Rita Inhenagwa v Rose Onyeneho
| Jurisdiction | England & Wales |
| Judge | Mr Justice Morgan |
| Judgment Date | 28 July 2017 |
| Neutral Citation | [2017] EWHC 1971 (Ch) |
| Court | Chancery Division |
| Date | 28 July 2017 |
| Docket Number | Case No: CH-2017-000068 |
[2017] EWHC 1971 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
RollsBuilding, Fetter Lane, London, EC4A 1NL
Mr Justice Morgan
Case No: CH-2017-000068
Ms Estelle Lear (instructed by Pillai & Jones) for the Appellant
Mr Mark Hubbard (instructed by Chesham & Co) for the Respondent
Hearing date: 21 July 2017
Judgment Approved
Introduction
This is an appeal, with the permission of Birss J granted on 9 May 2017, against one part of the order dated 19 December 2016 of Mrs Recorder McAllister, sitting in the County Court at Central London.
The Respondent submits that the Recorder's decision was right for the reasons which she gave but, in addition, the Respondent has filed a Respondent's Notice seeking to uphold the decision of the Recorder on different or additional grounds. The Respondent's Notice was late for reasons which were explained to me and at the hearing I gave the Respondent permission to rely on the Respondent's Notice
Ms Lear appeared on behalf of the Appellant and Mr Hubbard appeared on behalf of the Respondent.
In the course of the hearing of the appeal, Ms Lear applied for permission to appeal in relation to other parts of the Recorder's order in relation to which Birss J had refused to grant permission to appeal. I will deal with this application also in this judgment.
The facts
The Recorder did not hear evidence and did not make her own findings of fact as to the underlying dispute between the parties. This was because she held that there was an issue estoppel in relation to that underlying dispute, arising from a decision of a deputy adjudicator to the Land Registry (to whom I will refer as "the adjudicator") on 1 June 2011. The Recorder held that the decision of the adjudicator was binding on the parties and that the earlier decision determined the outcome of the proceedings in the county court.
In this section of the judgment, I will set out those matters of fact which are not in dispute and other facts which relate to the matter being considered by the adjudicator and then becoming the subject of the county court proceedings.
The parties are sisters. At the hearing, their counsel referred to them by their first names and I will do the same, not intending any disrespect to them. The Appellant is Rita and the Respondent is Rose. Rita is the elder of the two.
On 24 April 1991, the registered title of 69 SandringhamGardens, London N12 (title no. MX375417) was transferred to Rita and Rose. The transfer stated that the transfer was in consideration of the payment of a price of £125,000. For some reason, the appeal bundle only has the first page of this transfer. Unfortunately, this is only one of many defects in the appeal bundle which has not been prepared with proper care.
Rita paid £25,000 of the purchase price for the property in 1991 and the balance of £100,000 was borrowed from Nationwide Anglia and repayment of the advance and interest was secured by a mortgage on the property granted by Rita and Rose.
Rita has lived at the property ever since it was bought in 1991. Rose lived at the property from 1991 to 1995, when she moved to other accommodation. I understand that Rose lived at the property at some later time or times but I am not clear as to the details in that respect.
On 31 October 2002, Rita and another sister, Maureen, executed a transfer of the title to Rita alone. Maureen forged Rose's signature on this transfer. The transfer stated that the consideration for the transfer was the redemption of an existing charge and the re-mortgage in one name i.e. that of Rita. Rose was unaware that this document had been purportedly executed until she found out about it in 2008. The official copy entries of this title, dated 4 February 2016, show that Rita became the sole registered proprietor on 24 January 2003. In 2016, the register entries showed that the property was no longer subject to the charge in favour of Nationwide Anglia but was subject to a charge dated 30 June 2004 in favour of Bank of Scotland plc.
