Barbara Gayle, Staff ReporterThe Court of Appeal has found that Alaric Astor 'Bobby' Pottinger, Custos of St. Mary and former president of the Jamaica Agricultural Society fraudulently misrepresented to the Registrar of Titles that he had adverse possession to more than 30 lots of land in Gibraltar Heights, St .Mary.
In the majority decision handed down on March 11, the court said Pottinger wrongfully obtained the titles.
An injunction was granted by the court barring Pottinger from dealing with or purporting to deal with the said lands.
The court has directed the Registrar of Titles to rectify the Register of Titles by removing Pottinger as the registered proprietor of the said lots of land itemised in the claim on the writ filed by Traute Raffone who claimed she was the owner of the lots.
Six of the lots were sold by Pottinger. The court ruled that the titles in respect of those purchasers were valid and their interests saved, being bona fide purchasers for value, as recognised under the Registration of Titles Act.
Pottinger had obtained a registered title in 1992 for the lots by adverse possession because he claimed he had been occupying the property undisturbed for more than 12 years .
Raffone had sued Pottinger, the Registrar of Titles and the Attorney-General to recover the lands on the basis that she had purchased them in 1986. The property which was initially owned by Gibraltar Estates Ltd., comprises lots to build houses.
reared goats
Pottinger brought evidence in the Supreme Court to show that he had been in possession of the lands since 1975. He said he had bushed the lots and used them for goat rearing.
He said he had reaped pimento from the lands and had enquired who owned the lots and was informed in 1983 that Eugene Sugarman was the owner. He and Sugarman agreed on the purchase price for the 34 lots and he took the written agreement to his lawyer in Highgate, St. Mary. He discontinued negotiations for the lots as a result of the advice he got from his lawyer. In 1992 Pottinger said he paid the taxes for the lots and then applied to the Registrar of Titles for a registered title by adverse possession.
Mr. Justice Lloyd Ellis (now retired ) heard the matter and ruled that the contract on which the claimant Raffone relied to found her ownership was invalid. He also ruled that since the contract did not establish her ownership, she had no competence to bring any action. The judge sad she did not establish that she paid the full purchase price.
improperly registered
Raffone who was represented by attorney-at-law Carol Davis took the matter to the Court of Appeal and Mr. Justice Donald Bingham, Mr. Justice Paul Harrison and Mr. Justice Smith heard the appeal. Mr. Justice Smith gave a dissenting judgment.
The judges in their majority decision said that on the evidence Pottinger was improperly registered as owner, for the reason that he was not in continuous possession of the said lots in excess of 12 years. The court said in addition, in 1983, which was a date within the 12-year-period, Pottinger sought to buy the said lots from Sugarman and then from Douglas Campbell (Raffone's husband) and then from Gibraltar Estates, thereby acknowledging the existence of the legal estate in the true owner.
"Furthermore, the respondent's (Pottinger) application was tainted by fraud by the untrue declarations that he had been in possession since 1975, and that he had, in 1992" settled all outstanding taxes on the said lots.
