By NEIL HARTNELL
Tribune Business Editor
A foreign investor paid more than 20 years worth of real property taxes on Eleuthera property that the Government approved it to acquire only to discover that it is not the land’s rightful owner.
The Court of Appeal last Thursday upheld an earlier verdict by Sir Ian Winder, the chief justice, that the true owner of a near-four acre site at Alabaster Bay on Eleuthera’s Atlantic shoreline is not F.A.R Ltd and its shareholders but the very entity to which it has been paying the same taxes to since 2002 - the Bahamian government.
And, in what will likely add insult to injury from F.A.R’s perspective, the Court of Appeal - in a unanimous verdict written by appeal justice Bernard Turner - dismissed its request to order the Department of Inland Revenue to repay all those property taxes as a “side swipe” because the issue was never mentioned in its pleadings or appeal.
The Court of Appeal’s verdict, coupled with Sir Ian’s original Supreme Court judgment, reveals that between April 13, 2000, and May 3, 2002, F.A.R and its investors acquired seven lots in an area known as Carlos Village. Six were purchased directly from Carlos Santana - not the Grammy-award winning artist, but The Bahamas’ very own ‘Carlos Santana’.
That is Rupert Alvin ‘Carlos Santana’ Bethel, who an Internet search shows passed away in late 2023 at the age of 76 after the Supreme Court trial had taken place. Both judgments do not explain why no title search appears to have been conducted on F.A.R’s behalf by Bahamian attorneys to verify whether its ownership was valid, but an Investments Board permit approving the purchase was issued on February 11, 2004.
F.A.R Ltd and its president, Peter Rogers, then sought to obtain a certificate of title that would validate their ownership via the Quieting Titles Act. This requires the person seeking the title certificate to advertise its interest to all potential rival claimants so that they can make their own case to the Supreme Court, and the latter can determine who is the rightful owner with the strongest claim.
The quieting petition was filed on September 28, 2010, and there is no explanation why it took 12-and-a-half years before it was heard as the first date before Sir Ian was April 18, 2023. And it was not until January 11, 2022 - almost 12 years later - that the Government, via the minister responsible for Crown Land, filed an adverse claim asserting it was the rightful owner of the land purchased by F.A.R Ltd.
While the foreign investors’ claim to the land derived from purported ownership by Noah Bethel and his heirs, including Rupert Alvin Bethel, the Government alleged that the 3.886 acres covered by the seven lots was part of a still-existing Crown Land tract located between Governor’s Harbour and James Cistern, some two miles south of the latter on the north-eastern side of the highway.
Brian Bynoe, the surveyor-general, gave evidence that the property from which Rupert Alvin Bethel claimed to derive title - the William Johnson Crown grant - was 10.5 miles south of the lots sold to, and purchased by F.A.R Ltd. Sir Ian, accepting his evidence, found for the Government and against F.A.R in a verdict that has now been upheld by the Court of Appeal.
F.A.R Ltd, in its appeal, advanced an “unjust enrichment” argument against the Government in a bid to overturn the original verdict. It argued that Sir Ian “failed to give any or sufficient weight” to the fact it had paid real property taxes for 20 years and obtained Bahamas Investment Authority (BIA) approval for the purchase, creating “a significant financial commitment and ongoing investment in the subject properties”.
As a result, the foreign investor asserted that the Government “has been unjustly enriched by receiving payments of real property tax on the land and that they should be equitably estopped from asserting a claim to the land as an adverse claimant”.
F.A.R’s position was “it would be unfair of the Crown to now claim that it has a better title than the petitioners when they expressly permitted to petitioners to buy the land by granting them permission to purchase the property”. However, the Court of Appeal vehemently disagreed.
“In the instant case, the title was anything but simple. In the first place, there was no issue of the Crown giving permission to purchase property (or to pay real property taxes on) which on its face had anything to do with the Crown,” the Court of Appeal asserted in its verdict.
“As the conveyances of the seven pieces of property make clear, the root of title to this land ran to the landholdings of one Noah Bethel, whose will is recited in each of the conveyances. On its face, there is no reference to land that the Crown would have had an interest in.
“Further, as indicated in the evidence of the surveyor general, the land that is referenced in the abstract of title (the grant of Joseph Bethel) is over ten miles south of the land in question. The same legal description of the land in the abstract of title is the same legal description of the land in each of the seven conveyances which would have been approved by the Investment Board, and on which the Department of Inland Revenue would have collected real property tax,” it added.
“There is nothing in that legal description to put the Board or the Department on notice that the land may be Crown Land.... There is no legal requirement for either the Board or the Department to confirm the ownership of the land which a non-Bahamian person may apply to the Board for permission to purchase, with a concomitant requirement to pay real property tax, [which] has been identified.
“As the learned Chief Justice in the instant matter had indicated, with which I agree, the Department of Inland Revenue in The Bahamas does not determine who owns land in The Bahamas. Its designation of property as being owner-occupied, and its issuance of a Real Property Tax Certificate, does not imbue that property with legal status of the words used,” the Court of Appeal continued.
“A tax certificate is not a title certificate to land in The Bahamas, and the Appellant’s submission that such certificates are indicative of exclusive possession and ownership are misconceived. The same would apply to investment approval by the Investment Board.”
Dismissing F.A.R’s appeal “in its entirety”, the Court of Appeal added: “Although not a part of the pleadings, that is to say, appearing nowhere within the petition, or even constituting any ground of appeal, the appellant in their submissions assert that if the court does not accede to its grounds of appeal and prayer for relief, that the court ought to order the Inland Revenue Department to repay the real property tax paid over to that Department by the appellant.
“This is an appeal against the refusal of the court below to issue a certificate of title pursuant to the Quieting Title Act. No alternate relief was sought, even if it could be sought as a part of the investigation in the court below, and does not constitute anything which can be considered by this court, being raised as it is by a mere side wind in the submissions.” All other grounds of appeal were also dismissed.
Comments
moncurcool 3 weeks, 1 day ago
This cannot be real. The government takes the taxes from the people on the land, acknowledging the people own the land, and then don't want to give the money back. And further win the case. Really?
joeblow 3 weeks, 1 day ago
... wasn't Winder involved in the Baha Mar/ Sarkis debacle too?
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