Having found out about the purported transfer of 31 October 2002, Rose applied to the Land Registry, on 3 December 2008, to enter a unilateral notice against the title, using form UN1. The application referred to the purchase of the property in joint names in 1991 which was said to be part of "a family arrangement". She said that she did not sign the transfer of 31 October 2002 as her signature was forged and she wished to take court proceedings if necessary to set aside the transfer, rectify the register and preserve her half share in the property. Rose's application then went on to apply, in the alternative, for the entry of a restriction to prevent the registered proprietor from disposing of the property without a conveyancer's certificate that notice of any such disposal had been given to Rose. On 8 December 2008, pursuant to this application, the Land Registry entered a unilateral notice on the title. The entry stated that the notice was in respect of an interest arising from the transfer of 31 October 2002. Therefore, the notice was not in respect to an interest arising under the 1991 transfer. I expect that the Land Registry expressed the entry in those terms because of section 33(a) of the Land Registration Act 2002 ("the 2002 Act"), to which I will later refer. The Land Registry did not enter a restriction.
On 23 February 2009, Rita applied in form UN4 for the cancellation of the unilateral notice. On 17 March 2009, Rose objected to this application. The application and the objection were not produced to the court although they were referred to in a case summary prepared by the registrar. There was then a reference of the dispute to the adjudicator. A copy of the reference was not produced to the court. However, I was shown a copy of the case summary which accompanied the reference to the adjudicator. The summary stated that Rose objected to Rita's application to cancel the unilateral notice on the grounds that she was entitled to enter a unilateral notice "to protect her right to seek rectification of the register".
I was also provided with Rose's statement of case to the adjudicator. This referred to the relationship between Rita and Rose from 1981. It referred to the purchase of the property in 1991 as being pursuant to an express agreement that they would share the beneficial ownership of the property equally. It stated that the 2002 transfer was a nullity as Rose's signature had been forged. It stated that the register should be rectified accordingly. I was not given a copy of Rita's statement of case to the adjudicator.
On 9 February 2010, the secretariat of the Tribunals Service, Adjudicator to HM Land Registry, wrote to the parties. The letter stated that the adjudicator had reviewed the file and had asked for this letter to be sent. The letter stated that "the essential point" was whether Maureen had signed the 2002 transfer on behalf of Rose. The letter then stated that this question "may involve consideration of whether [Rose] had a beneficial interest in the property". It was explained that the adjudicator would need to hear all relevant evidence in order to determine which party she believed and, having heard such evidence, it was likely that the adjudicator would make findings of fact in relation to it. It was then said that the adjudicator's decision would determine Rose's entitlement to have her name restored to the register as joint proprietor.
The reference to the adjudicator was heard on 5 and 6 May 2011 and the adjudicator (Ms Sara Hargreaves) gave her decision on 1 June 2011. The adjudicator made an order that the Chief Land Registrar do cancel Rita's application to cancel the unilateral notice. The adjudicator's written decision can be summarised as follows (numbers in square brackets are the numbers of the relevant paragraphs in the decision):
(1) She referred to the notice being registered to protect Rose's right to seek rectification of the register to restore her name as a joint proprietor; she stated that it was unusual that Rose had entered a unilateral notice rather than making an application for rectification of the register; she said that an application for rectification would have stood "a good chance of success": [1];
(2) She set out the background to the application and a chronology: [2] – [7]; she referred to the rival cases about the 1991 transaction at [4]; she referred to the rival cases about the 2002 transfer at [6];
(3) Between [8] and [14], under the heading "The Applicant's evidence", she set out the evidence given by Rose, both in answer to questions put by the adjudicator and in answer to cross-examination; Rose's evidence included an account of the arrangement made in 1991;
(4) At [13], she said in relation to Rose's evidence:
"I have also concluded that the account of the offer made by [Rita] in 1991 is accurate, though as will be seen below, whether [Rita] made a genuine offer or not is another question altogether. But I find that [Rita] told [Rose] she would have a half share in the property even if she did so just to get her signature on various documents which she needed to."
(5) At [14], she accepted Rose's evidence that she had no knowledge of the 2002 transfer until 2008;
(6) Between [15] and [21], under the heading "The Respondent's evidence", she set out the evidence given by Rita;
(7) At [18], she referred to Rita's evidence in relation to the transfer in 1991; Rita had said that the solicitor then acting had told Rose that she could go "on the mortgage" even though she had no income and that her name could be removed later; the adjudicator noted that this allegation had not been put to Rose in cross-examination;
(8) At [22] to [25], the...
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