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By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A Supreme Court judge says it is “difficult to digest” that the Prime Minister’s Office would assert a 15-acre Rum Cay land parcel was Crown Land when this totally contradicted evidence from the Government’s own surveyors.

Justice Indra Charles, in a lengthy April 20, 2022, verdict, said the Government’s stance - first asserted under the last Ingraham administration - had “no evidence” to back it and was contrary to multiple findings by Department of Lands and Survey personnel who confirmed the tract had “accreted” over the years as a result of the sea receding.

Rejecting evidence given by former acting surveyor general, Thomas Ferguson, in support of the Government’s claim, she instead granted a certificate of title to trustees representing the late purchaser who had bought five lots from Sumner Point Marina - three of which lie on the disputed 15-acre tract.

And, in a verdict which paves the way for Sumner Point’s developer to revive what is arguably Rum Cay’s prime economic asset after a decade-long standstill, Justice Charles rejected all claims thrown at the trustees by the Government. Dismissing its allegation that the necessary International Persons Landholding Act approvals had not been obtained, she also found that it had accepted real property tax payments for the land despite claiming it for the Crown.

The trustees for the late Stephen Orlando, Scott and Brandon Findeisen, initiated a Quieting Titles action in November 2016 to confirm ownership of the lots on the 15.14-acre parcel in a move that drew out several rival claims, including that of the Government. The latter’s was the last remaining one to defeat in the hearing before Justice Charles.

The Government initially also challenged the 80 acres held by Sumner Point Properties, the developer controlled by Bobby Little, and upon which the other two of Orlando’s lots lie. Justice Charles rejected this after Mr Ferguson contradicted himself under cross-examination, despite first “forcefully” asserting that there was a “significant variance” between the property subject to the initial 1806 Crown grant and what was later “commuted” to William Sumner.

“The Crown objected to Sumner Point Properties being the owner at the time they sold to Stephen Orlando,” Justice Charles said of the 80-acre parcel. “However, I agree with [Timothy] Eneas QC that the documents reveal that Sumner Point Properties owned the property at the time they sold to the petitioners for valuable consideration.” 

Having settled the 80-acre parcel’s ownership in favour of Mr Little and the Orlando trustees, Justice Charles moved on to the 15.14-acre tract. Kenrea Smith of the Attorney General’s Office, representing the minister for Crown Lands, sought to argue that the sale to Orlando was invalid because Sumner Point Properties had never obtained International Persons Landholding Act approval for its own acquisition of the property in 1968.

This argument, though, was quickly dismissed by the judge on the basis that there were no restrictions on foreigners acquiring Bahamian real estate in 1968. Any purchases that existed prior to the Immovable Property (Acquisition by Foreign Persons) Act 1981 coming into effect were upheld and grandfathered into the new law, and there was nothing in its replacement - the International Persons Landholding Act 1993 - requiring Sumner Point to obtain a permit.

“The International Persons Landholding Act 1993 could not, and did not, affect the title to the 80-acre tract which was lawfully acquired and held by Sumner Point Properties at the time that Act came into force,” Justice Charles wrote. “The argument by the Crown that Sumner Point Properties required the permission of the Investment Board is groundless.”

She also found that the 15 acres had developed through natural accretion, as affirmed in a 1977 survey by Leonard Chee-A-Tow, a surveyor, who calculated the extent of Sumner Point’s property to be 95.809 acres when the two parcels - 80 acres and 15.14 acres - were combined. He confirmed this in 1996 via a letter to then deputy director at the Department of Lands and Surveys, Tex Turnquest.

This was backed by an August 22, 1996, letter from Loftus Butler, then-surveyor general to the Department of Legal Affairs, informing that “it can only be reasonably concluded that there has been an accretion of land to the south-west of the sea by 15.143 acres” and that this now forms part of Sumner Point’s property.

Moving ahead to 2008, Montana Holdings, the developer headed by John Mittens, was informed by the then-acting surveyor general when it sought to acquire Sumner Point from Mr Little that “the parcel of land (15.14 acres) adjacent to the 80 acres which was originally granted to William Sumner is considered a part of that land and not Crown property”.

This position was reiterated to the permanent secretary in the Prime Minister’s Office one year later on December 29, 2009. Yet Audley Greaves, in an August 16, 2010, memo told the director of lands and surveys that the minister for Crown Lands (Hubert Ingraham) took the view that land accreted from the sea was government-owned and Sumner Point could not lay claim to its ownership. The memo added that Sumner Point Properties would have to buy it at “market price”.

Mr Eneas, representing the Orlando trustees, argued that the documentary evidence showed the Government’s alleged ownership claim “is the result of political decisions or agendas and not based on any facts or scientific evidence”. This was a position Justice Charles agreed with.

“There is a wealth of documentary evidence from as early as 1996 where highly qualified surveyors in the Department of Lands and Surveys had expressed that the 15-acre tract (Parcel B) was accreted land,” she ruled. “That was the consensus. It was not until 2008, after the department made it clear that the 15-acre tract was part of the William Sumner grant and not Crown land that the Office of the Prime Minister arrived at a contrary position with really no evidence.

“This is difficult to digest, especially having regard to the fact that the opinion was expressed by several highly-qualified surveyors, who had no interest in the land or no axe to grind.” No steps were taken by the Government to challenge Sumner Point Properties’ ownership prior to 1994, when it began to develop the disputed property by dividing it into lots to sell to real estate buyers. Nor did it inform the late Mr Orlando of its interest when he acquired his lots.

“Instead of advising Mr Orlando of the Crown’s position regarding the ownership of Parcel B, a certificate of registration under the International Persons Landholding Act was issued to Mr Orlando to acquire Lot No. 2 on February 3, 1995. Similarly, the Investment Board issued a permit for the acquisition of Lots 3, 9 and 10 on or about 1998, and Lot 5 on 14 November, 2007,” Justice Charles found.

“Additionally, the petitioners have paid - and the Government of The Bahamas has received - real property taxes in connection with each of the lots. In light of the foregoing, the ptitioners argued that it would be inequitable for the Crown after having approved the transactions for the acquisition of the lots, and after having collected real property taxes from the petitioners, to now seek to assert an interest in the lots to the detriment of the petitioners.

“For this reason, the petitioners argued that the Crown is now estopped from asserting or enforcing any title to any portion of the lots. I agree that the Crown is estopped from asserting its strict legal rights to ownership having regard to its conduct during the period 1977 to the commencement of these proceedings.”