The Petition of Wilfred Butler, Jr., Kipling Butler, Don Butler, and Perez Butler

JurisdictionBahamas
CourtSupreme Court (Bahamas)
JudgeMadam Justice G. Diane Stewart
Judgment Date09 November 2022
Docket Number2018/CLE/gen/001148
In the Matter of All that piece parcel or lot of land comprising 8,636 square feet and situate at Peter Street off East Street in the Eastern District of the Island of New Providence, one of the Islands of the Commonwealth of the Bahamas which said piece parcel or lot of land is bounded on the North by a reservation known as Peter Street and running thereon 66.65 feet, on the west by a property now or formerly the property of the estate of Brenhilda Johnson and running thereon 81.85 feet, on the East by a Road Reservation known as East Street and running thereon 55.57 feet and South by a property said to be property of the Church of God of Prophecy and running thereon 104.97 feet.

and

In the Matter of the Quieting Titles Act, 1959

and

In the Matter of the Petition of Wilfred Butler, Jr., Kipling Butler, Don Butler, and Perez Butler

BS 2022 SC 139

Before:

The Hon. Madam Justice G. Diane Stewart

2018/CLE/gen/001148

IN THE SUPREME COURT

Common Law & Equity Division

Appearances:

Mrs. Bridget Francis-Butler for the Petitioners

Mrs. Tanya Wright for the Adverse Claimant

1

By a Petition filed 5 th October 2018, the Petitioners, Wilfred Butler Jr., Kipling Butler, Don Butler and Perez Butler (the “Petitioners”) prayed that their title to their family property on East Street be investigated pursuant to the Quieting Titles Act, 1959 (the “Act”) and that a Certificate of Title with respect to the property be granted to them. The property is described as:-

“ALL THAT piece parcel or lot of land situate in the vicinity of Peter Street off East Street in the Eastern District of the island of New Providence, one of the Islands of the Commonwealth of the Bahamas, bounded on the North by a road reservation known as Peter Street and running thereon 66.65 feet, on the West by a property now or formerly owned by Branhilda Johnson and running thereon 81.85 feet East by a road reservation known as East Street and running thereon 55.57 feet and South by a property said to be the property of the Church of God of Prophecy and running thereon 104.97 feet” (the “Property”)

2

The Petition was supported by the Affidavits of Wilfred Butler, Dorothy Godet and Inell Williams all filed on 5 th October 2018.

3

The Petitioners filed an Abstract of Title on 5 th October 2018 which stated:-

No.

Document

1.

21 st July 2016 — Birth Certificate — Herman Butler and Salmonia Bethel aka Selvenia (Sally Graves) gave birth to Wilfred Leroy Butler (deceased)

2.

7 th February 1935 — Conveyance between Thaddeus Augustus Toote and Selvenia (Sally) Graves who became seised of ALL THAT piece parcel or lot of land situate Peter Street and East Street (the subject property)

3.

1945 — Sometime in the said year the said Wilfred Butler constructed a wooden house on the subject property and resided therein along with a building to the eastern portion of the subject property for the operation of a tailor shop. Selvenia (Sally) Graves operated a convenience store selling fruits, vegetables, homemade breads and pastries

4.

2 nd July 1947 — Wilfred Leroy Butler Sr. married Alfreda Butler nee Woolridge producing four children:-

1. Wilfred Leroy Jr. — Born 10 th April 1948

2. Kipling Butler — Born 1 st August 1952

3. Don Butler — Bom 17 th October

4. Perez Butler — Born 12 th July 1968

5.

11 th June 1977 — Wilfred Leroy Butler Sr. died survived by his wife, Alfreda Butler and four sons who remained in undisturbed possession and occupation of the Property. They repaired and maintained the house situate thereon, planted various flowing plants throughout the property and operated a welding business thereon

6.

13 th February 1979 — Last Will and Testament of Selvenia (Sally) Greaves of Flint Street off East St.

7.

15 th June 1980 — Selvenia (Sally) Graves died

8.

17 th December 1980 — Probate granted to Cynthia Louise Ferguson in the Estate of Selvenia (Sally) Graves

Alfreda Butler and two sons namely Don Butler and Perez Butler continued to reside in the wooden house built by the late Wilfred Leroy Butler Sr. and continued to maintain and repair it.

9.

17 th June 2018 — Alfreda Butler nee Woolridge died possessed of the Property survived by the Petitioners who continue to occupy and maintain the land in undisturbed possession.

