COMMONWEALTH OF THE BAHAMAS - Supreme Court

COMMONWEALTH OF THE BAHAMAS
IN THE SUPREME COURT
Common Law & Equity Division 1104 of 2004
Between
THE BAHAMAS DEVELOPMENT BANK
Plaintiff
AND
PORKY’S FARMS LIMITED
First Defendant
And
BERNARD THEODORE DORSETT
Second Defendant
And
PORKY’S SERVICE STATION LIMITED
Third Defendant
Before:
Appearances:
The Honourable Senior Justice Mr. J. Lyons
Mr. Charles Mackey for the Plaintiff.
Ms. Gia Moxey for the Defendants.
8 January 2009

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J U D G M E N T
(1) This matter was set for trial at the pre-trial mention on 3 December 2008.
Both parties appeared through counsel.
(2) On 8 January, Ms. Moxey appeared. Her client did not.
(3) Mr. W. Munroe apparently had carriage of the file in the defendant’s
attorney’s office. He was engaged in another capacity at the Court of Appeal.
Ms. Moxey applied for a short adjournment to fit Mr. Munroe’s convenience.
(4) It was refused. The defendants had not complied with some of the pretrial
directions. The defendants showed such little interest in the case so as to
not be present. There are several capable counsel in the law firm representing
the defendants, any one of whom are well able to do this trial.
(5) As it was, the trial proceeded and Ms. Moxey did a fine job. She
demonstrated considerable potential. The time is well overdue for senior counsel
to pass on Supreme Court trial work to their juniors. If not the trial skills will
never be learned, or if already learned, will atrophy.
(6) After hearing the evidence and submissions, I decided for the plaintiff.
These are my reasons.
(7) The plaintiff is mortgagee in possession of 2000 acres at Marsh Harbour,
Abaco, on which are situate a pig farm.
(8) In early 1999, the plaintiff advertised the pig farm for sale.

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(9) The advertisement (call for tenders) read: -
“ BAHAMAS DEVELOPMENT BANK
P. O. BOX N-3034
NASSAU, BAHAMAS
TELEPHONE: (242)327-5780/1
FAX: (242)327-5047
FOR SALE
SUGARLAND FARMS LIMITED
MARSH HARBOUR, ABACO
PIG FARMING FACILITIES SITUATED ON THE ISLAND
OF ABACO ON GOVERNMENT LEASED LAND (Amount
of land to be conveyed will be subject to negotiation)
ASSETS INCLUDE:
• ONE CONCRETE FARROW TO FINISH BUILDING
WITH CAPACITY TO HOUSE 800 ANIMALS (Book
Value $125,000)
• EXCESS OF 1000 ANIMALS INCLUSIVE OF 280
SOWS, 21 BOARS, FATTNERS, WEANERS AND
NURSING PIGLETS (Book Value $190,380)
• EXCESS OF 300 HOLSTEIN AND BLACK ANGUS
COWS (Book Value $201,500)
• 280 ACRES OF CATTLE PASTURE (Book Value
$210,000)
• 20 ACRES OF PIG PASTURE (Book Value
$60,000)
• 80 ACFRES OF CITRUS GROVE (Book Value
$80,000)
• 30 ACRES OF BANANA GROVE (Book Value
$60,000)
• 500 ACRES OF CLEARED LAND (Book Value
$174,000)

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• ASSORTMENT OF FARM MACHINERY,
EQUIPMENT AND TRACTORS (Book Value
$257,000)
FOR VIEWING PLEASE CONTACT ANDREW
EDWARDS AT THE BAHAMAS DEVELOPMENT BANK
TELEPHONE NUMBER (242)327-5780/1
BIDS ARE TO BE SUBMITTED TO THE BAHAMAS
DEVELOPMENT BANK NO LATER THAN APRIL 15,
1999.
THE BANK HAS THE RIGHT TO REJECT ANY OR
ALL BIDS.”
(10) The first defendant (through the persona of the second defendant)
tendered a bid for $750,000. It was accepted. In May a deposit of 10% was
paid. It was held in escrow pending negotiation of the final terms of the contract
for sale/purchase.
(11) The major point to be negotiated was the “amount of land to be
conveyed”. The call for tenders says this “will be subject to negotiation”.
(12) The call for tenders states the facility was on “Government leased land “.
(13) The plaintiff and defendant (I use this collective term for convenience) had
negotiated for the conveyance of 400 acres to be freeholded and passed to the
defendants. As the government owned the land (the whole 2000 acres), the
government had to approve such a deal.
(14) The plaintiff negotiated with government.
(15) On 1 October 1999, the plaintiff wrote to the second defendant.

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“October 1, 1999
Mr. Bernard “Porky” Dorsett
P. O. Box CB-11478
Nassau, Bahamas
Dear Mr. Dorsett:
Re: Sugarland Farms Limited
Further to our discussion yesterday, we have been
advised by the Office of the Prime Minister that it is
not Government’s policy to convey Agricultural Crown
Land. However, they are amendable to a 20-year
renewable lease, which in the circumstance should
suffice because it is unlikely you would secure a
mortgage for a period longer than 15 years. We
therefore await your confirmation that you are able to
secure financing necessary to close the deal so that
we can request the transfer of the lease from
Sugarland Farms to Porky’s Farms. You may wish to
contact the Ministry of Agriculture and Fisheries
directly on the terms of the lease.
Regarding the purchase of the truck and generator,
regrettably the Bank is not able to accommodate your
request until we have received confirmation on how
the transaction will proceed.
Looking forward to your early response.
Yours truly,
Paul L. Major
Managing Director

