Land claim in Bocas

PANAMA. Dear Sirs:

Ten years ago the married couple LINDA y DAVID GILLINGHAM, of British and New Zealander nationality respectively, bought several titled properties in the outskirt of the City of Bocas del Toro, in Colon Island, by means of public deeds duly registered in the Public Registry of Panama, with surveys approved by the Real Estate Survey Registry (Catastro).

In their properties the GILLINGHAMS built the house where they currently live, and also a Botanical Garden and a plant nursery to which care and development they are devoted.

The properties, properly fenced and marked, are in the name of their Private Interest Foundation SIMIANA FOUNDATION, Foundation which is registered at fiche N° 32114, Redi Document No. 1463702, of the Mercantile Section of the Public Registry.

On January 8, 2009, the Circuit Judge of Bocas del Toro appeared at their door, accompanied by experts, lawyers and Court personnel, requesting to enter their property in order to perform a Judicial Proceedings of “survey and demarcation of boundaries”.

Aware of their rights, the GILLINGHAM requested the Judge to show them the Court Order to enter and search their properties, an order which the Judge had not issued, therefore proceeding to leave with all of his attendants towards a close by hill where he placed the experts with the purpose of performing their job from there.

The case is of a Judicial Proceeding of “survey and demarcation of boundaries” which, according to the Judicial Code, is a special proceeding whereby the owner of real estate property asks the Judge to set the boundaries in relation to a neighboring property.

It is a “non contentious” (without litigation among the parties) process, however if one of the parties timely files a complaint against the boundaries set forth by the Judge, the process becomes “contentious” (with litigation among adversary parties).

It is not a process to “recover possession”, since other special proceedings exist for this, called Possessory Injunctions and Complaint of Repossession.

In this case, and according to the file, COMPAÑÍA FAUSTINA, S.A., belonging to the GRUPO ELETA, represented by lawyers of the law firm MORGAN Y MORGAN, asked the Court for the survey and demarcation of boundaries, “on all sides” of plot N° 3499, which is registered in the name of COMPAÑÍA FAUSTINA, S.A., of which, however, they have no possession neither totally nor partially.

In the area where this property is supposed to be located, there are only properties registered in the Public Registry and with surveys approved by the Real Estate Survey Registry (Catastro), properly fenced and marked by their owners and possessors, as is the case of the married couple GILLINGHAMS.

To ask for a survey of demarcation of boundaries in these circumstances, in which there is not any material possession and there are owners with property deeds duly registered, constitutes a procedural invention which should have been rejected by the Judge.

In the event this procedure is enforced, its consequences should not have an effect on the possession of registered owners.

According to the Public Deed filed by COMPAÑÍA FAUSTINA, S.A., of which there is evidence in the file, Plot N° 3499, which survey and demarcation of boundaries it requested, was segregated (separated) from Plot N° 901, whose current owner is MINERVA BLANCANEAUX QUINTERO, and adjoins with said property by all its sides, reason whereby the Court summoned only her to the proceedings.

The attorneys of Mrs. BLANCANEAUX, owner of Plot N° 901, formally asked the Judge to end the case, because this type of proceedings is being denaturalized, and its purpose is to set the boundaries of one property in relation to a neighboring property, and which can not be done if COMPAÑÍA FAUSTINA, S.A., does not materially possess even a square millimeter in the area.

The Judge, Mr. MANUEL GARCIA, dismissed this claim and denied to grant the appeal remedy to his decision.

The Superior Court of David has not declared itself yet on the De Facto Appeal promoted by Mrs. BLANCANEAUX’s attorneys.

Meanwhile, the Court experts, those of COMPAÑÍA FAUSTINA, S.A, and those of Mrs. BLANCANEUX, agreed in their technical reports on the following:

1. The study of the surveys shows that the Plot that COMPAÑÍA FAUSTINA, S.A., asked to be delimited, would not be surrounded by its mother Plot N° 901, as it is described in the public deed of its incorporation, and would not even adjoin it. On the contrary, the surveys place it far from the mother Plot;

2. The plot which COMPAÑÍA FAUSTINA, S.A., asked to be delimited would be inside of Plot N° 5713, owned by the married couple GILLINGHAMS, wherein is the house where they live, the botanical garden, and the plant nursery where they have worked for more than 10 years, and

3. COMPAÑÍA FAUSTINA, S.A., does not possess in whole or in part the Plot it is asking to be delimited “on all of its sides”, nor has materially any portion of land or possession in the area.

Judge GARCIA has summoned the Court expert, the one of COMPAÑÍA FAUSTINA, S.A., and the one of Mrs. BLANCANEAUX, to enter with him into the property of the GILLINGHAMS, against their will, with the purpose of determining the boundaries which the Plot of COMPAÑÍA FAUSTINA, S.A., would have inside the GILLINGHAM’s Plot, knowing that the actual effect of these acts is not a legal one, because its outcome does not change at all the current possessory situation, but is a demonstration of force by COMPAÑÍA FAUSTINA, S.A., shown in the harassment of a family in their home and place of work which belong to them.

The married couple LINDA y DAVID GILLINGHAM have requested this communication in order to have the situation they find themselves in, be known, in face of the actions of the Circuit Judge of Bocas del Toro, hoping to rely on your support at this moment and in the near future, if these acts of harassment continue.

Sincerely,

DR. RICARDO RANGEL

Editor’s note: After this letter was written, and according to the Gillinghams, an appeal against judge Manuel Garcia’s decision to continue the “Boundary Dispute" to the Tribunal Superior in David was rejected. The judge posted the date for the next invasion as May 7 at 2:00 p.m. Once the invasion takes place and they mark out the Eleta's claim on the land, the case becomes 'contentious'.