The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Water & Sewerage Corporation has been ordered to pay damages for trespass after it installed key network infrastructure for supplying Mangrove Cay on property which it did not own.

The Court of Appeal, in a unanimous verdict that overturned the initial Supreme Court ruling, said the loss-making water utility must pay extra monetary damages in return for not facing "a mandatory injunction to forthwith remove the water tank and related apparatus" from the Andros property owned by Carla Braynen-Turnquest.

This penalty was imposed because the Court of Appeal recognised the hardship that could befall local residents if the Water & Sewerage Corporation was ordered to vacate, since its trespassing equipment "is also providing an essential service (water) to Mangrove Cay".

Appeal justice Indra Charles, in a 28-page written ruling, did not specify the amount of damages to be awarded Ms Braynen-Turnquest and instead ordered that this be determined by the Supreme Court registrar. Besides declaring that the Water & Sewerage Corporation "has no right, title or interest", or right to occupy, the disputed property, it must pay damages "for each year of" its "unlawful use and occupation".

That time period dates back at least 14 years, as the Court of Appeal judgment noted that Ms Braynen-Turnquest first became aware of the Water & Sewerage Corporation's presence in 2009 when she inherited the property from her deceased father, Carl A. Braynen. However, the state-owned water supplier had previously provided evidence to the Supreme Court showing its tanks had occupied the site since 1983.

Ms Braynen-Turnquest had sought $1.227m in damages at the Supreme Court level, but Justice Diane Stewart, in a December 2, 2022, verdict found that the Water & Sewerage Corporation had established possessory title to the land. She also ruled that Ms Braynen-Turnquest did not have documentary title to the property given the multiple “inaccuracies” in the paper trail.

However, the Court of Appeal overturned this verdict, finding that Ms Braynen-Turnquest had been held "to too high a standard". The Supreme Court's determination that she had to prove good and marketable title to the land was unnecessary in an action for trespass, as "her documentary title is superior to the respondent's alleged possessory title".

Detailing the background to the dispute, the Court of Appeal said Ms Braynen-Turnquest's father had told her he "owned the said acreage which he wanted to develop. Before they could visit the land, Carl died.

"After her father’s death, the appellant, through her company Mangrove Properties Ltd, hired a land surveyor, Emile Ledee, and his company Bahama Geomatics between the years 2009 to 2011 to conduct a survey of the property," Justice Indra Charles wrote.

"Mr Ledee prepared a survey plan and registered the plan with the Department of Lands and Surveys as Plan 600 AN. Its accuracy was confirmed by the learned judge. Mr Ledee advised the appellant that during his surveying of the property he discovered the presence of the respondent’s water holding tanks, pipes, fencing and related apparatus which occupied 15,192 square feet of the property.

"The respondent had also created an access road known as 'Wellfield Road' on the property for the purpose of ingress and egress to and from the tanks." This sparked Ms Braynen-Turnquest's complaint over the Water & Sewerage Corporation's alleged "unauthorised use" of, and presence on, her land, and triggered a more than six-year back and forth between the two sides in an ultimately futile effort at resolution.

Ms Braynen-Turnquest first wrote to then-Water & Sewerage Corporation general manager, Glen Laville, on November 6, 2012, to assert her ownership and demand compensation for trespass and unauthorised use of her property. She also "offered to lease or sell a portion of the property to the respondent so that their operations may continue uninterrupted".

Mr Laville responded by saying the Water & Sewerage Corporation would need time to investigate the land's title and, after a further exchange of correspondence in early 2013, "there was a long hiatus" of just over three years before contacts resumed.

Mr Laville, via an April 22, 2016, letter confirmed that the utility was occupying 15,200 square feet, or just over one-third of an acre, but traced its title back to a Crown grant. He also demanded that Ms Braynen-Turnquest provide proof of ownership.

"After receiving offers from the respondent, and having the property appraised at $44,000, the appellant offered by letter dated November 15, 2017, to lease the occupied portion of the property to the respondent for $4,000 per month and to accept mesne profits for the past unauthorised occupancy and usage at $4,000 monthly by a lump sum payment," the Court of Appeal added.

The Water & Sewerage Corporation then invited Ms Braynen-Turnquest to submit an invoice for “partial settlement of claim”, and paid $20,000 via a May 25, 2018, cheque. However, Dywan Rodgers, the Meridian Law Chambers attorney acting for the Water & Sewerage Corporation, then said his law firm had conducted a title search and there was nothing to prove her ownership.

He demanded repayment of the $20,000 cheque, triggering the legal dispute that the Bahamian judicial system has to resolve. The Court of Appeal noted that, in a trespass claim, the plaintiff only has to show it has a better and stronger title to the disputed property than the defendant.

And it ruled the Supreme Court was mistaken to find Ms Braynen-Turnquest had to "prove a good and marketable documentary title" under the Conveyancing and Law of Property Act, finding this wholly unnecessary to resolve a trespass claim.

"What the respondent [Water & Sewerage Corporation] alleges is that it has a possessory title having been on the property since 1978, and has occupied it undisturbed, visibly and openly," appeal justice Charles wrote. "In our judgment, and based on sound legal principles, any documentary title put forth by the appellant (even with defects) was a better title than the respondent’s title.

"In our opinion, the learned judge erred in law by holding the appellant to too high a standard under section 3(4) of the Conveyancing and Law of Property Act in circumstances where there is no such requirement on an appellant relative to a claim in trespass since her documentary title is superior to the respondent’s alleged possessory title." And "it matters not that her title may not have been perfect.

The Court of Appeal also found that the Supreme Court was mistaken in relying on a 1983 Ministry of Works memorandum as the basis for the Water & Sewerage Corporation's possessory title. "The respondent’s constant offers to purchase or lease the property (pending verification of the true owner), and the payment of the $20,000, could never be indicative of an intention by the respondent to exclude the true owner and the world from the property," it added.

"The respondent was attempting to confirm who the owner of the property was so that it could rightfully pay the owner for its use and was not asserting ownership or title to the property. As we see it, the respondent lacked the necessary intention to possess the property in its own name and on its own behalf to exclude the world at large, including the owner with the paper title.

"Thus, the finding by the learned judge that the respondent had a possessory title (if she so found) is plainly wrong."