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cc: Hon. Carl W. Bethel, Minister of State for
Economic Development
Mr. Frederik Gottlieb, Chairman – BDB
PDM/lc”
(16) The first defendant also needed finance to close the deal. It had applied
to the plaintiff for finance. This was approved. The amount was $675,000.
(17) On 12 November 1999 the first defendant executed a debenture mortgage
and a chattel mortgage for the above amount.
(18) On 19 November 1999 the second defendant executed a deed of
guarantee in respect of the above loan.
(19) On 2 February 2000 a further advance was made to the first and second
defendants by the plaintiff.
(20) This was secured by mortgage. It was for $250,000. This was
guaranteed by the third defendant.
(21) On 10 February 2000 the first defendant entered into a twenty-one (21)
year lease with the government over the 2000 acres of land on which the pig
farming facility was located. (See the letter of 1 October 1999). This lease was
assigned to the plaintiff presumably as part of the security for the above loan.
(22) The first defendant defaulted on the loan.
(23) The second and third defendants were unable to make good on the
guarantee. Action was taken on the guarantee. Some funds were obtained. An

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amount is still owing to the plaintiff. That amount is pleaded in the statement of
claim as $775,560.01.
(24) The plaintiff issued a specially endorsed writ on 19 August 2004. It claims
$775,560.01 plus 8% interest from 19 August 2004 until judgment.
(25) After hearing the evidence, I am satisfied the plaintiff has proven the
existence of the loan and the guarantee. It has also proven the default and the
quantum of the claim. I am satisfied the amount of $775,560.01 is due and
owing by the defendants, jointly and severally.
(26) I turn to the defendant’s case.
(27) In its defence filed 27 September 2005, the defendants do not deny the
transaction, the amount, the guarantee nor the default.
(28) The defendants’ case is pleaded in paragraphs 5 to 11 of the Defence and
Counterclaim.
“5. The defendants admit to the contents of
paragraph 9; however, from the inception of the
negotiation the defendants were induced by the
representation made in the plaintiff’s
advertisement for the sale of the property,
specifically that the successful bidder for the
property would receive a conveyance of land,
the exact amount to be negotiated.
6. The defendants assert that it was on the basis of
the representation as to the conveyance of land
that the defendants paid the deposit upon
acceptance of their bid by plaintiff.

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7. The defendants assert that all negotiations that
transpired subsequent to the payment of the
deposit were based on the representation
concerning the conveyance of the 400 acres.
8. The defendants assert that by a meeting held
with Mr. Paul Major on August 31 st , 1999 it was
agreed that a part of the contract for the sale of
the Sugar Land Farms was to include a
conveyance of 400 acres to the defendants and
it was not until the plaintiff’s letter of October
1 st , 1999 that the defendants were ever advised
that there would in fact be no conveyance of the
400 acres due to the Government’s policy.
COUNTERCLAIM
9. The defendants repeats paragraph 1 through 8 of
his defence herein.
10. By reason of the plaintiff’s said breach of duty
and or negligence and or fraudulent
misrepresentation the defendants have suffered
loss and damage on the purchase of the property
and the loan in question.
11. AND the defendants claims: -
i. Damages for negligence and/or breach of
contract;
ii. Damages for fraudulent
misrepresentations;
iii. Relief pursuant to section 3 of the
Moneylenders Act;
iv.
Exemplary damages;

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v. Interest;
vi. Further or other relief.”
(29) The defendant claims that the advertisement (call for tenders) contained a
fraudulent misrepresentation is nonsense. The advertisement clearly points out
the land is leased from the government. It clearly points out that if any land was
to be conveyed (if any) was subject to negotiation.
(30) Any reasonable person with a rudimentary understanding of business
affairs would read the advertisement to indicate that the government owned the
land and that any conveyance of freehold would first require the consent of the
government as owner of the land.
(31) Mr. Miller, for the plaintiff, agreed in his evidence that it was agreed
between the plaintiff and defendant that 400 acres of land would be conveyed to
the defendant. The caveat to this must have been, if the government, as owner,
agreed to the conveyance. The defendant must have known the plaintiff did not
own the land – it was lease hold. The advertisement makes this clear. The
defendant must have known a party cannot convey what it does not own – and
thus the plaintiff could not convey the 400 acres (it did not own) without the
owner’s (government) consent.
(32) Government consent for a freehold conveyance was not obtained. The
letter of 1 October 1999 speaks to this. Instead a leasehold interest was offered.
(33) The conditional terms of the contact were not met. The first defendant
had a choice. It could have walked away there and then. Or it could have
accepted, instead, the offer of a 20 year lease.

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(34) The first defendant elected not to walk away. It elected to accept the
proposal of a leasehold interest of the same price. It proceeded to enter into a
21 year lease. It completed the financial arrangements.
(35) In my judgment, on the facts before me, there was no misrepresentation
by the plaintiff, nor was there any beach of contract by the plaintiff.
(36) No evidence was led as to negligence.
(37) The defendants counter-claim is dismissed.
(38) Judgment for the plaintiff in the sum of $775,560.01 for claim. Interest at
8% per annum is allowed from 19 August 2004 until the date of judgment
(delivered at trial on 8 January 2009). My calculation is $334,361.98.
(39) Total judgment for the plaintiff is $1,109,921.99.
(40) The plaintiff is entitled to its costs to be taxed if not agreed.
Delivered the 8 th day of January 2009.
John Lyons
Senior Justice