner, the widow of William Sumner and the subsequent conveyances from Rachel Sumner to Lennox Forsyth beginning 11 July 1860.
. The Petitioners/Respondents also claim that they and their predecessors in title have been in exclusive possession of the property since 1847.
. At the time of the trial the Minister and an entity known as Wahoo Foundation were the only adverse claimants. However, Wahoo Foundation's claim was dismissed on the basis that it was simply a licensee of the Crown and could claim no greater interest than the Crown. This effectively left the Minister as the only adverse claimant.
. In its adverse claim, the Minister said:
“Take notice that the PRIME MINISTER of the Commonwealth of the Bahamas as a MINISTER RESPONSIBLE [ sic] CROWN LANDS claims to be beneficial owner to the fee simple to all that piece parcel or lot of land the subject matter of this said Petition by virtue of documentary and possessory title.
The Survey Plan in the Department of Lands and Surveys clearly shows that the subject property is identified as Crown Land.
Therefore the petitioner cannot claim to be in exclusive possession of the same for at least 60 years in order to dispossess the Crown.”
. This adverse claim claimed the entirety of the lots the subject of the petition including the lots on Parcel A, which was the subject of the Crown Grant. It was not limited to that part of the lots situated on Parcel B, the disputed accreted land.
. As to Parcel B, the Minister's position was that the land in question was not part of the 1806 Grant to Sumner. It was either Crown land at the time of the 1806 Grant or that it was land which had accreted over the years and which belonged to the Crown. The Minister's position was summarized by the trial judge in paragraph 130 of her judgment:
“ …the Crown argued that the Petitioners have failed to establish, on a balance of probabilities, that Parcel B was formed by natural accretion. Instead, the Crown alleged that if there were accretion, it was man-made from the excavation of the pond.”
. The judge conducted an investigation and acceded to the petition. The judge found that the Petitioners/Respondents were in exclusive possession of the land for more than 100 years.
. The judge also held that on the balance of probabilities, the Petitioners/Respondents were the documentary owners of the land on Parcel A and that there was no one with a better documentary title. The judge did not accept the claim by the Minister that the property acquired by the Petitioners/Respondents was to the south of Parcel A.
. The judge also held that the land on Parcel B was accreted land by natural accretion and was not man-made accretion. The judge further held that the accreted land belonged to the owners of the adjacent Parcel A and not to the Crown. In the result, the judge granted the Certificate of Title to the Petitioners/Respondents for all five lots.
. The Minister has appealed that decision.
. The grounds of appeal are as follows:
“ 1. The learned judge erred and misdirected herself in fact and in law when she found that William Sumner and his successors established factual possession and the necessary intention to possess...
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