The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A former Cabinet minister’s son yesterday vehemently denied allegations that he played a key role in a land fraud conspiracy involving two Exuma cays worth a combined $29m.

Andrew Allen told Tribune Business he felt Chief Justice Ian Winder was “very, very wrong” in finding that his clients, Gardie Nixon and Samuel Burrows, had perpetrated a Quieting Titles Act fraud by failing to disclose all key facts when they obtained documentary ownership to Lumber Cay and Jim Cay on July 18, 2017 (see other article on Page 1B).

Besides acting as the duo’s attorney in the quieting action, Mr Allen was also alleged by the executors of Gardie’s father’s estate to have represented the US investor to whom both cays were on-sold for a collective $1.8m - just 6.2 percent of their $29m appraised value. 

However, the late Sir William Allen’s son retorted that his clients did not know about the will said to have been left by Gardie’s late father, King. This will, and the failure to disclose its existence in making the Quieting Titles Act application, was central to the contention brought by the three executors - Harvey, Troy and Ambrose, three of King’s other sons - that the Certificate of Title was obtained via fraud. 

The Chief Justice agreed, but Mr Allen, a prolific writer of letters to the printed media, responded: “That’s not true. We disagree that that was fraud. We say our clients did not know about this will. I wouldn’t have known if these guys had been shown the will before the quieting action.....

“I was the attorney acting on their instructions. If they say he died intestate (without leaving a will), he died intestate. We did searches and never found [evidence] of a will. It’s not open and shut that there was a will. Essentially this was a disagreement between two parties. The judge felt they [Gardie and Mr Burrows] knew certain things. I didn’t know.”

The Chief Justice’s ruling reproduced the executors statement of claim, which alleged that Gardie and Mr Burrows “with the advice, counsel and/or assistance of Andrew Allen.... knowingly, willfully and deliberately deceived and/or misled the court and obtained the said Certificate of Title by fraud”.

Mr Allen was said to have been president, director and a shareholder of two companies, Archipelago Development & Resorts III and Jim Cay Company, to which Gardie and Mr Burrows sold Lumber Cay and Jim Cay, respectively, after obtaining the now-overturned Certificate of Title. Both entities were said to be controlled by Virginia-based investor, David Tilton, or his family trust.

The executors alleged that Mr Allen was instructed by Mr Tilton to help purchase the cays “for a substantial commercial venture”, and it was he who brought the US investor together with Gardie and Mr Burrows. They also claimed Mr Tilton paid the legal costs associated with the original quieting action, which Mr Allen said was not unusual as overseas buyers typically financed the clearing-up of any title issues when Bahamian vendors “don’t have any money”.

Lumber Cay and Jim Cay, despite allegedly being appraised for $20m and $9m respectively, were said by the executors to have been sold for $1m and $800,000. They claimed the sales prices were “a gross undervalue” to avoid paying the correct VAT sum on the transactions, and that Mr Tilton’s foreign beneficial ownership of the purchasing companies was concealed.

Both allegations were rejected by Mr Allen, who also denied any involvement in or knowledge of a fraud. “It’s them trying to push me in there as a contributor to fraud,” he told Tribune Business of the executors. “We deny it was fraudulent, and I was not a defendant in the action. We disagree with the finding of fraud profusely.”

Mr Allen added that his clients had been claiming a possessory title to the two cays, and not relying on King Nixon’s will and purported documentary title. “The focus was to simply show that the estate of King Nixon had no connection to the property,” he added.

However, Chief Justice Winder ruled that Mr Tilton and the companies were “not bona fide purchasers for value” under the Quieting Titles Act. “This could not be said to have been an arm’s length transaction,” his verdict said. “Additionally, the ultimate beneficial owner of the purchasers was the person who funded the quieting action.”

The Act only protected “bona fide purchasers for value without notice of fraud”, and the Chief Justice added: “Andrew Allen is a director and controlling mind of the purchasers. Allen is the attorney for the purchasers as well as for Gardie and Mr Burrows in the transaction.

“Allen was also the counsel, and therefore agent, for Gardie and Mr Burrows in the preparation of the quieting action. In the circumstances, given the relationships, I am satisfied that such knowledge of the fraud as Gardie and Samuel may have possessed ought to be imputed to the purchasers.”

Gail Lockhart-Charles KC, attorney for the executors, said her clients were relieved that the “long battle” had ended with their ownership of the two Exuma cays confirmed. She added that the case again highlighted how the Quieting Titles Act was open to abuse and exploitation by persons seeking to seize land that is not rightfully theirs.

“It is very difficult in a country made up of so many islands and cays for owners to monitor their land and keep it safe from people who are adept in using the Quieting Titles Act to steal land,” Mrs Lockhart-Charles said. “There is a lot of money to be made in this fraudulent enterprise, and no shortage of unscrupulous individuals willing to engage in it or profit from it.

“As is typical in these cases, the fraudsters quickly sell the land on. So, in the present case, we not only had to get the Certificate of Title set aside for fraud, but we also had to get the subsequent conveyance set aside in order to return the land to the rightful owners. It was a long battle, but we are very pleased that there has been a just result.”

Craig Butler, the attorney who represented Gardie and Mr Burrows, as well as the purchasing companies, in the trial, said he felt his clients have good prospects on which to appeal. “To say that I’m extremely disappointed would be an under-statement. To say I disagree with the judgment would also be an under-statement,” he told Tribune Business.

“In looking at it, I believe that there were so many aspects that dealt with pure law that the judge did not address. I have the utmost respect for our new chief justice, and normally from my perspective his judgments are spot on, but on this one I feel there are so many areas of law that are not addressed in the judgment, and I do feel they bring up an opportunity for appeal.”

Mr Butler said his clients have 42 days, or six weeks, from the Supreme Court’s issuance of the judgment on September 12 in which to lodge an appeal. Another option, he added, would be to initiate the quieting titles process all over again.

“We’re fighting over cays worth quite a few million dollars,” he added. “We’re fighting over very expensive real property here. That’s a factor that will come into consideration. It’s extremely valuable, extremely valuable.”