The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The London-based Privy Council has reiterated concerns that the Bahamas’ Quieting Titles Act can be used to steal land, saying it was “no accident” that it has heard numerous title disputes from this nation.

The highest court in the Bahamian judicial system flagged the issue in a December 2012 verdict on a title dispute involving more than 400 acres of land on Cat Island, a case whose participants included the wife of ex-Deputy Prime Minister, Brent Symonette.

Robin MacTaggart-Symonette became involved as the executrix of her mother, Sheila’s, estate. Sheila and her sister, Marion Lightbourn, had attempted on March 15, 1982, to obtain a Certificate of Title to two land parcels on Cat Island via the Quieting Titles Act, claiming ownership via the will of their father, Herbert McKinney, but were challenged by an adverse claimant, Frances Armbrister.

Mrs Armbrister’s claim was inherited by her two sons, Cyril and Anthony, the latter of whom runs a hotel in Cat Island’s Fernandez Bay. The two disputed areas were the southern part of the Freeman Hall estate, containing more than 400 acres, located at Warren’s Harbour on Cat Island’s east coast, and a separate 15-acre tract that was once part of the ‘Village Estate’.

After the initial Supreme Court trial in July 2006, then-Justice Jeanne Thompson found in favour of Mrs MacTaggart-Symonette and her aunt, granting them Certificates of Title for both land parcels. The Court of Appeal, though, partially reversed this, maintaining the ruling on Freeman Hall South but granting the Armbristers title to the 15-acre parcel.

Both Court of Appeal decisions were further appealed to the Privy Council. And it, too, reversed the previous verdict, awarding the Armbristers title certificates for both parcels of land, and throwing out the Quieting Titles Act petition.

In its ruling, the Privy Council said the rulings by the two lower courts on Freeman Hall South risked “a miscarriage of justice”, as neither had properly analysed the evidence before it.

And it added that the Quieting Titles petition was ultimately based on a “dubious possessory title” belonging to a Robin Brownrigg, a man to whom Mr McKinney had lent money. It had been alleged that the loan was secured on Mr Brownrigg’s property - Freeman Hall South.

There is nothing to suggest that Ms Lightbourn, nor Mrs MacTaggart-Symonette or her mother, were attempting to use the Quieting Titles Act to ‘steal’ the land in question. Yet the Privy Council appears to have been concerned, in a general sense, about the potential to abuse this Act.

Acknowledging that the Quieting Titles Act was intended to provide a judicial process for determining land ownership, and resolving disputes, the Privy Council said it took the form of an “inquiry”. Claimants to a particular land parcel petitioned for a Certificate of Title, rivals made adverse claims, and both sides produced evidence for a court to determine who had the best title claim.

“This judicial procedure meets an economic and social need in the Bahamas, where many of the outlying islands were, for much of the Commonwealth’s history, sparsely populated and only sporadically cultivated,” the Privy Council said.

“Much of the land belonged to landlords who were not permanently resident, and travel was slow. Parcels of land often had no clearly defined boundaries based on comprehensive surveys.”

Yet referring to statements by the late former attorney general, Paul Adderley, the Privy Council added: “

While the 1959 Act meets an economic and social need, there has also been a warning from a lecturer, familiar with the 1959 Act both as a legislator and as a practising member of the Bar, that bench and bar must be vigilant to prevent the statutory procedure being abused by ‘land thieves’.

“It is no accident that the Judicial Committee has, over the years, heard many appeals raising questions of title to land in the Bahamas.”

The Privy Council’s concerns are well-founded. The Tribune has reported on, and been told of, numerous occasions where unscrupulous attorneys and developers have used the Quieting Titles Act to literally ‘steal’ land out from under existing owners.

A particularly prominent case involves the area just south of the Charles W. Saunders Highway, near Nassau Village/Pinewood Gardens. The Supreme Court ruled that a group of ‘developers’ used the Quieting Titles Act to obtain a title certificate for the land via ‘fraud’, but only after numerous lots had been sold to unsuspecting Bahamians. It has resulted in numerous disputes involving some of those owners and Arawak Homes.

Back to the Cat Island case, the Privy Council traced the origins of the dispute to an 1895 decision by Cyril and Anthony’s grandfather, William, to convey almost all the land he owned on Cat Island - some 3,016 acres - to The Bahama (Inagua) Sisal Company for 1,885 UK pounds sterling.

Suggesting that the Armbrister family “may have had ample reason to regret” that decision, the Privy Council said the sisal company - for which Mr Brownrigg, the source of the Quieting Titles petition, was a manager - failed.

The Armbristers had alleged that upon the company’s dissolution, Freeman Hall South should have reverted automatically to their father as the grantor under the 1895 conveyance. The

Lightbourn/MacTaggart side challenged this on the basis that the ‘doctrine of reverter’ did not apply in the Bahamas, and that title to the property should have vested in a mortgagee who had loaned money to the sisal company