Bannerman Town, Millars and John Millars Eleuthera Association v Eleuthera Properties Ltd

JurisdictionUK Non-devolved
JudgeLord Briggs
Judgment Date15 October 2018
Neutral Citation[2018] UKPC 27
CourtPrivy Council
Docket NumberPrivy Council Appeal Nos 0068 of 2017
Date15 October 2018
Bannerman Town, Millars and John Millars Eleuthera Association
(Appellant)
and
Eleuthera Properties Ltd
(Respondent) (Bahamas)

[2018] UKPC 27

before

Lord Sumption

Lord Briggs

Sir Rupert Jackson

Lord Menzies (Scotland)

Sir Ben Stephens (NI)

Privy Council Appeal Nos 0068 of 2017

Michaelmas Term

From the Court of Appeal of the Commonwealth of the Bahamas

Property Law - Right to property — Documentary title — Promissory title — Whether Court of Appeal was correct to conclude respondent failed to prove documentary title — Whether 1959 Conveyance was a good root of title — Whether certificate of title should be granted to the parties — Adverse possession — Section3, Quieting Titles Act — Section 3(4), Conveyancing Act.

Bannerman

Stephen Jourdan QC

Oliver Radley-Gardner

Timothy A Eneas

Richard H R Lightbourn

(Instructed by Sheridans)

Eleuthera

Thomas Roe QC

Sharon R Wilson

Sharlyn R Smith

(Instructed by Axiom Stone)

Heard on 17, 18 and 19 July 2018

Lord Briggs
Introduction
1

This is the latest of a number of appeals to the Board raising questions of title to land in the Bahamas, arising under the Quieting Titles Act 1959. This statutory jurisdiction to resolve, after judicial enquiry, uncertainties as to title to unregistered land by the issue of certificates of title is of particular utility in the Bahamas, although similar jurisdictions exist in some other common law countries. This is because many of the outlying islands in the Bahamas are sparsely populated and only sporadically cultivated, as explained by Lord Walker, giving the advice of the Board in Armbrister v Lightbourn [2012] UKPC 40; [2013] 1 P & CR 17, at paras 7 and 8.

2

The land in issue in these proceedings (“the Property”) is a tract comprising some 2,086.24 acres, lying on the Atlantic (that is eastern) side of the island of Eleuthera towards its southern end. The competitors for a certificate of title in respect of the Property are, now, the petitioner in the proceedings, Eleuthera Properties Ltd (“EPL”) and the surviving adverse claimant in those proceedings, namely the Bannerman Town, Millars and John Millars Eleuthera Association (“the Association”), which is a nonprofit company limited by guarantee formed to further the interests, including land ownership, of residents and their descendants of the three named settlements, situated on southern Eleuthera near the Property. Other persons claiming title to the Property during the proceedings fell by the wayside, or joined forces with the Association, assigning their claims to the Association for that purpose. The trial lasted more than 40 days including at least 35 days of witness testimony and several thousand pages of documentary evidence. The competing claims of EPL and the Association were to the whole of the Property. They made no alternative claims to parts of it, although other adverse claimants did.

3

In bare outline, the trial judge, Hepburn J, decided (in May 2014) that EPL had proved good documentary title to the Property, and she rejected all the competing claims to possessory title. In particular she rejected the Association's claim, mainly upon the basis that she did not find the evidence, to the effect that numerous witnesses had occupied the Property on a joint basis, credible. She found that evidence as to the basis of their alleged occupation to have been a recent invention.

4

The Court of Appeal (Allen P, Isaacs JA and Adderley JA) decided in April 2016, unanimously, that the judge had been wrong about EPL's documentary title. By a majority, they upheld her rejection of the Association's competing claim. By the same majority they found that EPL had established good possessory title to the Property by its conduct in relation to it since 1988. Adderley JA, dissenting, held both that EPL had also failed to establish possessory title and that the Association had done so. The result in both courts was the award of a certificate of title to EPL.

5

Before the Board the Association sought to affirm the Court of Appeal's rejection of the EPL's documentary title, to have overturned its majority decision, and to establish its own possessory title, substantially in accordance with the dissenting judgment of Adderley JA. For its part EPL sought, primarily, to uphold the Court of Appeal's decision that it had proved possessory title and, in the alternative, sought to support the judge's decision that it had, in any event, good documentary title to the Property.

