Wayne W. Allen v Ricardo F. Pratt and Ginn-La West End, Ltd

JurisdictionBahamas
JudgeMr. Justice Milton Evans, JA
Judgment Date25 July 2019
Neutral CitationBS 2019 CA 114
CourtCourt of Appeal (Bahamas)
Docket NumberSCCivApp No. 58 of 2009
Date25 July 2019

IN THE COURT OF APPEAL

Before:

The Honourable Sir Hartman Longley, President

The Honourable Mr. Justice Isaacs, JA

The Honourable Mr. Justice Evans, JA

SCCivApp No. 58 of 2009

Between
Wayne W. Allen
First Appellant

and

Ricardo F. Pratt
Second Appellant
and
Ginn-La West End, Limited
Respondent
APPEARANCES:

First Appellant (Withdrawn)

Second Appellant Pro Se

Mr. Robert Adams, with Ms. Taccara Wright, Counsel for Respondent

Genesis Investment Ltd v Hanley [1979–80] 1 LRB 37 mentioned

Johnson v Exuma Estates Limited [1965–70] 1 LRB 214 considered

Milton Strachan et al v Harcourt Strachan SCCivApp. No. 208 of 2014 Applied

O'Brian Loans Ltd. v Edgecombe [1989] BHS J No. 21 considered

Knowles v Government of the United States of America and another [2007] 1 WLR 47 considered

Civil Appeal — Quieting Titles Act section 27 — Certificate of Title — Locus Standi — Fraud — Setting aside a Certificate of Title for fraud — Court of Appeal Rules

The appellants had sought an order that the Certificate of Title issued to the respondent in proceedings initiated under the Quieting Titles Act, 1959, be set aside on the grounds that; the said Certificate of Title was obtained by fraud and that the respondent was not a person to whom the said Certificate of Title could be issued under the Quieting Titles Act. The learned judge ordered that the appellants Statement of Claim be struck. The appellants now appeal that order on the ground inter alia that the Learned Justice failed to have proper or any regard to the Particulars of Falsehood and Fraud.

Held: appeal allowed; matter sent back to the Supreme Court for trial. Costs to the appellant, both here and below, to be taxed if not agreed.

It is clear from the record that the Learned Judge in the Court below did not give consideration to the allegations of fraud so as to make any determination relative thereto. She limited herself to a determination as to whether the appellants were able to show that they had locus standi. This in my view was an error as it was not consistent with the Court's obligation to be vigilant in preventing its process under the Act from being abused. As is made clear in Strachan's case (above) the primary task to be undertaken by all Courts whenever section 27 is invoked, is to determine whether specific fraudulent acts or omissions have taken place as alleged. The logic of that position is that if a litigant brings evidence before the court and the court is satisfied that there are serious issues of fraud raised, the Court ought not to turn a blind eye to those issues simply because the person who brings that to the attention of the court is not shown to have sufficient locus standi.

It follows that in the absence of this Court being vested with the power by statute in a civil appeal to dismiss the appeal if the court considers that no miscarriage of justice has actually occurred, we cannot make such an order as submitted by Mr. Adams. The facts indicate however that the appellant has now twice been found to have no standing due to a lack of interest in the subject land. Additionally, the Court having investigated his complaints that the Certificate was obtained by fraud and or forgery and found them to be without merit the interest of Justice has been served. In these circumstances he can suffer no prejudice by his appeal being dismissed and if section 13 was applicable to civil appeals I would have no hesitation in dismissing the appeal.

In the circumstances of this case however, we accept the appellant's submission that the learned judge erred in dismissing his action which is the subject of this appeal. As noted earlier Mr. Adams has properly conceded this point. In my view we therefore have no option than to allow the appellant's appeal and refer the matter back to the Supreme Court for trial. In the event the appellant decides to pursue the action before the Supreme Court, that Court will no doubt consider and determine the respondent's assertion that the claim is now res judicata.

Mr. Justice Milton Evans, JA

Delivered by The Honourable

1

By Notice of Motion filed on the 28 May 2019 the second appellant appearing pro se made an application pursuant to Section 10 of the Court of Appeal Act; and or pursuant to Rule 27(1) and or Rule 24(1)(2)(4) and or Rule 21 (a) and or Rule 29(1) (f) and or Rule 24(1) (2) (3) (4) (a) (b) (6) of the Court of Appeal Rules, 2005; and or Order 31A Rule 18(1)(2) (s) of the Rules of the Supreme Court (Amendment) Rules, 2004 FOR AN ORDER:

  • 1. That SCCivApp No.58 of 2009 be restored to the Cause List, and the appeal be heard by the Court of Appeal.

  • 2. That the Appellant be granted Leave to adduce new evidence in support of the Notice of Appeal Motion filed on the 20 th April, 2009.

