The Tribune

By NEIL HARTNELL Tribune Business Editor ARAWAK Homes has won a Court of Appeal ruling that is set to further impact potentially hundreds of landowners in the Sir Lynden Pindling Estates area, the developer claiming to have lost $1.11 million in gross profits due to this particular case of "trespass". The verdict, which rejected two appeals brought by Dennis Dean, head of the Nassau Village and Sea Breeze Property Owners Association, further affirmed that all property owners whose land title roots are derived from the late Thaddeus Johnson do not have good rights to their property, the latter having obtained his Certificate of Title via fraud. The latest ruling in Arawak Homes' favour, in what has been a long-running series of legal battles over who has best title to land in the Sir Lynden Pindling Estates/Nassau Village area, dealt with a bitter dispute over property upon which Mr Dean and his wife were alleged to have constructed $1.168 million worth of property. At one point, construction workmen hired by the Deans were said to have "doused gasoline" over an Arawak Homes' agent. The only bit of good news for the Deans was that the Court of Appeal reduced the damages awarded against them, and in Arawak Homes' favour, from $459,998 to $293,499. In its verdict, the Court of Appeal said the key question to determine in the appeals against separate rulings by then-Senior Justice Anita Allen and the Chief Justice, Sir Michael Barnett, was who had the better title to the disputed land: Arawak Homes, or the Deans. The Deans, the verdict said, relied in one case on a 1998 conveyance, and in the second, a 1999 conveyance, from Thaddeus Johnson's widow, Mergil Johnson. In both cases, their title roots lay in a Certificate of Title granted in 1982 to Thaddeus Johnson via a Quieting Titles action, the actual land grant coming in 1985. However, a 1985 Supreme Court ruling found that Thaddeus Johnson's Certificate of Title had "been procured falsely", meaning it was obtained by fraud. "We can only, therefore, conclude that the appellants' [the Deans] root of title, based as it was on the flawed and purported title flowing from Mr Johnson, was a serious and debilitating chink in their armour against [Arawak Homes] claim for trespass against them," the Court of Appeal found. Although the Supreme Court had not set aside the Thaddeus Johnson Certificate of Title when it made its 1985 ruling, Appeal Justices Blackman, John and Conteh said this was "no answer" to Arawak Homes' "claim for trespass" against the Deans. "There was no valid title flowing from that defective title which could avail Mr Johnson and his succors in title (including, in particular, the appellants in relation to the land," the Court of Appeal found. "There was simply no title in him to pass on........ "Mr Johnson's Certificate of Title, from whence the appellants derived their own title, had been found by the courts to have been procured by fraud... It was incurably bad." And the 1985 Supreme Court case that found Mr Johnson's title was obtained by fraud, by virtue of being held in the court registry as a public record, negated any defence mounted by the Deans to suggest they were "bona fide purchasers for valuable consideration without notice". Given that both Arawak Homes and the Deans relied on documentary title, the Court of Appeal said the case boiled down to which side had the stronger claim. Unlike the Deans, whose title had its roots in the Certificate "fraudulently obtained" by Thaddeus Johnson, Arawak Homes' title lay in the equity of redemption assignment made between itself and Bahamian accountant, George Culmer, on behalf o the liquidated Pinewoods Garden on March 8, 1985. Dismissing any notion that the Deans could claim title by adverse possession, the Court of Appeal, in backing the Supreme Court verdict, said: "We must accordingly conclude, ineluctably, that the respondent [Arawak Homes] has a better documentary title to the land, which could not be successfully assailed by the appellants." The other question for the Court of Appeal to determine was whether the Deans had acquired a "proprietary interest" in the disputed land through the buildings they had constructed on it. One set of buildings was said to be valued at $350,000; a nursery and pre-school at $217,800; and three four-plex units and a one-bedroom apartment were said to be worth $600,000. The Deans' attorney, Seabreeze MP and FNM chairman, Carl Bethel, argued that Arawak Homes would be "unjustly enriched" were it to take over the land without any compensation paid to his clients. This, though, was given short shrift by the Court of Appeal, which found that the Deans were not allowed by Arawak Homes to continue building on the latter's land under the mistaken assumption it was theirs. And, given that the Deans relied on the flawed Thaddeus Johnson title, the Court of Appeal said: "It would beggar belief to say that the appellant did not know that land did not belong to the respondent. "[Arawak Homes] was far from quiescent when it discovered the appellant's activities on its land. Its agent confronted the appellant's workers and queried their right to be on the land. The agent was in turn obstructed and manhandled by the appellant's workmen by dousing gasoline on him at one stage." The only modest bit of good news for the Deans was the reduction in damages they were ordered to pay to Arawak Homes. The Supreme Court had awarded the developer 5 per cent interest over an eight-year period on $1.11 million, the latter "representing gross profit on the sale of 21 lots of land" Arawak Homes would have realised, were it not for their occupation by the Deans. That totalled $443,998, and there were two further awards of $8,000 each relating to two extra man holes and the cost of moving two lamp poles placed by the Deans. The Court of Appeal, though, reduced the eight-year period to five years. "If the action had been tried earlier, as ordered on October 1, 2003, by this court 'as a matter of urgency', it would have been disposed of, at most, within five years," the judgment said. "This we think is a reasonable period for the award of interest in the circumstances. But for some inexplicable reason the case dragged on for eight years. We don't think it is fair to visit the whole time it took to determine the case on the appellant."