The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A Supreme Court judge has granted Franklyn Wilson’s Eleuthera Properties a Certificate of Title to 2,086 acres on the island, branding five rival claims to the land as “not credible”.

Among the claims rejected by Justice Claire Hepburn, in a May 30, 2014, ruling that may pave the way for further development and expansion at Eleuthera Properties’ Cotton Bay Estates project, was one from a non-profit association created to benefits residents/descendants of South Eleuthera.

Eleuthera Properties moved to obtain a Certificate of Title on March 17, 2010, filing a petition under the Quieting Titles Act to confirm it owned the land situated between Wemyss Bight and Millers.

The developer said it held documentary (paper) title to the land, split into two separate tracts of around 1,700 acres and 250 acres, via two conveyances completed in 1959 and 1988. The latter saw Avon Bay Ltd convey the land to Eleuthera Properties on October 26, 1988, for $300,000.

Yet the Bannerman Town, Millars and John Millars Eleuthera Association countered that Eleuthera Properties’ ownership chain did not start with a good root of title.

The Association first alleged that it was the legal title holder, having acquired the land from descendant beneficiaries of the Will of Ann Millar, a former slave owner.

But, finding that such claims would offend the Rule against Perpetuities, and that it was impossible to determine the number, and existence, of descendants covered by Ann Millar’s will, Justice Hepburn said these arguments by the Association “must fail and do fail”.

As a result, the judge said the Association had to “prove on balance that they have dispossessed” Eleuthera Properties’ documentary title - either through the developer discontinuing or abandoning the land, or the Association taking possession.

And, apart from the Association, other rival claims to the 2,086 acres came from the Tom and Millar Corporation; Dora Adrella Whylly-Boston and Bristo Whylly-Boston; Thomas Whylly Jnr; and Gary Younge.

And the five rival claimants to Eleuthera Properties quickly became three, with Tom & Millar “throwing in its lot with the Association” once the Quieting action was underway, accepting the latter’s position and submissions.

And Dora Adrella Whylly-Boston and Bristo Whylly-Boston adopted the submissions by Trevor Whylly. All five (or three) claimants, the Supreme Court noted, based their claims on Ann Millar’s will.

Justice Hepburn noted that the 500-member Association’s goal was to encourage land ownership, and economic, social and cultural development for the residents and descendants of Bannerman Town, Millars and John Millars settlements in south Eleuthera. Gaining government approval for the transfer of ‘generation property’ to the Association, for use as commonage land, was another target.

Some nine witnesses were produced by the Association, including its president, Errol McPhee, with all alleging they occupied the land as descendants of the former slaves willed the land by Ann Millar.

“Their evidence as to their connection to the slaves and former slaves of Ann Millar was stories they had been told by their ancestors, and based on that information they constructed their respective family trees,” Justice Hepburn wrote.

Noting that the Association and other rival claimants were alleging they had a ‘possessory’ title, Justice Hepburn found: “I must state at the very outset that I did not find the testimony of the Association’s witnesses, that their occupation and possession of the land was joint, and for themselves and for the benefit of other descendants of devisee under the will of Ann Miller, who had a like right to the land, credible.”

She described the evidence by the Association’s witnesses as “being of recent vintage”, the “starkest evidence” to prove this being the sudden change in position - and link-ups - between rival claimants.

“I suspect the members of the Association and the other adverse claimants came to appreciate that no single one of them, even if they relied upon the occupation of their ancestors, could prove the necessary factual occupation of the land and sought a way to obtain a Certificate of Title to the land,” Justice Hepburn wrote.

While south Eleuthera was a successful farming community pre-1960s, the Baker family’s closure of the B&B canning factory sent the economy “downhill”, with younger residents migrating to Nassau for work, returning only five times a year at maximum.

Justice Hepburn said eight of the Association’s nine witnesses had lived permanently in Nassau, and not done any farming on the disputed land since they left Eleuthera in the late 1960s and early 1970s.

They attempted to rely on the remittances sent back to Eleuthera to show their occupation of the land, and admitted that none of them lived on the property.

Justice Hepburn thus concluded that none of the adverse claimants had proven their claim, and Ordered that a Certificate of Title be granted to Eleuthera Properties for the 2,086 acres.