Summary

Where neither the first instance court nor the Court of Appeal of the Bahamas had made a proper analysis of the evidence in proceedings concerning title to two areas of land, it was proper for the Board of the Privy Council to review the conclusions they had reached. Where claimants had acted as occupying owners of the land in the mistaken belief that they had good title to it, and there had been no serious challenge to that evidence, the Bahamian courts had erred in regarding that evidence as insufficient to establish possessory title.

Facts

The appellant (X) appealed against a decision of the Court of Appeal of the Commonwealth of the Bahamas in proceedings concerning title to two areas of land on Cat Island. The respondent (L) cross-appealed.

The area of land in the main appeal was known as "Freeman Hall South". The land which was the subject of the cross-appeal was known as "the 15 acres" and was formerly part of what was called the "Village Estate". In 1895, X's ancestor (W) had sold eight parcels of land on Cat Island to an English sisal company. Those parcels of land were shown on sketch plans annexed to the conveyance. Plan A showed the Village Estate. The sisal company entered into a mortgage in 1901 to secure its indebtedness. The company was dissolved in 1911. It was X's case that, when executing the 1895 conveyance, W decided to retain the 15 acres, which devolved on X and had not been acquired by anyone else by means of adverse possession. At trial, however, L was granted certificates of title in respect of both areas of land in dispute. The Court of Appeal allowed X's adverse claim in respect of the 15 acres but dismissed its appeal in respect of Freeman Hall South. Fresh evidence before the Board suggested that the documents before the trial judge had included a plan which was not an accurate depiction of the original.

X contended that, on the dissolution of the sisal company, Freeman Hall South reverted to W as grantor under the conveyance. L contended that the doctrine of reverter had been discredited and in any event did not apply in the Bahamas, and that there was no legal estate to revert to W because it was vested in the mortgagee.

Held

(1) In the Bahamas, a provision with the same effect as the Companies Act 1928 s.71 came into effect in 1926, but without retroactive effect. Therefore, the position in 1911 had to be decided by the common law. The operation of the reverter principle to land acquired for full consideration by a commercial company was capable of being irrational and unfair, and could not be regarded as forming part of Bahamian law at the relevant time, Hastings Corp v Letton [1908] 1 K.B. 378, Woking Urban DC (Basingstoke Canal) Act 1911, Re [1914] 1 Ch. 300, Morris v Harris [1927] A.C. 252 and Wells, Re [1933] Ch. 29 considered. On that basis, the sisal company's land in the Bahamas vested on its dissolution in the Crown. The mortgage could not prevent that vesting, because the company had an equity of redemption, which was an estate in real property, Casborne v Scarfe 26 E.R. 377 considered (see paras 25, 33-38, 41-42 of judgment). (2) Neither the first instance court nor the Court of Appeal had made a proper analysis of the evidence. It was therefore right to review the conclusions they had reached. In relation to Freeman Hall South, there was considerable affidavit evidence to support X's possession, as compared to an unspecific recital in a 1944 conveyance to support L's claim. Moreover, the trial judge did not say that she disbelieved X's evidence. In the Board's view, the evidence adduced by X met the test in JA Pye (Oxford) Ltd v Graham [2002] UKHL 30, [2003] 1 A.C. 419 [2002] UKHL 30, [2003] 1 A.C. 419 as constituting evidence that X had been dealing with the land as an occupying owner might have been expected to deal with it, Pye applied. X had acted openly as owners because they believed, albeit wrongly, that they were the legal owners with a good title. There had been no serious challenge to that evidence. Both the trial judge and the Court of Appeal had erred in regarding X's evidence as insufficiently strong to establish possessory title and it followed that its claim to Freeman Hall South was made out (paras 54, 73-74, 79, 82-84). (3) On the evidence, a mistake must have been made in the colouring of the plan on the conveyance. It was too late for that mistake to be corrected by rectification; therefore, extrinsic evidence was admissible to resolve the difficulty. The location of the 15 acres had been identified by such extrinsic evidence in 1966, at which time X had claimed title to it. There was also reference to X having farmed the 15 acres. There was no evidence of a response made to X's claim on behalf of L's predecessor, which was inconsistent with L's case that he had had full, free and undisturbed possession of the 15 acres for the 20 years prior to 1982. Further, the Court of Appeal had proceeded on the mistaken premise that the 15 acres was separately delineated on Plan A in the 1895 conveyance (paras 46, 87-89).

Appeal allowed, cross-appeal dismissed