Alaric Astor Pottinger v Traute Raffone
| Jurisdiction | UK Non-devolved |
| Judge | Lord Rodger of Earlsferry |
| Judgment Date | 17 April 2007 |
| Neutral Citation | [2007] UKPC 22 |
| Court | Privy Council |
| Docket Number | Appeal No 64 of 2005 |
| Date | 17 April 2007 |
[2007] UKPC 22
Present at the hearing:-
Lord Bingham of Cornhill
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Carswell
Lord Brown of Eaton-under-Heywood
Privy Council
[Delivered by Lord Rodger of Earlsferry]
The present action concerns 34 lots or parcels of land which form part of the Gibraltar Estate in the Parish of Saint Mary. On various dates between 1956 and 1959 the Gibraltar Estate Investment Company Limited ("the company") was registered as the proprietor in fee simple of those lots in accordance with the Registration of Titles Act ("the Registration Act"). By virtue of section 26 a person so registered is entitled to hold the land in fee simple.
So far as is relevant for present purposes, under section 3 of the Limitation of Actions Act ("the Limitation Act") no action or suit to recover any land can be brought "but … within twelve years next after the time at which the right to … bring such action or suit shall have first accrued to the person making or bringing the same." Section 16 provides that, when any acknowledgment of the title of the person entitled to any land has been given to him or to his agent
"in writing signed by the person in possession …, then such possession … of or by the person [giving the acknowledgment] shall be deemed to have been the possession … of or by the person to whom or to whose agent such acknowledgment shall given at the time of giving the same; and the right of such last-mentioned person …to … bring an action to recover such land … shall be deemed to have first accrued at and not before the time at which such acknowledgment, or the last of such acknowledgments if more than one, was given."
In broadest outline, the combined effect of these provisions is that a proprietor may lose the right to recover his land if someone else is in possession of it for 12 years. Where, however, the person in possession acknowledges the proprietor's title in a signed document, then the period of 12 years runs from the date of that acknowledgment.
Under section 85 of the Registration Act any person who claims that he has acquired a title by possession to land which is under the operation of that Act may apply to the Registrar to be registered as proprietor of the land in fee simple. If the various steps are successfully completed, under section 87 the Registrar will inter alia cancel the existing certificate of title and issue a new certificate of title in the name of the applicant. Their Lordships will look at the registration procedure in more detail later.
By an application dated 22 June 1992 the appellant, Alaric Astor Pottinger, applied under section 85 to be registered as proprietor of the 34 lots of land which - as already explained - had been registered in the name of the company between 1956 and 1959. His application was accompanied by various documents including a declaration by himself setting out the circumstances on which he relied to show that he had been in possession for the requisite period of 12 years. Their Lordships will have to examine that declaration in due course. Under cover of a letter dated 31 July 1992 the Registrar returned Mr Pottinger's application and asked him to supply evidence about the current state of the company and, in particular, whether it was still on the Register of Companies in Jamaica and whether it had been dissolved or not. On 25 August 1992 the Registrar of Companies advised that the company still appeared on the Register of Incorporated Companies but that steps would soon be taken to remove it. After this, the remaining stages in Mr Pottinger's application for registration as proprietor of the 34 lots were completed. These included advertisement of his application in the Gleaner newspaper on three dates, a week apart, in September 1992.
On 8 January 1993, in terms of section 87 of the Registration Act, the Registrar cancelled the certificates of title showing the company as the proprietor of the estate in fee simple in the 34 lots. At the same time the Registrar issued new certificates of title showing that "Alaric Astor Pottinger of Gibraltar Heights, Oracabessa in the parish of Saint Mary, Businessman is now the proprietor of an estate in fee simple subject to the incumbrances notified hereunder" in the relevant lots. This was the end of the registration process, but only the beginning of Mr Pottinger's dispute with the respondent, Ms Traute Raffone.