4

Notice of the Petition was advertised and served on the relevant parties in conformity with the Order of this Court made 20 th November 2018 and filed 3 rd December 2018. This was confirmed by the Affidavit of Compliance filed 1 st March 2019.

5

An adverse claim was filed by Michelle Hall on 5 th March 2019 (the “Adverse Claimant”) and the Affidavit of Michelle Hall and Cynthia Louise Ferguson were filed on even date in support of her claim.

The Petitioners' Case
6

Wilfred Leroy Butler Jr., the eldest child of the late Wilfred Butler Sr. (“Wilfred Sr.”) and Alfreda Butler (“Alfreda”), born on 10 th April 1948 (“Wilfred Jr.”) stated that his parents had remained in exclusive possession and occupation of the Property in excess of seventy years. At the time he gave his evidence he was seventy years of age and he claimed that he and the other Petitioners continued to occupy the Property along with his three brothers Kipling, Don and Perez after the death of Wilfred Sr. in 1977 and Alfreda in 2018. While they had remarried and physically moved off of the Property, they would still maintain the home and yard and would pay the utility bills.

7

Wilfred Sr. was the only child born to the late Saivenia (Sally) Graves (“Sally”) on 21 st July 1916. Sally was a disciplinarian and often took in many children whom she assisted including Cynthia Ferguson (“Cynthia”). When Cynthia married Huria Ferguson, his parents had hosted their wedding reception at the Property. Sometime between 1945 and 1946 Wilfred Sr., with the agreement of Sally, constructed a small wooden house on the Property where he resided. He also operated a tailor shop on the southeastern portion of the Property whilst Sally operated a petty shop therein. Sally never lived in the house on the Property as she lived at her home on Flint Street off of East Street.

8

His brother Kipling operated a welding business from the Property for over thirty-five years until his accident in May 2018. His brother Don operated a dog business on the Property in excess of thirty years without interruption. Cynthia never mentioned the purported Last Will and Testament of Sally (“Sally's Last Will and Testament”) to them.

9

On or about 1 st April 2008, the Adverse Claimant telephoned him to query whether she could have the Property appraised on the basis that “mama” had left the Property to her. He informed her that he was not aware of that and she denied having the conversation with him and he never heard further from her or Cynthia. On 19 th June 2018, two days after their mother's death, Cynthia advised Kipling's wife Cora by telephone that the Property belonged to the Adverse Claimant.

10

On or about 7 th November 2018, the Adverse Claimant called him to set up a meeting with her and a third party. When he asked her who the third party was and where the meeting would be located, the Adverse Claimant stated that she did not know and he did not engage in any further communication with her.

11

On 14 th November 2018, the Adverse Claimant served him with a letter which gave him notice to remove his valuables from the Property and not to re-enter. She did not serve the remaining Petitioners with letters but wrongfully entered the Property sometime around the 6 th December 2018 and attempted to change the locks and a week later, attempted to disconnect the electricity supply.

12

During cross-examination Wilfred testified that the wooden home remained on the Property. He stopped living on the Property in 1980 when he got married. Kipling stopped residing there before 1980 and Don moved off of the Property in the 1990's. Cynthia lived with Sally until she got married and they considered her to be a part of their family. He could not say if Sally conveyed the Property to his father during his lifetime but there was no conveyance evidencing this.

13

Since 1980 he would always spend the Christmas holidays at his home on Soldier Road and his brothers would also attend. He celebrated his birthdays at his home or at his mother's home. The last celebration they had at the Property was a week prior to the hearing in January of 2020. Prior to that they would meet there from time to time. From 1990 onwards the electricity bill for the home on the Property was in his name as he provided identification to have it connected as such, which was all they required from him.

14

While Kipling operated his welding business on the Property both his father and mother were still alive. He saw Sally's Last Will and Testament and thought that it was strange that he was not made a beneficiary. He disagreed that since he was not a beneficiary thereunder that there was no obligation on anyone to inform him of its contents. In 2008 he had questioned Kipling on whether he knew of Sally's Last Will and Testament and the devise to him. Kipling did not participate in the proceedings because he had a medical condition which resulted after his accident. It was correct to say that other than Kipling, the remaining Petitioners were excluded from Sally's Last Will and Testament.

15

During re-examination, Wilfred Jr. stated that despite his not physically residing on the Property he would attend it on a daily basis. He and his brothers took care of the Property as he would open the house, mop it, take care of landscaping and paid the utilities collectively. He referred to an electricity bill dated 19 th August 1993 which was the date he took over payment. The last payment he made was a cash payment in 2019.

16

While Christmas dinners were held at his home on Soldier Road they would gather at the home on the Property...

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