  • 3. That the Appellant be granted Leave to amend the Notice of Appeal Motion filed on the 20 th April, 2009.

    AND FOR AN ORDER

  • 4. That the purported Certificate of Title dated 26th May, 2006 and the purported Order of the Court dated 18th May, 2006, are forged document(s) that were created in violation of Section 70 of the Penal Code and without the knowledge or consent of Grand Bahama Hotel Company, who dissolved in its country of origin on the 28th April, 2006 and ceased to exist all around the world and was thereafter, non-existent legal entity that had no juristic capacity; and was incapable of authorizing and did not give consent and had no Counsel Attorneys-at-Law to draw up or make the purported Certificate of Title dated 26 th May, 2006 and or the purported Order of the Court; nor file the forged documents in the Supreme Court Registry on 29th May, 2006.

  • 5. That the purported Last Will and Testament of Horatio Nelson Wilchombe dated the 24 th January, 1906 is void for the breach of the Rule against Perpetuities.

  • 6. That the Hon. Madam Justice Jeanne Thompson (ret) and the Supreme Court had no power under the Quieting Titles Act, 1959 to grant a Certificate of Title to Ginn-LA West End Limited, who has admitted that it was not the Petitioner and that it was not an Adverse Claimant and that it was not a party to the Quieting Titles proceedings, and who was not before the Court.

  • 7. That the Respondent pay to the Appellant the costs of and occasioned by this application and the appeal, to be taxed if not agreed, in any event.

    AND FURTHER TAKE NOTICE that the ground(s) of this application are:

    • (i) That the Respondent and or its purported successor in title LRA-OBB, Limited continues to wrongly interfere with the Appellant's quiet use and enjoyment of his land, by falsely claiming to be the owner in fee simple in possession of 179.81 acre and 28.59 acre portion of the John Bootle Tract in reliance on the purported Certificate of Title dated 28th May, 2006, and which at all material times is forgery, in accordance with Section 70 of the Penal Code.

    • (ii) That at the date of his death on the 31st July, 1866, the late George Johnson Bootle was the owner and seised of the fee simple estate in possession of the John Bootle Tract (less and except the 20.0 acre portion he previously sold) which was granted to John Bootle his heirs and assigns by virtue of Crown Grant; and the Appellant has the better documentary title to the tract(s) of land subject matter of the appeal.

    • (iii) That the fee simple estate and no right title nor interest in any portion of the John Bootle Tract did not pass from the late George Johnson Bootle to the late Horatio Nelson Wilchombe by an Indenture of Conveyance nor any other document of title, and there is more than Fifty (50) year break in the purported chain of title, as evidenced by the Amended Abstract of Title of Grand Bahama Hotel Company which was filed in Supreme Court Equity Action No.2005/CLE/qui/00511.

    • (iv) That a Justice of the Supreme Court has no power to create fee simple estate in land, nor in any portion of the John Bootle Tract, under the Quieting Titles Act, 1959.

    • (v) That the devise in the purported Last Will and Testament of Horatio Nelson Wilchombe

      “…that i do give and bequeath to my lawful children ….. my two tracts of land containing 960 acres and 160 acres respectively ….. to be theirs and their heirs forever…” is void on the ground that it offends the Rule against Perpetuities and the purported Last Will fails.

    • (Vi) That the late Horatio Nelson Wilchombe had no fee simple estate and no right title nor interest in any portion of the John Bootle Tract at the date of his death, so he had nothing to devise to his children by his purported Last Will, and his children had nothing to convey to the late George W. Jonas, who is one of the purported predecessors in title of the late Charles Sammons and Grand Bahama Hotel Company (“GB Hotel”) and Ginn-LA West End, Limited (“Ginn”); and the purported lndenture of Conveyance from the late Charles Sammons to GB Hotel dated 14th June, 1968 cannot form good root of title to any portion of the John Bootle Tract.

    • (vii) That Ginn's purported documentary title to the John Bootle Tract is invalid and or no title at all, by virtue of stemming from the purported Last Will of Horatio Nelson Wilchombe, and by virtue of not stemming from the Crown Grant to the late John Bootle and his heirs including the late George Johnson Bootle and the late William Seymour and the late Ruel Pratt and Franklyn J. Pratt.

    • (viii) That Ginn has admitted that it was not the Petitioner and not an Adverse Claimant and not party to the proceedings in Supreme Court Equity Action No.2005/CLE/qui/00511.

Dated: the 28th day of May AD. 2019”

2

The matter came on for hearing before us on the 3 June 2019 and at that hearing Mr. Adams, counsel for the respondents pointed out that there was no need for a restoration based on the order made by this court on 19 June 2012 which simply adjourned the Appeal sine die. As a result we proceeded to hear the substantive appeal as in our...

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