To trace the origins of that dispute their Lordships must first go back to 1986. At that time Ms Raffone wanted to buy 43 lots of land in the Gibraltar Estate, including the 34 lots to which their Lordships have already referred. The lots were owned by the company and a certain Eugene Sugarman was apparently its sole surviving director. On 1 December 1986 - the date is no longer disputed - Ms Raffone drew a cheque for US$5,000 in favour of Mr Sugarman. Then, on 12 December, as "President and Sole Surviving Director", Mr Sugarman signed an "Agreement for Purchase and Sale of Property" between the company and Ms Raffone. The agreement related to the 43 lots. On 31 December 1986 Ms Raffone signed the agreement. To judge by the details relating to the signing of the agreement, both Mr Sugarman and Ms Raffone were in New York at the time when they executed it.
Clause 2 of the agreement provided that the purchase price "is and shall solely be the total amount of money paid by BUYER to settle the arrears for taxes, water rates, transfer tax, stamp duty plus the legal cost incurred for legal services performed to eliminate the tax arrears while effectively transferring those 43 lots from SELLER to BUYER. BUYER will pay directly to the collector of taxes, stamp duty office and lawyer respectively all expenses." Clause 9 provided that the seller would immediately issue a power of attorney authorising a lawyer in Ochos Rios to do the necessary legal work inter alia to effect the transfer of the 43 lots to the buyer. Clause 10 provided that:
"This agreement contains all the terms and conditions agreed upon, and there are no outside representations or oral agreements. This agreement constitutes the sole basis on which this sale is made and may not be changed except by mutual written consent by SELLER and BUYER."
It is common ground that Ms Raffone did not in fact pay the sums envisaged by clause 2 and that nothing was done, whether by issuing a power of attorney or otherwise, to effect the transfer of the property from the company to Ms Raffone. It follows that in these proceedings she presents herself as a purchaser of the 34 lots but she has not paid for them and nothing has been done to transfer the title in them to her.
Mr Pottinger says, however, that she should not even be regarded as a purchaser. His counsel submitted that it was apparent from the circumstances of the transaction that the sale agreement was a sham. As the payment of US$5,000 to Mr Sugarman shortly before the agreement showed, the true consideration for the sale of the land to Ms Raffone had not simply been that set out in clause 2 but had included some unspecified sum of money that she was to pay to Mr Sugarman. Clause 2 had been drafted in a form which did not mention any sum of money passing, as a ruse to avoid the effects of section 33 of the Exchange Control Act 1954 (now repealed). The agreement was accordingly illegal and void and the court should treat it as such, even though the point had not been pleaded. Ms Davis submitted both that it would have been necessary in the circumstances of this case for the point to be pleaded and also that there was nothing on the face of the sale agreement to show that it violated section 33 of the Exchange Control Act. It should accordingly be treated as valid.
The Board can see that the application of the Exchange Control Act to the circumstances of this particular sale agreement might not be entirely straightforward. But the Board does not require to go into the matter since it is prepared to assume, without deciding, that the agreement was valid and that Ms Raffone is properly to be regarded as a purchaser of the 34 lots, albeit a purchaser who has not paid the price or taken any further steps to secure the transfer of the title to her.
Their Lordships can now return to the time when Mr Pottinger had registered his title to the 34 lots in January 1993. Ms Raffone, who lived in New York and visited Jamaica only twice a year, had not heard of Mr Pottinger's application before the registration took place. But by May 1994 she had become aware that he had been registered as proprietor and she had raised the present proceedings against him and the Registrar of Titles. By way of relief, she sought a number of declarations and orders. For present purposes the declaration which matters is one to the effect that Mr Pottinger "fraudulently misrepresented to [the Registrar of Titles] that he had a possessory title to the said lands as required under the Registration of Titles Act."
In due course the matter went to trial before Ellis J. He found in favour of Mr Pottinger, first, on the basis that the sale agreement between the company and Ms Raffone was not enforceable because it did not provide for any consideration to flow from Ms Raffone to the vendor. This is so self-evidently not the position that counsel for Mr Pottinger did not seek to rely on that aspect of the judge's decision. Ellis J went on to hold that, at best, Ms Raffone was a mere purchaser of the lots from the company and so did not have the necessary standing to challenge Mr Pottinger's title. Allowing Ms Raffone's appeal, the Court of Appeal held that she had the right "to protect her equitable interest in view of the 'attack' on the legal estate of the vendor, by [Mr Pottinger's] act...
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