Ian Peters Appellant v Robert George Spencer Respondent [ECSC]

• Jurisdiction: Antigua and Barbuda
• Judge: GEORGE-CREQUE, J.A.,Janice George-Creque,Justice of Appeal
• Judgment Date: 22 December 2009
• Judgment citation (vLex): [2009] ECSC J1222-1
• Court: Court of Appeal (Antigua and Barbuda)
• Docket Number: HCVAP 2009/016
• Date: 22 December 2009

[2009] ECSC J1222-1

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Janice George-Creque Justice of Appeal

HCVAP 2009/016

Between:

Ian Peters

Appellant

and

Robert George Spencer

Respondent

On written submissions:

Mr. Dane Hamilton, QC for the appellant

Dr. David Dorsett for the respondent

Civil Appeal — striking out statement of case — CPR 26.3(1)(b) — reasonable grounds for bringing a claim — whether the pleadings contained allegations of facts which support the cause of action — whether there was a live issue to be tried — transfer of property — fraud — rectification of land register — section 140 of the Registered Land Act —

The learned master made an order striking out the appellant's claim against the respondent on the grounds that it contained no allegations of facts which supported the appellant's case. The appellant's case is that he being an Antiguan national purchased property from the Crown in early 1992. At all material times he lived in New York, USA but in 2008 he returned to Antigua with the intention of building on the said property. The appellant discovered that in October 1992, the property had been transferred to and was now registered to the respondent. The appellant says that he never signed a transfer, did not agree to sell the property or authorise anyone to sell it; neither did he receive the consideration of $54,000.00 stated in the transfer to the respondent. The appellant says that he has no knowledge of the transaction, or of the respondent. The appellant accordingly alleged that the transfer to the respondent was fraudulent. The appellant seeks to set aside the order of the learned master.

Held: allowing the appeal and setting aside the learned master's order in its entirety. The matter shall proceed before the court below in accordance with CPR 2000. The appellant shall have his costs of this appeal in the sum of $933.00 being two-thirds of the costs as assessed below:

• 1. That there are principles by which the court must be guided when exercising the draconian power of striking out a party's statement of case.

  Citco Global Custody NV v Y2K Finance INC Civil Appeal No. 22 of 2009 (BVI) followed.

• 2. That a statement of case is not suitable for striking out if it raises a serious live issue of fact which can only be properly determined by hearing oral evidence.

  Bridgeman v McAlpine-Brown [2000] L.T.L Jan. 19, CA followed.

• 3. "A person who presents for registration a document which is forged or has been fraudulently or improperly obtained is not guilty of fraud if he honestly believes it to be a genuine document which can be properly acted upon." "But if it be shown that his suspicions were aroused, and that he abstained from making enquires for fear of learning the truth, the case is very different, and fraud may properly be ascribed to him."

  Asset Company Ltd. v Mere Roihi [1905] AC 176 applied.

• 4. That such matters as to whether the instruments of transfer were forged are matters of fact to be determined at the trial on the evidence to be adduced. The court is in no position to determine at the pleadings stage the strength or otherwise of the evidence which may be adduced in support of the case and in any event should refrain from so doing on a strike out application of this kind.

GEORGE-CREQUE, J.A.

1 This is an appeal from the order of the Master made on 7^th May 20091, in which she struck out the appellant's (Mr. Peters, being the claimant below) claim as against the respondent (Mr. Spencer being the first named defendant below) with costs, on the basis that the pleadings contained no allegations of facts which supported a cause of action against the respondent. This order was made pursuant to an application made by Mr. Spencer presumably, pursuant to CPR 26.3(1)(b) which empowers the court to strike out a statement of case where it does not disclose any reasonable ground for bringing a claim. Mr. Peters seeks to have the Master's order set aside.

The Grounds of Appeal

2 Mr. Peters has advanced four grounds of appeal. They are that the Learned Master:

• (1) erred in law and/or on the pleadings in holding that the pleadings contain no allegation or facts which support a cause of action against the first defendant ( Mr. Spencer);

• (2) failed to give sufficient weight or any at all to the pleadings in so far as the same made out a case for rectification of the Land Register under Section 140 of theRegistered Land Act;

• (3) failed to give any consideration to Mr. Peters' claim for a declaration;

• (4) failed to address her mind or to properly consider the proper application of CPR 26.3 to the pleadings as filed in the claim.

