The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The purchase of two Exuma cays, worth a collective $29m, by a US investor has been overturned by the Supreme Court which found the Bahamian vendors obtained ownership of the islands via fraud.

Chief Justice Ian Winder, in a September 12, 2022, verdict, ruled that Gardie Nixon and Samuel Burrows had abused the Quieting Titles Act to obtain the original certificate of title to Lumber Cay and Jim Cay and that this “must be set aside”.

Slamming the “falsehoods” and “deliberate concealment” employed by the duo to obtain title to the islands, which was granted by the Supreme Court via a different case on July 18, 2017, the Chief Justice said the fraud meant the later sale of both islands to companies owned by a Virginia-based developer, David Tilton, was “null and void”.

His verdict, which has been seen by Tribune Business, detailed allegations that the two islands were sold to Mr Tilton for a combined $1.8m - a sum equivalent to just 6.2 percent of their combined appraised value. Lumber Cay, in particular, was said to have been appraised at $20m alone, and offers a prime real estate/tourism development opportunity as a 30-acre parcel located just 700 feet south of Staniel Cay, the renowned boating and second home destination.

The Chief Justice also reproduced legal documents claiming that the same attorney, Andrew Allen, son of late finance minister, Sir William Allen, represented both Gardie Nixon and Samuel Burrows in the original title quieting action while also acting for Mr Tilton and his companies. Mr Allen was said to have been a president, director and shareholder of Archipelago Development & Resorts III and Jim Cay Company, with Mr Tilton funding the quieting action (see story Page 1B).

And one witness was described as “wholly unreliable”, after swearing in an affidavit Gardie and Mr Burrows would buy him a boat and house if he gave evidence in their favour at the quieting hearing, only to later try and retract this.

The ownership dispute over the two Exuma cays has its roots in the estate of the late King Richard Nixon. The father of ten children, including Gardie as the eldest, he was said to have possessed valid documentary title ownership to both islands when he died on December 5, 2015, leaving a last will and testament dated September 8, 1980.

This made all his children executors, but Gardie was passed over and removed from this role on November 15, 2018, via a probate-related Supreme Court Order. However, prior to that, he teamed with Mr Burrows, King’s brother-in-law and uncle to all the children, to initiate a Quieting Titles action before the Supreme Court on August 23, 2016.

The duo claimed to be “the owners in fee simple possession” of both islands, swearing affidavits and giving evidence before the court to support their case. They also called Mr Higgs and A. Balder Campbell, a surveyor, as witnesses, and were successful in obtaining a certificate of title to both Lumber Cay and Jim Cay in their joint names on July 18, 2017.

Less than five months later, Lumber Cay was conveyed to Archipelago Development & Resorts III on December 1, 2017, for $1m. “Samuel and Gardie’s attorney, Andrew Allen, who acted for them on the quieting petition, is also a director of Archipelago,” the Chief Justice wrote. “The conveyance to Archipelago was signed by Andrew Allen as president of Archipelago.”

Jim Cay, an eight-acre island situated north of Lansing Cay, between Musher and Hog Cay, was said to have been conveyed by the duo to Mr Tilton’s other company, Jim Cay Company, on October 15, 2017, for some $800,000.

These transactions, when discovered, triggered legal action by three of King Nixon’s other sons, Harvey, Troy and Ambrose, who were serving in the capacity of executors of their father’s estate. They asserted that a November 14, 1990, conveyance recorded in the Registry of Records proved King had documentary title giving him ownership of both cays.

While the grant of probate for their father’s estate remains pending, the executor trio effectively argued that the two islands are part of their father’s estate. And they alleged that Gardie, a 37-year veteran officer at Fox Hill prison, and Mr Burrows had abused the Quieting Titles Act by withholding from the Supreme Court their rival ownership claim when the duo obtained their rival title certificate.

“The plaintiffs were not aware of the commencement of the said action until around or about December 2017 or January 2018, and shortly thereafter were advised that a Certificate of Title had in fact been issued to the first and second defendants on on July 18, 2017,” the statement of claim filed on the three brothers’ behalf alleged.

The Quieting Titles Act’s section five requires all persons and companies seeking to obtain property title via this mechanism to make a full and frank disclosure of all material facts related to their claim, even if these are not necessarily in their favour. They must detail “all dealings with the property which affect the title”, including rival claims to ownership and any person in possession of the subject property.

Harvey, Troy and Ambrose argued that Gardie and Mr Burrows, their uncle, failed to disclose their and the estate’s rival ownership via the documentary title possessed by their late father and his will. As a result, they asserted that their brother and uncle obtained the title certificate via fraud.

However, in their defence, Gardie, Mr Burrows and Mr Tilton’s companies demanded “strict proof” that Samuel Davis, a late Barreterre resident, and William ‘Bulla’ Davis had acquired both Lumber Cay and Jim Cay, thus giving them the right to sell it to King Nixon.

They also asserted that they “made full disclosure” as required by the Quieting Titles Act and complied with the Supreme Court’s Orders, while again alleging that King never owned the cays and the executors lacked evidence to support their allegations besides the deed of confirmation.

Neither Mr Gardie nor Mr Burrows gave evidence at the trial, during which another brother, Wayde Nixon, who lives and works on Staniel Cay, gave testimony to support the executors despite being named as a defendant. And Chief Justice Winder ruled that he had “no hesitation” in finding for the executors, branding them as “truthful witnesses”.

He added that it was “false on all fronts” to allege that King died “intestate” and left all his assets to Gardie, as Ambrose said he found his late father’s will in 2010 and gave a copy to his fellow siblings. “Whilst Gardie advised the court in the quieting action, at the prodding of the court, that he had siblings, he omitted to indicate that all of his siblings were claiming an interest in the property through a will of King,” Chief Justice Winder found.

And Mr Burrows also “misled the court” by failing to disclose that it was Wayde Nixon who put him on Lumber Cay to be a caretaker. This defeated his claim to possessory title, especially as Darren Higgs, who testified in Gardie and Mr Burrows’ favour at the original quieting hearing, performed several u-turns that made his evidence “wholly unreliable”.

“Subsequent to the quieting action, Darren Higgs recanted his evidence in an affidavit dated April 24, 2018, wherein he states that Gardie and Samuel offered to buy him a boat and a house if he testified that Samuel lived on Lumber Cay for the last 20 years,” the Chief Justice wrote.

“In the affidavit, he admitted that he gave the testimony knowing that Samuel in fact lived on Great Guana Cay, the Exumas. At the trial he sought to recant the affidavit albeit admitting he made the affidavit of April 24, 2018.” He added that it was “indeed an incredible submission” for Gardie and Mr Burrows to claim their claim was possessory when the initial quieting action relied on the documentary title chain via King.

“I am satisfied that Samuel and Gardie fraudulently, knowingly and with intent to deceive made material false statements and/or representations, and/or suppressed, withheld or concealed from the court material documents, facts or matters of information to procure the Certificate of Title to the properties,” the Chief Justice concluded.