The Facts
6

Eleuthera is a long, narrow, low-lying island on the eastern side of the Bahamas. It is over 100 kilometres long, running approximately North by West to South by East. At its southern end, where the Property is situated, it is about two kilometres wide, with the Atlantic on its eastern side and the shallow waters of the Bahamas archipelago to the west. The Property is situated a few kilometres north of the southern tip of Eleuthera, near a small settlement named Bannerman Town. For the most part the Property is bounded on the east by the Atlantic Ocean and (now) on the west by a road constructed by the government of the Bahamas in 1956, running north south down the middle of the island. At its northern end, the Property extends across the road to reach the sea on the western side. It is shown edged pink on the plan attached to this opinion.

7

In the early 19th century the Property formed part of an estate owned by one Robert Millar. In 1830 he is recorded as owning 130 slaves, 93 of whom worked on his Eleuthera estate. Slavery was abolished throughout the British Empire (including the Bahamas) in 1834, but most of Mr Millar's former slaves probably continued to work for him thereafter as his employees. On Robert Millar's death, his Eleuthera estate, including the Property, passed to his sister Ann. Thereafter, her brother's former slaves and servants continued to work for her, until her death in about 1871.

8

By her will dated 12 January 1869, Ann Millar made three relevant gifts of parts of her Eleuthera estate, as follows:

  • “(1) The tract of land on the Island of Eleuthera known as ‘Millars Settlement’ containing about 1,000 acres, a part of which however I have already disposed of I, give and devise the residue thereof to my old servants and former slaves old Scipio, and his wife Grace and her children, Sailor George and his wife Sarah, and her children, Dinah Miller and her children to be held and enjoyed by them in common and by their Descendants forever.

  • (2) The land adjoining ‘Millars Settlement’ aforesaid (excepting 250 acres thereof) part of a tract originally granted to William A Bowles I give and devise unto my old servants and former slaves now residing or who may be residing at the time of my death on ‘Millars Settlement’ aforesaid including also the last mentioned parties and old Jack, his wife Chloe and her children, my servants Pender and her children and Allan Millar to be held and enjoyed by them in common and by their Descendants forever.

  • (3) The 250 acres aforesaid part of the tract granted to William A Bowles I give and devise as follows:

    • (a) to Lewis B Thompson, Planter of Eleuthera I devise 100 acres thereof situated on the Western part of the said land and to his heirs and assigns forever;

    • (b) to Frederick Millar and his Descendants in common forever I devise the other 100 acres adjoining the last mentioned portion; and

    • (c) to James McKay and his Descendants forever in common I devise the remaining 50 acres.”

9

Most of the Property, namely the 1,700 acres lying between the Atlantic Ocean and the road, shown hatched orange on the annexed plan, formed part of the land described in gift (2). It will be referred to as “the 1,700 Acres”. The remaining part of the property shown hatched green on the plan and described in the proceedings as “the Northern Bowles Tract” formed part of gift (3). It is now common ground (although this was not appreciated until recently) that the devise of the Property by Ann Millar's will was void for perpetuity, with the result that, upon her death, title to the Property passed to her residuary legatee.

10

Meanwhile, from then until the present day, use was made of the Property, in various ways and at different levels of intensity, by a substantial number of persons falling within the class constituted by her servants, former slaves and their descendants (collectively “the Descendants”). While the precise state of mind of those of the Descendants who used the Property from time to time has been a matter of dispute at all stages in these proceedings, it may generally be said that they did so in the belief that Ann Millar's will gave them the right to do so although, in law, it did not.

11

The nature of that use of the Property is less contentious and may be summarised as follows. First, there was no significant residential use. The Descendants who made use of the Property appear to have lived in nearby settlements including Bannerman Town. Their use of the Property consisted of various kinds of subsistence or money-crop farming, including the growing of pigeon peas, beans and corn for sale to a local cannery and packers, the growing for their own food of those and other crops including tomatoes, bananas, peanuts and some fruit, the cutting of silver tops for basket making, foraging for crabs, the keeping of goats and the stripping and preparation of Cascarilla bark (“barking”) for sale to the alcoholic liquor industry.

12

At no relevant time was the Property, or any large part of it, used or operated as a single organised farm. Rather, individual Descendants, or family units within the class of Descendants, would clear small plots (typically no larger than one acre) by stripping and burning the bushes and undergrowth, would grow crops on the cleared plot for a year or two, until the relatively infertile soil was exhausted, and then move on to another...

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