The Background

3 Mr. Peters, based on his pleaded case, is an Antiguan national, but at the material time was resident in New York, USA. He returned to Antigua in 2008 with the intention of building a house on Parcel 135, Block 45 1795A, Registration Section: Mc Kinnons ("Parcel 135"). He believed himself to be the owner of Parcel 135, by way of purchase from the Crown in early 1992, through the then Minister responsible for Lands. On return to Antigua however, he discovered that Parcel 135 had now been registered to Mr. Spencer on the basis of a purported transfer from him (Mr. Peters) to Mr. Spencer in October 1992 for the sum of $54,000.00.

4 Mr. Peters claims that the entire transaction is a fraud as he did not execute such a transfer, has no knowledge of or had any dealings with Mr. Spencer; did not receive the stated consideration contained therein; did not authorise anyone to sell or otherwise deal with Parcel 135; and did not appear before anyone for witnessing his signature on such transfer. He caused a claim to be issued on 21^st July 2008 as against three defendants, namely, Mr. Spencer, the purported Transferee of Parcel 135, named as the first defendant, one Patricia Simon-Forde, a lawyer practising in the state of Antigua and Barbuda named as the second defendant, and before whom he is said to have executed the transfer in favour of Mr. Spencer, and one Hilroy Humphreys, named as the third defendant, being the Minister of Agriculture, Lands and Fisheries at the material time. In so far as is relevant to this appeal Mr. Peters prayed for the following relief:

• (1) damages;

• (2) rectification of the Land Register in respect of Parcel 135, under Section 140 of theRegistered Land Act2; and

• (3) a declaration that Parcel 135 is owned by him (Mr. Peters) or is held in trust for him.

5 The third defendant (Mr. Humphreys) unsuccessfully sought to have Mr. Peters' claim struck out as failing to disclose any reasonable cause of action as against him. In the order dismissing Mr. Humphreys' application, leave was granted to Mr. Peters to amend his statement of claim.

6 An amended claim was filed on 17^th December 2008. The amended claim form added a fourth defendant, namely, one Ernest Gilead, a clerk employed in the Land Registry at the material time. The amended claim form specifically claimed damages for fraud.

Mr. Peters' Pleaded Case

7 Mr. Peters pleaded in essence that:

• (1) he purchased from the Government of Antigua and Barbuda acting through the Ministry of Agriculture, Land & Fisheries a parcel of land which had been shown to him in 1991 corresponding to Parcel 135 on the Land Register, for the sum of $47,397.00;

• (2) on 17^th July 1992, a purported instrument of transfer under the hand of the then Governor General (Ag.) was recorded at the Land Registry on 23^rd July 1992 whereby Parcel 135 was registered pursuant to the said instrument, in his name, as proprietor with absolute title. That Mr. Gilead, the Land Registry Clerk verified Mr. Peters' execution of this transfer and processed this instrument at the Land Registry — all unbeknownst to him. A Land Certificate was also issued on the same date but this certificate was never received by him;

• (3) on 7^th October 1992, a further instrument of transfer in respect of Parcel 135, prepared by Messrs. Kendall and Forde, Solicitors, was presented for registration to the Registrar of Lands. This transfer purported to be signed by him (Mr. Peters) as transferor whereby Parcel 135 was transferred to Mr. Spencer for a stated consideration of $54,000.00 ('the Spencer Transfer"). This is contained in paragraph 6 of his statement of claim;

• (4) he does not know Mr. Spencer, did not sign the Spencer Transfer, did not receive the consideration stated therein, did not instruct or authorise anyone to sell, execute on his behalf the Spencer Transfer, or receive any monies in respect thereof on his behalf. He accordingly says that the Spencer Transfer is false. (para. 7 of the statement of claim);

• (5) he at no time appeared before the second named defendant solicitor for the purpose of executing the Spencer Transfer despite, the second named defendant stating to have witnessed such execution by him. Accordingly, he says this statement is untrue. (para. 8 of statement of claim);

• (6) both instruments — the one from the Crown and the Spencer Transfer procured through Mr. Gilead are fraudulent and void ab initio.

The Particulars of Fraud Pleaded

8 Mr. Peters, in essence repeated the averments set out above, and set out, among other things that:

• (1) he did not know Mr. Spencer; had no dealings with him whatsoever; nor did he authorise anyone to have any dealings with him on his behalf, in respect of Parcel 135 or at all;

• (2) at the date of the alleged execution of the Spencer Transfer, he was in New York and not in the State of Antigua and Barbuda living or residing at Old Road, in Antigua as the Spencer Transfer stated, and he never did reside at Old Road;

• (3) the second named defendant solicitor, having prepared the said Instrument, acted recklessly in failing to ascertain that the person purporting to sign the Spencer Transfer was in fact Mr. Peters;

• (4) he never instructed, solicited, or...