THE Court of Appeal dismissed an appeal brought by several parties against a controversial ruling over Bahamian businessman Sir Franklyn Wilson’s ownership of over 2,000 acres in Eleuthera yesterday.

Court of Appeal President Dame Anita Allen, in a joint ruling with Justices Neville Adderley and Jon Isaacs, dismissed the July 2014 appeal by the Bannerman Town, Millars and John Millars Eleuthera Association (BTMJMEA) and other appellants against the May 30 decision by Justice Claire Hepburn.

That decision granted the land to Eleuthera Properties, Ltd (EPL), which is chaired and directed by Sir Franklyn.

According to the ruling, EPL moved to obtain a certificate of title on March 17, 2010, filing a petition under the Quieting Titles Act to confirm it owned the 2,086.24 acres of land situated between Wemyss Bight and Millars.

At the time of the petition, EPL claimed it had acquired the land from Avon Bay Limited by way of a conveyance dated October 26, 1988. Avon Bay had acquired the property from Arthur Vining Davis via conveyance on November 23, 2009. Both conveyances are recorded in the Registry of Records, the ruling said.

Yet the BTMJMEA, along with Emily Hall, Dora Whylly, Bristo Whylly, and Thomas Whylly Jr., all claimed that they held a “legal and possessory” title to the property, having acquired the land from descendant beneficiaries of the will of Ann Millar, a former slave owner.

On May 30, 2014, after an investigation of the respective titles, Justice Hepburn granted EPL a Certificate of Title to the 2,086.24 acres of land on Eleuthera, pursuant to the relevant provisions of the Quieting Titles Act, Ch. 393, finding that the 1959 conveyance was a “good root of title.”

Justice Hepburn also found favour in EPL’s position that the gift of land contained in the will of Ann Millar was “void for breach of the rule against perpetuities”, thus making the purported legal title to the land by the BTMJMEA and others “void.”

And, in her consideration over whether the appellants had “sufficient possessory title” to “oust” EPL’s “asserted documentary title”, Justice Hepburn also said she was “not satisfied that any of the adverse claimants have made out their claim to an interest in the land.”

The BMTJMEA, in particular, filed 16 grounds of appeal before the COA, three of which, the ruling noted were “dispositive of the appeal.” The association submitted that Justice Hepburn “erred in law and in fact” when she ruled that the 1959 conveyance was a good root of title to the property; that she “erred in law” in holding that the “devises” in Ann Millar’s will offended the rule against perpetuities; and that she “erred in law and in fact” in holding that it was the appellant’s “burden” to “prove on the balance of probabilities that it had dispossessed the petitioner (EPL) as the holder of the paper title.”

Regarding the BMTMJEA’s first point, the ruling said that the action before the court “was, and is not, a contest between a purchaser and a vendor.” Rather, the ruling said what needed to be determined was “which of the parties had the better title.”

On the association’s second point, the ruling said while the BMTMJEA has “placed into evidence family trees drawn up from their own knowledge”, thus “linking them to a beneficiary under the will, it was “incumbent” on the association to prove via “some form of extrinsic evidence” that the descendant it purported to claim was alive at the time of Ann Millar’s death”, and also to provide evidence such as “birth, death and marriage certificates” to “demonstrate how they are connected to this descendant and therefore entitled to claim.”

The ruling also said the court found “no fault” with Justice Hepburn’s stance that based on the “evidence before the court,” she was “not satisfied that any of the adverse claimants have made out their claim to an interest in the land.”

The appeal was ultimately dismissed, and the Court of Appeal affirmed Justice Hepburn’s decision to grant EPL a certificate of title for the property.

Costs are to be dealt with at a later date, the ruling said.

By Nico Scavella

Tribune Staff Reporter

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